exv4w1



 





Exhibit 4.1




EXECUTION VERSION




 





SHORT-TERM LOAN AGREEMENT




Dated as of




July 24, 2007




among




NOBLE CORPORATION,

as Borrower,




THE LENDERS PARTIES HERETO,




and




GOLDMAN SACHS CREDIT PARTNERS L.P.

as Administrative Agent



 




 









 








TABLE OF CONTENTS





	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS; INTERPRETATION
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Time of Day
	 	 	11	 
	Section 1.3. Accounting Terms; GAAP
	 	 	11	 
	ARTICLE 2 THE CREDIT FACILITIES
	 	 	11	 
	Section 2.1. Commitments for Term Loans
	 	 	11	 
	Section 2.2. Types of Term Loans and Minimum Borrowing Amounts
	 	 	12	 
	Section 2.3. Manner of Borrowings; Continuations and Conversions of Borrowings
	 	 	12	 
	Section 2.4. Interest Periods
	 	 	13	 
	Section 2.5. Disbursement of Loans
	 	 	14	 
	Section 2.6. Applicable Interest Rates
	 	 	14	 
	Section 2.7. Default Rate
	 	 	15	 
	Section 2.8. Repayment of Loans; Evidence of Debt
	 	 	16	 
	Section 2.9. Optional Prepayments
	 	 	17	 
	Section 2.10. Mandatory Prepayments of Loans
	 	 	17	 
	Section 2.11. Breakage Fees
	 	 	17	 
	ARTICLE 3 FEES AND PAYMENTS
	 	 	18	 
	Section 3.1. [Reserved]
	 	 	18	 
	Section 3.2. Place and Application of Payments
	 	 	18	 
	Section 3.3. Withholding Taxes
	 	 	19	 
	ARTICLE 4 CONDITIONS PRECEDENT
	 	 	22	 
	Section 4.1. Borrowing
	 	 	22	 
	ARTICLE 5 REPRESENTATIONS AND WARRANTIES
	 	 	23	 
	Section 5.1. Corporate Organization
	 	 	23	 
	Section 5.2. Power and Authority; Validity
	 	 	24	 
	Section 5.3. No Violation
	 	 	24	 
	Section 5.4. Litigation
	 	 	24	 
	Section 5.5. Use of Proceeds; Margin Regulations
	 	 	24	 
	Section 5.6. Investment Company Act
	 	 	24	 






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TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	Section 5.7. Existing Credit Facility
	 	 	25	 
	Section 5.8. True and Complete Disclosure
	 	 	25	 
	Section 5.9. Financial Statements
	 	 	25	 
	Section 5.10. No Material Adverse Effect
	 	 	25	 
	Section 5.11. Taxes
	 	 	25	 
	Section 5.12. Consents
	 	 	26	 
	Section 5.13. Insurance
	 	 	26	 
	Section 5.14. Intellectual Property
	 	 	26	 
	Section 5.15. Ownership of Property
	 	 	26	 
	Section 5.16. Existing Indebtedness
	 	 	26	 
	Section 5.17. Existing Liens
	 	 	26	 
	ARTICLE 6 COVENANTS
	 	 	27	 
	Section 6.1. Corporate Existence
	 	 	27	 
	Section 6.2. Maintenance
	 	 	27	 
	Section 6.3. Taxes
	 	 	27	 
	Section 6.4. ERISA
	 	 	27	 
	Section 6.5. Insurance
	 	 	28	 
	Section 6.6. Financial Reports and Other Information
	 	 	28	 
	Section 6.7. Lender Inspection Rights
	 	 	30	 
	Section 6.8. Conduct of Business
	 	 	30	 
	Section 6.9. Restrictions on Fundamental Changes
	 	 	31	 
	Section 6.10. Liens
	 	 	31	 
	Section 6.11. Subsidiary Indebtedness
	 	 	34	 
	Section 6.12. Use of Property and Facilities; Environmental Laws
	 	 	35	 
	Section 6.13. Transactions with Affiliates
	 	 	35	 
	Section 6.14. Sale and Leaseback Transactions
	 	 	35	 
	Section 6.15. Compliance with Laws
	 	 	36	 
	Section 6.16. Use of Proceeds
	 	 	36	 
	ARTICLE 7 EVENTS OF DEFAULT AND REMEDIES
	 	 	36	 
	Section 7.1. Events of Default
	 	 	36	 






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TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	Section 7.2. Non-Bankruptcy Defaults
	 	 	38	 
	Section 7.3. Bankruptcy Defaults
	 	 	38	 
	Section 7.4. [Reserved]
	 	 	38	 
	Section 7.5. Notice of Default
	 	 	38	 
	Section 7.6. Expenses
	 	 	38	 
	Section 7.7. Distribution and Application of Proceeds
	 	 	38	 
	ARTICLE 8 CHANGE IN CIRCUMSTANCES
	 	 	39	 
	Section 8.1. Change of Law
	 	 	39	 
	Section 8.2. Unavailability of Deposits or Inability to Ascertain LIBOR Rate
	 	 	40	 
	Section 8.3. Increased Cost and Reduced Return
	 	 	40	 
	Section 8.4. Lending Offices
	 	 	42	 
	Section 8.5. Discretion of Lender as to Manner of Funding
	 	 	42	 
	Section 8.6. Substitution of Lender
	 	 	42	 
	ARTICLE 9 THE AGENTS
	 	 	43	 
	Section 9.1. Appointment and Authorization of Administrative Agent
	 	 	43	 
	Section 9.2. Rights and Powers
	 	 	43	 
	Section 9.3. Action by Administrative Agent
	 	 	44	 
	Section 9.4. Consultation with Experts
	 	 	44	 
	Section 9.5. Indemnification Provisions; Credit Decision
	 	 	44	 
	Section 9.6. Indemnity
	 	 	45	 
	Section 9.7. Resignation of the Administrative Agent
	 	 	45	 
	ARTICLE 10 MISCELLANEOUS
	 	 	46	 
	Section 10.1. No Waiver
	 	 	46	 
	Section 10.2. Non-Business Day
	 	 	46	 
	Section 10.3. Documentary Taxes
	 	 	46	 
	Section 10.4. Survival of Representations
	 	 	47	 
	Section 10.5. Survival of Indemnities
	 	 	47	 
	Section 10.6. Setoff
	 	 	47	 
	Section 10.7. Notices
	 	 	48	 






-iii-









 




TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	Section 10.8. Counterparts
	 	 	50	 
	Section 10.9. Successors and Assigns
	 	 	50	 
	Section 10.10. Sales and Transfers of Borrowing and Notes; Participations in
Borrowings and Notes
	 	 	50	 
	Section 10.11. Amendments, Waivers and Consents
	 	 	54	 
	Section 10.12. Headings
	 	 	54	 
	Section 10.13. Legal Fees, Other Costs and Indemnification
	 	 	54	 
	Section 10.14. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
	 	 	55	 
	Section 10.15. Confidentiality
	 	 	57	 
	Section 10.16. Effectiveness
	 	 	57	 
	Section 10.17. Severability
	 	 	58	 
	Section 10.18. Currency Conversion
	 	 	58	 
	Section 10.19. [Reserved]
	 	 	58	 
	Section 10.20. Change in Accounting Principles, Fiscal Year or Tax Laws
	 	 	58	 
	Section 10.21. Final Agreement
	 	 	59	 
	Section 10.22. Officer’s Certificates
	 	 	59	 
	Section 10.23. Effect of Inclusion of Exceptions
	 	 	59	 
	Section 10.24. Margin Stock
	 	 	59	 
	Section 10.25. Patriot Act Notice
	 	 	59	 
	Section 10.26. No Fiduciary Duty
	 	 	59	 







-iv-









 








	 	 	 	 	 
	Exhibits:
	 	 	 	 
	 
	 	 	 	 
	Exhibit 1.1

	 	—
	 	Form of NDC Guaranty
	Exhibit 2.3

	 	—
	 	Form of Borrowing Request
	Exhibit 2.8

	 	—
	 	Form of Note
	Exhibit 4.1A

	 	—
	 	Form of Opinion of Thompson & Knight LLP
	Exhibit 4.1B

	 	—
	 	Form of Opinion of Maples and Calder
	Exhibit 6.6

	 	—
	 	Form of Compliance Certificate
	Exhibit 6.11

	 	—
	 	Form of Subsidiary Guaranty
	Exhibit 10.10

	 	—
	 	Form of Assignment Agreement
	 
	 	 	 	 
	Schedules:
	 	 	 	 
	 
	 	 	 	 
	Schedule 5.16

	 	—
	 	Existing Indebtedness
	Schedule 5.17

	 	—
	 	Existing Liens






 









 





SHORT-TERM LOAN AGREEMENT




     THIS SHORT-TERM LOAN AGREEMENT (this “Agreement”), dated as of July 24, 2007, among NOBLE
CORPORATION, a Cayman Islands exempted company limited by shares (the “Borrower”), the lenders from
time to time parties hereto (each a “Lender” and collectively, the “Lenders”) and GOLDMAN SACHS
CREDIT PARTNERS L.P., as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”).



WITNESSETH:




     WHEREAS, the Borrower has requested that the Lenders establish in its favor a short-term loan
facility in the aggregate principal amount of U.S. $685,000,000, pursuant to which short-term loans
would be made to the Borrower;



     WHEREAS, the Lenders are willing to make such short-term loan facility available to the
Borrower on the terms and subject to the conditions and requirements hereinafter set forth;



     NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
the parties hereto agree as follows:



ARTICLE 1




DEFINITIONS; INTERPRETATION.




     Section 1.1. Definitions. Unless otherwise defined herein, the following terms shall
have the following meanings, which meanings shall be equally applicable to both the singular and
plural forms of such terms:



     “Adjusted LIBOR” means, for any Borrowing of Adjusted LIBOR Loans for any Interest Period, a
rate per annum determined in accordance with the following formula:



	 	 	 	 	 
	     Adjusted LIBOR     =

	 	LIBOR Rate for such Interest Period
	 	 
	 
	 	 	 	 
	 

	 	1.00 - Statutory Reserve Rate	 	 






     “Adjusted LIBOR Loan” means a Term Loan, while it bears interest at a rate based on Adjusted
LIBOR as provided in Section 2.6(b).



     “Administrative Agent” means Goldman Sachs Credit Partners L.P., acting in its capacity as
administrative agent for the Lenders, and any successor Administrative Agent appointed hereunder
pursuant to Section 9.7.



     “Administrative Agent’s Account” means the account of the Administrative Agent maintained by
the Administrative Agent at Citibank, N.A., ABA No.: 021000089, Account No.: 40717188, Account
Name: Goldman Sachs Credit Partners, Ref.: Noble Corporation, Attention: Bank Loan Operations –
Philip Green, and such other account of the Administrative Agent as is



 









 







designated in writing from time to time by the Administrative Agent to the Borrower and the
Lenders for such purpose.



     “Administrative Questionnaire” means, with respect to each Lender, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative
Agent duly completed by such Lender.



     “Agreement” means this Short-Term Loan Agreement, as the same may be amended, restated and
supplemented from time to time.



     “Applicable Margin” means 0.30% per annum.



     “Arrangement Fee” means an arrangement fee payable to the Administrative Agent for the account
of the Lenders as further described in the Commitment Letter.



     “Assignment Agreement” means an agreement in substantially the form of Exhibit 10.10
whereby a Lender conveys part or all of its Loans to another Person that is, or thereupon becomes,
a Lender.



     “Base Rate” means for any day the greater of:



          (i) the rate of interest quoted in The Wall Street Journal Money Rates Section as the Prime
Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s
thirty (30) largest banks), as in effect from time to time (which base rate may not be the lowest
rate charged by such Lender on loans to any of its customers), with any change in the Base Rate
resulting from a change in such quoted rate to be effective on the date of the relevant change; and




          (ii) the sum of (x) the rate per annum (rounded upwards, if necessary, to the nearest 1/100th
of 1%) equal to the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such day, as published
by the Federal Reserve Bank of New York on the next Business Day, provided that (A) if such day is
not a Business Day, the rate on such transactions on the immediately preceding Business Day as so
published on the next Business Day shall apply, and (B) if no such rate is published on such next
Business Day, the rate for such day shall be the average of the offered rates quoted to the
Administrative Agent by two (2) federal funds brokers of recognized standing on such day for such
transactions as selected by the Administrative Agent, plus (y) a percentage per annum equal to
one-half of one percent (0.50%) per annum.




     “Base Rate Loan” means a Term Loan, while it bears interest at the rate specified in Section
2.6(a).



     “Borrower” is defined in the preamble.



     “Borrowing” means the extension of credit made by the Lenders on the Closing Date, including
such Borrowing when continued or converted. A Borrowing is “advanced” on the Closing Date, is
“continued” (in the case of an Adjusted LIBOR Loan) on the date a new Interest Period commences for
such Borrowing, and is “converted” (in the case of Adjusted LIBOR



2









 







Loans) when such Borrowing is changed from one Type of Loan to the other, all as requested by
the Borrower pursuant to Section 2.3.



     “Borrowing Multiple” means, for any Loan, $100,000.



     “Borrowing Request” has the meaning set forth in Section 2.3(a).



     “Business Day” means any day other than a Saturday or Sunday on which banks are not authorized
or required to close in New York, New York and, if the applicable Business Day relates to the
advance or continuation of, conversion into, or payment on an Adjusted LIBOR Loan, on which banks
are dealing in Dollar deposits in the interbank eurocurrency market in London, England.



     “Capitalized Lease Obligations” means, for any Person, the aggregate amount of such Person’s
liabilities under all leases of real or personal property (or any interest therein) which is
required to be capitalized on the balance sheet of such Person as determined in accordance with
GAAP.



     “Closing Date” means the date on which all the conditions precedent set forth in Article 4
shall be satisfied or waived.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Commitment” means, relative to any Lender, such Lender’s obligations to make a Term Loan
pursuant to Section 2.1, in a principal amount equal to such Lender’s Percentage of the Committed
Amount, in each case as in the amounts and percentages set forth opposite its signature hereto or
pursuant to Section 10.10.



     “Commitment Letter” means that certain commitment letter dated July 20, 2007 between the
Borrower and Goldman Sachs Credit Partners L.P.



     “Committed Amount” means $685,000,000.



     “Compliance Certificate” means a certificate in the form of Exhibit 6.6.



     “Consolidated Net Assets” means, as of any date of determination, an amount equal to the
aggregate book value of the assets of the Borrower, its Subsidiaries and, to the extent of the
equity interest of the Borrower and its Subsidiaries therein, SPVs at such time, minus the current
liabilities of the Borrower and its Subsidiaries, all as determined on a consolidated basis in
accordance with GAAP based on the most recent quarterly or annual consolidated financial statements
of the Borrower referred to in Section 5.9 or delivered (or publicly filed) as provided in Section
6.6(a), as the case may be.



     “Consolidated Tangible Net Worth” means, as of any date of determination, consolidated
shareholders equity of the Borrower and its Subsidiaries determined in accordance with GAAP but
excluding the effect on shareholders equity of cumulative foreign exchange translation adjustments,
and less the net book amount of all assets of the Borrower and its Subsidiaries that would
be classified as intangible assets on the consolidated balance sheet of the Borrower as of



3









 







such date prepared in accordance with GAAP. For purposes of this definition, SPVs shall be
accounted for pursuant to the equity method of accounting.



     “Controlling Affiliate” means, any Person that directly or indirectly through one or more
intermediaries controls, or is under common control with, the Borrower (other than Persons
controlled by the Borrower). As used in this definition, “control” means the power, directly or
indirectly, to direct or cause the direction of management or policies of a Person (through
ownership of voting securities or other equity interests, by contract or otherwise).



     “Credit Documents” means this Agreement, the Notes, the Borrowing Request, the NDC Guaranty
and any Subsidiary Guaranties in effect from time to time.



     “Credit Party” means the Borrower and each Guarantor.



     “Currency Rate Protection Agreement” shall mean any foreign currency exchange and future
agreements, arrangements and options designed to protect against fluctuations in currency exchange
rates, regardless of whether such agreements are subject to hedge accounting.



     “Default” means any event or condition the occurrence of which would, with the passage of time
or the giving of notice, or both, constitute an Event of Default.



     “Dollar” and “U.S. Dollar” and the sign “$” mean lawful money of the United States of America.



     “Dollar Equivalent” means, on any date of determination (i) with respect to any amount in
Dollars, such amount, and (ii) with respect to any amount in any currency other than U.S. Dollars,
the equivalent in Dollars of such amount, determined by the Administrative Agent using the
applicable Exchange Rate with respect to such currency at the time in effect or as otherwise
expressly provided herein.



     “Environmental Claims” means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of non-compliance or violation,
investigations or proceedings relating to any Environmental Law (“Claims”) or any permit issued
under any Environmental Law, including, without limitation, (i) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and (ii) any and all Claims by any third
party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive
relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to the
environment.



     “Environmental Law” means any federal, state or local statute, law, rule, regulation,
ordinance, code, policy or rule of common law now or hereafter in effect, including any judicial or
administrative order, consent, decree or judgment, relating to the environment.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



     “Event of Default” means any of the events or circumstances specified in Section 7.1.



4









 





     “Exchange Rate” means with respect to any currency at any time, the rate at which such
currency may be exchanged into Dollars, as set forth at approximately 11:00 A.M. on such day on the
applicable page of the Bloomberg Service reporting the exchange rates for such currency. In the
event such exchange rate does not appear on the applicable page of such service, the Exchange Rate
shall be determined by reference to such other publicly available services for displaying currency
exchange rates as may be agreed upon by the Administrative Agent and the Borrower, or, in the
absence of such agreement, such Exchange Rate shall instead be determined by the Administrative
Agent based on current market spot rates; provided that if at the time of any such determination,
for any reason, no such spot rate is being quoted, the Administrative Agent after consultation with
the Borrower, may use any reasonable method it deems appropriate to determine such rate, and such
determination shall be prima facie evidence thereof.



     “Existing Credit Facility” means the credit facility of the Borrower established pursuant to
that certain Revolving Credit Agreement dated March 15, 2007 among, inter alia, the Borrower as the
borrower thereunder, the lenders from time to time party thereto and Citibank, N.A. as
administrative agent thereunder.



     “Fitch” means Fitch, Inc. or any successor thereto.



     “Foreign Plan” means any pension, profit sharing, deferred compensation, or other employee
benefit plan, program or arrangement maintained by any foreign Subsidiary of the Borrower which,
under applicable local law, is required to be funded through a trust or other funding vehicle, but
shall not include any benefit provided by a foreign government or its agencies.



     “GAAP” means generally accepted accounting principles from time to time in effect as set forth
in the opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and the statements and pronouncements of the Financial Accounting
Standards Board or in such other statements, opinions and pronouncements by such other entity as
may be approved by a significant segment of the U.S. accounting profession.



     “Governmental Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.



     “Guarantor” means (a) NDC, unless and until released pursuant to the terms of the NDC
Guaranty, and (b) any Subsidiary of the Borrower required to execute and deliver a Subsidiary
Guaranty hereunder pursuant to Section 6.11(k), unless and until the relevant Subsidiary Guaranty
is released pursuant to Section 6.11(k).



     “Guaranty” by any Person means all contractual obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business) of such Person guaranteeing any Indebtedness of
any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including,
without limitation, all obligations incurred through an agreement, contingent or



5









 







otherwise, by such Person: (i) to purchase such Indebtedness or to purchase any property or
assets constituting security therefor, primarily for the purpose of assuring the owner of such
Indebtedness of the ability of the primary obligor to make payment of such Indebtedness; or (ii) to
advance or supply funds (x) for the purchase or payment of such Indebtedness, or (y) to maintain
working capital or other balance sheet condition, or otherwise to advance or make available funds
for the purchase or payment of such Indebtedness, in each case primarily for the purpose of
assuring the owner of such Indebtedness of the ability of the primary obligor to make payment of
such Indebtedness; or (iii) to lease property, or to purchase securities or other property or
services, of the primary obligor, primarily for the purpose of assuring the owner of such
Indebtedness of the ability of the primary obligor to make payment of such Indebtedness; or (iv)
otherwise to assure the owner of such Indebtedness of the primary obligor against loss in respect
thereof. For the purpose of all computations made under this Agreement, the amount of a Guaranty
in respect of any Indebtedness shall be deemed to be equal to the amount that would apply if such
Indebtedness was the direct obligation of such Person rather than the primary obligor or, if less,
the maximum aggregate potential liability of such Person under the terms of the Guaranty.



     “Hazardous Material” shall have the meaning assigned to that term in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Acts of 1986, and shall also include petroleum, including crude oil
or any fraction thereof, or any other substance defined as “hazardous” or “toxic” or words with
similar meaning and effect under any Environmental Law applicable to the Borrower or any of its
Subsidiaries.



     “Highest Lawful Rate” means the maximum nonusurious interest rate, if any, that any time or
from time to time may be contracted for, taken, reserved, charged or received on any Loans, under
laws applicable to any of the Lenders which are presently in effect or, to the extent allowed by
applicable law, under such laws which may hereafter be in effect and which allow a higher maximum
nonusurious interest rate than applicable laws now allow. Determination of the rate of interest
for the purpose of determining whether any Loans are usurious under all applicable laws shall be
made by amortizing, prorating, allocating, and spreading, in equal parts during the period of the
full stated term of the Loans, all interest at any time contracted for, taken, reserved, charged or
received from the Borrower in connection with the Loans.



     “Indebtedness” means, for any Person, the following obligations of such Person, without
duplication: (i) obligations of such Person for borrowed money; (ii) obligations of such Person
representing the deferred purchase price of property or services other than accounts payable and
accrued liabilities arising in the ordinary course of business and other than amounts which are
being contested in good faith and for which reserves in conformity with GAAP have been provided;
(iii) obligations of such Person evidenced by bonds, notes, bankers acceptances, debentures or
other similar instruments of such Person, or obligations of such Person arising, whether absolute
or contingent, out of drawn letters of credit issued for such Person’s account or pursuant to such
Person’s application securing Indebtedness; (iv) obligations of other Persons, whether or not
assumed, secured by Liens (other than Permitted Liens) upon property or payable out of the proceeds
or production from property now or hereafter owned or acquired by such Person, but only to the
extent of such property’s fair market value; (v) Capitalized Lease Obligations of such Person; (vi)
net obligations under Interest Rate Protection Agreements that



6









 







have been cancelled or otherwise terminated before their scheduled expiration or are otherwise
due and payable, and (vii) obligations of such Person pursuant to a Guaranty of any of the
foregoing obligations of another Person; provided, however, Indebtedness shall exclude Non-recourse
Debt. For purposes of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture to the extent such Indebtedness is recourse to
such Person.



     “Interest Payment Date” means (a) when a Term Loan is a Base Rate Loan, the earlier of (i) its
conversion into an Adjusted LIBOR Loan and (ii) the Maturity Date and (b) when a Term Loan is an
Adjusted LIBOR Loan, the last day of the Interest Period applicable thereto.



     “Interest Period” means with respect to an Adjusted LIBOR Loan, the period commencing on the
date of such Loan and ending on the numerically corresponding day in the calendar month that is one
or two months thereafter, in each case as the Borrower may elect, or such other period as is
provided in Section 2.3(e). For purposes hereof, the date of a Loan initially shall be the Closing
Date and thereafter shall be the effective date of the most recent conversion or continuation of
such Loan.



     “Interest Rate Protection Agreement” shall mean any interest rate swap, interest rate cap,
interest rate collar, or other interest rate hedging agreement or arrangement designed to protect
against fluctuations in interest rates, regardless of whether such agreements are subject to hedge
accounting.



     “Lender” is defined in the preamble.



     “Lending Office” means the “Lending Office” of such Lender (or an affiliate of such Lender)
designated for each Type of Loan in the Administrative Questionnaire submitted by such Lender or
such other office of such Lender (or an affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.



     “LIBOR Rate” means, for any Interest Period for an Adjusted LIBOR Loan, the rate per annum
quoted at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period on that page of the Reuters, Telerate or Bloombergs reporting service (as then
being used by the Administrative Agent to obtain such interest rate quotes) that displays British
Bankers’ Association interest settlement rates for deposits in U.S. Dollars, or if such page or
such service shall cease to be available, such other page or other service (as the case may be) for
the purpose of displaying British Bankers’ Association interest settlement rates as reasonably
determined by the Administrative Agent after consultation with the Borrower as to the use of any
such other service. If for any reason any such settlement interest rate for such Interest Period
is not available through any such interest rate reporting service, then the “LIBOR Rate” with
respect to such Adjusted LIBOR Loan will be the rate at which the Administrative Agent is offered
deposits for U.S. Dollars for a period approximately equal to such Interest Period in the London
interbank market at 10:00 A.M. (New York time) two Business Days before the first day of such
Interest Period.



7









 





     “Lien” means any interest in any property or asset in favor of a Person other than the owner
of such property or asset and securing an obligation owed to, or a claim by, such Person, whether
such interest is based on the common law, statute or contract, including, but not limited to, the
security interest lien arising from a mortgage, encumbrance, pledge, conditional sale, security
agreement or trust receipt, or a lease, consignment or bailment for security purposes.



     “Loan” means (i) a Base Rate Loan or (ii) an Adjusted LIBOR Loan, as the case may be, and
“Loans” means two or more of any such Loans.



     “Material Adverse Effect” means a material adverse effect on (i) the business, assets,
operations or condition of the Borrower and its Subsidiaries taken as a whole, or (ii) the Credit
Parties’ ability, taken as a whole, to perform any of their payment obligations under the Agreement
or the Notes or under any other Credit Document to which any of them is a party.



     “Maturity Date” means the earlier of (i) September 27, 2007 and (ii) the date on which the
Loans have become due and payable pursuant to Section 7.2 or 7.3.



     “Moody’s” means Moody’s Investors Service, Inc. or any successor thereto.



     “NDC” means Noble Drilling Corporation, a Delaware corporation.



     “NDC Guaranty” means a guaranty of NDC in substantially the form of Exhibit 1.1.



     “NICAS” means Noble Investment Capital AS, a wholly-owned subsidiary of the Borrower organized
under the laws of Norway.



     “NICAS Liquidation” means the liquidation of NICAS into the Borrower in accordance with
applicable laws.



     “Non-recourse Debt” means with respect to any Person (i) obligations of such Person against
which the obligee has no recourse to such Person except as to certain named or described present or
future assets or interests of such Person, and (ii) the obligations of SPVs to the extent the
obligee thereof has no recourse to the Borrower or any of its Subsidiaries, except as to certain
specified present or future assets or interests of SPVs.



     “Note” has the meaning ascribed to such term in Section 2.8(e).



     “Obligations” means all obligations of the Credit Parties to pay fees, costs and expenses
hereunder, to pay principal or interest on Loans and to pay any other obligations to the
Administrative Agent, or any Lender arising under any Credit Document.



     “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October
26, 2001, as amended from time to time.



     “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.



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     “Percentage” means, for each Lender, the percentage of the Committed Amount represented by
such Lender’s Commitment.



     “Performance Guaranties” means all Guaranties of performance (and not financial Guaranties) of
the Borrower or any of its Subsidiaries delivered in connection with the construction, operation,
ownership or financing of drill ships, offshore mobile drilling units or offshore drilling rigs.



     “Performance Letters of Credit” means all letters of credit for the account of the Borrower,
any Subsidiary or a SPV issued as support for Non-recourse Debt or a Performance Guaranty.



     “Permitted Business” has the meaning ascribed to such term in Section 6.8.



     “Permitted Liens” means the Liens permitted as described in Section 6.10.



     “Person” means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization or any other entity or organization, including a
government or any agency or political subdivision thereof.



     “Plan” means an employee pension benefit plan covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code that is either (i) maintained by the
Borrower or any of its Subsidiaries, or (ii) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer makes contributions and to
which the Borrower or any of its Subsidiaries is then making or accruing an obligation to make
contributions or has within the preceding five (5) plan years made or had an obligation to make
contributions.



     “Refinancing” means repayment by the Borrower of the intercompany loan made by NICAS to the
Borrower on April 10, 2006 in an aggregate principal amount of $640,196,656 plus accrued and unpaid
interest thereon as of the Closing Date.



     “Required Lenders” means, Lenders having Term Credit Exposures representing more than 50% of
the sum of the total Term Credit Exposures of all Lenders at such time.



     “Sale-Leaseback Transaction” means any arrangement whereby the Borrower or a Subsidiary shall
sell or transfer any property, real or personal, used or useful in its business, whether now owned
or hereafter acquired, and thereafter rent or lease property that it intends to use for
substantially the same purpose or purposes as the property sold or transferred.



     “S&P” means Standard & Poor’s Ratings Group or any successor thereto.



     “Senior NDC Notes” means (a) the 6.95% Senior Notes due 2009 in the original principal amount
of $150,000,000 issued by NDC, (b) the 7.50% Senior Notes due 2019 in the original principal amount
of $250,000,000 issued by NDC, (c) any refinancings, extensions, renewals or replacements of such
Indebtedness issued by NDC and (d) prior to the termination of the NDC Guaranty, any other senior
unsecured notes or senior subordinated notes issued or assumed by NDC.



9









 





     “Significant Subsidiary” has the meaning ascribed to it under Regulation S-X promulgated under
the Securities Exchange Act of 1934, as amended.



     “SPV” means any Person that is designated by the Borrower as a special purpose vehicle,
provided that the Borrower shall not designate as a SPV any Subsidiary that owns, directly or
indirectly, any other Subsidiary that has total assets (including assets of any Subsidiaries of
such other Subsidiary, but excluding any assets that would be eliminated in consolidation with the
Borrower and its Subsidiaries) which equates to at least five percent (5%) of the Borrower’s Total
Assets, or that had net income (including net income of any Subsidiaries of such other Subsidiary,
all before discontinued operations and income or loss resulting from extraordinary items, but
excluding revenues and expenses that would be eliminated in consolidation with the Borrower and its
Subsidiaries and excluding any loss or gain resulting from the early extinguishment of
Indebtedness) during the most recently completed fiscal year of the Borrower in excess of the
greater of (i) $1,000,000, and (ii) fifteen percent (15%) of the net income (before discontinued
operations and income or loss resulting from extraordinary items and excluding any loss or gain
resulting from the early extinguishment of Indebtedness) for the Borrower and its Subsidiaries, all
as determined on a consolidated basis in accordance with GAAP during such fiscal year of the
Borrower. The Borrower may elect to treat any Subsidiary as a SPV (provided such Subsidiary would
otherwise qualify as such), and may rescind any such prior election, by giving written notice
thereof to the Administrative Agent specifying the name of such Subsidiary or SPV, as the case may
be, and the effective date of such election, which shall be a date within sixty (60) days after the
date such notice is given. The election to treat a particular Person as a SPV may only be made
once.



     “Statutory Reserve Rate” means, with respect to any currency, the aggregate of the maximum
reserve, liquid asset or similar percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by any Governmental Authority of the
United States or of the jurisdiction of such currency or any jurisdiction in which Loans in such
currency are made to which banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to which interest rates
applicable to loans in such currency are determined. Such reserve, liquid asset or similar
percentages shall include those imposed pursuant to Regulation D of the Board of Governors of the
Federal Reserve System. Adjusted LIBOR Loans shall be deemed to be subject to such reserve
requirements without benefit of or credit for pro-ration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D or any other applicable law, rule or
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.



     “Subsidiary” means, for any Person, any other Person (other than, except in the context of
Sections 5.9 and 6.6(a), a SPV) of which more than fifty percent (50%) of the outstanding stock or
comparable equity interests having ordinary voting power for the election of the board of
directors, managers or similar governing body of such other Person (irrespective of whether or not
at the time stock or other equity interests of any other class or classes of such other Person
shall have or might have voting power by reason of the happening of any contingency), is at the
time directly or indirectly owned by such former Person or by one or more of its Subsidiaries.



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     “Subsidiary Debt Basket Amount” has the meaning ascribed to such term in Section 6.11(j).



     “Subsidiary Guaranty” means any Guaranty of any Subsidiary delivered pursuant to Section
6.11(k).



     “Taxes” has the meaning set forth in Section 5.11.



     “Term Credit Exposure” means, with respect to any Lender at any time, the sum at such time,
without duplication, of such Lender’s applicable Percentage of the principal amounts of the
outstanding Term Loans.



     “Term Loan” has the meaning set forth in Section 2.1.



     “Total Assets” means, as of any date of determination, the aggregate book value of the assets
of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP as
of such date.



     “Transactions” means each of the transactions contemplated by this Agreement and the other
Credit Documents, including the Refinancing, the NICAS Liquidation and the use of proceeds of the
NICAS Liquidation.



     “Type”, when used in reference to any Term Loan or Borrowing, refers to whether the rate of
interest on such Term Loan, or on the Term Loans comprising such Borrowing, is determined by
reference to Adjusted LIBOR or the Base Rate.



     “Unfunded Vested Liabilities” means, for any Plan at any time, the amount (if any) by which
the present value of all vested nonforfeitable accrued benefits under such Plan exceeds the fair
market value of all Plan assets allocable to such benefits, determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents a potential
liability of the Borrower or any of its Subsidiaries to the PBGC or such Plan.



     Section 1.2. Time of Day. Unless otherwise expressly provided, all references to time
of day in this Agreement and the other Credit Documents shall be references to New York, New York
time.



     Section 1.3. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
and subject to the provisions of Section 10.20, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time.



ARTICLE 2




THE CREDIT FACILITIES.




     Section 2.1. Commitments for Term Loans. Subject to the terms and conditions hereof,
each Lender severally and not jointly agrees to make a term loan (collectively, the “Term



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“Loans”) to the Borrower in Dollars and in a single draw on the Closing Date in an aggregate
principal amount not to exceed an amount equal to its Commitment. Each Lender’s Commitment shall
terminate immediately and without further action on the Closing Date after giving effect to the
funding of such Lender’s Commitment on such date. Term Loans may be repaid, in whole or in part,
but once so repaid, all or any portion of the principal amounts thereof may not be reborrowed.




     Section 2.2. Types of Term Loans and Minimum Borrowing Amounts. The Term Loans may be
outstanding as either Base Rate Loans or Adjusted LIBOR Loans, as selected by the Borrower pursuant
to Section 2.3.



     Section 2.3. Manner of Borrowings; Continuations and Conversions of Borrowings.



          (a) Notice of Term Loan Borrowings. The Borrower shall have given notice to the
Administrative Agent by no later than (i) 5:00 P.M. at least two (2) Business Days prior to the
Closing Date, if the Borrower requested the Lenders to advance Adjusted LIBOR Loans, and (ii) 5:00
P.M. at least one (1) Business Day prior to the Closing Date if the Borrower requested the Lenders
to advance Base Rate Loans, in each case pursuant to a duly completed Borrowing Request
substantially in the form of Exhibit 2.3 (each a “Borrowing Request") executed by the
Borrower.



          (b) Notice of Continuation or Conversion of Outstanding Borrowings. The Borrower may
from time to time elect to change or continue the type of interest rate borne by the Borrowing as
follows: (i) if the Borrowing is of Adjusted LIBOR Loans, the Borrower may continue such Borrowing
as Adjusted LIBOR Loans for an Interest Period specified by the Borrower or convert all or part of
such Borrowing into Base Rate Loans on the last day of the Interest Period applicable thereto, or
the Borrower may earlier convert such Borrowing into Base Rate Loans so long as it pays the
breakage fees and funding losses provided in Section 2.11; and (ii) if the Borrowing is of Base
Rate Loans, the Borrower may convert all or part of such Borrowing into Adjusted LIBOR Loans for an
Interest Period specified by the Borrower on any Business Day, in each case pursuant to notices of
continuation or conversion as set forth below. Notices of the continuation of Adjusted LIBOR Loans
for an additional Interest Period or of the conversion of Adjusted LIBOR Loans into Base Rate Loans
or of Base Rate Loans into Adjusted LIBOR Loans must be given by no later than 12:00 P.M. at least
three (3) Business Days before the date of the requested continuation or conversion.



          (c) Manner of Notice. The Borrower shall give such notices concerning the advance,
continuation, or conversion of a Borrowing pursuant to this Section 2.3 by telephone or facsimile
(which notice shall be irrevocable once given and, if by telephone, shall be promptly confirmed in
writing) pursuant to a Borrowing Request which shall specify the date of the requested advance,
continuation or conversion (which shall be a Business Day), the amount of the requested Borrowing,
whether such Borrowing is to be advanced, continued, or converted, the Type of Loans to comprise
such new, continued or converted Borrowing and, if such Borrowing is to be comprised of Adjusted
LIBOR Loans, the Interest Period applicable thereto. The Borrower agrees that the Administrative
Agent may rely on any such telephonic or facsimile notice given by any Person it in good faith
believes is an authorized representative of the Borrower without the necessity of independent
investigation and that, if any such notice by



12









 







telephone conflicts with any written confirmation, such telephonic notice shall govern if the
Administrative Agent has acted in reliance thereon.



          (d) Notice to the Lenders. The Administrative Agent shall give prompt telephonic,
telex or facsimile notice to each Lender of any notice received pursuant to this Section 2.3
relating to the Borrowing. The Administrative Agent shall give notice to the Borrower and each
Lender by like means of the interest rate applicable to each Borrowing of Adjusted LIBOR Loans
(but, if such notice is given by telephone, the Administrative Agent shall confirm such rate in
writing) promptly after the Administrative Agent has made such determination.



          (e) Borrower’s Failure to Notify. If the Borrower fails to give notice pursuant to
Section 2.3(b) of the continuation or conversion of any outstanding principal amount of a Borrowing
of Adjusted LIBOR Loans, and has not notified the Administrative Agent by 12:00 P.M. at least three
(3) Business Days before the last day of the Interest Period for any Borrowing of Adjusted LIBOR
Loans, that it intends to repay such Borrowing, the Borrower shall be deemed to have requested the
continuation of such Borrowing as Adjusted LIBOR Loans with an Interest Period of one week. Upon
the occurrence and during the continuance of any Event of Default, and upon notice thereof from the
Administrative Agent to the Borrower, any Adjusted LIBOR Loan will automatically, on the last day
of the then existing Interest Period therefor, convert into a Base Rate Loan.



          (f) Conversion. If the Borrower shall elect to convert the Borrowing pursuant to this
Section 2.3 from one Type of Loan to the other only in part, then, from and after the date on which
such conversion shall be effective, the Borrowing shall, for all purposes of this Agreement
(including, without limitation, for purposes of subsequent application of this sentence) be deemed
to instead constitute two Borrowings (each originally advanced on the Closing Date), one comprised
of (subject to subsequent conversion in accordance with this Agreement) Adjusted LIBOR Loans in an
aggregate principal amount equal to the portion of the Borrowing so elected by the Borrower to be
comprised of Adjusted LIBOR Loans and the second comprised of (subject to subsequent conversion in
accordance with this Agreement) Base Rate Loans in an aggregate principal amount equal to the
portion of the Borrowing so elected by the Borrower to be comprised of Base Rate Loans. This
Section 2.3(f) shall be applied appropriately in the event that the Borrower shall make the
elections described in the preceding sentence at the same time with respect to the Borrowing.



     Section 2.4. Interest Periods. As provided in Section 2.3, at the time of each
request for a Borrowing of Adjusted LIBOR Loans, or for the continuation or conversion of any
Borrowing of Adjusted LIBOR Loans, the Borrower shall select the Interest Period(s) to be
applicable to such Loans from among the available options, subject to the limitations in Section
2.3; provided, however, that:



          (i) the Borrower may not select an Interest Period that extends beyond the Maturity Date (and
for the avoidance of doubt, the deemed request by the Borrower to continue the Borrowing as
Adjusted LIBOR Loans with an Interest Period of one week pursuant to Section 2.3(e) hereof shall
not be deemed to be a selection of an Interest Period that extends beyond the Maturity Date);



13









 





          (ii) whenever the last day of any Interest Period would otherwise be a day that is not a
Business Day, the last day of such Interest Period shall either be (i) extended to the next
succeeding Business Day, or (ii) in the case of Adjusted LIBOR Loans only, reduced to the
immediately preceding Business Day if the next succeeding Business Day is in the next calendar
month; and



          (iii) for purposes of determining an Interest Period, a month means a period starting on one
day in a calendar month and ending on the numerically corresponding day in the next calendar month;
provided, however, that if there is no such numerically corresponding day in the month in which an
Interest Period is to end or if an Interest Period begins on the last Business Day of a calendar
month, then in the case of Adjusted LIBOR Loans only, such Interest Period shall end on the last
Business Day of the calendar month in which such Interest Period is to end.



     Section 2.5. Disbursement of Loans. Not later than 12:00 P.M. with respect to
Adjusted LIBOR Loans, and 2:00 P.M. with respect to Base Rate Loans, on the Closing Date, each
Lender, subject to all other provisions hereof, shall make available for the account of its
applicable Lending Office its Term Loan comprising its portion of the Borrowing in funds
immediately available for the benefit of the Administrative Agent in the Administrative Agent’s
Account and according to the payment instructions of the Administrative Agent. The Administrative
Agent shall, subject to all other provisions hereof, promptly make the proceeds of the Borrowing
available in immediately available funds to the Borrower (or as directed in writing by the
Borrower) on the Closing Date. No Lender shall be responsible to the Borrower for any failure by
another Lender to fund its portion of the Borrowing, and no such failure by a Lender shall relieve
any other Lender from its obligation, if any, to fund its portion of the Borrowing.



     Section 2.6. Applicable Interest Rates.



          (a) Base Rate Loans. Any Base Rate Loan shall bear interest (computed on the basis of
a 365-day year or 366-day year, as the case may be, and actual days elapsed including the first day
but excluding the date of repayment) on the unpaid principal amount thereof from the date such Loan
is made until maturity (whether by acceleration or otherwise) or conversion to an Adjusted LIBOR
Loan, at a rate per annum equal to the lesser of (i) the Highest Lawful Rate, or (ii) the Base Rate
from time to time in effect. The Borrower agrees to pay such interest on each Interest Payment
Date for such Loan and at maturity (whether by acceleration or otherwise).



          (b) Adjusted LIBOR Loans. Any Adjusted LIBOR Loan shall bear interest (computed on
the basis of a 360-day year and actual days elapsed including the first day but excluding the date
of repayment) on the unpaid principal amount thereof from the date such Loan is made until maturity
(whether by acceleration or otherwise) or, in the case of Adjusted LIBOR Loans, conversion to Base
Rate Loans at a rate per annum equal to the lesser of (i) the Highest Lawful Rate, or (ii) the sum
of Adjusted LIBOR plus the Applicable Margin. The Borrower agrees to pay such interest on each
Interest Payment Date for such Loan and at maturity (whether by acceleration or otherwise) or, in
the case of Adjusted LIBOR Loans, conversion to Base Rate Loans.



14









 





          (c) [Reserved].



          (d) Rate Determinations. The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder insofar as such interest rate involves a determination of Base
Rate, Adjusted LIBOR or LIBOR Rate, or any applicable default rate pursuant to Section 2.7, and
such determination shall be conclusive and binding except in the case of the Administrative Agent’s
manifest error or willful misconduct. The Administrative Agent shall promptly give notice to the
Borrower and each Lender of each determination of Adjusted LIBOR, with respect to each Adjusted
LIBOR Loan.



     Section 2.7. Default Rate. If any payment of principal on any Loan is not made when
due after the expiration of the grace period therefor provided in Section 7.1(a) (whether by
acceleration or otherwise), such past due Loan shall bear interest (computed on the basis of a year
of 360, 365 or 366 days, as applicable, and actual days elapsed) after any such grace period
expires until such principal then due is paid in full, which the Borrower agrees to pay on demand,
at a rate per annum equal to:



          (a) for any Base Rate Loan, the lesser of (i) the Highest Lawful Rate, or (ii) the sum of two
percent (2%) per annum plus the Base Rate from time to time in effect (but not less than the Base
Rate in effect at the time such payment was due); and



          (b) for any Adjusted LIBOR Loan, the lesser of (i) the Highest Lawful Rate, or (ii) the sum of
two percent (2%) per annum plus the rate of interest in effect thereon at the time of such default
until the end of the Interest Period for such Loan and, thereafter, at a rate per annum equal to
the sum of two percent (2%) per annum plus the Base Rate from time to time in effect (but not less
than the Base Rate in effect at the time such payment was due).



          It is the intention of the Administrative Agent and the Lenders to conform strictly to usury
laws applicable to them. Accordingly, if the transactions contemplated hereby or any Loan or other
Obligation would be usurious as to any of the Lenders under laws applicable to it (including the
laws of the United States of America and the State of New York or any other jurisdiction whose laws
may be mandatorily applicable to such Lender notwithstanding the other provisions of this
Agreement, the Notes or any other Credit Document), then, in that event, notwithstanding anything
to the contrary in this Agreement, the Notes or any other Credit Document, it is agreed as follows:
(i) the aggregate of all consideration which constitutes interest under laws applicable to such
Lender that is contracted for, taken, reserved, charged or received by such Lender under this
Agreement, the Notes or any other Credit Document or otherwise shall under no circumstances exceed
the Highest Lawful Rate, and any excess shall be credited by such Lender on the principal amount of
the Loans; and (ii) in the event that the maturity of the Loans is accelerated by reason of an
election of the holder or holders thereof resulting from any Event of Default hereunder or
otherwise, or in the event of any required or permitted prepayment, then such consideration that
constitutes interest under laws applicable to such Lender may never include more than the Highest
Lawful Rate, and excess interest, if any, provided for in this Agreement, the Notes, any other
Credit Document or otherwise shall be automatically canceled by such Lender as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited by such Lender on the
principal amount of the Loans.



15









 





     Section 2.8. Repayment of Loans; Evidence of Debt.



          (a) Repayment of Loans. The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender, on the Maturity Date, the unpaid amount of the
Term Loans to the Borrower then outstanding.



          (b) Record of Loans by Lenders. Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made to the Borrower by such Lender, including the amounts of principal
and accrued interest payable and paid to such Lender from time to time hereunder.



          (c) Record of Loans by Administrative Agent. The Administrative Agent, acting as a
non-fiduciary agent of the Borrower for this purpose, shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or accrued interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.



          (d) Evidence of Obligations. The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the existence
and amounts of the obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.



          (e) Notes. The Term Loans outstanding to the Borrower from each Lender shall, at the
written request of such Lender, be evidenced by a promissory note of the Borrower payable to such
Lender in the form of Exhibit 2.8 (each a “Note”). The Borrower agrees to execute and
deliver to the Administrative Agent, for the benefit of each Lender requesting a promissory note as
aforesaid, an original of each such promissory note, appropriately completed, to evidence the
respective Loans made by such Lender to the Borrower hereunder, within ten (10) Business Days after
the Borrower receives a written request therefor.



          (f) Recording of Loans and Payments on Notes. Each holder of a Note shall record on
its books and records or on a schedule to its appropriate Note (and prior to any transfer of its
Notes shall endorse thereon or on schedules forming a part thereof appropriate notations to
evidence) the amount of each Loan outstanding from it to the maker thereof, all payments of
principal and interest and the principal balance from time to time outstanding thereon, the Type of
such Loan and, if an Adjusted LIBOR Loan, the Interest Period and interest rate applicable thereto.
Such record, whether shown on the books and records of a holder of a Note or on a schedule to its
Note, shall be prima facie evidence as to all such matters; provided, however, that the failure of
any holder to record any of the foregoing or any error in any such record shall not limit or
otherwise affect the obligation of the Borrower to repay all Loans outstanding to the Borrower
hereunder together with accrued interest thereon. At the request of any holder of a Note and upon
such holder tendering to the Borrower the Note to be replaced, the Borrower shall



16









 







furnish a new Note to such holder to replace any outstanding Note and at such time the first
notation appearing on the schedule on the reverse side of, or attached to, such new Note shall set
forth the aggregate unpaid principal amount of all Loans, if any, then outstanding thereon.



     Section 2.9. Optional Prepayments. The Borrower shall have the privilege of prepaying
any Base Rate Loans without premium or penalty at any time in whole or at any time and from time to
time in part (but, if in part, then in an amount which is equal to or greater than $1,000,000);
provided, however, that the Borrower shall have given notice of such prepayment to the
Administrative Agent no later than 12:00 P.M. on the date of such prepayment. The Borrower shall
have the privilege of prepaying any Adjusted LIBOR Loans (a) without premium or penalty in whole or
in part (but, if in part, then in an amount which is equal to or greater than $5,000,000 and in an
integral multiple of the Borrowing Multiple or such smaller amount as needed to prepay a particular
Borrowing in full) only on the last Business Day of an Interest Period for such Loan, and (b) at
any other time without premium or penalty except for the breakage fees and funding losses that are
required to be paid pursuant to Section 2.11; provided, however, that the Borrower shall have given
notice of such prepayment to the Administrative Agent no later than 12:00 P.M. at least one (1)
Business Days before the last Business Day of such Interest Period or the proposed prepayment date
(or such shorter period as may be agreed by the Administrative Agent in its sole discretion). Any
such prepayments shall be made by the payment of the principal amount to be prepaid and accrued and
unpaid interest thereon to the date of such prepayment. Optional prepayments shall be applied
ratably to the Loans of each Lender.



     Section 2.10. Mandatory Prepayments of Loans.



          (a) Within two (2) Business Days after the Borrower shall receive any payment in connection
with the consummation of the NICAS Liquidation, the Borrower shall prepay, without premium or
penalty except for the breakage fees and funding losses that are required to be paid pursuant to
Section 2.11, the Term Loans in full and apply the entire net cash proceeds of the NICAS
Liquidation to such prepayment. In the event that such net proceeds are not sufficient to make
such prepayment in full or are not available to the Borrower, the Borrower shall remain obligated
to make such prepayment of the Term Loans in full on such Business Day.



          (b) Immediately upon determining the need to make any prepayment pursuant to clause (a), the
Borrower shall notify the Administrative Agent of such required prepayment. Any mandatory
prepayment of Term Loans pursuant to this Section 2.10 shall not be limited by the notice provision
for prepayments set forth in Section 2.9. Each prepayment shall be accompanied by a payment of all
accrued and unpaid interest on the Term Loans prepaid and any applicable breakage fees and funding
losses pursuant to Section 2.11.



     Section 2.11. Breakage Fees. If any Lender incurs any loss, cost or expense
(excluding loss of anticipated profits and other indirect or consequential damages) by reason of
the liquidation or re-employment of deposits or other funds acquired by such Lender to fund or
maintain any Adjusted LIBOR Loan as a result of any of the following events other than any such
occurrence as a result of a change of circumstance described in Sections 8.1 or 8.2:



17









 





          (a) any payment, prepayment or conversion of any such Loan on a date other than the last day
of its Interest Period (whether by acceleration, mandatory prepayment or otherwise);



          (b) any failure to make a principal payment of any such Loan on the due date therefor; or



          (c) any failure by the Borrower to borrow, continue or prepay, or convert to, any such Loan on
the date specified in a notice given pursuant to Section 2.3 (other than by reason of a default of
such Lender),



then the Borrower shall pay to such Lender such amount as will reimburse such Lender for such loss,
cost or expense. If any Lender makes such a claim for compensation, it shall provide to the
Borrower a certificate executed by an officer of such Lender setting forth the amount of such loss,
cost or expense in reasonable detail (including an explanation of the basis for and the computation
of such loss, cost or expense) no later than ninety (90) days after the event giving rise to the
claim for compensation, and the amounts shown on such certificate shall be prima facie evidence of
such Lender’s entitlement thereto. Within ten (10) days of receipt of such certificate, the
Borrower shall pay directly to such Lender such amount as will compensate such Lender for such
loss, cost or expense as provided herein, unless such Lender has failed to timely give notice to
the Borrower of such claim for compensation as provided herein, in which event the Borrower shall
not have any obligation to pay such claim.



ARTICLE 3




FEES AND PAYMENTS.




     Section 3.1. [Reserved].



     Section 3.2. Place and Application of Payments.



          (a) All payments of principal of and interest on the Loans and all fees and other amounts
payable by any Credit Party under the Credit Documents shall be made free and clear of any set-off,
counterclaim or defense by such Credit Party to the Administrative Agent, for the benefit of the
Lenders entitled to such payments, in immediately available funds on the due date thereof no later
than 2:00 P.M. in the Administrative Agent’s Account or such other location as the Administrative
Agent may designate in writing to the Borrower. Any payments received by the Administrative Agent
from any Credit Party after the time specified in the preceding sentence shall be deemed to have
been received on the next Business Day. The Administrative Agent will, on the same day each
payment is received or deemed to have been received in accordance with this Section 3.2, cause to
be distributed like funds in like currency to each Lender owed an Obligation for which such payment
was received, pro rata based on the respective amounts of such type of Obligation then owing to
each Lender.



          (b) If any payment received by the Administrative Agent under any Credit Document is
insufficient to pay in full all amounts then due and payable to the Administrative



18









 







Agent and the Lenders under the Credit Documents, such payment shall be distributed by the
Administrative Agent and applied by the Administrative Agent and the Lenders in the order set forth
in Section 7.7. In calculating the amount of Obligations owing to each Lender other than for
principal and interest on Loans and fees under Section 3.1, the Administrative Agent shall only be
required to include such other Obligations that Lenders have certified to the Administrative Agent
in writing are due to such Lenders.



     Section 3.3. Withholding Taxes.



          (a) Payments Free of Withholding. Except as otherwise required by law and subject to
Section 3.3(b), each payment by or on behalf of the Borrower to any Lender or the Administrative
Agent under or in connection with this Agreement or any other Credit Document shall be made without
withholding for or on account of any present or future taxes. If any such withholding is so
required, the Borrower shall make the withholding and pay the amount withheld to the appropriate
Governmental Authority before penalties attach thereto or interest accrues thereon. Moreover, in
the case of any such present or future taxes imposed by or within the jurisdiction in which the
Borrower is incorporated, any jurisdiction from which the Borrower makes any payment under this
Agreement or any other Credit Document, or (in each case) any political subdivision or taxing
authority thereof or therein, excluding, in the case of each Lender and the Administrative Agent,
the following taxes:





          (i) taxes imposed on, based upon, or measured by such Lender’s or the Administrative
Agent’s net income, profits, gains, overall revenues or receipts, and branch profits,
franchise and similar taxes imposed on it;




          (ii) taxes imposed on such Lender or the Administrative Agent as a result of a present
or former connection between the taxing jurisdiction and such Lender or Administrative
Agent, or any owner or affiliate thereof, as the case may be, other than a connection
resulting solely from the transactions contemplated by this Agreement;




          (iii) taxes imposed as a result of the transfer by such Lender or Administrative Agent
of its interest in this Agreement or any other Credit Document or a designation by such
Lender or the Administrative Agent (other than pursuant to Section 8.3(c)) of a new Lending
Office (other than taxes imposed as a result of any change in treaty, law or regulation
after such transfer of such Lender’s or the Administrative Agent’s interest in this
Agreement or any other Credit Document or designation of a new Lending Office);




          (iv) taxes imposed by the United States of America (or any political subdivision
thereof or tax authority therein) upon a Lender or Administrative Agent organized under the
laws of a jurisdiction outside of the United States, except to the extent that such tax is
imposed as a result of any change in applicable law, regulation or treaty (other than any
addition of or change in any “anti-treaty shopping,” “limitation of benefits,” or similar
provision applicable to a treaty) after the date hereof, in the case of each Lender or
Administrative Agent originally a party hereto or, in the case of any Purchasing Lender (as
defined in Section 10.10(b)) or Administrative Agent, after the date on which it becomes a
Lender or Administrative Agent, as the case may be; or



19









 






          (v) taxes which would not have been imposed but for (a) the failure of such Lender or
the Administrative Agent, as the case may be, to provide on a timely basis (I) the
applicable forms prescribed by the Internal Revenue Service, as required pursuant to Section
3.3(b) (unless excused pursuant to Section 3.3(c)), or (II) any other form, certification,
documentation or proof which is reasonably requested by the Borrower and which can be
lawfully delivered by such Lender, or (b) a determination by a taxing authority or a court
of competent jurisdiction that a form, certification, documentation or other proof provided
by such Lender or the Administrative Agent to establish an exemption from such tax,
assessment or other governmental charge is false or not properly completed;


(all such present or future taxes, excluding only the taxes described in the preceding clauses (i)
through (v), being hereinafter referred to as “Indemnified Taxes”), the Borrower shall forthwith
pay such additional amount as may be necessary to ensure that the net amount actually received by
each Lender and the Administrative Agent is free and clear of such Indemnified Taxes (including
Indemnified Taxes on such additional amount) and is equal to the amount that such Lender or the
Administrative Agent (as the case may be) would have received had withholding of any Indemnified
Taxes not been made. If the Borrower pays any Indemnified Taxes, or any penalties or interest in
connection therewith, it shall deliver official tax receipts evidencing the payment or certified
copies thereof, or other evidence of payment if such tax receipts have not yet been received by the
Borrower (with such tax receipts to be delivered within fifteen (15) days after being actually
received), to the Lender or the Administrative Agent on whose account such withholding was made
(with a copy to the Administrative Agent if not the recipient of the original) within fifteen (15)
days of such payment. If the Administrative Agent or any Lender pays any Indemnified Taxes which
the Borrower has failed to withhold or pay to the appropriate Governmental Authority, or any
penalties or interest in connection therewith, the Borrower shall reimburse the Administrative
Agent or that Lender for the payment in the currency in which such payment was made within thirty
(30) days after the receipt of written demand therefor. Such Lender or the Administrative Agent
shall make written demand on the Borrower for reimbursement hereunder no later than ninety (90)
days after the earlier of (i) the date on which such Lender or the Administrative Agent makes
payment of the Indemnified Taxes, penalties and interest, and (ii) the date on which the relevant
taxing authority or other Governmental Authority makes written demand upon such Lender or the
Administrative Agent for payment of the Indemnified Taxes, penalties and interest. Any such demand
shall describe in reasonable detail such Indemnified Taxes, penalties or interest, including the
amount thereof if then known to such Lender or the Administrative Agent, as the case may be. In
the event that such Lender or the Administrative Agent fails to give the Borrower timely notice as
provided herein, the Borrower shall not have any obligation to pay such claim for reimbursement.
In the event that any taxing authority notifies the Borrower that it has improperly failed to
withhold any taxes (other than Indemnified Taxes) from a payment to any Lender or the
Administrative Agent under this Agreement or any other Credit Document, the Borrower shall timely
and fully pay such taxes to such taxing authority and such Lender or Administrative Agent, as the
case may be, shall pay the amount of such taxes to the Borrower within thirty (30) days after the
receipt of written demand therefor. If the Borrower is or will be required to pay an additional
amount to a Lender or the Administrative Agent pursuant to this Section 3.3(a), then such payee
shall use reasonable efforts to take requested measures (including, without limitation, changing
the jurisdiction of its


20









 






Lending Office) so as to reduce or eliminate any such amounts which may thereafter accrue, if such
change would not otherwise be materially disadvantageous to such payee.




          (b) U.S. Withholding Tax Exemptions. Upon the written request of the Borrower or the
Administrative Agent, each Lender that is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) shall submit to the Borrower and the Administrative Agent,
promptly after such request, two duly completed and signed copies of either Form W-8BEN or any
successor form (entitling such Lender to a complete exemption from withholding under the Code on
all amounts to be received by such Lender, including fees, pursuant to the Credit Documents) or
Form W-8ECI or any successor form (relating to all amounts to be received by such Lender, including
fees, pursuant to the Credit Documents) of the United States Internal Revenue Service, and any
other form of the United States Internal Revenue Service reasonably necessary to accomplish
exemption from withholding obligations or to facilitate the Administrative Agent’s performance
under this Agreement. Thereafter and from time to time, each such Lender shall submit to the
Borrower and the Administrative Agent such additional duly completed and signed copies of such
forms (or such successor forms as shall be adopted from time to time by the relevant United States
taxing authorities) as may be required under then-current United States law or regulations to avoid
United States withholding taxes on payments in respect of all amounts to be received by such
Lender, including fees, pursuant to the Credit Documents. Upon the request of the Borrower, each
Lender that is a United States person shall submit to the Borrower a certificate to the effect that
it is such a United States person and is exempt from information reporting under Section 6049 of
the Code and backup withholding under Section 3406 of the Code.



          (c) Inability of Lender to Submit Forms. If any Lender determines in good faith, as a
result of any change in applicable law, regulation or treaty, or in any official application or
interpretation thereof, that (i) it is unable to submit to the Borrower or Administrative Agent any
form or certificate that such Lender is obligated to submit pursuant to subsection (b) of this
Section 3.3, (ii) it is required to withdraw or cancel any such form or certificate previously
submitted, or (iii) any such form or certificate otherwise becomes ineffective or inaccurate, such
Lender shall promptly notify the Borrower and Administrative Agent of such fact, and such Lender
shall to that extent not be obligated to provide any such form or certificate and will be entitled
to withdraw or cancel any affected form or certificate, as applicable.



          (d) Refund of Taxes. If any Lender or the Administrative Agent receives a refund or
credit of any Indemnified Tax or any tax referred to in Section 10.3 with respect to which the
Borrower has paid any amount pursuant to this Section 3.3 or Section 10.3, such Lender or the
Administrative Agent shall pay the amount of such refund or credit (including any interest received
with respect thereto) to the Borrower within fifteen (15) days after receipt thereof. A Lender or
the Administrative Agent shall provide, at the sole cost and expense of the Borrower, such
assistance as the Borrower may reasonably request in order to obtain such a refund or credit;
provided, however, that none of the Administrative Agent or any Lender shall in any event be
required to disclose any information to the Borrower with respect to the overall tax position (or
any other information relating to taxes that such Person reasonably determines to be confidential)
of the Administrative Agent or such Lender.



21









 





ARTICLE 4




CONDITIONS PRECEDENT.




     Section 4.1. Borrowing. The obligation of each Lender to advance its Term Loan
hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:



          (a) The Administrative Agent shall have received duly executed signature pages to this
Agreement (including by facsimile or other electronic means), the duly executed NDC Guaranty, and
the following all in form and substance reasonably satisfactory to the Administrative Agent and in
sufficient number of signed counterparts as requested by the Administrative Agent:





          (i) Certificates of Officers of the Borrower. Certificates of the Secretary or
an Assistant Secretary of the Borrower containing specimen signatures of the persons
authorized to execute Credit Documents to which the Borrower is a party on the Borrower’s
behalf or any other documents provided for herein or therein, together with (x) copies of
resolutions of the Board of Directors or other appropriate body of the Borrower authorizing
the execution and delivery of the Credit Documents to which the Borrower is a party, (y)
copies of the Borrower’s memorandum of association and articles of association and other
publicly filed organizational documents in its jurisdiction of incorporation and bylaws and
other governing documents, if any, and (z) a certificate of incorporation and a certificate
of good standing from the appropriate governing agency of the Borrower’s jurisdiction of
incorporation;




          (ii) Certificates of Officers of NDC. Certificates of the Secretary or an
Assistant Secretary of NDC containing specimen signatures of the persons authorized to
execute Credit Documents to which NDC is a party on NDC’s behalf or any other documents
provided for herein or therein, together with (x) copies of resolutions of the Board of
Directors or other appropriate body of NDC authorizing the execution and delivery of the
Credit Documents to which NDC is a party, (y) copies of NDC’s memorandum of association and
articles of association and other publicly filed organizational documents in its
jurisdiction of incorporation and bylaws and other governing documents, if any, and (z) a
certificate of incorporation and a certificate of good standing from the appropriate
governing agency of NDC’s jurisdiction of incorporation;




          (iii) Regulatory Filings and Approvals. Copies of all necessary governmental
and third party approvals, registrations, and filings in respect of the transactions
contemplated by this Agreement;




          (iv) Opinions of Counsel. The opinions of (x) Thompson & Knight LLP, counsel
for the Borrower, in the form of Exhibit 4.1A, and (y) Maples and Calder, Cayman
Islands counsel for the Borrower, in the form of Exhibit 4.1B;




          (v) Closing Certificate. Certificate of the President or a Vice President of
the Borrower as to the satisfaction of all conditions set forth in Section 4.1(b) and (c)



22









 







and certifying the ratings by S&P, Fitch and Moody’s, as of the Closing Date, of the
Borrower’s non-credit enhanced senior unsecured long-term debt;




          (vi) Borrowing Request. The Administrative Agent shall have received a
Borrowing Request with respect to the Borrowing to occur on the Closing Date as required by
the first sentence of Section 2.3(a); and




          (vii) Process Agent. An acknowledgment from CT Corporation with respect to its
irrevocable appointment by the Credit Parties pursuant to Section 10.14.



          (b) Each of the representations and warranties of the Borrower and its Subsidiaries set forth
herein and in the other Credit Documents shall be true and correct in all material respects as of
the Closing Date, except to the extent that any such representation or warranty relates solely to
an earlier date, in which case it shall have been true and correct in all material respects as of
such earlier date;



          (c) No Default or Event of Default shall have occurred and be continuing on the Closing Date
either prior to or immediately after giving effect to the funding of the Term Loans; and



          (d) Payment of the Arrangement Fee and all other fees and all expenses incurred through the
Closing Date then due and owing to the Administrative Agent and the Lenders pursuant to this
Agreement and as otherwise agreed in writing by the Borrower.



          (e) Regulations U and X. The Loans to be made to the Borrower shall not result in the
Borrower or any Lender being in non-compliance with or in violation of Regulation U or X of the
Board of Governors of the Federal Reserve System.


The delivery of a Borrowing Request shall constitute a representation and warranty by the Borrower
of the correctness, as of the Closing Date, of the matters specified in clause (b) and (c) above.




ARTICLE 5




REPRESENTATIONS AND WARRANTIES.




     The Borrower represents and warrants to each Lender and the Administrative Agent as follows,
in each case on and as of the Closing Date and immediately after giving effect to the making of the
Term Loans:



     Section 5.1. Corporate Organization. The Borrower and each of its Significant
Subsidiaries: (i) is duly organized and existing in good standing under the laws of the
jurisdiction of its organization; (ii) has all necessary organizational power and authority to own
the property and assets it uses in its business and otherwise to carry on its present business; and
(iii) is duly licensed or qualified and in good standing in each jurisdiction in which the nature
of the business transacted by it or the nature of the property owned or leased by it makes such
licensing or qualification necessary, except where the failure to be so licensed or qualified or to
be in good standing, as the case may be, would not have a Material Adverse Effect.



23









 





     Section 5.2. Power and Authority; Validity. Each of the Credit Parties has the
organizational power and authority to execute, deliver and carry out the terms and provisions of
the Credit Documents to which it is a party and has taken all necessary company or other action to
authorize the execution, delivery and performance of such Credit Documents. Each of the Credit
Parties has duly executed and delivered each Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such Credit Party which is a
party thereto enforceable against it in accordance with its terms, subject as to enforcement only
to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and equitable principles.



     Section 5.3. No Violation. Neither the execution, delivery or performance by any
Credit Party of the Credit Documents to which it is a party nor compliance by it with the terms and
provisions thereof, nor the consummation by it of the Transactions, will (i) contravene in any
material respect any applicable provision of any law, statute, rule or regulation, or any
applicable order, writ, injunction or decree of any court or governmental instrumentality
(including, without limitation, with respect to Taxes), (ii) conflict with or result in any breach
of any term, covenant, condition or other provision of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any Lien other than any
Permitted Lien upon any of the property or assets of such Credit Party or any of its Subsidiaries
under, the terms of any material contractual obligation (including, without limitation, the
Existing Credit Facility and the Senior NDC Notes) to which such Credit Party or any of its
Subsidiaries is a party or by which they or any of their properties or assets are bound or to which
they may be subject, or (iii) violate or conflict with any provision of the memorandum of
association and articles of association, charter, articles or certificate of incorporation,
partnership or limited liability company agreement, by-laws, or other applicable governance
documents of such Credit Party or any of its Subsidiaries.



     Section 5.4. Litigation. There are no actions, suits, proceedings or counterclaims
(including, without limitation, derivative or injunctive actions) pending or, to the knowledge of
the Borrower, threatened against the Borrower or any of its Subsidiaries that are reasonably likely
to have a Material Adverse Effect.



     Section 5.5. Use of Proceeds; Margin Regulations.



          (a) Use of Proceeds. The proceeds of the Loans shall only be used to consummate the
Refinancing and towards the payment of fees and expenses incurred in connection therewith.



          (b) Margin Stock. Neither the Borrower nor any of its Subsidiaries is engaged in the
business of extending credit for the purpose of purchasing or carrying margin stock. No proceeds
of the Loans will be used for a purpose which violates Regulations T, U or X of the Board of
Governors of the Federal Reserve System. After application of the proceeds of the Loans, and any
acquisitions permitted hereunder, less than 25% of the assets of each of the Borrower and its
Subsidiaries consists of “margin stock” (as defined in Regulation U of the Board of Governors of
the Federal Reserve System).



     Section 5.6. Investment Company Act. Neither the Borrower nor any of its



24









 







Subsidiaries is an “investment company” or a company “controlled” by an “investment company,”
within the meaning of the Investment Company Act of 1940, as amended.



     Section 5.7. Existing Credit Facility. No default or event of default (as such terms
are defined in the Existing Credit Facility) has occurred and is continuing under the Existing
Credit Facility.



     Section 5.8. True and Complete Disclosure. All factual information (taken as a whole)
furnished by the Borrower or any of its Subsidiaries in writing to the Administrative Agent or any
Lender in connection with any Credit Document or any transaction contemplated therein did not, as
of the date such information was furnished (or, if such information expressly related to a specific
date, as of such specific date), contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein (taken as a whole), in light of the
circumstances under which such information was furnished, not misleading, except for such
statements, if any, as have been updated, corrected, supplemented, superseded or modified pursuant
to a written correction or supplement furnished to the Lenders prior to the date of this Agreement.



     Section 5.9. Financial Statements. The financial statements heretofore delivered to
the Administrative Agent for the Borrower’s fiscal year ending December 31, 2006 and for the fiscal
quarter ending March 31, 2007 have been prepared in accordance with GAAP applied on a basis
consistent, except as otherwise noted therein, with the Borrower’s financial statements for the
previous fiscal year. Such financial statements fairly present in all material respects on a
consolidated basis the financial position of the Borrower and its Subsidiaries as of the dates
thereof, and the results of operations for the periods indicated, subject in the case of interim
financial statements, to normal year-end audit adjustments and omission of certain footnotes (as
permitted by the SEC). The Borrower and its Subsidiaries, considered as a whole, have no material
contingent liabilities or material Indebtedness required under GAAP to be disclosed in a
consolidated balance sheet of the Borrower that were not included in the financial statements
referred to in this Section 5.9 or disclosed in the notes thereto or in writing to the
Administrative Agent (with a written request to the Administrative Agent to distribute such
disclosure to the Lenders).



     Section 5.10. No Material Adverse Effect. There has occurred no event or effect that
has had or could reasonably be expected to have a Material Adverse Effect.



     Section 5.11. Taxes. The Borrower and its Subsidiaries have filed all required United
States federal income tax returns, and all other material tax returns required to be filed, whether
in the United States or in any foreign jurisdiction, and have paid all governmental taxes, rates,
assessments, fees, withholdings, deductions, charges and levies (collectively, “Taxes”) shown to be
due and payable on such returns or on any assessments made against the Borrower and its
Subsidiaries or any of their properties (other than any such assessments, fees, charges or levies
that are not more than ninety (90) days past due, or which can thereafter be paid without penalty,
or which are being contested in good faith by appropriate proceedings and for which reserves have
been provided in conformity with GAAP, or which the failure to pay or delay in filing could not
reasonably be expected to have a Material Adverse Effect).



25









 





     Section 5.12. Consents. All consents and approvals of, and filings and registrations
with, and all other actions of, all governmental agencies, authorities or instrumentalities
required to have been obtained or made by any of the Credit Parties in order to execute, deliver
and perform the Credit Documents to which it is a party and with respect to the Borrower, in order
to obtain the Loans hereunder, have been or will have been obtained or made and are or will be in
full force and effect.



     Section 5.13. Insurance. The Borrower and its Significant Subsidiaries currently
maintain in effect, with responsible insurance companies, insurance against any loss or damage to
all insurable property and assets owned by it, which insurance is of a character and in or in
excess of such amounts as are customarily maintained by companies similarly situated and operating
like property or assets (subject to self-insured retentions and deductibles), and insurance with
respect to employers’ and public and product liability risks (subject to self-insured retentions
and deductibles); provided that the Borrower or any Significant Subsidiary may self-insure to the
extent and in the manner normal for companies of like size, type and financial condition.



     Section 5.14. Intellectual Property. The Borrower and its Subsidiaries own or hold
valid licenses to use all the patents, trademarks, permits, service marks, and trade names that are
necessary to the operation of the business of the Borrower and its Subsidiaries as presently
conducted, except where the failure to own, or hold valid licenses to use, such patents,
trademarks, permits, service marks, and trade names could not reasonably be expected to have a
Material Adverse Effect.



     Section 5.15. Ownership of Property. The Borrower and its Subsidiaries have good
title to or a valid leasehold interest in all of their real property and good title to, or a valid
leasehold interest in, all of their other property, subject to no Liens except Permitted Liens,
except where the failure to have such title or leasehold interest in such property could not
reasonably be expected to have a Material Adverse Effect.



     Section 5.16. Existing Indebtedness. Schedule 5.16 contains a complete and accurate
list of all Indebtedness outstanding as of the Closing Date, with respect to the Borrower and its
Subsidiaries, in each case in a principal amount of $20,000,000 (or, if denominated in a currency
other than U.S. Dollars, the Dollar Equivalent of $20,000,000) or more (other than the Obligations
hereunder and Indebtedness permitted by Section 6.11), in each case showing the aggregate principal
amount thereof, the name of the respective borrower and any other entity which directly or
indirectly guaranteed such Indebtedness, and the scheduled payments of such Indebtedness.



     Section 5.17. Existing Liens. Schedule 5.17 contains a complete and accurate list of
all Liens outstanding as of the Closing Date, with respect to the Borrower and its Subsidiaries
where the Indebtedness or other obligations secured by such Lien is in a principal amount of
$20,000,000 (or, if denominated in a currency other than U.S. Dollars, the Dollar Equivalent of
$20,000,000) or more (other than the Liens permitted by Section 6.10), in each case showing the
name of the Person whose assets are subject to such Lien, the aggregate principal amount of the
Indebtedness secured thereby, and a description of the Agreements or other instruments creating,
granting, or otherwise giving rise to such Lien.



26









 





ARTICLE 6




COVENANTS.




     The Borrower covenants and agrees that, so long as any Loan, Note or Commitment is outstanding
hereunder, or any other Obligation is due and payable hereunder:



     Section 6.1. Corporate Existence. Each of the Borrower and its Significant
Subsidiaries will preserve and maintain its organizational existence, except (i) for the
dissolution of any Significant Subsidiaries (other than NDC, unless and until released pursuant to
the terms of the NDC Guaranty) whose assets are transferred to the Borrower or any of its
Subsidiaries, (ii) where the failure to preserve, renew or keep in full force and effect the
existence of any Subsidiary (other than NDC, unless and until released pursuant to the terms of the
NDC Guaranty) could not reasonably be expected to have a Material Adverse Effect, or (iii) as
otherwise expressly permitted in this Agreement.



     Section 6.2. Maintenance. Each of the Borrower and its Significant Subsidiaries will
maintain, preserve and keep its properties and equipment necessary to the proper conduct of its
business in reasonably good repair, working order and condition (normal wear and tear excepted) and
will from time to time make all reasonably necessary repairs, renewals, replacements, additions and
betterments thereto so that at all times such properties and equipment are reasonably preserved and
maintained, in each case with such exceptions as could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect; provided, however, that nothing in this
Section 6.2 shall prevent the Borrower or any Significant Subsidiary from discontinuing the
operation or maintenance of any such properties or equipment if such discontinuance is, in the
judgment of the Borrower or any Significant Subsidiary, as applicable, desirable in the conduct of
its business.



     Section 6.3. Taxes. Each of the Borrower and its Subsidiaries will duly pay and
discharge all Taxes upon or against it or its properties and all other obligations (including,
without limitation, ERISA obligations) within ninety (90) days after becoming due (in the case of
Taxes) or, if later, prior to the date on which penalties are imposed for such unpaid Taxes, unless
and to the extent that (i) the same is being contested in good faith and by appropriate proceedings
and reserves have been established in conformity with GAAP, or (ii) the failure to effect such
payment or discharge or any delay in filing could not reasonably be expected to have a Material
Adverse Effect.



     Section 6.4. ERISA. Each of the Borrower and its Subsidiaries will timely pay and
discharge all obligations and liabilities arising under ERISA or otherwise with respect to each
Plan of a character which if unpaid or unperformed might result in the imposition of a material
Lien against any properties or assets of the Borrower or any Significant Subsidiary and will
promptly notify the Administrative Agent upon an officer of the Borrower becoming aware thereof, of
(i) the occurrence of any reportable event (as defined in ERISA) relating to a Plan (other than a
multi-employer plan, as defined in ERISA), so long as the event thereunder could reasonably be
expected to have a Material Adverse Effect, other than any such event with respect to which the
PBGC has waived notice by regulation; (ii) receipt of any notice from PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor; (iii) the



27









 







Borrower’s or any of its Subsidiaries’ intention to terminate or withdraw from any Plan if
such termination or withdrawal would result in liability under Title IV of ERISA, unless such
termination or withdrawal could not reasonably be expected to have a Material Adverse Effect; and
(iv) the receipt by the Borrower or its Subsidiaries of notice of the occurrence of any event that
could reasonably be expected to result in the incurrence of any liability (other than for
benefits), fine or penalty to the Borrower and/or to the Borrower’s Subsidiaries, or any plan
amendment that could reasonably be expected to increase the contingent liability of the Borrower
and its Subsidiaries, taken as a whole, in either case in connection with any post-retirement
benefit under a welfare plan (subject to ERISA), unless such event or amendment could not
reasonably be expected to have a Material Adverse Effect. The Borrower will also promptly notify
the Administrative Agent of (i) any material contributions to any Foreign Plan that have not been
made by the required due date for such contribution if such default could reasonably be expected to
have a Material Adverse Effect; (ii) any Foreign Plan that is not funded to the extent required by
the law of the jurisdiction whose law governs such Foreign Plan based on the actuarial assumptions
reasonably used at any time if such underfunding (together with any penalties likely to result)
could reasonably be expected to have a Material Adverse Effect, and (iii) any material change
anticipated to any Foreign Plan that could reasonably be expected to have a Material Adverse
Effect.



     Section 6.5. Insurance. Each of the Borrower and its Significant Subsidiaries will
maintain or cause to be maintained, with responsible insurance companies, insurance against any
loss or damage to all insurable property and assets owned by it, such insurance to be of a
character and in or in excess of such amounts as are customarily maintained by companies similarly
situated and operating like property or assets (subject to self-insured retentions and deductibles)
and will (subject to self-insured retentions and deductibles) maintain or cause to be maintained
insurance with respect to employers’ public and product liability risks; provided that the Borrower
or any Significant Subsidiary may self-insure to the extent and in the manner normal for companies
of like size, type and financial condition.



     Section 6.6. Financial Reports and Other Information.



          (a) Periodic Financial Statements and Other Documents. The Borrower, its Subsidiaries
and any SPVs will maintain a system of accounting in such manner as will enable preparation of
financial statements in accordance with GAAP and will furnish to the Lenders and their respective
authorized representatives such information about the business and financial condition of the
Borrower, its Subsidiaries and any SPVs as any Lender may reasonably request; and, without any
request, will furnish to the Administrative Agent:





          (i) within sixty (60) days after the end of the second fiscal quarter of the Borrower’s
2007 fiscal year, the consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal quarter and the related consolidated statements of income and
retained earnings and of cash flows for such fiscal quarter and for the portion of the
fiscal year ended with the last day of such fiscal quarter, all of which shall be in
reasonable detail or in the form filed with the SEC, and certified by the chief financial
officer of the Borrower that they fairly present the financial condition of the Borrower and
its Subsidiaries as of the dates indicated and the results of their operations and changes
in their cash flows for the periods indicated and that they have been prepared in



28









 







accordance with GAAP, in each case, subject to normal year-end audit adjustments and
the omission of any footnotes as permitted by the SEC (publicly filing the Borrower’s Form
10-Q with the SEC in any event will satisfy the requirements of this subsection subject to
Section 6.6(b) and shall be deemed furnished and delivered on the date such information has
been posted on the SEC website accessible through
http://www.sec.gov/edgar/searchedgar/webusers.htm or such successor webpage of the SEC
thereto);




          (ii) [Reserved];




          (iii) within ten (10) days after the sending or filing thereof, copies of all financial
statements, projections, documents and other communications that the Borrower sends to its
stockholders generally or publicly files with the SEC or any similar Governmental Authority
(and is publicly available); provided that publicly filing such documents with the SEC in
any event will satisfy the requirements of this subsection subject to Section 6.6(b) and
shall be deemed furnished and delivered on the date such information has been posted on the
SEC website accessible through http://www.sec.gov/edgar/searchedgar/webusers.htm or such
successor webpage of the SEC thereto; and




          (iv) such other information as the Administrative Agent or any Lender may reasonably
request.


The Administrative Agent will forward promptly to the Lenders the information provided by the
Borrower pursuant to (i) through (iv) above.




          (b) Compliance Certificates. Within the sixty (60) day period set forth in subsection
(i) of Section 6.6(a) for furnishing financial statements, the Borrower shall deliver to the
Administrative Agent (who will in turn provide notice to the Lenders of) (x) a written certificate
signed by the Borrower’s chief financial officer (or other financial officer of the Borrower), in
his or her capacity as such, to the effect that no Default or Event of Default then exists or, if
any such Default or Event of Default exists as of the date of such certificate, setting forth a
description of such Default or Event of Default and specifying the action, if any, taken by the
Borrower to remedy the same, and (y) a Compliance Certificate in the form of Exhibit 6.6
showing the Borrower’s compliance with certain of the covenants set forth herein.



          (c) Reserved.



          (d) Notice of Events Relating to Environmental Laws and Claims. Promptly after any
officer of the Borrower obtains knowledge of any of the following, the Borrower will provide the
Administrative Agent (who will in turn provide notice to the Lenders of) with written notice in
reasonable detail of any of the following that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect:




          (i) any pending or threatened Environmental Claim against the Borrower, any of its
Subsidiaries or any SPV or any property owned or operated by the Borrower, any of its
Subsidiaries or any SPV;



29









 






          (ii) any condition or occurrence on any property owned or operated by the Borrower, any
of its Subsidiaries or any SPV that results in noncompliance by the Borrower, any of its
Subsidiaries or any SPV with any Environmental Law; and




          (iii) the taking of any material remedial action in response to the actual or alleged
presence of any Hazardous Material on any property owned or operated by the Borrower, any of
its Subsidiaries or any SPV other than in the ordinary course of business.



          (e) Notices of Default, Litigation, Etc. The Borrower will promptly, and in any event
within five (5) Business Days, after an officer of the Borrower has knowledge thereof, give written
notice to the Administrative Agent of (who will in turn provide notice to the Lenders of): (i) the
occurrence of any Default or Event of Default; (ii) any litigation or governmental proceeding of
the type described in Section 5.4; (iii) any circumstance that has had or could reasonably be
expected to have a Material Adverse Effect; (iv) the occurrence of any event which has resulted in
a breach of, or is reasonably expected to result in a breach of, Section 6.16; and (v) any notice
received by it, any Subsidiary or any SPV from the holder(s) of Indebtedness of the Borrower, any
Subsidiary or any SPV (x) under the Existing Credit Facility or (y) other Indebtedness in an amount
which, in the aggregate, exceeds $50,000,000 (or, if denominated in a currency other than U.S.
Dollars, the Dollar Equivalent of $50,000,000), where such notice states or claims the existence or
occurrence of any default or event of default with respect to such Indebtedness under the terms of
any indenture, loan or credit agreement, debenture, note, or other document evidencing or governing
such Indebtedness.



     Section 6.7. Lender Inspection Rights. Upon reasonable notice from the Administrative
Agent or any Lender, the Borrower will permit the Administrative Agent or any Lender (and such
Persons as the Administrative Agent or such Lender may reasonably designate) during normal business
hours at such entity’s sole expense unless a Default or Event of Default shall have occurred and be
continuing, in which event at the Borrower’s expense, to visit and inspect any of the properties of
the Borrower or any of its Subsidiaries, to examine all of their books and records, to make copies
and extracts therefrom, and to discuss their respective affairs, finances and accounts with their
respective officers and independent public accountants (and by this provision the Borrower
authorizes such accountants to discuss with the Administrative Agent and any Lender (and such
Persons as the Administrative Agent or such Lender may reasonably designate) the affairs, finances
and accounts of the Borrower and its Subsidiaries), all as often, and to such extent, as may be
reasonably requested. The chief financial officer of the Borrower and/or his or her designee shall
be afforded the opportunity to be present at any meeting of the Administrative Agent or the Lenders
and such accountants. The Administrative Agent agrees to use reasonable efforts to minimize, to
the extent practicable, the number of separate requests from the Lenders to exercise their rights
under this Section 6.7 and/or Section 6.6 and to coordinate the exercise by the Lenders of such
rights.



     Section 6.8. Conduct of Business. The Borrower and its Subsidiaries will at all times
remain primarily engaged in any of (i) the contract drilling business, (ii) the provision of
services to the energy industry, (iii) other existing businesses described in the Borrower’s
current SEC reports, or (iv) any related or ancillary businesses (each a “Permitted Business”).



30









 





     Section 6.9. Restrictions on Fundamental Changes. The Borrower shall not merge or
consolidate with any other Person, or cause or permit any dissolution of the Borrower or
liquidation of its assets, or sell, transfer or otherwise dispose of all or substantially all of
the Borrower’s assets, except that:



          (a) The Borrower or any of its Subsidiaries may merge into, or consolidate with, any other
Person if upon the consummation of any such merger or consolidation (i) the Borrower or such
Subsidiary is the surviving Person to any such merger or consolidation, (ii) a Person who will
contemporaneously therewith become a Subsidiary of the Borrower is the surviving Person to any such
merger or consolidation or (iii) with respect to a merger or consolidation of the Borrower, such
other Person is the surviving Person to any such merger or consolidation, the U.S. Dollar
denominated non-credit enhanced senior unsecured long-term debt of such Person shall continue to be
rated by S&P, Moody’s or Fitch and such Person shall have executed and delivered to the
Administrative Agent and each Lender its assumption of the due and punctual performance and
observance of each covenant and condition of this Agreement and the other Credit Documents to which
the Borrower is a party, together with such evidence of appropriate corporate authorization on the
part of such Person with respect to such assumption and such opinions of counsel for such Person
with respect to such assumption as the Administrative Agent may reasonably request; and



          (b) The Borrower may sell or transfer all or substantially all of its assets (including stock
in its Subsidiaries) to any Person if such Person is a Subsidiary of the Borrower (or a Person who
will contemporaneously therewith become a Subsidiary of the Borrower);



provided in the case of any transaction described in the preceding clauses (a) and (b), no Default
or Event of Default shall exist immediately prior to, or after giving effect to, such transaction.



          Section 6.10. Liens. The Borrower and its Subsidiaries shall not create, incur,
assume or suffer to exist any Lien of any kind on any property or asset of any kind of the Borrower
or any Subsidiary, except the following (collectively, the “Permitted Liens”):



          (a) Liens existing on the date hereof (each such Lien, to the extent it secures Indebtedness
or other obligations in an aggregate amount of $20,000,000 (or, if denominated in a currency other
than U.S. Dollars, the Dollar Equivalent of $20,000,000) or more, being described on Schedule
5.17 attached hereto);



          (b) Liens arising in the ordinary course of business by operation of law, deposits, pledges or
other Liens in connection with workers’ compensation, unemployment insurance, old age benefits,
social security obligations, taxes, assessments, public or statutory obligations or other similar
charges, good faith deposits, pledges or other Liens in connection with (or to obtain letters of
credit in connection with) bids, performance, return-of-money or payment bonds, contracts or leases
to which the Borrower or its Subsidiaries are parties or other deposits required to be made in the
ordinary course of business; provided that in each case the obligation secured is not for
Indebtedness for borrowed money and is not overdue or, if overdue, is being contested in good faith
by appropriate proceedings and reserves in conformity with GAAP have been provided therefor;



31









 





          (c) mechanics’, workmen’s, materialmen’s, landlords’, carriers’, maritime or other similar
Liens arising in the ordinary course of business (or deposits to obtain the release of such Liens)
related to obligations not overdue for more than thirty (30) days if such Liens arise with respect
to domestic assets and for more than ninety (90) days if such Liens arise with respect to foreign
assets, or, if so overdue, that are being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP have been provided therefor, or if such Liens otherwise could not
reasonably be expected to have a Material Adverse Effect;



          (d) Liens for Taxes not more than ninety (90) days past due or which can thereafter be paid
without penalty or which are being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP have been provided therefor, or if such Liens otherwise could not
reasonably be expected to have a Material Adverse Effect;



          (e) Liens imposed by ERISA (or comparable foreign laws) which are being contested in good
faith by appropriate proceedings and reserves in conformity with GAAP have been provided therefor,
or if such Liens otherwise could not reasonably be expected to have a Material Adverse Effect;



          (f) Liens arising out of judgments or awards against the Borrower or any of its Subsidiaries,
or in connection with surety or appeal bonds or the like in connection with bonding such judgments
or awards, the time for appeal from which or petition for rehearing of which shall not have expired
or for which the Borrower or such Subsidiary shall be prosecuting on appeal or proceeding for
review, and for which it shall have obtained (within thirty (30) days with respect to a judgment or
award rendered in the United States or within sixty (60) days with respect to a judgment or award
rendered in a foreign jurisdiction after entry of such judgment or award or expiration of any
previous such stay, as applicable) a stay of execution or the like pending such appeal or
proceeding for review; provided, that the aggregate amount of uninsured or underinsured liabilities
(net of customary deductibles, and including interest, costs, fees and penalties, if any) of the
Borrower and its Subsidiaries secured by such Liens shall not exceed the Dollar Equivalent of
$100,000,000 at any one time outstanding;



          (g) Liens on fixed or capital assets acquired, constructed, improved, altered or repaired by
the Borrower or any Subsidiary and related contracts, intangibles and other assets that are
incidental thereto (including accessions thereto and replacements thereof) or otherwise arise
therefrom; provided that (i) such Liens secure Indebtedness otherwise permitted by this Agreement,
(ii) such Liens and the Indebtedness secured thereby are incurred prior to or within 365 days after
such acquisition or the later of the completion of such construction, improvement, alteration or
repair or the date of commercial operation of the assets constructed, improved, altered or
repaired, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring,
constructing, improving, altering or repairing such fixed or capital assets, as the case may be,
and (iv) such Lien shall not apply to any other property or assets of the Borrower or any
Subsidiary;



          (h) Liens securing Interest Rate Protection Agreements or Currency Rate Protection Agreements
incurred in the ordinary course of business and not for speculative purposes;



          (i) Liens on property existing at the time such property is acquired by the



32









 







Borrower or any Subsidiary of the Borrower and not created in contemplation of such
acquisition (or on repairs, renewals, replacements, additions, accessions and betterments thereto),
and Liens on the assets of any Person at the time such Person becomes a Subsidiary of the Borrower
and not created in contemplation of such Person becoming a Subsidiary of the Borrower (or on
repairs, renewals, replacements, additions, accessions and betterments thereto);



          (j) any extension, renewal or replacement (or successive extensions, renewals or replacements)
in whole or in part of any Lien referred to in the foregoing subsections (a) through (i), provided,
however, that the principal amount of Indebtedness secured thereby does not exceed the principal
amount secured at the time of such extension, renewal or replacement (other than amounts incurred
to pay costs of such extension, renewal or replacement), and that such extension, renewal or
replacement is limited to the property already subject to the Lien so extended, renewed or replaced
(together with accessions and improvements thereto and replacements thereof);



          (k) rights reserved to or vested in any municipality or governmental, statutory or public
authority by the terms of any right, power, franchise, grant, license or permit, or by any
provision of law, to terminate such right, power, franchise, grant, license or permit or to
purchase, condemn, expropriate or recapture or to designate a purchaser of any of the property of a
Person;



          (l) rights reserved to or vested in any municipality or governmental, statutory or public
authority to control, regulate or use any property of a Person;



          (m) rights of a common owner of any interest in property held by a Person and such common
owner as tenants in common or through other common ownership;



          (n) encumbrances (other than to secure the payment of Indebtedness), easements, restrictions,
servitudes, permits, conditions, covenants, exceptions or reservations in any property or
rights-of-way of a Person for the purpose of roads, pipelines, transmission lines, transportation
lines, distribution lines, removal of gas, oil, coal, metals, steam, minerals, timber or other
natural resources, and other like purposes, or for the joint or common use of real property,
rights-of-way, facilities or equipment, or defects, irregularity and deficiencies in title of any
property or rights-of-way;



          (o) Liens created by or resulting from zoning, planning and environmental laws and ordinances
and municipal regulations;



          (p) Liens created or evidenced by or resulting from financing statements filed by lessors of
property (but only with respect to the property so leased);



          (q) Liens on property securing Non-recourse Debt;



          (r) Liens on the stock or assets of SPVs;



          (s) other Liens created in connection with securitization programs, if any, of the Borrower
and its Subsidiaries; and



33









 





          (t) Liens (not otherwise permitted by this Section 6.10) securing Indebtedness (or other
obligations) not exceeding at the time of incurrence thereof (together with all such other Liens
securing Indebtedness (or other obligations) outstanding pursuant to this clause (t) at such time)
ten percent (10%) of Consolidated Tangible Net Worth.



     Section 6.11. Subsidiary Indebtedness. The Borrower shall not permit its Subsidiaries
to incur, assume or suffer to exist any Indebtedness, except:



          (a) existing Indebtedness outstanding on the Closing Date (such Indebtedness, to the extent
the principal amount thereof is $20,000,000 (or, if denominated in a currency other than U.S.
Dollars, the Dollar Equivalent of $20,000,000) or more, being described on Schedule 5.16
attached hereto), and any subsequent extensions, renewals or refinancings thereof (i) so long as
such Indebtedness is not increased in amount (other than amounts incurred to pay costs of such
extension, renewal or refinancing), or (ii) such extensions, renewals or refinancings are otherwise
expressly permitted by, and are effected pursuant to, another clause in this Section 6.11 (other
than clause (l) hereof);



          (b) Indebtedness under this Agreement and the Existing Credit Facility;



          (c) intercompany loans and advances to the Borrower or its Subsidiaries, and intercompany
loans and advances from any of such Subsidiaries or SPVs to the Borrower or any other Subsidiaries
of the Borrower;



          (d) Indebtedness under any Interest Rate Protection Agreements and any Currency Rate
Protection Agreements, in each case entered into in the ordinary course of business and not for
speculative purposes;



          (e) Indebtedness (i) under unsecured lines of credit for overdrafts or for working capital
purposes in foreign countries with financial institutions, or (ii) arising from the honoring by a
bank or other Person of a check, draft or similar instrument inadvertently drawing against
insufficient funds, all such Indebtedness not to exceed the Dollar Equivalent of $200,000,000 in
the aggregate at any time outstanding, provided that amounts under overdraft lines of credit or
outstanding as a result of drawings against insufficient funds shall be outstanding for one (1)
Business Day before being included in such aggregate amount;



          (f) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the
Borrower or is merged with or into the Borrower or any Subsidiary of the Borrower and not incurred
in contemplation of such transaction, and extensions, renewals or refinancings thereof that do not
increase the amount of such Indebtedness (other than amounts included to pay costs of such
extension, renewal or refinancing;



          (g) Indebtedness (i) under Performance Guaranties and Performance Letters of Credit, and (ii)
with respect to letters of credit issued in the ordinary course of business;



          (h) Indebtedness created in connection with securitization programs, if any;



          (i) Non-recourse Debt;



34









 





          (j) Indebtedness (not otherwise permitted under any other clause of this Section 6.11) in an
aggregate principal amount outstanding for all Subsidiaries not exceeding at the time of incurrence
thereof (together with all such other Indebtedness outstanding pursuant to this clause (j) at such
time) ten percent (10%) of Consolidated Net Assets (the “Subsidiary Debt Basket Amount”);



          (k) other Indebtedness not otherwise permitted under any other clause of this Section 6.11 so
long as (i) with respect to NDC, the NDC Guaranty is in force (which may, pursuant to the terms
thereof, be terminated upon notice to the Administrative Agent by the Borrower provided that (A)
the aggregate principal amount of Indebtedness of all Subsidiaries outstanding pursuant to the
preceding clause (j) and this clause (k), including Indebtedness of NDC, is equal to or less than
the Subsidiary Debt Basket Amount, (B) no Senior NDC Notes are outstanding and (C) no Default or
Event of Default has occurred and is continuing) or (ii) with respect to any other Subsidiary, such
Subsidiary has in force a Subsidiary Guaranty in substantially the form of Exhibit 6.11,
provided that such Subsidiary Guaranty shall contain a provision that such Subsidiary Guaranty and
all obligations thereunder of the Guarantor party thereto shall be terminated upon notice to the
Administrative Agent by the Borrower that (x) the aggregate principal amount of Indebtedness of all
Subsidiaries outstanding pursuant to the preceding clause (j) and this clause (k) is equal to or
less than the Subsidiary Debt Basket Amount, and (y) no Default or Event of Default has occurred
and is continuing; and



          (l) extensions, renewals or replacements of Indebtedness permitted by this Section 6.11 that
do not increase the amount of such Indebtedness (other than amounts incurred to pay costs of such
extension, renewal or refinancing).



     Section 6.12. Use of Property and Facilities; Environmental Laws. The Borrower and
its Subsidiaries shall comply in all material respects with all Environmental Laws applicable to or
affecting the properties or business operations of the Borrower or any Subsidiary of the Borrower,
where the failure to comply could reasonably be expected to have a Material Adverse Effect.



     Section 6.13. Transactions with Affiliates. Except as otherwise specifically
permitted herein, the Borrower and its Subsidiaries shall not (except pursuant to contracts
outstanding as of (i) with respect to the Borrower, the Closing Date or (ii) with respect to any
Subsidiary of the Borrower, the Closing Date or, if later, the date such Subsidiary first became a
Subsidiary of the Borrower) enter into or engage in any material transaction or arrangement or
series of related transactions or arrangements which in the aggregate would be material with any
Controlling Affiliate, including without limitation, the purchase from, sale to or exchange of
property with, any merger or consolidation with or into, or the rendering of any service by or for,
any Controlling Affiliate, except pursuant to the requirements of the Borrower’s or such
Subsidiary’s business and unless such transaction or arrangement or series of related transactions
or arrangements, taken as a whole, are no less favorable to the Borrower or such Subsidiary (other
than a wholly owned Subsidiary) than would be obtained in an arms’ length transaction with a Person
not a Controlling Affiliate.



     Section 6.14. Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into, assume, or suffer to exist any Sale-Leaseback



35









 







Transaction, except any such transaction that may be entered into, assumed or suffered to
exist without violating any other provision of this Agreement.



     Section 6.15. Compliance with Laws. Without limiting any of the other covenants of
the Borrower in this Article 6, the Borrower and its Subsidiaries shall conduct their business, and
otherwise be, in compliance with all applicable laws, regulations, ordinances and orders of any
governmental or judicial authorities (including, without limitation, those relating to Taxes,
environmental laws and ERISA); provided, however, that this Section 6.15 shall not require the
Borrower or any Subsidiary of the Borrower to comply with any such law, regulation, ordinance or
order if (x) it shall be contesting such law, regulation, ordinance or order in good faith by
appropriate proceedings and reserves in conformity with GAAP have been provided therefor, or (y)
the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     Section 6.16. Use of Proceeds. The Borrower will not use the proceeds of the Loans
for any purpose or in any manner not permitted by Section 5.5.



ARTICLE 7




EVENTS OF DEFAULT AND REMEDIES.




     Section 7.1. Events of Default. Any one or more of the following shall constitute an
Event of Default:



          (a) default by any Credit Party in the payment of any principal amount of any Loan or any
interest thereon, within three (3) Business Days following the date when due;



          (b) default by the Borrower or any Subsidiary in the observance or performance of any covenant
set forth in Sections 2.10, 6.9 or 6.10;



          (c) default by the Borrower or any Subsidiary in the observance or performance of any
provision hereof or of any other Credit Document not mentioned in clauses (a) or (b) above, which
is not remedied within thirty (30) days after notice thereof to the Borrower by the Administrative
Agent;



          (d) any representation or warranty made or deemed made herein or in any other Credit Document
by the Borrower or any Subsidiary proves untrue in any material respect as of the date of the
making, or deemed making, thereof;



          (e) (x) Indebtedness (A) under the Existing Credit Facility or (B) otherwise outstanding in
the aggregate principal amount of the Dollar Equivalent of $100,000,000 of the Borrower and its
Subsidiaries (“Material Indebtedness") shall (i) not be paid at maturity (beyond any applicable
grace periods), or (ii) be declared to be due and payable or required to be prepaid, redeemed or
repurchased prior to its stated maturity, or (y) any default in respect of the Existing Credit
Facility or Material Indebtedness shall occur which permits the holders thereof, or any trustees or
agents on their behalf, to accelerate the maturity of such Indebtedness or requires such
Indebtedness to be prepaid, redeemed, or repurchased prior to its stated maturity;



36









 





          (f) any Credit Party or any Significant Subsidiary (i) has entered involuntarily against it an
order for relief under the United States Bankruptcy Code or a comparable action is taken under any
bankruptcy or insolvency law of another country or political subdivision of such country, (ii)
generally does not pay, or admits its inability generally to pay, its debts as they become due,
(iii) makes a general assignment for the benefit of creditors, (iv) applies for, seeks, consents
to, or acquiesces in, the appointment of a receiver, custodian, trustee, liquidator or similar
official for it or any substantial part of its property under the United States Bankruptcy Code or
under the bankruptcy or insolvency laws of another country or a political subdivision of such
country, (v) institutes any proceeding seeking to have entered against it an order for relief under
the United States Bankruptcy Code or any comparable law, to adjudicate it insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fails to file an answer or other pleading denying the material allegations of or
consents to or acquiesces in any such proceeding filed against it, (vi) makes any board of
directors resolution in direct furtherance of any matter described in clauses (i)-(v) above, or
(vii) fails to contest in good faith any appointment or proceeding described in this Section
7.1(f);



          (g) a custodian, receiver, trustee, liquidator or similar official is appointed for any Credit
Party or any Significant Subsidiary or any substantial part of its property under the United States
Bankruptcy Code or under the bankruptcy or insolvency laws of another country or a political
subdivision of such country, or a proceeding described in Section 7.1(f)(v) is instituted against
any Credit Party or any Significant Subsidiary, and such appointment continues undischarged or such
proceeding continues undismissed and unstayed for a period of sixty (60) days (or one hundred
twenty (120) days in the case of any such event occurring outside the United States of America);



          (h) the Borrower or any Subsidiaries of the Borrower fail within thirty (30) days with respect
to any judgments or orders that are rendered in the United States or sixty (60) days with respect
to any judgments or orders that are rendered in foreign jurisdictions (or such earlier date as any
execution on such judgments or orders shall take place) to vacate, pay, bond or otherwise discharge
any judgments or orders for the payment of money the uninsured portion of which is in excess of the
Dollar Equivalent of $100,000,000 in the aggregate and which are not stayed on appeal or otherwise
being appropriately contested in good faith in a manner that stays execution;



          (i) (x) the Borrower or any Subsidiary of the Borrower fails to pay when due an amount that it
is liable to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to
terminate a Plan having Unfunded Vested Liabilities of the Borrower or any of its Subsidiaries in
excess of the Dollar Equivalent of $100,000,000 (a “Material Plan”) is filed under Title IV of
ERISA; or the PBGC institutes proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Material Plan or a proceeding is instituted by a
fiduciary of any Material Plan against the Borrower or any Subsidiary to collect any liability
under Section 515 or 4219(c)(5) of ERISA, and in each case such proceeding is not dismissed within
thirty (30) days thereafter; or a condition exists by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be terminated, and (y) the occurrence of
one or more of the matters in the preceding clause (x) could reasonably be expected to result in
liabilities in excess of the Dollar Equivalent of $100,000,000;



37









 





          (j) any Person or group of Persons acting in concert (as such terms are used in Rule 13d-5
under the Securities Exchange Act of 1934, as amended) shall own, directly or indirectly,
beneficially or of record, securities of the Borrower (or other securities convertible into such
securities) representing fifty percent (50%) or more of the combined voting power of all
outstanding securities of the Borrower entitled to vote in the election of directors, other than
securities having such power only by reason of the happening of a contingency; or



          (k) the NDC Guaranty for any reason is not a legal, valid, binding and enforceable obligation
of NDC, or NDC shall so state in writing, unless and until such Guaranty is terminated pursuant to
its terms.



     Section 7.2. Non-Bankruptcy Defaults. When any Event of Default (other than those
described in subsections (f) or (g) of Section 7.1 with respect to the Credit Parties) has occurred
and is continuing, the Administrative Agent shall, by notice to the Borrower: (a) if so directed by
the Required Lenders, declare the principal of and the accrued interest on all outstanding Loans to
be forthwith due and payable and thereupon all outstanding Loans, including both principal and
interest thereon, shall be and become immediately due and payable together with all other accrued
amounts payable under the Credit Documents without further demand, presentment, protest or notice
of any kind, including, but not limited to, notice of intent to accelerate and notice of
acceleration, each of which is expressly waived by the Borrower; and the Borrower agrees to
immediately make such payment, and the Borrower acknowledges and agrees that the Lenders, and the
Administrative Agent would not have an adequate remedy at law for failure by the Borrower to honor
any such demand and that the Administrative Agent, for the benefit of the Lenders, shall have the
right to require the Borrower to specifically perform such undertaking. The Administrative Agent,
after giving notice to the Borrower pursuant to this Section 7.2, shall also promptly send a copy
of such notice to the other Lenders, but the failure to do so shall not impair or annul the effect
of such notice.



     Section 7.3. Bankruptcy Defaults. When any Event of Default described in subsections
(f) or (g) of Section 7.1 has occurred and is continuing with respect to any Credit Party, then all
outstanding Loans shall immediately become due and payable together with all other accrued amounts
payable under the Credit Documents without presentment, demand, protest or notice of any kind, each
of which is expressly waived by the Borrower.



     Section 7.4. [Reserved].



     Section 7.5. Notice of Default. The Administrative Agent shall give notice to the
Borrower under Section 7.2 promptly upon being requested to do so by the Required Lenders and shall
thereupon notify all the Lenders thereof.



     Section 7.6. Expenses. The Borrower agrees to pay to the Administrative Agent and
each Lender all reasonable out-of-pocket expenses incurred or paid by the Administrative Agent or
such Lender, including reasonable attorneys’ fees and court costs, in connection with any Default
or Event of Default hereunder or in connection with the enforcement of any of the Credit Documents.



     Section 7.7. Distribution and Application of Proceeds. After the occurrence of and



38









 







during the continuance of an Event of Default, any payment to the Administrative Agent or any
Lender hereunder shall be paid to the Administrative Agent to be distributed and applied as follows
(unless otherwise agreed by the Borrower, the Administrative Agent and all Lenders):



          (a) First, to the payment of any and all reasonable out-of-pocket costs and expenses of the
Administrative Agent, including without limitation, reasonable attorneys’ fees and out-of-pocket
costs and expenses, as provided by this Agreement or by any other Credit Document, incurred in
connection with the collection of such payment or in respect of the enforcement of any rights of
the Administrative Agent or the Lenders under this Agreement or any other Credit Document;



          (b) Second, to the payment of any and all reasonable out-of-pocket costs and expenses of the
Lenders, including, without limitation, reasonable attorneys’ fees and out-of-pocket costs and
expenses, as provided by this Agreement or by any other Credit Document, incurred in connection
with the collection of such payment or in respect of the enforcement of any rights of the Lenders
under this Agreement or any other Credit Document, pro rata in the proportion in which the amount
of such costs and expenses unpaid to each Lender bears to the aggregate amount of the costs and
expenses unpaid to all Lenders collectively, until all such fees, costs and expenses have been paid
in full;



          (c) Third, to the payment of any due and unpaid fees to the Administrative Agent, as provided
by this Agreement or any other Credit Document, until all such fees have been paid in full;



          (d) Fourth, to the payment of accrued and unpaid interest on the Loans to the date of such
application, pro rata in the proportion in which the amount of such interest, accrued and unpaid to
each Lender bears to the aggregate amount of such interest accrued and unpaid to all Lenders
collectively, until all such accrued and unpaid interest has been paid in full;



          (e) Fifth, to the payment of the outstanding due and payable principal amount of each of the
Loans , pro rata in the proportion in which the outstanding principal amount of such Loans , bears
to the aggregate amount of all outstanding Loans;



          (f) Sixth, to the payment of any other outstanding Obligations then due and payable, pro rata
in the proportion in which the outstanding Obligations owing to each Lender and the Administrative
Agent bears to the aggregate amount of all such Obligations owing to all Lenders and the
Administrative Agent, until all such Obligations have been paid in full; and



          (g) Seventh, to the Borrower or otherwise as the Borrower may direct.



ARTICLE 8




CHANGE IN CIRCUMSTANCES.




     Section 8.1. Change of Law.



          (a) Notwithstanding any other provisions of this Agreement or any Note, if at any time any
change, after the date hereof (or, if later, after the date the Administrative Agent or



39









 







any Lender becomes the Administrative Agent or Lender), in applicable law or regulation or in
the interpretation thereof makes it unlawful for any Lender to make or maintain Adjusted LIBOR
Loans, such Lender, shall promptly give written notice thereof and of the basis therefor in
reasonable detail to the Borrower, and such Lender’s obligations to fund affected Adjusted LIBOR
Loans or make, continue or convert such Loans under this Agreement, shall thereupon be suspended
until it is no longer unlawful for such Lender to make or maintain such Loans.



          (b) Upon the giving of the notice to the Borrower referred to in subsection (a) above in
respect of any such Loan, and provided the Borrower shall not have prepaid such Loan pursuant to
Section 2.9, (i) any such outstanding Loan of such Lender shall be automatically converted to a
Base Rate Loan in Dollars on the last day of the Interest Period then applicable thereto or on such
earlier date as required by law, and (ii) such Lender shall make or continue its portion of any
requested Borrowing of such Loan as a Base Rate Loan in U.S. Dollars, which Base Rate Loan shall,
for all other purposes, be considered part of such Borrowing.



          (c) Any Lender that has given any notice pursuant to Section 8.1(a) shall, upon determining
that it would no longer be unlawful for it to make such Loans, give prompt written notice thereof
to the Borrower and the Administrative Agent, and upon giving such notice, its obligation to make,
allow conversions into and maintain such Loans shall be reinstated.



     Section 8.2. Unavailability of Deposits or Inability to Ascertain LIBOR Rate. If on
or before the first day of any Interest Period for any Borrowing of Adjusted LIBOR Loans the
Administrative Agent determines in good faith (after consultation with the other Lenders) that, due
to changes in circumstances since the date hereof, adequate and fair means do not exist for
determining the LIBOR Rate (including without limitation, the unavailability of matching deposits
in the applicable currency) or such rate will not accurately reflect the cost to the Required
Lenders of funding Adjusted LIBOR Loans in the applicable currency for such Interest Period, the
Administrative Agent shall give written notice (in reasonable detail) of such determination and of
the basis therefor to the Borrower and the Lenders, whereupon until the Administrative Agent
notifies the Borrower and Lenders that the circumstances giving rise to such suspension no longer
exist (which the Administrative Agent shall do promptly after they do not exist), (i) the
obligations of the Lenders to make, continue or convert Loans as or into such Adjusted LIBOR Loans,
or to convert Base Rate Loans into such Adjusted LIBOR Loans, shall be suspended and (ii) each
Adjusted LIBOR Loan will automatically on the last day of the then existing Interest Period
therefor, convert into a Base Rate Loan in U.S. Dollars.



     Section 8.3. Increased Cost and Reduced Return.



          (a) If, on or after the date hereof, the adoption of or any change in any applicable law, rule
or regulation, or any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable Lending Office), with any request or
directive (whether or not having the force of law) of any such authority, central bank or
comparable agency exercising control over banks or financial institutions generally issued after
the date hereof (or, if later, after the date the Administrative Agent or Lender becomes the
Administrative Agent or Lender):



40









 






          (i) subjects any Lender (or its applicable Lending Office) to any tax, duty or other
charge related to any Adjusted LIBOR Loan, or its obligation to advance or maintain
Adjusted LIBOR Loans, or shall change the basis of taxation of payments to any Lender (or
its applicable Lending Office) of the principal of or interest on its Adjusted LIBOR Loans,
or any participations in any thereof, or any other amounts due under this Agreement related
to its Adjusted LIBOR Loans, or participations therein, or its obligation to make Adjusted
LIBOR Loans or acquire participations therein (except for changes with respect to taxes that
are not Indemnified Taxes pursuant to Section 3.3); or




          (ii) imposes, modifies or deems applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding for any Adjusted LIBOR Loan any such
requirement included in an applicable Statutory Reserve Rate) against assets of, deposits
with or for the account of, or credit extended by, any Lender (or its applicable Lending
Office) or imposes on any Lender (or its Lending Office) or on the interbank market any
other condition affecting its Adjusted LIBOR Loans, owed to it, or its participation in any
thereof, or its obligation to advance or maintain Adjusted LIBOR Loans or participate in any
thereof;


and the result of any of the foregoing is to increase the cost to such Lender (or its applicable
Lending Office) of advancing or maintaining any Adjusted LIBOR Loan or participating therein, or to
reduce the amount of any sum received or receivable by such Lender (or its applicable Lending
Office) in connection therewith under this Agreement or its Note, by an amount deemed by such
Lender to be material, then, subject to Section 8.3(c), from time to time, within thirty (30) days
after receipt of a certificate from such Lender (with a copy to the Administrative Agent) pursuant
to subsection (c) below setting forth in reasonable detail such determination and the basis
thereof, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction.




          (b) If, after the date hereof, the Administrative Agent or any Lender shall have reasonably
determined that the adoption after the date hereof of any applicable law, rule or regulation
regarding capital adequacy, or any change therein (including, without limitation, any revision in
the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12
CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) or of the Office of the Comptroller of the
Currency (12 CFR Part 3, Appendix A), or in any other applicable capital adequacy rules heretofore
adopted and issued by any Governmental Authority), or any change after the date hereof in the
interpretation or administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by the
Administrative Agent or any Lender (or its applicable Lending Office) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of return on such
Lender’s capital, or on the capital of any corporation controlling such Lender, as a consequence of
its obligations hereunder to a level below that which such Lender could have achieved but for such
adoption, change or compliance (taking into consideration such Lender’s or its controlling
corporation’s policies with respect to capital adequacy in effect immediately before such adoption,
change or compliance) by an amount



41









 







reasonably deemed by such Lender, to be material, then, subject to Section 8.3(c), from time
to time, within thirty (30) days after its receipt of a certificate from such Lender (with a copy
to the Administrative Agent) pursuant to subsection (c) below setting forth in reasonable detail
such determination and the basis thereof, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction or the Borrower may prepay all
Adjusted LIBOR Loans of such Lender.



          (c) Each of the Administrative Agent and any Lender that determines to seek compensation or
additional interest under this Section 8.3 shall give written notice to the Borrower and, in the
case of a Lender other than the Administrative Agent, the Administrative Agent of the circumstances
that entitle the Administrative Agent or such Lender, to such compensation no later than ninety
(90) days after the Administrative Agent or such Lender receives actual notice or obtains actual
knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a
claim hereunder. In any event the Borrower shall not have any obligation to pay any amount with
respect to claims accruing prior to the ninetieth day preceding such written demand. Each of the
Administrative Agent and the Lenders shall use reasonable efforts to avoid the need for, or reduce
the amount of, such compensation, additional interest, and any payment under Section 3.3,
including, without limitation, the designation of a different Lending Office, if such action or
designation will not, in the sole judgment of the Administrative Agent or such Lender, made in good
faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect
the rights of any Lender or the obligations of the Borrower under this Section 8.3 or Section 3.3.
A certificate of the Administrative Agent or any Lender, as applicable, claiming compensation or
additional interest under this Section 8.3, and setting forth the additional amount or amounts to
be paid to it hereunder and accompanied by a statement prepared by the Administrative Agent or such
Lender, as applicable, describing in reasonable detail the calculations thereof shall be prima
facie evidence of the correctness thereof. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.



     Section 8.4. Lending Offices. The Administrative Agent and each Lender may, at its
option, elect to make or maintain its Loans hereunder at the Lending Office for each Type and/or
currency of Loan available hereunder or at such other of its branches, offices or affiliates as it
may from time to time elect and designate in a written notice to the Borrower and the
Administrative Agent, provided that, except in the case of any such transfer to another of its
branches, offices or affiliates made at the request of the Borrower, the Borrower shall not be
responsible for the costs arising under Section 3.3 or 8.3 resulting from any such transfer to the
extent not otherwise applicable to such Lender prior to such transfer.



     Section 8.5. Discretion of Lender as to Manner of Funding. Subject to the other
provisions of this Agreement, each Lender shall be entitled to fund and maintain its funding of all
or any part of its Loans in any manner it sees fit.



     Section 8.6. Substitution of Lender. If (a) any Lender has demanded compensation or
additional interest or given notice of its intention to demand compensation or additional interest
under Section 8.3, (b) the Borrower is required to pay any additional amount to any Lender under
Section 2.11, (c) any Lender is unable to submit any form or certificate required under Section
3.3(b) or withdraws or cancels any previously submitted form with no substitution therefor, (d)



42









 







any Lender gives notice of any change in law or regulations, or in the interpretation thereof,
pursuant to Section 8.1, (e) any Lender has been declared insolvent or a receiver or conservator
has been appointed for a material portion of its assets, business or properties, (f) any Lender
shall seek to avoid its obligation to make or maintain Loans hereunder for any reason, including,
without limitation, reliance upon 12 U.S.C. § 1821(e) or (n) (1) (B), (g) any taxes referred to in
Section 3.3 have been levied or imposed (or the Borrower determines in good faith that there is a
substantial likelihood that such taxes will be levied or imposed) so as to require withholding or
deductions by the Borrower and payment by the Borrower of additional amounts to any Lender, or
other reimbursement or indemnification of any Lender, as a result thereof, (h) any Lender shall
decline to consent to a modification or waiver of the terms of this Agreement or any other Credit
Documents requested by the Borrower to which the Required Lenders have consented, then and in such
event, upon request from the Borrower delivered to such Lender and the Administrative Agent, such
Lender shall assign, in accordance with the provisions of Section 10.10 and an appropriately
completed Assignment Agreement, all of its rights and obligations under the Credit Documents to
another Lender or a commercial banking institution selected by the Borrower and (in the case of a
commercial banking institution) reasonably satisfactory to the Administrative Agent, in
consideration for the payments set forth in such Assignment Agreement and payment by the Borrower
to such Lender of all other amounts which such Lender may be owed pursuant to this Agreement,
including, without limitation, Sections 2.11, 3.3, 8.3 and 10.13.



ARTICLE 9




THE AGENTS.




     Section 9.1. Appointment and Authorization of Administrative Agent. Each of the
Lenders hereby appoints Goldman Sachs Credit Partners L.P. as the Administrative Agent under the
Credit Documents and hereby authorizes the Administrative Agent to take such action as the
Administrative Agent and on each of its behalf and to exercise such powers under the Credit
Documents as are delegated to the Administrative Agent, respectively, by the terms thereof,
together with such powers as are reasonably incidental thereto.



     Section 9.2. Rights and Powers. The Administrative Agent shall have the same rights
and powers under the Credit Documents as any other Lender and may exercise or refrain from
exercising such rights and power as though it were not an Administrative Agent, and the
Administrative Agent and its Controlling Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any of its Subsidiaries or
Controlling Affiliates as if it were not an Administrative Agent under the Credit Documents. The
term Lender as used in all Credit Documents, unless the context otherwise clearly requires,
includes the Administrative Agent in its capacity as a Lender. In the event that the
Administrative Agent or any of its affiliates shall be or become an indenture trustee under the
Trust Indenture Act of 1939 (as amended, the “Trust Indenture Act”) in respect of any securities
issued or guaranteed by any Credit Party, the parties hereto acknowledge and agree that any payment
or property received in satisfaction of or in respect of any Obligation of such Credit Party
hereunder or under any other Credit Document by or on behalf of the Administrative Agent (in its
capacity as the Administrative Agent) for the benefit of any Lender under any Credit Document
(other than the Administrative Agent) and which is applied in accordance with the



43









 







Credit Documents shall be deemed to be exempt from the requirements of Section 311 of the
Trust Indenture Act pursuant to Section 311(b)(3) of the Trust Indenture Act. In performing its
functions and duties hereunder, the Administrative Agent shall act solely as an agent of the
Lenders and does not assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with the Borrower or any of its Subsidiaries.



     Section 9.3. Action by Administrative Agent. The obligations of the Administrative
Agent under the Credit Documents are only those expressly set forth therein. Without limiting the
generality of the foregoing, the Administrative Agent shall not be required to take any action
concerning any Default or Event of Default, except as expressly provided in Section 7.2. Unless
and until the Required Lenders (or, if required by Section 10.11, all of the Lenders) give such
direction (including, without limitation, the giving of a notice of default as described in Section
7.1(c)), the Administrative Agent may, except as otherwise expressly provided herein or therein,
take or refrain from taking such actions as it deems appropriate and in the best interest of all
the Lenders. In no event, however, shall the Administrative Agent be required to take any action
in violation of applicable law or of any provision of any Credit Document, and each of the
Administrative Agent shall in all cases be fully justified in failing or refusing to act hereunder
or under any other Credit Document unless it first receives any further assurances of its
indemnification from the Lenders that it may require, including prepayment of any related expenses
and any other protection it requires against any and all costs, expenses, and liabilities it may
incur in taking or continuing to take any such action. The Administrative Agent shall be entitled
to assume that no Default or Event of Default, other than non-payment of any scheduled principal or
interest payment due hereunder, exists unless notified in writing to the contrary by a Lender or
the Borrower. In all cases in which the Credit Documents do not require the Administrative Agent
to take specific action, the Administrative Agent shall be fully justified in using its discretion
in failing to take or in taking any action thereunder. Any instructions of the Required Lenders,
or of any other group of Lenders called for under specific provisions of the Credit Documents,
shall be binding on all the Lenders and holders of Notes.



     Section 9.4. Consultation with Experts. The Administrative Agent may consult with
legal counsel, independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.



     Section 9.5. Indemnification Provisions; Credit Decision. Neither the Administrative
Agent, nor any of its directors, officers, agents, or employees shall be liable to any Lender for
any action taken or not taken by them in connection with the Credit Documents (i) with the consent
or at the request of the Required Lenders (or, if required by Section 10.11, all of the Lenders),
or (ii) in the absence of their own gross negligence or willful misconduct. Neither the
Administrative Agent, nor any of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement, any other Credit Document or any Borrowing;
(ii) the performance or observance of any of the covenants or agreements of the Borrower or any
Subsidiary contained herein or in any other Credit Document; (iii) the satisfaction of any
condition specified in Article 4, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness, genuineness, enforceability, value,
worth or collectability hereof or of any other Credit Document or of any



44









 







other documents or writings furnished in connection with any Credit Document; and the
Administrative Agent makes no representation of any kind or character with respect to any such
matters mentioned in this sentence. The Administrative Agent may execute any of their duties under
any of the Credit Documents by or through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders or any other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care. The Administrative Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, other document or statement
(whether written or oral) believed by it to be genuine or to be sent by the proper party or
parties. In particular and without limiting any of the foregoing, the Administrative Agent shall
have no responsibility for confirming the accuracy of any Compliance Certificate or other document
or instrument received by any of them under the Credit Documents. The Administrative Agent may
treat the payee of any Note as the holder thereof until written notice of transfer shall have been
filed with such Administrative Agent signed by such owner in form satisfactory to such
Administrative Agent. Each of the Lenders acknowledges that it has independently, and without
reliance on the Administrative Agent, or any other Lender, obtained such information and made such
investigations and inquiries regarding the Borrower and its Subsidiaries as it deems appropriate,
and based upon such information, investigations and inquiries, made its own credit analysis and
decision to extend credit to the Borrower in the manner set forth in the Credit Documents. It
shall be the responsibility of each Lender to keep itself informed about the creditworthiness and
business, properties, assets, liabilities, condition (financial or otherwise) and prospects of the
Borrower and its Subsidiaries, and the Administrative Agent shall have no liability whatsoever to
any Lender for such matters. The Administrative Agent shall have no duty to disclose to the
Lenders information that is not required by any Credit Document to be furnished by the Borrower or
any Subsidiaries to such Agent at such time, but is voluntarily furnished to such Agent (either in
their respective capacity as Administrative Agent or in their individual capacity). The
Administrative Agent shall not have, by reason hereof or any of the other Credit Documents, a
fiduciary relationship in respect of any Lender; and nothing herein or any of the other Credit
Documents, expressed or implied, is intended to or shall be so construed as to impose upon the
Administrative Agent any obligations in respect hereof or any of the other Credit Documents except
as expressly set forth herein or therein.



     Section 9.6. Indemnity. The Lenders shall ratably, in accordance with their
Percentages, indemnify and hold the Administrative Agent and its directors, officers, employees,
agents and representatives harmless from and against any liabilities, losses, costs or expenses
suffered or incurred by it under any Credit Document or in connection with the transactions
contemplated thereby, regardless of when asserted or arising, except to the extent they are
promptly reimbursed for the same by the Borrower and except to the extent that any event giving
rise to a claim was caused by the gross negligence or willful misconduct of the party seeking to be
indemnified. The obligations of the Lenders under this Section 9.6 shall survive termination of
this Agreement.



     Section 9.7. Resignation of the Administrative Agent. The Administrative Agent may
resign at any time and shall resign upon any removal thereof as a Lender pursuant to the terms of
this Agreement upon at least thirty (30) days’ prior written notice to the Lenders and the
Borrower. Any resignation of the Administrative Agent shall not be effective until a replacement
therefor is appointed pursuant to the terms hereof. Upon any such resignation of the



45









 







Administrative Agent, the Required Lenders and, so long as no Event of Default shall then
exist, with the consent of the Borrower (which consent shall not be unreasonably withheld or
delayed) shall have the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring Administrative Agent’s giving of notice
of resignation, then the retiring Administrative Agent may, on behalf of the Lenders appoint a
successor Administrative Agent, which shall be any Lender hereunder or any commercial bank
organized under the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $1,000,000,000. Upon the acceptance of its appointment as
the Administrative Agent hereunder, such successor Administrative Agent shall thereupon succeed to
and become vested with all the rights and duties of the retiring Administrative Agent under the
Credit Documents, and the retiring Administrative Agent shall be discharged from its duties and
obligations thereunder. If the Required Lenders or the Administrative Agent do not appoint a
successor Administrative Agent within thirty (30) days after the retiring Administrative Agent’s
giving of notice of resignation, the Required Lenders shall thereupon succeed to and become vested
with all the rights and duties of the retiring Administrative Agent under the Credit Documents, and
the retiring Administrative Agent shall be discharged from its duties and obligations thereunder.
After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article 9 and all protective provisions of the other Credit Documents shall
inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent.



ARTICLE 10




MISCELLANEOUS.




     Section 10.1. No Waiver. No delay or failure on the part of the Administrative Agent,
any Lender, or on the part of the holder or holders of any Notes, in the exercise of any power,
right or remedy under any Credit Document shall operate as a waiver thereof or as an acquiescence
in any default, nor shall any single or partial exercise thereof preclude any other or further
exercise of any other power, right or remedy. To the fullest extent permitted by applicable law,
the powers, rights and remedies under the Credit Documents of the Administrative Agent, the Lenders
and the holder or holders of any Notes are cumulative to, and not exclusive of, any powers, rights
or remedies any of them would otherwise have.



     Section 10.2. Non-Business Day. Subject to Section 2.4, if any payment of principal
or interest on any portion of any Loan or any other Obligation shall fall due on a day which is not
a Business Day, interest or fees (as applicable) at the rate, if any, such portion of any Loan or
other Obligation bears for the period prior to maturity shall continue to accrue in the manner set
forth herein on such Obligation from the stated due date thereof to the next succeeding Business
Day, on which the same shall instead be payable.



     Section 10.3. Documentary Taxes. The Borrower agrees that it will pay any
documentary, stamp or similar taxes payable with respect to any Credit Document, including interest
and penalties, in the event any such taxes are assessed irrespective of when such



46









 







assessment is made, other than any such taxes imposed as a result of any transfer of an
interest in a Credit Document. Each Lender that determines to seek compensation under this Section
10.3 shall give written notice to the Borrower and, in the case of a Lender other than the
Administrative Agent, the Administrative Agent of the circumstances that entitle such Lender to
such compensation no later than ninety (90) days after such Lender receives actual notice or
obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event
giving rise to a claim hereunder. In any event, the Borrower shall not have any obligation to pay
any amount with respect to claims accruing prior to the 90th day preceding such written demand.



     Section 10.4. Survival of Representations. All representations and warranties made
herein or in certificates given pursuant hereto shall survive the execution and delivery of this
Agreement and the other Credit Documents, and shall continue in full force and effect with respect
to the date as of which they were made as long as the Borrower has any Obligation hereunder or any
Commitment hereunder is in effect.



     Section 10.5. Survival of Indemnities. All indemnities and all provisions relative to
reimbursement to the Lenders of amounts sufficient to protect the yield of the Lenders with respect
to the Loans, including, but not limited to, Section 2.11, Section 3.3, Section 7.6, Section 8.3,
Section 10.3, and Section 10.13 hereof, shall, subject to Section 8.3(c), survive the termination
of this Agreement and the other Credit Documents and the payment of the Loans and all other
Obligations and, with respect to any Lender, any replacement by the Borrower of such Lender
pursuant to the terms hereof, in each case for a period of one (1) year.



     Section 10.6. Setoff. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the occurrence of, and
throughout the continuance of, any Event of Default, each Lender and each subsequent holder of any
Note is hereby authorized by the Borrower at any time or from time to time, without prior notice to
the Borrower or any other Person, any such prior notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits (general or special, including, but not
limited to, Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but
not including trust accounts, and in whatever currency denominated) and any other Indebtedness at
any time owing by that Lender or that subsequent holder to or for the credit or the account of the
Borrower, whether or not matured, against and on account of the due and unpaid obligations and
liabilities of the Borrower to that Lender or that subsequent holder under the Credit Documents,
irrespective of whether or not that Lender or that subsequent holder shall have made any demand
hereunder. Each Lender shall promptly give notice to the Borrower of any action taken by it under
this Section 10.6, provided that any failure of such Lender to give such notice to the Borrower
shall not affect the validity of such setoff. Each Lender agrees with each other Lender a party
hereto that if such Lender receives and retains any payment, whether by setoff or application of
deposit balances or otherwise, in respect of the Loans in excess of its ratable share of payments
on all such Obligations then owed to the Lenders hereunder, then such Lender shall purchase for
cash at face value, but without recourse, ratably from each of the other Lenders such amount of the
Loans and participations therein held by each such other Lender as shall be necessary to cause such
Lender to share such excess payment ratably with all the other Lenders; provided, however, that if
any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter
recovered from such purchasing Lender, the related purchases from the other Lenders shall be
rescinded ratably and the purchase price restored as to the portion of



47









 







such excess payment so recovered, but without interest.



     Section 10.7. Notices.



          (a) Except as otherwise specified herein and except as otherwise provided in Section 10.7(b),
all notices under the Credit Documents shall be in writing (including cable, telecopy or telex) and
shall be given to a party hereunder at its address, telecopier number or telex number set forth
below or such other address, telecopier number or telex number as such party may hereafter specify
by notice to the Administrative Agent and the Borrower, given by courier, by United States
certified or registered mail, by telegram or by other telecommunication device capable of creating
a written record of such notice and its receipt. Notices under the Credit Documents to the Lenders
shall be addressed to their respective domestic Lending Offices in the United States at the
respective addresses, telecopier or telex number, or telephone numbers set forth on their
applicable Administrative Questionnaire or, in the case of Persons becoming Lenders pursuant to
Assignment Agreements, on their applicable Assignment Agreements, and to the Borrower and the
Administrative Agent:



	 	 	 
	To the Borrower:

	 	Noble Corporation

13135 South Dairy Ashford, Suite 800

Sugar Land, TX 77478

Attention: Thomas L. Mitchell, Senior Vice President and Chief Financial Officer, Treasurer
and Controller 

Telephone No.: (281) 276 — 6100

Fax No.: (281) 276 — 6146
	 
	 	 
	To the Administrative Agent:

	 	Goldman Sachs Credit Partners L.P.

30 Hudson Street, 17th Floor

Jersey City, NJ 07302

Attention: Philip Green

Telecopy Number: (212) 357-7570





Each such notice, request or other communication shall be effective (i) if given by telecopier,
when such telecopy is transmitted to the telecopier number specified in this Section 10.7 or
pursuant to Section 10.10 and a confirmation of receipt of such telecopy has been received by the
sender, (ii) if given by courier, when delivered, (iii) if given by mail, five (5) days after such
communication is deposited in the mail, certified or registered with return receipt requested, or
(iv) if given by any other means, when delivered at the addresses specified in this Section 10.7,
or pursuant to Section 10.10; provided that any notice given pursuant to Article 2 shall be
effective only upon receipt and, provided further, that any notice that but for this proviso would
be effective after the close of business on a Business Day or on a day that is not a Business Day
shall be effective at the opening of business on the next Business Day.



Notwithstanding the foregoing, materials required to be delivered pursuant to Section 6.6 shall be
delivered to the Administrative Agent as specified in Section 10.7(b) or as otherwise specified to
the Borrower by the Administrative Agent; provided that any communication that (A) relates to a
request for a new, or a conversion of an existing, Loan or other extension of credit (including any
election of an interest rate or Interest Period relating thereto), (B) relates to the payment of


48









 






any principal or other amount due under this Agreement prior to the scheduled date therefor, (C)
provides notice of any Default or Event of Default or (D) is required to be delivered to satisfy
any condition precedent to the effectiveness of any provision of this Agreement and/or any Loan, or
other extension of credit hereunder, shall be in writing (including telecopy communication) and
mailed, telecopied or delivered pursuant to this Section 10.7(a).





          (i) The Borrower will provide to the Administrative Agent all information, documents
and other materials that it is obligated to furnish to the Administrative Agent pursuant to
the Credit Documents, including all notices, requests, financial statements, financial and
other reports, certificates and other information materials, but excluding any such
communication that (i) relates to a request for a new, or a conversion of an existing, Loan,
or other extension of credit (including any election of an interest rate or Interest Period
relating thereto), (ii) relates to the payment of any principal or other amount due under
this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or
Event of Default or (iv) is required to be delivered to satisfy any condition precedent to
the effectiveness of any provision of this Agreement and/or any Loan, or other extension of
credit hereunder (all such non-excluded communications being referred to herein collectively
as “Communications”), by transmitting the Communications in an electronic/soft medium to
gds.link@gs.com.


The Borrower further agrees that the Administrative Agent may make the Communications available to
the Lenders by posting the Communications on Intralinks or a substantially similar electronic
transmission system (the “Platform”). The Borrower acknowledges that the distribution of material
through an electronic medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution.



THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW) DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS
AFFILIATES OR ANY OF THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES OF THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES (COLLECTIVELY, “AGENT
PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES
OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF
THE TRANSMISSION BY THE BORROWER, ANY OF THE AGENT PARTIES OR ANY OTHER PERSON OF COMMUNICATIONS
THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY 




49









 







AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO
HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.



The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent
at its e-mail address set forth above shall constitute effective delivery of the Communications to
the Administrative Agent for purposes of the Credit Documents. Each of the Lenders agrees that
notice to it (as provided in the next sentence) specifying that the Communications have been posted
to the Platform shall constitute effective delivery of the Communications to such Lender for
purposes of the Credit Documents. Each of the Lenders agrees (i) to notify the Administrative
Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail
address to which the foregoing notice may be sent by electronic transmission and (ii) that the
foregoing notice may be sent to such e-mail address.



Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any
notice or other communication pursuant to any Credit Document in any other manner specified in such
Credit Document.




     Section 10.8. Counterparts. This Agreement may be executed in any number of
counterparts, and by the different parties on different counterpart signature pages, each of which
when executed shall be deemed an original, but all such counterparts taken together shall
constitute one and the same Agreement.



     Section 10.9. Successors and Assigns. This Agreement shall be binding upon the
Borrower, each of the Lenders, the Administrative Agent and their respective successors and
assigns, and shall inure to the benefit of the Borrower, each of the Lenders, the Administrative
Agent and their respective successors and assigns, including any subsequent holder of any Note;
provided, however, that the Borrower may not assign any of its rights or obligations under this
Agreement or any other Credit Document without the written consent of all Lenders and the
Administrative Agent, and the Administrative Agent may not assign any of its respective rights or
obligations under this Agreement or any Credit Document except in accordance with Article 9 and no
Lender may assign any of its rights or obligations under this Agreement or any other Credit
Document except in accordance with Section 10.10. Any Lender may at any time pledge or assign all
or any portion of its rights under this Agreement and the Notes issued to it (i) to a Federal
Reserve Bank to secure extensions of credit by such Federal Reserve Bank to such Lender, or (ii) in
the case of any Lender that is a fund comprised in whole or in part of commercial loans, to a
trustee for such fund in support of such Lender’s obligations to such trustee; provided that no
such pledge or assignment shall release a Lender from any of its obligations hereunder or
substitute any such Federal Reserve Bank or such trustee for such Lender as a party hereto and the
Borrower, the Administrative Agent, the other Lenders shall continue to deal solely with such
Lender in connection with the rights and obligations of such Lender under this Agreement.



     Section 10.10. Sales and Transfers of Borrowing and Notes; Participations in Borrowings
and Notes.



50









 





          (a) Any Lender may, without the consent of, or notice to, the Borrower and the Administrative
Agent, at any time sell to one or more commercial banking or other financial or lending
institutions (“Participants") participating interests in any Commitment of such Lender hereunder,
provided that no Lender may sell any participating interests (other than in the case of affiliates
of such Lender) in any such Commitment hereunder without also selling to such Participant the
appropriate pro rata share of all such Lender’s Commitment, and provided further that no Lender
shall transfer, grant or assign any participation under which the Participant shall have rights to
vote upon or to consent to any matter to be decided by the Lenders or the Required Lenders
hereunder or under any other Credit Document or to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or waiver would (i)
increase the amount of such Lender’s Commitment and such increase would affect such Participant,
(ii) reduce the principal of, or interest on, any of such Lender’s Borrowings, or any fees or other
amounts payable to such Lender hereunder and such reduction would affect such Participant, (iii)
postpone any date fixed for any scheduled payment of principal of, or interest on, any of such
Lender’s Borrowings, or any fees or other amounts payable to such Lender hereunder and such
postponement would affect such Participant, or (iv) release any collateral security for any
Obligation, except as otherwise specifically provided in any Credit Document. In the event of any
such sale by a Lender of participating interests to a Participant, such Lender’s obligations under
this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall
remain solely responsible for the performance thereof, such Lender shall remain the holder of any
such Note for all purposes under this Agreement, the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement and such Lender shall retain the sole right to enforce the
obligations of the Borrower under any Credit Document. The Borrower agrees that if amounts
outstanding under this Agreement and the Notes shall have been declared or shall have become due
and payable in accordance with Section 7.2 or 7.3 upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this Agreement or any Note,
provided that such right of setoff shall be subject to the obligation of such Participant to share
with the Lenders, and the Lenders agree to share with such Participant, as provided in Section
10.6. The Borrower also agrees that each Participant shall be entitled to the benefits of and have
the obligations under Sections 2.11, 3.3 and 8.3 with respect to its participation in the
Commitments and the Borrowings outstanding from time to time, provided that no Participant shall be
entitled to receive any greater amount pursuant to such Sections than the transferor Lender would
have been entitled to receive in respect of the amount of the participation transferred if no
participation had been transferred and provided, further, that Sections 8.3(c) and 8.6 shall apply
to the transferor Lender with respect to any claim by any Participant pursuant to Section 2.11, 3.3
or 8.3 as fully as if such claim was made by such Lender. Anything herein to the contrary
notwithstanding, Borrower shall not, at any time, be obligated to pay to any Lender any sum in
excess of the sum the Borrower would have been obligated to pay to such Lender hereunder if such
Lender had not sold any participation in its rights and obligations under this Agreement or any
other Credit Document.



          (b) Any Lender may at any time sell to (i) any of such Lender’s affiliates or to any other
Lender or any affiliate thereof that, in each case, is a commercial banking or other



51









 









financial or lending institution not subject to Regulation T of the Board of Governors of the
Federal Reserve System, or (ii) with the prior written consent (which shall not be unreasonably
withheld or delayed) of the Administrative Agent and if no Event of Default has occurred and is
continuing, the Borrower, to one or more commercial banking or other financial or lending
institutions not subject to Regulation T of the Board of Governors of the Federal Reserve System
(any of (i) or (ii), a “Purchasing Lender”), all or any part of its rights and obligations under
this Agreement and the other Credit Documents, pursuant to an Assignment Agreement in the form
attached as Exhibit 10.10, executed by such Purchasing Lender and such transferor Lender
(and, in the case of a Purchasing Lender which is not then a Lender or an affiliate thereof, by the
Borrower and the Administrative Agent) and delivered to the Administrative Agent; provided that
each such sale to a Purchasing Lender (other than an existing Lender) shall be in the amount of
$5,000,000 or more, or if in a lesser amount or if as a result of such sale the sum of the unfunded
Commitment of such Lender plus the aggregate principal amount of such Lender’s Loans and
participations would be less than the amount of $5,000,000 (calculated as hereinafter set forth),
such sale shall be of all of such Lender’s rights and obligations under this Agreement and all of
the other Credit Documents payable to it to one Purchasing Lender. Notwithstanding the requirement
of the Borrower’s consent set forth above, but subject to all of the other terms and conditions of
this Section 10.10(b), any Lender may sell to one or more commercial banking or other financial or
lending institutions not subject to Regulation T of the Board of Governors of the Federal Reserve
System, all or any part of their rights and obligations under this Agreement and the other Credit
Documents with only the consent of the Administrative Agent (which shall not be unreasonably
withheld or delayed) if an Event of Default shall have occurred and be continuing. Upon such
execution, delivery and acceptance, from and after the effective date of the transfer determined
pursuant to such Assignment Agreement, (x) the Purchasing Lender thereunder shall be a party hereto
and, to the extent provided in such Assignment Agreement, have the rights and obligations of a
Lender hereunder with a Commitment as set forth herein and (y) the transferor Lender thereunder
shall, to the extent provided in such Assignment Agreement, be released from its obligations under
this Agreement (and, in the case of an Assignment Agreement covering all or the remaining portion
of a transferor Lender’s rights and obligations under this Agreement, such transferor Lender shall
cease to be a party hereto). Such Assignment Agreement shall be deemed to amend this Agreement to
the extent, and only to the extent, necessary to reflect the addition of such Purchasing Lender and
the resulting adjustment of Commitments and Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such transferor Lender under
this Agreement, the Notes and the other Credit Documents. On or prior to the effective date of the
transfer determined pursuant to such Assignment Agreement, the Borrower, at its own expense, shall
upon reasonable notice from the Administrative Agent execute and deliver to the Administrative
Agent in exchange for any surrendered Note, a new Note as appropriate to the order of such
Purchasing Lender in an amount equal to the Commitments assumed by it pursuant to such Assignment
Agreement, and, if the transferor Lender has retained a Commitment or Borrowing hereunder, a new
Note to the order of the transferor Lender in an amount equal to the Commitments or Borrowings
retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in
the form of the Notes replaced thereby. The Notes surrendered by the transferor Lender shall be
returned by the Administrative Agent to the Borrower marked “cancelled.”



          (c) Upon its receipt of an Assignment Agreement executed by a transferor



52









 







Lender and a Purchasing Lender (and, in the case of a Purchasing Lender that is not then a
Lender or an affiliate thereof, by the Administrative Agent and, to the extent required by Section
10.10(b), by the Borrower), together with payment by the transferor Lender to the Administrative
Agent hereunder of a registration and processing fee of $3,500 (unless the Borrower is replacing
such Lender pursuant to the terms hereof, in which event such fee shall be paid by the Borrower),
the Administrative Agent shall (i) promptly accept such Assignment Agreement, and (ii) on the
effective date of the transfer determined pursuant thereto give notice of such acceptance and
recordation to the Lenders and the Borrower. The Borrower shall not be responsible for such
registration and processing fee or any costs or expenses incurred by any Lender, any Purchasing
Lender or the Administrative Agent in connection with such assignment except as provided above.



          (d) If, pursuant to this Section 10.10 any interest in this Agreement or any Loan or Note is
transferred to any transferee which is organized under the laws of any jurisdiction other than the
United States of America or any State thereof, the transferor Lender shall cause such transferee,
concurrently with the effectiveness of such transfer, (i) to represent to the transferor Lender
(for the benefit of the transferor Lender, the Administrative Agent and the Borrower) that under
applicable law and treaties no taxes will be required to be withheld by the Administrative Agent,
the Borrower or the transferor Lender with respect to any payments to be made to such transferee in
respect of the Loans, (ii) to furnish to the transferor Lender (and, in the case of any Purchasing
Lender, the Administrative Agent and the Borrower) two duly completed and signed copies of either
U.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue Service Form W-8ECI or such
successor forms as shall be adopted from time to time by the relevant United States taxing
authorities (wherein such transferee claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder), and (iii) to agree (for the benefit of the
transferor Lender, the Administrative Agent and the Borrower) to provide the transferor Lender
(and, in the case of any Purchasing Lender, the Administrative Agent and the Borrower) new forms as
contemplated by Section 3.3(b) upon the expiration or obsolescence of any previously delivered form
and comparable statements in accordance with applicable U.S. laws and regulations and amendments
duly executed and completed by such transferee, and to comply from time to time with all applicable
U.S. laws and regulations with regard to such withholding tax exemption.



          (e) Notwithstanding any other provisions of this Section 10.10, no transfer or assignment of
the interests of any Lender hereunder or any grant of participations therein shall be permitted if
such transfer, assignment or grant would require the Borrower to file a registration statement with
the SEC or to qualify the Loans, the Notes or any other Obligations under the securities laws of
any jurisdiction.



          (f) Notwithstanding (i) the requirement set forth in clause (a) above that all participations
be made to commercial banking or other financial or lending institutions and on a pro rata basis
and (ii) the agreement in clause (a) above that each Participant shall have the obligations set
forth in Sections 2.11, 3.3 and 8.3 (it being understood that, for purposes of this clause (f),
Persons participating pursuant to the terms of this clause (f) shall only receive the benefits of
Sections 2.11, 3.3 and 8.3 to the extent they have agreed to accept the obligation set forth
therein), each Lender shall have the right to sell one or more participations in all or any part of
its Commitments, Loans or any other Obligation to one or more lenders or other Persons that



53









 







provide financing to such Lender in the form of sales and repurchases of participations
without having to satisfy the foregoing requirements with respect to participating interest sales
or Participants.



     Section 10.11. Amendments, Waivers and Consents. Any provision of the Credit
Documents may be amended or waived if, but only if, such amendment or waiver is in writing and is
signed by (a) the Borrower, (b) the Required Lenders, and (c) if the rights or duties of the
Administrative Agent are affected thereby, the Administrative Agent, as the case may be, provided
that:




          (i) no amendment or waiver shall (A) increase the Commitment of any Lender without the
consent of such Lender, or (B) postpone the Maturity Date without the consent of all
Lenders, or reduce the amount of or postpone the date for any scheduled payment of any
principal of or interest (including, without limitation, any reduction in the rate of
interest unless such reduction is otherwise provided herein) on any Loan or of any fee
payable hereunder, without the consent of each Lender owed any such Obligation, or (C)
release the NDC Guaranty (except as expressly provided for therein), (D) modify the
provisions of Article 4 hereof without the consent of all Lenders, (E) change any provision
requiring ratable funding or sharing of payments without the consent of all Lenders or (F)
amend or waive this Section 10.11, the definition herein of “Required Lenders” or the number
of Lenders required to take any action under any other provision of the Credit Documents
without the consent of all Lenders; and




          (ii) no amendment or waiver shall, unless signed by each Lender, change the provisions
of this Section 10.11 or the definition of Required Lenders or the number of Lenders
required to take any action under any other provision of the Credit Documents.



     Section 10.12. Headings. Section headings used in this Agreement are for reference
only and shall not affect the construction of this Agreement.



     Section 10.13. Legal Fees, Other Costs and Indemnification. The Borrower, upon demand
by the Administrative Agent, agrees to pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including, without limitation, the reasonable fees and disbursements of legal
counsel to the Administrative Agent) in connection with the preparation and execution of the Credit
Documents, and any amendment, waiver or consent related thereto, whether or not the transactions
contemplated therein are consummated. The Borrower further agrees to indemnify and hold harmless
each Lender, the Administrative Agent, and their respective directors, officers, employees and
attorneys (collectively, the “Indemnified Parties”), against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation, all reasonable
attorneys’ fees and other reasonable expenses of litigation or preparation therefor, whether or
not such Indemnified Party is a party thereto) in connection with the Credit Documents, including
those which any of them may pay or incur as a result of (a) any action, suit or proceeding by any
third party or Governmental Authority against such Indemnified Party and relating to any Credit
Document, the Loans, or the application or proposed application by any of the Borrower of the
proceeds of any Loan, REGARDLESS OF WHETHER SUCH CLAIMS OR ACTIONS ARE FOUNDED IN WHOLE OR IN PART



54









 







UPON THE ALLEGED SIMPLE OR CONTRIBUTORY NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES AND/OR
ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR ATTORNEYS, (b) any investigation of any
third party or any Governmental Authority involving any Lender (as a lender hereunder), or the
Administrative Agent (in such capacity hereunder) and related to any use made or proposed to be
made by the Borrower of the proceeds of any Loan, or any transaction financed or to be financed in
whole or in part, directly or indirectly with the proceeds of any Loan, and (c) any investigation
of any third party or any Governmental Authority, litigation or proceeding involving any Lender (as
a lender hereunder), or the Administrative Agent (in such capacity hereunder) and related to any
environmental cleanup, audit, compliance or other matter relating to any Environmental Law or the
presence of any Hazardous Material (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under any Environmental Law) with
respect to the Borrower, regardless of whether caused by, or within the control of, the Borrower;
provided, however, that the Borrower shall not be obligated to indemnify any Indemnified Party for
any of the foregoing arising out of such Indemnified Party’s gross negligence, willful misconduct,
violation of law or willful material breach of its obligations hereunder, as determined pursuant to
a judgment of a court of competent jurisdiction or as expressly agreed in writing by such
Indemnified Party. The Borrower, upon demand by the Administrative Agent or a Lender at any time,
shall reimburse the Administrative Agent or Lender for any reasonable legal or other expenses
incurred in connection with investigating or defending against any of the foregoing, except if the
same is excluded from indemnification pursuant to the provisions of the preceding sentence. Each
Indemnified Party agrees to contest any indemnified claim if requested by the Borrower, in a manner
reasonably directed by the Borrower, with counsel selected by the Indemnified Party and approved by
the Borrower, which approval shall not be unreasonably withheld or delayed. Any Indemnified Party
that proposes or intends to settle or compromise any such indemnified claim shall give the Borrower
written notice of the terms of such settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain the Borrower’s prior written consent
thereto, which consent shall not be unreasonably withheld or delayed; provided that the Indemnified
Party shall not be restricted from settling or compromising any such claim if (i) the Indemnified
Party waives its right to indemnity from the Borrower in respect of such claim and such settlement
or compromise does not materially increase the Borrower’s liability pursuant to this Section 10.13
to any related party of such Indemnified Party, (ii) an Event of Default as described in Section
7.1(a), (b) (as a result of a default under Section 6.16), (f) or (g) or has occurred and is
continuing or (iii) the Indemnified Party reasonably believes the Borrower will not be able to
satisfy the full amount of such claim and the Borrower has failed to provide sufficient collateral
to the Indemnified Party to secure the value of such claim..



     Section 10.14. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.



     (A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS, AND THE RIGHTS AND DUTIES OF THE PARTIES
THERETO, SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.



     (B) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO AGREE THAT ANY
LITIGATION BASED HEREON, OR



55









 







ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, THE OTHER AGENTS, THE LENDERS OR A CREDIT PARTY MAY BE BROUGHT AND MAINTAINED
IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE BORROWER HEREBY
IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM, 111 8TH AVENUE, NEW YORK, NEW YORK 10011, AS THE
DESIGNEE, APPOINTEE AND AGENT OF THE BORROWER TO RECEIVE, FOR AND ON BEHALF OF SUCH PERSON, SERVICE
OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT HERETO. TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS, BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS.



     (C) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR
UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION
WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY.



56









 





     (D) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 10.7. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY
TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     (E) THE BORROWER, THE ADMINISTRATIVE AGENT, AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION 10.14 OR
OTHERWISE RELATING TO THE CREDIT DOCUMENTS ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES
(EXCEPT, IN THE CASE OF THE BORROWER’S OBLIGATION HEREUNDER TO INDEMNIFY AND HOLD HARMLESS THE
INDEMNIFIED PARTIES, TO THE EXTENT ANY INDEMNIFIED PARTY IS FOUND LIABLE FOR SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES TO A THIRD PARTY).



     Section 10.15. Confidentiality. Each of the Agents and Lenders agree to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (i)
to their respective affiliates, to prospective Purchasing Lenders and Participants and to swap and
derivative counterparties that have agreed in writing to be bound by either the confidentiality
provisions hereof or other provisions at least as restrictive as this Section 10.15, and their
respective directors, officers, employees and agents, including accountants, legal counsel and
other advisors who have reason to use such Information in connection with the evaluation of the
transactions contemplated by this Agreement (subject to similar confidentiality provisions as
provided herein) solely for purposes of evaluating such Information, (ii) to the extent requested
by any regulatory authority, (iii) to the extent required by applicable law or regulation or by any
subpoena or similar legal process, (iv) in connection with the exercise of any remedies hereunder
or any proceedings relating to this Agreement or the other Credit Documents, (v) with the consent
of the Borrower, or (vi) to the extent such Information (x) becomes publicly available other than
as a result of a breach of this Section 10.15, or (y) becomes available on a non-confidential basis
from a source other than the Borrower or its affiliates, or the Lenders or their respective
affiliates, excluding any Information from such source which, to the actual knowledge of the Agent
or Lender receiving such Information, has been disclosed by such source in violation of a duty of
confidentiality to the Borrower. For purposes hereof, “Information” means all information received
by the Lenders from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Lenders on a non-confidential basis prior to disclosure by the
Borrower, excluding any Information from a source which, to the actual knowledge of the Agent or
Lender receiving such Information, has been disclosed by such source in violation of a duty of
confidentiality to the Borrower. The Agents and the Lenders shall be considered to have complied
with their respective obligations if they have exercised the same degree of care to maintain the
confidentiality of such Information as they would accord their own confidential information.



     Section 10.16. Effectiveness. This Agreement shall become effective on the date on
which the Borrower, the Administrative Agent and each Lender have signed and delivered to the



57









 







Administrative Agent a counterparty signature page hereto (including by facsimile or other
electronic means) or the Administrative Agent has received a facsimile notice that such a
counterpart has been signed and mailed to the Administrative Agent.



     Section 10.17. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     Section 10.18. Currency Conversion. All payments of Obligations under this Agreement,
the Notes or any other Credit Document shall be made in U.S. Dollars. If any payment of any
Obligation, whether through payment by any Credit Party or the proceeds of any collateral, shall be
made in a currency other than the currency required hereunder, such amount shall be converted into
the currency required hereunder at the rate determined by the Administrative Agent as the rate
quoted by it in accordance with methods customarily used by such Person for such or similar
purposes as the spot rate for the purchase by such Person of the required currency with the
currency of actual payment through its principal foreign exchange trading office at approximately
11:00 A.M. (local time at such office) two Business Days prior to the effective date of such
conversion, provided that the Administrative Agent may obtain such spot rate from another financial
institution actively engaged in foreign currency exchange if the Administrative Agent does not then
have a spot rate for the required currency. The parties hereto hereby agree, to the fullest extent
that they may effectively do so under applicable law, that (i) if for the purposes of obtaining any
judgment or award it becomes necessary to convert from any currency other than the currency
required hereunder into the currency required hereunder any amount in connection with the
Obligations, then the conversion shall be made as provided above on the Business Day before the day
on which the judgment or award is given, (ii) in the event that there is a change in the applicable
conversion rate prevailing between the Business Day before the day on which the judgment or award
is given and the date of payment, the Borrower will pay to the Administrative Agent, for the
benefit of the Lenders, such additional amounts (if any) as may be necessary, and the
Administrative Agent, on behalf of the Lenders, will pay to the Borrower such excess amounts (if
any) as result from such change in the rate of exchange, to assure that the amount paid on such
date is the amount in such other currency, which when converted at the conversion rate described
herein on the date of payment, is the amount then due in the currency required hereunder, and (iii)
any amount due from the Borrower under this Section 10.18 shall be due as a separate debt and shall
not be affected by judgment or award being obtained for any other sum due.



     Section 10.19. [Reserved].



     Section 10.20. Change in Accounting Principles, Fiscal Year or Tax Laws. If (i) any
change in accounting principles from those used in the preparation of the financial statements of
the Borrower referred to in Section 5.9 is hereafter occasioned by the promulgation of rules,
regulations, pronouncements and opinions by or required by the Financial Accounting Standards Board
or the American Institute of Certified Public Accounts (or successors thereto or agencies with
similar functions), and such change materially affects the calculation of any component of any
financial covenant, standard or term found in this Agreement, or (ii) there is a material



58









 







change in federal, state or foreign tax laws which materially affects any of the Borrower and
its Subsidiaries’ ability to comply with the financial covenants, standards or terms found in this
Agreement, the Borrower and the Lenders agree to enter into negotiations in order to amend such
provisions (with the agreement of the Required Lenders or, if required by Section 10.11, all of the
Lenders) so as to equitably reflect such changes with the desired result that the criteria for
evaluating any of the Borrower’s and its Subsidiaries’ financial condition shall be the same after
such changes as if such changes had not been made. Unless and until such provisions have been so
amended, the provisions of this Agreement shall govern.



     Section 10.21. Final Agreement. The Credit Documents constitute the entire
understanding among the Credit Parties, the Lenders and the Administrative Agent and supersede all
earlier or contemporaneous agreements, whether written or oral, concerning the subject matter of
the Credit Documents. THIS WRITTEN AGREEMENT TOGETHER WITH THE OTHER CREDIT DOCUMENTS REPRESENTS
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.



     Section 10.22. Officer’s Certificates. It is not intended that any certificate of any
officer or director of any Credit Party delivered to the Administrative Agent or any Lender
pursuant to this Agreement shall give rise to any personal liability on the part of such officer or
director.



     Section 10.23. Effect of Inclusion of Exceptions. It is not intended that the
specification of any exception to any covenant herein shall imply that the excepted matter would,
but for such exception, be prohibited or required.



     Section 10.24. Margin Stock. Each of the Lenders hereby represents to the other
Lenders that it is not relying on margin stock as collateral in extending or maintaining any Loan.



     Section 10.25. Patriot Act Notice. Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Patriot Act. The Borrower shall provide, to the extent
commercially reasonable, such information and take such actions as are reasonably requested by the
Administrative Agent or any Lenders in order to assist the Administrative Agent and the Lenders in
maintaining compliance with the Patriot Act.



     Section 10.26. No Fiduciary Duty. The Administrative Agent, each Lender and their
affiliates, may have economic interests that conflict with those of the Borrower. The Borrower
agrees that nothing in the Credit Documents or otherwise will be deemed to create an advisory,
fiduciary or agency relationship or fiduciary or other implied duty between the Administrative
Agent, the Lenders and their affiliates, on the one hand, and the Borrower, its stockholders or its
affiliates, on the other. The Borrower acknowledges and agrees that (i) the transactions
contemplated by the Credit Documents are arm’s-length commercial transactions between the the



59









 







Administrative Agent, the Lenders and their affiliates, on the one hand, and the Borrower, on
the other, (ii) in connection therewith and with the process leading to such transactions each of
the Administrative Agent, the Lenders and their affiliates is acting solely as a principal and not
the agent or fiduciary of the Borrower, its management, stockholders, creditors or any other
person, (iii) none of the Administrative Agent, Lenders or their affiliate has assumed an advisory
or fiduciary responsibility in favor of the Borrower with respect to the transactions contemplated
hereby or the process leading thereto (irrespective of whether any of the Administrative Agent, the
Lenders or their affiliates has advised or is currently advising the Borrower on other matters) or
any other obligation to the Borrower except the obligations expressly set forth in the Credit
Documents and (iv) the Borrower has consulted its own legal, financial and other advisors to the
extent it deemed appropriate. The Borrower further acknowledges and agrees that it is responsible
for making its own independent judgment with respect to such transactions and the process leading
thereto. The Borrower agrees that it will not claim that any of the Administrative Agent, the
Lenders or their affiliates has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Borrower, in connection with such transactions or the process
leading thereto.



[SIGNATURE PAGES FOLLOW]




60









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their duly authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	NOBLE CORPORATION,

As Borrower

 	 
	 	By:  	/s/ Thomas L. Mitchell
 	 
	 	Thomas L. Mitchell 	 
	 	Senior Vice President and

Chief Financial Officer 	 
	 



[Credit Agreement]





 









 









     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their duly authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Administrative Agent and a Lender

 	 
	 	By:  	/s/ Bruce H. Mendelsohn
 	 
	 	Name:  	Bruce H. Mendelsohn 	 
	 	Title:  	Authorized Signatory 	 
	 



	 	 	 	 	 
	COMMITMENT:
	 	$	685,000,000	 
	 
	PERCENTAGE:
	 	 	100	%






[Credit Agreement]





 









 





EXHIBIT 1.1




GUARANTY AGREEMENT




          THIS GUARANTY AGREEMENT (this “Guaranty”), dated as of July 24, 2007 is made by Noble Drilling
Corporation, a Delaware corporation (the “Guarantor”), in favor of (i) the Lenders (as defined in
the Loan Agreement) (as hereinafter defined) and (ii) Goldman Sachs Credit Partners L.P., in its
capacity as Administrative Agent (as defined in the Loan Agreement) (the Lenders and the
Administrative Agent are each individually referred to herein as a “Guaranteed Party”, and
collectively, as the “Guaranteed Parties”);



WITNESSETH:




          WHEREAS, Noble Corporation, a Cayman Islands exempted company limited by shares (the
“Borrower”), the Lenders and the Administrative Agent are parties to a certain Short-Term Loan
Agreement dated as of July 24, 2007 (as the same may hereafter be amended, restated, supplemented
or otherwise modified from time to time, the “Loan Agreement”; terms defined therein and not
otherwise defined herein being used herein as therein defined);



          WHEREAS, the Borrower owns, directly or indirectly, all or a majority of all outstanding
capital stock or other equity interests of the Guarantor;



          WHEREAS, consummation of the transactions pursuant to the Loan Agreement have facilitated
expansion and enhanced the overall financial strength and stability of the Borrower’s entire
corporate group, including the Guarantor; and



          WHEREAS, it is a requirement under Section 4.1(a) of the Loan Agreement, as a condition to the
Loans, that the Guarantor execute and deliver this Guaranty, and the Guarantor desires to execute
and deliver this Guaranty to satisfy such requirement;



          NOW, THEREFORE, in consideration of the premises and in order to satisfy the requirements of
the Loan Agreement, and for other good and valuable consideration, the Guarantor hereby agrees as
follows:



          SECTION 1. Guaranty. The Guarantor hereby, irrevocably and unconditionally,
guarantees the punctual payment when due, in lawful money of the United States of America (the
“Obligation Currency”), whether at stated maturity, by acceleration or otherwise, of the Loans and
all other Obligations owing by the Borrower to the Lenders and the Administrative Agent, or either
of them, under the Loan Agreement, the Notes, and the other Credit Documents, including all
renewals, extensions, modifications and refinancings thereof, now or hereafter owing, whether for
principal, interest, fees, expenses, indemnities, reimbursement obligations or otherwise, and any
and all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and expenses)
incurred by the Lenders or the Administrative Agent in enforcing any rights under this Guaranty
(collectively, the “Guaranteed Obligations”), including without limitation, all interest which, but
for the filing of a petition in bankruptcy, would accrue on any principal portion of the Guaranteed
Obligations. Any and all



 









 







payments by the Guarantor hereunder shall be made in the Obligation Currency free and clear of
and without deduction for any set-off, counterclaim, or withholding so that, in each case, each
Guaranteed Party will receive, after giving effect to any Indemnified Taxes (as such term is
defined in the Loan Agreement), the full amount, in the Obligation Currency, that it would
otherwise be entitled to receive with respect to the Guaranteed Obligations (but without
duplication of amounts for Indemnified Taxes already included in the Guaranteed Obligations). The
Guarantor acknowledges and agrees that this is a guarantee of payment when due, and not of
collection, and that this Guaranty may be enforced up to the full amount of the Guaranteed
Obligations without proceeding against the Borrower, against any security for the Guaranteed
Obligations, against any other Person or under any other guaranty covering any portion of the
Guaranteed Obligations.



          SECTION 2. Guaranty Absolute. The Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Credit Documents, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of any Guaranteed Party with respect thereto. The liability of the
Guarantor under this Guaranty shall be absolute and unconditional in accordance with its terms and
shall remain in full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation, the following (whether or not the Guarantor consents thereto or has
notice thereof):




     (a) any change in the time, place or manner of payment of, or in any other term of, all
or any of the Guaranteed Obligations, any waiver, indulgence, renewal, extension, amendment
or modification of or addition, consent or supplement to or deletion from or any other
action or inaction under or in respect of the Loan Agreement or the other Credit Documents,
or any other documents, instruments or agreements relating to the Guaranteed Obligations or
any other instrument or agreement referred to therein or any assignment or transfer of any
thereof;




     (b) any lack of validity or enforceability of the Loan Agreement or the other Credit
Documents, or any other document, instrument or agreement referred to therein or any
assignment or transfer of any thereof;




     (c) any furnishing to the Guaranteed Parties of any additional security or additional
guaranty for the Guaranteed Obligations, or any sale, exchange, release or surrender of, or
realization on, any security or guaranty for the Guaranteed Obligations;




     (d) any settlement or compromise of any of the Guaranteed Obligations, any security
therefor, or any liability of any other party with respect to the Guaranteed Obligations, or
any subordination of the payment of the Guaranteed Obligations to the payment of any other
liability of the Borrower;




     (e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to the Guarantor, the Borrower or any other
Person, or any action taken with respect to this Guaranty by any trustee or receiver, or by
any court, in any such proceeding;



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     (f) any nonperfection of any security interest or lien on any collateral, or any
amendment or waiver of or consent to departure from any guaranty or security, for all or any
of the Guaranteed Obligations;




     (g) any application of sums paid by the Borrower or any other Person with respect to
the liabilities of the Borrower to the Guaranteed Parties, regardless of what liabilities of
the Borrower remain unpaid;




     (h) any act or failure to act by any Guaranteed Party which may adversely affect the
Guarantor’s subrogation rights, if any, against the Borrower to recover payments made under
this Guaranty; and




     (i) any other circumstance which might otherwise constitute a defense available to, or
a discharge of, the Guarantor.


If claim is ever made upon any Guaranteed Party for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guaranteed Obligations, and any Guaranteed Party
repays all or part of said amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over the Guaranteed Party or any of its property, or (b)
any settlement or compromise of any such claim effected by the Guaranteed Party with any such
claimant (including, without limitation, the Borrower or a trustee in bankruptcy for the Borrower),
then and in such event the Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding on it, notwithstanding any revocation hereof or the cancellation of the
Loan Agreement, the other Credit Documents, or any other instrument evidencing any liability of the
Borrower, and the Guarantor shall be and remain liable to the Guaranteed Party for the amounts so
repaid or recovered to the same extent as if such amount had never originally been paid to the
Guaranteed Party.




          SECTION 3. Waiver. The Guarantor hereby waives notice of acceptance of this Guaranty,
notice of any liability to which it may apply, and further waive presentment, demand of payment,
protest, notice of dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Guaranteed Parties against, and any other notice to, the Borrower or any other party liable
with respect to the Guaranteed Obligations (including, without limitation, any other Person
executing a guaranty of the obligations of the Borrower).



          SECTION 4. Subrogation. The Guarantor will not exercise any rights against the
Borrower which it may acquire by way of subrogation or contribution, by any payment made hereunder
or otherwise, until all the Guaranteed Obligations shall have been irrevocably paid in full and the
Loan Agreement shall have been irrevocably terminated. If any amount shall be paid to the
Guarantor on account of such subrogation or contribution rights at any time when all the Guaranteed
Obligations shall not have been paid in full or the Loan Agreement shall not have been irrevocably
terminated, such amount shall be held in trust for the benefit of the Guaranteed Parties and shall
forthwith be paid to the Administrative Agent to be credited and applied to the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the Loan Agreement. If
(i) Guarantor shall make payment to the Guaranteed Parties of all or any part of the Guaranteed
Obligations and (ii) all the Guaranteed Obligations shall be irrevocably



-3-









 







paid in full and the Loan Agreement irrevocably terminated, the Guaranteed Parties will, at
Guarantor’s request, execute and deliver to Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by subrogation to Guarantor
of an interest in the Guaranteed Obligations resulting from such payment by Guarantor.



          SECTION 5. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



          SECTION 6. Amendments, Etc. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by the Guarantor therefrom shall in any event be effective unless the
same shall be in writing executed by the Administrative Agent and the Lenders.



          SECTION 7. Notices. All notices and other communications provided for hereunder
shall be given in the manner specified in the Loan Agreement (i) in the case of the Administrative
Agent, at the address specified for the Administrative Agent in the Loan Agreement, and (ii) in the
case of the Guarantor, at the address specified for the Guarantor in this Guaranty.



          SECTION 8. No Waiver; Remedies. No failure on the part of the Administrative Agent
or other Guaranteed Parties to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other right. No notice to or
demand on the Guarantor in any case shall entitle the Guarantor to any other further notice or
demand in any similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or other Guaranteed Parties to any other or further action in any
circumstances without notice or demand. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.



          SECTION 9. Right Of Set Off. In addition to and not in limitation of all rights of
offset that the Administrative Agent or other Guaranteed Party may have under applicable law, the
Administrative Agent or other Guaranteed Parties shall, upon the occurrence of any Event of Default
and whether or not the Administrative Agent or other Guaranteed Party has made any demand or the
Guaranteed Obligations are matured, have the right to appropriate and apply to the payment of the
Guaranteed Obligations, all deposits of the Guarantor (general or special, time or demand,
provisional or final) then or thereafter held by and other indebtedness or property then or
thereafter owing by the Administrative Agent or other Guaranteed Party to the Guarantor, whether or
not related to this Guaranty or any transaction hereunder.



          SECTION 10. Continuing Guaranty; Transfer Of Obligations. This Guaranty is a
continuing guaranty and shall (i) remain in full force and effect, until payment in full of the
Guaranteed Obligations all other amounts payable under this Guaranty and termination of the Loan
Agreement, (ii) be binding upon the Guarantor, its successors and



-4-









 







assigns, and (iii) inure to the benefit of and be enforceable by the Administrative Agent, for
the benefit of the Guaranteed Parties.



          SECTION 11. Governing Law; Appointment Of Agent For Service Of Process; Submission To
Jurisdiction; Waiver of Jury Trial.



          (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAW PRINCIPLES THEREOF).



          (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR OTHERWISE RELATED HERETO
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF THIS GUARANTY, THE GUARANTOR HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE
RIGHTS OF THE ADMINISTRATIVE AGENT AND OTHER GUARANTEED PARTIES WITH RESPECT TO THIS GUARANTY OR
ANY DOCUMENT RELATED HERETO. THE GUARANTOR HEREBY IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM,
111 8TH AVENUE, NEW YORK, NEW YORK 10011, AS THE DESIGNEE, APPOINTEE AND AGENT OF THE GUARANTOR TO
RECEIVE, FOR AND ON BEHALF OF THE GUARANTOR, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT RELATED HERETO AND SUCH SERVICE
SHALL BE DEEMED COMPLETED 30 DAYS AFTER MAILING THEREOF TO SAID AGENT. IT IS UNDERSTOOD THAT A
COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY MAIL TO THE GUARANTOR AT
ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF THE GUARANTOR TO RECEIVE SUCH COPY SHALL NOT, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. IF FOR ANY
REASON SERVICE OF PROCESS CANNOT PROMPTLY BE MADE ON EITHER SUCH LOCAL AGENT, THE GUARANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE BORROWER AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED THERETO.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY OTHER



-5-









 







MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
GUARANTOR IN ANY OTHER JURISDICTION.



          (c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR
THEREUNDER.



          (d) EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.7 OF THE LOAN AGREEMENT. NOTHING IN THIS
GUARANTY WILL AFFECT THE RIGHT OF ANY SUCH PARTY TO SERVE PROCESS IN ANY MANNER PERMITTED BY
APPLICABLE LAW.



          (E) EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION 11 OR OTHERWISE RELATING TO THE
CREDIT DOCUMENTS ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (EXCEPT, IN THE CASE OF
THE BORROWER’S OBLIGATION UNDER THE LOAN AGREEMENT TO INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED
PARTIES THEREUNDER, TO THE EXTENT ANY SUCH INDEMNIFIED PARTY IS FOUND LIABLE FOR SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES TO A THIRD PARTY).



          SECTION 12. [Reserved].



          SECTION 13. Judgment Currency. The Guarantor’s obligation hereunder to make payments
in the Obligation Currency shall not be discharged or satisfied by any tender or recovery pursuant
to any judgment expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective receipt by the
Guaranteed Parties of the full amount of the Obligation Currency expressed to be payable under this
Guaranty or the Loan Agreement. If for the purpose of obtaining or enforcing judgment against the
Guarantor in any court or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being hereinafter referred to as
the “Judgment Currency”) an amount due in the Obligation Currency, the conversion shall be made in
accordance with Section 10.18 of the Loan Agreement.



          SECTION 14. Automatic Acceleration in Certain Events. Upon the occurrence of an
Event of Default specified in Section 7.1(f) or (g) of the Loan Agreement, all Guaranteed
Obligations shall automatically become immediately due and payable by the Guarantor without notice
or other action on the part of the Administrative Agent or other Guaranteed Parties, and regardless
of whether payment of the Guaranteed Obligations by the



-6-









 







Borrower has then been accelerated. In addition, if any event of the types described in
Section 7.1(f) or (g) of the Loan Agreement should occur with respect to the Guarantor, then the
Guaranteed Obligations shall automatically become immediately due and payable by the Guarantor,
without notice or other action on the part of the Administrative Agent or other Guaranteed Parties,
and regardless of whether payment of the Guaranteed Obligations by the Borrower has then been
accelerated.



          SECTION 15. Maximum Obligations. (a) It is the intent of the Guarantor and the
Guaranteed Parties that the Guarantor’s maximum obligations hereunder shall be in, but not in
excess of:




          (i) in a case or proceeding commenced by or against the Guarantor under the Bankruptcy
Code on or within one year from the date on which any of the Guaranteed Obligations are
incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations (or
any other obligations of the Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against the Guarantor under (A) Section 548 of the Bankruptcy Code or (B) any
state fraudulent transfer or fraudulent conveyance act or statute applied in such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or




          (ii) in a case or proceeding commenced by or against the Guarantor under the Bankruptcy
Code subsequent to one year from the date on which any of the Guaranteed Obligations are
incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations (or
any other obligations of the Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against the Guarantor under any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of
the Bankruptcy Code; or




          (iii) in a case or proceeding commenced by or against the Guarantor under any law,
statute or regulation other than the Bankruptcy Code (including, without limitation, any
other bankruptcy, reorganization, arrangement, moratorium, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of the Guarantor to the
Guaranteed Parties) to be avoidable or unenforceable against the Guarantor under such law,
statute or regulation including, without limitation, any state fraudulent transfer or
fraudulent conveyance act or statute applied in any such case or proceeding.


(The substantive laws under which the possible avoidance or unenforceability of the Guaranteed
Obligations (or any other obligations of the Guarantor to the Guaranteed Parties) shall be
determined in any such case or proceeding shall hereinafter be referred to as the “Avoidance
Provisions”).





     (b) To the end set forth in Section 15(a), but only to the extent that the Guaranteed
Obligations would otherwise be subject to avoidance under the Avoidance Provisions if the
Guarantor is not deemed to have received valuable consideration, fair value or reasonably
equivalent value for the Guaranteed Obligations, or if the Guaranteed



-7-









 







Obligations would render the Guarantor insolvent, or leave the Guarantor with an
unreasonably small capital to conduct its business, or cause the Guarantor to have incurred
debts (or to have intended to have incurred debts) beyond its ability to pay such debts as
they mature, in each case as of the time any of the Guaranteed Obligations are deemed to
have been incurred under the Avoidance Provisions and after giving effect to rights of
contribution, indemnity and subrogation as between the Guarantor and the Borrower, the
maximum Guaranteed Obligations for which the Guarantor shall be liable hereunder shall be
reduced to that amount which, after giving effect thereto, would not cause the Guaranteed
Obligations (or any other obligations of the Guarantor to the Guaranteed Parties), as so
reduced, to be subject to avoidance under the Avoidance Provisions. This Section 15(b) is
intended solely to preserve the rights of the Guaranteed Parties hereunder to the maximum
extent that would not cause the Guaranteed Obligations of the Guarantor to be subject to
avoidance under the Avoidance Provisions, and neither the Guarantor nor any other Person
shall have any right or claim under this Section 15 as against the Guaranteed Parties that
would not otherwise be available to such Person under the Avoidance Provisions.



          SECTION 16. Indemnity and Subrogation. In addition to all such rights of indemnity
and subrogation as the Guarantor may have under applicable law (but subject to Section 4 hereof),
the Borrower agrees that (i) in the event a payment shall be made on behalf of the Borrower by the
Guarantor hereunder, the Borrower shall indemnify the Guarantor for the full amount of such payment
and the Guarantor shall be subrogated to the rights of the person to whom such payment shall have
been made to the extent of such payment, and (ii) in the event any assets of the Guarantor shall be
sold to satisfy a claim of any Guaranteed Party hereunder, the Borrower shall indemnify the
Guarantor in an amount equal to the greater of the book value or the fair market value of the
assets so sold.



          SECTION 17. Information. The Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower’s financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that the Guarantor assumes and incurs hereunder, and agrees that none
of the Guaranteed Parties will have any duty to advise any of the Guarantors of information known
to it or any of them regarding such circumstances or risks.



          SECTION 18. Representations and Warranties. The Guarantor represents and warrants to
each Guaranteed Party that all representations and warranties relating to it or any of its
Subsidiaries contained in Article 5 of the Loan Agreement are true and correct in all material
respects, in each case on and as of the Closing Date and immediately after giving effect to the
making of the Term Loans.



          SECTION 19. Survival of Agreement. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Guaranty, the Loan Agreement, the
making of the Loans, the execution and delivery of the Notes and the other Credit Documents.



          SECTION 20. Counterparts. This Guaranty and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by



-8-









 







different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall constitute but one
and the same instrument.



          SECTION 21. Currency of Payment. All payments to be made by the Guarantor hereunder
shall be made in the applicable currency as provided in Section 10.18 of the Loan Agreement and, in
the case of any required conversion of any currency, shall be determined, and the related amounts
calculated, in the manner provided in Section 10.18 of the Loan Agreement.



          SECTION 22. Termination of Guaranty. In addition to termination upon payment in full
of all of the Guaranteed Obligations (subject to the last sentence of Section 2 hereof), all
obligations of the Guarantor to the Guaranteed Parties hereunder shall terminate upon the delivery
by the Borrower to the Administrative Agent of a certificate stating that (i) the aggregate
principal amount of Indebtedness of all Subsidiaries outstanding pursuant to Section 6.11(j) and
(k) of the Loan Agreement, including Indebtedness of the Guarantor, is equal to or less than the
Subsidiary Debt Basket Amount, (ii) no Senior NDC Notes are outstanding and (iii) no Default or
Event of Default has occurred and is continuing. Upon compliance with the foregoing, the
Administrative Agent and the Lender shall provide written confirmation of such termination as may
be reasonably requested by the Guarantor.



[Signatures begin on the next page]




-9-









 








     IN WITNESS WHEREOF, the Guarantor and the Administrative Agent have caused this Guaranty to be
duly executed and delivered by their respective duly authorized officers as of the date first above
written.



	 	 	 	 	 	 	 
	Address for Notices:	 	NOBLE DRILLING CORPORATION	 	 
	 
	 	 	 	 	 	 
	13135 South Dairy Ashford
	 	 	 	 	 	 
	Suite 800

	 	By:	 	 	 	 
	Sugar Land, TX 77478

	 	 	 	 

Thomas L. Mitchell
Senior Vice President and

Chief Financial Officer
	 	 
	 
	 	 	 	 	 	 
	 	 	GOLDMAN SACHS CREDIT PARTNERS L.P.

(“Administrative Agent”)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






SECTION 16 OF THE

FOREGOING GUARANTY

ACKNOWLEDGED AND

AGREED TO:




NOBLE CORPORATION




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Thomas L. Mitchell

Senior Vice President and Chief Financial Officer	 	 






-10-









 





EXHIBIT 2.3




BORROWING REQUEST




                                        ,                     




Goldman Sachs Credit Partners L.P.,

as Administrative Agent

30 Hudson Street, 17th Floor

Jersey City, NJ 07302

Attention: Philip Green

Telecopy Number: 212-357-7570





			
	Re:	 	Short-Term Loan Agreement (the “Loan Agreement”) to be dated as of July 24, 2007, among NOBLE
CORPORATION (the “Borrower”), a Cayman Islands exempted company limited by shares, the lenders
from time to time parties thereto (each a “Lender” and collectively, the “Lenders”), GOLDMAN
SACHS CREDIT PARTNERS L.P., as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”).




This Borrowing Request is delivered to you pursuant to Section 2.3 of the Loan Agreement.
Capitalized terms used in this Borrowing Request that are defined in the Loan Agreement are used
herein with the respective meanings specified for such capitalized terms in the Loan Agreement.




I. NEW BORROWINGS




     The Borrower hereby gives you notice pursuant to Section 2.3 of the Loan Agreement that it requests
a Borrowing under the Loan Agreement, and in that connection sets forth below the terms on which
such Borrowing is requested to be made:



	 	 	 	 	 
	(A)

	 	Type
	 	                                        
	 
	 	 	 	 
	(B)

	 	Date of Borrowing (which must be a Business Day)
	 	                                        
	 
	 	 	 	 
	(C)

	 	Funds are requested to be disbursed to the Borrower at:
	 	                                        
	 
	 	 	 	 
	 

	 	     Bank Name:
	 	                                        
	 
	 	 	 	 
	 

	 	     Bank Address:
	 	                                        
	 
	 	 	 	 
	 

	 	     Account Number:
	 	                                        
	 
	 	 	 	 
	(D)

	 	Principal Amount of
Borrowing
	 	                                        
	 
	 	 	 	 
	(E)

	 	Interest Period
	 	                                        






 









 





II. CONTINUATIONS AND CONVERSIONS OF BORROWINGS



The Borrower requests the following outstanding Borrowing comprised of Adjusted LIBOR Loans be
continued or converted to Borrowing(s) comprised of Base Rate Loans, as follows:




	 	 	 	 	 
	(A)

	 	Expiration date of current Interest Period
	 	                                        
	 
	 	 	 	 
	(B)

	 	Aggregate amount of outstanding Borrowing
	 	                                        
	 
	 	 	 	 
	(C)

	 	Aggregate amount to be converted to Base Rate Loans
	 	                                        
	 
	 	 	 	 
	(D)

	 	Aggregate amount to be continued as Adjusted LIBOR Loans
	 	                                        
	 
	 	 	 	 
	(E)

	 	Interest Period
	 	                                        





The Borrower requests the following outstanding Borrowing comprised of Base Rate Loans be converted
to a Borrowing comprised of Adjusted LIBOR Loans, as follows:




	 	 	 	 	 
	(A)

	 	Date of Conversion
	 	                                        
	 
	 	 	 	 
	(B)

	 	Aggregate amount to be converted to Adjusted LIBOR Loans
	 	                                        
	 
	 	 	 	 
	(C)

	 	Interest Period
	 	                                        





The Borrower hereby represents and warrants to the Lenders that, as of the date of this Borrowing
and after giving effect to such Borrowing, no Default or Event of Default will exist under the
terms of the Loan Agreement. Regardless of whether or not the Loan Agreement is entered into or
the funding thereunder is consummated, the Borrower agrees to reimburse each Lender for any loss or
expense that such Lender sustains or incurs as a consequence of or in connection with the failure
of the Borrower to borrow any Term Loan on the date identified as the date of Borrowing hereunder.




	 	 	 	 	 
	 	NOBLE CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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EXHIBIT 2.8




NOTE

(Master Note)




			
	 	 	 
	U.S.$                                        
	 	                    , ___






     FOR VALUE RECEIVED, the undersigned NOBLE CORPORATION, a Cayman Islands exempted company
limited by shares (the “Borrower”), unconditionally promises to pay to the order of
                     (herein, together with any subsequent holder hereof, referred to as the “Lender”)
for the account of its applicable Lending Office, at the payment office of the Administrative Agent
(as hereinafter defined) on or before the Maturity Date (as defined in the Loan Agreement
hereinafter described) the principal sum of                                          DOLLARS (U.S.$                    ) or, if
less, the aggregate unpaid principal amount of all Loans made by the Lender to the Borrower
pursuant to the Loan Agreement, together with interest accrued thereon, in each case as provided in
the Loan Agreement. The Borrower agrees to make payments and any required prepayments of principal
on the dates and in the amounts specified in the Loan Agreement in strict accordance with the terms
thereof. The Borrower likewise agrees to pay interest on the outstanding principal amount hereof,
at such interest rates, payable at such times, and computed in such manner, as are specified in the
Loan Agreement in strict accordance with the terms thereof. All remaining principal and accrued
interest then outstanding under this Note shall be due and payable in full on the Maturity Date.
All payments of principal and interest hereunder in respect of each Loan shall be made in
immediately available funds in the respective currency in which principal and interest on such Loan
are payable as provided in the Loan Agreement.



     The Lender shall record all Loans made by the Lender to the Borrower pursuant to the Loan
Agreement, and all payments of principal thereof, and, prior to any transfer hereof, shall endorse
such Loan and payments on the schedule annexed hereto and made a part hereof, or on any
continuation thereof which shall be attached hereto and made a part hereof, which endorsement shall
constitute prima facie evidence of the accuracy of the information so endorsed;
provided, however, that delay or failure of the Lender to make any such endorsement or recordation
shall not affect the obligations of the Borrower hereunder or under the Loan Agreement with respect
to the Loans evidenced hereby.



     It is the intention of the Lender to conform strictly to usury laws applicable to it.
Accordingly, if the transactions contemplated hereby or the Loans represented hereby would be
usurious as to the Lender under laws applicable to it (including the laws of the United States of
America and the State of New York or any other jurisdiction whose laws may be mandatorily
applicable to the Lender notwithstanding the other provisions of this Note or the Loan Agreement),
then, in that event, notwithstanding anything to the contrary in this Note, the Loan Agreement or
any other instrument or agreement entered into in connection with this Note, it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest under laws applicable to
the Lender that is contracted for, taken, reserved, charged or received by the Lender under this
Note, the Loan Agreement, or under any of the aforesaid agreements or instruments entered into in
connection with this Note or otherwise shall under no circumstances exceed the



 









 







Highest Lawful Rate, and any excess shall be credited by the Lender on the principal amount of this
Note (or, if the principal amount of this Note shall have been paid in full, refunded by the Lender
to the Borrower); and (ii) in the event that the maturity of this Note is accelerated by reason of
an election of the holder or holders hereof resulting from any Event of Default under the Loan
Agreement or otherwise, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest under laws applicable to the Lender may never include more
than the Highest Lawful Rate, and excess interest, if any, provided for in this Note, the Loan
Agreement or otherwise shall be automatically canceled by the Lender as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited by the Lender on the
principal amount of this Note (or if the principal amount of this Note shall have been paid in
full, refunded by the Lender to the Borrower), and in each case, to the extent permitted by
applicable law, the Lender shall not be subject to any of the penalties provided by law for
contracting for, taking, reserving, charging or receiving interest in excess of the Highest Lawful
Rate.



     “Highest Lawful Rate” shall mean the maximum nonusurious interest rate, if any, that any time
or from time to time may be contracted for, taken, reserved, charged or received on any Loans,
under laws applicable to any of the Lenders which are presently in effect or, to the extent allowed
by applicable law, under such laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow. Determination of the rate of
interest for the purpose of determining whether any Loans are usurious under all applicable laws
shall be made by amortizing, prorating, allocating, and spreading, in equal parts during the period
of the full stated term of the Loans, all interest at any time contracted for, taken, reserved,
charged or received from the Borrower in connection with the Loans.



     This Note is one of the Notes referred to in, and is subject to and entitled to the benefits
of, that certain Short-Term Loan Agreement dated as of July 24, 2007 (as the same may be amended,
supplemented, and restated from time to time, the “Loan Agreement”), entered into by and among
Noble Corporation, the Lenders, and GOLDMAN SACHS CREDIT PARTNERS L.P., as administrative agent for
the Lenders (in such capacity, the “Administrative Agent”). Reference is hereby made to the Loan
Agreement for a statement of the prepayment rights and obligations of the Borrower and for a
statement of the terms and conditions under which the due date of this Note may be accelerated.
Capitalized terms not otherwise defined in this Note that are defined in the Loan Agreement are
used in this Note with the respective meanings assigned to such capitalized terms in the Loan
Agreement as provided in the Loan Agreement.



     Upon the occurrence and during the continuance of any Event of Default as specified in the
Loan Agreement, the principal balance hereof and the interest accrued hereon may be declared to be
forthwith due and payable in accordance with the Loan Agreement. The Borrower agrees to pay, and
indemnify the Lender against any liability for the payment of, all reasonable costs and expenses
(including reasonable attorneys’ fees) arising in connection with the enforcement by the Lender of
any of its rights under this Note or the Loan Agreement as provided in the Loan Agreement.



     All parties hereto, whether as makers, endorsees, or otherwise, severally waive presentment
for prepayment, demand, protest, notice of intent to accelerate, notice of



-2-









 







acceleration, notice of dishonor and all other notices whatsoever in respect of this Note. TIME IS
OF THE ESSENCE OF THIS NOTE.



     THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.



     IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered by its duly
authorized officer as of the date first above written.



	 	 	 	 	 	 	 
	 	 	NOBLE CORPORATION, a Cayman Islands

exempted company limited by shares	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






-3-









 





LOANS AND PRINCIPAL PAYMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of Principal	 	 	 	 	 	 
	Date	 	Loan	 	Repaid	 	Unpaid Principal Balance	 	 	 	 
	 	 	 	 	Adjusted	 	 	 	Adjusted	 	 	 	 	 	 	 	Notation
	 	 	Base Rate	 	LIBOR	 	Base Rate	 	LIBOR	 	Base Rate	 	Adjusted LIBOR	 	Total	 	Made by
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 





 









 





EXHIBIT 6.6




COMPLIANCE CERTIFICATE




          NOBLE CORPORATION, a Cayman Islands exempted company limited by shares (the “Borrower”),
Goldman Sachs Credit Partners L.P., as Administrative Agent for the Lenders, and the Lenders
parties thereto, executed and delivered that certain Short-Term Loan Agreement dated as of July 24,
2007 (as amended, supplemented and restated from time to time, the “Loan Agreement”). Any
capitalized term defined in the Loan Agreement and used in this Compliance Certificate shall have
the meaning given to it in the Loan Agreement.



The undersigned, solely in his/her capacity as chief financial officer or other financial officer
(as noted below) of the Borrower, hereby certifies to the Lenders that:





	A.	 	The attached financial statements are unaudited quarterly financial statements or copy of the
Borrower’s form 10-Q as filed with the SEC and fairly present in all material respects on a
consolidated basis the financial condition of the Borrower and its Subsidiaries (excluding the
effects of any SPV’s other than the aggregate equity investment therein) as of the date
indicated and the results of their operations and changes in their cash flows for the periods
indicated, and have been prepared in accordance with GAAP, subject to normal year-end audit
adjustments for any such financial statements that are quarterly financial statements and
other than information and note disclosures that have been condensed or omitted pursuant to
the rules and regulations of the SEC.
	 
	B.	 	Check either 1 or 2





     [   ] 1. As of the date hereof, no Default or Event of Default has occurred and is
continuing.



     [   ] 2. As of the date hereof, no Default or Event of Default has occurred and is
continuing except the following matters: [Describe all such Defaults or Events of Default,
specifying the nature, duration and status thereof and what action the Borrower has taken or
proposes to take with respect thereto].



THIS CERTIFICATE MADE AND DELIVERED THIS ____ DAY OF ___ _____.




	 	 	 	 	 	 	 
	 	 	NOBLE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






 









 





EXHIBIT 6.11




SUBSIDIARY GUARANTY AGREEMENT




          THIS SUBSIDIARY GUARANTY AGREEMENT (this “Guaranty”), dated as of                                         ,                     ,
made by each of the undersigned Subsidiaries of Noble Corporation, a Cayman Islands exempted
company limited by shares (the “Borrower”; each undersigned Subsidiary of the Borrower being herein
referred to individually as a “Guarantor” and collectively as the “Guarantors”), in favor of
Goldman Sachs Credit Partners L.P., in its capacity as administrative agent (the “Administrative
Agent”) and Lender (the “Lender”) under the terms of the Loan Agreement (the Lender and the
Administrative Agent being collectively referred to herein as the “Guaranteed Parties”);



WITNESSETH:




          WHEREAS, the Borrower, the Lenders and the Administrative Agent have entered into a certain
Short-Term Loan Agreement dated as of July 24, 2007 (as the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time, and including all schedules,
riders, and supplements thereto, the “Loan Agreement”; terms defined therein and not otherwise
defined herein being used herein as therein defined);



          WHEREAS, the Borrower owns, directly or indirectly, all or a majority of all outstanding
capital stock or other equity interests of each Guarantor;



          WHEREAS, it is a requirement under Section 6.11(k) of the Loan Agreement that each Guarantor
execute and deliver this Guaranty, and each Guarantor desires to execute and deliver this Guaranty
to satisfy such requirement; and



          WHEREAS, this Guaranty and the obligation of each Guarantor shall remain in full force and
effect until termination of this Guaranty as provided in Section 23 below or as otherwise provided
in Section 10(i) below;



          NOW, THEREFORE, in consideration of the premises and in order to satisfy the requirements of
the Loan Agreement, and for Ten Dollars ($10.00) and other good and valuable consideration, each
Guarantor hereby jointly and severally agrees as follows:



          SECTION 1. Guaranty. Subject to Section 23 below, each Guarantor hereby jointly and
severally, irrevocably and unconditionally, guarantees the punctual payment when due, in lawful
money of the United States of America (the “Obligation Currency”), whether at stated maturity, by
acceleration or otherwise, of the Loans and all other Obligations owing by the Borrower to the
Lenders and the Administrative Agent, or either of them, under the Loan Agreement, the Notes, and
the other Credit Documents, including all renewals, extensions, modifications and refinancings
thereof, now or hereafter owing, whether for principal, interest,



 









 







fees, expenses or otherwise, and any and all reasonable out-of-pocket expenses (including
reasonable attorneys’ fees and expenses) incurred by the Lenders or the Administrative Agent in
enforcing any rights under this Guaranty (collectively, the “Guaranteed Obligations”), including
without limitation, all interest which, but for the filing of a petition in bankruptcy, would
accrue on any principal portion of the Guaranteed Obligations. Any and all payments by each
Guarantor hereunder shall be made in the Obligation Currency free and clear of and without
deduction for any set-off, counterclaim, or withholding so that, in each case, each Guaranteed
Party will receive, after giving effect to any Indemnified Taxes (as such term is defined in the
Loan Agreement), the full amount, in the Obligation Currency, that it would otherwise be entitled
to receive with respect to the Guaranteed Obligations (but without duplication of amounts for
Indemnified Taxes already included in the Guaranteed Obligations). Each Guarantor acknowledges and
agrees that this is a guarantee of payment when due, and not of collection, and that this Guaranty
may be enforced up to the full amount of the Guaranteed Obligations without proceeding against the
Borrower, against any security for the Guaranteed Obligations, against any other Guarantor or under
any other guaranty covering any portion of the Guaranteed Obligations.



          SECTION 2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Credit Documents, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of any Guaranteed Party with respect thereto. Subject to Section 23
below, the liability of each Guarantor under this Guaranty shall be absolute and unconditional in
accordance with its terms and shall remain in full force and effect without regard to, and shall
not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation, the following (whether or not such Guarantor
consents thereto or has notice thereof):




     (a) any change in the time, place or manner of payment of, or in any other term of, all
or any of the Guaranteed Obligations, any waiver, indulgence, renewal, extension, amendment
or modification of or addition, consent or supplement to or deletion from or any other
action or inaction under or in respect of the Loan Agreement or the other Credit Documents,
or any other documents, instruments or agreements relating to the Guaranteed Obligations or
any other instrument or agreement referred to therein or any assignment or transfer of any
thereof;




     (b) any lack of validity or enforceability of the Loan Agreement or the other Credit
Documents, or any other document, instrument or agreement referred to therein or any
assignment or transfer of any thereof;




     (c) any furnishing to the Guaranteed Parties of any additional security for the
Guaranteed Obligations, or any sale, exchange, release or surrender of, or realization on,
any security for the Guaranteed Obligations;




     (d) any settlement or compromise of any of the Guaranteed Obligations, any security
therefor, or any liability of any other party with respect to the Guaranteed



-2-









 







Obligations, or any subordination of the payment of the Guaranteed Obligations to the
payment of any other liability of the Borrower;




     (e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Guarantor or the Borrower, or any
action taken with respect to this Guaranty by any trustee or receiver, or by any court, in
any such proceeding;




     (f) any nonperfection of any security interest or lien on any collateral, or any
amendment or waiver of or consent to departure from any guaranty or security, for all or any
of the Guaranteed Obligations;




     (g) any application of sums paid by the Borrower or any other Person with respect to
the liabilities of the Borrower to the Guaranteed Parties, regardless of what liabilities of
the Borrower remain unpaid;




     (h) any act or failure to act by any Guaranteed Party which may adversely affect a
Guarantor’s subrogation rights, if any, against the Borrower to recover payments made under
this Guaranty; and




     (i) any other circumstance which might otherwise constitute a defense available to, or
a discharge of, any Guarantor.


If claim is ever made upon any Guaranteed Party for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guaranteed Obligations, and any Guaranteed Party
repays all or part of said amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over the Guaranteed Party or any of its property, or (b)
any settlement or compromise of any such claim effected by the Guaranteed Party with any such
claimant (including the Borrower or a trustee in bankruptcy for the Borrower), then and in such
event each Guarantor agrees that any such judgment, decree, order, settlement or compromise shall
be binding on it, notwithstanding any revocation hereof or the cancellation of the Loan Agreement,
the other Credit Documents, or any other instrument evidencing any liability of the Borrower, and
each Guarantor shall be and remain liable to the Guaranteed Party for the amounts so repaid or
recovered to the same extent as if such amount had never originally been paid to the Guaranteed
Party.




          SECTION 3. Waiver. Each Guarantor hereby waives notice of acceptance of this
Guaranty, notice of any liability to which it may apply, and further waive presentment, demand of
payment, protest, notice of dishonor or nonpayment of any such liabilities, suit or taking of other
action by the Guaranteed Parties against, and any other notice to, the Borrower or any other party
liable with respect to the Guaranteed Obligations (including the Guarantors or any other Person
executing a guaranty of the obligations of the Borrower).



          SECTION 4. Subrogation. No Guarantor will exercise any rights against the Borrower
which it may acquire by way of subrogation or contribution, by any payment made hereunder or
otherwise, until all the Guaranteed Obligations shall have been



-3-









 







irrevocably paid in full and the Loan Agreement shall have been irrevocably terminated. If
any amount shall be paid to a Guarantor on account of such subrogation or contribution rights at
any time when all the Guaranteed Obligations shall not have been paid in full, or the Loan
Agreement shall not have been irrevocably terminated, such amount shall be held in trust for the
benefit of the Guaranteed Parties and shall forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations, whether matured or unmatured, in accordance
with the terms of the Loan Agreement. If (i) a Guarantor shall make payment to the Guaranteed
Parties of all or any part of the Guaranteed Obligations and (ii) all the Guaranteed Obligations
shall be irrevocably paid in full and the Loan Agreement irrevocably terminated, the Guaranteed
Parties will, at such Guarantor’s request, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting
from such payment by such Guarantor.



          SECTION 5. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



          SECTION 6. Amendments, Etc. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by a Guarantor therefrom shall in any event be effective unless the
same shall be in writing executed by the Administrative Agent and the Lenders.



          SECTION 7. Notices. All notices and other communications provided for hereunder shall
be given in the manner specified in the Loan Agreement (i) in the case of the Administrative Agent,
at the address specified for the Administrative Agent in the Loan Agreement, and (ii) in the case
of the Guarantors, at the respective addresses specified for such Guarantors in this Guaranty.



          SECTION 8. No Waiver; Remedies. No failure on the part of the Administrative Agent or
other Guaranteed Parties to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. No notice to or demand on
any Guarantor in any case shall entitle such Guarantor to any other further notice or demand in any
similar or other circumstances or constitute a waiver of the rights of the Administrative Agent or
other Guaranteed Parties to any other or further action in any circumstances without notice or
demand. The remedies herein provided are cumulative and not exclusive of any remedies provided by
law.



          SECTION 9. Right Of Set Off. In addition to and not in limitation of all rights of
offset that the Administrative Agent or other Guaranteed Parties may have under applicable law, the
Administrative Agent or other Guaranteed Parties shall, upon the occurrence of any Event of Default
and whether or not the Administrative Agent or other Guaranteed Parties have made any demand or the
Guaranteed Obligations are matured, have the right to appropriate



-4-









 






and apply to the payment of the Guaranteed Obligations, all deposits of any Guarantor (general or
special, time or demand, provisional or final) then or thereafter held by and other indebtedness or
property then or thereafter owing by the Administrative Agent or other Guaranteed Parties to any
Guarantor, whether or not related to this Guaranty or any transaction hereunder.



          SECTION 10. Continuing Guaranty; Transfer Of Obligations. This Guaranty is a
continuing guaranty and shall (i) remain in full force and effect, subject to Section 23 below,
until payment in full of the Guaranteed Obligations and all other amounts payable under this
Guaranty and the termination of the Loan Agreement, (ii) be binding upon each Guarantor, its
successors and assigns, and (iii) inure to the benefit of and be enforceable by the Administrative
Agent, for the benefit of the Guaranteed Parties.



          SECTION 11. Governing Law; Appointment Of Agent For Service Of Process; Submission To
Jurisdiction; Waiver of Jury Trial.



          (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAW PRINCIPLES THEREOF).



          (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR OTHERWISE RELATED HERETO
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF THIS GUARANTY, EACH GUARANTOR HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE
RIGHTS OF THE ADMINISTRATIVE AGENT AND OTHER GUARANTEED PARTIES WITH RESPECT TO THIS GUARANTY OR
ANY DOCUMENT RELATED HERETO. EACH GUARANTOR HEREBY IRREVOCABLY DESIGNATES EACH OF      
        
            , AND        
                  
               , AS THE DESIGNEE, APPOINTEE A
ND AGENT OF SUCH GUARANTOR TO RECEIVE, FOR AND ON BEHALF OF SUCH GUARANTOR, SERVICE OF PROCESS IN SUCH JURISDICTION
IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT RELATED HERETO AND
SUCH SERVICE SHALL BE DEEMED COMPLETED 30 DAYS AFTER MAILING THEREOF TO SAID AGENT. IT IS
UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY MAIL TO
THE RESPECTIVE GUARANTOR AT ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF SUCH GUARANTOR TO
RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AFFECT IN ANY WAY THE
SERVICE OF SUCH PROCESS. IF FOR ANY REASON SERVICE OF PROCESS CANNOT PROMPTLY BE MADE ON EITHER
SUCH LOCAL AGENT, EACH GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE



-5-









 







PREPAID, TO THE BORROWER AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER
JURISDICTION.



          (c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR
THEREUNDER.



          (d) EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.7 OF THE LOAN AGREEMENT. NOTHING IN THIS
GUARANTY WILL AFFECT THE RIGHT OF ANY SUCH PARTY TO SERVE PROCESS IN ANY MANNER PERMITTED BY
APPLICABLE LAW.



          (e) EACH OF THE GUARANTORS AND THE GUARANTEED PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION 11 OR OTHERWISE RELATING TO THE
CREDIT DOCUMENTS ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (EXCEPT, IN THE CASE OF
THE BORROWER’S OBLIGATION UNDER THE LOAN AGREEMENT TO INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED
PARTIES THEREUNDER, TO THE EXTENT ANY SUCH INDEMNIFIED PARTY IS FOUND LIABLE FOR SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES TO A THIRD PARTY). .



          SECTION 12. [INTENTIONALLY OMITTED]



          SECTION 13. Judgment Currency. Each Guarantor’s obligation hereunder to make payments
in the Obligation Currency shall not be discharged or satisfied by any tender or recovery pursuant
to any judgment expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective receipt by the
Guaranteed Parties of the full amount of the Obligation Currency expressed to be payable under this
Guaranty or the Loan Agreement. If for the purpose of obtaining or enforcing judgment against any
Guarantor in any court or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency



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(such other currency being hereinafter referred to as the “Judgment Currency”) an amount due
in the Obligation Currency, the conversion shall be made in accordance with Section 10.18 of the
Loan Agreement.



          SECTION 14. Automatic Acceleration in Certain Events. Upon the occurrence of an Event
of Default specified in Section 7.1(f) or (g) of the Loan Agreement, all Guaranteed Obligations
shall automatically become immediately due and payable by the Guarantors, without notice or other
action on the part of the Administrative Agent or other Guaranteed Parties, and regardless of
whether payment of the Guaranteed Obligations by the Borrower has then been accelerated. In
addition, if any event of the types described in Section 7.1(f) or (g) of the Loan Agreement should
occur with respect to any Guarantor that is a Significant Subsidiary, then the Guaranteed
Obligations shall automatically become immediately due and payable by such Guarantor, without
notice or other action on the part of the Administrative Agent or other Guaranteed Parties, and
regardless of whether payment of the Guaranteed Obligations by the Borrower has then been
accelerated.



          SECTION 15. Maximum Obligations. (a) It is the intent of each Guarantor and the
Guaranteed Parties that each Guarantor’s maximum obligations hereunder shall be in, but not in
excess of:




          (i) in a case or proceeding commenced by or against such Guarantor under the Bankruptcy
Code on or within one year from the date on which any of the Guaranteed Obligations are
incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations (or
any other obligations of such Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against such Guarantor under (A) Section 548 of the Bankruptcy Code or (B) any
state fraudulent transfer or fraudulent conveyance act or statute applied in such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or




          (ii) in a case or proceeding commenced by or against such Guarantor under the
Bankruptcy Code subsequent to one year from the date on which any of the Guaranteed
Obligations are incurred, the maximum amount which would not otherwise cause the Guaranteed
Obligations (or any other obligations of such Guarantor to the Guaranteed Parties) to be
avoidable or unenforceable against such Guarantor under any state fraudulent transfer or
fraudulent conveyance act or statute applied in any such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or




          (iii) in a case or proceeding commenced by or against such Guarantor under any law,
statute or regulation other than the Bankruptcy Code (including, without limitation, any
other bankruptcy, reorganization, arrangement, moratorium, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor to
the Guaranteed Parties) to be avoidable or unenforceable against such Guarantor under such
law, statute or regulation including, without limitation, any state fraudulent transfer or
fraudulent conveyance act or statute applied in any such case or proceeding.



-7-









 




(The substantive laws under which the possible avoidance or unenforceability of the Guaranteed
Obligations (or any other obligations of such Guarantor to the Guaranteed Parties) shall be
determined in any such case or proceeding shall hereinafter be referred to as the “Avoidance
Provisions”).





     (b) To the end set forth in Section 15(a), but only to the extent that the Guaranteed
Obligations would otherwise be subject to avoidance under the Avoidance Provisions if such
Guarantor is not deemed to have received valuable consideration, fair value or reasonably
equivalent value for the Guaranteed Obligations, or if the Guaranteed Obligations would
render such Guarantor insolvent, or leave such Guarantor with an unreasonably small capital
to conduct its business, or cause such Guarantor to have incurred debts (or to have intended
to have incurred debts) beyond its ability to pay such debts as they mature, in each case as
of the time any of the Guaranteed Obligations are deemed to have been incurred under the
Avoidance Provisions and after giving effect to rights of contribution, indemnity and
subrogation as among Guarantors and the Borrower, the maximum Guaranteed Obligations for
which such Guarantor shall be liable hereunder shall be reduced to that amount which, after
giving effect thereto, would not cause the Guaranteed Obligations (or any other obligations
of such Guarantor to the Guaranteed Parties), as so reduced, to be subject to avoidance
under the Avoidance Provisions. This Section 15(b) is intended solely to preserve the
rights of the Guaranteed Parties hereunder to the maximum extent that would not cause the
Guaranteed Obligations of any Guarantor to be subject to avoidance under the Avoidance
Provisions, and neither such Guarantor nor any other Person shall have any right or claim
under this Section 15 as against the Guaranteed Parties that would not otherwise be
available to such Person under the Avoidance Provisions.



          SECTION 16. Indemnity, Contribution, and Subrogation.




          (a) In addition to all such rights of indemnity and subrogation as each Guarantor may have
under applicable law (but subject to Section 4 hereof), the Borrower agrees that (i) in the event a
payment shall be made on behalf of the Borrower by any Guarantor hereunder, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated
to the rights of the person to whom such payment shall have been made to the extent of such
payment, and (ii) in the event any assets of any Guarantor shall be sold to satisfy a claim of any
Guaranteed Party hereunder, the Borrower shall indemnify such Guarantor in an amount equal to the
greater of the book value or the fair market value of the assets so sold.



          (b) Each Guarantor (a “Contributing Guarantor”) agrees (subject to Section 4 hereof), that, in
the event a payment shall be made by any other Guarantor hereunder, or assets of any other
Guarantor shall be sold to satisfy a claim of any Guaranteed Party hereunder, and such other
Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the Borrower as
provided in paragraph (a) above, each Contributing Guarantor shall indemnify each Claiming
Guarantor in an amount equal to the amount of such payment or the greater of the book value or the
fair market value of such assets, as the case may be, in each case multiplied by a



-8-









 







fraction of which the numerator shall be the net worth of such Contributing Guarantor on the
date hereof and the denominator shall be the aggregate net worth of the Borrower and all of the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to
Section 22, the date of the Supplement hereto executed and delivered by such Guarantor). Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this paragraph (b)
shall be subrogated to the rights of such Claiming Guarantor under paragraph (a) above to the
extent of such payment. As used herein, the term “net worth” shall mean, as at any date of
determination, the consolidated shareholders’ equity of the Borrower and the Guarantors, as
determined in each case on a consolidated basis in accordance with GAAP.



          SECTION 17. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower’s financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Guaranteed Parties will have any duty to advise any of the Guarantors of information
known to it or any of them regarding such circumstances or risks.



          SECTION 18. Representations and Warranties. Each Guarantor represents and warrants as
to itself that all representations and warranties relating to it contained in Article 5 of the Loan
Agreement are true and correct, in each case on and as of the Closing Date and immediately after
giving effect to the making of the Term Loans.



          SECTION 19. Survival of Agreement. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Guaranty, the Loan Agreement, the
making of the Loans, and the execution and delivery of the Notes and the other Credit Documents.



          SECTION 20. Counterparts. This Guaranty and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be deemed an original,
but all such counterparts together shall constitute but one and the same instrument.



          SECTION 21. Currency of Payment. All payments to be made by each Guarantor hereunder
shall be made in the applicable currency as provided in Section 10.18 of the Loan Agreement and, in
the case of any required conversion of any currency, shall be determined, and the related amounts
calculated, in the manner provided in Section 10.18 of the Loan Agreement.



          SECTION 22. Additional Guarantors. Upon execution and delivery by any Subsidiary of
the Borrower of an instrument in the form of Annex 1, such Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named a Guarantor herein (each
an “Additional Guarantor”). The execution and delivery of any such instrument shall not require
the consent of any Guarantor hereunder. The rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any Additional Guarantor as a
party to this Guaranty.



-9-









 





          SECTION 23. Termination of Guaranty. In addition to termination upon payment in full
of all of the Guaranteed Obligations (subject to the last sentence of Section 2 hereof), all
obligations of each Guarantor to the Guaranteed Parties hereunder shall terminate upon the delivery
by the Borrower to the Administrative Agent of a certificate stating that (i) the aggregate
principal amount of Indebtedness of all Subsidiaries outstanding pursuant to Section 6.11(j) and
(k) of the Loan Agreement is equal to or less than the Subsidiary Debt Basket Amount, and (ii) no
Default or Event of Default has occurred and is continuing. Upon compliance with the foregoing,
the Administrative Agent and the Lender shall provide written confirmation of such termination as
may be reasonably requested by such Guarantor.



-10-









 





          IN WITNESS WHEREOF, each Guarantor and the Administrative Agent have caused this Guaranty to
be duly executed and delivered by their respective duly authorized officers as of the date first
above written.




	 	 	 	 	 	 	 
	Address for Notices:

	 	[NAME
OF GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	                                                            
	 	 	 	 	 	 
	                                                            
	 	 	 	 	 	 
	                                                            

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	GOLDMAN SACHS CREDIT PARTNERS L.P.

(“Administrative Agent”)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 16 OF THE 

FOREGOING GUARANTY 

ACKNOWLEDGED AND 

AGREED TO:
	 	 	 	 	 	 






	 	 	 	 	 
	NOBLE CORPORATION	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 






-11-








 





ANNEX I




FORM OF GUARANTY SUPPLEMENT




                                        , 20____




     THIS GUARANTY SUPPLEMENT is made as of [date] (this “Supplement”) and is delivered
pursuant to that certain Subsidiary Guaranty Agreement dated as of [date] (as it may be amended,
supplemented or otherwise modified, the “Guaranty”; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by the Guarantors party thereto in
favor of the Guaranteed Parties.



     1. Guaranty. Pursuant to Section 22 of the Guaranty, the undersigned hereby:



     (a) agrees that this Supplement may be attached to the Guaranty and that by the execution and
delivery hereof, the undersigned becomes a Guarantor under the Guaranty and the Credit Documents
and agrees to be bound by all of the terms thereof;



     (b) represents and warrants that each of the representations and warranties set forth in the
Guaranty, the Loan Agreement and each other Credit Document and applicable to the undersigned is
true and correct both before and after giving effect to this Supplement, except to the extent that
any such representation and warranty relates solely to any earlier date, in which case such
representation and warranty is true and correct as of such earlier date;



     (c) no event has occurred or is continuing as of the date hereof, or will result from the
transactions contemplated hereby on the date hereof, that would constitute an Event of Default or a
Default; and



     (d) agrees to absolutely and unconditionally guarantee, as a guaranty of payment and
performance and not merely as a guaranty of collection, prompt payment when due, whether at stated
maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times
thereafter, of any and all Guaranteed Obligations as provided by Section 1 of the Guaranty.



     2. Further Assurances. The undersigned agrees from time to time, upon request of the
Administrative Agent, to take such additional actions and to execute and deliver such additional
documents and instruments as the Administrative Agent may request to effect the transactions
contemplated by, and to carry out the intent of, this Supplement. Any notice or other
communication herein required or permitted to be given shall be given in pursuant to Section 7 of
the Guaranty, and for all purposes thereof, the notice address of the undersigned shall be the
address as set forth on the signature page hereof.



     THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF).



 









 





     Executed as of the date first written above.



	 	 	 	 	 	 	 
	 	 	[NAME OF SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Attention:	 	 	 	 
	 

	 	Telephone:
	 	 

	 	 
	 

	 	Telecopy:
	 	 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 
	ACKNOWLEDGED AND ACCEPTED,

as of the date above first written:	 	 
	 
	 	 	 	 
	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	NOBLE CORPORATION	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 






-2-









 






EXHIBIT 10.10




ASSIGNMENT AGREEMENT




     THIS ASSIGNMENT AGREEMENT (this “Agreement”) dated as of , ___, is by and among (the
“Assignor”),                                          (the “Assignee”), NOBLE CORPORATION, a Cayman Islands exempted
company limited by shares (the “Borrower”), and GOLDMAN SACHS CREDIT PARTNERS L.P., as
Administrative Agent (in such capacity, the “Administrative Agent”) for the Lenders (as hereinafter
defined).



WITNESSETH:




     WHEREAS, the Borrower, the Assignor, and the Administrative Agent are parties to that certain
Short-Term Loan Agreement dated as of July 24, 2007, by and among the Borrower, the lenders from
time parties thereto (collectively, the “Lenders”), including the Assignor as one such Lender, and
the Administrative Agent (as the same may be amended, supplemented and restated from time to time,
the “Loan Agreement”); and



     WHEREAS, the Assignor proposes to sell and assign to the Assignee, and the Assignee proposes
to buy and accept from the Assignor, the interests set forth on Schedule I attached hereto
in the Assignor’s rights and obligations set forth under the Loan Agreement, including without
limitation, the amount and percentage set forth on Schedule I of (i) the Commitment of the
Assignor on the Assignment Date, and (ii) the Loans owing to the Assignor that are outstanding on
the Assignment Date (collectively, the “Assigned Interest”);



     NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein,
the parties hereto agree as follows:




	1.	 	DEFINITIONS. ANY CAPITALIZED TERM DEFINED IN THE LOAN AGREEMENT AND USED IN THIS AGREEMENT
SHALL HAVE THE MEANING ASCRIBED TO IT IN THE LOAN AGREEMENT. SECTION 1.1 OF THE LOAN
AGREEMENT IS HEREBY INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
	 
	2.	 	ASSIGNMENT. THE ASSIGNOR HEREBY ASSIGNS AND SELLS, WITHOUT RECOURSE OR WARRANTY EXCEPT AS
SPECIFICALLY SET FORTH HEREIN, TO THE ASSIGNEE THE ASSIGNED INTEREST IN THE RIGHTS AND
OBLIGATIONS OF THE ASSIGNOR UNDER THE CREDIT DOCUMENTS. THE ASSIGNEE HEREBY PURCHASES,
ACCEPTS, AND ASSUMES, WITHOUT RECOURSE OR WARRANTY EXCEPT AS SPECIFICALLY SET FORTH HEREIN,
FROM THE ASSIGNOR ALL OF SUCH RIGHTS AND OBLIGATIONS OF THE ASSIGNOR. SUBJECT TO THE
EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE ASSIGNOR, THE ASSIGNEE, AND, TO THE EXTENT
REQUIRED BY SECTION 10.10(B) OF THE LOAN AGREEMENT, THE BORROWER AND THE ADMINISTRATIVE AGENT,
AS OF THE DATE HEREOF (A) THE ASSIGNEE SHALL SUCCEED, ON A PRO RATA BASIS IN




 









 






	 	 	ACCORDANCE WITH THE ASSIGNED INTEREST, TO THE RIGHTS AND INTERESTS, AND BE OBLIGATED TO
PERFORM THE OBLIGATIONS, OF A LENDER UNDER THE CREDIT DOCUMENTS WITH A PERCENTAGE UNDER THE
LOAN AGREEMENT AS SET FORTH ON SCHEDULE I, AND SHALL BE CONSIDERED A LENDER FOR ALL
PURPOSES; (B) THE ASSIGNEE SHALL DELIVER TO THE ASSIGNOR, IN IMMEDIATELY AVAILABLE FUNDS, AN
AMOUNT EQUAL TO THE PURCHASE PRICE FOR THE ASSIGNED INTEREST, AND (C) THE PERCENTAGE OF THE
ASSIGNOR AS OF THE DATE HEREOF SHALL BE REDUCED BY THE PERCENTAGE ACQUIRED BY THE ASSIGNEE,
AND THE ASSIGNOR SHALL BE RELEASED FROM ITS OBLIGATIONS UNDER THE CREDIT DOCUMENTS WHICH
HAVE BEEN SO ASSIGNED TO AND ACCEPTED BY THE ASSIGNEE.
	 
	3.	 	PAYMENTS. ALL PAYMENTS OF PRINCIPAL OF AND ACCRUED INTEREST ON THE LOANS AND REIMBURSEMENT
OBLIGATIONS ARE TO BE MADE BY THE BORROWER TO THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF THE
RESPECTIVE LENDERS. THE ADMINISTRATIVE AGENT SHALL DIVIDE SUCH PAYMENTS AMONG THE LENDERS AS
THEIR INTERESTS MAY APPEAR, WITH ALL INTEREST ACCRUING ON THE LOANS AND REIMBURSEMENT
OBLIGATIONS HELD BY THE ASSIGNOR BEFORE THE DATE HEREOF TO BELONG TO THE ASSIGNOR. EACH OF
THE ASSIGNOR AND THE ASSIGNEE HEREBY AGREES THAT IF IT RECEIVES ANY AMOUNT FROM THE BORROWER
UNDER THE CREDIT DOCUMENTS WHICH IS FOR THE ACCOUNT OF THE OTHER PARTY HERETO, IT SHALL
RECEIVE THE SAME FOR THE ACCOUNT OF SUCH OTHER PARTY TO THE EXTENT OF SUCH OTHER PARTY’S
INTEREST THEREIN AND SHALL PROMPTLY PAY THE SAME TO SUCH OTHER PARTY. THE RIGHTS OF THE
ASSIGNOR AND THE ASSIGNEE UNDER THIS SECTION ARE IN ADDITION TO ALL OTHER RIGHTS AND REMEDIES
THAT THE ASSIGNOR OR THE ASSIGNEE MAY HAVE.
	 
	4.	 	CONSENT OF THE BORROWER AND THE ADMINISTRATIVE AGENT. THIS AGREEMENT IS CONDITIONED UPON THE
CONSENT OF THE BORROWER AND THE ADMINISTRATIVE AGENT TO THE EXTENT REQUIRED BY SECTION
10.10(B) OF THE LOAN AGREEMENT. THE EXECUTION OF THIS AGREEMENT BY THE BORROWER AND THE
ADMINISTRATIVE AGENT IS EVIDENCE OF ANY SUCH CONSENT. PURSUANT TO SECTION 10.10(B) OF THE
LOAN AGREEMENT, (A) THE ASSIGNOR AGREES TO DELIVER ANY CURRENT NOTES EXECUTED BY THE BORROWER
TO THE BORROWER, MARKED “CANCELLED” OR ITS EQUIVALENT, AND SIMULTANEOUSLY THEREWITH (B) THE
BORROWER AGREES TO EXECUTE AND DELIVER ANY NEW NOTES PAYABLE TO THE ORDER OF THE ASSIGNEE AND,
IF APPLICABLE, TO THE ASSIGNOR TO EVIDENCE THE ASSIGNMENT AND ACCEPTANCE PROVIDED FOR HEREIN.
	 
	5.	 	THE ASSIGNOR. THE ASSIGNOR (A) REPRESENTS AND WARRANTS TO THE ASSIGNEE THAT IT IS THE LEGAL
AND BENEFICIAL OWNER OF THE




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	 	 	ASSIGNED INTEREST AND THAT SUCH ASSIGNED INTEREST IS FREE AND CLEAR OF ANY LIEN; AND (B)
MAKES NO REPRESENTATION OR WARRANTY AND ASSUMES NO RESPONSIBILITY WITH RESPECT TO (I) ANY
STATEMENTS, WARRANTIES OR REPRESENTATIONS MADE IN OR IN CONNECTION WITH THE CREDIT DOCUMENTS
OR THE EXECUTION, LEGALITY, VALIDITY, ENFORCEABILITY, GENUINENESS, SUFFICIENCY OR VALUE OF
THE CREDIT DOCUMENTS OR ANY DOCUMENT FURNISHED PURSUANT THERETO, OR (II) THE FINANCIAL
CONDITION OF THE BORROWER OR ANY GUARANTOR OF ANY OF ITS OBLIGATIONS UNDER THE CREDIT
DOCUMENTS.
	 
	6.	 	THE ASSIGNEE. THE ASSIGNEE (A) CONFIRMS THAT IT HAS RECEIVED A COPY OF THE CREDIT DOCUMENTS,
TOGETHER WITH SUCH OTHER DOCUMENTS AND INFORMATION AS IT HAS DEEMED APPROPRIATE TO MAKE ITS
OWN CREDIT ANALYSIS AND DECISION TO ENTER INTO THIS AGREEMENT; (B) AGREES THAT IT WILL,
INDEPENDENTLY AND WITHOUT RELIANCE UPON THE ADMINISTRATIVE AGENT, THE ASSIGNOR OR ANY OTHER
LENDER AND BASED ON SUCH DOCUMENTS AND INFORMATION AS IT SHALL DEEM APPROPRIATE AT THE TIME,
CONTINUE TO MAKE ITS OWN CREDIT DECISIONS IN TAKING OR NOT TAKING ACTION UNDER THE CREDIT
DOCUMENTS; (C) APPOINTS AND AUTHORIZES THE ADMINISTRATIVE AGENT TO TAKE SUCH ACTION ON BEHALF
OF THE ASSIGNEE AND TO EXERCISE SUCH POWERS UNDER THE CREDIT DOCUMENTS AS ARE DELEGATED TO THE
ADMINISTRATIVE AGENT BY THE TERMS THEREOF, TOGETHER WITH SUCH POWERS AS ARE REASONABLY
INCIDENTAL THERETO; AND (D) AGREES THAT IT WILL PERFORM IN ACCORDANCE WITH THEIR TERMS ALL OF
THE OBLIGATIONS WHICH BY THE TERMS OF THE CREDIT DOCUMENTS ARE REQUIRED TO BE PERFORMED BY IT
AS A LENDER. IF THE ASSIGNEE IS ORGANIZED UNDER THE LAWS OF ANY JURISDICTION OTHER THAN THE
UNITED STATES OF AMERICA OR ANY STATE THEREOF, THE ASSIGNEE HEREBY (A) FURNISHES TO THE
ASSIGNOR, THE ADMINISTRATIVE AGENT AND THE BORROWER THE FORMS REQUIRED BY SECTION 10.10(D) OF
THE LOAN AGREEMENT, EITHER U.S. INTERNAL REVENUE SERVICE FORM W-8 BEN OR U.S. INTERNAL REVENUE
SERVICE FORM W-8 ECI (WHEREIN THE ASSIGNEE CLAIMS ENTITLEMENT TO COMPLETE EXEMPTION FROM U.S.
FEDERAL WITHHOLDING TAX ON ALL INTEREST PAYMENTS UNDER THE CREDIT DOCUMENTS), AND (B) AGREES
FOR THE BENEFIT OF THE ASSIGNOR, THE ADMINISTRATIVE AGENT AND THE BORROWER TO PROVIDE THE
ASSIGNOR, THE ADMINISTRATIVE AGENT AND THE BORROWER FROM TIME TO TIME NEW FORMS AS REQUIRED BY
SECTIONS 10.10(D)(III) AND 3.3(B) OF THE LOAN AGREEMENT, AND TO COMPLY FROM TIME TO TIME WITH
ALL APPLICABLE U.S. LAWS AND REGULATIONS WITH REGARD TO SUCH WITHHOLDING TAX EXEMPTION.
	 
	7.	 	NOTICE AND PAYMENT INSTRUCTIONS. ALL NOTICES IN CONNECTION HEREWITH SHALL BE GIVEN IN
ACCORDANCE WITH SECTION 10.7 OF THE




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	 	 	LOAN AGREEMENT. THE ADDRESS OF THE ASSIGNEE FOR NOTICES HEREUNDER AND THEREUNDER, TOGETHER
WITH PAYMENT INSTRUCTIONS FOR AMOUNTS TO BE PAID TO THE ASSIGNEE UNDER THE LOAN AGREEMENT,
SHALL BE INITIALLY AS SET FORTH ON THE SIGNATURE PAGES HEREOF.
	 
	8.	 	MISCELLANEOUS. THE AGREEMENT (A) EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS,
CONSENTS AND UNDERSTANDINGS RELATING TO SUCH SUBJECT MATTER, AND (B) SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.





[Signatures begin on the next page]






-4-









 








     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by
their duly authorized officers as the date first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	Attn:
	 	 	 	 	 	 
	 	 	 	 	 
	Telephone No.:	 	 	 	 
	 

	 	 	 	 	 	 
	Telecopy No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	Attn:
	 	 	 	 	 	 
	 	 	 	 	 
	Telephone No.:	 	 	 	 
	 

	 	 	 	 	 	 
	Telecopy No.:	 	 	 	 
	 

	 	 	 	 	 	 





     Payment Instructions:



 









 





     [The foregoing assignment acknowledged and consented to as of                      ___, ___.



	 	 	 	 	 	 	 
	 	 	NOBLE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:
	 	 	]	 
	 

	 	 	 	 

	 	 






 









 






     [The foregoing assignment acknowledged and consented to as of                      ___, ___.



	 	 	 	 	 	 	 
	 	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:
	 	 	]	 
	 

	 	 	 	 

	 	 






 









 





SCHEDULE I

TO

ASSIGNMENT AGREEMENT




	 	 	 	 	 
	Assignor:
	 	 	 	 
	 

	 	 

	 	 
	Assignee:
	 	 	 	 
	 

	 	 

	 	 
	Assignment Date:
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 
	 	 	Principal Amount	 	Percentage of
	Commitment	 	Assigned	 	Commitment Assigned1
	 
	 	 	 	 







 




			
	1	 	Set forth to at least 8 decimals, as a
percentage of the aggregate Commitments of all Lenders.