exv10w1



 







EXHIBIT 10.1




 





CREDIT AGREEMENT




among




NOBLE CORPORATION,




NOBLE HOLDING (U.S.) CORPORATION,




NOBLE DRILLING CORPORATION,




and



GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Lender

and Administrative Agent


 



Dated as of December 22, 2005


 



$600,000,000


 




 









 








Table of Contents




	 	 	 	 	 
	 	 	 Page	 
	SECTION 1. Amount and Terms of Credit
	 	 	1	 
	 
	 	 	 	 
	1.01 Commitment
	 	 	1	 
	1.02 Reserved
	 	 	1	 
	1.03 Notice of Borrowing
	 	 	1	 
	1.04 Disbursement of Funds
	 	 	1	 
	1.05 Notes

	 	 	2	 
	1.06 Conversions
	 	 	2	 
	1.07 Pro Rata Borrowings
	 	 	3	 
	1.08 Interest
	 	 	3	 
	1.09 Interest Periods
	 	 	4	 
	1.10 Increased Costs, Illegality, etc.
	 	 	4	 
	1.11 Compensation
	 	 	6	 
	1.12 Change of Lending Office; Limitation on Indemnities
	 	 	7	 
	1.13 Replacement of Lenders
	 	 	7	 
	 
	 	 	 	 
	SECTION 2. Reserved
	 	 	8	 
	 
	 	 	 	 
	SECTION 3. Reserved
	 	 	8	 
	 
	 	 	 	 
	SECTION 4. Payments
	 	 	8	 
	 
	 	 	 	 
	4.01 Voluntary Prepayments
	 	 	8	 
	4.02 Mandatory Repayments
	 	 	8	 
	4.03 Method and Place of Payment
	 	 	10	 
	4.04 Net Payments
	 	 	10	 
	 
	 	 	 	 
	SECTION 5. Conditions Precedent to Effectiveness
	 	 	12	 
	 
	 	 	 	 
	5.01 Execution of Agreement
	 	 	12	 
	5.02 Officer’s Certificate
	 	 	12	 
	5.03 Opinions of Counsel
	 	 	12	 
	5.04 Corporate Proceedings
	 	 	12	 
	5.05 Expenses
	 	 	13	 
	 
	 	 	 	 
	SECTION 6. Conditions Precedent to the Credit Event
	 	 	13	 
	 
	 	 	 	 
	6.01 No Default; Representations and Warranties
	 	 	13	 
	 
	 	 	 	 
	SECTION 7. Representations, Warranties and Agreements
	 	 	13	 
	 
	 	 	 	 
	7.01 Corporate Status
	 	 	13	 
	7.02 Corporate Power and Authority
	 	 	14	 
	7.03 No Violation
	 	 	14	 
	7.04 Litigation
	 	 	14	 






(i)









 






	 	 	 	 	 
	 	 	 Page	 
	7.05 Use of Proceeds; Margin Regulations
	 	 	14	 
	7.06 Governmental Approvals
	 	 	14	 
	7.07 Investment Company Act
	 	 	15	 
	7.08 Public Utility Holding Company Act
	 	 	15	 
	7.09 True and Complete Disclosure
	 	 	15	 
	7.10 Financial Condition; Financial Statements
	 	 	15	 
	7.11 Tax Returns and Payments
	 	 	16	 
	7.12 Compliance with ERISA
	 	 	16	 
	7.13 Patents, etc.
	 	 	16	 
	7.14 Pollution and Other Regulations
	 	 	17	 
	7.15 Properties
	 	 	17	 
	7.16 Compliance with Statutes, etc.
	 	 	17	 
	7.17 Labor Relations
	 	 	18	 
	7.18 Existing Indebtedness
	 	 	18	 
	7.19 Controlled Foreign Corporation
	 	 	18	 
	7.20 Business
	 	 	18	 
	 
	 	 	 	 
	SECTION 8. Affirmative Covenants
	 	 	18	 
	 
	 	 	 	 
	8.01 Information Covenants
	 	 	18	 
	8.02 Books, Records and Inspections
	 	 	19	 
	8.03 Maintenance of Property; Insurance
	 	 	20	 
	8.04 Payment of Taxes
	 	 	20	 
	8.05 Consolidated Corporate Franchises
	 	 	20	 
	8.06 Compliance with Statutes, etc.
	 	 	20	 
	8.07 Good Repair
	 	 	20	 
	8.08 End of Fiscal Years; Fiscal Quarters
	 	 	21	 
	8.09 Use of Proceeds
	 	 	21	 
	8.10 Maintenance of Corporate Existence and Good Standing
	 	 	21	 
	8.11 Guarantors
	 	 	21	 
	8.12 ERISA
	 	 	21	 
	 
	 	 	 	 
	SECTION 9. Negative Covenants
	 	 	22	 
	 
	 	 	 	 
	9.01 Changes in Business; Business
	 	 	22	 
	9.02 Consolidation, Merger, Sale of Assets, etc.
	 	 	22	 
	9.03 Indebtedness
	 	 	22	 
	9.04 Liens
	 	 	23	 
	9.05 Restricted Payments
	 	 	24	 
	9.06 Restrictions on Subsidiaries
	 	 	24	 
	9.07 Transactions with Affiliates
	 	 	25	 
	9.08 Interest Coverage Ratio
	 	 	25	 
	9.09 Leverage Ratio
	 	 	25	 
	 
	 	 	 	 
	SECTION 10. Events of Default
	 	 	25	 
	 
	 	 	 	 
	10.01 Payments
	 	 	25	 






(ii)









 






	 	 	 	 	 
	 	 	 Page	 
	10.02 Representations, etc.
	 	 	25	 
	10.03 Covenants
	 	 	26	 
	10.04 Default Under Other Agreements
	 	 	26	 
	10.05 Bankruptcy, etc.
	 	 	26	 
	10.06 Guaranty
	 	 	26	 
	10.07 Judgments
	 	 	27	 
	10.08 ERISA
	 	 	27	 
	10.09 Change of Control
	 	 	27	 
	 
	 	 	 	 
	SECTION 11. Definitions
	 	 	28	 
	 
	 	 	 	 
	SECTION 12. The Administrative Agent
	 	 	41	 
	 
	 	 	 	 
	12.01 Appointment
	 	 	41	 
	12.02 Nature of Duties
	 	 	41	 
	12.03 Lack of Reliance on the Administrative Agent
	 	 	41	 
	12.04 Certain Rights of the Administrative Agent
	 	 	42	 
	12.05 Reliance
	 	 	42	 
	12.06 Indemnification
	 	 	42	 
	12.07 The Administrative Agent in Its Individual Capacity
	 	 	42	 
	12.08 Holders
	 	 	43	 
	12.09 Resignation by the Administrative Agent
	 	 	43	 
	 
	 	 	 	 
	SECTION 13. Miscellaneous
	 	 	43	 
	 
	 	 	 	 
	13.01 Payment of Expenses, etc.
	 	 	43	 
	13.02 Right of Setoff
	 	 	45	 
	13.03 Notices
	 	 	45	 
	13.04 Benefit of Agreement
	 	 	45	 
	13.05 No Waiver; Remedies Cumulative
	 	 	47	 
	13.06 Payments Pro Rata
	 	 	47	 
	13.07 Calculations; Computations
	 	 	48	 
	13.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial
	 	 	48	 
	13.09 Counterparts
	 	 	48	 
	13.10 Reserved
	 	 	49	 
	13.11 Headings Descriptive
	 	 	49	 
	13.12 Amendment or Waiver
	 	 	49	 
	13.13 Survival
	 	 	49	 
	13.14 Domicile of Loans
	 	 	49	 
	13.15 Confidentiality
	 	 	49	 
	13.16 Registry
	 	 	50	 
	 
	 	 	 	 
	SECTION 14. Parent Guaranty
	 	 	50	 
	 
	 	 	 	 
	14.01 Guaranty
	 	 	50	 
	14.02 Bankruptcy
	 	 	51	 
	14.03 Nature of Liability
	 	 	51	 






(iii)









 






	 	 	 	 	 
	 	 	 Page	 
	14.04 Independent Obligation
	 	 	51	 
	14.05 Authorization
	 	 	52	 
	14.06 Reliance
	 	 	52	 
	14.07 Subordination
	 	 	53	 
	14.08 Waiver
	 	 	53	 
	14.09 Payment
	 	 	54	 






	 	 	 	 	 
	ANNEX I

	 	—
	 	Commitment
	ANNEX II

	 	—
	 	Lender Address
	ANNEX III

	 	—
	 	Pricing Grid
	ANNEX IV

	 	—
	 	Reserved
	ANNEX V

	 	—
	 	Existing Indebtedness
	ANNEX VI

	 	—
	 	Existing Liens
	 
	 	 	 	 
	EXHIBIT A

	 	—
	 	Form of Notice of Borrowing
	EXHIBIT B

	 	—
	 	Form of Note
	EXHIBIT C

	 	—
	 	Reserved
	EXHIBIT D

	 	—
	 	Reserved
	EXHIBIT E

	 	—
	 	Form of Section 4.04(b)(ii) Certificate
	EXHIBIT F-1

	 	—
	 	Form of Opinion of Baker Botts L.L.P.
	EXHIBIT
F-2

	 	—
	 	Form of Opinion of Maples and Calder
	EXHIBIT G

	 	—
	 	Form of Officers’ Certificate
	EXHIBIT H

	 	—
	 	Form of Guaranty
	EXHIBIT I

	 	—
	 	Form of Compliance Certificate
	EXHIBIT J

	 	—
	 	Form of Assignment and Assumption Agreement






(iv)









 





          CREDIT AGREEMENT, dated as December 22, 2005, among NOBLE CORPORATION, a Cayman Islands
exempted company limited by shares (“Parent”), NOBLE HOLDING (U.S.) CORPORATION, a Delaware
corporation (“NHC” and, together with Parent, the “Parent Guarantors”), NOBLE DRILLING CORPORATION
(the “Borrower”), a Delaware corporation, and GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), as
initial Lender and Administrative Agent (in such capacity the “Administrative Agent”). Unless
otherwise defined herein, all capitalized terms used herein and defined in Section 10 are used
herein as so defined.




W I T N E S S E T H:




          WHEREAS, the parties hereto desire to enter into this Agreement to make available to the
Borrower a loan facility in an aggregate principal amount as provided for herein;




          NOW, THEREFORE, it is agreed:




          SECTION 1. Amount and Terms of Credit.




          1.01 Commitment. Subject to and upon the terms and conditions herein set forth, each
Lender severally agrees to make a loan or loans (each a “Loan” and, collectively, the “Loans”)
under the Facility to the Borrower on the Closing Date in an amount equal to such Lender’s
Commitment.




          1.02 Reserved




          1.03 Notice of Borrowing. The Borrower shall give the Administrative Agent at its Notice
Office, prior to 12:00 Noon (New York time), at least three Business Days’ prior written notice (or
telephonic notice promptly confirmed in writing), or such shorter time as the Lenders may agree, of
a Borrowing of Eurodollar Loans and at least one Business Day’s prior written notice (or telephonic
notice promptly confirmed in writing) of a Borrowing of Base Rate Loans to be made hereunder. Such
notice (the “Notice of Borrowing”) shall be in the form of Exhibit A and shall be irrevocable and
shall specify (i) the aggregate principal amount of the Loans to be made on the Closing Date, (ii)
the date of Borrowing (which shall be a Business Day) and (iii) whether the Borrowing shall consist
of Base Rate Loans or (to the extent permitted) Eurodollar Loans and, if Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Administrative Agent shall promptly give
each Lender written notice (or telephonic notice promptly confirmed in writing) of the proposed
Borrowing, of such Lender’s proportionate share thereof and of the other matters covered by the
Notice of Borrowing.




          1.04 Disbursement of Funds. (a) No later than 12:00 Noon (New York time) on the date specified in the Notice of Borrowing,
each Lender will make available its pro rata share of the Borrowing requested to be
made on such date in the manner provided below. All such amounts shall be made available to the
Administrative Agent in Dollars and immediately available funds at the Payment Office and the
Administrative Agent promptly will make available to the Borrower by depositing to its account at
the Payment Office the aggregate of the amounts so made available in Dollars and immediately
available funds. Unless the Administrative Agent shall have been notified by any Lender prior to
the date of Borrowing that





 









 







such Lender does not intend to make available to the Administrative
Agent its portion of the Borrowing to be made on the Closing Date, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the Administrative Agent by
such Lender and the Administrative Agent has made available same to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall
(within two Business Days of receiving such demand) pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover on demand from
such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the Administrative Agent
to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at
a rate per annum equal to (x) if paid by such Lender, the overnight Federal Funds Effective Rate or
(y) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with
Section 1.08, for the respective Loans.




          (b) Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its
commitments hereunder or to prejudice any rights which the Borrower may have against any Lender as
a result of any default by such Lender hereunder.




          1.05 Notes. (a) The Borrower’s obligation to pay the principal of, and interest on, the
Loan made to it by each Lender shall be evidenced in the Register maintained by the Administrative
Agent pursuant to Section 13.16, and shall, if requested by such Lender, also be evidenced by a
promissory note substantially in the form of Exhibit B with blanks appropriately completed in
conformity herewith (each a “Note” and, collectively, the “Notes”).




          (b) The Note issued to each Lender shall (i) be executed by the Borrower, (ii) be payable to
the order of such Lender and be dated the Closing Date or, if issued after the Closing Date, be
dated the date of issuance thereof, (iii) be in a stated principal amount equal to the Loans held
by such Lender on such date and be payable in the outstanding principal amount of the Loans
evidenced thereby, (iv) mature on the Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the outstanding Base Rate Loans and Eurodollar
Loans, as the case may be, evidenced thereby, (vi) be subject to mandatory repayment as provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.




          (c) Each Lender will note on its internal records the amount of each Loan made by it and each
payment in respect thereof and will, prior to any transfer of any of its Notes, endorse on the
reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation or any error in such notation shall not affect the Borrower’s obligations in
respect of such Loans.




          1.06 Conversions. The Borrower shall have the option to convert on any Business Day all
or a portion at least equal to the applicable Minimum Borrowing Amount of the




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outstanding principal amount of Loans into a Borrowing or Borrowings of another Type of Loan, provided that (i)
except as otherwise provided in Section 1.10(b), Eurodollar Loans may be converted into Base Rate
Loans only on the last day of an Interest Period applicable thereto and no partial conversion of a
Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of the Eurodollar Loans
made pursuant to such Borrowing to less than the Minimum Borrowing Amount applicable thereto and
(ii) no Base Rate Loans may be converted into Eurodollar Loans at any time when a Specified Default
is in existence on the date of the conversion if the Administrative Agent or the Required Lenders
have determined that such a conversion would be disadvantageous to the Lenders. Each such
conversion shall be effected by the Borrower giving the Administrative Agent at its Notice Office,
prior to 12:00 Noon (New York time), at least three Business Days’ (or one Business Day’s, in the
case of a conversion into Base Rate Loans) prior written notice (or telephonic notice promptly
confirmed in writing) (each a “Notice of Conversion”) specifying the Loans to be so converted, the
Type of Loans to be converted into and, if to be converted into a Borrowing of Eurodollar Loans,
the Interest Period to be initially applicable thereto. The Administrative Agent shall give prompt
notice of any such proposed conversion to each Lender with Loans affected thereby.




          1.07 Pro Rata Borrowings. All Loans under this Agreement shall be made by the Lenders
pro rata on the basis of their Commitments. It is understood that no Lender shall
be responsible for any default by any other Lender in its obligation to make Loans hereunder and
that each Lender shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fulfill its commitments hereunder.




          1.08 Interest. (a) The unpaid principal amount of each Base Rate Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by acceleration or
otherwise) at a rate per annum which shall at all times be the Base Rate in effect from time to
time.




          (b) The unpaid principal amount of each Eurodollar Loan shall bear interest from the date of
the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum
which shall at all times be the Eurodollar Rate plus the Applicable Eurodollar Margin.




          (c) All overdue principal and, to the extent permitted by law, overdue interest in respect of
each Loan and any other overdue amount payable hereunder shall bear interest at a rate per annum
equal to 2% per annum in excess of the rate otherwise applicable to such Loans from time to time
(or, if such amounts do not relate to a specific Loan, 2% in excess of the Base Rate as in effect
from time to time), with such interest payable on demand.




          (d) Interest shall accrue from and including the date of any Borrowing to but excluding the
date of any repayment thereof and shall be payable (i) in respect of each Base Rate Loan, quarterly
in arrears on the last Business Day of each March, June, September and December, (ii) in respect of
each Eurodollar Loan, on the last day of each Interest Period applicable thereto and, in the case
of an Interest Period in excess of three months, on each date occurring at three month intervals
after the first day of such Interest Period, (iii) in respect of each Eurodollar Loan, on any
prepayment or conversion (on the amount prepaid or converted) and (iv) in respect of each Loan, at
maturity (whether by acceleration or otherwise) and, after such maturity, on demand.




-3-









 








          (e) All computations of interest hereunder shall be made in accordance with Section 13.07(b).




          (f) The Administrative Agent, upon determining the interest rate for any Borrowing of
Eurodollar Loans for any Interest Period, shall promptly notify the Borrower and the Lenders
thereof.




          1.09 Interest Periods. (a) At the time the Borrower gives the Notice of Borrowing or a
Notice of Conversion in respect of the making of, or conversion into, a Borrowing of Eurodollar
Loans (in the case of the initial Interest Period applicable thereto) or on the third Business Day
prior to the expiration of an Interest Period applicable to an outstanding Borrowing of Eurodollar
Loans (in the case of any subsequent Interest Period), the Borrower shall have the right to elect,
by giving the Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) thereof, the interest period (each, an “Interest Period”) applicable to such Borrowing of
Eurodollar Loans, which Interest Period shall be a one month period. Notwithstanding anything to
the contrary contained above:





     (i) the initial Interest Period for any Borrowing of Eurodollar Loans shall commence on
the date of such Borrowing (including the date of any conversion from a Borrowing of Base
Rate Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the immediately preceding Interest Period expires;




     (ii) if any Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;




     (iii) if any Interest Period would otherwise expire on a day which is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day, provided that if
any Interest Period would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the immediately preceding Business Day;




     (iv) no Interest Period shall extend beyond the Maturity Date; and




     (v) no Interest Period may be elected at any time when a Specified Default is then in
existence if the Administrative Agent or the Required Lenders have determined that such an
election at such time would be disadvantageous to the Lenders.



          (b) If upon the expiration of any Interest Period, the Borrower has failed to (or may not)
elect a new Interest Period to be applicable to the respective Borrowing of Eurodollar Loans as
provided above, the Borrower shall be deemed to have elected to convert such Borrowing into a
Borrowing of Base Rate Loans effective as of the expiration date of such current Interest Period.




          1.10 Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause
(i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Lender




-4-









 







shall have determined (which determination shall, absent demonstrable error, be final and
conclusive and binding upon all parties hereto):





     (i) on any date for determining the Eurodollar Rate for any Interest Period that, by
reason of any changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar Rate; or




     (ii) at any time, that such Lender shall incur actual increased costs or reductions in
the amounts received or receivable hereunder with respect to any Eurodollar Loans because of
(x) any change since the date of this Agreement in any applicable law, governmental rule,
regulation, guideline or order (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline or order (such as, for example, but not limited to:
(A) without duplication of any amounts payable under Section 4.04(a), a change in the basis
of taxation or payment to any Lender of the principal of or interest on such Eurodollar
Loans or any other amounts payable hereunder (except for changes with respect to any tax
imposed on, or determined by reference to, the net income or net profits of such Lender
pursuant to the laws of the United States, the jurisdiction in which such Lender is
organized or in which such Lender’s principal office or applicable lending office is located
or any subdivision thereof or therein), or (B) a change in official reserve requirements,
but, in all events, excluding reserves required under Regulation D to the extent included in
the computation of the Eurodollar Rate) and/or (y) other circumstances occurring after the
date of this Agreement and affecting the interbank Eurodollar market; or




     (iii) at any time since the date of this Agreement, that the making or continuance of
any Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any
law, governmental rule, regulation, guideline or order (or would conflict with any such governmental rule, regulation, guideline, request or order not
having the force of law but with which such Lender customarily complies even though the
failure to comply therewith would not be unlawful), or has become impracticable as a result
of a contingency occurring after the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;


then, and in any such event, such Lender (or the Administrative Agent in the case of clause (i)
above) shall (x) on such date and (y) within ten Business Days of the date on which such event no
longer exists, give notice (by telephone confirmed in writing) to the Borrower and to the
Administrative Agent of such determination (which notice the Administrative Agent shall promptly
transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar
Loans shall no longer be available until such time as the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and the Notice of Borrowing or any Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred shall be deemed
rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall, subject to
Section 1.12(b) (to the extent applicable), pay to such Lender, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method of





-5-









 





calculating, interest or otherwise as such Lender in its sole discretion shall determine) as shall be required
to compensate such Lender for such increased costs or reductions in amounts receivable hereunder (a
written notice as to the additional amounts owed to such Lender, showing the basis for the
calculation thereof, submitted to the Borrower by such Lender shall, absent demonstrable error, be
final and conclusive and binding upon all parties hereto) and (z) in the case of clause (iii)
above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law.




          (b) At any time that any Eurodollar Loan is affected by the circumstances described in
Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected
pursuant to Section 1.10(a)(iii), the Borrower shall) either (i) if the affected Eurodollar Loan is
then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent
telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was
notified by a Lender pursuant to Section 1.10(a)(ii) or (iii), or (ii) if the affected Eurodollar
Loan is then outstanding, upon at least three Business Days’ notice to the Administrative Agent,
require the affected Lender to convert each such Eurodollar Loan into a Base Rate Loan, provided
that if more than one Lender is affected at any time, then all affected Lenders must be treated the
same pursuant to this Section 1.10(b).




          (c) If any Lender shall have determined that after the date of this Agreement, the adoption
or effectiveness of any applicable law, rule or regulation regarding capital adequacy, or any
change therein, 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 such Lender with any request or directive regarding capital adequacy
(whether or not having the force of law but with which such Lender customarily complies even though
the failure to comply therewith would not be unlawful) 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 assets as a consequence of its commitments or obligations hereunder to a level below
that which such Lender could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender’s policies with respect to capital adequacy),
then from time to time, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall, subject to Section 1.12(b) (to the extent applicable),
pay to such Lender such additional amount or amounts as will compensate such Lender for such reduction. Each Lender, upon determining in good faith that
any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written
notice thereof to the Borrower, which notice shall set forth the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not release or diminish any
of the Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(c) upon the
subsequent receipt of such notice.




          1.11 Compensation. The Borrower shall compensate each Lender, upon its written request
(which request shall set forth the basis for requesting such compensation), for all reasonable
losses, expenses and liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds required by such
Lender to fund its Eurodollar Loans but excluding in any event the loss of anticipated profits)
which such Lender may sustain: (i) if for any reason (other than a default by such Lender or the
Administrative Agent) a Borrowing of Eurodollar Loans does not occur on a




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date specified therefor in the Notice of Borrowing or any Notice of Conversion (whether or not withdrawn by the Borrower or
deemed withdrawn pursuant to Section 1.10(a)); (ii) if any prepayment, repayment or conversion of
any of its Eurodollar Loans occurs on a date which is not the last day of an Interest Period
applicable thereto; (iii) if any prepayment of any of its Eurodollar Loans is not made on any date
specified in a notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any
other default by the Borrower to repay its Eurodollar Loans when required by the terms of this
Agreement or (y) an election made pursuant to Section 1.10(b) or 1.14. A Lender’s basis for
requesting compensation pursuant to this Section 1.11 and a Lender’s calculation of the amount
thereof, shall, absent demonstrable error, be final and conclusive and binding on all parties
hereto. Notwithstanding the foregoing provisions of this Section 1.11, GSCP agrees that it will
not make any claim under this Section 1.11 in its capacity as Lender for such losses, expenses and
liabilities described in this Section 1.11.




          1.12 Change of Lending Office; Limitation on Indemnities. (a) Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or (iii),
1.10(c) or 4.04 with respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate another lending
office for any Loan, or Commitments affected by such event, provided that such designation
is made on such terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to
the operation of any such Section. Nothing in this Section 1.12 shall affect or postpone any of
the obligations of the Borrower or the right of any Lender provided in Section 1.10 or 4.04.




          (b) Notwithstanding anything in this Agreement to the contrary, to the extent any notice
required by Section 1.10 or 4.04 is given by any Lender more than 90 days after such Lender
obtained, or reasonably should have obtained, knowledge of the occurrence of the event giving rise
to the additional costs of the type described in such Section, such Lender shall not be entitled to
compensation under Section 1.10 or 4.04 for any amounts incurred or accruing prior to the date
which is 90 days prior to the giving of such notice to the Borrower.




          1.13 Replacement of Lenders. (x) Upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c) or Section 4.04 with respect to any
Lender which results in such Lender charging to the Borrower increased costs in excess of those
being charged by the other Lenders or becoming incapable of making Eurodollar Loans, (y) if a
Lender becomes a Defaulting Lender and/or (z) as provided in Section 13.12(b), in the case of a
refusal by a Lender to consent to a proposed change, waiver, discharge or termination with respect
to this Agreement which has been approved by the Required Lenders, the Borrower shall have the
right, if no Default or Event of Default then exists, to replace such Lender (the “Replaced
Lender”) with one or more other Eligible Transferee or Transferees reasonably acceptable to the
Administrative Agent, none of which Transferees shall constitute a Defaulting Lender at the time of
such replacement (collectively, the “Replacement Lender”), provided that (i) at the time of
any replacement pursuant to this Section 1.13, the Replacement Lender shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all fees payable
pursuant to said Section 13.04(b) to be paid by the Replacement Lender) pursuant to which the
Replacement Lender shall acquire all of the Commitments and





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outstanding Loans of the Replaced Lender and, in connection therewith, shall pay to (x) the Replaced Lender in respect thereof an
amount equal to the principal of, and all accrued interest on, all outstanding Loans of the
Replaced Lender, and (ii) all obligations of the Borrower owing to the Replaced Lender (other than
those specifically described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective Assignment and Assumption
Agreements, the payment of amounts referred to in clauses (i) and (ii) above and, if so requested
by the Replacement Lender, delivery to the Replacement Lender of a Note executed by the Borrower,
the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions applicable to the
Replaced Lender under this Agreement, which shall survive as to such Replaced Lender.




          SECTION 2. Reserved.




          SECTION 3. Reserved.




          SECTION 4. Payments.




          4.01 Voluntary Prepayments. The Borrower shall have the right to prepay Loans in whole or
in part, without premium or penalty, from time to time on the following terms and conditions: (i)
the Borrower shall give the Administrative Agent at the Payment Office written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay the Loans, the amount of
such prepayment and (in the case of Eurodollar Loans) the specific Borrowing or Borrowings pursuant
to which made, which notice shall be given by the Borrower at least one Business Day prior to the date of such
prepayment with respect to Base Rate Loans and three Business Days prior to the date of such
prepayment with respect to Eurodollar Loans, which notice shall promptly be transmitted by the
Administrative Agent to each of the Lenders; (ii) each partial prepayment of any Borrowing shall be
in an aggregate principal amount of at least $500,000 and, if greater in an integral multiple of
$100,000, provided that no partial prepayment of Eurodollar Loans made pursuant to a
Borrowing shall reduce the aggregate principal amount of the Loans outstanding pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto; (iii) Eurodollar
Loans may only be prepaid pursuant to this Section 4.01 on the last day of the Interest Period
applicable thereto, unless prior prepayment is accompanied by all breakage costs owing pursuant to
Section 1.11 in connection therewith; and (iv) each prepayment in respect of any Loans made
pursuant to a Borrowing shall be distributed pro rata among the Lenders which made
such Loans, provided that, at the Borrower’s election in connection with any prepayment of
Loans pursuant to this Section 4.01, such prepayment shall not be applied to any Loans of a
Defaulting Lender.




          4.02 Mandatory Repayments.




          (A) Requirements:




          (a) If on any date any Loan Party shall issue any Indebtedness which is permitted by Section
9.03(b) or (g) (other than Indebtedness under the Amended and Restated Credit




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Agreement), the Borrower shall repay within one Business Day of such date the principal of Loans in an aggregate
amount equal to the net cash proceeds from such issuance of Indebtedness.




          (b) Notwithstanding anything to the contrary contained elsewhere in this Agreement, all then
outstanding Loans shall be repaid in full on the Maturity Date.




          (c) On the date on which any Change of Control occurs, unless otherwise agreed by the
Required Lenders, the outstanding principal amount of all Loans, if any, shall become due and
payable in full.




          (B) Application:




          With respect to each prepayment of Loans required by Section 4.02, the Borrower may designate
the Types of Loans which are to be prepaid and the specific Borrowing or Borrowings pursuant to
which made, provided that (i) repayments of Eurodollar Loans may only be made pursuant to
this Section 4.02 on the last day of an Interest Period applicable thereto unless no Base Rate
Loans remain outstanding; (ii) if any prepayment of Eurodollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to an amount less than
the Minimum Borrowing Amount for such Borrowing, such Borrowing shall be converted into Base Rate
Loans at the end of the then current Interest Period applicable thereto; and (iii) each prepayment
of any Loans made pursuant to a Borrowing shall be applied pro rata among the
Lenders which made such Loans. In the absence of a designation by the Borrower as described in the
preceding sentence, the Administrative Agent shall, subject to the above, make such designation in
its sole discretion with a view, but no obligation, to minimize breakage costs owing under Section
1.11. Notwithstanding the foregoing provisions of this Section 4.02(B), if at any time the mandatory prepayment of Loans pursuant to Section
4.02(A) above would result, after giving effect to the procedures set forth above, in the Borrower
incurring breakage costs under Section 1.11 as a result of Eurodollar Loans being prepaid other
than on the last day of an Interest Period applicable thereto (the “Affected Eurodollar Loans”),
then the Borrower may in its sole discretion initially deposit a portion (up to 100%) of the
amounts that otherwise would have been paid in respect of the Affected Eurodollar Loans with the
Administrative Agent (which deposit must be equal in amount to the amount of the Affected
Eurodollar Loans not immediately prepaid) to be held as security for the obligations of the
Borrower hereunder pursuant to a cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent and shall provide for investments in Cash
Equivalents satisfactory to the Administrative Agent and the Borrower, with such cash collateral to
be directly applied upon the first occurrence (or occurrences) thereafter of the last day of an
Interest Period applicable to the relevant Loans that are Eurodollar Loans (or such earlier date or
dates as shall be requested by the Borrower), to repay an aggregate principal amount of such Loans
equal to the Affected Eurodollar Loans not initially prepaid pursuant to this sentence.
Notwithstanding anything to the contrary contained in the immediately preceding sentence, all
amounts deposited as cash collateral pursuant to the immediately preceding sentence shall be held
for the sole benefit of the Lenders whose Loans would otherwise have been immediately prepaid with
the amounts deposited and upon the taking of any action by the Administrative Agent or the Lenders
pursuant to the remedial provisions of Section 10, any amounts held as cash collateral pursuant to
this Section 4.02(B) shall, subject to the requirements of applicable law, be immediately applied
to such Loans.




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          4.03 Method and Place of Payment. Except as otherwise specifically provided herein, all
payments under this Agreement shall be made to the Administrative Agent for the ratable (based on
its pro rata share) account of the Lenders entitled thereto, not later than 1:00
P.M. (New York time) on the date when due and shall be made in immediately available funds and in
lawful money of the United States at the Payment Office, it being understood that written notice by
the Borrower to the Administrative Agent to make a payment from the funds in the Borrower’s account
at the Payment Office shall constitute the making of such payment to the extent of such funds held
in such account. Any payments under this Agreement which are made later than 1:00 P.M. (New York
time) shall be deemed to have been made on the next succeeding Business Day. Whenever any payment
to be made hereunder shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.




          4.04 Net Payments. (a) All payments made by any Credit Party hereunder or under any Note
will be made without setoff, counterclaim or other defense. Except as provided in Section 4.04(b),
all such payments will be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but excluding, except as provided in
the second succeeding sentence, any tax imposed on or measured by the net income or net profits of a Lender
pursuant to the laws of the jurisdiction in which it is organized or managed and controlled or the
jurisdiction in which the principal office or applicable lending office of such Lender is located
or any subdivision thereof or therein) and all interest, penalties or similar liabilities with
respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other
charges being referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the
Borrower and each Parent Guarantor, jointly and severally, agree to pay the full amount of such
Taxes, and such additional amounts, if any, as may be necessary so that every payment of all
amounts due under this Agreement or under any Note, after withholding or deduction for or on
account of any Taxes, will not be less than the amount provided for herein or in such Note. If any
amounts are payable in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to
reimburse each Lender, upon the written request of such Lender, for taxes imposed on or measured by
the net income or net profits of such Lender pursuant to the laws of the jurisdiction in which the
principal office or applicable lending office of such Lender is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which the principal office or
applicable lending office of such Lender is located and for any withholding of taxes as such Lender
shall determine are payable by, or withheld from, such Lender in respect of such amounts so paid to
or on behalf of such Lender pursuant to the preceding sentence and in respect of any amounts paid
to or on behalf of such Lender pursuant to this sentence. The Borrower will furnish to the
Administrative Agent within 45 days after the date the payment of any Tax is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the Borrower. The
Borrower and each Parent Guarantor, jointly and severally, agree to indemnify and hold harmless
each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender.




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          (b) Each Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) agrees to deliver to the Borrower and the Administrative Agent on or prior
to the date of this Agreement, or in the case of a Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 13.04 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or W-8BEN (or successor forms) certifying to such Lender’s
entitlement to a complete exemption from United States withholding tax with respect to payments to
be made under this Agreement and under any Note, or (ii) if the Lender is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form
W-8ECI or W-8BEN pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit E (any such certificate, a “Section 4.04(b)(ii) Certificate”) and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN (or successor form)
certifying to such Lender’s entitlement to a complete exemption from United States withholding tax
with respect to payments of interest to be made under this Agreement and under any Note. In
addition, each Lender agrees that from time to time after the date of this Agreement, when a lapse
in time or change in circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the Borrower and the Administrative Agent two new accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI or W-8BEN (with respect to
the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such other
forms as may be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with respect to payments
under this Agreement and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate. Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required
to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Lender which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent
that such Lender has not provided to the Borrower U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be
obligated pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Lender in respect
of income or similar taxes imposed by the United States if (I) such Lender has not provided to the
Borrower the Internal Revenue Service Forms required to be provided to the Borrower pursuant to
this Section 4.04(b) or (II) in the case of a payment, other than interest, to a Lender described
in clause (ii) above, to the extent that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 4.04 and except as set forth in Section 13.04(b), the
Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes after the date of this Agreement in any applicable
law, treaty,




-11-









 







governmental rule, regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of income or similar Taxes, provided such Lender
shall provide to the Borrower and the Administrative Agent any reasonably available applicable IRS
tax form (reasonably similar in its simplicity and lack of detail to IRS Form W-8ECI or W-8BEN)
necessary or appropriate for the exemption or reduction in the rate of such U.S. federal
withholding tax.




          (c) The provisions of this Section 4.04 shall be subject to Section 1.12(b) (to the extent
applicable).




          SECTION 5. Conditions Precedent to Effectiveness. The occurrence of the Closing Date is
subject to the satisfaction of each of the following conditions:




          5.01 Execution of Agreement. This Agreement shall have been executed by the parties
hereto.




          5.02 Officer’s Certificate. On the Closing Date, the Administrative Agent shall have received a certificate dated such date
signed by the President, any Vice President or the Treasurer of the Borrower stating that all of
the applicable conditions set forth in Section 6.01 exist as of such date.




          5.03 Opinions of Counsel. On the Closing Date, the Administrative Agent shall have
received from (i) Baker Botts L.L.P. counsel to the Parent Guarantors and the Borrower, a legal
opinion addressed to the Administrative Agent and each of the Lenders and dated the Closing Date,
which opinion shall cover the matters contained in Exhibit F-1 and shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent and (ii) Maples and Calder, special
counsel to Parent, a legal opinion addressed to the Administrative Agent and each of the Lenders
and dated the Closing Date, which opinion shall cover the matters contained in Exhibit F-2 and
shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent.




          5.04 Corporate Proceedings. (a) On the Closing Date, the Administrative Agent shall have
received from each Credit Party a certificate, dated the Closing Date, signed by the President, any
Vice-President or, the Treasurer of such Credit Party, and attested to by the Secretary or
Assistant Secretary of such Credit Party, in the form of Exhibit G with appropriate insertions and
deletions, together with copies of the certificate of incorporation of such Credit Party, certified
by the appropriate governmental authority as of recent date, the by-laws of such Credit Party, and
the resolutions of the Board of Directors of such Credit Party, and all of the foregoing shall be
reasonably satisfactory to the Administrative Agent.




          (b) On the Closing Date, the Administrative Agent shall have received a certificate of recent
date from the appropriate governmental authority evidencing each Credit Party’s existence and good
standing in its jurisdiction of incorporation, and all other information and copies of all other
certificates, documents and papers, if any, which the Administrative Agent may have reasonably
requested in connection herewith, such documents and papers, where appropriate, to be certified by
proper corporate or governmental authorities.




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          5.05 Expenses. On the Closing Date, the Borrower shall have paid to the Administrative
Agent, for its own account and for that of the Lenders, all invoiced expenses agreed by such
parties to be paid on or prior to such date.




          SECTION 6. Conditions Precedent to the Credit Event. The obligation of each Lender to
make any Loan is subject, at the time of such Credit Event, to the satisfaction of the following
conditions:




          6.01 No Default; Representations and Warranties. At the time of the Credit Event and also
after giving effect thereto (i) there shall exist no Default or Event of Default and (ii) all
representations and warranties contained herein and in each other Credit Document shall be true and correct in all material respects with the same effect
as though such representations and warranties had been made on the date of the Credit Event (it
being understood and agreed that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material respects only as of such
specified date).




          The acceptance of the benefits or proceeds of the Credit Event shall constitute a
representation and warranty by the Borrower to the Administrative Agent and each of the Lenders
that all the conditions specified in Section 5 and in this Section 6 and applicable to the Credit
Event have been satisfied as of that time. All of the Notes, certificates, legal opinions and
other documents and papers referred to in Section 5 and in this Section 6, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office for the benefit of
each of the Lenders and, except for the Notes, in sufficient counterparts or copies for each of the
Lenders and shall be in form and substance satisfactory to the Administrative Agent.




          SECTION 7. Representations, Warranties and Agreements. In order to induce the Lenders to
enter into this Agreement and to make the Loans, Parent makes the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans (with the making of the Credit Event being
deemed to constitute a representation and warranty that the matters specified in this Section 7 are
true and correct in all material respects on and as of the date of the Credit Event unless such
representation and warranty expressly indicates that it is being made as of any specific date, in
which case such representations and warranties shall be true and correct in all material respects
as of such date):




          7.01 Corporate Status. Each Credit Party (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its organization and has the
corporate power and authority to own its property and assets and to transact the business in which
it is engaged, except in such case where the failure to be so duly organized and validly existing
in good standing and to have such corporate power and authority (x) is not reasonably likely to
have a Material Adverse Effect and (y) is not reasonably likely to have a material adverse effect
on the rights or remedies of the Lenders or on the ability of any Credit Party to perform its
obligations to them hereunder and under the other Credit Documents to which it is a party, and (ii)
has duly qualified and is authorized to do business and is in good standing in all jurisdictions
where it is required to be so qualified and where the failure to be so qualified would have a
Material Adverse Effect.




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          7.02 Corporate Power and Authority. Each Credit Party has the corporate 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 corporate action to authorize the execution,
delivery and performance of the Credit Documents to which it is a party. Each Credit Party 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 enforceable against such
Person in accordance with its terms,except to the extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by
equitable principles (regardless of whether enforcement is sought in equity or at law).




          7.03 No Violation. Neither the execution, delivery and performance by any Credit Party of
the Credit Documents to which it is a party nor compliance with the terms and provisions thereof,
nor the consummation of the transactions contemplated therein (i) will contravene any applicable
provision of any law, statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality of the United States or any State thereof, (ii) will result in any
breach of any of the terms, covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of Parent or any of its Subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, agreement or other instrument to which Parent or any of its
Subsidiaries is a party or by which it or any of its property or assets are bound or to which it is
subject or (iii) will violate any provision of the Certificate of Incorporation or By-Laws of
Parent or any of its Subsidiaries.




          7.04 Litigation. There are no actions, suits or proceedings pending or, to the knowledge
of any Credit Party, after due inquiry, threatened in writing with respect to Parent or any of its
Subsidiaries (i) that are likely to have a Material Adverse Effect or (ii) that are reasonably
likely to have a material adverse effect on the rights or remedies of the Lenders or on the ability
of any Credit Party to perform its obligations to them hereunder and under the other Credit
Documents to which it is a party.




          7.05 Use of Proceeds; Margin Regulations. (a) The proceeds of all Loans shall be
utilized to provide a portion of the funds required for the purchase of approximately 39.2% of the
issued and outstanding Class A shares and approximately 8.9% of the issued and outstanding Class B
shares, in each case of Smedvig ASA, a public limited company organized under the laws of Norway.




          (b) Neither the making of any Loan hereunder, nor the use of the proceeds thereof, will
violate or be inconsistent with the provisions of Regulation T, U or X of the Board of Governors of
the Federal Reserve System and no part of the proceeds of any Loan will be used to purchase or
carry any Margin Stock in violation of Regulation U or to extend credit for the purpose of
purchasing or carrying any Margin Stock.




          7.06 Governmental Approvals. Except for the orders, consents, approvals, licenses,
authorizations, validations, recordings, registrations and exemptions that have already been duly
made or obtained and remain in full force and effect, no order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or exemption by,




-14-









 







any foreign or domestic governmental or public body or authority, or any subdivision thereof, is
required to authorize or is required in connection with (i) the execution, delivery and performance of any Credit Document or (ii) the legality,
validity, binding effect or enforceability of any Credit Document.




          7.07 Investment Company Act. Neither Parent nor any of its 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.




          7.08 Public Utility Holding Company Act. Neither Parent nor any of its Subsidiaries is a
“holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a
“holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the
Public Utility Holding Company Act of 1935, as amended.




          7.09 True and Complete Disclosure. All factual information (taken as a whole) heretofore
or contemporaneously furnished by or on behalf of Parent or any of its Subsidiaries in writing to
the Administrative Agent or any Lender for purposes of or in connection with this Agreement or any
transaction contemplated herein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of any such Person in writing to any Lender will be, true and
accurate in all material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any material fact necessary to make such information (taken
as a whole) not misleading at such time in light of the circumstances under which such information
was provided. There is no fact known to any Credit Party which is reasonably likely to have a
Material Adverse Effect, which has not been disclosed herein or in such other documents,
certificates and statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby.




          7.10 Financial Condition; Financial Statements. (a) On and as of the Closing Date, on a
pro forma basis after giving effect to all Indebtedness incurred, and Loans to be
incurred, on and as of the Closing Date, by the Borrower and its Subsidiaries in connection
herewith, (x) the sum of the assets, at a fair valuation, of the Borrower and its Subsidiaries
taken as a whole exceeded its debts, (y) the Borrower and its Subsidiaries taken as a whole did not
incur or intend to, or believe that they would, incur debts beyond their ability to pay such debts
as such debts mature and (z) the Borrower and its Subsidiaries taken as a whole did not have
unreasonably small capital with which to conduct its business.




          (b) (i) The consolidated balance sheet of the Borrower at December 31, 2004 and the related
consolidated statements of operations and cash flows of the Borrower for the fiscal year, as the
case may be, ended as of said date, which have been examined by PriceWaterhouseCoopers LLP,
independent certified public accountants, who delivered an unqualified opinion in respect
therewith, and (ii) the consolidated balance sheet of the Borrower as of September 30, 2005, copies
of which have heretofore been furnished to the Administrative Agent, present fairly the financial
position of such entities at the dates of said statements and the results for the period covered thereby in accordance with GAAP, except to the extent provided
in the notes to said financial statements and, in the case of the September 30, 2005 statements,
subject to normal and recurring year-end audit adjustments. All such financial statements have
been prepared in accordance with generally accepted accounting principles and practices




-15-









 







consistently applied except to the extent provided in the notes to said financial statements.
Nothing has occurred since December 31, 2004 that (x) has had or is reasonably likely to have a
material adverse effect on the rights or remedies of the Lenders hereunder or under any other
Credit Document, or on the ability of any Credit Party to perform its obligations to them, or (y)
has had or is reasonably likely to have a Material Adverse Effect.




          (c) Except as reflected in the financial statements and the notes thereto described in
Section 7.10(b) or in Annex V, there were as of the Closing Date no liabilities or obligations with
respect to the Borrower or any of its Subsidiaries of a nature (whether absolute, accrued,
contingent or otherwise and whether or not due) which, either individually or in aggregate, would
be material to the Borrower and its Subsidiaries taken as a whole, except as incurred subsequent to
December 31, 2004 in the ordinary course of business consistent with past practices.




          7.11 Tax Returns and Payments. Each of Parent and each of its Subsidiaries has filed all
federal income tax returns and all other material tax returns, domestic and foreign, required to be
filed by it and has paid all material taxes and assessments payable by it which have become due,
other than those not yet delinquent and except for those contested in good faith. Parent and each
of its Subsidiaries has paid, or has provided adequate reserves (in the good faith judgment of the
management of Parent) for the payment of, all federal, state and foreign income taxes applicable
for all prior fiscal years and for the current fiscal year to the date hereof.




          7.12 Compliance with ERISA. (a) Neither Parent nor any Subsidiary nor any ERISA
Affiliate has ever maintained or contributed to (or had an obligation to contribute to) any Plan or
any Foreign Pension Plan where any current or reasonably foreseeable liability of Parent with
respect to such Plan or such Foreign Pension Plan would be reasonably likely to have a Material
Adverse Effect. All contributions required to be made with respect to (i) any employee pension
benefit plan (as defined in Section 3(2) of ERISA) maintained or contributed to by (or to which
there is an obligation to contribute of) Parent or a Subsidiary or an ERISA Affiliate and (ii) any
Foreign Pension Plan have been timely made except any such failures to contribute which would not
individually or in the aggregate be reasonably likely to have a Material Adverse Effect. Parent
and its Subsidiaries may cease contributions to or terminate any employee benefit plan (within the
meaning of Section 3(3) of ERISA) maintained or contributed to by (or to which there is an
obligation to contribute of) any of them without incurring any liability which, individually or in
the aggregate would be reasonably likely to have a Material Adverse Effect.




          (b) Each Foreign Pension Plan has been maintained in substantial compliance with its terms
and with the requirements of any and all applicable laws, statutes, rules, regulations and orders
and has been maintained, where required, in good standing with applicable regulatory authorities, except such non-compliances as would not, individually or
in the aggregate, be reasonably likely to have a Material Adverse Effect.




          7.13 Patents, etc. Parent and each of its Subsidiaries has obtained all material patents,
trademarks, service marks, trade names, copyrights, licenses and other rights, free from burdensome
restrictions, that are necessary for the operation of their businesses taken as a whole as
presently conducted.





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          7.14 Pollution and Other Regulations. (a) Each of Parent and its Subsidiaries is in
compliance with all applicable Environmental Laws governing its business for which failure to
comply is reasonably likely to have a Material Adverse Effect, and neither Parent nor any of its
Subsidiaries is liable for any material penalties, fines or forfeitures for failure to comply with
any of the foregoing. All licenses, permits, registrations or approvals required for the business
of Parent and each of its Subsidiaries, as conducted as of the Closing Date, under any
Environmental Law have been secured and Parent and each of its Subsidiaries is in substantial
compliance therewith, except such licenses, permits, registrations or approvals the failure to
secure or to comply therewith is not likely to have a Material Adverse Effect. Neither Parent nor
any of its Subsidiaries is in any respect in noncompliance with, breach of or default under any
applicable writ, order, judgment, injunction, or decree to which Parent or such Subsidiary is a
party or which would affect the ability of Parent or such Subsidiary to operate any material asset
and no event has occurred and is continuing which, with the passage of time or the giving of notice
or both, would constitute noncompliance, breach of or default thereunder, except in each such case,
such noncompliance, breaches or defaults as are not likely to, in the aggregate, have a Material
Adverse Effect. There are as of the Closing Date no Environmental Claims pending or, to the
knowledge of any Credit Party, after due inquiry, threatened, against Parent or any of its
Subsidiaries wherein an unfavorable decision, ruling or finding would be reasonably likely to have
a Material Adverse Effect. There are no facts, circumstances, conditions or occurrences on any
Real Property, offshore drilling rig, vessel or other facility owned or operated by Parent or any
of its Subsidiaries that is reasonably likely (i) to form the basis of an Environmental Claim
against Parent, any of its Subsidiaries or any Real Property, offshore drilling rig, vessel or
other facility owned by Parent or any of its Subsidiaries, or (ii) to cause such Real Property,
offshore drilling rig, vessel or other facility to be subject to any restrictions on its ownership,
occupancy, use or transferability under any Environmental Law, except in each such case, such
Environmental Claims or restrictions that individually or in the aggregate are not reasonably
likely to have a Material Adverse Effect.




          (b) Hazardous Materials have not at any time been (i) generated, used, treated or stored on,
or transported to or from, any Real Property, offshore drilling rig, vessel or other facility at
any time owned or operated by Parent or any of its Subsidiaries or (ii) released on or from any
such Real Property, offshore drilling rig, vessel or other facility, in each case where, to the
knowledge of any Credit Party, after due inquiry, such occurrence or event individually or in the
aggregate is reasonably likely to have a Material Adverse Effect.




          7.15 Properties. Parent and each of its Subsidiaries has title to all material properties
owned by them including all property reflected in the consolidated balance sheet of the Borrower
and its Subsidiaries as referred to in Section 7.10(b), free and clear of all Liens, other than (i)
as referred to in the consolidated balance sheet or in the notes thereto or (ii) Permitted Liens.




          7.16 Compliance with Statutes, etc.
Each of Parent and each of its Subsidiaries is in compliance with all applicable statutes,
regulations, rules and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its
property, except such non-compliance as is not reasonably likely to, individually or in the
aggregate, have a Material Adverse Effect.




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          7.17 Labor Relations. Neither Parent nor its Subsidiaries is engaged in any unfair labor
practice that is reasonably likely to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against Parent or any of its Subsidiaries or threatened against any of
them, before the National Labor Relations Board, and no grievance or arbitration proceeding arising
out of or under any collective bargaining agreement is so pending against Parent or any of its
Subsidiaries or, to the knowledge of any Credit Party, after due inquiry, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against Parent or any of its
Subsidiaries or, to the best of the knowledge of any Credit Party, threatened against Parent or any
of its Subsidiaries and (iii) no union representation petition existing with respect to the
employees of Parent or any of its Subsidiaries and no union organizing activities are taking place,
except with respect to any matter specified in clause (i), (ii) or (iii) above, either individually
or in the aggregate, such as is not reasonably likely to have a Material Adverse Effect.




          7.18 Existing Indebtedness. The consolidated balance sheets of the Borrower and its
Subsidiaries referred to in Section 7.10(b) and the Indebtedness described on Annex V constitute a
true and complete list of all Indebtedness of the Borrower and each of its Subsidiaries on the
Closing Date and which is to remain outstanding after the Closing Date (excluding the Loans the
“Existing Indebtedness”), showing the aggregate principal amount thereof as of the Closing Date.




          7.19 Controlled Foreign Corporation. Parent is not a “controlled foreign
corporation” as defined in the Code.




          7.20 Business. Neither Parent nor NHC had any Indebtedness other than guarantees of
Indebtedness permitted by Section 9.03.




          SECTION 8. Affirmative Covenants. Parent covenants and agrees that on the Closing Date
and thereafter for so long as this Agreement is in effect and until the Commitments have
terminated, no Notes are outstanding and the Loans, together with interest and all other
Obligations incurred hereunder, are paid in full:




          8.01 Information Covenants. Parent will furnish to the Administrative Agent (with
sufficient copies for each of the Lenders, and the Administrative Agent will promptly forward to
each of the Lenders):




          (a) Annual Financial Statements. Within 120 days after the close of each fiscal year
of Parent, the consolidated balance sheet of Parent and its Subsidiaries, as at the end of such
fiscal year and the related consolidated statements of income and retained earnings and of cash
flows for such fiscal year, in each case setting forth comparative consolidated figures for the
preceding fiscal year, and examined by independent certified public accountants of recognized
national standing whose opinion shall not be qualified as to the scope of audit and as to the
status of Parent and its Subsidiaries as a going concern.




          (b) Quarterly Financial Statements. As soon as available and in any event within 60
days after the close of each of the first three quarterly accounting periods in each fiscal year,
the consolidated balance sheet of Parent and its Subsidiaries, as at the end of such quarterly




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period and the related consolidated statements of income and retained earnings and of cash flows
for such quarterly period and for the elapsed portion of the fiscal year ended with the last day of
such quarterly period, and in each case setting forth comparative consolidated figures for the
related period in the prior fiscal year, all of which shall be certified by the Senior Vice
President-Finance, Treasurer or Controller of Parent, subject to changes resulting from audit and
normal year-end audit adjustments.




          (c) Compliance Certificate. At the time of the delivery of the financial statements
provided for in Sections 8.01(a) and (b), a certificate of Parent signed by its Senior Vice
President-Finance, Treasurer, Controller or other Authorized Officer of Parent in the form of
Exhibit I to the effect that no Default or Event of Default exists or, if any Default or Event of
Default does exist, specifying the nature and extent thereof, which certificate shall set forth the
calculations required to establish whether Parent and its Subsidiaries were in compliance with the
provisions of Section 9 as at the end of such fiscal period or year, as the case may be.




          (d) Notice of Default or Litigation. Promptly, and in any event within (x) ten days
after any Credit Party obtains knowledge thereof, notice of the occurrence of any event which
constitutes a Default or Event of Default, which notice shall specify the nature thereof, the
period of existence thereof and what action Parent proposes to take with respect thereto and (y)
ten Business Days after any Credit Party obtains knowledge thereof, notice of the commencement of
or any significant development in any litigation or governmental proceeding pending against Parent
or any of its Subsidiaries which is likely to have a Material Adverse Effect or is likely to have a
material adverse effect on the ability of any Credit Party to perform its obligations hereunder or
under any other Credit Document.




          (e) SEC Reports. Promptly upon transmission thereof, copies of any material filings
and registration with, and reports to, the SEC by Parent or any of its Subsidiaries and copies of
all financial statements, proxy statements, notices and reports as Parent or any of its
Subsidiaries shall generally send to holders of their capital stock in their capacity as such
holders (in each case to the extent not theretofore delivered to the Administrative Agent pursuant
to this Agreement).




          (f) Credit Rating. As soon as possible and in any event within 10 days after any
Credit Party obtains knowledge thereof, notice of any change in (i) the credit rating assigned by
Moody’s or S&P to any long-term unsecured debt of Parent or any of its Subsidiaries (including,
without limitation, any change in the Moody’s Credit Rating or the S&P Credit Rating) and/or
(ii) the stated implied senior debt rating assigned by Moody’s or S&P with respect to Parent
or any of its Subsidiaries; notice of such change and the date on which it was first announced by
the applicable rating agency.




          (g) Other Information. From time to time, such other information or documents
(financial or otherwise) as the Administrative Agent on its own behalf or on behalf of the Required
Lenders may reasonably request.




          8.02 Books, Records and Inspections. Parent will, and will cause its Subsidiaries to,
permit, upon reasonable notice to the Senior Vice President-Finance, Controller or any other
Authorized Officer of Parent, officers and designated representatives of the Administrative




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Agent
(at the expense of the Administrative Agent, but after the occurrence and during the continuance of
an Event of Default, at the expense of the Borrower) or the Required Lenders (at the expense of
such Lenders), to the extent necessary, to examine the books of account of Parent and any of its
Subsidiaries and discuss the affairs, finances and accounts of Parent and of any of its
Subsidiaries with, and be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable extent as the
Administrative Agent or the Required Lenders may desire.




          8.03 Maintenance of Property; Insurance. Parent will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect insurance in such amounts with
carriers of such insurance industry ratings, covering such risks and liabilities and with such
deductibles or self-insured retentions as are in accordance with normal industry practice for
similarly situated insureds.




          8.04 Payment of Taxes. Parent will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any properties belonging to it, prior to the
date on which penalties attach thereto, and all lawful claims which, if unpaid, might become a Lien
or charge upon any properties of Parent or any of its Subsidiaries, provided that neither
Parent nor any Subsidiary shall be required to pay any such tax, assessment, charge, levy or claim
which is being contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good faith judgment of the management of Parent) with respect thereto in
accordance with GAAP.




          8.05 Consolidated Corporate Franchises. Parent will do, and will cause each Subsidiary to
do, or cause to be done, all things necessary to preserve and keep in full force and effect its
corporate existence, material rights and authority, unless the failure to do so is not reasonably
likely to have a Material Adverse Effect, provided that any transaction permitted by
Section 9.02 will not constitute a breach of this Section 8.05.




          8.06 Compliance with Statutes, etc. Parent will, and will cause each Subsidiary to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership of its property
other than those the non-compliance with which would not have a Material Adverse Effect or would
not have a material adverse effect on the ability of any Credit Party to perform its obligations
under any Credit Document to which it is party.




          8.07 Good Repair. Except for offshore drilling rigs and vessels currently under or
scheduled to be repaired or which have been damaged or have suffered a casualty as to which (within
a reasonable period of time) Parent has not made a determination whether to replace or repair, or
if the determination to replace or repair has been made, as to which such replacement or repairs
are being undertaken, subject to availability of equipment, materials and/or repair facilities,
Parent will, and will cause each of its Subsidiaries to, keep its properties and equipment used or
useful in its business, in whomsoever’s possession they may be, in good repair, working order and
condition, normal wear and tear excepted, and, subject to Section 9.02, see that from time to time
there are made in such properties and equipment all needful and




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proper repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto, (i) to the extent and in
the manner useful or customary for companies in similar businesses and (ii) to the extent the
failure to do so is reasonably likely to have a Material Adverse Effect.




          8.08 End of Fiscal Years; Fiscal Quarters. Parent will, for financial reporting purposes,
cause (i) each of its fiscal years to end on December 31 of each year and (ii) each of its fiscal
quarters to end on March 31, June 30, September 30 and December 31 of each year.




          8.09 Use of Proceeds. All proceeds of the Loans shall be used as provided in Section
7.05.




          8.10 Maintenance of Corporate Existence and Good Standing. Parent will, and will cause
each other Credit Party to, satisfy customary corporate formalities, including the holding of
regular board of directors’ and shareholders’ meetings or action by directors or shareholders
without a meeting and the maintenance of corporate offices and records and to remain a duly
organized and validly existing corporation in good standing under the laws of the jurisdiction of
its organization. Neither Parent nor any other Credit Party shall take any action, or conduct its
affairs in a manner, which is likely to result in the corporate existence of Parent or any other
Credit Party being ignored, or in the assets and liabilities of Parent or any of its Subsidiaries
being substantively consolidated with those of any other Person in a bankruptcy, reorganization or
other insolvency proceeding.




          8.11 Guarantors. Parent shall promptly cause such Domestic Subsidiaries (other than the
Borrower and NHC) as are required to execute and deliver a guaranty of the Obligations in order
that Parent remain incompliance with Section 9.03(g) to execute and deliver such a guaranty in substantially the form of
Exhibit H hereto (each, a “Subsidiary Guaranty”).




          8.12 ERISA. As soon as possible and, in any event, within 10 days after Parent, any
Subsidiary or any ERISA Affiliate knows or has reason to know that: (a) a material contribution
required to be made with respect to (i) any employee pension benefit plan (as defined in Section
3(2) of ERISA) maintained or contributed to by (or to which there is an obligation to contribute
of) Parent or a Subsidiary or an ERISA Affiliate or (ii) any Foreign Pension Plan has not been
timely made or (b) Parent or any Subsidiary may incur any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA), Parent will deliver to each of
the Lenders a certificate of the Senior Vice President-Finance or Controller of Parent setting
forth details as to such occurrence and the action, if any, that Parent, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices required or proposed to
be given to or filed with or by Parent, the Subsidiary, the ERISA Affiliate, a plan participant or
the plan administrator.




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          SECTION 9. Negative Covenants. Parent hereby covenants and agrees that as of the Closing
Date and thereafter for so long as this Agreement is in effect and until the Commitments have
terminated, no Notes are outstanding and the Loans, together with interest and all other
Obligations incurred hereunder, are paid in full:




          9.01 Changes in Business; Business. Parent will not, and will not permit any of its
Subsidiaries to, materially alter the character of the business of Parent and its Subsidiaries
taken as a whole from that conducted at the Closing Date (including any material expansion outside
of the businesses of oil and gas drilling, offshore contract drilling, turnkey drilling,
engineering and production management services, floating production and storage operations, well
construction management, field development and management, multi-service vessel management,
engineering and design, drilling rig and vessel construction, reconstruction and retrofitting,
technology research development and marketing and related businesses or operations currently
conducted or hereafter entered into in connection therewith).




          9.02 Consolidation, Merger, Sale of Assets, etc. Parent will not, and will not permit any
other Credit Party to, directly or indirectly, merge with or into or consolidate with any other
Person, or agree, become or remain liable (contingently or otherwise) to do any of the foregoing,
except that, so long as no Default or Event of Default exists or would result therefrom, (i) the
Borrower may merge with another Person so long as the Borrower is the surviving corporation, and
(ii) any Guarantor may merge with the Borrower so long as the Borrower is the surviving
corporation, or may merge with another Person so long as a Guarantor is the surviving entity. In
addition to the foregoing, Parent and its Subsidiaries, taken as a whole, shall not convey, sell, lease, assign, transfer or otherwise dispose of, in one or a
series of transactions, all or substantially all of their property, business or assets.




          9.03 Indebtedness. Parent will not, and will not permit any of its Subsidiaries to
contract, create, incur, assume or suffer to exist any Indebtedness, except:




          (a) Indebtedness incurred pursuant to this Agreement and the other Credit Documents;




          (b) Indebtedness existing on the Closing Date and listed on Annex V, and to any subsequent
extensions, refinancings or renewals thereof, so long as such extension, refinancing or renewal
does not cause the aggregate principal amount thereof to increase from that in effect on the date
of such extension, refinancing or renewal, including guarantees thereof by the Parent Guarantors;




          (c) Indebtedness consisting of intercompany loans and advances;




          (d) Indebtedness under any Interest Rate Agreements, foreign exchange agreement or
derivatives obligations entered into by Parent in the ordinary course of business and not for
speculative purposes;




          (e) Indebtedness of Parent or any Subsidiary of Parent under performance guarantees and
standby letters of credit issued in the ordinary course of business;


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          (f) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of Parent
or is merged with or into Parent or any Subsidiary of Parent; provided that such
Indebtedness is not incurred in contemplation of such transaction; and




          (g) Other Indebtedness of Parent and its Subsidiaries that may be incurred in pro forma
compliance with the financial covenants set forth in Sections 9.08 (as of the last day of the most
recently ended four fiscal quarter period) and 9.09 (immediately after giving effect thereto) so
long as (i) no Default or Event of Default exists at the time of incurrence thereof or would result
therefrom and (ii) all such indebtedness of Subsidiaries of Parent that are not Guarantors shall
not at any time exceed an amount equal to ten percent (10%) of the Consolidated Net Tangible Assets
of Parent and its Subsidiaries; provided that, to the extent that any Indebtedness of a
Foreign Subsidiary of Parent would cause the 10% limitation described in clause (ii) to be
exceeded, Parent may substitute one or more non-Guarantor Domestic Subsidiaries with aggregate
total tangible assets less total liabilities at all times at least as great as such Foreign
Subsidiary to become Subsidiary Guarantors hereunder.




          9.04 Liens. Parent will not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or
personal, tangible or intangible) of Parent or any of its Subsidiaries, whether now owned or
hereafter acquired or sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable or notes with recourse
to Parent or any Subsidiary of Parent) or assign any right to receive income, or file or permit the
filing of any financing statement under the UCC or any other similar notice of Lien under any
similar recording or notice statute, except:




          (a) Liens for taxes not yet due or Liens for taxes being contested in good faith and by
appropriate proceedings for which adequate reserves (in the good faith judgment of the management
of Parent) have been established;




          (b) Liens imposed by law or arising by operation of law which were incurred in the ordinary
course of business, such as carriers’, warehousemen’s and mechanics’ Liens, statutory landlord’s
Liens, maritime Liens and other similar Liens arising in the ordinary course of business, and (x)
which do not in the aggregate materially detract from the value of Parent’s, or any Subsidiary’s
property or assets or materially impair the use thereof in the operation of the business of Parent
or any Subsidiary or (y) which are being contested in good faith by appropriate proceedings
(including the providing of bail), which proceedings have the effect of preventing the forfeiture
or sale of the property or assets subject to such Lien or procuring the release of the property or
assets subject to such Lien from arrest or detention;




          (c) Liens created in favor of the Lenders;




          (d) Liens existing on the Closing Date and listed on Annex VI, and Liens incurred pursuant to
subsequent extensions, refinancings or renewals of the underlying Indebtedness secured thereby so
long as no additional assets of Parent or any of its Subsidiaries are pledged in support thereof;




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          (e) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with
respect thereto) to the extent not covered by insurance, so long as the obligations in connection
therewith do not exceed $25,000,000 in the aggregate and do not otherwise give rise to an Event of
Default under Section 10.07;




          (f) Liens existing on the Closing Date on the Noble Jim Thompson, to secure up to
$115,000,000 of Existing Indebtedness, less any principal repayments thereof since December 31,
2000;




          (g) Liens securing Indebtedness of Non-Wholly Owned Subsidiaries permitted by Section 9.03(c)
and owing to Parent or any of its Wholly Owned Subsidiaries, provided that no such Liens shall
attach to any asset of any Subsidiary which becomes a Subsidiary Guarantor pursuant to Sections
8.11 and/or 9.03(g) unless the secured party is itself a Guarantor;




          (h) Liens on assets leased or acquired after the Closing Date (including by way of
acquisition of the capital stock or other equity interests of any Person), or newly constructed
after the date hereof, and Liens on any existing assets materially upgraded (i.e., upgrades
of $10,000,000 or more) after the date hereof, provided that (i) such Liens secure
Indebtedness otherwise permitted hereunder, (ii) such Liens exist on the date of such acquisition
or are incurred within one year following such lease, acquisition, construction or upgrade, (iii)
the Indebtedness secured by such Liens does not exceed the cost of such leased, acquired or constructed asset or the cost of such upgrade, as applicable, and (iv) such Liens shall not
apply to any other property or assets of Parent and its Subsidiaries;




          (i) Other Liens of Parent and its Subsidiaries not described in clauses (a) through (i) above
securing Indebtedness in an aggregate outstanding principal amount not to exceed $125,000,000 at
any one time.




          9.05 Restricted Payments. Parent will not, and will not permit any of its Subsidiaries
to, make any Restricted Payments, other than Restricted Payments to any Credit Party,
except that Parent and its Subsidiaries may make Restricted Payments (i) so long as no
Default or Event of Default exists or would result therefrom and (ii) Parent shall be in
pro forma compliance with Sections 9.08 (for the last day of the most recently
ended fiscal quarter) and 9.09 (immediately after giving effect thereto).




          9.06 Restrictions on Subsidiaries. Parent will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which
prohibits or otherwise restricts (A) the ability of any Subsidiary to (a) pay dividends or make
other distributions or pay any Indebtedness owed to Parent or any Subsidiary, (b) make loans or
advances to Parent or any Subsidiary, (c) transfer any of its properties or assets to Parent or any
Subsidiary or (B) the ability of Parent or any other Subsidiary of Parent to create, incur, assume
or suffer to exist any Lien upon its property or assets to secure the Obligations, other than
prohibitions or restrictions existing under or by reason of:




          (i) this Agreement and the other Credit Documents;




          (ii) applicable law;




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     (iii) customary non-assignment provisions entered into in the ordinary course of
business and consistent with past practices;




     (iv) any restriction or encumbrance with respect to a Subsidiary of Parent imposed
pursuant to an agreement which has been entered into for the sale or disposition of all or
substantially all of the capital stock or assets of such Subsidiary, so long as such sale or
disposition is permitted under this Agreement; and




     (v) Permitted Liens and any documents or instruments governing the terms of any
Indebtedness or other obligations secured by any such Liens, provided that such
prohibitions or restrictions apply only to the assets subject to such Liens.




          9.07 Transactions with Affiliates. (a) Parent will not, and will not permit any
Subsidiary to, enter into any transaction or series of transactions after the Closing Date whether
or not in the ordinary course of business, with any Affiliate other than on terms and conditions
substantially as favorable to Parent or such Subsidiary as would be obtainable by Parent or such
Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, provided that the foregoing
restrictions shall not apply to (i) employment arrangements entered into in the ordinary course of
business with officers of Parent and its Subsidiaries, (ii) customary fees paid to members of the
Board of Directors of Parent and of its Subsidiaries, (iii) immaterial transactions with the
officers or members of the Board of Directors of Parent or its Subsidiaries and (iv) immaterial
transactions with Affiliates.




          (b) Parent will not and will not permit any Guarantor to transfer any assets to any
Subsidiary which is not a Guarantor unless, immediately after giving effect thereto, Parent shall
remain in compliance with the provisions of Section 9.03 (including, without limitation, Section
9.03(g)).




          9.08 Interest Coverage Ratio. Parent shall not permit the Interest Coverage Ratio on the
last day of any period of four consecutive fiscal quarters of Parent, taken as one accounting
period, to be less than 3.00:1.00.




          9.09 Leverage Ratio. Parent shall not permit the Leverage Ratio at any time to be more
than 0.40:1.00.




          SECTION 10. Events of Default. Upon the occurrence of any of the following specified
events (each an “Event of Default”):




          10.01 Payments. The Borrower shall default in the payment when due of any principal of
the Loans or default in the payment when due, and such default shall continue for more than two
Business Days, of any interest or other amounts owing hereunder or under any other Credit Document;
or




          10.02 Representations, etc. Any representation, warranty or statement made by any Credit
Party herein or in any other Credit Document or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or




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          10.03 Covenants. Any Credit Party shall (a) default in the due performance or observance
by it of any term, covenant or agreement contained in Sections 8.01(d), 8.08 or 9 or (b) default in
the due performance or observance by it of any term, covenant or agreement (other than those
referred to in Sections 10.01, 10.02 or clause (a) of this Section 10.03) contained in this
Agreement, and such default shall continue unremedied for a period of at least 30 days after notice
to Parent by the Administrative Agent or the Required Lenders; or




          10.04 Default Under Other Agreements. (a) Parent or any of its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any, applicable thereto or
(ii) default in the observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto,
or any other event shall occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause any such Indebtedness to become due prior to
its stated maturity; or (b) any such Indebtedness of Parent or any of its Subsidiaries shall be
declared to be due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, provided that it shall not
constitute an Event of Default pursuant to this Section 10.04 unless the aggregate amount of all
Indebtedness referred to in clauses (a) and (b) above exceeds $25,000,000 at any one time; or




          10.05 Bankruptcy, etc. Parent or any Subsidiary shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or
hereafter in effect, or any successor thereto (the “Bankruptcy Code”); or an involuntary case is
commenced against Parent or any other Credit Party and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of
the property of Parent or any other Credit Party; Parent or any other Credit Party commences any
other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter
in effect relating to Parent or any other Credit Party; or there is commenced against Parent or any
other Credit Party any such case or proceeding which remains undismissed for a period of 60 days;
or Parent or any other Credit Party is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; Parent or any other Credit Party
suffers any appointment of any custodian or the like for it or any substantial part of its property
to continue undischarged or unstayed for a period of 60 days; or Parent or any other Credit Party
makes a general assignment for the benefit of creditors; or any corporate action is taken by Parent
or any other Credit Party for the purpose of effecting any of the foregoing; or




          10.06 Guaranty. Any Guaranty or any provision thereof shall, after execution and delivery
thereof, cease to be in full force and effect, or any Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm all or any portion of such Guarantor’s obligation
thereunder, or any Guarantor shall default in the observance of any term, covenant or agreement on
its part to be performed or observed pursuant thereto and such default (other than any default
arising from a failure to make any payment thereunder) shall continue unremedied for a period of at
least 30 days after notice to Parent by the Administrative Agent or the Required Lenders; or





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          10.07 Judgments. One or more unpaid judgments or decrees shall be entered against Parent
or any Subsidiary involving a liability not covered by insurance of $25,000,000 or more in the
aggregate for all such judgments and decrees for Parent and the other Credit Parties and any such
judgments or decrees shall not have been vacated, discharged or stayed or bonded pending appeal
within 30 days from the entry thereof for domestic judgments or 60 days from the entry thereof for
foreign judgments; or




          10.08 ERISA. (a) Any Plan shall fail to satisfy the minimum funding standard required for
any plan year or part thereof under Section 412 of the Code or Section 302 of ERISA or a waiver of
such standard or extension of any amortization period is sought or granted under Section 412 of the
Code or Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a contributing sponsor
(as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA shall be
subject to the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur with respect to such Plan
within the following 30 days, any Plan which is subject to Title IV of ERISA shall have had or is
reasonably likely to have a trustee appointed to administer such Plan, any Plan which is subject to
Title IV of ERISA is, shall have been or is reasonably likely to be terminated or to be the subject
of termination proceedings under ERISA, any Plan shall have an Unfunded Current Liability, a
contribution required to be made with respect to a Plan or a Foreign Pension Plan is not timely
made, Parent or any of its Subsidiaries or any ERISA Affiliate has incurred or is likely to incur
any liability to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of
a group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code)
under Section 4980B of the Code, or Parent, or any of its Subsidiaries, has incurred or is likely
to incur liabilities pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) that provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Plans or Foreign Pension Plans, a “default,” within the
meaning of Section 4219(c)(5) of ERISA, shall occur with respect to any Plan; any applicable law,
rule or regulation is adopted, changed or interpreted, or the interpretation or administration
thereof is changed, in each case after the date hereof, by any governmental authority or agency or
by any court (a “Change in Law”), or, as a result of a Change in Law, an event occurs following a
Change in Law, with respect to or otherwise affecting any Plan; (b) there shall result from any such event or events the imposition of a lien,
the granting of a security interest, or a liability or a material risk of incurring a liability;
and (c) such liability (including any liability underlying any such lien or security interest,
individually, or in the aggregate), exceeds $25,000,000; or




          10.09 Change of Control. Any Change of Control shall occur;




          then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to the Borrower, take any or all of the following actions, without prejudice to the
rights of the Administrative Agent or any Lender to enforce its claims against the Borrower, except
as otherwise specifically provided for in this Agreement (provided that, if an Event of
Default specified in Section 10.05 shall occur with respect to Parent or any Subsidiary, the result
which would occur upon the giving of written notice by the Administrative




-27-









 







Agent as specified in
clauses (i) and (ii) below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment terminated, whereupon the Commitment of each Lender shall forthwith
terminate immediately, (ii) declare the principal of and any accrued interest in respect of all
Loans and all obligations owing hereunder and thereunder to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower and (iii) apply any amounts held as cash collateral
pursuant to Section 4.02 to repay Obligations.




          SECTION 11. Definitions. As used herein, the following terms shall have the meanings
herein specified unless the context otherwise requires. Defined terms in this Agreement shall
include in the singular number the plural and in the plural the singular:




          “Adjusted Consolidated EBITDA” shall mean for any period Consolidated EBITDA for such period,
less cash Dividends and cash taxes paid during such period, plus, without duplication, cash
payments for the repurchase of common stock made pursuant to Section 9.05.




          “Administrative Agent” shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Administrative Agent appointed pursuant to Section
12.09.




          “Affected Eurodollar Loan” shall have the meaning provided in Section 4.02(B).




          “Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly
controlling (including but not limited to all directors and officers of such Person), controlled
by, or under direct or indirect common control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the power (i) to vote 10%
or more of the securities having ordinary voting power for the election of directors of such
corporation or (ii) to direct or cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities, by contract or otherwise.




          “Agreement” shall mean this Credit Agreement, as the same may be modified, amended and/or
supplemented from time to time.




          “Amended and Restated Credit Agreement” shall mean the Amended and Restated Credit Agreement,
dated as of May 1, 2002, among Noble Corporation, Noble Holding (U.S.) Corporation, Noble Drilling
Corporation, Nordea Bank Norge ASA New York Branch, as administrative agent, and the other lenders
and agents named therein or from time to time party thereto.




          “Applicable Eurodollar Margin” shall at all times be a percentage per annum determined in
accordance with the Pricing Grid set forth on Annex III hereto and the Borrower’s then applicable
Credit Rating.




          “Approved Bank” shall have the meaning provided in the definition of “Cash Equivalents.”




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          “Assignment and Assumption Agreement” shall mean the Assignment and Assumption Agreement
substantially in the form of Exhibit J (appropriately completed).




          “Authorized Officer” shall mean any senior officer of a Credit Party designated as such in
writing to the Administrative Agent by such Credit Party.




          “Bankruptcy Code” shall have the meaning provided in Section 10.05.




          “Base Rate” at any time shall mean the higher of, (i) the rate which is 1/2 of 1% in excess of
the Federal Funds Effective Rate, and (ii) the Prime Lending Rate.




          “Base Rate Loan” shall mean each Loan bearing interest at the rates provided in Section
1.08(a).




          “Borrower” shall have the meaning provided in the first paragraph of this Agreement.




          “Borrowing” shall mean the incurrence of one Type of Loan pursuant to the Facility by the
Borrower from all of the Lenders with respect to such Facility on a pro rata basis
on a given date (or resulting from conversions on a given date), having in the case of Eurodollar
Loans the same Interest Period; provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.




          “Business Day” shall mean (i) for all purposes other than as covered by clause (ii) below, any
day excluding Saturday, Sunday and any day which shall be in the City of New York a legal holiday
or a day on which banking institutions are authorized by law or other governmental actions to close
and (ii) with respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause
(i) and which is also a day for trading by and between banks in U.S. dollar deposits in the
interbank Eurodollar market.




          “Capital Lease” as applied to any Person shall mean any lease of any property (whether real,
personal or mixed) by that Person as lessee which, in conformity with GAAP, is accounted for as a
capital lease on the balance sheet of that Person.




          “Capitalized Lease Obligations” shall mean all obligations under Capital Leases of Parent or
any of its Subsidiaries in each case taken at the amount thereof accounted for as liabilities in
accordance with GAAP.




          “Cash Equivalents” shall mean (i) securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged in support thereof)
having maturities of not more than five years from the date of acquisition, or repurchase
obligations with respect thereto, (ii) U.S. dollar denominated time deposits, certificates of
deposit, bankers’ acceptances and Eurocurrency deposits of (x) any Lender, (y) any domestic
commercial bank of recognized standing having capital and surplus in excess of $100,000,000 or (z)
any bank (or the parent company of such bank) whose short-term commercial paper rating from S&P is
at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the




-29-









 







equivalent thereof
(any such bank, an “Approved Bank”), in each case with maturities of not more than one year from
the date of acquisition, (iii) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into with any bank meeting
the qualifications specified in clause (ii) above, (iv) commercial paper issued by any Lender or
Approved Bank or by the parent company of any Lender or Approved Bank and commercial paper issued
by, or guaranteed by, any corporation with a short-term commercial paper rating of at least A-1 or
the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, or guaranteed
by any industrial company with a long term unsecured debt rating of at least A or A2, or the
equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case maturing
within one year after the date of acquisition and (v) investments in money market mutual funds
having assets in excess of $100,000,000.




          “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. § 9601 et seq.




          “Change of Control” shall mean (a) any “person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the
Voting Stock of Parent, (b) during any period of two consecutive years individuals who at the
beginning of such period constituted the Board of Directors of Parent (together with any new
directors whose election by such Board of Directors or whose nomination for election by the
stockholders of Parent was approved by a vote of a majority of the directors of Parent then still
in office who were either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a majority of the Board
of Directors of Parent then in office or (c) Parent shall cease to own directly or indirectly 100%
of the issued and outstanding capital stock of the Borrower.




          “Claims” shall have the meaning provided in the definition of “Environmental Claims.”




          “Closing Date” shall mean the date on which the conditions set forth in Sections 5 and 6 are
satisfied and the Loans are made hereunder.




          “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time and the
regulations promulgated and the rulings issued thereunder. Section references to the Code are to
the Code, as in effect on the Closing Date and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.




          “Commitment” shall mean, with respect to each Lender, the amount set forth opposite such
Lender’s name in Annex I directly below the column entitled “Commitment,” as the same may be
adjusted from time to time as a result of assignments to or from such Lender pursuant to Section
13.04.




          “Consolidated EBIT” shall mean, for any period, (A) the sum of the amounts for such period of
(i) Consolidated Net Income, (ii) provisions for taxes based on income, (iii) Consolidated Interest
Expense, (iv) amortization or write-off of deferred financing costs to the




-30-









 







extent deducted in
determining Consolidated Net Income and (v) losses on sales of assets (excluding sales in the
ordinary course of business) and other extraordinary losses less (B) the amount of gains on
sales of assets (excluding sales in the ordinary course of business) and other extraordinary gains,
all as determined on a consolidated basis in accordance with GAAP.




          “Consolidated EBITDA” shall mean, for any period, the sum of the amounts for such period of
(i) Consolidated EBIT, (ii) depreciation expense of Parent and its Subsidiaries and (iii)
amortization expense of Parent and its Subsidiaries, all as determined on a consolidated basis in
accordance with GAAP.




          “Consolidated Funded Indebtedness” shall mean, as at any date of determination, the aggregate
stated balance sheet amount of all Indebtedness (including the Loans) of the Borrower and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP, excluding all
Contingent Obligations relating to the Indebtedness of any Person which is included in the
calculation of Consolidated Funded Indebtedness of Parent and its Subsidiaries.




          “Consolidated Interest Expense” shall mean, for any period, total interest expense (including
that attributable to Capital Leases) of Parent and its Subsidiaries in accordance with GAAP on a
consolidated basis with respect to all outstanding Indebtedness of Parent and its Subsidiaries.




          “Consolidated Net Income” shall mean for any period, the net income (or loss) of Parent and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP.




          “Consolidated Net Tangible Assets” shall mean the book value of all assets of Parent and its
Subsidiaries determined in accordance with GAAP minus (x) current liabilities and (y) the
book value of all goodwill and other intangible assets determined in accordance with GAAP.




          “Consolidated Net Worth” shall mean, at any time, shareholder’s equity of Parent and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.




          “Contingent Obligations” shall mean as to any Person any obligation of such Person
guaranteeing or intending to guarantee any Indebtedness, leases, dividends or other obligations
(“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly
or indirectly, including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (d) otherwise to assure or hold harmless the owner of such primary obligation against loss in
respect thereof, provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary course of business.
The amount of any Contingent Obligation shall be deemed to be an amount equal to




-31-









 







the stated or
determinable amount of the primary obligation in respect of which such Contingent Obligation is
made or, if not stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined by such Person in
good faith.




          “Credit Documents” shall mean this Agreement, the Notes and each Subsidiary Guaranty (if any)
and any documents executed in connection therewith.




          “Credit Event” shall mean the making of a Loan.




          “Credit Party” shall mean the Borrower and each Guarantor.




          “Credit Rating” shall mean the Borrower’s credit rating in respect of its senior unsecured
long term debt obligations as determined by reference to the S&P Credit Rating and the Moody’s
Credit Rating, there being six categories for purposes of this Agreement:




	 	 	 	 	 	 
	 	 	S&P Credit Rating	 	Moody’s Credit Rating	
	Category 1

	 	A+, or higher
	 	A1, or higher	
	 
	Category 2

	 	A
	 	A2	
	 
	Category 3

	 	A-
	 	A3	
	 
	Category 4

	 	BBB+
	 	Baa1	
	 
	Category 5

	 	BBB
	 	Baa2	
	 
	Category 6

	 	BBB- or lower
	 	Baa3 or lower	






          In the event that none of the Borrower’s senior unsecured long term debt is rated by the
Rating Agencies, the Borrower shall be deemed to have a category 6 Credit Rating. If only one
Credit Rating exists at any time, then such Credit Rating shall be utilized. In the event of a
split rating of two or more Categories, the Category one below the higher Category will apply. In the event that the S&P Credit Rating and Moody’s Credit Rating differ by one
Category, the higher of the two shall apply. In the event that either S&P or Moody’s revises its
rating system as in effect on the Closing Date, the Borrower’s Credit Rating shall be determined
based on the rating which is most analogous to the applicable rating set forth above.




          If any Credit Rating shall be downgraded by Moody’s or S&P, such change shall be effective for
purposes of this definition as of the Business Day on which such change in Credit Rating is
announced by Moody’s and/or S&P, as the case may be, provided that nothing herein shall
relieve the Borrower of its obligation to notify the Lenders of any such change pursuant to Section
8.01. If any credit rating shall be upgraded by Moody’s or S&P, such change shall be effective for
purposes of this definition as of the Business Day upon which the Lenders receive notice of any
such change pursuant to Section 8.01.




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          “Default” shall mean any event, act or condition which with notice or lapse of time, or both,
would constitute an Event of Default.




          “Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.




          “Dividend” shall mean to declare or pay on the part of Parent or any of its Subsidiaries any
dividends (other than dividends payable solely in capital stock of such Person) or return any
capital to, its stockholders or authorize or make any other distribution, payment or delivery of
property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire,
directly or indirectly, for a consideration, any shares of any class of its capital stock now or
hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of
any of such shares), or set aside any funds for any of the foregoing purposes, or permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the
capital stock of Parent or any other Subsidiary, as the case may be, now or hereafter outstanding
(or any options or warrants or stock appreciation rights issued by such Person with respect to its
capital stock).




          “Dollar Equivalent” of an amount denominated in any currency other than Dollars (the
“applicable currency”) shall mean, at any time of determination thereof, the amount of Dollars
which could be purchased with the amount of the applicable currency involved in such computation at
the spot exchange rate therefor as quoted by the Administrative Agent as of 11:00 a.m. (New York
time) on the date two Business Days prior to the date of any determination thereof.




          “Dollars” shall mean freely transferable lawful money of the United States.




          “Domestic Subsidiary” shall mean, as to any Person, any Subsidiary that is incorporated under
the laws of the United States, any State thereof or any territory thereof.




          “Eligible Transferee” shall mean and include a commercial bank, financial institution or other
“accredited investor” (as defined by Regulation D of the Securities Act of 1933).




          “Environmental Claims” means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations (other than internal reports prepared by Parent or any of its Subsidiaries solely in
the ordinary course of such Person’s business and not in response to any third party action or
request of any kind) or proceedings relating in any way to any Environmental Law or any permit
issued, or any approval given, under any such Environmental Law (hereafter, “Claims”), including,
without limitation, (a) 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 (b) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials arising from alleged injury or threat of injury to health, safety or the
environment.




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          “Environmental Law” means any applicable Federal, state, foreign or local statute, law, rule,
regulation, ordinance, code, guide, policy and rule of common law now or hereafter in effect and in
each case as amended, and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to the environment, or
Hazardous Materials, including, without limitation, CERCLA; RCRA; the Federal Water Pollution
Control Act, as amended, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control
Act, 15 U.S.C. § 7401 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et
seq.; the Safe Drinking Water Act, 42 U.S.C. § 3808 et seq.; the Oil
Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; and any applicable state and local
or foreign counterparts or equivalents.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder. Section references to
ERISA are to ERISA, as in effect at the Closing Date and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.




          “ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which together
with Parent or any Subsidiary would be deemed to be a “single employer” (i) within the meaning of
Sections 414(b), (c), (m) and (o) of the Code or (ii) as a result of Parent or any Subsidiary being
or having been a general partner of such person.




          “Eurodollar Loans” shall mean each Loan bearing interest at the rates provided in Section
1.08(b).




          “Eurodollar Rate” shall mean with respect to each Interest Period for a Loan, the offered rate
(rounded upward to the nearest 1/16 of one percent) for deposits of Dollars for a period equivalent
to such period at or about 11:00 A.M. (London time) on the second London Banking Day before the
first day of such period as is displayed on Telerate page 3750 (British Bankers’ Association
Interest Settlement Rates) (or such other page as may replace such page 3750 on such system or on
any other system of the information vendor for the time being designated by the British Bankers’
Association to calculate the BBA Interest Settlement Rate (as defined in the British Bankers’
Association’s Recommended Terms and Conditions (“BBAIRS” terms) dated August 1985)), provided that
if on such date no such rate is so displayed, the Eurodollar Rate for such period shall be the rate
quoted to the Administrative Agent as the offered rate for deposits of Dollars in an amount
approximately equal to the amount in relation to which the Eurodollar Rate is to be determined for a period equivalent to such period by prime
banks in the London Interbank Market at or about 11:00 A.M. (London time) on the second Banking Day
before the first day of such period.




          “Event of Default” shall have the meaning provided in Section 10.




          “Existing Indebtedness” shall have the meaning provided in Section 7.18.




          “Facility” shall mean the loan facility established under this Agreement, evidenced by the
Notes.




          “Federal Funds Effective Rate” shall mean for any period, a fluctuating interest rate equal
for each day during such period to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal




-34-









 







Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.




          “Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation
fund) or other similar program established or maintained outside the United States of America by
Parent or any one or more of its Subsidiaries primarily for the benefit of employees of Parent or
such Subsidiaries residing outside the United States of America, which plan, fund or other similar
program provides, or results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan is not subject to
ERISA or the Code.




          “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.




          “GAAP” shall mean generally accepted accounting principles in the United States of America as
in effect on the date of this Agreement; it being understood and agreed that determinations in
accordance with GAAP for purposes of Section 9, including defined terms as used therein, are
subject to Section 13.07(a).




          “Guaranteed Creditors” shall mean and include each of the Administrative Agent, the Lenders
and each Lender or affiliate of such Lender (each such Lender or affiliate, even if the respective
Lender subsequently ceases to be a Lender under the Credit Agreement for any reason) party to an
Interest Rate Agreement.




          “Guaranteed Obligations” shall mean (i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of the principal and interest on each Note issued
by, and all Loans made to, the Borrower under this Agreement together with all the other
obligations (including obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), indebtedness and liabilities (including, without limitation,
indemnities, fees and interest (including any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided for herein, whether or not such interest is an allowed claim in any such proceeding)
thereon) of the Borrower to the Lenders and the Administrative Agent now existing or hereafter
incurred under, arising out of or in connection with this Agreement and each other Credit Document
to which the Borrower is a party and the due performance and compliance by the Borrower with all
the terms, conditions and agreements contained in the Credit Agreement and in each such other
Credit Document and (ii) the full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations (including obligations which, but for the automatic
stay under Section 362(a) of the Bankruptcy Code, would become due), liabilities and indebtedness
(including any interest accruing after the commencement of any bankruptcy, insolvency, receivership
or similar proceeding at the rate provided for herein, whether or not such interest is an allowed
claim in any such proceeding) of the Borrower owing under any Interest Rate Agreement entered into
by the Borrower with any Lender or any affiliate thereof (even if such Lender subsequently ceases
to be a Lender under this Agreement for any




-35-









 







reason) so long as such Lender or affiliate
participates in such Interest Rate Agreement and their subsequent assigns, if any, whether now in
existence or hereafter arising, and the due performance and compliance with all terms, conditions
and agreements contained therein.




          “Guarantor” shall mean each Parent Guarantor and each Subsidiary Guarantor.




          “Guaranty” shall mean the Parent Guaranty and the Subsidiary Guaranty.




          “Hazardous Materials” means (a) any petroleum or petroleum products, radioactive materials,
asbestos in any form that is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment that contained electric fluid containing levels of polychlorinated
biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the
definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely
hazardous waste,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,”
“contaminants,” or “pollutants,” or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority.




          “Indebtedness” of any Person shall mean without duplication (i) all indebtedness of such
Person for borrowed money, (ii) the deferred purchase price of assets or services which in
accordance with GAAP would be shown on the liability side of the balance sheet of such Person,
(iii) the face amount of all letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second Person secured by any
Lien on any property owned by such first Person, whether or not such indebtedness has been assumed,
(v) all Capitalized Lease Obligations of such Person, (vi) all obligations of such Person to pay a
specified purchase price for goods or services whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vii) all net obligations of such Person under Interest Rate
Agreements and (viii) all Contingent Obligations of such Person (other than Contingent Obligations
arising from the guaranty by such Person of Permitted Indebtedness of Parent and/or its
Subsidiaries), provided that Indebtedness shall not include trade payables and accrued
expenses, in each case arising in the ordinary course of business.




          “Interest Coverage Ratio” shall mean, for any period, the ratio of (i) Adjusted Consolidated
EBITDA for such period to (ii) Consolidated Interest Expense for such period.




          “Interest Period” with respect to any Eurodollar Loan shall have the meaning provided in
Section 1.09.




          “Interest Rate Agreement” shall mean any interest rate swap agreement, any interest rate cap
agreement, any interest rate collar agreement or other similar agreement or arrangement designed to
protect Parent or any Subsidiary against interest rate risk.




          “Investments” shall mean and include (i) lending money or credit or making advances to any
Person (net of any repayments or returns thereof), (ii) purchasing or acquiring any stock,
obligations or securities of, or any other interest in, or making capital contributions to any
Person, or (iii) guaranteeing the debt or obligations of any other Person.





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          “Leasehold” of any Person means all of the right, title and interest of such Person as lessee
or licensee in, to and under leases or licenses of land, improvements and/or fixtures.




          “Lender” shall mean GSCP and any other person that becomes a Lender by assignment pursuant to
Section 13.4(b).




          “Lender Default” shall mean (i) the refusal (which has not been retracted) of a Lender to make
available its portion of any Borrowing or (ii) a Lender having notified the Administrative Agent
and/or the Borrower that it does not intend to comply with the obligations under Section 1.01.




          “Leverage Ratio” shall mean, at any date of determination, the ratio of Consolidated Funded
Indebtedness on such date to Total Capitalization on such date.




          “Lien” shall mean any mortgage, pledge, security interest, security title, encumbrance, lien
or charge of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement or any lease in the nature thereof).




          “Loan” shall have the meaning provided in Section 1.01.




          “Margin Stock” shall have the meaning provided in Regulation U.




          “Material Adverse Effect” shall mean a material adverse effect on the business, property,
assets, liabilities, operations, financial condition or prospects of Parent and its Subsidiaries
taken as a whole.




          “Maturity Date” shall mean the date which is 60 days after the Closing Date.




          “Minimum Borrowing Amount” shall mean (i) for Loans maintained as Base Rate Loans, $1,000,000,
and (ii) for Loans maintained as Eurodollar Loans, $5,000,000.




          “Moody’s” shall mean Moody’s Investors Service, Inc. and its successors.




          “Moody’s Credit Rating” shall mean the rating level (it being understood that a rating level
shall include all alphabetical (including case distinctions), numerical and (+) and (-) modifiers)
assigned by Moody’s to the senior unsecured long term debt of the Borrower.




          “Non-Defaulting Lender” shall mean each Lender other than a Defaulting Lender.




          “Non-Wholly Owned Subsidiary” shall mean any Subsidiary of Parent which is not a Wholly-Owned
Subsidiary.




          “Note” shall have the meaning provided in Section 1.05(a).




          “Notice of Borrowing” shall have the meaning provided in Section 1.03.




          “Notice of Conversion” shall have the meaning provided in Section 1.06.




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          “Notice Office” shall mean the office of the Administrative Agent at 85 Broad Street, New
York, New York 10004 or such other office as the Administrative Agent may designate to the Borrower
from time to time.




          “Obligations” shall mean all amounts, direct or indirect, contingent or absolute, of every
type or description, and at any time existing, owing to the Administrative Agent or any Lender
pursuant to the terms of this Agreement or any other Credit Document.




          “Parent” shall have the meaning provided in the first paragraph of this Agreement.




          “Parent Guarantor” shall have the meaning provided the first paragraph to this Agreement.




          “Parent Guaranty” shall mean the guaranty of the Borrower’s Obligations set forth in Article
XIV.




          “Payment Office” shall mean the office as the Administrative Agent may designate to the
Borrower from time to time.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA, or any successor thereto.




          “Percentage” shall mean for each Lender the percentage obtained by dividing such Lender’s
Commitment by the Total Commitment, provided that if the Total Commitment has been
terminated, the Percentage of each Lender shall be determined by dividing such Lender’s Commitment
immediately prior to such termination by the Total Commitment immediately prior to such
termination.




          “Permitted Indebtedness” shall mean Indebtedness described in Section 9.03(a) through (g).




          “Permitted Liens” shall mean Liens described in Section 9.04(a) through (j).




          “Person” shall mean any individual, partnership, joint venture, firm, corporation,
association, limited liability company, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.




          “Plan” shall mean any multiemployer or single-employer plan as defined in Section 4001 of
ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute
of) Parent or a Subsidiary of Parent or an ERISA Affiliate.




          “Pricing Grid” shall mean the pricing grid set forth on Annex III attached hereto.




          “Prime Lending Rate” shall mean the rate which the Administrative Agent announces from time to
time as its prime lending rate, the Prime Lending Rate to change when and as such prime lending
rate changes. The Prime Lending Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. The




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Administrative Agent may make commercial
loans or other loans at rates of interest at, above or below the Prime Lending Rate.




          “Rating Agencies” shall mean each of Moody’s and S&P.




          “RCRA” shall mean the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901
et seq.




          “Real Property” of any Person shall mean all of the right, title and interest of such Person
in and to land, improvements and fixtures, including Leaseholds.




          “Register” shall have the meaning provided in Section 13.16.




          “Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof establishing reserve
requirements.




          “Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof.




          “Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof establishing margin
requirements.




          “Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof.




          “Replaced Lender” shall have the meaning provided in Section 1.13.




          “Replacement Lender” shall have the meaning provided in Section 1.13.




          “Required Lenders” shall mean Non-Defaulting Lenders whose outstanding Commitments (or, if
after the Total Commitment has been terminated, outstanding Loans constitute greater than 50% of
the aggregate Commitments of Non-Defaulting Lenders (or, if after the Total Commitment has been
terminated, the total outstanding Loans of Non-Defaulting Lenders).




          “Restricted Payments” shall mean any Dividend or Investment.




          “S&P” shall mean Standard & Poor’s Ratings Group and its successors.




          “S&P Credit Rating” shall mean the rating level (it being understood that a rating level shall
include alphabetical (including case distinctions), numerical and (+) and (-) modifiers) assigned
by S&P to the senior unsecured long-term debt of the Borrower.




          “SEC” shall mean the Securities and Exchange Commission or any successor thereto.




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          “Section 4.04(b)(ii) Certificate” shall have the meaning provided in Section 4.04(b)(ii).




          “Specified Default” shall mean any Default pursuant to Sections 10.01 and/or 10.05 and any
Event of Default.




          “Subsidiary” of any Person shall mean and include (i) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries
and (ii) any partnership, association, joint venture, a limited liability company or other entity
in which such Person directly or indirectly through Subsidiaries, has more than a 50% equity
interest at the time. Unless otherwise expressly provided, all references herein to “Subsidiary”
shall mean a Subsidiary of Parent.




          “Subsidiary Guarantor” shall mean each Domestic Subsidiary of Parent from time to time party
to a Subsidiary Guaranty.




          “Subsidiary Guaranty” shall have the meaning provided in Section 8.11.




          “Taxes” shall have the meaning provided in Section 4.04(a).




          “Total Capitalization” shall mean, at any time, the sum of Consolidated Funded Indebtedness
and Consolidated Net Worth at such time.




          “Total Commitment” shall mean, at any time, the sum of the Commitments of each of the Lenders
at such time, which Total Commitment on the Closing Date shall be $600,000,000.




          “Type” shall mean any type of Loan determined with respect to the interest option applicable
thereto, i.e., a Base Rate Loan or Eurodollar Loan.




          “UCC” shall mean the Uniform Commercial Code.




          “Unfunded Current Liability” of any Plan shall mean the amount, if any, by which the value of
the accumulated plan benefits under the Plan determined on a plan termination basis
in accordance with actuarial assumptions at such time consistent with those prescribed by the
PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions).




          “United States” and “U.S.” shall each mean the United States of America.




          “Voting Stock” shall mean, with respect to any corporation, the outstanding stock of all
classes (or equivalent interests) which ordinarily, in the absence of contingencies, entitles
holders thereof to vote for the election of directors (or Persons performing similar functions) of




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such corporation, even though the right so to vote has been suspended by the happening of such a
contingency.




          “Wholly Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of whose
capital stock (other than directors qualifying shares) is at the time owned directly or indirectly
by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person and/or one or more
Wholly Owned Subsidiaries of such Person directly or indirectly has a 100% equity interest at such
time.




          “Written” or “in writing” shall mean any form of written communication or a communication by
means of telex or facsimile transmission.




          SECTION 12. The Administrative Agent.




          12.01 Appointment. The Lenders hereby designate GSCP as Administrative Agent to act as
specified herein and in the other Credit Documents. Each Lender hereby irrevocably authorizes, and
each holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent to take such action on its behalf under the provisions of this Agreement,
the other Credit Documents and any other instruments and agreements referred to herein or therein
and to exercise such powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto. The Administrative Agent may perform any of its
duties hereunder by or through its respective officers, directors, agents, employees or Affiliates
(including by appointing one or more of its banking Affiliates to act as Administrative Agent
hereunder).




          12.02 Nature of Duties. The Administrative Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and the other Credit Documents.
Neither the Administrative Agent nor any of its respective officers, directors, agents, employees
or Affiliates shall be liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by its or their gross
negligence or willful misconduct. The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or any other Credit
Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing
in this Agreement or any other Credit Document, expressed or implied, is intended to or shall be so
construed as to impose upon the Administrative Agent any obligations in respect of this Agreement
or any other Credit Document except as expressly set forth herein or therein.




          12.03 Lack of Reliance on the Administrative Agent. Independently and without reliance
upon the Administrative Agent, each Lender and the holder of each Note, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent investigation of the
financial condition and affairs of Parent and its Subsidiaries in connection with the making and
the continuance of the Loans and the taking or not taking of any action in connection herewith and
(ii) its own appraisal of the creditworthiness of Parent and its Subsidiaries and, except as
expressly provided in this Agreement, the Administrative Agent shall not have any




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duty or
responsibility, either initially or on a continuing basis, to provide any Lender or the holder of
any Note with any credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter. The Administrative
Agent shall not be responsible to any Lender or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any document, certificate or
other writing delivered in connection herewith or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or
any other Credit Document or the financial condition of Parent and its Subsidiaries or be required
to make any inquiry concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Credit Document, or the financial condition of Parent
and its Subsidiaries or the existence or possible existence of any Default or Event of Default.




          12.04 Certain Rights of the Administrative Agent. If the Administrative Agent shall
request instructions from the Required Lenders with respect to any act or action (including failure
to act) in connection with this Agreement or any other Credit Document, the Administrative Agent
shall be entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Lenders; and the
Administrative Agent shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, neither any Lender nor the holder of any Note shall have any right of
action whatsoever against the Administrative Agent as a result of the Administrative Agent acting
or refraining from acting hereunder or under any other Credit Document in accordance with the
instructions of the Required Lenders.




          12.05 Reliance. The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex,
teletype or telecopier message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be the proper Person,
including, without limitation, counsel to Parent and its Subsidiaries, and, with respect to all
legal matters pertaining
to this Agreement and any other Credit Document and its duties hereunder and thereunder, upon
advice and statements of legal counsel.




          12.06 Indemnification. To the extent the Administrative Agent is not reimbursed and
indemnified by the Borrower, the Lenders will reimburse and indemnify the Administrative Agent, in
proportion to their respective “percentages” as used in determining the Required Lenders, for and
against any and all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Administrative Agent in performing its respective duties
hereunder or under any other Credit Document, in any way relating to or arising out of this
Agreement or any other Credit Document; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence,
willful misconduct or unlawful act.




          12.07 The Administrative Agent in Its Individual Capacity. With respect to its obligation
to make Loans under this Agreement, the Administrative Agent shall have the rights and powers
specified herein for a “Lender” and may exercise the same rights and powers as




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though it were not
performing the duties specified herein; and the term “Lenders,” “Required Lenders,” “holders of
Notes” or any similar terms shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may accept deposits
from, lend money to, and generally engage in any kind of banking, trust or other business with
Parent or its Subsidiaries or any Affiliate thereof as if it were not performing the duties
specified herein, and may accept fees and other consideration from Parent or any of its
Subsidiaries for services in connection with this Agreement and otherwise without having to account
for the same to the Lenders.




          12.08 Holders. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer
or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent.
Any request, authority or consent of any Person who, at the time of making such request or giving
such authority or consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or indorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.




          12.09 Resignation by the Administrative Agent. (a) The Administrative Agent may resign
from the performance of all its functions and duties hereunder and/or under the other Credit
Documents at any time by giving 15 Business Days’ prior written notice to the Borrower and the
Lenders. Such resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.




          (b) Upon any such notice of resignation, the Required Lenders shall appoint a successor
Administrative Agent hereunder or thereunder who shall be a commercial bank or trust company
reasonably acceptable to the Borrower.




          (c) If a successor Administrative Agent shall not have been so appointed within such 15
Business Day period, the Administrative Agent, with the consent of the Borrower, shall then appoint
a successor Administrative Agent who shall serve as Administrative Agent hereunder or thereunder
until such time, if any, as the Required Lenders appoint a successor Administrative Agent as
provided above.




          (d) If no successor Administrative Agent has been appointed pursuant to clause (b) or (c)
above by the 20th Business Day after the date such notice of resignation was given by the
Administrative Agent, the Administrative Agent’s resignation shall become effective and the
Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder
and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.




          SECTION 13. Miscellaneous.




          13.01 Payment of Expenses, etc. The Borrower agrees to (and to cause each other Credit
Party, in respect of the Credit Document to which it is a party, to): (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent in connection with the negotiation, preparation, execution and
delivery of the Credit Documents and the documents and instruments referred to




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therein and any
amendment, waiver or consent relating thereto (including, without limitation, the reasonable fees
and disbursements of Latham & Watkins LLP) and of the Administrative Agent and, after the
occurrence and during the continuance of an Event of Default, each of the Lenders in connection
with the enforcement of the Credit Documents and the documents and instruments referred to therein
(including, without limitation, the actual reasonable fees and disbursements of counsel for the
Administrative Agent and, after the occurrence and during the continuance of an Event of Default
for each of the Lenders), provided that to the extent it is feasible and a conflict of
interest does not exist in the reasonable discretion of the Administrative Agent, the Lenders and
their counsel, the Lenders shall use the same counsel in connection with the foregoing; (ii) pay
and hold each of the Lenders harmless from and against any and all present and future stamp and
other similar taxes with respect to the foregoing matters and save each of the Lenders harmless
from and against any and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Lender) to pay such taxes; and (iii) indemnify each
Lender (including in its capacity as the Administrative Agent), its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of, or arising out of,
or in any way related to, or by reason of, (a) any investigation, litigation or other proceeding
(whether or not any Lender is a party thereto) related to the entering into and/or performance of
any Credit Document or the use of the proceeds of any Loans hereunder or the consummation of any
transactions contemplated in any Credit Document, whether initiated by the Borrower or any other
Person, including, without limitation, the actual reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other proceeding (but excluding
any such losses, liabilities, claims, damages or expenses to the extent incurred by reason of the
gross negligence, willful misconduct, unlawful act or material breach of the terms of this
Agreement of the Person to be indemnified) or (b) the actual or alleged presence of Hazardous
Materials in the air, surface water, groundwater, surface or subsurface of any Real Property,
offshore drilling rig, vessel or other facility or location at any time owned or operated by Parent
or any of its Subsidiaries, the generation, storage, transportation or disposal of Hazardous
Materials at any Real Property, offshore drilling rig, vessel or other facility or location at any
time owned or operated by Parent or any of its Subsidiaries, the non-compliance of any Real
Property, offshore drilling rig, vessel or other facility or location at any time owned or operated
by Parent or any of its Subsidiaries with federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any such Real Property, offshore
drilling rig, vessel or other facility or location, or any Environmental Claim asserted against
Parent, any of its Subsidiaries, or any Real Property, offshore drilling rig, vessel or other
facility or location at any time owned or operated by Parent or any of its Subsidiaries, including,
in each case, without limitation, the actual reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the extent incurred by reason of
the gross negligence, willful misconduct, unlawful act of the Person to be indemnified. To the
extent that the undertaking to indemnify, pay or hold harmless the Administrative Agent or any

Lender set forth in the preceding sentence may be unenforceable because it is violative of any law
or public policy, the Borrower shall make the maximum contribution to the payment and satisfaction
of each of the indemnified liabilities which is permissible under applicable law.




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          13.02 Right of Setoff. In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, if an Event of Default then
exists, each Lender is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by such Lender (including
without limitation by branches and agencies of such Lender wherever located) to or for the credit
or the account of the Borrower against and on account of the Obligations and liabilities of the
Borrower to such Lender under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations of the Borrower purchased by such Lender pursuant
to Section 13.06(b), and all other claims of any nature or description arising out of or connected
with this Agreement or any other Credit Document, irrespective of whether or not such Lender shall
have made any demand hereunder and although said Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured. Without limiting the foregoing, each Lender agrees to use
reasonable efforts to notify the Borrower of any exercise of such Lender’s right of setoff granted
hereby.




          13.03 Notices. (a) Except as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telex or telecopier communication) and
mailed, telexed, telecopied or delivered, if to Parent, the Borrower or its Subsidiaries, at the
address specified opposite its signature below or in the other relevant Credit Documents, as the
case may be; if to any Lender, at its address specified for such Lender on Annex II; or, at such
other address as shall be designated by any party in a written notice to the other parties hereto.
All such notices and communications shall be effective when received and, in the case of notice by
telecopier, after confirmation of such receipt has been given by the recipient, excluding by way of
automatic receipt produced by telecopier.




          (b) Without in any way limiting the obligation of the Borrower to confirm in writing any
telephonic notice permitted to be given hereunder, the Administrative Agent, may prior to receipt
of written confirmation act without liability upon the basis of such telephonic notice, believed by
the Administrative Agent in good faith to be from an Authorized Officer of the Borrower. In each
such case, the Borrower hereby waives the right to dispute the Administrative Agent’s record of the
terms of such telephonic notice.




     13.04 Benefit of Agreement. (a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the parties hereto,
provided that no Credit Party may assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Lenders. Each Lender may at any time grant
participations in any of its rights hereunder or under any of the Notes to another financial
institution, provided that in the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the participant’s rights
against such Lender in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such participation,
except that the participant shall be entitled to the benefits of Sections 1.10 and 4.04 of this
Agreement to the extent that such Lender would be entitled to such benefits if the participation
had not been entered into or sold, and, provided further, that no Lender shall transfer,
grant or



-45-









 







assign any participation under which the participant shall have rights 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) extend the final scheduled maturity of any Loan or Note in which such
participant is participating or reduce the rate or extend the time of payment of interest thereon
(except in connection with a waiver of the applicability of any post-default increase in interest
rates), or reduce the principal amount thereof, or increase such participant’s participating
interest in any Commitment over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a
mandatory prepayment, shall not constitute a change in the terms of any Commitment) or (ii) consent
to the assignment or transfer by the Borrower of any of its rights and obligations under this
Agreement.



          (b) Notwithstanding the foregoing, (x) any Lender may assign all or a portion of its
outstanding Commitment and its rights and obligations hereunder to its Affiliate or to another
Lender, and (y) with the consent of the Administrative Agent and the Borrower (which consent shall
not be unreasonably withheld), any Lender may assign all or a portion of its outstanding
Commitment and its rights and obligations hereunder to one or more Eligible Transferees. No
assignment pursuant to the immediately preceding sentence shall, to the extent such assignment is
made to an institution other than one or more Lenders hereunder, be in an aggregate amount less
than $10,000,000 unless the entire Commitment of the assigning Lender is so assigned. If any
Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference
in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and
to the respective assignee to the extent of their respective interests and the respective assignee
shall have, to the extent of such assignment (unless otherwise provided therein), the same rights
and benefits as it would if it were such assigning Lender. Each assignment pursuant to this
Section 13.04(b) shall be effected by the assigning Lender and the assignee Lender executing an
Assignment and Assumption Agreement. In the event of any such assignment (x) to a commercial bank
or other financial institution not previously a Lender hereunder, either the assigning or the
assignee Lender shall pay to the Administrative Agent a nonrefundable assignment fee of $3,500 and
(y) to a Lender, either the assigning or assignee Lender shall pay to Administrative Agent a
nonrefundable assignment fee of $1,500, and at the time of any assignment pursuant to this Section
13.04(b), (i) Annex I shall be deemed to be amended to reflect the Commitment of the respective
assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and
of the other Lenders, and (ii) if any such assignment occurs after the Closing Date, if requested
by the assigning Lender and the assignee Lender, the Borrower will issue new Notes to the
respective assignee and to the assigning Lender in conformity with the requirements of Section
1.05. Each Lender and the Borrower agree to execute such documents (including, without limitation,
amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the
foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes
or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank.




          (c) Notwithstanding any other provisions of this Section 13.04, no transfer or assignment of
the interests or obligations of any Lender hereunder or any grant of participation therein shall be
permitted if such transfer, assignment or grant would require the Borrower or either Parent
Guarantor to file a registration statement with the SEC or to qualify the Loans under the “Blue
Sky” laws of any State.





-46-










 






          (d) Each Lender initially party to this Agreement hereby represents, and each Person that
became a Lender pursuant to an assignment permitted by this Section 13 will, upon its becoming
party to this Agreement, represent that it is a commercial lender, other financial institution or
other “accredited” investor (as defined in SEC Regulation D) which makes loans in the ordinary
course of its business and that it will make or acquire Loans for its own account in the ordinary
course of such business, provided that subject to the preceding clauses (a) and (b), the
disposition of any promissory notes or other evidences of or interests in Indebtedness held by such
Lender shall at all times be within its exclusive control.




          13.05 No Waiver; Remedies Cumulative. No failure or delay on the part of the
Administrative Agent or any Lender in exercising any right, power or privilege hereunder or under
any other Credit Document and no course of dealing between Parent or any of its Subsidiaries and
the Administrative Agent or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative Agent or any Lender
would otherwise have. No notice to or demand on Parent or any of its Subsidiaries in any case
shall entitle Parent or any of its Subsidiaries to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the Administrative Agent or the
Lenders to any other or further action in any circumstances without notice or demand.




          13.06 Payments Pro Rata. (a) The Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of Parent or any of its Subsidiaries in respect of any
Obligations of Parent or any of its Subsidiaries hereunder, it shall distribute such payment to the
Lenders (other than any Lender that has expressly waived its right to receive its pro
rata share thereof) pro rata based upon their respective shares, if any, of
the Obligations with respect to which such payment was received.




          (b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s
lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents,
or otherwise) which is applicable to the payment of the principal of, or interest on, the Loans, of
a sum which with respect to the related sum or sums received by other Lenders is in a greater
proportion than the total of such Obligation then owed and due to such Lender bears to the total of
such Obligation then owed and due to all of the Lenders immediately prior to such receipt, then
such Lender receiving such excess payment shall purchase for cash without recourse or warranty from
the other Lenders an interest in the Obligations of Parent or any of its Subsidiaries,
respectively, to such Lenders in such amount as shall result in a proportional participation by all
of the Lenders in such amount, provided that if all or any portion of such excess amount is
thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest.




          (c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding
Sections 13.06(a) and (b) shall be subject to the express provisions of this Agreement which
require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to
Defaulting Lenders.




-47-









 





          13.07 Calculations; Computations. (a) The financial statements to be furnished to the
Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied
throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed
in writing by Parent to the Lenders), provided that (x) except all computations determining
compliance with Section 9, including definitions used therein, shall utilize accounting principles
and policies in effect at the time of the preparation of, and in conformity with those used to
prepare, the December 31, 2004 historical financial statements of the Borrower delivered to the
Lenders pursuant to Section 7.10(b), and (y) if at any time the computations determining compliance
with Section 9 utilize accounting principles different from those utilized in such financial
statements furnished to the Lenders, such financial statements shall be accompanied by
reconciliation worksheets.




          (b) All computations of interest relating to Eurodollar Loans shall be made on the actual
number of days elapsed over a year of 360 days. All other computations of interest hereunder shall
be made on the actual number of days elapsed over a year of 365 days.




          13.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial. (a) This
Agreement and the other Credit Documents and the rights and obligations of the parties hereunder
and thereunder shall be construed in accordance with and be governed by the law of the state of New
York. Any legal action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the state of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, each Credit Party party
hereto hereby irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts. Each Credit Party further
irrevocably consents to the service of process out 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 such Credit Party located outside New York City and by hand delivery to such Credit
Party located within New York City, at its address for notices pursuant to Section 13.03, such
service to become effective 30 days after such mailing. Nothing herein shall affect the right of
the Administrative Agent, any Lender to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against any Credit Party in any other jurisdiction.




          (b) Each Credit Party hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or any other Credit Document brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been brought in an
inconvenient forum.




          (c) Each of the parties to this agreement hereby irrevocably waives all right to a trial by
jury in any action, proceeding or counterclaim arising out of or relating to this agreement, the
other credit documents or the transactions contemplated hereby or thereby.




          13.09 Counterparts. This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the


-48-









 







same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.




          13.10 Reserved.




          13.11 Headings Descriptive. The headings of the several sections and subsections of this
Agreement are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.




          13.12 Amendment or Waiver. (a) Neither this Agreement nor any other Credit Document nor
any terms hereof or thereof may be changed, waived, discharged or terminated unless such change,
waiver, discharge or termination is in writing signed by the Borrower, each of the Parent
Guarantors and the Required Lenders, provided that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting Lender) affected
thereby, (i) extend the Maturity Date, or reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any post-default increase in interest
rates) thereon, or reduce the principal amount thereof, (ii) increase the Commitment of any Lender
over the amount thereof then in effect (it being understood that a waiver of any Default or Event
of Default or of a mandatory reduction in the Total Commitment shall not constitute a change in the
terms of any Commitment of any Lender), (iii) amend, modify or waive any provision of this Section,
(iv) reduce the percentage specified in the definition of Required Lenders or (v) consent to the
assignment or transfer by the Borrower of any of its rights and obligations under this Agreement.




          (b) If, in connection with any proposed change, waiver, discharge or termination to any of the
provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first
proviso to Section 13.12(a), the consent of the Required Lenders is obtained but the consent of one
or more of such other Lenders whose consent is required is not obtained, then the Borrower shall
have the right to replace each such non-consenting Lender or Lenders (so long as all non-consenting
Lenders are so replaced) with one or more Replacement Lenders pursuant to Section 1.13, so long as
at the time of such replacement, each such Replacement Lender consents to the proposed change,
waiver, discharge or termination, provided that the Borrower shall not have the right to replace a
Lender solely as a result of the exercise of such Lender’s rights (and the withholding of any
required consent by such Lender) pursuant to Section 13.12(a)(ii).




          13.13 Survival. All indemnities set forth herein including, without limitation, in Section
1.10, 1.11, 4.04, 12.07 or 13.01 shall survive the execution and delivery of this Agreement and the
making and repayment of the Loans.




          13.14 Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for the
account of any branch office, subsidiary or Affiliate of such Lender, provided that the
Borrower shall not be responsible for costs arising under Section 1.10 or 4.04 resulting from any
such transfer (other than a transfer pursuant to Section 1.12(a)) to the extent not otherwise
applicable to such Lender prior to such transfer.




          13.15 Confidentiality. Subject to Section 13.04, the Lenders shall hold all non-public
information obtained pursuant to the requirements of this Agreement in accordance


-49-









 







with its customary procedure for handling confidential information of this nature and in accordance
with safe and sound banking practices and in any event may make disclosure reasonably required by
any bona fide transferee or participant in connection with the contemplated
transfer of any Loans or participation therein (so long as such transferee or participant agrees in
writing to be bound by the provisions of this Section 13.15) or as required or requested by any
governmental agency or representative thereof or pursuant to legal process, provided that,
unless specifically prohibited by applicable law or court order, each Lender shall notify the
Borrower of any request by any governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition of such Lender by such
governmental agency) for disclosure of any such non-public information prior to disclosure of such
information, and provided further that in no event shall any Lender be obligated or required to
return any materials furnished by Parent or any Subsidiary.




          13.16 Registry. The Borrower hereby designates the Administrative Agent to serve as the
Borrower’s agent, solely for purposes of this Section 13.16, to maintain a register (the
“Register”) on which it will record the Commitments from time to time of each of the Lenders, the
Loans made by each of the Lenders and each repayment in respect of the principal amount of the
Loans of each Lender. Failure to make any such recordation, or any error in such recordation shall
not affect the Borrower’s obligations in respect of such Loans. With respect to any Lender, the
transfer of the Commitments of such Lender and the rights to the principal of, and interest on, any
Loan made pursuant to such Commitments shall not be effective until such transfer is recorded on
the Register maintained by the Administrative Agent with respect to ownership of such Commitments
and Loans and prior to such recordation all amounts owing to the transferor with respect to such
Commitments and Loans shall remain owing to the transferor. The registration of assignment or
transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent
on the Register only upon the acceptance by the Administrative Agent of a properly executed and
delivered Assignment and Assumption Agreement pursuant to Section 13.04(b). Coincident with the
delivery of such an Assignment and Assumption Agreement to the Administrative Agent for acceptance
and registration of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note evidencing such Loan, and
thereupon one or more new Notes in the same aggregate principal amount shall be issued to the
assigning or transferor Lender and/or the new Lender.




          SECTION 14. Parent Guaranty.




          14.01 Guaranty. In order to induce the Lenders to enter into this Agreement and to
extend credit hereunder and in recognition of the direct benefits to be received by each Parent
Guarantor from the proceeds of the Loans, each Parent Guarantor hereby agrees with the Lenders as
follows: each Parent Guarantor hereby unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety the full and prompt payment when due, whether upon maturity,
acceleration or otherwise, of any and all of the Guaranteed Obligations to the Guaranteed
Creditors. If any or all of the Guaranteed Obligations to the Guaranteed Creditors becomes due and
payable hereunder, each Parent Guarantor unconditionally promises to pay such indebtedness to the
Guaranteed Creditors, or order, on demand, together with any and all expenses which may be incurred
by the Guaranteed Creditors in collecting any of the Guaranteed Obligations. This Parent Guaranty
is a continuing one and all liabilities to which it applies or


-50-









 







may apply under the terms hereof shall be conclusively presumed to have been created in a
reliance hereon. If claim is ever made upon any Guaranteed Creditor for repayment or recovery of
any amount or amounts received in payment or on account of any of the Guaranteed Obligations and
any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree
or order of any court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such payee with any
such claimant (including the Borrower), then and in such event each Parent Guarantor agrees that
any such judgment, decree, order, settlement or compromise shall be binding upon such Parent
Guarantor, notwithstanding any revocation of this Parent Guaranty or any other instrument
evidencing any liability of the Borrower or any of its Subsidiaries, and each Parent Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by any such payee.




          14.02 Bankruptcy. Additionally, each Parent Guarantor unconditionally and irrevocably
guarantees the payment of any and all of the Guaranteed Obligations to the Guaranteed Creditors
whether or not due or payable by the Borrower upon the occurrence of any of the events specified in
Section 10.05, and unconditionally promises to pay such indebtedness to the Guaranteed Creditors,
or order, on demand.




          14.03 Nature of Liability. The liability of each Parent Guarantor hereunder is
exclusive and independent of any security for or other guaranty of the Guaranteed Obligations
whether executed by either Parent Guarantor, any other guarantor or by any other party, and the
liability of each Parent Guarantor hereunder is not affected or impaired by (a) any direction as to
application of payment by the Borrower or by any other party, or (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or change in personnel by
the Borrower or (e) any payment made to the Guaranteed Creditors on the Guaranteed Obligations
which any such Guaranteed Creditor repays to the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each
Parent Guarantor waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding.




          14.04 Independent Obligation. No invalidity, irregularity or unenforceability of all
or any part of the Guaranteed Obligations or of any security therefor shall affect, impair or be a
defense to this Parent Guaranty, and this Parent Guaranty shall be primary, absolute and
unconditional notwithstanding the occurrence of any event or the existence of any other
circumstances which might constitute a legal or equitable discharge of a surety or guarantor except
payment in full of the Guaranteed Obligations. The obligations of each Parent Guarantor hereunder
are independent of the obligations of the Borrower, any other guarantor or any other Person, and a
separate action or actions may be brought and prosecuted against either Parent Guarantor whether or
not action is brought against the Borrower, any other guarantor or any other Person and whether or
not the Borrower, any other guarantor or any other Person be joined in any such action or actions.
Each Parent Guarantor waives, to the full extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any


-51-









 







payment by the Borrower or other circumstance which operates to toll any statute of
limitations as to the Borrower shall operate to toll the statute of limitations as to each Parent
Guarantor.




          14.05 Authorization. Each Parent Guarantor authorizes the Guaranteed Creditors
without notice or demand (except as shall be required by applicable statute and cannot be waived),
and without affecting or impairing its liability hereunder, from time to time to:





     (a) change the manner, place or terms of payment of, and/or change or extend the time
of payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations
(including any increase or decrease in the rate of interest thereon), any security therefor,
or any liability incurred directly or indirectly in respect thereof, and this Parent
Guaranty made shall apply to the Guaranteed Obligations as so changed, extended, renewed or
altered;




     (b) take and hold security for the payment of the Guaranteed Obligations and sell,
exchange, release, surrender, realize upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;




     (c) exercise or refrain from exercising any rights against the Borrower or others or
otherwise act or refrain from acting;




     (d) release or substitute any one or more endorsers, guarantors, the Borrower or other
obligors;




     (e) settle or compromise any of the Guaranteed Obligations, any security therefor or
any liability (including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof to the payment
of any liability (whether due or not) of the Borrower to its creditors other than the
Guaranteed Creditors;




     (f) apply any sums by whomsoever paid or howsoever realized to any liability or
liabilities of the Borrower to the Guaranteed Creditors regardless of what liability or
liabilities of the Borrower remain unpaid;




     (g) consent to or waive any breach of, or any act, omission or default under, this
Agreement, any other Credit Document or any of the instruments or agreements referred to
herein or therein, or otherwise amend, modify or supplement any Credit Document (other than
this Agreement) or any of such other instruments or agreements; and/or




     (h) take any other action which would, under otherwise applicable principles of common
law, give rise to a legal or equitable discharge of either Parent Guarantor from its
liabilities under this Parent Guaranty.



          14.06 Reliance. It is not necessary for the Guaranteed Creditors to inquire into the
capacity or powers of the Borrower or the officers, directors, partners or agents acting or


-52-









 







purporting to act on its behalf, and any Guaranteed Obligations made or created in reliance
upon the professed exercise of such powers shall be guaranteed hereunder.




          14.07 Subordination. Any of the indebtedness of the Borrower now or hereafter owing
to either Parent Guarantor is hereby subordinated to the Guaranteed Obligations of the Borrower
owing to the Guaranteed Creditors; and if the Administrative Agent so requests at a time when an
Event of Default exists, all such indebtedness of the Borrower to such Parent Guarantor shall be
collected, enforced and received by such Parent Guarantor for the benefit of the Guaranteed
Creditors and be paid over to the Administrative Agent on behalf of the Guaranteed Creditors on
account of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors, but without
affecting or impairing in any manner the liability of such Parent Guarantor under the other
provisions of this Parent Guaranty. Prior to the transfer by a Parent Guarantor of any note or
negotiable instrument evidencing any of the indebtedness of the Borrower to such Parent Guarantor,
such Parent Guarantor shall mark such note or negotiable instrument with a legend that the same is
subject to this subordination. Without limiting the generality of the foregoing, each Parent
Guarantor hereby agrees with the Guaranteed Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Parent Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.




          14.08 Waiver. (a) Each Parent Guarantor waives any right (except as shall be
required by applicable statute and cannot be waived) to require any Guaranteed Creditor to (i)
proceed against the Borrower, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from the Borrower, any other guarantor or any other party or (iii) pursue
any other remedy in any Guaranteed Creditor’s power whatsoever. Each Parent Guarantor waives any
defense based on or arising out of any defense of the Borrower, any other guarantor or any other
party, other than payment in full of the Guaranteed Obligations, based on or arising out of the
disability of the Borrower, any other guarantor or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower other than payment in full of the Guaranteed Obligations. The Guaranteed
Creditors may, at their election, foreclose on any security held by the Administrative Agent or any
other Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not every aspect
of any such sale is commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Guaranteed Creditors may have against the Borrower
or any other party, or any security, without affecting or impairing in any way the liability of
either Parent Guarantor hereunder except to the extent the Guaranteed Obligations have been paid.
Each Parent Guarantor waives any defense arising out of any such election by the Guaranteed
Creditors, even though such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of such Parent Guarantor against the Borrower or any other
party or any security.




          (b) Each Parent Guarantor waives all presentments, demands for performance, protests and
notices, including, without limitation, notices of nonperformance, notices of protest, notices of
dishonor, notices of acceptance of this Parent Guaranty, and notices of the existence, creation or
incurring of new or additional Guaranteed Obligations. Each Parent Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower’s financial


-53-









 







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 which each Parent
Guarantor assumes and incurs hereunder, and agrees that the Guaranteed Creditors shall have no duty
to advise either Parent Guarantor of information known to them regarding such circumstances or
risks.




          (c) Until such time as the Guaranteed Obligations have been paid in full in cash or Cash
Equivalents, each Parent Guarantor hereby waives all rights of subrogation which it may at any time
otherwise have as a result of this Parent Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code, or otherwise) to the claims of the Guaranteed Creditors against the Borrower or
any other guarantor of the Guaranteed Obligations and all contractual, statutory or common law
rights of reimbursement, contribution or indemnity from the Borrower or any other guarantor which
it may at any time otherwise have as a result of this Parent Guaranty.




          14.09 Payment. All payments made by either Parent Guarantor pursuant to this Section
14 will be made without setoff, counterclaim or other defense, and shall be subject to the
provisions of Sections 4.03 and 4.04.




* * *




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          IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to
be duly executed and delivered as of the date first above written.




	 	 	 	 	 
	Address:	 	NOBLE DRILLING CORPORATION
	 
	 	 	 	 
	13135 South Dairy Ashford
	 	 	 	 
	Suite 800
	 	 	 	 
	Sugar Land, TX 77478

	 	By:  /s/ Mark A. Jackson
	 

	 	 

	Attn.: Bruce W. Busmire

	 	Name:
	 	Mark A. Jackson
	Telephone: (281) 276-6100

	 	Title:	 	Senior Vice President
	Facsimile: (281) 276-6336
	 	 	 	 
	 
	 	 	 	 
	P.O. Box 309 GT	 	NOBLE CORPORATION
	Ugland House
	 	 	 	 
	S. Church Street

	 	By:  /s/ Bruce W. Busmire
	 

	 	 

	Georgetown, Grand Cayman

	 	Name:
	 	Bruce W. Busmire

	Cayman Islands, BWI

	 	Title:
	 	Senior Vice President and Chief Financial
	Attention: Alan R. Hay


	 	 	 	Officer
	Telephone: (345) 949-8066
	 	 	 	 
	 
	 	 	 	 
	13135 South Dairy Ashford	 	NOBLE HOLDING (U.S.) CORPORATION
	Suite 800
	 	 	 	 
	Sugar Land, TX 77478

	 	By:  /s/ Mark A. Jackson
	 

	 	 

	Attn.: Bruce W. Busmire

	 	Name:
	 	Mark A. Jackson
	Telephone: (281) 276-6100

	 	Title:
	 	Vice President
	Facsimile: (281) 276-6336
	 	 	 	 
	 
	 	 	 	 
	 	 	GOLDMAN SACHS CREDIT PARTNERS L.P.
	 
	 	 	 	 
	 

	 	By:  /s/ W.W. Archer
	 

	 	 

	 

	 	Authorized Signatory







 









 




 ANNEX I

COMMITMENTS




	 	 	 	 	 
	Lender	 	Commitment	 
	 
	 	 	 	 
	Goldman Sachs Credit Partners L.P.
	 	$	600,000,000	 
	 
	 	 	 	 
	TOTAL
	 	$	600,000,000	 
	 
	 	 	 







 










 






ANNEX II




LENDER ADDRESSES




	 	 	 
	Goldman Sachs Credit Partners L.P.
	 	85 Broad Street

New York, NY 10004






-i-




 









 





ANNEX III




PRICING GRID




	 	 	 	 	 
	 	 	Applicable Eurodollar
	Credit Rating	 	Margin
	Category 1
	 	 	0.255	%
	 
	Category 2
	 	 	0.305	%
	 
	Category 3
	 	 	0.400	%
	 
	Category 4
	 	 	0.625	%
	 
	Category 5
	 	 	0.725	%
	 
	Category 6
	 	 	0.900	%






 









 





ANNEX IV




RESERVED




 









 





ANNEX V




EXISTING INDEBTEDNESS




	 	 	 	 	 	 	 
	Debtor	 	Description	 	Amount
	Noble Drilling Corporation

	 	6.95% Senior Notes due 2009
	 	$	149,965,100	 
	 
	Noble Drilling Corporation

	 	7.50% Senior Notes due 2019
	 	$	201,695,000	 
	 
	Noble Drilling (Jim
Thompson) Inc.

	 	Fixed Rate Senior Secured Notes
	 	$	51,637,645	 
	 
	Noble Drilling Corporation

	 	Indebtedness under the
Amended and Restated Credit
Agreement, dated as of May
1, 2002
	 	$	400,000,000	 







 









 






ANNEX VI




EXISTING LIENS




     None.