Exhibit 4.1


 


Execution
Version


 




 





FIVE-YEAR
REVOLVING CREDIT AGREEMENT


 


Dated as
of


 


November 27,
2007


 


Among


 


TRANSOCEAN
INC.,


as
Borrower,


 


THE
LENDERS PARTIES HERETO,


 


JPMORGAN CHASE BANK, N.A.,


as
Administrative Agent,


 


CITIBANK,
N.A.,


as
Syndication Agent,


 


CALYON
NEW YORK BRANCH,


as
Co-Syndication Agent,


 


and


 


CREDIT SUISSE, CAYMAN ISLANDS BRANCH


and


THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,


as
Co-Documentation Agents




 


 





 


J.P. MORGAN SECURITIES INC.,


and


CITIGROUP GLOBAL MARKETS INC.,


as Co-Lead Arrangers and Joint Bookrunners


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1.

  	
   

  	
   DEFINITIONS; INTERPRETATION

  	
   

  	
  1

  
	
  Section 1.1.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.2.

  	
   

  	
  Time of Day

  	
   

  	
  23

  
	
  Section 1.3.

  	
   

  	
  Accounting Terms; GAAP

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2.

  	
   

  	
  THE CREDIT FACILITIES

  	
   

  	
  23

  
	
  Section 2.1.

  	
   

  	
  Commitments for Revolving Loans

  	
   

  	
  23

  
	
  Section 2.2.

  	
   

  	
  Types of Revolving Loans and Minimum Borrowing Amounts

  	
   

  	
  23

  
	
  Section 2.3.

  	
   

  	
  Manner of Borrowings; Continuations and Conversions of
  Borrowings

  	
   

  	
  24

  
	
  Section 2.4.

  	
   

  	
  Interest Periods

  	
   

  	
  26

  
	
  Section 2.5.

  	
   

  	
  Funding of Loans

  	
   

  	
  27

  
	
  Section 2.6.

  	
   

  	
  Applicable Interest Rates

  	
   

  	
  28

  
	
  Section 2.7.

  	
   

  	
  Default Rate

  	
   

  	
  28

  
	
  Section 2.8.

  	
   

  	
  Repayment of Loans; Evidence of Debt

  	
   

  	
  30

  
	
  Section 2.9.

  	
   

  	
  Optional Prepayments

  	
   

  	
  31

  
	
  Section 2.10.

  	
   

  	
  Mandatory Prepayments of Loans

  	
   

  	
  32

  
	
  Section 2.11.

  	
   

  	
  Breakage Fees

  	
   

  	
  32

  
	
  Section 2.12.

  	
   

  	
  Letters of Credit

  	
   

  	
  33

  
	
  Section 2.13.

  	
   

  	
  Commitment Terminations

  	
   

  	
  36

  
	
  Section 2.14.

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  37

  
	
  Section 2.15.

  	
   

  	
  Additional Interest Costs

  	
   

  	
  37

  
	
  Section 2.16.

  	
   

  	
  Extensions of Commitment Termination Date

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3.

  	
   

  	
   FEES AND PAYMENTS

  	
   

  	
  39

  
	
  Section 3.1.

  	
   

  	
  Fees

  	
   

  	
  39

  
	
  Section 3.2.

  	
   

  	
  Place and Application of Payments

  	
   

  	
  40

  
	
  Section 3.3.

  	
   

  	
  Withholding Taxes

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4.

  	
   

  	
   CONDITIONS PRECEDENT

  	
   

  	
  44

  
	
  Section 4.1.

  	
   

  	
  Initial Borrowing

  	
   

  	
  44

  
	
  Section 4.2.

  	
   

  	
  All Borrowings

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5.

  	
   

  	
   REPRESENTATIONS AND WARRANTIES

  	
   

  	
  46

  
	
  Section 5.1.

  	
   

  	
  Corporate Organization

  	
   

  	
  46

  
	
  Section 5.2.

  	
   

  	
  Power and Authority; Validity

  	
   

  	
  46

  
	
  Section 5.3.

  	
   

  	
  No Violation

  	
   

  	
  47

  
	
  Section 5.4.

  	
   

  	
  Litigation

  	
   

  	
  47

  
	
  Section 5.5.

  	
   

  	
  Use of Proceeds; Margin Regulations

  	
   

  	
  47

  
	
  Section 5.6.

  	
   

  	
  Investment Company Act

  	
   

  	
  48

  
	
  Section 5.7.

  	
   

  	
  True and Complete Disclosure

  	
   

  	
  48

  
	
  Section 5.8.

  	
   

  	
  Financial Statements

  	
   

  	
  48

  
	
  Section 5.9.

  	
   

  	
  No Material Adverse Change

  	
   

  	
  48

  
	
  Section 5.10.

  	
   

  	
  Taxes

  	
   

  	
  49

  
	
  Section 5.11.

  	
   

  	
  Consents

  	
   

  	
  49

  
	
  Section 5.12.

  	
   

  	
  Insurance

  	
   

  	
  49

  
	
  Section 5.13.

  	
   

  	
  Intellectual Property

  	
   

  	
  49

  



 

















 


	
  Section 5.14.

  	
   

  	
  Ownership of Property

  	
   

  	
  49

  
	
  Section 5.15.

  	
   

  	
  Existing Indebtedness

  	
   

  	
  49

  
	
  Section 5.16.

  	
   

  	
  Existing Liens

  	
   

  	
  50

  
	
  Section 5.17.

  	
   

  	
  Merger Transactions

  	
   

  	
  50

  
	
  Section 5.18.

  	
   

  	
  Employee Benefit Plan

  	
   

  	
  50

  
	
  Section 5.19.

  	
   

  	
  OFAC

  	
   

  	
  51

  
	
  Section 5.20.

  	
   

  	
  Patriot Act

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6.

  	
   

  	
   COVENANTS

  	
   

  	
  51

  
	
  Section 6.1.

  	
   

  	
  Corporate Existence

  	
   

  	
  51

  
	
  Section 6.2.

  	
   

  	
  Maintenance

  	
   

  	
  51

  
	
  Section 6.3.

  	
   

  	
  Taxes

  	
   

  	
  52

  
	
  Section 6.4.

  	
   

  	
  ERISA

  	
   

  	
  52

  
	
  Section 6.5.

  	
   

  	
  Insurance

  	
   

  	
  52

  
	
  Section 6.6.

  	
   

  	
  Financial Reports and Other Information

  	
   

  	
  53

  
	
  Section 6.7.

  	
   

  	
  Lender Inspection Rights

  	
   

  	
  55

  
	
  Section 6.8.

  	
   

  	
  Conduct of Business

  	
   

  	
  55

  
	
  Section 6.9.

  	
   

  	
  Use of Proceeds; Margin Regulations

  	
   

  	
  56

  
	
  Section 6.10.

  	
   

  	
  Restrictions on Fundamental Changes

  	
   

  	
  56

  
	
  Section 6.11.

  	
   

  	
  Liens

  	
   

  	
  56

  
	
  Section 6.12.

  	
   

  	
  Subsidiary Indebtedness

  	
   

  	
  59

  
	
  Section 6.13.

  	
   

  	
  Use of Property and Facilities; Environmental Laws

  	
   

  	
  61

  
	
  Section 6.14.

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  61

  
	
  Section 6.15.

  	
   

  	
  Sale and Leaseback Transactions

  	
   

  	
  61

  
	
  Section 6.16.

  	
   

  	
  Compliance with Laws

  	
   

  	
  61

  
	
  Section 6.17.

  	
   

  	
  Indebtedness to Total Tangible Capitalization Ratio

  	
   

  	
  62

  
	
  Section 6.18.

  	
   

  	
  Leverage Ratio

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7.

  	
   

  	
   EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  62

  
	
  Section 7.1.

  	
   

  	
  Events of Default

  	
   

  	
  62

  
	
  Section 7.2.

  	
   

  	
  Non Bankruptcy Defaults

  	
   

  	
  64

  
	
  Section 7.3.

  	
   

  	
  Bankruptcy Defaults

  	
   

  	
  64

  
	
  Section 7.4.

  	
   

  	
  Collateral for Undrawn Letters of Credit

  	
   

  	
  65

  
	
  Section 7.5.

  	
   

  	
  Notice of Default

  	
   

  	
  65

  
	
  Section 7.6.

  	
   

  	
  Expenses

  	
   

  	
  66

  
	
  Section 7.7.

  	
   

  	
  Distribution and Application of Proceeds

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  	
   

  	
   CHANGE IN CIRCUMSTANCES

  	
   

  	
  67

  
	
  Section 8.1.

  	
   

  	
  Change of Law

  	
   

  	
  67

  
	
  Section 8.2.

  	
   

  	
  Unavailability of Deposits or Inability to Ascertain LIBOR
  Rate

  	
   

  	
  68

  
	
  Section 8.3.

  	
   

  	
  Increased Cost and Reduced Return

  	
   

  	
  68

  
	
  Section 8.4.

  	
   

  	
  Lending Offices

  	
   

  	
  70

  
	
  Section 8.5.

  	
   

  	
  Discretion of Lender as to Manner of Funding

  	
   

  	
  71

  
	
  Section 8.6.

  	
   

  	
  Substitution of Lender or Issuing Bank

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9.

  	
   

  	
   THE AGENTS AND ISSUING BANKS

  	
   

  	
  71

  
	
  Section 9.1.

  	
   

  	
  Appointment and Authorization of Administrative Agent and
  Other Agents

  	
   

  	
  71

  
	
  Section 9.2.

  	
   

  	
  Rights and Powers

  	
   

  	
  72

  
	
  Section 9.3.

  	
   

  	
  Action by Administrative Agent and the Other Agents

  	
   

  	
  72

  



 


ii

















 


	
  Section 9.4.

  	
   

  	
  Consultation with Experts

  	
   

  	
  73

  
	
  Section 9.5.

  	
   

  	
  Indemnification Provisions; Credit Decision

  	
   

  	
  73

  
	
  Section 9.6.

  	
   

  	
  Indemnity

  	
   

  	
  74

  
	
  Section 9.7.

  	
   

  	
  Resignation

  	
   

  	
  74

  
	
  Section 9.8.

  	
   

  	
  Sub-Agents

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10.

  	
   

  	
   MISCELLANEOUS

  	
   

  	
  75

  
	
  Section 10.1.

  	
   

  	
  No Waiver

  	
   

  	
  75

  
	
  Section 10.2.

  	
   

  	
  Non Business Day

  	
   

  	
  75

  
	
  Section 10.3.

  	
   

  	
  Documentary Taxes

  	
   

  	
  76

  
	
  Section 10.4.

  	
   

  	
  Survival of Representations

  	
   

  	
  76

  
	
  Section 10.5.

  	
   

  	
  Survival of Indemnities

  	
   

  	
  76

  
	
  Section 10.6.

  	
   

  	
  Setoff

  	
   

  	
  76

  
	
  Section 10.7.

  	
   

  	
  Notices

  	
   

  	
  77

  
	
  Section 10.8.

  	
   

  	
  Counterparts

  	
   

  	
  79

  
	
  Section 10.9.

  	
   

  	
  Successors and Assigns

  	
   

  	
  79

  
	
  Section 10.10.

  	
   

  	
  Sales and Transfers of Borrowing and Notes; Participations
  in Borrowings and Notes

  	
   

  	
  80

  
	
  Section 10.11.

  	
   

  	
  Amendments, Waivers and Consents

  	
   

  	
  83

  
	
  Section 10.12.

  	
   

  	
  Headings

  	
   

  	
  83

  
	
  Section 10.13.

  	
   

  	
  Legal Fees, Other Costs and Indemnification

  	
   

  	
  83

  
	
  Section 10.14.

  	
   

  	
  Governing Law; Submission to Jurisdiction; Waiver of Jury
  Trial

  	
   

  	
  84

  
	
  Section 10.15.

  	
   

  	
  Confidentiality

  	
   

  	
  86

  
	
  Section 10.16.

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  87

  
	
  Section 10.17.

  	
   

  	
  Severability

  	
   

  	
  87

  
	
  Section 10.18.

  	
   

  	
  Currency Conversion

  	
   

  	
  87

  
	
  Section 10.19.

  	
   

  	
  Exchange Rates

  	
   

  	
  88

  
	
  Section 10.20.

  	
   

  	
  Change in Accounting Principles, Fiscal Year or Tax Laws

  	
   

  	
  89

  
	
  Section 10.21.

  	
   

  	
  Final Agreement

  	
   

  	
  89

  
	
  Section 10.22.

  	
   

  	
  Officer’s Certificates

  	
   

  	
  89

  
	
  Section 10.23.

  	
   

  	
  Effect of Inclusion of Exceptions

  	
   

  	
  89

  
	
  Section 10.24.

  	
   

  	
  Patriot Act Notice

  	
   

  	
  90

  
	
  Section 10.25.

  	
   

  	
  Termination of Credit Facilities

  	
   

  	
  90

  



 


	
  Exhibits:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit 2.3

  	
   

  	
  -

  	
   

  	
  Form of
  Borrowing Request

  
	
  Exhibit 2.8A

  	
   

  	
  -

  	
   

  	
  Form of
  Master Note

  
	
  Exhibit 2.12A

  	
   

  	
  -

  	
   

  	
  Form of
  Issuance Request

  
	
  Exhibit 2.12B

  	
   

  	
  -

  	
   

  	
  Form of
  Letter of Credit Application

  
	
  Exhibit 2.15

  	
   

  	
  -

  	
   

  	
  Mandatory
  Costs

  
	
  Exhibit 4.1A

  	
   

  	
  -

  	
   

  	
  Form of Opinion of Baker Botts LLP

  
	
  Exhibit 4.1B

  	
   

  	
  -

  	
   

  	
  Form of
  Opinion of Transocean General Counsel

  
	
  Exhibit 4.1C

  	
   

  	
  -

  	
   

  	
  Form of
  Opinion of Walkers

  
	
  Exhibit 6.6

  	
   

  	
  -

  	
   

  	
  Form of
  Compliance Certificate

  
	
  Exhibit 6.12

  	
   

  	
  -

  	
   

  	
  Form of
  Subsidiary Guaranty

  
	
  Exhibit 10.10

  	
   

  	
  -

  	
   

  	
  Form of
  Assignment Agreement

  



 


iii

















 


	
  Schedules:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 4.1

  	
   

  	
  -

  	
   

  	
  Credit
  Facilities to be Terminated

  
	
  Schedule 5.4

  	
   

  	
  -

  	
   

  	
  Certain
  Litigation and Proceedings

  
	
  Schedule 5.9

  	
   

  	
  -

  	
   

  	
  Certain
  Events or Effects

  
	
  Schedule 5.15

  	
   

  	
  -

  	
   

  	
  Existing
  Indebtedness

  
	
  Schedule 5.16

  	
   

  	
  -

  	
   

  	
  Existing
  Liens

  
	
  Schedule 6.14

  	
   

  	
  -

  	
   

  	
  Transactions
  with Affiliates

  



 


iv

















 


FIVE-YEAR
REVOLVING CREDIT AGREEMENT


 


THIS FIVE-YEAR REVOLVING CREDIT AGREEMENT (the “Agreement”),
dated as of November 27, 2007, among TRANSOCEAN INC. (the “Borrower”), a Cayman Islands company, the lenders from time
to time parties hereto (each a “Lender” and
collectively, the “Lenders”),
JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”) and as
issuing bank of the Letters of Credit hereunder (JPMorgan Chase Bank, N.A.,
Citibank, N.A., and any other Lender that issues a Letter of Credit hereunder,
in such capacity, an “Issuing Bank”),
CITIBANK, N.A., as syndication agent for the Lenders (in such capacity, the “Syndication Agent”) and as an Issuing Bank, CALYON
NEW YORK BRANCH, as co-syndication
agent (in such capacity, the “Co-Syndication Agent”),
and CREDIT SUISSE, CAYMAN ISLANDS BRANCH and THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., as co-documentation agents for the Lenders (in such capacities,
collectively the “Co-Documentation Agents”). 


 


WITNESSETH:


 


WHEREAS, the Borrower and
certain of the Lenders are parties to a Revolving Credit Agreement dated as of July 8,
2005, among the Borrower, Citibank, N.A., as administrative agent, and the
lenders that are parties thereto (as the same has heretofore been amended and
is in effect immediately prior to the effectiveness of this Agreement, the “Existing Credit Agreement”), pursuant to which there has
been established in favor of the Borrower a U.S. $1,000,000,000 revolving
credit facility (the “Existing Credit Facility”);


 


WHEREAS, the Borrower has
requested that the Existing Credit Facility be replaced by a new revolving
credit facility in an aggregate principal amount of U.S. $2,000,000,000 in
connection with the merger of GlobalSantaFe Corporation with and into the
Borrower’s wholly owned subsidiary, Transocean Worldwide Inc.; and


 


WHEREAS, the Lenders have
agreed to establish for the Borrower a revolving credit facility in the
aggregate principal amount of U.S. $2,000,000,000, all on the terms and subject
to the conditions set forth in this Agreement;


 


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


 


ARTICLE 1.                             DEFINITIONS; INTERPRETATION. 




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


 


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


 

















 


Adjusted
LIBOR          =                                                                                         LIBOR
Rate for such Interest Period


1.00 - Statutory Reserve
Rate


 


“Adjusted
LIBOR Loan” means a Eurocurrency Loan bearing interest at a rate
based on Adjusted LIBOR as provided in Section 2.6(b).


 


“Administrative
Agent” means JPMorgan Chase Bank, N.A., acting in its capacity as
administrative agent for the Lenders, and in the case of Loans or Letters of
Credit denominated in a currency other than U.S. Dollars, acting through
JPMorgan Europe Limited, and any successor Administrative Agent appointed
hereunder pursuant to Section 9.7.


 


“Administrative
Agent’s Account” means (a) in the case of Loans and Letters of
Credit denominated in U.S. Dollars, the account of the Administrative Agent
maintained by the Administrative Agent at its office at 10 South Dearborn,
Chicago, Illinois  60603, Attention:  Saul Gierstikas, (b) in the case of
Loans and Letters of Credit denominated in any other currency, the account of
the Administrative Agent or JPMorgan Europe Limited or other Sub-Agent designated
in writing from time to time by the Administrative Agent to the Borrower and
the Lenders for such purpose, and (c) in any such case, such other account
of the Administrative Agent or the Sub-Agent as is designated in writing from
time to time by the Administrative Agent to the Borrower and the Lenders for
such purpose.


 


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


 


“Agreement”
means this Five-Year Revolving Credit Agreement, as the same may be
amended, restated and supplemented from time to time.


 


“Angolan Debt”
means the financing incurred for construction and mobilization of a drillship
for expected operations offshore Angola, as more particularly described on Schedule 5.15.


 


“Applicable
Facility Fee Rate” means, for any day, at such times as a rating
(either express or implied) by S&P and Moody’s is in effect on the Borrower’s
non-credit enhanced senior unsecured long-term debt, the percentage per annum
set forth opposite such debt rating:


 


	
  Debt Rating(S&P/ Moody’s)

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  A/A2
  or above

  	
   

  	
  0.070

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  A-/A3

  	
   

  	
  0.080

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB+/Baa1

  	
   

  	
  0.090

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB/Baa2

  	
   

  	
  0.110

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB-/Baa3

  	
   

  	
  0.150

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BB+/Ba1
  or below

  	
   

  	
  0.170

  	
  %

  



 


2

















 


The Applicable Facility
Fee Rate will be determined based upon the ratings issued by S&P and Moody’s.
If such ratings differ (i) by one rating, the higher rating will apply to
determine the Applicable Facility Fee Rate, (ii) by two ratings, the
rating which falls between the two ratings will apply to determine the
Applicable Facility Fee Rate, or (iii) by more than two ratings, the
rating which is one level above the lower of the two ratings will apply to
determine the Applicable Facility Fee Rate. If only one such rating is issued
by S&P or Moody’s, the Applicable Facility Fee Rate will be determined by
such rating. The Borrower shall give written notice to the Administrative Agent
of any changes to such ratings, within three (3) Business Days thereof,
and any change to the Applicable Facility Fee Rate shall be effective on the
date of the relevant change. Notwithstanding the foregoing, if the Borrower
shall at any time fail to have in effect at least one such rating on the
Borrower’s non-credit enhanced senior unsecured long-term debt, the Borrower
shall seek and obtain (if not already in effect), within thirty (30) days after
such rating first ceases to be in effect, a corporate credit rating or a bank
loan rating from Moody’s and/or S&P (or if none of Moody’s and S&P
issue such types of ratings or ratings comparable thereto, from another
nationally recognized rating agency approved by each of the Borrower and the
Administrative Agent), and the Applicable Facility Fee Rate shall thereafter be
based on such ratings in the same manner as provided herein with respect to the
Borrower’s senior unsecured long-term debt rating (with the Applicable Facility
Fee Rate in effect prior to the issuance of such corporate credit rating or
bank loan rating being the same as the Applicable Facility Fee Rate in effect
at the time the senior unsecured long-term debt rating ceases to be in effect).



 


“Applicable
Margin” means, for any day, at such times as a rating (either
express or implied) by S&P and Moody’s is in effect on the Borrower’s
non-credit enhanced senior unsecured long-term debt, the percentage per annum
set forth opposite such debt rating:


 


	
  Debt Rating(S&P/Moody’s)

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  A/A2
  or above

  	
   

  	
  0.180

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  A-/A3

  	
   

  	
  0.220

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB+/Baa1

  	
   

  	
  0.260

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB/Baa2

  	
   

  	
  0.390

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB-/Baa3

  	
   

  	
  0.475

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BB+/Ba1
  or below

  	
   

  	
  0.580

  	
  %

  



 


The Applicable Margin
will be determined based upon the ratings issued by S&P and Moody’s. If
such ratings differ (i) by one rating, the higher rating will apply to
determine the Applicable 


 


3

















 


Margin, (ii) by two
ratings, the rating which falls between the two ratings will apply to determine
the Applicable Margin, or (iii) by more than two ratings, the rating which
is one level above the lower of the two ratings will apply to determine the
Applicable Margin. If only one such rating is issued by S&P or Moody’s, the
Applicable Margin will be determined by such rating. The Borrower shall give
written notice to the Administrative Agent of any changes to such ratings,
within three (3) Business Days thereof, and any change to the Applicable
Margin shall be effective on the date of the relevant change. Notwithstanding
the foregoing, if the Borrower shall at any time fail to have in effect any
such rating on the Borrower’s non-credit enhanced senior unsecured long-term
debt, the Borrower shall seek and obtain (if not already in effect), within
thirty (30) days after such rating first ceases to be in effect, a corporate
credit rating or a bank loan rating from Moody’s and/or S&P (or if none of
Moody’s and S&P issue such types of ratings or ratings comparable thereto,
from another nationally recognized rating agency approved by each of the
Borrower and the Administrative Agent), and the Applicable Margin shall
thereafter be based on such ratings in the same manner as provided herein with
respect to the Borrower’s senior unsecured long-term debt rating (with the
Applicable Margin in effect prior to the issuance of such corporate credit
rating or bank loan rating being the same as the Applicable Margin in effect at
the time the senior unsecured long-term debt rating ceases to be in effect). 


 


“Applicable
Utilization Fee Rate” means, for any day, at such times as a
rating (either express or implied) by S&P and Moody’s is in effect on the
Borrower’s non-credit enhanced senior unsecured long-term debt, the percentage
per annum set forth opposite such debt rating:


 


	
  Debt Rating(S&P/Moody’s)

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  A/A2
  or above

  	
   

  	
  0.050

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  A-/A3

  	
   

  	
  0.100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB+/Baa1

  	
   

  	
  0.100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB/Baa2

  	
   

  	
  0.100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB-/Baa3

  	
   

  	
  0.100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BB+/Ba1
  or below

  	
   

  	
  0.100

  	
  %

  



 


The Applicable
Utilization Fee Rate will be determined based upon the ratings issued by
S&P and Moody’s. If such ratings differ (i) by one rating, the higher
rating will apply to determine the Applicable Utilization Fee Rate, (ii) by
two ratings, the rating which falls between the two ratings will apply to
determine the Applicable Utilization Fee Rate, or (iii) by more than two
ratings, the rating which is one level above the lower of such two ratings will
apply to determine the Applicable Utilization Fee Rate. If only one such rating
is issued by S&P or Moody’s, the Applicable Utilization Fee Rate will be
determined by such rating. The Borrower shall give written notice to the
Administrative Agent of any changes to such ratings, within three (3) Business
Days thereof, and any change to the Applicable Utilization Fee Rate shall be
effective on the date of the relevant change. Notwithstanding the foregoing, if
the Borrower shall at any 


 


4

















 


time fail to have in
effect any such rating on the Borrower’s non-credit enhanced senior unsecured
long-term debt, the Borrower shall seek and obtain (if not already in effect),
within thirty (30) days after such rating first ceases to be in effect, a
corporate credit rating or a bank loan rating from Moody’s and/or S&P (or
if none of Moody’s and S&P issue such types of ratings or ratings
comparable thereto, from another nationally recognized rating agency approved
by each of the Borrower and the Administrative Agent), and the Applicable
Utilization Fee Rate shall thereafter be based on such ratings in the same
manner as provided herein with respect to the Borrower’s senior unsecured
long-term debt rating (with the Applicable Utilization Fee Rate in effect prior
to the issuance of such corporate credit rating or bank loan rating being the
same as the Applicable Utilization Fee Rate in effect at the time the senior
unsecured long-term debt rating ceases to be in effect). 


 


“Application”
means an application for a Letter of Credit as defined in Section 2.12(b).


 


“Assignment
Agreement” means an agreement in substantially the form of Exhibit 10.10
whereby a Lender conveys part or all of its Commitment, Loans and
participations in Letters of Credit to another Person that is, or thereupon
becomes, a Lender, or increases its Commitments, outstanding Loans and
outstanding participations in Letters of Credit, pursuant to Section 10.10.


 


“Australian
Dollars” means the lawful currency of Australia.


 


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


 


(i)  the fluctuating
commercial loan rate announced by the Administrative Agent from time to time at
its New York, New York office (or other corresponding office, in the case of
any successor Administrative Agent) as its prime rate or base rate for U.S.
Dollar loans in the United States of America in effect on such day (which base
rate may not be the lowest rate charged by such Lender on loans to any of
its customers), with any change in the Base Rate resulting from a change in
such announced rate to be effective on the date of the relevant change; and


 


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


 


“Base Rate
Loan” means a Revolving Loan bearing interest prior to maturity at
the rate specified in Section 2.6(a).


 


5

















 


“Borrower”
means Transocean Inc., an exempted company incorporated under the laws of the
Cayman Islands, and its successors.


 


“Borrowing”
means any extension of credit of the same Type made by the Lenders on the same
date by way of Revolving Loans having a single Interest Period or a Letter of
Credit, including any Borrowing advanced, continued or converted. A Borrowing
is “advanced” on the day the Lenders
advance funds comprising such Borrowing to the Borrower or a Letter of Credit
is issued, increased or extended, is “continued” (in
the case of Eurocurrency Loans) on the date a new Interest Period commences for
such Borrowing, and is “converted” (in
the case of Eurocurrency Loans) when such Borrowing is changed from one Type of
Loan to the other, all as requested by the Borrower pursuant to Section 2.3.



 


“Borrowing
Multiple” means, for any Loan, (i) in the case of a Borrowing
denominated in Dollars, $100,000, (ii) in the case of a Borrowing
denominated in Euros, E100,000, (iii) in the case of a Borrowing
denominated in Pounds, £50,000, (iv) in the case of a Borrowing
denominated in Kroner, 1,000,000 Kroner, (v) in the case of a Borrowing
denominated in Canadian Dollars, 150,000 Canadian Dollars, (vi) in the
case of a Borrowing denominated in Australian Dollars, 150,000 Australian
Dollars and (vii) in the case of a Borrowing denominated in Singapore
Dollars, 200,000 Singapore Dollars.


 


“Borrowing
Request” has the meaning ascribed to such term in Section 2.3(a).


 


“Bridge
Credit Agreement” means the Credit Agreement dated as of September 28,
2007 among the Borrower, Goldman Sachs Credit Partners L.P., as administrative
agent, and the lenders parties thereto.


 


“Bridge
Facility” means the $15,000,000,000 term loan facility established
for the Borrower pursuant to the Bridge Credit Agreement.


 


“Business Day”
means any day other than a Saturday or Sunday on which banks are not authorized
or required to close in New York, New York and, if the applicable Business Day
relates to the advance or continuation of, conversion into, or payment on a
Eurocurrency Borrowing (i) in a currency other than Euros, on which banks
are dealing in Dollar, Pound, Australian Dollar, Canadian Dollar, Singapore
Dollar or Kroner deposits, as applicable, in the applicable interbank
eurocurrency market in London, England, and in the country of issue of the
applicable currency, and (ii) in Euros, on which the TARGET payment system
is open for the settlement of payments in Euros and on which banks are not
authorized or required to close in London, England.


 


“Calculation
Date” means the last Business Day of each calendar quarter.


 


“Canadian
Dollars” or “Cdn.$” means the lawful currency of Canada.


 


“Capitalized
Lease Obligations” means, for any Person, the aggregate amount of
such Person’s liabilities under all leases of real or personal property (or any
interest therein) which is 


 


6

















 


required to be
capitalized on the balance sheet of such Person as determined in accordance
with GAAP.


 


“Cash
Equivalents” means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than twelve (12) months
from the date of acquisition, (ii) time deposits and certificates of
deposits maturing within one year from the date of acquisition thereof or
repurchase agreements with financial institutions whose short-term unsecured
debt rating is A or above as obtained from either S&P or Moody’s, (iii) commercial
paper or Eurocommercial paper with a rating of at least A-1 by S&P or at
least P-1 by Moody’s, with maturities of not more than twelve (12) months from
the date of acquisition, (iv) repurchase obligations entered into with any
Lender, or any other Person whose short-term senior unsecured debt rating from
S&P is at least A-1 or from Moody’s is at least P-1, which are secured by a
fully perfected security interest in any obligation of the type described in (i) above
and has a market value of the time such repurchase is entered into of not less
than 100% of the repurchase obligation of such Lender or such other Person
thereunder, (v) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within twelve (12) months from the date
of acquisition thereof or providing for the resetting of the interest rate
applicable thereto not less often than annually and, at the time of
acquisition, having one of the two highest ratings obtainable from either
S&P or Moody’s, and (vi) money market funds which have at least
$1,000,000,000 in assets and which invest primarily in securities of the types described
in clauses (i) through (v) above. 


 


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


 


“Co-Documentation
Agents” means, collectively, Credit Suisse, Cayman Islands Branch, and The Bank of Tokyo-Mitsubishi
UFJ, Ltd., in their capacities as co-documentation agents for the
Lenders, and any successor Co-Documentation Agents appointed pursuant to Section 9.7;
provided, however,
that no such Co-Documentation Agent shall have any duties, responsibilities, or
obligations hereunder in such capacity.


 


“Co-Lead
Arrangers” means, collectively, J.P. Morgan Securities Inc.
and Citigroup Global Markets Inc., acting in their capacities as co-lead
arrangers and joint bookrunners for the credit facility described in this
Agreement; provided, however, that no such Co-Lead
Arrangers shall have any duties, responsibilities, or obligations hereunder in
such capacity.


 


“Collateral”
means all property and assets of the Borrower in which the Administrative Agent
or the Collateral Agent is granted a Lien for the benefit of the Lenders under
the terms of Section 7.4.


 


“Collateral
Account” means the cash collateral account for outstanding undrawn
Letters of Credit defined in Section 7.4(b).


 


“Collateral
Agent” means JPMorgan Chase Bank, N.A. acting in its capacity as
collateral agent for the Lenders, and in the case of Letters of Credit
denominated in a currency other than 


 


7

















 


U.S. Dollars, JPMorgan
Europe Limited acting in such capacity, and any successor collateral agent
appointed hereunder pursuant to Section 9.7.


 


“Collateralized
Obligations” has the meaning ascribed to such term in Section 7.4(b).


 


“Commitment”
means, relative to any Lender, such Lender’s obligations to make Revolving
Loans and participate in Letters of Credit pursuant to Sections 2.1 and 2.12,
initially in the amount and percentage set forth opposite its signature hereto
or pursuant to Section 10.10, as such obligations may be reduced or
increased from time to time as expressly provided pursuant to this Agreement.


 


“Commitment
Termination Date” means the earliest of (i) November 27,
2012, subject to the extension thereof pursuant to Section 2.16, (ii) the
date on which the Commitments are terminated in full or reduced to zero
pursuant to Section 2.13, and (iii) the occurrence of any Event of
Default described in Section 7.1(f) or (g) with respect to the
Borrower or the occurrence and continuance of any other Event of Default and
either (x) the declaration of the Loans to be due and payable pursuant to Section 7.2,
or (y) in the absence of such declaration, the giving of written notice by the
Administrative Agent, acting at the direction of the Required Lenders, to the
Borrower pursuant to Section 7.2 that the Commitments have been
terminated; provided, however,
that the Commitment Termination Date of any Lender that is a Declining Lender
with respect to any requested extension pursuant to Section 2.16 shall be
the earlier of (x) the Commitment Termination Date in effect immediately prior
to such extension, (y) the date on which the Commitments are terminated in full
or reduced to zero pursuant to Section 2.13, and (2) the occurrence
of any Event of Default described in Section 7.1(f) or (g) with
respect to the Borrower or the occurrence and continuance of any other Event of
Default, and either (i) the declaration of the Loans to be due and payable
pursuant to Section 7.2, or (ii) in the absence of such declaration,
the giving of written notice by the Administrative Agent, acting at the
direction of the Required Lenders, to the Borrower pursuant to Section 7.2
that the Commitments have been terminated.


 


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


 


“Confidential
Information Memorandum” means the Confidential Information Memorandum
of the Borrower dated October 2007, as the same may be amended,
restated and supplemented from time to time and distributed to the Lenders
prior to the Effective Date.


 


“Consolidated
EBITDA” means, for the Borrower and its Subsidiaries, for any
period, the sum, determined on a consolidated basis, of (i) operating
income plus, (ii) without duplication,
and to the extent reflected as a charge in the calculation (or determination)
of such operating income for such period, the sum of (a) depreciation,
depletion and amortization expense and (b) other non-cash charges reducing
operating income for such period (excluding any such non-cash charge to the
extent that it represents an accrual or reserve for potential cash charge in
any future period or amortization of a prepaid cash charge that was paid in any
prior period), less (iii) other
non-cash gains increasing operating income for such period (excluding any such
non-cash gain to the extent it represents the reversal of an accrual or reserve
for potential cash gain in any prior period), in each case determined in
accordance with GAAP for such period; it being 


 


8

















 


understood and agreed
that, with respect to any period prior to the Merger, Consolidated EBITDA shall
be calculated with respect to such period on a pro forma basis using the
historical consolidated financial statements of GSF and its Subsidiaries and
the consolidated financial statements of the Borrower and its Subsidiaries
(excluding GSF and its Subsidiaries) which shall be reformulated as if the
Merger had been consummated at the beginning of such period.


 


“Consolidated
Indebtedness” means all Indebtedness of the Borrower and its
Subsidiaries that would be reflected on a consolidated balance sheet of such
Persons prepared in accordance with GAAP.


 


“Consolidated
Indebtedness to Total Tangible Capitalization Ratio” means, at any
time, the ratio of Consolidated Indebtedness at such time to Total Tangible
Capitalization at such time.


 


“Consolidated
Net Assets” means, as of any date of determination, an amount equal
to the aggregate book value of the assets of the Borrower, its Subsidiaries
and, to the extent of the equity interest of the Borrower and its Subsidiaries
therein, SPVs at such time, minus the
current liabilities of the Borrower and its Subsidiaries, all as determined on
a consolidated basis in accordance with GAAP based on the most recent quarterly
or annual consolidated financial statements of the Borrower referred to in Section 5.8
or delivered (or publicly filed) as provided in Section 6.6(a), as the
case may be.


 


“Consolidated
Tangible Net Worth” means, as of any date of determination,
consolidated shareholders equity of the Borrower and its Subsidiaries
determined in accordance with GAAP but excluding the effect on shareholders
equity of cumulative foreign exchange translation adjustments, and less the net book amount of all
assets of the Borrower and its Subsidiaries that would be classified as
intangible assets on the consolidated balance sheet of the Borrower as of such
date prepared in accordance with GAAP. For purposes of this definition, SPVs
shall be accounted for pursuant to the equity method of accounting.


 


“Controlling
Affiliate” means for any Person, (i) any other Person
that directly or indirectly through one or more intermediaries controls, or is
under common control with, such Person and (ii) any other Person owning
beneficially or controlling ten percent (10%) or more of the equity interests
having ordinary voting power for the election of directors of such Person. As
used in this definition, “control” means
the power, directly or indirectly, to direct or cause the direction of
management or policies of a Person (through ownership of voting securities or
other equity interests, by contract or otherwise).


 


“Co-Syndication
Agent” means Calyon New York Branch, in its capacity as
co-syndication agent for the Lenders, and any successor Co-Syndication Agent
appointed pursuant to Section 9.7; provided, however,
that such Co-Syndication Agent shall have no duties, responsibilities or
obligations hereunder in such capacity.


 


“Currency
Rate Protection Agreement” means any foreign currency exchange and
future agreements, arrangements and options designed to protect against
fluctuations in currency exchange rates.


 


9

















 


“Credit
Documents” means this Agreement, the Notes, the Applications, the
Letters of Credit, and any Subsidiary Guaranties in effect from time to time.


 


“Declining
Lender” has the meaning ascribed to such term in Section 2.16.


 


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


 


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


 


“Dollar
Equivalent” means, on any date of determination (i) with
respect to any amount in Dollars, such amount, and (ii) with respect to
any amount in any currency other than U.S. Dollars, the equivalent in Dollars
of such amount, determined by the Administrative Agent using the applicable
Exchange Rate with respect to such currency at the time in effect pursuant to Section 10.19
or as otherwise expressly provided herein.


 


“Effective
Date” means the date this Agreement shall become effective as
provided in Section 4.1.


 


“Employee
Benefit Plan” means any “employee benefit plan” as defined in
Section 3(3) of ERISA which is or was sponsored, maintained or
contributed to by, or required to be contributed to by, the Borrower, any of
its Subsidiaries or any of their respective ERISA Affiliates.


 


“EMU
Legislation” means the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states.


 


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


 


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


 


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


 


10

















 


“ERISA
Affiliate” means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of Section 414(b) of
the Code of which that Person is a member; (ii) any trade or business
(whether or not incorporated) which is a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of
the Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of
the Code of which that Person, any corporation described in clause (i) above
or any trade or business described in clause (ii) above is a member. Any
former ERISA Affiliate of the Borrower or any of its Subsidiaries shall
continue to be considered an ERISA Affiliate of the Borrower or any such
Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of the Borrower or such Subsidiary and with
respect to liabilities arising after such period for which the Borrower or such
Subsidiary could be liable under the Code or ERISA.


 


“ERISA Event”  means (i) a
“reportable event” within the meaning of Section 4043 of ERISA and the
regulations issued thereunder with respect to any Pension Plan (excluding those
for which the provision for 30-day notice to the PBGC has been waived by
regulation); (ii) the failure to meet the minimum funding standard of Section 412
of the Code with respect to any Pension Plan (whether or not waived in
accordance with Section 412(d) of the Code) or the failure to make by
its due date a required installment under Section 412(m) of the Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of any
Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the withdrawal by the Borrower, any of its Subsidiaries or any
of their respective ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan resulting in
liability to the Borrower, any of its Subsidiaries or any of their respective
ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which might constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on the Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or
4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal of the Borrower, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefor, or the receipt by the
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates
of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends
to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could give rise to the imposition on the
Borrower or any of its Subsidiaries of fines, penalties, taxes or related
charges under Chapter 43 of the Code or under Section 409, Section 502(c),
(i) or (l), or Section 4071 of ERISA in respect of any Employee
Benefit Plan; (ix) the assertion of a material claim (other than routine
claims for benefits) against any Employee Benefit Plan other than a
Multiemployer Plan or the assets thereof, or against the Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (x) receipt from the U.S. Internal Revenue Service of
notice of the failure of any Pension Plan (or any other Employee Benefit Plan
intended to be qualified under Section 401(a) 


 


11

















 


of
the Code) to qualify under Section 401(a) of the Code, or the failure
of any trust forming part of any Pension Plan to qualify for exemption
from taxation under Section 501(a) of the Code; or (xi) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Code
or pursuant to ERISA with respect to any Pension Plan.


 


“EURIBO
Rate” means, for any Interest Period, the rate appearing on Page 248
of the Moneyline Telerate Service (or on any successor or substitute page of
such Service, or any successor to or substitute for such Service, providing
rate quotations comparable to those currently provided on such page of
such Service, as reasonably determined by the Administrative Agent from time to
time for purposes of providing quotations of interest rates applicable to
deposits in Euro by reference to the Banking Federation of the European Union
Settlement Rates for deposits in Euro) at approximately 10:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period or,
if for any reason such rate is not available, the average (rounded to the
nearest 1/100 of 1% per annum) of the respective rates per annum at which
deposits in Euros are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest Period in
an amount substantially equal to such Reference Bank’s Revolving Loan to be
outstanding during such Interest Period and for a period equal to such Interest
Period (subject, however, to the provisions of Section 2.4).


 


“Euro”
or “E” means the single currency of the
European Union as constituted by the Treaty on European Union and as referred
to in the EMU Legislation for the introduction of, changeover to or operation
of the Euro in one or more member states.


 


“Eurocurrency”,
when used in reference to any Loan or Borrowing, means such Loan, or the Loans
comprising such Borrowing, shall bear interest at a rate determined by
reference to Adjusted LIBOR and the Applicable Margin.


 


“Eurocurrency
Loan” means a Revolving Loan bearing interest before maturity at the
rate specified in Section 2.6(b).


 


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


 


“Exchange Rate” means on any day,
with respect to Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore
Dollars, or Kroner, the rate at which such currency may be exchanged into
Dollars, as set forth at approximately 11:00 A.M. on such day on the
applicable page of the Bloomberg Service reporting the exchange rates for
such currency. In the event such exchange rate does not appear on the
applicable page of such service, the Exchange Rate shall be determined by
reference to such other publicly available services for displaying currency
exchange rates as may be agreed upon by the Administrative Agent, the
Issuing Bank, and the Borrower, or, in the absence of such agreement, such
Exchange Rate shall instead be determined by the Administrative Agent and
Issuing Bank, as applicable, based on current market spot rates in accordance
with the provisions of Section 10.19; provided that
if at the time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent or Issuing Bank, as applicable, after
consultation with the Borrower, may use any reasonable 


 


12

















 


method it deems appropriate to determine such rate,
and such determination shall be conclusive absent manifest error.


 


“Existing
Credit Agreement” has the meaning ascribed to such term in
the Recitals to this Agreement.


 


“Existing
Credit Facility” has the meaning ascribed to such term in the
Recitals to this Agreement. 


 


“Extending
Lender” has the meaning ascribed to such term in Section 2.16.


 


“Foreign
Currency Sublimit” means $200,000,000.


 


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


 


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


 


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


 


“GSF”
means GlobalSantaFe Corporation, a Cayman Islands company.


 


“GSF
Credit Agreement” means the Revolving Credit Agreement dated
as of August 15, 2006 among GSF, the lenders that are parties thereto, and
Citibank, N.A., as administrative agent, as the same has been amended and
supplemented and is in effect immediately prior to the Effective Date.


 


“GSF
Credit Facility” means the revolving credit facility
established in favor of GSF pursuant to the GSF Credit Agreement.


 


“Guarantor”
means any Subsidiary of the Borrower required to execute and deliver a
Subsidiary Guaranty hereunder pursuant to Section 6.12, in each case
unless and until the relevant Subsidiary Guaranty is released pursuant to Section 6.12.


 


13

















 


“Guaranty”
by any Person means all contractual obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business) of such Person
guaranteeing any Indebtedness of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including,
without limitation, all obligations incurred through an agreement, contingent
or otherwise, by such Person: (i) to purchase such Indebtedness or to
purchase any property or assets constituting security therefor, primarily for
the purpose of assuring the owner of such Indebtedness of the ability of the
primary obligor to make payment of such Indebtedness; or (ii) to advance
or supply funds (x) for the purchase or payment of such Indebtedness, or (y) to
maintain working capital or other balance sheet condition, or otherwise to
advance or make available funds for the purchase or payment of such
Indebtedness, in each case primarily for the purpose of assuring the owner of
such Indebtedness of the ability of the primary obligor to make payment of such
Indebtedness; or (iii) to lease property, or to purchase securities or
other property or services, of the primary obligor, primarily for the purpose
of assuring the owner of such Indebtedness of the ability of the primary
obligor to make payment of such Indebtedness; or (iv) otherwise to assure
the owner of such Indebtedness of the primary obligor against loss in respect
thereof. For the purpose of all computations made under this Agreement, the
amount of a Guaranty in respect of any Indebtedness shall be deemed to be equal
to the amount that would apply if such Indebtedness was the direct obligation
of such Person rather than the primary obligor or, if less, the maximum
aggregate potential liability of such Person under the terms of the Guaranty.


 


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


 


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


 


“Indebtedness”
means, for any Person, the following obligations of such Person, without
duplication:  (i) obligations of
such Person for borrowed money; (ii) obligations of such Person
representing the deferred purchase price of property or services other than
accounts payable and accrued liabilities arising in the ordinary course of
business and other than amounts which are being contested in good faith and for
which reserves in conformity with GAAP have been provided; (iii) obligations
of such Person evidenced by bonds, notes, bankers acceptances, debentures or
other similar instruments of such Person, or obligations of such Person
arising, 


 


14

















 


whether absolute or
contingent, out of letters of credit issued for such Person’s account or
pursuant to such Person’s application securing Indebtedness; (iv) obligations
of other Persons, whether or not assumed, secured by Liens (other than
Permitted Liens) upon property or payable out of the proceeds or production
from property now or hereafter owned or acquired by such Person, but only to
the extent of such property’s fair market value; (v) Capitalized Lease
Obligations of such Person; (vi) obligations under Interest Rate
Protection Agreements and Currency Rate Protection Agreements; and (vii) obligations
of such Person pursuant to a Guaranty of any of the foregoing obligations of
another Person; provided, however, Indebtedness
shall exclude Non-recourse Debt and any Indebtedness attributable to the
mark-to-market treatment of obligations of the type described in clause (vi) in
the definition of Indebtedness and any actual fair value adjustment arising
from any Interest Rate Protection Agreements and Currency Rate Protection
Agreements that have been cancelled or otherwise terminated before their
scheduled expiration, in each case in respect of Interest Rate Protection
Agreements and Currency Rate Protection Agreements entered into in the ordinary
course of business and not for investment or speculative purposes. For purposes
of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture to the extent such
Indebtedness is recourse to such Person.


 


“Interest
Payment Date” means (a) with respect to any Base Rate Loan, the
last day of each March, June, September and December and (b) with
respect to any Eurocurrency Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurocurrency Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months’ duration after the first day of such Interest
Period.


 


“Interest
Period” means with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter (or if available from each Lender making a Loan as part of such
Borrowing, any other period), in each case as the Borrower may elect. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and, in the case of a Borrowing, thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.


 


“Interest
Rate Protection Agreement” means any interest rate swap, interest
rate cap, interest rate collar, or other interest rate hedging agreement or
arrangement designed to protect against fluctuations in interest rates.


 


“ISP” means,
with respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or
such later version thereof as may be in effect at the time of issuance).


 


“Issuing
Bank” means each of JPMorgan Chase Bank, N.A., Citibank,
N.A., and each other Lender agreeing with the Borrower and the Administrative
Agent to act as an Issuing Bank in respect of a Letter of Credit requested by
the Borrower to be issued under this Agreement.


 


“Kroner”
means lawful money of the Kingdom of Norway.


 


15

















 


“L/C
Documents” means the Letters of Credit, any Issuance Requests
and Applications with respect thereto, any draft or other document presented in
connection with a drawing thereunder, and this Agreement.


 


“L/C Obligations” means as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of all unpaid
Reimbursement Obligations. For purposes of computing the amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 2.12(e). For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by
its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed
to be “outstanding” in the amount so remaining available to be drawn.


 


“Lender”
is defined in the preamble.


 


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


 


“Letter
of Credit” means any of the letters of credit to be issued by
the Issuing Bank for the account of the Borrower pursuant to Section 2.12(a).


 


“Letter
of Credit Maximum Amount” means, at any time, the lesser of (i) $2,000,000,000
and (ii) the Revolving Credit Commitment Amount in effect at such time; provided, however, that (i) neither JPMorgan Chase
Bank, N.A. nor Citibank, N.A. shall be required to issue Letters of Credit or
have outstanding at any time L/C Obligations with an aggregate Dollar
Equivalent in excess of $500,000,000 for either such Issuing Bank, except as may otherwise
be agreed in writing by JPMorgan Chase Bank, N.A. or Citibank, N.A., as the
case may be, and (ii) no other Issuing Bank shall be required to
issue Letters of Credit or have outstanding at any time L/C Obligations with an
aggregate Dollar Equivalent in excess of an amount to be agreed in writing by
the Borrower and such Issuing Bank.


 


“Leverage
Ratio” means, at any date of determination, the ratio of (a) (i) Consolidated
Indebtedness of the Borrower and its Subsidiaries as at the end of the then
most recently ended fiscal quarter of the Borrower minus (ii) the
aggregate amount as at such date of unrestricted cash on which no Lien or
restriction whatsoever exists (other than usual and customary rights of set-off
for deposit account fees and expenses required by financial institutions where
such cash is deposited) and cash deposited in restricted accounts that require
the payee of such Indebtedness to consent to withdrawal thereof and earmarked
for amortization of such Indebtedness (other than the portion thereof payable
against interest) to (b) Consolidated EBITDA for the then most recently
ended fiscal quarter of the Borrower and the immediately preceding three fiscal
quarters.


 


16

















 


“LIBOR Rate”
means, for any Interest Period for each Eurocurrency Loan, an interest rate per
annum equal to (a) in the case of any Revolving Loan denominated in any
currency other than Euro, the rate per annum appearing on Reuters LIBOR01 Page (or
any successor page) as the London interbank offered rate for deposits in the
applicable currency at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period (or, in the case of
deposits in Pounds, at approximately 11:00 A.M. (London time) on the first
day of such Interest Period) for a term comparable to such Interest Period or,
if for any reason such rate is not available, the average (rounded to the
nearest 1/100 of 1% per annum) of the rate per annum at which deposits in the
applicable currency are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period (or, in the case of deposits in Pounds, at
approximately 11:00 A.M. (London time) on the first day of such Interest
Period) in an amount substantially equal to such Reference Bank’s Eurocurrency
Loan comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period or, (b) in
the case of any Revolving Loan denominated in Euros, the EURIBO Rate. If
Reuters LIBOR01 Page (or any successor page) is unavailable, the LIBOR Rate
for any Interest Period for each Eurocurrency Loan comprising part of the
same Borrowing shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent from the
Reference Banks, such rates being the rates at which such Reference Banks are
offered deposits for the applicable currency in the Dollar Equivalent of
approximately $5,000,000 for a period approximately equal to such Interest
Period in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period.


 


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


 


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


 


“Mandatory
Cost” means in relation to any relevant period and sum, the addition
to the interest rate determined in accordance with Exhibit 2.15 hereto.


 


“Material
Adverse Effect” means a material adverse effect on (i) the
business, assets, operations or condition of the Borrower and its Subsidiaries
taken as a whole, or (ii) the Borrower’s ability to perform any of
its payment obligations under the Agreement or the Notes, or in respect of the
Letters of Credit.


 


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


 


17

















 


“Merger”
means the merger (by way of a scheme of arrangement qualifying as an
amalgamation under the Companies Law of the Cayman Islands) of GSF with Merger Sub
pursuant to the Merger Agreement.


 


“Merger
Agreement” means that certain Agreement and Plan of Merger dated as
of July 21, 2007 among the Borrower, GSF and Merger Sub, including all
schedules, exhibits and annexes thereto.


 


“Merger
Documentation” means, collectively, the Merger Agreement and all
material documents (including all schedules, exhibits, and annexes thereto)
affecting the terms thereof or entered into in connection therewith.


 


“Merger Sub”
means Transocean Worldwide Inc., a Cayman Islands company wholly owned by the
Borrower.


 


“Merger
Transactions” means the Merger, the reclassification of the Borrower’s
ordinary shares, and the related transactions as provided in the Merger
Agreement.


 


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


 


“Multiemployer Plan” means any Employee
Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) of
ERISA


 


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


 


“Note”
means any of the promissory notes of the Borrower defined in Section 2.8.


 


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


 


“Other Agents”
means, collectively, the Syndication Agent, the Co-Syndication Agent, and the
Co-Documentation Agents.


 


“Pacific
Drilling Debt” means the Indebtedness incurred to finance up to 50%
of the construction and mobilization costs of two drillships under construction
in Korea to be owned by the Pacific Drilling joint venture, as more
particularly described on Schedule 5.15.


 


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


 


18

















 


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


 


“Pension Plan”
means any Employee Benefit Plan, other than a Multiemployer Plan, that is subject
to Section 412 of the Code or Section 302 of ERISA.


 


“Percentage”
means, for each Lender, the percentage of the Commitments represented by such
Lender’s Commitment; provided, that,
if the Commitments are terminated, each Lender’s Percentage shall be calculated
based on such Lender’s pro rata share of the total Loans and L/C Obligations
then outstanding or, if no Loans or L/C Obligations are then outstanding, its
Commitment in effect immediately before such termination, subject to any
assignments by such Lender of Obligations pursuant to Section 10.10.


 


“Performance
Guaranties” means all Guaranties of the Borrower or any of its
Subsidiaries delivered in connection with the construction financing of drill
ships, offshore mobile drilling units or offshore drilling rigs for which firm
drilling contracts have been obtained by the Borrower, any of its Subsidiaries
or a SPV.


 


 


 


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


 


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


 


“Permitted
Liens” means the Liens permitted as described in Section 6.11.


 


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


 


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


 


“Pounds”
means the lawful currency of the United Kingdom.


 


“Reference
Banks” means JPMorgan Chase Bank, N.A. and Citibank, N.A. or
if any such Lender assigns all of its Commitment and the Loans owing to it in
accordance with Section 10.10, such other Lender as may be designated
by the Administrative Agent and approved by the Borrower (such approval not to
be unreasonably withheld).


 


“Reimbursement
Obligations” has the meaning ascribed to such term in Section 2.12(c).


 


19

















 


“Replacement
Lender” has the meaning ascribed to such term in Section 2.16.


 


“Required
Lenders” means, Lenders having Revolving Credit Exposures and unused
Commitments representing more than 50% of the sum of the total Revolving Credit
Exposures and unused Commitments at such time or, if the Commitments have been
terminated or expired, Lenders having more than 50% of the sum of the total
Revolving Credit Exposures of all Lenders (in each case determined on the basis
of the Dollar Equivalent of any amounts denominated in any currencies other
than U.S. Dollars).


 


“Reset
Date” has the meaning assigned to such term in Section 10.19.


 


“Revolving
Credit” means the credit facility for making Revolving Loans
and issuing Letters of Credit described in Sections 2.1 and 2.12.


 


“Revolving
Credit Commitment Amount” means an amount equal to
$2,000,000,000, as such amount may be reduced from time to time pursuant
to the terms of this Agreement.


 


“Revolving
Credit Exposure” means, with respect to any Lender at any
time, the sum at such time, without duplication, of (i) such Lender’s
applicable Percentage of the Dollar Equivalent of the principal amounts of the
outstanding Revolving Loans, and (ii) such Lender’s applicable Percentage
of the Dollar Equivalent of the aggregate outstanding L/C Obligations.


 


“Revolving
Loan” means each of the revolving loans defined in Section 2.1.


 


“Revolving
Obligations” means the sum of the Dollar Equivalent of the
principal amount of all Revolving Loans and L/C Obligations outstanding.


 


“Sale-Leaseback
Transaction” means any arrangement whereby the Borrower or a
Subsidiary shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease property that it intends to use for substantially the same
purpose or purposes as the property sold or transferred; provided,
however, Sale-Leaseback Transaction shall exclude any transaction
between (i) the Borrower and any of its Subsidiaries, and (ii) any Subsidiary
of the Borrower and any other Subsidiary of the Borrower.


 


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


 


“SPV”  means any Person that is designated by the
Borrower as a SPV, provided  that the Borrower shall not designate as a SPV any
Subsidiary that owns, directly or indirectly, any other Subsidiary that has
total assets (including assets of any Subsidiaries of such other Subsidiary,
but excluding any assets that would be eliminated in consolidation with the
Borrower and its Subsidiaries) which equates to at least five percent (5%) of
the Borrower’s Total Assets, or that had net income (including net income of
any Subsidiaries of such other Subsidiary, all before discontinued operations
and income or loss resulting from extraordinary items, but excluding revenues
and expenses that would be eliminated in consolidation with the Borrower and
its Subsidiaries and excluding any loss or gain resulting from the early
extinguishment of 


 


20

















 


Indebtedness) during the
most recently completed fiscal year of the Borrower in excess of the greater of
(i) $1,000,000, and (ii) fifteen percent (15%) of the net income
(before discontinued operations and income or loss resulting from extraordinary
items and excluding any loss or gain resulting from the early extinguishment of
Indebtedness) for the Borrower and its Subsidiaries, all as determined on a
consolidated basis in accordance with GAAP during such fiscal year of the
Borrower. The Borrower may elect to treat any Subsidiary as a SPV
(provided such Subsidiary would otherwise qualify as such), and may rescind
any such prior election, by giving written notice thereof to the Administrative
Agent specifying the name of such Subsidiary or SPV, as the case may be,
and the effective date of such election, which shall be a date within sixty
(60) days after the date such notice is given. The election to treat a
particular Person as a SPV may only be made once. 


 


“Singapore
Dollars” means the lawful currency of Singapore.


 


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


 


“Specified
Currency” means each of the following currencies:  Kroner, Australian Dollars and Singapore
Dollars.


 


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


 


“Sub-Agent”
means any affiliate or correspondent bank of the Administrative Agent
designated by it to perform any duties or responsibilities of the
Administrative Agent under this Agreement and the other Credit Documents.


 


“Subsidiary”
means, for any Person, any other Person (other than, except in the context of Section 6.6(a),
a SPV) of which more than fifty percent (50%) of the outstanding stock or
comparable equity interests having ordinary voting power for the election of
the board of directors of such corporation, any managers of such limited
liability company or similar governing body (irrespective of whether or not at
the time stock or other equity interests of any other class or classes of
such corporation or other entity shall have or might have voting power by
reason of the happening of any contingency), is at the time directly or
indirectly owned by such former Person or by one or more of its Subsidiaries. Without
limiting the foregoing, upon 


 


21

















 


the effectiveness of the
Merger, all Subsidiaries of GSF at the effective time of the Merger shall have
become Subsidiaries of the Borrower.


 


“Subsidiary
Debt Basket Amount” has the meaning ascribed to such term in Section 6.12(i).


 


“Subsidiary
Guaranty” means any Guaranty of any Subsidiary delivered pursuant to
Section 6.12(k).


 


“Syndication
Agent” means Citibank,
N.A., acting in its capacity as syndication agent for the Lenders, and
any successor Syndication Agent appointed hereunder pursuant to Section 9.7;
provided, however, that the Syndication
Agent shall not have any duties, responsibilities, or obligations hereunder in
such capacity.


 


“TARGET”
means the Trans-European Automated Real-Time Gross Settlement Express Transfer
system.


 


“Taxes”
has the meaning set forth in Section 5.10.


 


“364-Day
Credit Agreement” means the 364-Day Credit Agreement among
the Borrower, JPMorgan Chase Bank, N.A., as administrative agent, and the
lenders that are parties thereto, establishing in favor of the Borrower a
revolving credit facility for a period not to exceed 364 days as contemplated
pursuant to that certain letter dated November 27, 2007, among the
Borrower, the Administrative Agent, the Syndication Agent and the Co-Lead
Arrangers, as the same may be amended, supplemented and restated from time
to time.


 


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


 


“Total
Tangible Capitalization” means, as of any date of determination, the
sum of Consolidated Indebtedness plus
Consolidated Tangible Net Worth as of such date.


 


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


 


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


 


22

















 


“Withdrawal Liability” shall mean
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.


 


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


 


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


 


ARTICLE 2.                             THE CREDIT FACILITIES.


 


Section 2.1.            Commitments
for Revolving Loans. Subject to the terms and conditions hereof, each
Lender severally and not jointly agrees to make one or more loans (each a “Revolving Loan”) to the Borrower from time to time prior to
the Commitment Termination Date applicable to such Lender on a revolving basis
in an aggregate amount not to exceed at any time outstanding an amount equal to
its Commitment, subject to any reductions thereof pursuant to the terms of this
Agreement; provided, however,
that no Lender shall be required to make any Revolving Loan if, after giving
effect thereto, (i) the Dollar Equivalent of the aggregate principal amount of
the Revolving Loans and the L/C Obligations of all Lenders (determined in
accordance with Section 10.19) would thereby exceed the Revolving Credit
Commitment Amount then in effect; or (ii) the Dollar Equivalent of the
Revolving Credit Exposure of such Lender (determined in accordance with Section
10.19) would thereby exceed its Commitment then in effect. Each Borrowing of
Revolving Loans shall be made ratably from the Lenders in proportion to their
respective Percentages. Revolving Loans of each Lender may be repaid, in whole
or in part, and all or any portion of the principal amounts thereof reborrowed,
before the Commitment Termination Date applicable to such Lender, subject to
the terms and conditions hereof. Funding of any Revolving Loans shall be in any
combination of U.S. Dollars, Euros, Pounds, Australian Dollars, Canadian
Dollars, Singapore Dollars or Kroner as specified by the Borrower as set forth
in Section 2.3; provided, that
the Dollar Equivalent amount of the principal amount of outstanding Revolving
Loans and L/C Obligations funded and issued in Euros, Pounds, Australian
Dollars, Canadian Dollars, Singapore Dollars and Kroner determined, with
respect to each such Revolving Loans and L/C Obligations in accordance with
Section 10.19 shall at no time exceed the Foreign Currency Sublimit then in
effect.


 


Section 2.2.            Types
of Revolving Loans and Minimum Borrowing Amounts. Borrowings of Revolving
Loans may be outstanding as either Base Rate Loans or Adjusted LIBOR Loans, as
selected by the Borrower pursuant to Section 2.3; provided,
however, that any Revolving Loans funded
in Euros, Australian Dollars, Canadian Dollars, Singapore Dollars, Pounds or
Kroner may only be outstanding as Adjusted LIBOR Loans. Each Borrowing of Base
Rate Loans shall be in an amount of not less than $1,000,000 and each Borrowing
of Adjusted LIBOR Loans shall be in an amount of not less than the Dollar
Equivalent of $5,000,000 and in an integral multiple of the Borrowing Multiple.


 


23

















 


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


 


(a)                                  Notice
of Revolving Loan Borrowings. The Borrower shall give notice to the
Administrative Agent by no later than (i) 12:00 P.M. at least three (3) Business
Days before the date on which the Borrower requests the Lenders to advance a
Borrowing of Eurocurrency Loans to be funded in U.S. Dollars, (ii) 12:00 P.M.
at least four (4) Business Days before the date on which the Borrower
requests the Lenders to advance a Borrowing of Eurocurrency Loans to be funded
in Euros, Pounds or Canadian Dollars (with a copy of any such notice to be sent
simultaneously to the Sub-Agent), (iii) 4:00 P.M. (London time) at
least four (4) Business Days before the date on which the Borrower requests
the Lenders to advance a Borrowing of Eurocurrency Loans to be funded in any
Specified Currency (with a copy of any such notice to be sent simultaneously to
the Sub-Agent), and (iv) 12:00 P.M. on the date the Borrower requests
the Lenders to advance a Borrowing of Base Rate Loans, in each case pursuant to
a duly completed Borrowing Request substantially in the form of Exhibit 2.3
(each a “Borrowing Request”) executed on behalf
of Borrower by two of its officers.


 


(b)                                 Notice
of Continuation or Conversion of Outstanding Borrowings. The Borrower may from
time to time elect to change or continue the type of interest rate borne by
each Revolving Loan Borrowing or, subject to the minimum amount requirements in
Section 2.2 for each outstanding Revolving Loan Borrowing, a portion
thereof, as follows:  (i) if such
Borrowing is of Eurocurrency Loans, the Borrower may continue part or
all of such Borrowing as Eurocurrency Loans for an Interest Period specified by
the Borrower or convert part or all of such Borrowing into Base Rate Loans
(if such Borrowing is permitted to be outstanding as Base Rate Loans under Section 2.2
hereof) on the last day of the Interest Period applicable thereto, or the
Borrower may earlier convert part or all of such Borrowing into Base
Rate Loans (if such Borrowing is permitted to be outstanding as Base Rate Loans
under Section 2.2 hereof) so long as it pays the breakage fees and
funding losses provided in Section 2.11; and (ii) if such Borrowing
is of Base Rate Loans, the Borrower may convert all or part of such
Borrowing into Eurocurrency Loans for an Interest Period specified by the
Borrower on any Business Day, in each case pursuant to notices of continuation
or conversion as set forth below. The Borrower may select multiple
Interest Periods for the Eurocurrency Loans constituting any such particular
Borrowing, provided that at no time shall the
number of different Interest Periods for outstanding Eurocurrency Loans exceed
twenty (20) (it being understood for such purposes that (x) Interest Periods of
the same duration, but commencing on different dates, shall be counted as
different Interest Periods, and (y) all Interest Periods commencing on the same
date and of the same duration shall be counted as one Interest Period
regardless of the number of Borrowings or Loans involved. Notices of the
continuation of such Eurocurrency Loans for an additional Interest Period or of
the conversion of part or all of such Eurocurrency Loans into Base Rate
Loans or of such Base Rate Loans into Eurocurrency Loans must be given by no
later than (A) 12:00 P.M. at least three (3) Business Days with
respect to Eurocurrency Loans funded in U.S. Dollars, (B) 12:00 P.M.
at least four (4) Business Days with respect to Eurocurrency Loans funded
in Euros, Pounds or Canadian Dollars (with a copy of any such notice to be sent
simultaneously to the Sub-Agent), and (C) 4:00 P.M. (London time) at
least four (4) Business Days with respect to Eurocurrency Loans funded in
any Specified Currency (with a copy of any such notice to be sent
simultaneously to the Sub-Agent), in each case before the date of the requested
continuation or conversion.


 


24

















 


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


 


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


 


(e)                                  Borrower’s
Failure to Notify. If the Borrower fails to give notice pursuant to Section 2.3(a) of
(i) the continuation or conversion of any outstanding principal amount of
a Borrowing of Eurocurrency Loans, or (ii) a Borrowing of Revolving Loans
to pay outstanding Reimbursement Obligations, and has not notified the
Administrative Agent by (A) 12:00 P.M. at least three (3) Business
Days before the last day of the Interest Period for any Borrowing of
Eurocurrency Loans funded in U.S. Dollars, (B) 12:00 P.M. at least
four (4) Business Days before the last day of the Interest Period for any
Borrowing of Eurocurrency Loans funded in Euros, Pounds or Canadian Dollars
(with a copy of any such notice to be sent simultaneously to the Sub-Agent), (C) 4:00 P.M.
(London time) at least four (4) Business Days before the last day of the
Interest Period for any Borrowing of Eurocurrency Loans funded in any Specified
Currency (with a copy of any such notice to be sent simultaneously to the
Sub-Agent), or (D) the day such Reimbursement Obligation becomes due, as
the case may be, that it intends to repay such Borrowing or Reimbursement
Obligation, the Borrower shall be deemed to have requested, as applicable, (x)
the continuation of such Borrowing as a Eurocurrency Loan with an Interest
Period of one (1) month or (y) the advance of a new Borrowing of Base Rate
Loans (after converting, if necessary, the Reimbursement Obligation into Dollars
using the applicable Exchange Rate in effect on such date) on such day in the
amount of the Reimbursement Obligation then due, which Borrowing pursuant to
this clause (y) shall be deemed to have been funded on such date by the Lenders
in accordance with Section 2.3(a) and to have been applied on such
day to pay the Reimbursement Obligation then due, or to repay the Lenders that
funded their participation in such Reimbursement Obligation, as applicable, in
each case so long as no Event of Default shall have occurred and be continuing
or would occur as a result of such Borrowing but otherwise disregarding the
conditions to Borrowings set forth in Section 4.2.


 


25
















 


Upon the
occurrence and during the continuance of any Event of Default, and upon notice
thereof from the Administrative Agent to the Borrower (i) each
Eurocurrency Loan will automatically, on the last day of the then existing
Interest Period therefor, convert into a Base Rate Loan, and (ii) the
obligation of the Lenders to convert Loans into Eurocurrency Loans shall be
suspended.


 


(f)                                    Conversion.
If the Borrower shall elect to convert any particular Borrowing pursuant to
this Section 2.3  from one Type of Loan
to the other only in part, then, from and after the date on which such
conversion shall be effective, such particular Borrowing shall, for all
purposes of this Agreement (including, without limitation, for purposes of
subsequent application of this sentence) be deemed to instead constitute two
Borrowings (each originally advanced on the same date as such particular
Borrowing), one comprised of (subject to subsequent conversion in accordance
with this Agreement) Eurocurrency Loans in an aggregate principal amount equal
to the portion of such Borrowing so elected by the Borrower to be comprised of
Eurocurrency Loans and the second comprised of (subject to subsequent
conversion in accordance with this Agreement) Base Rate Loans in an aggregate
principal amount equal to the portion of such particular Borrowing so elected
by the Borrower to be comprised of Base Rate Loans. If the Borrower shall elect
to have multiple Interest Periods apply to any such particular Borrowing
comprised of Eurocurrency Loans, then, from and after the date such multiple
Interest Periods commence, such particular Borrowing shall, for all purposes of
this Agreement (including, without limitation, for purposes of subsequent
application of this sentence), be deemed to constitute a number of separate
Borrowings (each originally commencing on the same date as such particular
Borrowing) equal to the number of, and corresponding to, the different Interest
Periods so selected, each such deemed separate Borrowing corresponding to a
particular selected Interest Period comprised of (subject to subsequent
conversion in accordance with this Agreement) Eurocurrency Loans in an
aggregate principal amount equal to the portion of such particular Borrowing so
elected by the Borrower to have such Interest Period. This Section 2.3(f) shall
be applied appropriately in the event that the Borrower shall make the
elections described in the two preceding sentences at the same time with
respect to the same particular Borrowing.


 


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


 


(i)                                     the
Borrower may not select an Interest Period that extends beyond the
Commitment Termination Date;


 


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


 


26

















 


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


 


Section 2.5.            Funding
of Loans.


 


(a)                                  Disbursement
of Loans. Not later than 12:00 P.M. with respect to Borrowings in U.S.
Dollars of Eurocurrency Loans, and 3:00 P.M. with respect to Base Rate
Revolving Loans, on the date of any requested advance of a new Borrowing of
Loans, each Lender, subject to all other provisions hereof, shall make available
for the account of its applicable Lending Office its Loan comprising its
portion of such Borrowing in funds immediately available for the benefit of the
Administrative Agent in the applicable Administrative Agent’s Account and
according to the payment instructions of the Administrative Agent. Not later
than 2:00 P.M. (London time) with respect to a new Borrowing in Euros,
Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars, or Kroner, on
the date of any such requested Borrowing, each Lender, subject to all other
provisions hereof, shall make available its portion of such Borrowing in funds
immediately available for the benefit of the Administrative Agent in the
applicable Administrative Agent’s Account and according to the payment instructions
of the Administrative Agent. The Administrative Agent shall make the proceeds
of each such Borrowing available in immediately available funds to the Borrower
(or as directed in writing by the Borrower) on such date. Acceptance by the
Borrower of any late amount shall not be deemed a waiver by the Borrower of any
rights it may have against any Lender making funds available after the
time prescribed above. No Lender shall be responsible to the Borrower for any
failure by another Lender to fund its portion of a Borrowing, and no such
failure by a Lender shall relieve any other Lender from its obligation, if any,
to fund its portion of a Borrowing.


 


(b)                                 Administrative
Agent Reliance on Lender Funding. Unless the Administrative Agent shall
have been notified by a Lender prior to the time at which such Lender is
scheduled to make payment to the Administrative Agent of the proceeds of a Loan
(which notice shall be effective upon receipt) that such Lender does not intend
to make such payment, the Administrative Agent may assume that such Lender
has made such payment when due and in reliance upon such assumption may (but
shall not be required to) make available to the Borrower the proceeds of the
Loan to be made by such Lender and, if any Lender has not in fact made such
payment to the Administrative Agent, such Lender shall, on demand, pay to the
Administrative Agent the amount made available to the Borrower attributable to
such Lender together with interest thereon for each day during the period
commencing on the date such amount was made available to the Borrower and
ending on (but excluding) the date such Lender pays such amount to the
Administrative Agent at a rate per annum equal to the Administrative Agent’s
cost of funds for such amount. If such amount is not received from such Lender
by the Administrative Agent immediately upon demand, the Borrower will, on
demand, repay to the Administrative Agent the proceeds of the Loan attributable
to such Lender with interest thereon at a rate per annum equal to the interest
rate applicable to the relevant Loan, but the Borrower will in no 


 


27

















 


event be liable to
pay any amounts otherwise due pursuant to Section 2.11 in respect of such
repayment. Nothing in this subsection shall be deemed to relieve any
Lender from any obligation to fund any Loans hereunder or to prejudice any
rights which the Borrower may have against any Lender as a result of any
default by such Lender hereunder.


 


Section 2.6.            Applicable
Interest Rates.


 


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


 


(b)                                 Eurocurrency
Loans. Each Eurocurrency Loan shall bear interest (computed on the basis of
a 360-day year and actual days elapsed, except with respect to Eurocurrency
Loans funded in Pounds, in which case interest will be computed on the basis of
a 365-day year or 366-day year, as the case may be, and actual days
elapsed, in each case excluding the date of repayment) on the unpaid principal
amount thereof from the date such Loan is made until maturity (whether by
acceleration or otherwise) or, in the case of Eurocurrency Loans, conversion to
a Base Rate Loan at a rate per annum equal to the lesser of (i) the
Highest Lawful Rate, or (ii) the sum of Adjusted LIBOR plus the Applicable Margin. The Borrower agrees to pay such
interest on each Interest Payment Date for such Loan and at maturity (whether
by acceleration or otherwise) or, in the case of Eurocurrency Loans, conversion
to a Base Rate Loan.


 


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


 


Section 2.7.            Default
Rate. If any payment of principal on any Loan is not made when due after
the expiration of the grace period therefor provided in Section 7.1(a) (whether
by acceleration or otherwise), or any Reimbursement Obligation is not paid when
due as provided in Section 2.12(c), such Loan or Reimbursement Obligation shall
bear interest (computed on the basis of a year of 360, 365 or 366 days, as
applicable, and actual days elapsed) after any such grace period expires until
such principal then due is paid in full, which the Borrower agrees to pay on
demand, at a rate per annum equal to:


 


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


 


28

















 


(b)                                 for
any Eurocurrency Loan, the lesser of (i) the Highest Lawful Rate, or (ii) the
sum of two percent (2%) per annum plus the rate of interest in effect thereon
at the time of such default until the end of the Interest Period for such Loan
and, thereafter, at a rate per annum equal to the sum of two percent (2%) per
annum plus (x) in the case of any Loans made
in Dollars, the Base Rate from time to time in effect (but not less than the
Base Rate in effect at the time such payment was due), or (y) in the case of
any Loans made in Euros, Pounds, Australian Dollars, Canadian Dollars,
Singapore Dollars or Kroners, the interest rate that would otherwise then be
applicable under this Agreement to a Eurocurrency Loan made in such currency
for an Interest Period of one month as from time to time in effect (but not
less than such interest rate in effect at the time such payment was due); and


 


(c)                                  for
any unpaid Reimbursement Obligations, the lesser of (i) the Highest Lawful
Rate, or (ii) the sum of two percent (2%) per annum plus
(x) in the case of any Reimbursement Obligations payable in Dollars, the Base
Rate from time to time in effect (but not less than the Base Rate in effect at
the time such payment was due), or (y) in the case of any Reimbursement
Obligations payable in any currency other than Dollars, the interest rate that
would otherwise then be applicable under this Agreement to a Eurocurrency Loan
made in such currency for an Interest Period of one month as from time to time
in effect (but not less than such interest rate in effect at the time such
payment was due).


 


It is the intention of
the Administrative Agent and the Lenders to conform strictly to usury laws
applicable to them. Accordingly, if the transactions contemplated hereby or any
Loan or other Obligation would be usurious as to any of the Lenders under laws
applicable to it (including the laws of the United States of America and the
State of New York or any other jurisdiction whose laws may be mandatorily
applicable to such Lender notwithstanding the other provisions of this
Agreement, the Notes or any other Credit Document), then, in that event,
notwithstanding anything to the contrary in this Agreement, the Notes or any
other Credit Document, it is agreed as follows: 
(i) the aggregate of all consideration which constitutes interest
under laws applicable to such Lender that is contracted for, taken, reserved,
charged or received by such Lender under this Agreement, the Notes or any other
Credit Document or otherwise shall under no circumstances exceed the Highest Lawful
Rate, and any excess shall be credited by such Lender on the principal amount
of the Loans or to the Reimbursement Obligations (or, if the principal amount
of the Loans and all Reimbursement Obligations shall have been paid in full,
refunded by such Lender to the Borrower); and (ii) in the event that the
maturity of the Loans is accelerated by reason of an election of the holder or
holders thereof resulting from any Event of Default hereunder or otherwise, or
in the event of any required or permitted prepayment, then such consideration
that constitutes interest under laws applicable to such Lender may never
include more than the Highest Lawful Rate, and excess interest, if any,
provided for in this Agreement, the Notes, any other Credit Document or otherwise
shall be automatically canceled by such Lender as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited by such
Lender on the principal amount of the Loans or to the Reimbursement Obligations
(or if the principal amount of the Loans and all Reimbursement Obligations
shall have been paid in full, refunded by such Lender to the Borrower). To the
extent that the Texas Finance Code, Chapters 302 and 303, are relevant to the
Administrative Agent and the Lenders for the purpose of determining the Highest
Lawful Rate, the 


 


29

















 


Administrative Agent and
the Lenders hereby elect to determine the applicable rate ceiling under such
Chapter by the indicated (weekly) rate ceiling from time to time in effect,
subject to their right subsequently to change such method in accordance with
applicable law. In the event the Loans and all Reimbursement Obligations are
paid in full by the Borrower prior to the full stated term of the Loans and the
interest received from the actual period of the existence of the Loans exceeds
the Highest Lawful Rate, the Lenders shall refund to the Borrower the amount of
the excess or shall credit the amount of the excess against amounts owing under
the Loans and none of the Administrative Agent or the Lenders shall be subject
to any of the penalties provided by law for contracting for, taking, reserving,
charging or receiving interest in excess of the Highest Lawful Rate. The Texas
Finance Code, Chapter 346, which regulates certain revolving credit loan
accounts and revolving tri-party accounts, shall not apply to this Agreement or
the Loans.


 


Section 2.8.            Repayment
of Loans; Evidence of Debt.


 


(a)                                  Repayment
of Loans. The Borrower hereby promises to pay to the Administrative Agent
for the account of each Lender, on the Commitment Termination Date, the unpaid
amount of each Revolving Loan then outstanding.


 


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


 


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


 


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


 


(e)                                  Notes.
The Revolving Loans outstanding to the Borrower from each Lender shall, at the
written request of such Lender, be evidenced by a promissory note of the
Borrower payable to such Lender in the form of Exhibit 2.8A
(Master Note) or, if such Lender so requests in writing, by one or more
individual promissory notes of the Borrower in similar form but payable in
the specific foreign currencies in which the Loans may be funded (each a “Note”). The Borrower agrees to execute and deliver to the
Administrative Agent, for the benefit of each Lender requesting one or more
promissory notes as aforesaid, an original of each such promissory note,
appropriately completed, to evidence the respective Loans made by such Lender
hereunder, within ten (10) Business Days after the Borrower receives a
written request therefor.


 


30

















 


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


 


Section 2.9.            Optional
Prepayments. The Borrower shall have the privilege of prepaying any Base
Rate Loans without premium or penalty at any time in whole or at any time and
from time to time in part (but, if in part, then in an amount which is equal to
or greater than $1,000,000); provided, however, that the Borrower shall have given notice of such
prepayment to the Administrative Agent no later than 12:00 P.M. on the date of
such prepayment. The Borrower shall have the privilege of prepaying any
Adjusted LIBOR Loans (a) without premium or penalty in whole or in part (but,
if in part, then in an amount which is equal to or greater than the Dollar
Equivalent of $5,000,000 and in an integral multiple of the Borrowing Multiple
or such smaller amount as needed to prepay a particular Borrowing in full) only
on the last Business Day of an Interest Period for such Loan, and (b) at any
other time without premium or penalty except for the breakage fees and funding
losses that are required to be paid pursuant to Section 2.11; provided, however, that
the Borrower shall have given notice of such prepayment to the Administrative
Agent no later than 12:00 P.M. (or, if such notice is being given in respect of
Loans denominated in a currency other than U.S. Dollars, 11:00 A.M. London
time) at least three (3) Business Days before the last Business Day of such
Interest Period or the proposed prepayment date. Any such prepayments shall be
made by the payment of the principal amount to be prepaid and accrued and
unpaid interest thereon to the date of such prepayment. Unless otherwise
specified in writing by the Borrower, optional prepayments shall be applied first,
to the Revolving Loans, second, to the Reimbursement Obligations with
respect to Letters of Credit, and third to any other Obligations then
outstanding.


 


Section 2.10.          Mandatory
Prepayments of Loans. In the event and on each occasion that the Dollar
Equivalent of the aggregate principal amount of outstanding Revolving Loans and
L/C Obligations exceeds the Revolving Credit Commitment Amount then in effect,
then the Borrower shall promptly prepay Revolving Loans in an aggregate amount
sufficient to eliminate such excess. Immediately upon determining the need to
make any such prepayment, the Borrower shall notify the Administrative Agent of
such required prepayment and of the identity of the particular Revolving Loans
being prepaid. If the Administrative Agent shall notify the Borrower that the
Administrative Agent has determined that any prepayment is required under 


 


31

















 


this Section 2.10, the Borrower shall make such prepayment no later
than the second Business Day following such notice. Any mandatory prepayment of
Revolving Loans pursuant hereto shall not be limited by the notice provision
for prepayments set forth in Section 2.9. Each such prepayment shall be
accompanied by a payment of all accrued and unpaid interest on the Loans
prepaid and any applicable breakage fees and funding losses pursuant to Section
2.11.


 


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


 


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


 


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


 


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


 


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


 


Section 2.12.          Letters
of Credit.


 


(a)                                  Letters
of Credit. Subject to the terms and conditions hereof, the Issuing Banks
agrees to issue, from time to time prior to the Commitment Termination Date, at
the request of the Borrower and on behalf of the Lenders and in reliance on
their obligations under this Section 2.12, one or more letters of credit
(each a “Letter of Credit”) for the Borrower’s
account in a face amount in each case of at least $500,000 or, if denominated in
a currency other than U.S. Dollars, the Dollar Equivalent of $500,000, and in
an aggregate undrawn face amount for all Letters of Credit at any time
outstanding not to exceed the Letter of Credit Maximum Amount; provided, that no Issuing
Bank shall issue a Letter of Credit pursuant to this Section 2.12 if,
after the issuance thereof, (i) the outstanding Revolving Loans and L/C
Obligations would thereby exceed the Revolving Credit Commitment Amount
(determined in accordance with Section 


 


32

















 


10.19) then in
effect, (ii) the aggregate undrawn face amount of all Letters of Credit
then outstanding would at any time thereafter (giving effect to the respective
scheduled expiration dates thereof and any automatic extensions provided
therein) exceed the Letter of Credit Maximum Amount scheduled to be in effect
at any such time thereafter (giving effect to any reductions resulting from the
scheduled expiration of the Commitments of Declining Lenders not offset by new or
increased Commitments of Replacement Lenders or Extending Lenders pursuant to Section 2.16),
or (iii) the issuance of such Letter of Credit would violate any legal or
regulatory restriction then applicable to such Issuing Bank or any Lender as
notified by such Issuing Bank or such Lender to the Administrative Agent before
the date of issuance of such Letter of Credit. Letters of Credit and any
increases and extensions thereof hereunder may be issued in face amounts
of either Dollars, Euros, Pounds, Australian Dollars, Canadian Dollars,
Singapore Dollars or Kroner; provided further,
that the Dollar Equivalent amount of the principal amount of outstanding
Revolving Loans and Letters of Credit in Euros, Pounds, Australian Dollars,
Canadian Dollars, Singapore Dollars and Kroner determined, with respect to each
such Revolving Loan or Letter of Credit, in accordance with Section 10.19
on the date such Revolving Loan is funded, continued or converted, or the date
such Letter of Credit is issued, increased and extended, as applicable, shall
not exceed in the aggregate the Foreign Currency Sublimit.


 


(b)                                 Issuance
Procedure. To request that an Issuing Bank issue a Letter of Credit, the
Borrower shall deliver to such Issuing Bank and the Administrative Agent (with
a duplicate copy to an operations employee of such Issuing Bank as designated
by such Issuing Bank from time to time) a duly executed Issuance Request
substantially in the form of Exhibit 2.12A (each an “Issuance Request”), together with a duly executed application
for the relevant Letter of Credit substantially in the form of Exhibit 2.12B
(each an “Application”), or such other
computerized issuance or application procedure, instituted from time to time by
such Issuing Bank and the Administrative Agent and agreed to by the Borrower,
completed to the reasonable satisfaction of such Issuing Bank and the
Administrative Agent, and such other information as such Issuing Bank and the
Administrative Agent may reasonably request. In the event of any
irreconcilable difference or inconsistency between this Agreement and an
Application, the provisions of this Agreement shall govern. Upon receipt of a
properly completed and executed Application and any other reasonably requested
information at least three (3) Business Days prior to any requested
issuance date, such Issuing Bank will process such Application in accordance
with its customary procedures and issue the requested Letter of Credit on the
requested issuance date. The Borrower may cancel any requested issuance of
a Letter of Credit prior to the issuance thereof. The Issuing Bank will notify
the Administrative Agent and each Lender of the amount, currency, and
expiration date of each Letter of Credit it issues promptly upon issuance
thereof. Each Letter of Credit shall have an expiration date no later than four
(4) Business Days before the Commitment Termination Date. If any Issuing
Bank issues any Letters of Credit with expiration dates that automatically
extend unless such Issuing Bank gives notice that the expiration date will not
so extend, such Issuing Bank will give such notice of non-renewal before the
time necessary to prevent such automatic extension if (and will not give such
notice of non-renewal before such time unless) before such required notice date
(i) the expiration date of such Letter of Credit if so extended would be
later than four (4) Business Days before the Commitment Termination Date, (ii) the
Commitment Termination Date shall have occurred, (iii) a Default or an
Event of Default exists and the Required Lenders have given such Issuing Bank
instructions not to so permit the expiration date of such Letter of Credit to
be extended, or (iv) 


 


33

















 


such Issuing Bank
is so directed by the Borrower. Each Issuing Bank agrees to issue amendments to
any Letter of Credit issued by it increasing its amount, or extending its
expiration date, at the request of the Borrower, subject to the conditions
precedent for all Borrowings of Section 4.2 and the other terms and conditions
of this Section 2.12.


 


(c)                                  The
Borrower’s Reimbursement Obligations.


 


(i)                                     The
Borrower hereby irrevocably and unconditionally agrees to reimburse each
Issuing Bank for each payment or disbursement made by such Issuing Bank to
settle its obligations under any draft drawn or other payment made under a
Letter of Credit (a “Reimbursement Obligation”)
within two (2) Business Days from when such draft is paid or other payment
is made with either funds not borrowed hereunder or with a Borrowing of Revolving
Loans subject to Section 2.3 and the other terms and conditions contained
in this Agreement. The Reimbursement Obligation shall bear interest (which the
Borrower hereby promises to pay) from and after the date such draft is paid or
other payment is made until (but excluding the date) the Reimbursement
Obligation is paid at the lesser of (x) the Highest Lawful Rate, or (y) the
Base Rate (in the case of a Letter of Credit payable in Dollars) or the rate of
interest that would then be applicable hereunder to an Adjusted LIBOR Loan with
an Interest Period of one month (in the case of a Letter of Credit payable in
Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars or
Kroner), in each case so long as the Reimbursement Obligation shall not be past
due, and thereafter at the default rate per annum as set forth in Section 2.7(c),
whether or not the Commitment Termination Date shall have occurred. If any such
payment or disbursement is reimbursed to such Issuing Bank on the date such
payment or disbursement is made by such Issuing Bank, interest shall be paid on
the reimbursable amount for one (1) day. Each Issuing Bank shall give the
Borrower notice of any drawing on a Letter of Credit issued by it within one (1) Business
Day after such drawing is paid.


 


(ii)                                  The
Borrower agrees for the benefit of each Issuing Bank and each Lender that,
notwithstanding any provision of any Application, the obligations of the
Borrower under this Section 2.12(c) and each applicable Application
shall be absolute, unconditional and irrevocable and shall be performed
strictly in accordance with the terms of this Agreement and each applicable
Application under all circumstances whatsoever (other than the defense of
payment in accordance with this Agreement), including, without limitation, the
following circumstances (subject in all cases to the defense of payment in
accordance with this Agreement):


 


(1)                                                any
lack of validity or enforceability of any of the L/C Documents;


 


(2)                                                any
amendment or waiver of or any consent to depart from all or any of the
provisions of any of the L/C Documents;


 


(3)                                                the
existence of any claim, set-off, defense or other right the Borrower may have
at any time against a beneficiary of a Letter of Credit (or any person for whom
a beneficiary may be acting), any Issuing Bank, any Lender or any other 


 


34

















 


Person, whether in
connection with this Agreement, another L/C Document or any unrelated
transaction;


 


(4)                                                any
statement or any other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;


 


(5)                                                payment
by any Issuing Bank under a Letter of Credit against presentation to such
Issuing Bank of a draft or certificate that does not comply with the terms of
the Letter of Credit; or


 


(6)                                                any
other act or omission to act or delay of any kind by any Issuing Bank, any
Lender or any other Person or any other event or circumstance whatsoever that
might, but for the provisions of this Section 2.12(c), constitute a legal
or equitable discharge of the Borrower’s obligations hereunder, under an
Issuance Request or under an Application;


 


provided,
however, the foregoing shall not be construed to excuse any
Issuing Bank from liability to the Borrower to the extent of any direct damages
(but excluding consequential damages, which are hereby waived to the extent not
prohibited by applicable law) suffered by the Borrower that are caused by the
Issuing Bank’s gross negligence or willful misconduct.


 


(d)                                 The
Participating Interests. Each Lender severally and not jointly agrees to
purchase from each Issuing Bank, and each Issuing Bank hereby agrees to sell to
each Lender, an undivided percentage participating interest, to the extent of
its Percentage, in each Letter of Credit issued by, and Reimbursement
Obligation owed to, such Issuing Bank in connection with a Letter of Credit. Upon
any failure by the Borrower to pay any Reimbursement Obligation in connection
with a Letter of Credit at the time required in Sections 2.12(c) and
2.3(e), or if any Issuing Bank is required at any time to return to the
Borrower or to a trustee, receiver, liquidator, custodian or other Person any
portion of any payment by the Borrower of any Reimbursement Obligation in
connection with a Letter of Credit, such Issuing Bank shall promptly give
notice of same to each Lender, and such Issuing Bank shall have the right to
require each Lender to fund its participation in such Reimbursement Obligation.
Each Lender (except the Issuing Bank for the applicable Letter of Credit to the
extent it is also a Lender) shall pay to the Issuing Bank an amount equal to
such Lender’s Percentage of such unpaid or recaptured Reimbursement Obligation
not later than the Business Day it receives notice from such Issuing Bank to
such effect, if such notice is received before 2:00 P.M., or not later
than the following Business Day if such notice is received after such time. If
a Lender fails to pay timely such amount to any Issuing Bank, it shall also pay
to such Issuing Bank interest on such amount accrued from the date payment of
such amount was made by such Issuing Bank to the date of such payment by the
Lender at a rate per annum equal to the Administrative Agent’s cost of funds,
such rate to be applicable until the second Business Day after such payment by
such Issuing Bank and thereafter at the Base Rate in effect for each such day,
and only after such payment shall such Lender be entitled to receive its
Percentage of each payment received on the relevant Reimbursement Obligation
and of interest paid thereon. The several obligations of the Lenders to each
Issuing Bank under this Section 2.12(d) shall be absolute,
irrevocable and unconditional under any and


 


35

















 


all circumstances
whatsoever and shall not be subject to any set-off, counterclaim or defense to
payment any Lender may have or have had against the Borrower, such Issuing
Bank, and any other Lender or any other Person whatsoever including, but not
limited to, any defense based on the failure of the demand for payment under
the Letter of Credit to conform to the terms of such Letter of Credit or
the legality, validity, regularity or enforceability of such Letter of Credit
and INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM SUCH ISSUING BANK’S OWN
SIMPLE OR CONTRIBUTORY NEGLIGENCE. Without limiting the generality of the
foregoing, such obligations shall not be affected by any Default or Event of Default
or by any subsequent reduction or termination of any Commitment of a Lender,
and each payment by a Lender under this Section 2.12 shall be made without
any offset, abatement, withholding or reduction whatsoever.


 


(e)                                  Letter of Credit Amounts. Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent
of the stated amount of such Letter of Credit in effect at such time; provided, however, that
with respect to any Letter of Credit that, by its terms or the terms of any
Application related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the Dollar Equivalent of the maximum stated amount of such Letter of
Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.


 


Section 2.13.          Commitment
Terminations. The Borrower shall have the right at any time and from time
to time, upon three (3) Business Days’ prior and irrevocable written notice to
the Administrative Agent, to terminate or reduce the Commitments without
premium or penalty, in whole or in part, with any partial reduction (i) to be
in an amount not less than $5,000,000 as determined by the Borrower and in
integral multiples of $5,000,000 and (ii) as to the Commitments to be allocated
ratably among the Lenders in proportion to their respective Commitments; provided, that the Revolving Credit Commitment Amount may
not be reduced to an amount less than the sum of the aggregate principal amount
of outstanding Revolving Loans and L/C Obligations, after converting, if
necessary, any such outstanding Obligations to their Dollar Equivalent amounts
in accordance with Section 10.19 and after giving effect to payments on such
proposed termination or reduction date, except, in the case of L/C Obligations,
to the extent the Borrower provides to the Administrative Agent cash collateral
in an amount sufficient to cover such shortage or back to back letters of
credit from a bank(s) or financial institution(s) whose short-term unsecured
debt rating is rated A or above from either S&P or Moody’s or such other
bank(s) or financial institution(s) satisfactory to the Required Lenders in an
amount equal to the undrawn face amount of any applicable outstanding Letters
of Credit with an expiration date of at least five (5) days after the
expiration date of any applicable Letter of Credit and which provide that the
Administrative Agent may make a drawing thereunder in the event that it pays a
drawing under such Letter of Credit. The Administrative Agent shall give prompt
notice to each Lender of any such termination or reduction of the Commitments.
Any termination of Commitments pursuant to this Section 2.13 is permanent and
may not be reinstated.


 


Section 2.14.          [Intentionally Omitted]


 


Section 2.15.          Additional
Interest Costs.


 


36

















 


(a)                                  Mandatory
Costs. If and so long as any Lender is required to make special deposits to
maintain reserve asset ratios or to pay fees, in each case in respect of such
Lender’s Eurocurrency Loans in any currency other than Dollars, such Lender may require
the Borrower to pay, contemporaneously with each payment of interest on each of
such Loans, additional interest on such Loan at a rate per annum equal to the
Mandatory Costs calculated in accordance with the formula and in the manner set
forth in Exhibit 2.15 hereto.


 


(b)                                 Other
Requirements for Additional Interest. If and so long as any Lender is
required to comply with reserve assets, liquidity, cash margin or other
requirements of any monetary or other authority (including any such requirement
imposed by the European Central Bank or the European System of Central Banks,
but excluding requirements reflected in the Statutory Reserve Rate or the
Mandatory Costs) in respect of any of such Lender’s Eurocurrency Loans in any
currency other than Dollars, such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on each of such Loans subject
to such requirements, additional interest on such Loan at a rate per annum
specified by such Lender to be the cost to such Lender of complying with such
requirements in relation to such Loan.


 


(c)                                  Determination
of Amounts Due. Any additional interest owed pursuant to paragraph (a) or
(b) above shall be determined by the relevant Lender and notified to the
Borrower (with a copy to the Administrative Agent) in the form of a
certificate setting forth such additional interest at least five Business Days
before each date on which interest is payable for the relevant Loan, and such
additional interest so notified to the Borrower by such Lender shall be payable
to the Administrative Agent for the account of such Lender on each date on
which interest is payable for such Loan.


 


(d)                                 Limitation
on Amounts Due. Subject to the provisions of Section 8.3(c), failure
or delay on the part of any Lender on any occasion to demand additional
interest pursuant to this Section shall not constitute a waiver of such
Lender’s right to demand such additional interest on any subsequent occasion.


 


Section 2.16.          Extensions
of Commitment Termination Date. No earlier than 90 days and at least 30
days prior to any anniversary of the Effective Date, the Borrower may (but in
no event on more than two occasions during the term of this Agreement), by
written notice to the Administrative Agent, request that the Commitment
Termination Date then in effect be extended for a 1-year period. On each such
occasion, the Administrative Agent shall promptly notify each Lender of such
request. If a Lender agrees, in its individual and sole discretion, to so
extend its Commitment (an “Extending Lender”),
it shall deliver to the Administrative Agent a written notice of its agreement
to do so no earlier than 30 days prior to such anniversary date and the
Administrative Agent shall promptly thereafter notify the Borrower of such
Extending Lender’s agreement to extend its Commitment (and such agreement shall
be irrevocable until such anniversary date). The Commitment of any Lender that
fails to accept or respond to the Borrower’s request for extension of the
Commitment Termination Date (a “Declining Lender”)
shall be terminated on the Commitment Termination Date then in effect for such
Lender (without regard to any extension by other Lenders) and on such
Commitment Termination Date the Borrower shall pay in full the unpaid principal
amount of all Revolving Loans and 


 


37

















 


Reimbursement
Obligations owing to such Declining Lender, together with all accrued and
unpaid interest thereon and all fees accrued and unpaid under this Agreement to
the date of such payment of principal and all other amounts due to such
Declining Lender under this Agreement. The Administrative Agent shall promptly
notify each Extending Lender of the aggregate Commitments of the Declining
Lenders. Each Extending Lender may offer to increase its respective
Commitment by an aggregate amount up to the aggregate amount of the Declining
Lenders’ Commitments and such Extending Lender shall deliver to the
Administrative Agent a notice of its offer to so increase its Commitment no
later than 15 days prior to such anniversary date (and such offer shall be
irrevocable until such anniversary date). To the extent the aggregate amount of
extended Commitments is less than the aggregate amount of Commitments so
requested to be extended pursuant to the foregoing, the Borrower shall have the
right to require any Declining Lender to (and any such Declining Lender shall)
assign in full its rights and obligations under this Agreement to one or more banks or other financial institutions (which may be,
but need not be, one or more of the existing Lenders) which at the time agree
to, in the case of any such Person that is an existing Lender, increase its
Commitment and in the case of any other such Person (a “Replacement
Lender”) become a party to this Agreement;  provided that (i) such assignment is otherwise in
compliance with Section 10.10(b), (ii) such Declining Lender receives
payment in full of the unpaid principal amount of all Revolving Loans and
Reimbursement Obligations owing to such Declining Lender, together with all
accrued and unpaid interest thereon and all fees accrued and unpaid under this
Agreement to the date of such payment of principal and all other amounts due to
such Declining Lender under this Agreement and (iii) any such assignment
shall be effective on the date on or before such anniversary date as may be
specified by the Borrower and agreed to by the Replacement Lenders or the
Extending Lenders, as the case may be, and the Administrative Agent. If,
but only if, Extending Lenders and Replacement Lenders have agreed to provide
Commitments in an aggregate amount greater than 50% of the aggregate amount of
the Commitments outstanding immediately prior to such anniversary date, the
Commitment Termination Date of such Extending Lenders and Replacement Lenders
shall be extended by one year.


 


ARTICLE 3.                             FEES AND PAYMENTS.


 


Section 3.1.            Fees.


 


(a)                                  Facility
Fees. The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee, which shall accrue at the Applicable
Facility Fee Rate on the daily amount of the Commitment of such Lender (whether
used or unused) during the period from and including the Effective Date to but
excluding the date on which such Commitment terminates; provided
that, if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such facility fee shall continue to accrue on the
daily amount of such Lender’s Revolving Credit Exposure from and including the
date on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued facility fees
shall be payable in arrears on the last Business Day of March, June, September and
December of each year, commencing on December 31, 2007, on the
date(s) on which the Commitments shall have terminated and the Lenders shall
have no further Revolving Credit Exposures, and on the Maturity Date. All
facility fees shall be computed on 


 


38

















 


the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).


 


(b)                                 Utilization
Fees. For any day prior to the Commitment Termination Date on which the
Dollar Equivalent of the outstanding principal amount of the Loans and L/C
Obligations shall be greater than or equal to an amount equal to 50% of the
total Commitments (and for any day after the termination of all the Commitments
on which any Loans or L/C Obligations shall be outstanding if the Dollar
Equivalent of the outstanding principal amount thereof on the date the
Commitments terminated shall have been greater than or equal to 50% of the
total Commitments in effect on such date) the Borrower shall pay to the
Administrative Agent for the account of each Lender a utilization fee equal to
the Applicable Utilization Fee Rate multiplied by
the Dollar Equivalent of aggregate amount of such Lender’s outstanding Loans
and applicable Percentage of L/C Obligations on such day. Accrued and unpaid
utilization fees, if any, shall be payable in arrears on the last Business Day
of each March, June, September and December (of each year, commencing
on December 31, 2007), on the date(s) on which the Commitments shall have
terminated and there are no Loans or L/C Obligations outstanding, and on the
Maturity Date. All utilization fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).


 


(c)                                  Letter
of Credit Fees. Commencing upon the date of issuance, increase or extension
of any Letter of Credit and thereafter on the last Business Day of each March,
June, September and December (of each year, commencing on December 31,
2007), the Borrower shall pay to the Administrative Agent quarterly in advance,
for the period until the next Letter of Credit fee payment date, for the
ratable account of the Lenders, a non-refundable fee payable in Dollars equal
to the Applicable Margin multiplied by the outstanding face amount or increase
of such Letter of Credit during such upcoming period calculated on the basis of
a 360 day year and actual days elapsed and based on the then scheduled
expiration date of the Letter of Credit. For any Letter of Credit issued with a
face amount in Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore
Dollars or Kroner, the fees shall be converted into Dollars using the
applicable Exchange Rate in effect two (2) Business Days before the
issuance date thereof, and thereafter five (5) Business Days before any
fee with respect thereto shall be due and payable hereunder. In addition, the
Borrower shall pay to each Issuing Bank solely for such Issuing Bank’s account,
in connection with each Letter of Credit, issuance and administrative fees,
fronting fees and expenses for Letters of Credit issued by it as agreed from
time to time between such Issuing Bank and the Borrower.


 


(d)                                 Administrative
Agent Fees. The Borrower shall pay to the Administrative Agent and Co-Lead
Arrangers the fees from time to time agreed to by the Borrower, the
Administrative Agent, and Co-Lead Arrangers.


 


(e)                                  Payment
of Fees. All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees, utilization fees, and Letter of Credit fees (other
than issuance and administrative fees payable to each Issuing Bank), to the
Lenders.


 


39

















 


Section 3.2.            Place
and Application of Payments.


 


(a)                                  All
payments of principal of and interest on the Loans, Reimbursement Obligations
and all fees and other amounts payable by the Borrower under the Credit
Documents shall be made by the Borrower to the Administrative Agent, for the
benefit of the Lenders and the Issuing Banks entitled to such payments, in
immediately available funds on the due date thereof (i) in the case of
payments in U.S. Dollars, no later than 2:00 P.M. in the applicable
Administrative Agent’s Account or such other location as the Administrative
Agent may designate in writing to the Borrower, and (ii) in the case
of payments in Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore
Dollars, or Kroner, no later than 11:00 A.M. (at the office of the
applicable Administrative Agent’s Account for payments in such currency) in the
applicable Administrative Agent’s Account. Any payments received by the
Administrative Agent from the Borrower after the time specified in the
preceding sentence shall be deemed to have been received on the next Business
Day. If the Borrower does not, or is unable for any reason to, effect payment
of a Loan or Reimbursement Obligation to the Lenders in the applicable currency
or if the Borrower shall default in the payment when due of any payment in such
currency, the Lenders may, at their option, require such payment to be made to
the Lenders in the Dollar Equivalent of such currency determined in accordance
with Section 10.19. With respect to any amount due and payable in Euros,
Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars or Kroner, the
Borrower agrees to hold the Lenders harmless from any losses, if any, that are
incurred by the Lenders arising from any change in the value of Dollars in
relation to such currency between the date such payment became due and the date
of payment thereof (other than losses incurred by any Lender due to the gross
negligence or willful misconduct of such Lender). The Administrative Agent
will, on the same day each payment is received or deemed to have been received
in accordance with this Section 3.2, cause to be distributed like funds in
like currency to each Lender owed an Obligation for which such payment was
received, pro rata based on the respective amounts
of such type of Obligation then owing to each Lender.


 


(b)                                 If
any payment received by the Administrative Agent under any Credit Document is
insufficient to pay in full all amounts then due and payable to the
Administrative Agent and the Lenders under the Credit Documents, such payment
shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the order set forth in Section 7.7.
In calculating the amount of Obligations owing each Lender other than for
principal and interest on Loans and Reimbursement Obligations and fees under Section 3.1,
the Administrative Agent shall only be required to include such other
Obligations that Lenders have certified to the Administrative Agent in writing
are due to such Lenders.


 


Section 3.3.            Withholding
Taxes.


 


(a)                                  Payments
Free of Withholding. Except as otherwise required by law and subject to Section 3.3(b),
each payment by the Borrower to any Lender, Issuing Bank or Administrative
Agent under this Agreement or any other Credit Document shall be made without
withholding for or on account of any present or future taxes imposed by or
within the jurisdiction in which the Borrower is incorporated, any jurisdiction
from which the Borrower makes any payment, or 


 


40

















 


(in each case) any
political subdivision or taxing authority thereof or therein, excluding, in the
case of each Lender, Issuing Bank and the Administrative Agent, the following
taxes:


 


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


 


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


 


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


 


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


 


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


 


(all such present or
future taxes, excluding only the taxes described in the preceding clauses (i) through
(v), being hereinafter referred to as “Indemnified Taxes”). If any such
withholding is so required, the Borrower shall make the withholding, pay the
amount withheld to the appropriate governmental authority before penalties
attach thereto or interest accrues thereon and forthwith pay such additional
amount as may be necessary to ensure that the net amount actually received



 


41

















 


by each Lender, Issuing
Bank and the Administrative Agent is free and clear of such Indemnified Taxes
(including Indemnified Taxes on such additional amount) and is equal to the
amount that such Lender, Issuing Bank or the Administrative Agent (as the case may be)
would have received had withholding of any Indemnified Tax not been made. If
the Borrower pays any Indemnified Taxes, or any penalties or interest in
connection therewith, it shall deliver official tax receipts evidencing the
payment or certified copies thereof, or other evidence of payment if such tax
receipts have not yet been received by the Borrower (with such tax receipts to
be delivered within fifteen (15) days after being actually received), to the
Lender, Issuing Bank or the Administrative Agent on whose account such
withholding was made (with a copy to the Administrative Agent if not the
recipient of the original) within fifteen (15) days of such payment. If the
Administrative Agent or any Issuing Bank or Lender pays any Indemnified Taxes,
or any penalties or interest in connection therewith, the Borrower shall
reimburse the Administrative Agent or such Issuing Bank or Lender for the
payment on demand in the currency in which such payment was made. Such Lender,
Issuing Bank or the Administrative Agent shall make written demand on the
Borrower for reimbursement hereunder no later than ninety (90) days after the
earlier of (i) the date on which such Lender, Issuing Bank or the
Administrative Agent makes payment of the Indemnified Taxes, penalties and
interest, and (ii) the date on which the relevant taxing authority or
other governmental authority makes written demand upon such Lender, Issuing
Bank or the Administrative Agent for payment of the Indemnified Taxes,
penalties and interest. Any such demand shall describe in reasonable detail
such Indemnified Taxes, penalties or interest, including the amount thereof if
then known to such Lender, Issuing Bank, or the Administrative Agent, as the
case may be. In the event that such Lender, Issuing Bank or the
Administrative Agent fails to give the Borrower timely notice as provided herein,
the Borrower shall not have any obligation to pay such claim for reimbursement.


 


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


 


42

















 


United States
person and is exempt from information reporting under Section 6049 of the
Code and backup withholding under Section 3406 of the Code.


 


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


 


(d)                                 Refund
of Taxes. If any Lender, Issuing Bank or the Administrative Agent becomes
aware that it has received a refund of any Indemnified Tax or any tax referred
to in Section 10.3 with respect to which the Borrower has paid any amount
pursuant to this Section 3.3 or Section 10.3, such Lender, Issuing
Bank or the Administrative Agent shall pay the amount of such refund (including
any interest received with respect thereto) to the Borrower within fifteen (15)
days after receipt thereof. A Lender, Issuing Bank, or the Administrative Agent
shall provide, at the sole cost and expense of the Borrower, such assistance as
the Borrower may reasonably request in order to obtain such a refund; provided, however, that neither the Administrative Agent nor
any Lender or Issuing Bank shall in any event be required to disclose any
information to the Borrower with respect to the overall tax position of the
Administrative Agent or such Issuing Bank or Lender.


 


ARTICLE 4.                             CONDITIONS PRECEDENT.


 


Section 4.1.            Initial
Borrowing. This Agreement shall become effective, and the obligation of
each Lender to advance the initial Loans hereunder, and of each Issuing Bank to
issue any Letter of Credit hereunder, shall only take effect, on the date (the
“Effective Date”) on which each of the
following conditions has been satisfied (or waived in accordance with Section
10.11):


 


(a)                                  The
Administrative Agent shall have received counterparts of this Agreement duly
executed (including by facsimile or other electronic means) by all parties to
this Agreement, together with the following, all in form and substance
reasonably satisfactory to the Administrative Agent and the Co-Lead Arrangers
and in sufficient number of signed counterparts, where applicable, to provide
one for each Lender:


 


(i)                                     Certificates
of Officers. Certificates of the Secretary or an Assistant Secretary of the
Borrower containing specimen signatures of the persons authorized to execute
Credit Documents on the Borrower’s behalf or any other documents provided for
herein or therein, together with (x) copies of resolutions of the Board of
Directors or other appropriate body of the Borrower authorizing the execution
and delivery of the 


 


43

















 


Credit Documents, (y) copies of the Borrower’s memorandum of
association and articles of association and other publicly filed organizational
documents in its jurisdiction of incorporation and bylaws and other governing
documents, if any, and (z) a certificate of incorporation and a certificate of
good standing from the appropriate governing agency of the Borrower’s
jurisdiction of incorporation;


 


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


 


(iii)                               Insurance Certificate.
An insurance certificate dated not more than ten (10) Business Days prior
to the Effective Date from the Borrower describing in reasonable detail the
insurance maintained by the Borrower and its Subsidiaries as required by this
Agreement;


 


(iv)                              Opinions
of Counsel. The opinions of (x) Baker Botts LLP, counsel for the Borrower,
in the form of Exhibit 4.1A, (y) Eric B. Brown, General
Counsel of the Borrower, in the form of Exhibit 4.1B, and (z)
Walkers, Cayman Islands counsel for the Borrower, in the form of Exhibit 4.1C;


 


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


 


(vi)                              Termination
of Credit Facilities. Written acknowledgements as to the cancellation or
termination of the credit facilities more particularly described on Schedule 4.1
(with evidence of payment of all amounts outstanding thereunder and
arrangements with respect to cancellation or replacement of any letters of
credit outstanding thereunder);


 


(vii)                           Merger.
Evidence of the consummation of the Merger Transactions in accordance with the
terms of the Merger Agreement and other Merger Documentation (with all
conditions precedent to such consummation having been satisfied or waived (with
the prior consent (not to be unreasonably withheld or delayed) of the Co-Lead
Arrangers (other than with respect to the waiver of the financing condition) to
the extent the Co-Lead Arrangers reasonably determined any such waiver would be
materially adverse to the Lenders)); and


 


(viii)                        Notes.
Duly completed and executed Notes for each of the Lenders that has requested
such Notes prior to the Effective Date as provided in Section 2.8(e).


 


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


 


44

















 


(c)                                  No
Default or Event of Default shall have occurred and be continuing; and


 


(d)                                 Payment
of all fees and all expenses incurred through the Effective Date then due and
owing to the Administrative Agent, the Lenders, and the Co-Lead Arrangers
pursuant to this Agreement and as otherwise agreed in writing by the Borrower.


 


Section 4.2.            All
Borrowings. The obligation of each Lender to make any advance of any Loan,
and of each Issuing Bank to issue any Letter of Credit hereunder (including any
increase in the amount of, or extension of the expiration date of, any Letter
of Credit) is subject to satisfaction of the following conditions precedent
(but subject to Sections 2.3(c) and 2.12(b)):


 


(a)                                  Notices.
The Administrative Agent shall have received (i) in the case of any Loan,
the Borrowing Request required by the first sentence of Section 2.3(a),
and (ii) in the case of the issuance, extension or increase of a Letter of
Credit, the applicable Issuing Bank and the Administrative Agent shall have
received a duly completed Issuance Request and Application for such Letter of
Credit, as the case may be, meeting the requirements of Section 2.12(b);


 


(b)                                 Warranties
True and Correct. In the case of any advance, Borrowing, or issuance or
increase of any Letter of Credit that increases the aggregate amount of Loans
and L/C Obligations outstanding after giving effect to such advance, Borrowing
or issuance or increase, or extension of the expiration date of a Letter of
Credit, each of the representations and warranties of the Borrower and its
Subsidiaries set forth herein (other than, in the case of any such advances,
Borrowings, issuances or increases occurring after the Effective Date, the
representations and warranties set forth in Sections 5.4, 5.9, 5.15 and 5.16)
and in the other Credit Documents (other than, in the case of any such
advances, Borrowings, issuances or increases occurring after the Effective
Date, those that relate to the representations and warranties set forth in
Sections 5.4, 5.9, 5.15 and 5.16) shall be true and correct in all material
respects as of the time of such advance, Borrowing, or issuance or increase of
any Letter of Credit, except as a result of the transactions permitted
hereunder or thereunder and except to the extent that any such representation
or warranty relates solely to an earlier date, in which case it shall have been
true and correct in all material respects as of such earlier date;


 


(c)                                  No
Default. No Default or Event of Default shall have occurred and be
continuing or would occur as a result of any such Borrowing; or


 


(d)                                 Regulations
T, U and X. The Borrowing to be made by the Borrower shall not result in
the Borrower or any Lender or Issuing Bank being in non-compliance with or in
violation of Regulation T, U or X of the Board of Governors of the Federal
Reserve System.


 


Each acceptance by the
Borrower of an advance of any Loan or of the issuance of, increase in the
amount of, or extension of the expiration date of, a Letter of Credit shall be
deemed to be a representation and warranty by the Borrower on the date of such
acceptance, that all conditions precedent to such Borrowing set forth in this Section 4.2
and in Section 4.1 with respect to the initial Borrowings hereunder have
(except to the extent waived in accordance with the terms hereof) been
satisfied or fulfilled unless the Borrower gives to the Administrative Agent
and the Lenders written notice to the contrary, in which case none of the
Lenders shall be required to 


 


45

















 


fund or convert such
Loans, and no Issuing Bank shall be required to issue, increase the amount of
or extend the expiration date of such Letter of Credit, unless the Required
Lenders shall have previously waived in writing such non-compliance.


 


ARTICLE 5.                             REPRESENTATIONS AND
WARRANTIES.


 


The Borrower represents
and warrants to each Lender, Issuing Bank and the Administrative Agent as
follows:


 


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


 


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


 


Section 5.3.            No
Violation. Neither the execution, delivery or performance by the Borrower
of the Credit Documents to which it is a party nor compliance by it with the
terms and provisions thereof, nor the consummation by it of the transactions
contemplated herein or therein, will (i) contravene in any material respect any
applicable provision of any law, statute, rule or regulation, or any applicable
order, writ, injunction or decree of any court or governmental instrumentality,
(ii) conflict with or result in any breach of any term, covenant, condition or
other provision of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien other than any
Permitted Lien upon any of the property or assets of the Borrower or any of its
Subsidiaries under, the terms of any material contractual obligation to which
the Borrower or any of its Subsidiaries is a party or by which they or any of
their properties or assets are bound or to which they may be subject, or (iii)
violate or conflict with any provision of the memorandum of association and
articles of association, charter, articles or certificate of incorporation,
partnership or limited liability company agreement, by-laws, or other
applicable governance documents of the Borrower or any of its Subsidiaries.


 


46

















 


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


 


Section 5.5.            Use
of Proceeds; Margin Regulations.


 


(a)           Use
of Proceeds. The proceeds of the Loans and the Letters of Credit shall only
be used to refinance amounts outstanding on the Effective Date under the
Existing Credit Facility, for repayment and debt service on the Bridge
Facility, as a commercial paper backstop, for permitted investments and
acquisitions, and for capital expenditures and other general corporate purposes
of the Borrower and its Subsidiaries.


 


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


 


Section 5.6.            Investment
Company Act. Neither the Borrower nor any of its Subsidiaries is an “investment company” or a company “controlled”
by an “investment company,” within the meaning
of the Investment Company Act of 1940, as amended.


 


Section 5.7.            True
and Complete Disclosure. All factual information (taken as a whole)
furnished by the Borrower or any of its Subsidiaries in writing to the
Administrative Agent or any Lender in connection with any Credit Document or
the Confidential Information Memorandum or any transaction contemplated therein
did not, as of the date such information was furnished (or, if such information
expressly related to a specific date, as of such specific date), contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein (taken as a whole), in light of the
circumstances under which such information was furnished, not misleading,
except for such statements, if any, as have been updated, corrected,
supplemented, superseded or modified pursuant to a written correction or
supplement furnished to the Lenders prior to the date of this Agreement.


 


Section 5.8.            Financial
Statements. The financial statements heretofore delivered to the Lenders
for the Borrower’s fiscal year ending December 31, 2006, and for the Borrower’s
fiscal quarter and year-to-date period ending September 30, 2007, have been
prepared in accordance with GAAP applied on a basis consistent, except as
otherwise noted therein, in accordance with GAAP, with the Borrower’s financial
statements for the previous fiscal year. Such annual and quarterly financial
statements fairly present in all material respects on a consolidated basis the
financial position of the Borrower as of the dates thereof, and the results of
operations for the periods indicated, subject in the case of interim financial
statements, to normal year-end audit adjustments and omission of certain
footnotes (as permitted by the SEC). As of the Effective 


 


47

















 


Date, (a) the Borrower and its Subsidiaries (other than GSF),
considered as a whole, and (b) GSF had no material contingent liabilities or
material Indebtedness required under GAAP to be disclosed in a consolidated
balance sheet of the Borrower or GSF, as applicable, that were not (i) in the
case of the Borrower and its Subsidiaries (other than GSF) included in the
financial statements referred to in this Section 5.8 or disclosed in the notes
thereto or in writing to the Administrative Agent (with a written request to
the Administrative Agent to distribute such disclosure to the Lenders) unless
otherwise permitted under this Agreement and (ii) in the case of GSF, included
in the consolidated financial statements included in its quarterly report on
Form 10-Q for the quarter ended September 30, 2007 as filed with the SEC,
unless otherwise permitted under this Agreement.


 


Section 5.9.            No
Material Adverse Change. Except as may be described on Schedule 5.9,
since September 30, 2007 there has occurred no event or effect with respect to
the business, assets, operations or condition of the Borrower and its
Subsidiaries, and/or of GSF and its Subsidiaries, as reflected in their
respective quarterly reports on Form 10-Q filed with the SEC for the quarter
ended September 30, 2007 (and assuming, for purposes of this Section 5.9, that
the Merger and the incurrence of the Bridge Facility and other Merger
Transactions had occurred on September 30, 2007), that has had or could
reasonably be expected to have a Material Adverse Effect (after giving effect
to Merger and the incurrence of the Bridge Facility and other Merger
Transactions).


 


Section 5.10.          Taxes.
The Borrower and its Subsidiaries have filed all material tax returns required
to be filed, whether in the United States or in any foreign jurisdiction, and
have paid all governmental taxes, rates, assessments, fees, charges and levies
(collectively, “Taxes”) shown to be due and
payable on such returns or on any assessments made against Borrower and its
Subsidiaries or any of their properties (other than any such assessments, fees,
charges or levies that are not more than ninety (90) days past due, or which
can thereafter be paid without penalty, or which are being contested in good
faith by appropriate proceedings and for which reserves have been provided in
conformity with GAAP, or which the failure to pay could not reasonably be
expected to have a Material Adverse Effect).


 


Section 5.11.          Consents.
On the Effective Date, all material consents and approvals of, and filings and
registrations with, and all other actions of, all governmental agencies,
authorities or instrumentalities required to have been obtained or made by the
Borrower in order to obtain the Loans and Letters of Credit hereunder have been
or will have been obtained or made and are or will be in full force and effect.


 


Section 5.12.          Insurance.
The Borrower and its material Subsidiaries currently maintain in effect, with
responsible insurance companies, including captive insurance companies, or
through self-insurance, insurance against any loss or damage to all insurable
property and assets owned by it, which insurance is of a character and in or in
excess of such amounts as are customarily maintained by companies similarly
situated and operating like property or assets (subject to self-insured
retentions and deductibles), and insurance with respect to employers’ and
public and product liability risks (subject to self-insured retentions and
deductibles).


 


48
















 


Section 5.13.          Intellectual
Property.  The Borrower and its
Subsidiaries own or hold valid licenses to use all the patents, trademarks,
permits, service marks, and trade names that are necessary to the operation of
the business of the Borrower and its Subsidiaries as presently conducted,
except where the failure to own, or hold valid licenses to use, such patents,
trademarks, permits, service marks, and trade names could not reasonably be
expected to have a Material Adverse Effect.


 


Section 5.14.          Ownership
of Property   The Borrower and its
Subsidiaries have good title to or a valid leasehold interest in all of their
real property and good title to, or a valid leasehold interest in, all of their
other property, subject to no Liens except Permitted Liens, except where the
failure to have such title or leasehold interest in such property could not
reasonably be expected to have a Material Adverse Effect.


 


Section 5.15.          Existing
Indebtedness.  Schedule 5.15
contains a complete and accurate list of all Indebtedness outstanding as of the
Effective Date, with respect to the Borrower and its Subsidiaries, in each case
in a principal amount of $30,000,000 (or, if denominated in a currency other
than U.S. Dollars, the Dollar Equivalent of $30,000,000) or more (other than
the Obligations hereunder and Indebtedness permitted by Section 6.12(b) through
(j)) and permitted by Section 6.12(a), in each case showing the aggregate
principal amount thereof, the name of the respective borrower and any other
entity which directly or indirectly guaranteed such Indebtedness, and the
scheduled payments of such Indebtedness.


 


Section 5.16.          Existing
Liens.  Schedule 5.16 contains
a complete and accurate list of all Liens outstanding as of the Effective Date,
with respect to the Borrower and its Subsidiaries where the Indebtedness or
other obligations secured by such Lien is in a principal amount of $30,000,000
(or, if denominated in a currency other than U.S. Dollars, the Dollar
Equivalent of $30,000,000) or more (other than the Liens permitted by Section
6.11(b) through (r)), and permitted by Section 6.11(a), in each case showing
the name of the Person whose assets are subject to such Lien, the aggregate
principal amount of the Indebtedness secured thereby, and a description of the
Agreements or other instruments creating, granting, or otherwise giving rise to
such Lien.


 


Section 5.17.          Merger
Transactions. The Merger and the other Merger Transactions have been
consummated in accordance with the terms of the Merger Agreement and the other
Merger Documentation, and all conditions precedent to such consummation as
provided in the Merger Agreement and other Merger Documentation have been
satisfied or waived (with the prior written consent of the Co-Lead Arrangers to
the extent such consent may have been required as described in Section
4.1(a)(vii)).


 


Section 5.18.    Employee Benefit Plan. The Borrower,
each of its Subsidiaries and each of their respective ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA and the
Code and the regulations and published interpretations thereunder with respect
to each Employee Benefit Plan, and have performed all their obligations under
each Employee Benefit Plan except for any such non-compliance or
non-performance which could not reasonably be expected to result in a Material
Adverse Effect. No liability to the PBGC (other than required premium
payments), the U.S. Internal Revenue Service, any Employee Benefit Plan or any


 


49

















 


trust established under Title IV of ERISA has been or is expected to be
incurred by the Borrower, any of its Subsidiaries or any of their ERISA
Affiliates with respect to any Employee Benefit Plan, except for any such
liability which could not reasonably be expected to result in a Material
Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur
which could reasonably be expected to result in a Material Adverse Effect. No
Plan has Unfunded Vested Liabilities which could reasonably be expected to
result in a Material Adverse Effect. As of the most recent valuation date for
each Multiemployer Plan, the potential liability of the Borrower, its
Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
from such Multiemployer Plan (within the meaning of Section 4203 of ERISA),
when aggregated with such potential liability for a complete withdrawal from
all Multiemployer Plans, based on information available pursuant to Section
4221(e) of ERISA, could not reasonably be expected to result in a Material
Adverse Effect. The Borrower, each of its Subsidiaries and each of their ERISA
Affiliates have complied with the requirements of Section 515 of ERISA with
respect to each Multiemployer Plan and are not in material “default” (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan, except for any such non-compliance which could not
reasonably be expected to result in a Material Adverse Effect.


 


Section 5.19.          OFAC.
Neither the Borrower nor any of its Subsidiaries (i) is a person on the list of
Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other U.S. Department of Treasury’s
Office of Foreign Assets Control regulation or executive order, or (ii) will
knowingly use any proceeds of the Loans or the Letters of Credit, directly or
indirectly, to support activities in any country subject to a comprehensive
sanctions program administered by the Office of Foreign Assets Control (“OFAC”)
where such activities would be in violation of the sanctions program.


 


Section 5.20.          Patriot
Act. The Borrower and each of its Subsidiaries is in compliance, in all
material respects, with (i) the Trading with the Enemy Act, as amended,
and each of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other
enabling legislation or executive order relating thereto, and (ii) the Uniting
And Strengthening America By Providing Appropriate Tools Required To Intercept
And Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds of
the Loans will be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity,
in order to obtain, retain or direct business or obtain any improper advantage,
in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.


 


ARTICLE 6.          COVENANTS.


 


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


 


Section 6.1.            Corporate
Existence.  Each of the Borrower and
its material Subsidiaries will preserve and maintain its organizational
existence, except (i) for the dissolution of any material Subsidiaries
whose assets are transferred to the Borrower or any of its Subsidiaries,


 


50

















 


(ii) for mergers and other or other business combinations of the
Borrower permitted under Section 6.10 and mergers or other business
combinations of any Subsidiary of the Borrower with or into the Borrower or
another Subsidiary of the Borrower, (iii) where the failure to preserve,
renew or keep in full force and effect the existence of any Subsidiary could
not reasonably be expected to have a Material Adverse Effect, or (iv) as
otherwise expressly permitted in this Agreement.


 


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


 


Section 6.3.            Taxes.  Each of the Borrower and its Subsidiaries
will duly pay and discharge all Taxes upon or against it or its properties
within ninety (90) days after becoming due or, if later, prior to the date on
which penalties are imposed for such unpaid Taxes, unless and to the extent
that (i) the same is being contested in good faith and by appropriate
proceedings and reserves have been established in conformity with GAAP, or (ii)
the failure to effect such payment or discharge could not reasonably be
expected to have a Material Adverse Effect.


 


Section 6.4.            ERISA.
Each of the Borrower and its Subsidiaries will timely pay and discharge all
obligations and liabilities arising under ERISA or otherwise with respect to
each Plan of a character which if unpaid or unperformed might result in the
imposition of a material Lien against any properties or assets of the Borrower
or any material Subsidiary and will promptly notify the Administrative Agent
upon an officer of the Borrower becoming aware thereof, of (i) the occurrence
of any reportable event (as defined in ERISA) relating to a Plan (other than a
multi-employer plan, as defined in ERISA), so long as the event thereunder
could reasonably be expected to have a Material Adverse Effect, other than any
such event with respect to which the PBGC has waived notice by regulation; (ii)
receipt of any notice from PBGC of its intention to seek termination of any
Plan or appointment of a trustee therefor; (iii) Borrower’s or any of its
Subsidiaries’ intention to terminate or withdraw from any Plan if such
termination or withdrawal would result in liability under Title IV of ERISA,
unless such termination or withdrawal could not reasonably be expected to have
a Material Adverse Effect; and (iv) the receipt by the Borrower or its
Subsidiaries of notice of the occurrence of any event that could reasonably be
expected to result in the incurrence of any liability (other than for
benefits), fine or penalty to the Borrower and/or to the Borrower’s
Subsidiaries, or any plan amendment that could reasonably be expected to
increase the contingent liability of the Borrower and its Subsidiaries, taken
as a whole, in either case in connection with any post-retirement benefit under
a welfare plan (subject to ERISA), unless such event or amendment could not
reasonably be expected to have a Material Adverse Effect. The Borrower will
also promptly notify the Administrative


 


51

















 


Agent of (i) any material contributions to any Foreign Plan that
have not been made by the required due date for such contribution if such default
could reasonably be expected to have a Material Adverse Effect; (ii) any
Foreign Plan that is not funded to the extent required by the law of the
jurisdiction whose law governs such Foreign Plan based on the actuarial
assumptions reasonably used at any time if such underfunding (together with any
penalties likely to result) could reasonably be expected to have a Material
Adverse Effect, and (iii) any material change anticipated to any Foreign
Plan that could reasonably be expected to have a Material Adverse Effect.


 


Section 6.5.            Insurance.  Each of the Borrower and its material
Subsidiaries will maintain or cause to be maintained, with responsible
insurance companies, including captive insurance companies, or through
self-insurance, insurance against any loss or damage to all insurable property
and assets owned by it, such insurance to be of a character and in or in excess
of such amounts as are customarily maintained by companies similarly situated
and operating like property or assets (subject to self-insured retentions and
deductibles) and will (subject to self-insured retentions and deductibles)
maintain or cause to be maintained insurance with respect to employers’ and
public and product liability risks.


 


Section 6.6.            Financial
Reports and Other Information.


 


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


 


(i)            not
later than the earlier of (x) sixty (60) days after the end of each of the
first three (3) fiscal quarters of each fiscal year of the Borrower, and (y)
five (5) days after the date the Borrower is required to file with the SEC its
report on Form 10-Q with respect to each of such fiscal quarters, the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter and the related consolidated statements of income and
retained earnings and of cash flows for such fiscal quarter and for the portion
of the fiscal year ended with the last day of such fiscal quarter, all of which
shall be in reasonable detail or in the form filed with the SEC, and certified
by the chief financial officer of the Borrower that they fairly present the
financial condition of the Borrower and its Subsidiaries as of the dates
indicated and the results of their operations and changes in their cash flows
for the periods indicated and that they have been prepared in accordance with
GAAP, in each case, subject to normal year-end audit adjustments and the
omission of any footnotes as permitted by the SEC (publicly filing the
Borrower’s Form 10-Q with the SEC in any event will satisfy the requirements of
this subsection subject to Section 6.6(b) and shall be deemed furnished and
delivered on the date such information has been posted on the SEC website
accessible through http://www.sec.gov/edgar/searchedgar/webusers.htm or such
successor webpage of the SEC thereto));


 


52

















 


(ii)           not
later than the earlier of (x) one hundred twenty (120) days after the end of
each fiscal year of the Borrower, and (y) five (5) days after the date the
Borrower is required to file with the SEC its report on Form 10-K with respect
to such fiscal year, the consolidated balance sheet of the Borrower 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 and setting forth consolidated comparative figures as of the end of and
for the preceding fiscal year, audited by an independent nationally-recognized
accounting firm and in the form filed with the SEC (publicly filing the
Borrower’s Form 10-K with the SEC in any event will satisfy the requirements of
this subsection subject to Section 6.6(b) and shall be deemed furnished and
delivered on the date such information has been posted on the SEC website
accessible through http://www.sec.gov/edgar/searchedgar/webusers.htm or such
successor webpage of the SEC thereto));


 


(iii)          commencing
with fiscal year 2008, to the extent actually prepared and approved by the
Borrower’s board of directors, a projection of Borrower’s consolidated balance
sheet and consolidated income, retained earnings and cash flows for its current
fiscal year showing such projected budget for each fiscal quarter of the
Borrower ending during such year; and


 


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


 


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


 


(b)           Compliance Certificates.
Within the respective time periods set forth in subsections (i) and (ii) of
Section 6.6(a) for furnishing financial statements, the Borrower shall deliver
(i) additional information setting forth calculations excluding the effects of
any SPVs and containing such calculations for any SPVs as reasonably requested
by the Administrative Agent, and (ii) (x) a written certificate signed by the
Borrower’s chief financial officer (or other financial officer of the
Borrower), in his or her capacity as such, to the effect that no Default or
Event of Default then exists or, if any such Default or Event of Default exists
as of the date of such certificate, setting forth a description of such Default
or Event of Default and specifying the action, if any, taken by the Borrower to
remedy the same, and (y) a Compliance Certificate in the form of Exhibit 6.6
showing the Borrower’s compliance with certain of the covenants (to the extent
then applicable) set forth herein.


 


53

















 


(c)           Reserved.


 


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


 


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


 


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


 


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


 


(e)                           Notices of
Default, Litigation, Etc. The Borrower will promptly, and in any event
within five (5) Business Days, after an officer of the Borrower has knowledge
thereof, give written notice to the Administrative Agent of (who will in turn
provide notice to the Lenders of):  (i)
the occurrence of any Default or Event of Default; (ii) any litigation or
governmental proceeding of the type described in Section 5.4; (iii) any
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect; (iv) the occurrence of any event which has resulted in a breach
of, or is reasonably expected to result in a breach of, Section 6.17 or 6.18;
and (v) any notice received by it, any Subsidiary or any SPV from the holder(s)
of Indebtedness of the Borrower, any Subsidiary or any SPV in an amount which,
in the aggregate, exceeds $75,000,000 (or, if denominated in a currency other
than U.S. Dollars, the Dollar Equivalent of $75,000,000), where such notice
states or claims the existence or occurrence of any default or event of default
with respect to such Indebtedness under the terms of any indenture, loan or
credit agreement, debenture, note, or other document evidencing or governing
such Indebtedness.


 


Section 6.7.            Lender
Inspection Rights. Upon reasonable notice from the Administrative Agent or
any Lender, the Borrower will permit the Administrative Agent or any Lender
(and such Persons as the Administrative Agent or such Lender may reasonably
designate) during normal business hours at such entity’s sole expense unless a
Default or Event of Default shall have occurred and be continuing, in which
event at the Borrower’s expense, to visit and inspect any of the properties of
the Borrower or any of its Subsidiaries, to examine all of their books and
records, to make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers and independent
public accountants (and by this provision the Borrower authorizes such
accountants to discuss with the Administrative Agent and any Lender (and such
Persons as the Administrative Agent or such Lender may reasonably designate)
the affairs, finances and accounts of the Borrower and its Subsidiaries), all


 


54

















 


as often, and to such extent, as may be reasonably requested. The chief
financial officer of the Borrower and/or his or her designee shall be afforded
the opportunity to be present at any meeting of the Administrative Agent or the
Lenders and such accountants. The Administrative Agent agrees to use reasonable
efforts to minimize, to the extent practicable, the number of separate requests
from the Lenders to exercise their rights under this Section 6.7 and/or Section
6.6 and to coordinate the exercise by the Lenders of such rights.


 


Section 6.8.            Conduct
of Business.  The Borrower and its
Subsidiaries will at all times remain primarily engaged in (i) the contract
drilling business, and the provision of turnkey drilling services,
(ii) the provision of services to the energy industry, (iii) other
existing businesses described in the Borrower’s and GSF’s quarterly reports on
Form 10-Q filed with the SEC for the quarter ended September 30, 2007,
including without limitation, the oil and gas exploration and production
business, or (iv) any related businesses (each a “Permitted
Business”).


 


Section 6.9.            Use
of Proceeds; Margin Regulations.


 


(a)           Use of Proceeds. The proceeds
of the Loans and the Letters of Credit shall only be used to refinance amounts outstanding
on the Effective Date under the Existing Credit Facility, for repayment and
debt service on the Bridge Facility, as a commercial paper backstop, for
permitted investments and acquisitions, and for capital expenditures and other
general corporate purposes of the Borrower and its Subsidiaries.


 


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


 


Section 6.10.          Restrictions
on Fundamental Changes.  The Borrower
shall not merge, consolidate or amalgamate with any other Person, or cause or
permit any dissolution of the Borrower or liquidation of its assets, or sell,
transfer or otherwise dispose of all or substantially all of the Borrower’s
assets, except that:


 


(a)           The Borrower may merge into, or consolidate
or amalgamate with, any other Person if upon the consummation of any such
merger, consolidation or amalgamation the Borrower is the surviving Person to
any such merger, consolidation or amalgamation; and


 


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


 


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


 


55

















 


Section 6.11.                             Liens.
The Borrower and its Subsidiaries shall not create, incur, assume or suffer to
exist any Lien of any kind on any property or asset of any kind of the Borrower
or any Subsidiary, except the following (collectively, the “Permitted Liens”):


 


(a)                                  Liens
existing on the Effective Date (each such Lien, to the extent it secures
Indebtedness or other obligations in an aggregate amount of $30,000,000 (or, if
denominated in a currency other than U.S. Dollars, the Dollar Equivalent of
$30,000,000) or more, being described on Schedule 5.16 attached
hereto);


 


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


 


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


 


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


 


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


 


(f)                                    Liens
arising out of judgments or awards against the Borrower or any of its
Subsidiaries, or in connection with surety or appeal bonds or the like in
connection with bonding such judgments or awards, the time for appeal from
which or petition for rehearing of which shall not have expired or for which
the Borrower or such Subsidiary shall be prosecuting on appeal or proceeding
for review, and for which it shall have obtained (within thirty (30) days with
respect to a judgment or award rendered in the United States or within sixty
(60) days with respect to a judgment or award rendered in a foreign
jurisdiction after entry of such judgment or 


 


56

















 


award or
expiration of any previous such stay, as applicable) a stay of execution or the
like pending such appeal or proceeding for review; provided, that the aggregate amount of uninsured or
underinsured liabilities (net of customary deductibles, and including interest,
costs, fees and penalties, if any) of the Borrower and its Subsidiaries secured
by such Liens shall not exceed the Dollar Equivalent of $125,000,000 at any one
time outstanding;


 


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


 


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


 


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


 


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


 


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


 


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


 


57

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(t)                                    Liens
on the drillships and related assets securing the Angolan Debt and the Pacific
Drilling Debt;


 


(u)                                 Liens
securing Indebtedness or other obligations (i) of the Borrower in favor of
any wholly owned Subsidiary of the Borrower, or (ii) of any wholly owned
Subsidiary of the Borrower in favor of the Borrower or another wholly owned
Subsidiary of the Borrower; and


 


(v)                                 Liens
(not otherwise permitted by this Section 6.11) securing Indebtedness (or
other obligations) not exceeding at the time of incurrence thereof (together
with all such other Liens securing Indebtedness (or other obligations)
outstanding pursuant to this clause (v) at such time) ten percent (10%) of
Consolidated Tangible Net Worth.


 


Section 6.12.                             Subsidiary
Indebtedness. The Borrower shall not permit its Subsidiaries to incur,
assume or suffer to exist any Indebtedness, except:


 


(a)                                  existing
Indebtedness outstanding on the Effective Date (such Indebtedness, to the
extent the principal amount thereof is $30,000,000 (or, if denominated in a
currency other than U.S. Dollars, the Dollar Equivalent of $30,000,000) or
more, being described on Schedule 5.15 attached hereto), and any
subsequent extensions, renewals or refinancings thereof (i) so long as such
Indebtedness is not increased in amount (other than amounts incurred to pay
costs of such extension, renewal or refinancing), the scheduled maturity date
thereof (if prior to the Maturity Date) is not accelerated, the interest rate
per annum applicable thereto is not increased, any 


 


58

















 


scheduled
amortization of principal thereunder prior to the Maturity Date is not
shortened and the payments thereunder are not increased, or (ii) such
extensions, renewals or refinancings are otherwise expressly permitted by, and
are effected pursuant to, another clause in this Section 6.12 (other than
clause (l) hereof);


 


(b)                                 Indebtedness
under the Credit Documents;


 


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


 


(d)                                 Indebtedness
under any Interest Rate Protection Agreements and any Currency Rate Protection
Agreements;


 


(e)                                  Indebtedness
(i) under unsecured lines of credit for overdrafts or for working capital
purposes in foreign countries with financial institutions, and (ii) arising
from the honoring by a bank or other Person of a check, draft or similar
instrument inadvertently drawing against insufficient funds, all such
Indebtedness not to exceed the Dollar Equivalent of $300,000,000 in the
aggregate at any time outstanding, provided
that amounts under overdraft lines of credit or outstanding as a
result of drawings against insufficient funds shall be outstanding for one (1) Business
Day before being included in such aggregate amount;


 


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


 


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


 


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


 


(i)                                     Indebtedness
(not otherwise permitted under any other clause of this Section 6.12) in
an aggregate principal amount outstanding for all Subsidiaries not exceeding at
the time of incurrence thereof (together with all such other Indebtedness
outstanding pursuant to this clause (i) at such time) ten percent (10%) of
Consolidated Net Assets (the “Subsidiary
Debt Basket Amount”);


 


(j)                                     other
Indebtedness not otherwise permitted under any other clause of this Section 6.12
so long as such Subsidiary has in force a Subsidiary Guaranty in substantially
the form of Exhibit 6.12, provided
that such Subsidiary Guaranty shall contain a provision that such
Subsidiary Guaranty and all obligations thereunder of the Guarantor party
thereto shall be terminated upon delivery to the Administrative Agent by the
Borrower of a certificate stating that (x) the aggregate principal amount of
Indebtedness of all Subsidiaries outstanding pursuant to the 


 


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preceding clause (i) and
this clause (j) is equal to or less than the Subsidiary Debt Basket Amount, and
(y) no Default or Event of Default has occurred and is continuing;


 


(k)                                  Indebtedness
created in respect of the Angolan Debt and the Pacific Drilling Debt; and


 


(l)                                     Extensions,
renewals or replacements of Indebtedness permitted by this Section 6.12
that do not increase the amount of such Indebtedness (other than amounts
incurred to pay costs of such extension, renewal or refinancing).


 


Section 6.13.                             Use
of Property and Facilities; Environmental Laws. The Borrower and its
Subsidiaries shall comply in all material respects with all Environmental Laws
applicable to or affecting the properties or business operations of the
Borrower or any Subsidiary of the Borrower, where the failure to comply could
reasonably be expected to have a Material Adverse Effect.


 


Section 6.14.                             Transactions
with Affiliates. Except as otherwise specifically permitted herein, or as
described in Schedule 6.14, the Borrower and its Subsidiaries shall
not (except pursuant to contracts outstanding as of (i) with respect to
the Borrower, the Effective Date or (ii) with respect to any Subsidiary of
the Borrower, the Effective Date or, if later, the date such Subsidiary first
became a Subsidiary of the Borrower; including, without limitation, any
Employee Benefit Plans or related trusts), enter into or engage in any material
transaction or arrangement or series of related transactions or
arrangements which in the aggregate would be material with any Controlling
Affiliate (other than the Borrower or any Subsidiaries of the Borrower),
including without limitation, the purchase from, sale to or exchange of
property with, any merger, consolidation or amalgamation with or into, or the
rendering of any service by or for, any Controlling Affiliate (other than the
Borrower or any Subsidiaries of the Borrower), except pursuant to the
requirements of the Borrower’s or such Subsidiary’s business and unless such
transaction or arrangement or series of related transactions or
arrangements, taken as a whole, are no less favorable to the Borrower or such
Subsidiary than would be obtained in an arms’ length transaction with a Person
not a Controlling Affiliate (other than the Borrower or any Subsidiaries of the
Borrower).


 


Section 6.15.                             Sale
and Leaseback Transactions. The Borrower will not, and will not permit any
of its Subsidiaries to, enter into, assume, or suffer to exist any
Sale-Leaseback Transaction, except any such transaction that may be
entered into, assumed or suffered to exist without violating any other
provision of this Agreement, including without limitation, Section 6.17 or
6.18.


 


Section 6.16.                             Compliance
with Laws. Without limiting any of the other covenants of the Borrower in
this Article 6, the Borrower and its Subsidiaries shall conduct their
business, and otherwise be, in compliance with all applicable laws,
regulations, ordinances and orders of any governmental or judicial authorities;
provided, however, that this Section 6.16
shall not require the Borrower or any Subsidiary of the Borrower to comply with
any such law, regulation, ordinance or order if (x) it shall be contesting such
law, regulation, ordinance or order in good faith by appropriate proceedings
and reserves in conformity with GAAP have been provided 


 


60

















 


therefor, or (y) the
failure to comply therewith could not reasonably be expected to have a Material
Adverse Effect.


 


Section 6.17.                             Indebtedness
to Total Tangible Capitalization Ratio. The Borrower will maintain, as of
the end of each fiscal quarter of the Borrower ending on or after the second
anniversary of the Effective Date, a ratio of Consolidated Indebtedness as at
the end of such fiscal quarter to Total Tangible Capitalization as at the end
of such fiscal quarter of no greater than 0.60:1.00.


 


Section 6.18.                             Leverage
Ratio. The Borrower will maintain (i) as of June 30, 2008, a
Leverage Ratio of no greater than 3.50:1.00, and (ii) as of the end of
each fiscal quarter of the Borrower ending after June 30, 2008 until the
end of the fiscal quarter ending immediately prior to the second anniversary of
the Effective Date, a Leverage Ratio (on a pro forma basis, as applicable) no
greater than 3.00:1.00.


 


ARTICLE 7.                             EVENTS
OF DEFAULT AND REMEDIES.


 


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


 


(a)                                  default
by the Borrower in the payment of any principal amount of any Loan or
Reimbursement Obligation, any interest thereon, or any fees payable hereunder,
within three (3) Business Days following the date when due;


 


(b)                                 default
by the Borrower in the observance or performance of any covenant set forth in
Sections 6.10, 6.11, 6.17 or 6.18;


 


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


 


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


 


(e)                                  (x)
Indebtedness in the aggregate principal amount of the Dollar Equivalent of
$125,000,000 of the Borrower and its Subsidiaries (“Material Indebtedness”) shall (i) not be paid at
maturity (beyond any applicable grace periods), or (ii) be declared to be
due and payable or required to be prepaid, redeemed or repurchased prior to its
stated maturity, or (y) any default in respect of Material Indebtedness shall
occur which permits the holders thereof, or any trustees or agents on their
behalf, to accelerate the maturity of such Indebtedness or requires such
Indebtedness to be prepaid, redeemed, or repurchased prior to its stated
maturity;


 


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


 


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


 


(h)                                 the
Borrower or any Subsidiaries of the Borrower fail within thirty (30) days with
respect to any judgments or orders that are rendered in the United States or
sixty (60) days with respect to any judgments or orders that are rendered in
foreign jurisdictions (or such earlier date as any execution on such judgments
or orders shall take place) to vacate, pay, bond or otherwise discharge any
judgments or orders for the payment of money the uninsured portion of which is
in excess of the Dollar Equivalent of $125,000,000 in the aggregate and which
are not stayed on appeal or otherwise being appropriately contested in good
faith in a manner that stays execution;


 


(i)                                     (x)
the Borrower or any Subsidiary of the Borrower fails to pay when due an amount
that it is liable to pay to the PBGC or to a Plan under Title IV of ERISA; or a
notice of intent to terminate a Plan having Unfunded Vested Liabilities of the
Borrower or any of its Subsidiaries in excess of the Dollar Equivalent of
$125,000,000 (a “Material Plan”)
is filed under Title IV of ERISA; or the PBGC institutes proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding is instituted by a fiduciary of
any Material Plan against any Borrower or any Subsidiary to collect any
liability under Section 515 or 4219(c)(5) of ERISA, and in each case
such proceeding is not dismissed within thirty (30) days thereafter; or a
condition exists by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated, and (y) the
occurrence of one or more of the matters in the preceding clause (x) could
reasonably be expected to result in liabilities in excess of the Dollar
Equivalent of $125,000,000;


 


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


 


(k)                                  the
existence or occurrence of any “Event of Default” as defined in the 364-Day
Revolving Credit Agreement.


 


Section 7.2.                                   Non-Bankruptcy
Defaults. When any Event of Default (other than those described in
subsections (f) or (g) of Section 7.1 with respect to the
Borrower) has occurred and is continuing, the Administrative Agent shall, by
notice to the Borrower: (a) if so directed by the Required Lenders,
terminate the remaining Commitments to the Borrower hereunder on the date
stated in such notice (which may be the date thereof); (b) if so
directed by the Required Lenders, declare the principal of and the accrued
interest on all outstanding Loans to be forthwith due and payable and thereupon
all outstanding Loans, including both principal and interest thereon, shall be
and become immediately due and payable together with all other accrued amounts
payable under the Credit Documents without further demand, presentment, protest
or notice of any kind, including, but not limited to, notice of intent to
accelerate and notice of acceleration, each of which is expressly waived by the
Borrower; and (c) if so directed by the Required Lenders, demand that the
Borrower immediately pay to the Administrative Agent (to be held by the
Administrative Agent pursuant to Section 7.4) in cash the full amount then
available for drawing under each outstanding Letter of Credit, and the Borrower
agrees to immediately make such payment and acknowledges and agrees that the
Lenders, the Issuing Banks and the Administrative Agent would not have an
adequate remedy at law for failure by the Borrower to honor any such demand and
that the Administrative Agent, for the benefit of the Lenders and the Issuing
Banks, shall have the right to require the Borrower to specifically perform such
undertaking whether or not any drawings or other demands for payment have been
made under any Letter of Credit. The Administrative Agent, after giving notice
to the Borrower pursuant to this Section 7.2, shall also promptly send a
copy of such notice to the other Lenders and the Issuing Banks, but the failure
to do so shall not impair or annul the effect of such notice.


 


Section 7.3.                                   Bankruptcy
Defaults. When any Event of Default described in subsections (f) or (g) of
Section 7.1 has occurred and is continuing with respect to the Borrower,
then all outstanding Loans shall immediately become due and payable together
with all other accrued amounts payable under the Credit Documents without
presentment, demand, protest or notice of any kind, each of which is expressly
waived by the Borrower; and all obligations of the Lenders and the Issuing Bank
to extend further credit pursuant to any of the terms hereof shall immediately
terminate and the Borrower shall immediately pay to the Administrative Agent
(to be held by the Administrative Agent pursuant to Section 7.4) in cash
the full amount then available for drawing under all outstanding Letters of
Credit, the Borrower acknowledging that the Lenders, the Issuing Banks, and the
Administrative Agent would not have an adequate remedy at law for failure by
the Borrower to honor any such demand and that the Lenders, the Issuing Banks,
and the Administrative Agent shall have the right to require the Borrower to 


 


63

















 


specifically perform such
undertaking whether or not any drawings or other demands for payment have been
made under any of the Letters of Credit.


 


Section 7.4.                                   Collateral
for Undrawn Letters of Credit.


 


(a)                                  If
the prepayment of the amount available for drawing under any or all outstanding
Letters of Credit is required under Section 7.2 or 7.3, the Borrower shall
forthwith pay in cash the amount required to be so prepaid, to be held by the
Administrative Agent as provided in subsection (b) below.


 


(b)                                 All
amounts prepaid pursuant to subsection (a) above shall be held by the
Administrative Agent in a separate collateral account (such account, and the
credit balances, properties and any investments from time to time held therein,
and any substitutions for such account, any certificate of deposit or other
instrument evidencing any of the foregoing and all proceeds of and earnings on
any of the foregoing being collectively called the “Collateral Account”) as security for, and for application
to, the reimbursement of any drawing under any Letter of Credit then or
thereafter paid by the Issuing Banks, and to the payment of the unpaid balance
of any Loans and all other due and unpaid Obligations (collectively, the “Collateralized Obligations”). The
Collateral Account shall be held in the name of and subject to the exclusive
dominion and control of the Administrative Agent, for the benefit of the Issuing
Banks, the Administrative Agent, and the Lenders, as pledgee hereunder. If and
when required by the Borrower, the Administrative Agent shall invest and
reinvest funds held in the Collateral Account from time to time in Cash
Equivalents specified from time to time by the Borrower, provided that the Administrative Agent is
irrevocably authorized to sell on market terms any investments held in the
Collateral Account when and as required to make payments out of the Collateral
Account for application to Collateralized Obligations due and owing from the
Borrower to the Issuing Banks, the Administrative Agent, or the Lenders. When
and if (A) (i) the Borrower shall have made payment of all
Collateralized Obligations then due and payable, and (ii) all relevant preference
or other disgorgement periods relating to the receipt of such payments have
passed, or (B) no Default or Event of Default shall be continuing, the
Administrative Agent shall repay to the Borrower any remaining amounts and
assets held in the Collateral Account, provided
that if the Collateral Account is being released pursuant to clause (A) and
any Letter of Credit then remains outstanding, the Borrower, prior to or
contemporaneously with such release, shall make arrangements with respect to
such outstanding Letters of Credit in the manner described in the first
sentence of this Section 7.4(b). In addition, if the aggregate amount on
deposit with the Collateral Agent exceeds the Collateralized Obligations then
existing, then the Administrative Agent shall release and deliver such excess
amount upon the written request of the Borrower.


 


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


 


Section 7.6.                                   Expenses.
The Borrower agrees to pay to the Administrative Agent, each Issuing Bank, and
each Lender all reasonable out-of-pocket expenses incurred or paid by the
Administrative Agent, such Issuing Bank, or such Lender, including reasonable
attorneys’ fees 


 


64

















 


and court costs, in
connection with any Default or Event of Default hereunder or in connection with
the enforcement of any of the Credit Documents.


 


Section 7.7.                                   Distribution
and Application of Proceeds. After the occurrence of and during the
continuance of an Event of Default, any payment to the Administrative Agent,
any Issuing Bank, or any Lender hereunder or from the proceeds of the
Collateral Account or otherwise shall be paid to the Administrative Agent to be
distributed and applied as follows (unless otherwise agreed by the Borrower,
the Administrative Agent, the Issuing Banks, and all Lenders):


 


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


 


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


 


(c)                                  Third,
to the payment of any due and unpaid fees to the Administrative Agent or any
Lender or Issuing Bank as provided by this Agreement or any other Credit
Document, pro rata in the
proportion in which the amount of such fees due and unpaid to the
Administrative Agent and each Lender and Issuing Bank bears to the aggregate
amount of the fees due and unpaid to the Administrative Agent and all Lenders
and Issuing Banks collectively, until all such fees have been paid in full;


 


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


 


(e)                                  Fifth,
to the payment of the outstanding due and payable principal amount of each of
the Loans and the amount of the outstanding Reimbursement Obligations
(reserving cash collateral for all undrawn face amounts of any outstanding
Letters of Credit (if Section 7.4(a) has not been complied with)), pro rata in the proportion in which the
outstanding principal amount of such Loans and the amount of such outstanding
Reimbursement Obligations owing to each Lender and Issuing Bank, together (if Section 7.4(a) has
not been complied with) with the 


 


65

















 


undrawn face
amounts of such outstanding Letters of Credit, bears to the aggregate amount of
all outstanding Loans, outstanding Reimbursement Obligations and (if Section 7.4(a) has
not been complied with) the undrawn face amounts of all outstanding Letters of
Credit. In the event that any such Letters of Credit, or any portions thereof,
expire without being drawn, any cash collateral therefor shall not be
distributed by the Administrative Agent until the principal amount of all Loans
and Reimbursement Obligations shall have been paid in full;


 


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


 


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


 


ARTICLE 8.                             CHANGE
IN CIRCUMSTANCES.


 


Section 8.1.                                   Change
of Law.


 


(a)                                  Notwithstanding
any other provisions of this Agreement or any Note, if at any time any change,
after the date hereof (or, if later, after the date the Administrative Agent or
any Issuing Bank or Lender becomes the Administrative Agent or an Issuing Bank
or Lender), in applicable law or regulation or in the interpretation thereof
makes it unlawful for any Lender to make or maintain Eurocurrency Loans or to
fund any Loans in Euros, Pounds, Australian Dollars, Canadian Dollars,
Singapore Dollars, or Kroner, or the Issuing Bank to issue any Letter of Credit
or to provide payment thereunder in Euros, Pounds, Australian Dollars, Canadian
Dollars, Singapore Dollars, or Kroner, such Lender or Issuing Bank, as the case
may be, shall promptly give written notice thereof and of the basis
therefor in reasonable detail to the Borrower, and such Lender’s or Issuing
Bank’s obligations to fund affected Eurocurrency Loans or make, continue or
convert such Loans under this Agreement, or to issue any such Letters of
Credit, as the case may be, shall thereupon be suspended until it is no
longer unlawful for such Lender to make or maintain such Loans or issue such
Letters of Credit.


 


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


 


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


 


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


 


Section 8.3.                                   Increased
Cost and Reduced Return.


 


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


 


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


 


(ii)                                  imposes,
modifies or deems applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but excluding for any
Eurocurrency Loan any such requirement included in an applicable Statutory
Reserve Rate) against 


 


67

















 


assets of, deposits with or for the account of, or credit extended by,
any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any
Lender or Issuing Bank (or its Lending Office) or on the interbank market any
other condition affecting its Eurocurrency Loans, Letters of Credit, any
Reimbursement Obligations owed to it, or its participation in any thereof, or
its obligation to advance or maintain Eurocurrency Loans, issue Letters of
Credit or participate in any thereof;


 


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


 


(b)                                 If,
after the date hereof, the Administrative Agent or any Lender or Issuing Bank
shall have reasonably determined that the adoption after the date hereof of any
applicable law, rule or regulation regarding capital adequacy, or any
change therein (including, without limitation, any revision in the Final Risk-Based
Capital Guidelines of the Board of Governors of the Federal Reserve System (12
CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) or of the
Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or
in any other applicable capital adequacy rules heretofore adopted and
issued by any governmental authority), or any change after the date hereof in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Administrative Agent or any Lender
or Issuing Bank (or its applicable Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender’s or Issuing Bank’s
capital, or on the capital of any corporation controlling such Lender or
Issuing Bank, as a consequence of its obligations hereunder to a level below
that which such Lender or Issuing Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Lender’s or
Issuing Bank’s or its controlling corporation’s policies with respect to
capital adequacy in effect immediately before such adoption, change or
compliance) by an amount reasonably deemed by such Lender or Issuing Bank to be
material, then, subject to Section 8.3(c), from time to time, within
thirty (30) days after its receipt of a certificate from such Lender or Issuing
Bank (with a copy to the Administrative Agent) pursuant to subsection (c) below
setting forth in reasonable detail such determination and the basis thereof,
the Borrower shall pay to such Lender or Issuing Bank such additional amount or
amounts as will compensate such Lender or Issuing Bank for such reduction or
the Borrower may prepay all Eurocurrency Loans of such Lender or obtain
the cancellation of all such Letters of Credit.


 


68

















 


(c)                                  The
Administrative Agent and each Lender and Issuing Bank that determines to seek
compensation or additional interest under this Section 8.3 or Section 2.15
shall give written notice to the Borrower and, in the case of a Lender or
Issuing Bank other than the Administrative Agent, the Administrative Agent of
the circumstances that entitle the Administrative Agent or such Lender or
Issuing Bank to such compensation no later than ninety (90) days after the
Administrative Agent or such Lender or Issuing Bank receives actual notice or
obtains actual knowledge of the law, rule, order or interpretation or
occurrence of another event giving rise to a claim hereunder. In any event the
Borrower shall not have any obligation to pay any amount with respect to claims
accruing prior to the ninetieth day preceding such written demand, except if
the law, rule, order or interpretation giving rise to such request for
compensation has retroactive effect, such ninety (90) day period shall be
extended to include such retroactive period. The Administrative Agent and each
Lender and Issuing Bank shall use reasonable efforts to avoid the need for, or
reduce the amount of, such compensation, additional interest, and any payment
under Section 3.3, including, without limitation, the designation of a
different Lending Office, if such action or designation will not, in the sole
judgment of the Administrative Agent or such Lender or Issuing Bank made in
good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the
rights of any Lender or Issuing Bank or the obligations of the Borrower under
this Section 8.3 or Section 2.15, and provided further that no Lender or Issuing Bank shall be
obligated to make its Eurocurrency Loans hereunder or fund any amount due in
respect of a Letter of Credit at any office located in the United States of
America. A certificate of the Administrative Agent or any Lender or Issuing
Bank, as applicable, claiming compensation or additional interest under this Section 8.3
or Section 2.15, and setting forth the additional amount or amounts to be
paid to it hereunder and accompanied by a statement prepared by the
Administrative Agent or such Lender or Issuing Bank, as applicable, describing
in reasonable detail the calculations thereof shall be prima facie evidence of the correctness
thereof. In determining such amount, such Lender or Issuing Bank may use
any reasonable averaging and attribution methods.


 


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


 


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


 


Section 8.6.                                   Substitution
of Lender or Issuing Bank. If (a) any Lender or Issuing Bank has
demanded compensation or additional interest or given notice of its intention
to demand compensation or additional interest under Section 8.3 or Section 2.15,
(b) the Borrower is required to pay any additional amount to any Lender or
Issuing Bank under Section 2.11, (c) any 


 


69

















 


Lender or Issuing Bank is
unable to submit any form or certificate required under Section 3.3(b) or
withdraws or cancels any previously submitted form with no substitution
therefor, (d) any Lender or Issuing Bank gives notice of any change in law
or regulations, or in the interpretation thereof, pursuant to Section 8.1,
(e) any Lender or Issuing Bank has been declared insolvent or a receiver
or conservator has been appointed for a material portion of its assets,
business or properties, (f) any Lender or Issuing Bank shall seek to avoid
its obligation to make or maintain Loans or issue Letters of Credit hereunder
for any reason, including, without limitation, reliance upon 12 U.S.C. § 1821(e) or
(n) (1) (B), (g) any taxes referred to in Section 3.3 have been
levied or imposed (or the Borrower determines in good faith that there is a
substantial likelihood that such taxes will be levied or imposed) so as to
require withholding or deductions by the Borrower or payment by the Borrower of
additional amounts to any Lender or Issuing Bank, or other reimbursement or
indemnification of any Lender or Issuing Bank, as a result thereof, (h) any
Lender shall decline to consent to a modification or waiver of the terms of
this Agreement or any other Credit Documents requested by the Borrower, or (i) any
Issuing Bank gives notice pursuant to Section 2.12(a)(ii) that the
issuance of the Letter of Credit would violate any legal or regulatory
restriction then applicable to such Issuing Bank, then and in such event, upon
request from the Borrower delivered to such Lender or Issuing Bank, and the
Administrative Agent, such Lender shall assign, in accordance with the
provisions of Section 10.10 and an appropriately completed Assignment
Agreement, all of its rights and obligations under the Credit Documents to
another Lender or a commercial banking institution selected by the Borrower and
(in the case of a commercial banking institution other than a Lender)
reasonably satisfactory to the Administrative Agent, in consideration for the
payments set forth in such Assignment Agreement and payment by the Borrower to
such Lender of all other amounts which such Lender may be owed pursuant to
this Agreement, including, without limitation, Sections 2.11, 2.15, 3.3, 8.3
and 10.13.


 


ARTICLE 9.                             THE
AGENTS AND ISSUING BANKS.


 


Section 9.1.                                   Appointment
and Authorization of Administrative Agent and Other Agents. Each Lender
hereby appoints JPMorgan Chase Bank, N.A. as the Administrative Agent and the
Collateral Agent under the Credit Documents and hereby authorizes the
Administrative Agent and the Collateral Agent to take such action as the
Administrative Agent and the Collateral Agent on each of its behalf and to
exercise such powers under the Credit Documents as are delegated to the
Administrative Agent and the Collateral Agent by the terms thereof, together
with such powers as are reasonably incidental thereto. None of the other
Lenders appointed as one of the Other Agents shall have any duties,
responsibilities, or obligations hereunder in such capacity.


 


Section 9.2.                                   Rights
and Powers. The Administrative Agent, the Collateral Agent, and the Other
Agents shall have the same rights and powers under the Credit Documents as any
other Lender and may exercise or refrain from exercising such rights and
power as though it were not the Administrative Agent, the Collateral Agent, or
an Other Agent, and the Administrative Agent, the Collateral Agent, and the
Other Agents and their respective affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower
or any of its Subsidiaries or affiliates as if it were not an Administrative
Agent, Collateral Agent, or an Other Agent under the Credit Documents. The term
Lender as used in all Credit Documents, 


 


70

















 


unless the context
otherwise clearly requires, includes the Administrative Agent, the Collateral
Agent, and the Other Agents in their respective individual capacities as a
Lender.


 


Section 9.3.                                   Action
by Administrative Agent and the Other Agents. The obligations of the
Administrative Agent and the Collateral Agent under the Credit Documents are
only those expressly set forth therein. Without limiting the generality of the
foregoing, the Administrative Agent shall not be required to take any action
concerning any Default or Event of Default, except as expressly provided in
Sections 7.2 and 7.4. Unless and until the Required Lenders (or, if required by
Section 10.11, all of the Lenders) give such direction (including, without
limitation, the giving of a notice of default as described in Section 7.1(c)),
the Administrative Agent may, except as otherwise expressly provided herein or
therein, take or refrain from taking such actions as it deems appropriate and
in the best interest of all the Lenders. In no event, however, shall the
Administrative Agent or the Collateral Agent be required to take any action in
violation of applicable law or of any provision of any Credit Document, and
each of the Administrative Agent and the Collateral Agent shall in all cases be
fully justified in failing or refusing to act hereunder or under any other
Credit Document unless it first receives any further assurances of its
indemnification from the Lenders that it may require, including prepayment
of any related expenses and any other protection it requires against any and
all costs, expenses, and liabilities it may incur in taking or continuing
to take any such action. The Administrative Agent shall be entitled to assume
that no Default or Event of Default, other than non-payment of any scheduled
principal or interest payment due hereunder, exists unless notified in writing
to the contrary by a Lender or the Borrower. In all cases in which the Credit
Documents do not require the Administrative Agent or the Collateral Agent to
take specific action, the Administrative Agent and the Collateral Agent shall
be fully justified in using its discretion in failing to take or in taking any
action thereunder. Any instructions of the Required Lenders, or of any other
group of Lenders called for under specific provisions of the Credit Documents,
shall be binding on all the Lenders and holders of Notes.


 


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


 


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


 


71

















 


Document or of any other
documents or writings furnished in connection with any Credit Document; and the
Administrative Agent and the Collateral Agent make no representation of any
kind or character with respect to any such matters mentioned in this sentence. The
Administrative Agent and the Collateral Agent may execute any of their
duties under any of the Credit Documents by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders or any other
Person for the default or misconduct of any such agents or attorneys-in-fact
selected with reasonable care. The Administrative Agent and the Collateral
Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, other document or statement (whether written or oral)
believed by it to be genuine or to be sent by the proper party or parties. In
particular and without limiting any of the foregoing, the Administrative Agent
and the Collateral Agent shall have no responsibility for confirming the
accuracy of any Compliance Certificate or other document or instrument received
by any of them under the Credit Documents. The Administrative Agent and the
Collateral Agent may treat the payee of any Note as the holder thereof
until written notice of transfer shall have been filed with such Administrative
Agent signed by such owner in form satisfactory to such Administrative
Agent. Each Lender acknowledges that it has independently, and without reliance
on the Administrative Agent, the Collateral Agent or any other Lender, obtained
such information and made such investigations and inquiries regarding the
Borrower and its Subsidiaries as it deems appropriate, and based upon such
information, investigations and inquiries, made its own credit analysis and
decision to extend credit to the Borrower in the manner set forth in the Credit
Documents. It shall be the responsibility of each Lender to keep itself
informed about the creditworthiness and business, properties, assets,
liabilities, condition (financial or otherwise) and prospects of the Borrower
and its Subsidiaries, and the Administrative Agent and the Collateral Agent
shall have no liability whatsoever to any Lender for such matters. The
Administrative Agent and the Collateral Agent shall have no duty to disclose to
the Lenders information that is not required by any Credit Document to be
furnished by the Borrower or any Subsidiaries to such Agent at such time, but
is voluntarily furnished to such Agent (either in their respective capacity as
Administrative Agent or the Collateral Agent or in their individual capacity).


 


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


 


Section 9.7.                                   Resignation.


 


(a)                                  Resignation
of Agents. The Administrative Agent and the Collateral Agent may resign
at any time and shall resign upon any removal thereof as a Lender pursuant to
the terms of this Agreement upon at least thirty (30) days’ prior written
notice to the Lenders and the Borrower. Any resignation of the Administrative
Agent or the Collateral Agent shall not be 


 


72

















 


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


 


(b)                                 Resignation
of Issuing Banks. If at any time any Issuing Bank assigns all of its
Commitment and Loans pursuant to Section 10.10(b), such Issuing Bank may,
upon 30 days’ prior written notice to the Borrower, the Administrative Agent,
and the Lenders, resign as Issuing Bank. In such event, the Borrower may, with
the approval of the Administrative Agent and the acceptance of the duties of an
Issuing Bank by the Lender so requested, request that another Lender serve as
Issuing Bank under this Agreement; provided,
however, that the absence of any successor Issuing Bank shall not
affect the resignation of the resigning Issuing Bank. Any resigning Issuing
Bank shall retain all the rights, powers, privileges and duties of an Issuing
Bank under this Agreement with respect to all Letters of Credit outstanding as
of the effective date of its resignation and all Reimbursement Obligations with
respect thereto (including the right to require the Lenders to make Loans or
fund risk participations in Reimbursement Obligations pursuant to Section 2.12).
Upon the appointment of any successor Issuing Bank (i) such successor
Issuing Bank shall succeed to and become vested with all of the rights, powers,
privileges and duties of an Issuing Bank under this Agreement, and (ii) such
successor Issuing Bank shall issue Letters of Credit in substitution for the
Letters of Credit, if any, previously issued by the resigning Issuing Bank that
are outstanding at the time of such succession or make other arrangements
satisfactory to the resigning Issuing Bank to effectively assume the
obligations of the resigning Issuing Bank with respect to such Letters of
Credit.


 


Section 9.8.                                   Sub-Agents.
The Administrative Agent may designate one or more Sub-Agents under this
Agreement to carry out certain duties of the Administrative Agent as described 


 


73

















 


herein. Each Sub-Agent
shall be subject to each of the obligations in this Agreement to be performed
by such Sub-Agent, and each of the Borrower and the Lenders agrees that each
Sub-Agent shall be entitled to exercise each of the rights and shall be entitled
to each of the benefits of the Administrative Agent under this Agreement as
relate to the performance of its obligations hereunder.


 


ARTICLE 10.                      MISCELLANEOUS.


 


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


 


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


 


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


 


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


 


74

















 


Section 10.5.                             Survival
of Indemnities. All indemnities and all provisions relative to
reimbursement to the Lenders and Issuing Bank of amounts sufficient to protect
the yield of the Lenders and Issuing Bank with respect to the Loans and the L/C
Obligations, including, but not limited to, Section 2.11, Section 2.15,
Section 3.3, Section 7.6, Section 8.3, Section 10.3, and Section 10.13
hereof, shall, subject to Section 8.3(c), survive the termination of this
Agreement and the other Credit Documents and the payment of the Loans and all
other Obligations and, with respect to any Lender or Issuing Bank, any
replacement by the Borrower of such Lender or Issuing Bank pursuant to the
terms hereof, in each case for a period of one (1) year.


 


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


 


Section 10.7.                             Notices.
Except as otherwise specified herein, all notices under the Credit Documents
shall be in writing (including facsimile or other electronic means) and shall
be given to a party hereunder at its address or facsimile number set forth below
or such other address or facsimile number as such party may hereafter
specify by notice to the Administrative Agent and the Borrower, given by
courier, by United States certified or registered mail, by telegram or by other
telecommunication device capable of creating a written record of such notice
and its receipt. Notices under the Credit Documents to the Lenders shall be
addressed to their respective domestic Lending Offices in the United States at
the respective addresses, facsimile numbers, or 


 


75

















 


telephone numbers set
forth on their applicable Administrative Questionnaire or, in the case of
Persons becoming Lenders pursuant to Assignment Agreements, on their applicable
Assignment Agreements, and to the Borrower, the Administrative Agent, and the
Issuing Banks:


 


	
  To the Borrower:

  	
   

  	
  Transocean Inc.

  
	
   

  	
   

  	
  P. O. Box 10342

  
	
   

  	
   

  	
  West Wind

  
	
   

  	
   

  	
  70 Harbour Drive, 4th
  Floor

  
	
   

  	
   

  	
  Block B

  
	
   

  	
   

  	
  George Town, Grand
  Cayman KYI-1003

  
	
   

  	
   

  	
  Cayman Islands, B.W.I.

  
	
   

  	
   

  	
  Attention: Steve
  McFadin

  
	
   

  	
   

  	
  Telephone No.: (345)
  745-4500

  
	
   

  	
   

  	
  Fax No.: (345) 745-4504

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Transocean Inc.

  
	
   

  	
   

  	
  4 Greenway Plaza

  
	
   

  	
   

  	
  Houston, Texas 77046

  
	
   

  	
   

  	
  Attention: Anil Shah

  
	
   

  	
   

  	
  Telephone No.: (281)
  216-1521

  
	
   

  	
   

  	
  Fax No.: (713) 626-9556

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Baker Botts LLP

  
	
   

  	
   

  	
  One Shell Plaza

  
	
   

  	
   

  	
  Houston, Texas
  77002-4995

  
	
   

  	
   

  	
  Attention: Stephen
  Krebs

  
	
   

  	
   

  	
  Telephone No. (713)
  229-1467

  
	
   

  	
   

  	
  Fax No.: (713) 229-1522

  
	
   

  	
   

  	
   

  
	
  To the Administrative
  Agent:

  	
   

  	
  JPMorgan Chase Bank,
  N.A.

  
	
   

  	
   

  	
  10 South Dearborn, 7th
  Floor

  
	
   

  	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
   

  	
  Attention: Saul
  Gierstikas

  
	
   

  	
   

  	
  Fax No.: (312) 385-7096

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  King &
  Spalding LLP

  
	
   

  	
   

  	
  1180 Peachtree Street,
  N.E.

  
	
   

  	
   

  	
  Atlanta, Georgia 30309

  
	
   

  	
   

  	
  Attention: A.H. Conrad, Jr.

  
	
   

  	
   

  	
  Fax No.: (404) 572-5128

  



 


76

















 


	
  To the Sub-Agent:

  	
   

  	
  J.P. Morgan Europe
  Limited

  
	
   

  	
   

  	
  125 London Wall

  
	
   

  	
   

  	
  London

  
	
   

  	
   

  	
  EC2Y 5AJ

  
	
   

  	
   

  	
  England

  
	
   

  	
   

  	
  Fax : 44 207 777 2360

  
	
   

  	
   

  	
  Tel  : 44 207 777
  2352 / 2355

  
	
   

  	
   

  	
  Attn:  Agency
  Department

  
	
   

  	
   

  	
   

  
	
  To the Issuing Banks:

  	
   

  	
  JPMorgan Chase Bank, NA

  
	
   

  	
   

  	
  10420 Highland Manor
  Drive, Floor 04

  
	
   

  	
   

  	
  Tampa, FL 33610-9128

  
	
   

  	
   

  	
  Fax : 813-432-5161

  
	
   

  	
   

  	
  Attn. Henry Avelino,
  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Citicorp North America
  Inc.

  
	
   

  	
   

  	
  3800 Citibank Center,
  Building B, 3rd Floor,

  
	
   

  	
   

  	
  Tampa, Fl 33610

  
	
   

  	
   

  	
  Attn. Standby Customer Service

  



 


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


 


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


 


Section 10.9.                             Successors
and Assigns. This Agreement shall be binding upon the Borrower, each of the
Lenders, the Issuing Banks, the Administrative Agent, the Collateral Agent, and
their respective successors and assigns, and shall inure to the benefit of the
Borrower, each of the Lenders, the Issuing Banks, the Administrative Agent, the
Collateral Agent, and their respective successors and assigns, including any
subsequent holder of any Note; provided,
however, the Borrower may not assign any of its rights or
obligations under this Agreement or any other Credit Document without the
written consent of all Lenders, the Issuing Banks, the Administrative Agent and
the Collateral Agent, and the Administrative Agent and the Collateral Agent may not
assign any of their respective rights or obligations under this Agreement or
any 


 


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Credit Document except in
accordance with Article 9 and no Lender or Issuing Bank may assign
any of its rights or obligations under this Agreement or any other Credit
Document except in accordance with Section 10.10. Nothing in this
Agreement, express or implied, shall be construed to confer on any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, and to the extent expressly contemplated hereby, Controlling
Affiliates of the Lenders, the Issuing Banks, the Administrative Agent, the
Collateral Agent, the Other Agents, and the Indemnified Parties as defined in Section 10.13)
any legal or equitable right, remedy or claim under or by reason of this
Agreement. Any Lender or Issuing Bank may at any time pledge or assign all
or any portion of its rights under this Agreement and the Notes issued to it (i) to
a Federal Reserve Bank to secure extensions of credit by such Federal Reserve
Bank to such Lender, or (ii) in the case of any Lender that is a fund
comprised in whole or in part of commercial loans, to a trustee for such
fund in support of such Lender’s obligations to such trustee; provided that no such pledge or assignment
shall release any Lender or Issuing Bank from any of its obligations hereunder
or substitute any such Federal Reserve Bank or such trustee for such Lender as
a party hereto and the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely with such Lender or Issuing Bank in connection
with the rights and obligations of such Lender and Issuing Bank under this
Agreement.


 


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


 


(a)                                  Any
Lender may, upon written notice to the Borrower and the Administrative Agent,
at any time sell to one or more commercial banking or other financial or
lending institutions (“Participants”)
participating interests in any Commitment of such Lender hereunder, provided that no Lender may sell any
participating interests (other than in the case of affiliates of such Lender)
in any such Commitment hereunder without also selling to such Participant the
appropriate pro rata share of all such Lender’s Commitment, and provided further that no Lender shall
transfer, grant or assign any participation under which the Participant shall
have rights to vote upon or to consent to any matter to be decided by the
Lenders or the Required Lenders hereunder or under any other Credit Document or
to approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) increase
the amount of such Lender’s Commitment and such increase would affect such
Participant, (ii) reduce the principal of, or interest on, any of such
Lender’s Borrowings, or any fees or other amounts payable to such Lender
hereunder and such reduction would affect such Participant, (iii) postpone
any date fixed for any scheduled payment of principal of, or interest on, any
of such Lender’s Borrowings, or any fees or other amounts payable to such
Lender hereunder and such postponement would affect such Participant, or (iv) release
any collateral security for any Obligation, except as otherwise specifically
provided in any Credit Document. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender’s obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Note for all purposes under this Agreement,
the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement and such Lender shall retain the sole right to
enforce the obligations of the Borrower under any Credit Document. The Borrower
agrees that if amounts outstanding under this 


 


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Agreement and the
Notes shall have been declared or shall have become due and payable in
accordance with Section 7.2 or 7.3 upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement and
any Note to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement or any Note, provided that such right of setoff shall
be subject to the obligation of such Participant to share with the Lenders, and
the Lenders agree to share with such Participant, as provided in Section 10.6.
The Borrower also agrees that each Participant shall be entitled to the
benefits of and have the obligations under Sections 2.11, 2.15, 3.3 and 8.3
with respect to its participation in the Commitments and the Borrowings
outstanding from time to time, provided that
no Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred if no participation had
been transferred and provided, further,
that Sections 8.3(c) and 8.6 shall apply to the transferor Lender with
respect to any claim by any Participant pursuant to Section 2.11, 2.15,
3.3 or 8.3 as fully as if such claim was made by such Lender. Anything herein
to the contrary notwithstanding, the Borrower shall not, at any time, be obligated
to pay to any Lender any sum in excess of the sum the Borrower would have been
obligated to pay to such Lender hereunder if such Lender had not sold any
participation in its rights and obligations under this Agreement or any other
Credit Document.


 


(b)                                 Any
Lender may at any time sell to (i) any of such Lender’s affiliates or
to any other Lender or any affiliate thereof that, in each case, is a
commercial banking or other financial or lending institution not subject to
Regulation T of the Board of Governors of the Federal Reserve System and, (ii) with
the prior written consent (which shall not be unreasonably withheld or delayed)
of the Administrative Agent, the Issuing Banks and the Borrower, to one or more
commercial banking or other financial or lending institutions not subject to
Regulation T of the Board of Governors of the Federal Reserve System (any of (i) or
(ii), a “Purchasing Lender”), all
or any part of its rights and obligations under this Agreement and the
other Credit Documents, pursuant to an Assignment Agreement in the form attached
as Exhibit 10.10, executed by such Purchasing Lender and such
transferor Lender (and, in the case of a Purchasing Lender which is not then a
Lender or an affiliate thereof, by the Borrower and the Administrative Agent)
and delivered to the Administrative Agent; provided
that each such sale to a Purchasing Lender (other than an existing
Lender) shall be in the Dollar Equivalent amount of $5,000,000 or more, or if
in a lesser amount or if as a result of such sale the sum of the unfunded
Commitment of such Lender plus
the aggregate principal amount of such Lender’s Loans and participations in
Letters of Credits would be less than the Dollar Equivalent amount of
$5,000,000 (calculated as hereinafter set forth), such sale shall be of all of
such Lender’s rights and obligations under this Agreement and all of the other
Credit Documents payable to it to one Purchasing Lender. Notwithstanding the
requirement of the Borrower’s consent set forth above, but subject to all of
the other terms and conditions of this Section 10.10(b), any Lender may sell
to one or more commercial banking or other financial or lending institutions
not subject to Regulation T of the Board of Governors of the Federal Reserve
System, all or any part of their rights and obligations under this
Agreement and the other Credit Documents with only the consent of the
Administrative Agent (which shall not be unreasonably withheld or delayed) if
an Event of Default shall have occurred and be continuing. Upon such execution,
delivery and acceptance, from and after the effective date of the transfer
determined pursuant to such Assignment 


 


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Agreement, (x) the
Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Assignment Agreement, have the rights and obligations of a
Lender hereunder with a Commitment as set forth herein and (y) the transferor
Lender thereunder shall, to the extent provided in such Assignment Agreement, be
released from its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of a transferor
Lender’s rights and obligations under this Agreement, such transferor Lender
shall cease to be a party hereto). Such Assignment Agreement shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender and the resulting adjustment of
Commitments and Percentages arising from the purchase by such Purchasing Lender
of all or a portion of the rights and obligations of such transferor Lender
under this Agreement, the Notes and the other Credit Documents. On or prior to
the effective date of the transfer determined pursuant to such Assignment Agreement,
the Borrower, at its own expense, shall upon reasonable notice from the
Administrative Agent execute and deliver to the Administrative Agent in
exchange for any surrendered Note, a new Note as appropriate to the order of
such Purchasing Lender in an amount equal to the Commitments assumed by it
pursuant to such Assignment Agreement, and, if the transferor Lender has
retained a Commitment or Borrowing hereunder, a new Note to the order of the
transferor Lender in an amount equal to the Commitments or Borrowings retained
by it hereunder. Such new Notes shall be dated the Effective Date and shall
otherwise be in the form of the Notes replaced thereby. The Notes
surrendered by the transferor Lender shall be returned by the Administrative
Agent to the Borrower marked “cancelled.”


 


(c)                                  Upon
its receipt of an Assignment Agreement executed by a transferor Lender and a
Purchasing Lender (and, in the case of a Purchasing Lender that is not then a
Lender or an affiliate thereof, by the Administrative Agent and, to the extent
required by Section 10.10(b), by the Borrower), together with payment by
the transferor Lender to the Administrative Agent hereunder of a registration
and processing fee of $1,000 (unless the Borrower is replacing such Lender
pursuant to the terms hereof, in which event such fee shall be paid by the
Borrower), the Administrative Agent shall (i) promptly accept such
Assignment Agreement, and (ii) on the effective date of the transfer
determined pursuant thereto give notice of such acceptance and recordation to
the Lenders and the Borrower. The Borrower shall not be responsible for such
registration and processing fee or any costs or expenses incurred by any
Lender, any Purchasing Lender or the Administrative Agent in connection with
such assignment except as provided above.


 


(d)                                 If,
pursuant to this Section 10.10 any interest in this Agreement or any Loan
or Note is transferred to any transferee which is organized under the laws of
any jurisdiction other than the United States of America or any State thereof,
the transferor Lender shall cause such transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Lender
(for the benefit of the transferor Lender, the Administrative Agent and the
Borrower) that under applicable law and treaties no taxes will be required to
be withheld by the Administrative Agent, the Borrower or the transferor Lender
with respect to any payments to be made to such transferee in respect of the
Loans or the L/C Obligations, (ii) to furnish to the transferor Lender
(and, in the case of any Purchasing Lender, the Administrative Agent and the
Borrower) two duly completed and signed copies of either U.S. Internal Revenue
Service Form W-8BEN or U.S. Internal Revenue Service Form W-8ECI or
such successor forms as shall be adopted from 


 


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time to time by
the relevant United States taxing authorities (wherein such transferee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder), and (iii) to agree (for the benefit of the
transferor Lender, the Administrative Agent and the Borrower) to provide the
transferor Lender (and, in the case of any Purchasing Lender, the
Administrative Agent and the Borrower) new forms as contemplated by Section 3.3(b) upon
the expiration or obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such transferee, and to comply
from time to time with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.


 


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


 


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


 


(i)                                     no
amendment or waiver shall (A) increase the Revolving Credit Commitment
Amount without the consent of all Lenders or increase any Commitment of any
Lender without the consent of such Lender, or (B) (other than in
accordance with Section 2.16) postpone or extend the Commitment
Termination Date or Maturity Date without the consent of all Lenders, or reduce
the amount of or postpone the date for any scheduled payment of any principal
of or interest (including, without limitation, any reduction in the rate of
interest unless such reduction is otherwise provided herein) on any Loan or
Reimbursement Obligation or of any fee payable hereunder, without the consent
of each Lender owed any such Obligation, or (C) release any Collateral for
any Collateralized Obligations (other than as provided in accordance with Section 7.4)
without the consent of all Lenders; and


 


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


 


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


 


Section 10.13.                       Legal
Fees, Other Costs and Indemnification. The Borrower, upon demand by the
Administrative Agent, agrees to pay the reasonable fees and disbursements of
legal counsel to the Administrative Agent in connection with the preparation
and execution of the Credit Documents (which shall be in an amount agreed in
writing by the Borrower), and any 


 


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amendment, waiver or
consent related thereto, whether or not the transactions contemplated therein
are consummated. The Borrower further agrees to indemnify each Lender, Issuing
Bank, the Administrative Agent, the Collateral Agent, the Other Agents, and
their respective directors, officers, employees and attorneys (collectively,
the “Indemnified Parties”), against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all
reasonable attorneys’ fees and other reasonable out-of-pocket expenses of
litigation or preparation therefor, 
whether or not such Indemnified Party is a party thereto) which any of
them may pay or incur as a result of (a) any action, suit or
proceeding by any third party or Governmental Authority against such
Indemnified Party and relating to any Credit Document, the Loans, any Letter of
Credit, or the application or proposed application by any of the Borrower of
the proceeds of any Loan or use of any Letter of Credit, REGARDLESS OF WHETHER SUCH CLAIMS OR ACTIONS ARE
FOUNDED IN WHOLE OR IN PART UPON THE ALLEGED SIMPLE OR CONTRIBUTORY
NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES AND/OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES OR ATTORNEYS, (b) any
investigation of any third party or any Governmental Authority involving any
Lender (as a lender hereunder), Issuing Bank, or the Administrative Agent or
the Other Agents (in such capacity hereunder) and related to any use made or
proposed to be made by the Borrower of the proceeds of any Loan, or use of any
Letter of Credit or any transaction financed or to be financed in whole or in
part, directly or indirectly with the proceeds of any Loan or Letter of Credit,
and (c) any investigation of any third party or any Governmental
Authority, litigation or proceeding involving any Lender (as a lender
hereunder) or the Administrative Agent or the Other Agents (in such capacity
hereunder) and related to any environmental cleanup, audit, compliance or other
matter relating to any Environmental Law or the presence of any Hazardous
Material (including, without limitation, any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any Environmental
Law) with respect to the Borrower, regardless of whether caused by, or within
the control of, the Borrower; provided,
however, that the Borrower shall not be obligated to indemnify any
Indemnified Party for any of the foregoing arising out of such Indemnified
Party’s gross negligence, bad faith, or willful misconduct, as determined
pursuant to a judgment of a court of competent jurisdiction or as expressly
agreed in writing by such Indemnified Party. The Borrower, upon demand by the
Administrative Agent, the Collateral Agent, the Other Agents or any Lender or
Issuing Bank at any time, shall reimburse such Agent or such Lender or Issuing
Bank for any reasonable legal or other expenses incurred in connection with
investigating or defending against any of the foregoing, except if the same is
excluded from indemnification pursuant to the provisions of the preceding
sentence. Each Indemnified Party agrees to contest any indemnified claim if
requested by the Borrower, in a manner reasonably directed by the Borrower,
with counsel selected by the Indemnified Party and approved by the Borrower,
which approval shall not be unreasonably withheld or delayed. Any Indemnified
Party that proposes or intends to settle or compromise any such indemnified
claim shall give the Borrower written notice of the terms of such settlement or
compromise reasonably in advance of settling or compromising such claim or
proceeding and shall obtain the Borrower’s prior written consent thereto, which
consent shall not be unreasonably withheld or delayed; provided that the Indemnified Party shall
not be restricted from settling or compromising any such claim if the
Indemnified Party waives its right to indemnity from the Borrower in respect of
such claim and such settlement or compromise does not materially increase the
Borrower’s liability pursuant to this Section 10.13 to any related party
of such Indemnified Party.


 


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


 


(A)                               THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS, AND THE RIGHTS AND DUTIES OF THE
PARTIES THERETO, SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES THEREOF.


 


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


 


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OBLIGATIONS
UNDER THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS.


 


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


 


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


 


Section 10.15.                       Confidentiality.
Each of the Administrative Agent, the Other Agents, the Issuing Banks and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to their
respective affiliates and to prospective Purchasing Lenders and Participants
and potential counterparties to hedge agreements and their respective
directors, officers, employees and agents, including accountants, legal counsel
and other advisors who have reason to use such Information in connection with
the evaluation of the transactions contemplated by this Agreement (subject to
similar confidentiality provisions as provided herein) solely for purposes of
evaluating such Information, (ii) to the extent requested by any
regulatory authority, (iii) to the extent required by applicable law or
regulation or by any subpoena or similar legal process, (iv) in connection
with the exercise of any remedies hereunder or any proceedings relating to this
Agreement or the other Credit Documents, (v) with the consent of the
Borrower, (vi) to any rating agency when required by it, provided that, prior to any disclosure,
such rating agency shall undertake in writing to preserve the confidentiality
of any confidential information relating to the Borrower received by it from
any Lender, Issuing Bank, the Administrative Agent or any Other Agents, or (vii) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section 10.15, or (y) becomes available on a
non-confidential basis from a source other than the Borrower or its affiliates,
or the Lenders or their respective affiliates, excluding any Information from
such source which, to the actual knowledge of the Administrative Agent, the
Other Agent, the Issuing Bank or the Lender receiving such Information, has
been disclosed by such source in violation of a duty of confidentiality to the
Borrower. For purposes hereof, “Information”
means all information received by the Lenders from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Lenders on a non-confidential basis prior to disclosure by the Borrower,
excluding any Information from a source which, to the actual knowledge of the
Administrative Agent, the Other Agent, the Issuing Bank or the Lender receiving
such Information, has been disclosed by such source in violation of a duty of
confidentiality to the Borrower. The Lenders shall be considered to have
complied with their 


 


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respective obligations if
they have exercised the same degree of care to maintain the confidentiality of
such Information as they would accord their own confidential information.
Notwithstanding anything herein to the contrary, any party to this Agreement
(and any employee, representative, or other agent of any party to this
Agreement) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the transactions contemplated by
this Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure. However, any such
information relating to the tax treatment or tax structure is required to be
kept confidential to the extent necessary to comply with any applicable federal
or state securities laws.


 


Section 10.16.                       [Intentionally Omitted]


 


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


 


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


 


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rate described herein on
the date of payment, is the amount then due in the currency required hereunder,
and (iii) any amount due from the Borrower under this Section 10.18
shall be due as a separate debt and shall not be affected by judgment or award
being obtained for any other sum due. For the avoidance of doubt, the parties
affirm and agree that neither the fixing of the conversion rate of Pounds or
Kroners against the Euro as a single currency, in accordance with the
applicable treaties establishing the European Economic Community and the
European Union, as the case may be, in each case, as amended from time to
time, nor the conversion of the Obligations under this Agreement from Pounds or
Kroners into Euros will be a reason for early termination or revision of this
Agreement or prepayment of any amount due under this Agreement or create any
liability of any party towards any other party for any direct or consequential
loss arising from any of these events. As of the date that Pounds or Kroners
are no longer the lawful currency of the United Kingdom or Norway, as the case may be,
all funding and payment Obligations to be made in such affected currency under
this Agreement shall be satisfied in Euros. If, in relation to the currency of
any member state of the European Union that adopts the Euro as its lawful
currency, the basis of accrual of interest expressed in this Agreement in
respect of that currency shall be inconsistent with any convention or practice
in the London interbank market for the basis of accrual of interest in respect
of the Euro, such expressed basis shall be replaced by such convention or
practice with effect from the date on which such member state adopts the Euro
as its lawful currency; provided
that if any Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with
respect to such Borrowing, at the end of the then current Interest Period.


 


Section 10.19.                       Exchange
Rates.


 


(a)                                  Determination
of Exchange Rates. Not later than 2:00 P.M. (London time) on each
Calculation Date, if any LC Obligations are outstanding on such date in a
currency other than U.S. Dollars, the applicable Issuing Bank shall determine
the Exchange Rate as of such Calculation Date for all such LC Obligations
outstanding as of such date with respect to all Letters of Credit issued by
such Issuing Bank or its affiliates (the “Issuing
Bank Exchange Rate”) and give prompt notice thereof to the
Administrative Agent. No later than 4:00 P.M. (London time) on each such
Calculation Date, (i) the Administrative Agent shall (i) determine
the Exchange Rate (other than the Issuing Bank Exchange Rate, if applicable) as
of such Calculation Date with respect to Euros, Pounds, Australian Dollars,
Canadian Dollars, Singapore Dollars and Kroner, and (ii) give notice
thereof, together with notice of the applicable Issuing Bank Exchange Rate, if
applicable, to the Lenders and the Borrower. The Exchange Rates so determined
shall become effective on the first Business Day immediately following the
relevant Calculation Date (a “Reset Date”),
shall remain effective until the next succeeding Reset Date, and shall for all
purposes of this Agreement (other than Section 10.18 or any other
provision expressly requiring the use of a current Exchange Rate) be the
Exchange Rates employed in determining the Dollar Equivalent of any amounts of
Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars or
Kroner. Notwithstanding anything contained herein to the contrary, if any
Issuing Bank fails to timely deliver notice of its Issuing Bank Exchange Rate
to the Administrative Agent pursuant to the provisions of this Section 10.19,
the Administrative Agent may determine such rate in accordance with the
definition of Exchange Rate and shall have no liability to such Issuing Bank
for such determination.


 


86

















 


(b)                                 Notice
of Foreign Currency Loans and Letters of Credit. Not later than 2:00 P.M.
(London time) on each Reset Date and each date on which Loans and/or Letters of
Credit denominated in Euros, Pounds, Australian Dollars, Canadian Dollars,
Singapore Dollars and/or Kroner are made or issued, if any such LC Obligations
are outstanding on such date, the applicable Issuing Bank shall determine its
Issuing Bank Exchange Rate as of such date, if applicable, and give prompt
notice thereof to the Administrative Agent. Not later than 5:00 P.M. (New
York time) on each Reset Date and each date on which Loans and/or Letters of
Credit denominated in Euros, Pounds, Australian Dollars, Canadian Dollars,
Singapore Dollars and/or Kroner are made or issued, the Administrative Agent
shall (i) determine the Dollar Equivalent of the aggregate principal
amounts of the Loans and L/C Obligations denominated in such currencies (after
giving effect to any Loans and/or Letters of Credit denominated in such
currencies being made, issued, repaid, or cancelled or reduced on such date), (ii) notify
the Lenders and the Borrower of the results of such determination and (iii) notify
each Issuing Bank, if applicable, that the conditions to issuance set forth in Section 2.12(a) are
satisfied.


 


Section 10.20.                       Change
in Accounting Principles, Fiscal Year or Tax Laws. If (i) any change
in accounting principles from those used in the preparation of the financial
statements of the Borrower referred to in Section 5.8 is hereafter
occasioned by the promulgation of rules, regulations, pronouncements and
opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accounts (or successors thereto or
agencies with similar functions), and such change materially affects the
calculation of any component of any financial covenant, standard or term found
in this Agreement, or (ii) there is a material change in federal, state or
foreign tax laws which materially affects any of the Borrower and its
Subsidiaries’ ability to comply with the financial covenants, standards or
terms found in this Agreement, the Borrower and the Lenders agree to enter into
negotiations in order to amend such provisions (with the agreement of the
Required Lenders or, if required by Section 10.11, all of the Lenders) so
as to equitably reflect such changes with the desired result that the criteria
for evaluating any of the Borrower’s and its Subsidiaries’ financial condition
shall be the same after such changes as if such changes had not been made. Unless
and until such provisions have been so amended, the provisions of this
Agreement shall govern.


 


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


 


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


 


87

















 


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


 


Section 10.24.                       Patriot
Act Notice. Each Lender and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Patriot Act. The Borrower shall provide, to the extent
commercially reasonable, such information and take such actions as are
reasonably requested by the Administrative Agent or any Lenders in order to
assist the Administrative Agent and the Lenders in maintaining compliance with
the Patriot Act.


 


Section 10.25.                       Termination
of Credit Facilities. Each of the parties to this Agreement that is a party
to the Existing Credit Agreement or the GSF Credit Agreement as of the
Effective Date hereby agrees that, as of the Effective Date, subject to prior
payment in full to the Lenders of all amounts owed to them under such
agreements, (i) each of the Existing Credit Facility and the GSF Credit
Facility and all of the commitments to extend credit under the Existing Credit
Agreement and the GSF Credit Agreement shall be terminated and of no further
force or effect, (ii) any and all requirements for prior written notice of
the termination of such commitments and any other conditions precedent to such
termination are hereby waived by such parties (with such parties constituting
the “Required Lenders” under each of the Existing Credit Agreement and GSF
Credit Agreement), and (iii) the Existing Credit Agreement and the GSF
Credit Agreement shall each be terminated and of no further force or effect,
except as to those provisions of the Existing Credit Agreement and the GSF
Credit Agreement that by their terms survive the termination thereof and
continue in effect.


 


88

















 


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


 


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TRANSOCEAN
  INC.,

  
	
   

  	
  As Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Steve McFadin

  	
   

  
	
   

  	
  Name:

  	
  Steve McFadin

  
	
   

  	
  Title:

  	
  Assistant Treasurer

  



 


 


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  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
  As Administrative
  Agent, an Issuing Bank, and as a

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Helen A. Carr

  	
   

  
	
   

  	
  Name:

  	
  Helen A. Carr

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  



 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  170,000,000.00

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  8.500000

  	
  %

  



 


 


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  CITIBANK,
  N.A.,

  
	
   

  	
  As Syndication Agent,
  an Issuing Bank,

  
	
   

  	
  and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Robert H. Malleck

  	
   

  
	
   

  	
  Name:

  	
  Robert H. Malleck

  
	
   

  	
  Title:

  	
  VP

  



 


 


	
  PERCENTAGE:

  	
  $

  	
  170,000,000.00

  	
   

  
	
   

  	
   

  	
   

  
	
  COMMITMENT AMOUNT:

  	
  8.500000

  	
  %

  



 


 


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  CALYON
  NEW YORK BRANCH ,

  
	
   

  	
  As Co-Syndication Agent
  and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Page Dillehunt

  	
   

  
	
   

  	
  Name:

  	
  Page Dillehunt

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Michael D. Willis

  	
   

  
	
   

  	
  Name:

  	
  Michael D. Willis

  
	
   

  	
  Title:

  	
  Director

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  158,571,428.57

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  7.928571

  	
  %

  



 


 


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  THE
  BANK OF TOKYO-MITSUBISHI,

  
	
   

  	
  UFJ,
  LTD.,

  
	
   

  	
  As Co-Documentation
  Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ K. Glasscock

  	
   

  
	
   

  	
  Name:

  	
  K. Glasscock

  
	
   

  	
  Title:

  	
  VP & Manager

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  158,571,428.57

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  7.928571

  	
  %

  



 


 


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  CREDIT
  SUISSE, CAYMAN ISLANDS

  
	
   

  	
  BRANCH,

  
	
   

  	
  As Co-Documentation
  Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Vanessa Gomez

  	
   

  
	
   

  	
  Name:

  	
  Vanessa Gomez

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Morenikeji Ajayi

  	
   

  
	
   

  	
  Name:

  	
  Morenikeji Ajayi

  
	
   

  	
  Title:

  	
  Associate

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  158,571,428.57

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  7.928571

  	
  %

  



 


 


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  WELLS
  FARGO BANK,

  
	
   

  	
  N.A.,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ William S. Rogers

  	
   

  
	
   

  	
  Name:

  	
  William S. Rogers

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  158,571,428.57

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  7.928571

  	
  %

  



 


 


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  THE
  ROYAL BANK OF SCOTLAND PLC,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ David Slye

  	
   

  
	
   

  	
  Name:

  	
  David Slye

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  102,857,142.86

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  5.142857

  	
  %

  



 


 


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  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gabe Gomez

  	
   

  
	
   

  	
  Name:

  	
  Gabe Gomez

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  102,857,142.86

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  5.142857

  	
  %

  



 


 


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  UBS
  LOAN FINANCE LLC,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mary E. Evans

  	
   

  
	
   

  	
  Name:

  	
  Mary E. Evans

  
	
   

  	
  Title:

  	
  Associate Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ David B. Julie

  	
   

  
	
   

  	
  Name:

  	
  David B. Julie

  
	
   

  	
  Title:

  	
  Associate Director

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  102,857,142.86

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  5.142857

  	
  %

  



 


 


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  THE
  BANK OF NEW YORK,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Hussan S. Alsahlani

  	
   

  
	
   

  	
  Name:

  	
  Hussan S. Alsahlani

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  28,571,428.57

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  1.428571

  	
  %

  



 


 


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  DnB
  NOR BANK ASA,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Barbara Gronquist

  	
   

  
	
   

  	
  Name:

  	
  Barbara Gronquist

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Nikolai A. Nachamkin

  	
   

  
	
   

  	
  Name:

  	
  Nikolai A. Nachamkin

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  102,857,142.86

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  5.142857

  	
  %

  



 


 


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  HSBC
  BANK USA, NATIONAL

  
	
   

  	
  ASSOCIATION,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Jennifer Diedzic

  	
   

  
	
   

  	
  Name:

  	
  Jennifer Diedzic

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  102,857,142.86

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  5.142857

  	
  %

  



 


 


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  THE
  BANK OF NOVA SCOTIA,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ A. Ostrow

  	
   

  
	
   

  	
  Name:

  	
  A. Ostrow

  
	
   

  	
  Title:

  	
  Director

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  71,428,571.43

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  3.571429

  	
  %

  



 


 


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  WILLIAM
  STREET CREDIT

  
	
   

  	
  CORPORATION,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mark Walton

  	
   

  
	
   

  	
  Name:

  	
  Mark Walton

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  71,428,571.43

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  3.571429

  	
  %

  



 


 


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  MORGAN
  STANLEY BANK,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Daniel Twenge

  	
   

  
	
   

  	
  Name:

  	
  Daniel Twenge

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  71,428,571.43

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  3.571429

  	
  %

  



 


 


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  LEHMAN
  BROTHERS COMMERCIAL

  
	
   

  	
  BANK,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Adrian DeLagarde

  	
   

  
	
   

  	
  Name:

  	
  Adrian DeLagarde

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  71,428,571.43

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  3.571429

  	
  %

  



 


 


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  FORTIS
  CAPITAL CORP.,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Joseph Maxwell

  	
   

  
	
   

  	
  Name:

  	
  Joseph Maxwell

  
	
   

  	
  Title:

  	
  Director

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  102,857,142.86

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  5.142857

  	
  %

  



 


 


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  STANDARD
  CHARTERED BANK,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Felipe Macia

  	
   

  
	
   

  	
  Name:

  	
  Felipe Macia

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  28,571,428.57

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  1.428571

  	
  %

  



 


 


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  US
  BANK, N.A.,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Kevin S. McFadden

  	
   

  
	
   

  	
  Name:

  	
  Kevin S. McFadden

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  22,857,142.86

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  1.142857

  	
  %

  



 


 


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  FIFTH
  THIRD BANK,

  
	
   

  	
  As a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mike Mendenhall

  	
   

  
	
   

  	
  Name:

  	
  Mike Mendenhall

  
	
   

  	
  Title:

  	
  VP

  



 


 


	
  COMMITMENT AMOUNT:

  	
  $

  	
  42,857,142.86

  	
   

  
	
   

  	
   

  	
   

  
	
  PERCENTAGE:

  	
  2.142857

  	
  %

  



 


 


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