UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): September 25, 2009
NOBLE CORPORATION
(Exact name of registrant as specified in its charter)
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SWITZERLAND
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000-53604
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98-0619597
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(State or Other Jurisdiction of
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(Commission File
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(I.R.S. Employer Identification No.)
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Incorporation or Organization)
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Number)
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Dorfstrasse 19A
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Baar, Switzerland
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6340
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrants
telephone number, including area code:
41 (41) 761 65
55
(Former name or former address, if changed since last report)
NOBLE CORPORATION
(Exact name of registrant as specified in its charter)
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CAYMAN ISLANDS
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001-31306
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98-0366361
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(State or Other Jurisdiction of
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(Commission File
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(I.R.S. Employer Identification No.)
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Incorporation or Organization)
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Number)
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13135 South Dairy Ashford, Suite 800
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Sugar Land, Texas
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77478
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrants telephone number, including area code:
(281) 276-6100
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
The information included under Item 2.03 of this Current Report is incorporated by reference
herein.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
Noble Drilling Corporation 7.50% Senior Notes due 2019
In connection with an internal reorganization (the Reorganization) involving various
subsidiaries of Noble Corporation, a Swiss corporation (Noble Switzerland), and Noble Cayman, a
Cayman Islands company (Noble Cayman, and together with Noble Switzerland, the Registrants), on
September 25, 2009, Noble Drilling Corporation, a Delaware corporation (Noble Drilling), Noble
Drilling Holding LLC, a Delaware limited liability company, Noble Drilling Services 1 LLC (NDS1),
a newly formed Delaware limited liability company and wholly owned, indirect subsidiary of the
Registrants, Noble Holding (U.S.) Corporation, a Delaware corporation (Holding), Noble Cayman,
and The Bank of New York Mellon Trust Company, N.A., successor by merger to JPMorgan Chase Bank,
National Association (formerly Chase Bank of Texas, National Association), as trustee (the
Trustee), entered into a Fourth Supplemental Indenture to the Indenture dated as of May 1, 1999
(as supplemented, the Noble Drilling Indenture). The Noble Drilling Indenture governs Noble
Drillings 7.50% Senior Notes due 2019 (the Noble Drilling Notes), of which approximately $202
million in aggregate principal amount were outstanding as of September 30, 2009. Pursuant to the
Fourth Supplemental Indenture, NDS1, as the transferee of certain assets of Noble Drilling, became
a co-issuer under the Noble Drilling Indenture and assumed Noble Drillings covenants and
obligations under the Noble Drilling Indenture, including the due and punctual payment of the
principal of, premium, if any, interest on and additional amounts due under the Noble Drilling
Notes.
On October 1, 2009, NDS1 merged with and into Noble Drilling Services 6 LLC (NDS6), a newly
formed Delaware limited liability company and wholly owned, indirect subsidiary of the Registrants,
with NDS6 being the surviving entity. In connection with the merger, on October 1, 2009, Noble
Drilling, NDS6, Holding, Noble Cayman and the Trustee entered into a Fifth Supplemental Indenture
to the Noble Drilling Indenture. Pursuant to the Fifth Supplemental Indenture and effective upon
the consummation of the merger, NDS6, as successor by merger to NDS1, became a co-issuer under the
Noble Drilling Indenture and assumed NDS1s covenants and obligations under the Noble Drilling
Indenture, including the due and punctual payment of the principal of, premium, if any, interest on
and additional amounts due under the Noble Drilling Notes. NDS1 was released of all of its
covenants and obligations under the Noble Drilling Indenture and the Noble Drilling Notes.
The foregoing descriptions are qualified in their entirety by reference to the Fourth
Supplemental Indenture and the Fifth Supplemental Indenture, copies of which are filed as
Exhibits 4.1 and 4.2, respectively, to this Current Report and are incorporated by reference
herein.
Noble Cayman 5.875% Senior Notes due 2013
Also in connection with the Reorganization, on October 1, 2009, Noble Cayman, Noble Drilling,
Noble Holding International Limited, a Cayman Islands company (NHIL), and the Trustee, entered
into a Second Supplemental Indenture to the Indenture dated as of May 26, 2006 (as supplemented,
the Noble Cayman Indenture). The Noble Cayman Indenture governs Noble Caymans 5.875% Senior
Notes due 2013 (the Noble Cayman Notes), of which approximately $300 million in aggregate
principal amount were outstanding as of September 30, 2009. Pursuant to the Second Supplemental
Indenture, NHIL agreed to fully and unconditionally guarantee the due and punctual payment of the
principal of, premium, if any, interest on and all other amounts due under the Noble Cayman
Indenture and the Noble Cayman Notes.
The foregoing description is qualified in its entirety by reference to the Second Supplemental
Indenture, a copy of which is filed as Exhibit 4.3 to this Current Report and is incorporated by
reference herein.
Noble Cayman Revolving Credit Agreement
In connection with the Reorganization and NHILs execution of the Second Supplemental
Indenture, on October 1, 2009, NHIL, Noble Cayman and Citibank, N.A., entered into a Subsidiary
Guaranty Agreement pursuant to which NHIL irrevocably and unconditionally guaranteed the payment
obligations of Noble Cayman under the Revolving Credit Agreement, dated as of March 15, 2007, among
Noble Cayman, as borrower, the lenders from time to time parties thereto, Citibank, N.A., as
administrative agent, swingline lender and an issuing bank, SunTrust Bank, as syndication agent,
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Houston Agency, Fortis Capital Corp. and Wells Fargo Bank,
N.A., as co-documentation agents, and Citigroup Global Markets Inc. and SunTrust Robinson Humphrey,
a division of SunTrust Capital Markets, Inc., as co-lead arrangers and co-book-running managers.
As of September 30, 2009, there were no borrowings outstanding under the Revolving Credit
Agreement.
The foregoing description is qualified in its entirety by reference to the Subsidiary Guaranty
Agreement, a copy of which is filed as Exhibit 4.4 to this Current Report and is incorporated by
reference herein.
Item 9.01 Financial Statements and Exhibits.
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EXHIBIT
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NUMBER
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DESCRIPTION
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4.1
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Fourth Supplemental Indenture, dated as of
September 25, 2009, among Noble Drilling Corporation, as Issuer,
Noble Drilling Holding
LLC, as Co-Issuer, Noble Drilling Services 1 LLC,
as Co-Issuer, Noble Holding (U.S.) Corporation, as
Guarantor, Noble Corporation, as Guarantor, and
The Bank of New York Mellon Trust Company, N.A.,
as Trustee (relating to Noble Drilling Corporation
7.50% Senior Notes due 2019).
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4.2
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Fifth Supplemental Indenture, dated as of October
1, 2009, among Noble Drilling Corporation, as
Issuer, Noble Drilling Holding LLC, as Co-Issuer,
Noble Drilling Services 6 LLC, as Co-Issuer, Noble
Holding (U.S.) Corporation, as Guarantor, Noble
Corporation, as Guarantor, and The Bank of New
York Mellon Trust Company, N.A., as Trustee
(relating to Noble Drilling Corporation 7.50%
Senior Notes due 2019).
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4.3
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Second Supplemental Indenture, dated as of October
1, 2009, among Noble Corporation, as Issuer, Noble
Drilling Corporation, as Guarantor, Noble Holding
International Limited, as Guarantor, and The Bank
of New York Mellon Trust Company, N.A., as Trustee
(relating to Noble Corporation (Cayman) 5.875%
Senior Notes due 2013).
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4.4
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Subsidiary Guaranty Agreement, dated as of October
1, 2009, among Noble Holding International
Limited, Noble Corporation and Citibank, N.A., as
Administrative Agent (relating to Noble
Corporation (Cayman) revolving credit agreement).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrants have duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Noble Corporation, a Swiss corporation
Noble Corporation, a Cayman Islands company
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Date: October 1, 2009
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By:
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/s/ Thomas L. Mitchell
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Thomas L. Mitchell
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Senior Vice President, Chief Financial Officer,
Treasurer and Controller
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INDEX TO EXHIBITS
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EXHIBIT
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NUMBER
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DESCRIPTION
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4.1
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Fourth Supplemental Indenture, dated as of
September 25, 2009, among Noble Drilling
Corporation, as Issuer, Noble Drilling Holding
LLC, as Co-Issuer, Noble Drilling Services 1 LLC,
as Co-Issuer, Noble Holding (U.S.) Corporation, as
Guarantor, Noble Corporation, as Guarantor, and
The Bank of New York Mellon Trust Company, N.A.,
as Trustee (relating to Noble Drilling Corporation
7.50% Senior Notes due 2019).
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4.2
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Fifth Supplemental Indenture, dated as of October
1, 2009, among Noble Drilling Corporation, as
Issuer, Noble Drilling Holding LLC, as Co-Issuer,
Noble Drilling Services 6 LLC, as Co-Issuer, Noble
Holding (U.S.) Corporation, as Guarantor, Noble
Corporation, as Guarantor, and The Bank of New
York Mellon Trust Company, N.A., as Trustee
(relating to Noble Drilling Corporation 7.50%
Senior Notes due 2019).
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4.3
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Second Supplemental Indenture, dated as of October
1, 2009, among Noble Corporation, as Issuer, Noble
Drilling Corporation, as Guarantor, Noble Holding
International Limited, as Guarantor, and The Bank
of New York Mellon Trust Company, N.A., as Trustee
(relating to Noble Corporation (Cayman) 5.875%
Senior Notes due 2013).
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4.4
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Subsidiary Guaranty Agreement, dated as of October
1, 2009, among Noble Holding International
Limited, Noble Corporation and Citibank, N.A., as
Administrative Agent (relating to Noble
Corporation (Cayman) revolving credit agreement).
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Exhibit 4.1
NOBLE DRILLING CORPORATION,
as Issuer,
NOBLE DRILLING HOLDING LLC,
as Co-Issuer,
NOBLE DRILLING SERVICES 1 LLC,
as Co-Issuer,
NOBLE HOLDING (U.S.) CORPORATION,
as Guarantor,
and
NOBLE CORPORATION,
as Guarantor,
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of September 25, 2009
to
INDENTURE
Dated as of March 1, 1999, as previously amended and supplemented
7.50% SENIOR NOTES DUE 2019
FOURTH SUPPLEMENTAL INDENTURE dated as of September 25, 2009, among NOBLE DRILLING
CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware
(
Noble Drilling
), NOBLE DRILLING HOLDING LLC, a limited liability company duly organized
and existing under the laws of the State of Delaware (
Drilling Holding
, and collectively
with Noble Drilling, the
Company
or
Companies
), NOBLE DRILLING SERVICES 1 LLC,
a limited liability company duly organized and existing under the laws of the State of Delaware
(
NDS1
), NOBLE HOLDING (U.S.) CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (
Holding
), and NOBLE CORPORATION, a Cayman Islands
exempted company limited by shares (collectively with Holding, the
Guarantors
), and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, successor by merger to
JPMorgan Chase Bank, National Association (formerly Chase Bank of Texas, National Association), as
trustee (the
Trustee
).
R E C I T A L S:
WHEREAS, Noble Drilling has previously executed and delivered to the Trustee an indenture
dated as of March 1, 1999 (as supplemented by the First Supplemental Indenture thereto dated as of
March 16, 1999, the Second Supplemental Indenture thereto dated as of April 30, 2002 and the Third
Supplemental Indenture thereto dated as of December 20, 2005, the
Supplemented Indenture
)
providing for the issuance by Noble Drilling from time to time of its unsecured senior debt
securities (the
Securities
), issuable in one or more series;
WHEREAS, Noble Drilling has issued, and the Trustee has authenticated and delivered, a series
of Securities designated 7.50% Senior Notes due 2019 (the
Notes
);
WHEREAS, the Companies are the obligors with respect to the Notes and the Guarantors have
guaranteed the due and punctual payment of the principal of, premium, if any, interest on, and all
other amounts due under, the Notes;
WHEREAS, as part of an internal reorganization, Noble Drilling intends to contribute,
transfer, convey and assign on the date hereof to NDS1 assets (including equity interests in
directly owned subsidiaries of Noble Drilling) representing all but three of the drilling rigs
owned directly or indirectly by Noble Drilling (the Asset Transfer) in exchange for and in
consideration of (i) an increase in Noble Drillings capital account balance in NDS1 and (ii)
NDS1s assumption of certain liabilities of Noble Drilling;
WHEREAS, the Asset Transfer may be deemed a transfer of Noble Drillings properties and assets
substantially as an entirety;
WHEREAS, pursuant to Section 801 of the Supplemented Indenture, NDS1, as the transferee of all
or substantially all of Noble Drillings properties and assets, is required to expressly assume, by
an indenture supplemental to the Supplemented Indenture, the due and punctual payment of the
principal of, premium, if any, and interest on, and any Additional Amounts with respect to, the
Securities and the performance of Noble Drillings covenants and obligations under the Supplemented
Indenture and the Securities;
1
WHEREAS, Section 901 of the Supplemented Indenture provides that, without the consent of any
Holders, Noble Drilling, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental to the Supplemented Indenture
to evidence the succession of another Person to Noble Drilling and the assumption by any such
successor of the covenants of Noble Drilling in the Supplemented Indenture and in the Securities;
WHEREAS, the Companies, NDS1 and the Guarantors, pursuant to the foregoing authority, propose
to amend and supplement the Supplemented Indenture in certain respects to evidence the succession
of NDS1 to Noble Drilling and the assumption by NDS1 of the covenants and obligations of Noble
Drilling in the Supplemented Indenture and the Securities; and
WHEREAS, all things necessary to make this Fourth Supplemental Indenture a valid and legally
binding supplemental indenture to the Supplemented Indenture (the Supplemented Indenture, as
further supplemented by this Fourth Supplemental Indenture, the
Indenture
) in accordance
with the terms thereof have been done and the execution and delivery of this Fourth Supplemental
Indenture have been duly authorized in all respects;
NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged by the parties hereto, each party agrees, for the benefit of the
other parties and for the equal and proportionate benefit of all Holders of the Securities, as
follows:
SECTION 1. SUCCESSION BY TRANSFER OF PROPERTIES AND ASSETS SUBSTANTIALLY AS AN ENTIRETY
On the date hereof and effective upon the consummation of the Asset Transfer, (a) NDS1 hereby
expressly assumes the due and punctual payment of the principal of, premium, if any, and interest
on, and any Additional Amounts with respect to, the Securities and the performance of Noble
Drillings covenants and obligations under the Supplemented Indenture and the Securities; (b) NDS1
agrees to pay fully and promptly all amounts due to the Trustee under the Indenture; (c) NDS1 will
succeed to, be substituted for, and may exercise every right and power of, Noble Drilling under the
Supplemented Indenture, with the same effect as if NDS1 had been named as the Company for
purposes of the Indenture; provided, however, that Noble Drilling shall not be released from any of
its covenants or obligations under the Supplemented Indenture and the Securities, including but not
limited to the obligation to pay the principal of, premium, if any, and interest on, and any
Additional Amounts with respect to the Securities. After the effectiveness of this Fourth
Supplemental Indenture, for the purposes of the Indenture, the term the Company shall include
Noble Drilling, Drilling Holding and NDS1.
SECTION 2. MISCELLANEOUS
Section 2.1
Trust Indenture Act Controls
. If any provision of this Fourth Supplemental
Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that is
required under such Act to be part of and govern the Indenture, such provision of the Trust
Indenture Act shall control. If any provision hereof modifies or excludes any provision of the
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Trust Indenture Act that may be so modified or excluded, such provision of the Trust Indenture Act
shall be deemed to apply to this Fourth Supplemental Indenture, as so modified or excluded, as the
case may be.
Section 2.2
Date and Time of Effectiveness
. This Fourth Supplemental Indenture shall
become a legally effective and binding instrument at and as of the date and time first set forth
above.
Section 2.3
Supplemental Indenture Incorporated into Indenture
. The terms and
conditions of this Fourth Supplemental Indenture shall be deemed to be part of the Indenture for
all purposes relating to the Securities. All amendments to the Supplemented Indenture made hereby
shall have effect only with respect to the Securities. The Supplemented Indenture is hereby
incorporated by reference herein and, as further supplemented by this Fourth Supplemental
Indenture, is in all respects adopted, ratified and confirmed.
Section 2.4
Notes Deemed Conformed
. As of the date hereof, the provisions of the Notes
shall be deemed to be conformed, without the necessity for any reissuance or exchange of such Note
or any other action on the part of the Holders of the Securities, the Companies, NDS1 or the
Trustee, so as to reflect this Fourth Supplemental Indenture.
Section 2.5
Successors
. All agreements of the Companies, NDS1, the Guarantors and the
Trustee in this Fourth Supplemental Indenture and in the Indenture shall bind their respective
successors and assigns, whether or not so expressed.
Section 2.6
Benefits of Fourth Supplemental Indenture
. Nothing in this Fourth
Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders of Notes, any benefit or any legal or equitable
right, remedy or claim under this Fourth Supplemental Indenture or the Indenture.
Section 2.7
Separability
. In case any provision in this Fourth Supplemental Indenture,
or in the Indenture, shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the full extent permitted
by law.
Section 2.8
Headings
. The section headings of this Fourth Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part of this Fourth
Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 2.9
Definitions
. Each capitalized term used but not defined in this Fourth
Supplemental Indenture shall have the meaning assigned to such term in the Supplemented Indenture.
Section 2.10
Governing Law
. THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
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Section 2.11
Counterparts
. This Fourth Supplemental Indenture may be executed in two
or more counterparts, each of which shall constitute an original, but all of which when taken
together shall constitute the same instrument.
Section 2.12
Trustee Not Responsible for Recitals
. The recitals herein contained are
made by the Companies, NDS1 and the Guarantors, and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations as to the validity
or sufficiency of this Fourth Supplemental Indenture.
[signature page follows]
4
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be
duly executed, all as of the date first above written.
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NOBLE DRILLING CORPORATION
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(Noble Drilling)
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By:
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/s/ Dennis J. Lubojacky
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Dennis J. Lubojacky
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President
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Attest:
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/s/ Pamela Samuels
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Title: Secretary
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NOBLE DRILLING HOLDING LLC
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(Drilling Holding)
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By:
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/s/ Alan R. Hay
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Alan R. Hay
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Manager
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Attest:
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/s/ G. Wehrle
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Title: Secretary
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NOBLE DRILLING SERVICES 1 LLC
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(NDS1)
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By:
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/s/ Dennis J. Lubojacky
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Dennis J. Lubojacky
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President
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Attest:
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/s/ Pamela Samuels
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Title: Secretary
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NOBLE HOLDING (U.S.) CORPORATION,
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(Holding)
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By:
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/s/ Ross W. Gallup
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Ross W. Gallup
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Vice President
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Attest:
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/s/ Meriem Morier
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Title: Administrative Assistant
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5
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NOBLE CORPORATION
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(Cayman Islands)
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By:
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/s/ Julie J. Robertson
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Julie J. Robertson
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Executive Vice President
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Attest:
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/s/ Todd Strickler
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Title: Attorney
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THE BANK OF NEW YORK MELLON TRUST COMPANY,
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N.A., as Trustee
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By:
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/s/ Rafael Martinez
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Rafael Martinez
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Senior Associate
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Attest:
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/s/ Kash Asghar
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Title: Senior Associate
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6
Exhibit 4.2
NOBLE DRILLING CORPORATION,
as Issuer,
NOBLE DRILLING HOLDING LLC,
as Co-Issuer,
NOBLE DRILLING SERVICES 6 LLC,
as Co-Issuer,
NOBLE HOLDING (U.S.) CORPORATION,
as Guarantor,
and
NOBLE CORPORATION,
as Guarantor,
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FIFTH SUPPLEMENTAL INDENTURE
Dated as of October 1, 2009
to
INDENTURE
Dated as of March 1, 1999, as previously amended and supplemented
7.50% SENIOR NOTES DUE 2019
FIFTH SUPPLEMENTAL INDENTURE dated as of October 1, 2009, among NOBLE DRILLING CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware (
Noble
Drilling
), NOBLE DRILLING HOLDING LLC, a limited liability company duly organized and existing
under the laws of the State of Delaware (
Drilling Holding
, and collectively with Noble
Drilling, the
Company
or
Companies
), NOBLE DRILLING SERVICES 6 LLC, a limited
liability company duly organized and existing under the laws of the State of Delaware
(
NDS6
), NOBLE HOLDING (U.S.) CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (
Holding
), and NOBLE CORPORATION, a Cayman Islands
exempted company limited by shares (collectively with Holding, the
Guarantors
), and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, successor by merger to
JPMorgan Chase Bank, National Association (formerly Chase Bank of Texas, National Association), as
trustee (the
Trustee
).
R E C I T A L S:
WHEREAS, Noble Drilling has previously executed and delivered to the Trustee an indenture
dated as of March 1, 1999 (as supplemented by the First Supplemental Indenture thereto dated as of
March 16, 1999, the Second Supplemental Indenture thereto dated as of April 30, 2002, the Third
Supplemental Indenture thereto dated as of December 20, 2005 and the Fourth Supplemental Indenture
thereto dated as of September 25, 2009, the
Supplemented Indenture
), providing for the
issuance by Noble Drilling from time to time of its unsecured senior debt securities (the
Securities
), issuable in one or more series;
WHEREAS, Noble Drilling has issued, and the Trustee has authenticated and delivered, a series
of Securities designated 7.50% Senior Notes due 2019 (the
Notes
);
WHEREAS, Noble Drilling Services 1 LLC, a limited liability company duly organized and
existing under the laws of the State of Delaware (
NDS1
) and successor to certain
properties and assets of Noble Drilling, has assumed, by the Fourth Supplemental Indenture entered
into on September 25, 2009, the due and punctual payment of the principal of, premium, if any, and
interest on, and any Additional Amounts with respect to, the Securities and the performance of
Noble Drillings covenants and obligations under the Supplemented Indenture and the Securities;
WHEREAS, NDS1 and the Companies are the obligors with respect to the Notes and the Guarantors
have guaranteed the due and punctual payment of the principal of, premium, if any, interest on, and
all other amounts due under, the Notes;
WHEREAS, as part of an internal reorganization, NDS1 and NDS6 intend to merge (the
Merger
), with NDS6 to be the surviving entity;
WHEREAS, pursuant to Section 801 of the Supplemented Indenture, NDS6, as the successor by
merger to NDS1, is required to expressly assume, by an indenture supplemental to the Supplemented
Indenture, the due and punctual payment of the principal of, premium, if any, and interest on, and
any Additional Amounts with respect to, the Securities and the
1
performance of Noble Drillings covenants and obligations under the Supplemented Indenture and
the Securities;
WHEREAS, Section 802 of the Supplemented Indenture provides that upon any merger by NDS1 into
any other Person in accordance with Section 801, the successor Person into which NDS1 is merged
shall succeed to, and be substituted for, and may exercise every right and power of, NDS1 under the
Supplemented Indenture with the same effect as if such successor Person had been named as the
Company in the Supplemented Indenture, and thereafter, NDS1 shall be relieved of all covenants and
obligations under the Supplemented Indenture and the Securities;
WHEREAS, Section 901 of the Supplemented Indenture provides that, without the consent of any
Holders, NDS1, when authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental to the Supplemented Indenture to evidence
the succession of another Person to NDS1 and the assumption by any such successor of the covenants
of NDS1 in the Supplemented Indenture and in the Securities;
WHEREAS, the Companies, NDS6 and the Guarantors, pursuant to the foregoing authority, propose
to amend and supplement the Supplemented Indenture in certain respects to evidence the succession
of NDS6 to NDS1, the assumption by NDS6 of the covenants and obligations of NDS1 in the
Supplemented Indenture and the Securities and the release of NDS1 of all its covenants and
obligations under the Supplemented Indenture and the Securities; and
WHEREAS, all things necessary to make this Fifth Supplemental Indenture a valid and legally
binding supplemental indenture to the Supplemented Indenture (the Supplemented Indenture, as
further supplemented by this Fifth Supplemental Indenture, the
Indenture
) in accordance
with the terms thereof have been done and the execution and delivery of this Fifth Supplemental
Indenture have been duly authorized in all respects;
NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged by the parties hereto, each party agrees, for the benefit of the
other parties and for the equal and proportionate benefit of all Holders of the Securities, as
follows:
SECTION 1. SUCCESSION BY MERGER
On the date hereof and effective upon the consummation of the Merger, (a) NDS6 hereby
expressly assumes the due and punctual payment of the principal of, premium, if any, and interest
on, and any Additional Amounts with respect to, the Securities and the performance of NDS1s
covenants and obligations under the Supplemented Indenture and the Securities; (b) NDS6 agrees to
pay fully and promptly all amounts due to the Trustee under the Indenture; (c) NDS6 will succeed
to, be substituted for, and may exercise every right and power of, NDS1 under the Supplemented
Indenture, with the same effect as if NDS6 had been named as the Company for purposes of the
Indenture; and (d) NDS1 will be released of all of its covenants and obligations under the
Supplemented Indenture and the Securities. After the effectiveness of this Fifth Supplemental
Indenture, for the purposes of the Indenture, the term the Company
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shall include Noble Drilling, Drilling Holding and NDS6 and, upon the consummation of the Merger,
shall not include NDS1.
SECTION 2. MISCELLANEOUS
Section 2.1
Trust Indenture Act Controls
. If any provision of this Fifth Supplemental
Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that is
required under such Act to be part of and govern the Indenture, such provision of the Trust
Indenture Act shall control. If any provision hereof modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, such provision of the Trust Indenture Act
shall be deemed to apply to this Fifth Supplemental Indenture, as so modified or excluded, as the
case may be.
Section 2.2
Date and Time of Effectiveness
. This Fifth Supplemental Indenture shall
become a legally effective and binding instrument at and as of the date and time first set forth
above.
Section 2.3
Supplemental Indenture Incorporated into Indenture
. The terms and
conditions of this Fifth Supplemental Indenture shall be deemed to be part of the Indenture for all
purposes relating to the Securities. All amendments to the Supplemented Indenture made hereby shall
have effect only with respect to the Securities. The Supplemented Indenture is hereby incorporated
by reference herein and, as further supplemented by this Fifth Supplemental Indenture, is in all
respects adopted, ratified and confirmed.
Section 2.4
Notes Deemed Conformed
. As of the date hereof, the provisions of the Notes
shall be deemed to be conformed, without the necessity for any reissuance or exchange of such Note
or any other action on the part of the Holders of the Securities, the Companies, NDS1, NDS6 or the
Trustee, so as to reflect this Fifth Supplemental Indenture.
Section 2.5
Successors
. All agreements of the Companies, NDS6, the Guarantors and the
Trustee in this Fifth Supplemental Indenture and in the Indenture shall bind their respective
successors and assigns, whether or not so expressed.
Section 2.6
Benefits of Fifth Supplemental Indenture
. Nothing in this Fifth
Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders of Notes, any benefit or any legal or equitable
right, remedy or claim under this Fifth Supplemental Indenture or the Indenture.
Section 2.7
Separability
. In case any provision in this Fifth Supplemental Indenture,
or in the Indenture, shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the full extent permitted
by law.
Section 2.8
Headings
. The section headings of this Fifth Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part of this Fifth
Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
3
Section 2.9
Definitions
. Each capitalized term used but not defined in this Fifth
Supplemental Indenture shall have the meaning assigned to such term in the Supplemented Indenture.
Section 2.10
Governing Law
. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
Section 2.11
Counterparts
. This Fifth Supplemental Indenture may be executed in two or
more counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute the same instrument.
Section 2.12
Trustee Not Responsible for Recitals
. The recitals herein contained are
made by the Companies, NDS6 and the Guarantors, and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations as to the validity
or sufficiency of this Fifth Supplemental Indenture.
[signature page follows]
4
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be
duly executed, all as of the date first above written.
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NOBLE DRILLING CORPORATION
(Noble Drilling)
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By:
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/s/ Dennis J. Lubojacky
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Dennis J. Lubojacky
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President
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Attest:
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/s/ Pamela Samuels
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Title: Administrative Assistant
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NOBLE DRILLING HOLDING LLC
(Drilling Holding)
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By:
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/s/ Alan R. Hay
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Alan R. Hay
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President
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Attest:
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/s/ Todd Strickler
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Title: Attorney
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NOBLE DRILLING SERVICES 6 LLC
(NDS6)
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By:
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/s/ Alan R. Hay
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Alan R. Hay
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President
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Attest:
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/s/ Todd Strickler
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Title: Attorney
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NOBLE HOLDING (U.S.) CORPORATION,
(Holding)
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By:
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/s/ Ross W. Gallup
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Ross W. Gallup
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Vice President
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Attest:
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/s/ Todd Strickler
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Title: Attorney
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NOBLE CORPORATION
(Cayman Islands)
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By:
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/s/ Julie J. Robertson
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Julie J. Robertson
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Executive Vice President
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Attest:
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/s/ Todd Strickler
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Title: Attorney
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THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
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By:
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/s/ Rafael Martinez
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Rafael Martinez
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Senior Associate
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Attest:
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/s/ Julie Hoffman-Ramos
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Title: Senior Associate
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6
Exhibit 4.3
NOBLE CORPORATION,
ISSUER,
NOBLE DRILLING CORPORATION,
GUARANTOR,
NOBLE HOLDING INTERNATIONAL LIMITED,
GUARANTOR,
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
RELATING TO
$300,000,000 of 5.875% Senior Notes due 2013
Dated as of October 1, 2009
SECOND SUPPLEMENTAL INDENTURE, dated as of October 1, 2009 (this
Second Supplemental
Indenture
), by and among NOBLE CORPORATION, a Cayman Islands exempted company limited by
shares (herein called the
Company
), NOBLE DRILLING CORPORATION, a Delaware corporation
and a wholly-owned indirect subsidiary of the Company (herein called
Noble Drilling
),
NOBLE HOLDING INTERNATIONAL LIMITED, a Cayman Islands exempted company limited by shares (herein
called
NHIL
and, together with Noble Drilling, the
Guarantors
), and THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A., a national banking association duly organized and existing
under the laws of the United States of America, successor by merger to JPMorgan Chase Bank,
National Association, as Trustee (herein called the
Trustee
).
WITNESSETH:
WHEREAS, the Company has previously executed and delivered to the Trustee an indenture dated
as of May 26, 2006, as supplemented by the First Supplemental Indenture thereto dated as of May 26,
2006 (the
First Supplemental Indenture
; the indenture, as supplemented by the First
Supplemental Indenture, the
Supplemented Indenture
), providing for the issuance from time
to time of its unsecured senior debt securities (the
Securities
);
WHEREAS, the Company has issued, and the Trustee has authenticated and delivered, a series of
Securities designated the 5.875% Senior Notes due 2013 (the
Notes
);
WHEREAS, the Company is the obligor with respect to the Notes;
WHEREAS, pursuant to Section 3 of the First Supplemental Indenture, Noble Drilling has
irrevocably and unconditionally guaranteed the due and punctual payment of the principal of,
premium, if any, interest on and all other amounts due under, the Indenture and the Notes; and
WHEREAS, as part of an internal reorganization, NHIL will acquire an indirect interest in all
but three drilling rigs previously owned directly or indirectly by Noble Drilling (the
Asset
Transfer
);
WHEREAS, Section 901(9) of the Supplemented Indenture provides that, without the consent of
any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental to the Supplemented
Indenture, to make any provisions with respect to matters arising under the Supplemented Indenture,
provided such provisions shall not adversely affect the interests of the Holders of Securities of
any series in any material respect;
WHEREAS, the Company and the Guarantors, pursuant to the foregoing authority, propose to amend
and supplement the Supplemented Indenture in certain respects to evidence NHILs agreement to fully
and unconditionally guarantee the due and punctual payment of the principal of, premium, if any,
interest on and all other amounts due under the Supplemented Indenture and the Notes, which
guarantee is provided in this Second Supplemental Indenture; and
1
WHEREAS, all things necessary to make this Second Supplemental Indenture a valid and legally
binding supplemental indenture to the Supplemented Indenture (the Supplemented Indenture, as
further supplemented by this Second Supplemental Indenture, the
Indenture
) in accordance
with the terms thereof have been done, and the execution and delivery of this Second Supplemental
Indenture have been duly authorized in all respects;
NOW, THEREFORE, in consideration of the promises and mutual agreements herein contained, the
Company, the Guarantors and the Trustee mutually covenant and agree for the equal and proportionate
benefit of the Holders from time to time of the Notes as follows:
SECTION
1. AGREEMENT TO GUARANTEE
NHIL hereby agrees as follows:
(a) Subject to Subsection 1(b) below, NHIL (or any successor person pursuant to the applicable
provisions of this Second Supplemental Indenture) hereby irrevocably and unconditionally guarantees
(such guarantee being the Guarantee) to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture and the Notes, that: (i) the principal of, premium, if any, and
interest on the Notes promptly will be paid in full when due, whether at the Maturity, by
acceleration, call for redemption or otherwise, and interest on the overdue principal, premium, if
any, and interest, if any, on the Notes, if lawful, and all other payment obligations of the
Company to the Holders and the Trustee under the Indenture and the Notes will be promptly paid in
full, all in accordance with the terms of the Indenture and the Notes, and (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other payment obligations, the
same will be promptly paid in full when due in accordance with the terms of the extension or
renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due by the
Company of any amount so guaranteed for whatever reason, NHIL shall be obligated to pay the same
immediately. NHIL hereby agrees that its obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the Indenture or the Notes, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any
provisions of the Indenture or the Notes, the recovery of any judgment against the Company, or any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. NHIL hereby waives presentment, demand of payment,
protest, notice and all demands whatsoever and covenants that this Guarantee shall not be
discharged except by complete performance of the obligations contained in the Notes and the
Indenture.
(b) It is the intention of NHIL and the Company that the obligations of NHIL hereunder shall
be, but not in excess of, the maximum amount permitted by applicable law. Accordingly, if the
obligations in respect of the Guarantee would be annulled, avoided or subordinated to the creditors
of NHIL by a court of competent jurisdiction in a proceeding actually pending before such court as
a result of a determination both that such Guarantee was made without fair consideration and,
immediately after giving effect thereto, NHIL was insolvent or unable to pay its debts as they
mature or left with an unreasonably small capital, then the obligations of NHIL under the Guarantee
shall be reduced by such court if such reduction would result in the avoidance of such annulment,
avoidance or subordination; provided, however, that
2
any reduction pursuant to this paragraph shall be made in the smallest amount as is strictly
necessary to reach such result. For purposes of this paragraph, fair consideration, insolvency,
unable to pay its debts as they mature, unreasonably small capital and the effective times of
reductions, if any, required by this paragraph shall be determined in accordance with applicable
law.
(c) NHIL shall be subrogated to all rights of the Holders against the Company in respect of
any amounts paid by NHIL pursuant to the provisions of the Guarantee or the Indenture; provided,
however, that NHIL shall not be entitled to enforce or to receive any payments arising out of, or
based upon, such right of subrogation until the principal of, premium, if any, and interest on all
Notes issued under the Indenture shall have been paid in full.
SECTION 2. EXECUTION AND DELIVERY OF GUARANTEE
To evidence the Guarantee set forth in Section 1, the Company and NHIL hereby agree that a
notation of such Guarantee shall be endorsed on each Note hereafter authenticated and delivered by
the Trustee, that such notation of such Guarantee shall be in the form attached hereto as
Exhibit A
, and shall be executed on behalf of NHIL by an officer thereof.
NHIL hereby agrees that the Guarantee set forth in Section 1 shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of the Guarantee.
SECTION 3. RELEASE OF NHIL
NHIL shall be released from all of its obligations under the Guarantee and under the Indenture
if:
(a) the Company or NHIL has transferred all or substantially all of its properties and assets
to any Person (whether by sale, merger or consolidation or otherwise), or has merged into or
consolidated with another Person, pursuant to a transaction in compliance with the Indenture and:
(i) the Person to whom all or substantially all of the properties and assets of the
Company or NHIL are transferred, or whom the Company or NHIL has merged into or consolidated
with, has expressly assumed, by an indenture supplemental to the Indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the payment obligations
of NHIL under the Guarantee;
(ii) immediately before and immediately after giving effect to such transaction, no
Event of Default, and no event or condition which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and
(iii) NHIL has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
3
supplemental indenture comply with this Section 3 and that all conditions precedent
herein provided for relating to such transaction have been complied with;
(b) NHIL liquidates (other than pursuant to any applicable bankruptcy law or rule) and
complies, if applicable, with the provisions of the Indenture; provided that if a Person and its
Affiliates, if any, shall acquire all or substantially all of the assets of NHIL upon such
liquidation NHIL shall liquidate only if:
(i) the Person and each such Affiliate (or the common corporate parent of such Person
and its Affiliates, if such Person and its Affiliates are wholly-owned by such parent) which
acquire or will acquire all or a portion of the assets of NHIL shall expressly assume, by an
indenture supplemental to the Indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of NHIL, under the Guarantee;
(ii) immediately after giving effect to such transaction, no Event of Default, and no
event or condition which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(iii) NHIL has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such liquidation and such supplemental indenture comply with this
Section 3 and that all conditions precedent herein provided for relating to such transaction
have been complied with; or
(c) NHIL ceases for any reason to be a wholly-owned subsidiary of the Company (as such term
is defined in Rule 1-02(z) of Regulation S-X promulgated by the Commission).
(d) Upon any assumption of the Guarantee by any Person pursuant to this Section 3, such Person
may exercise every right and power of NHIL under the Guarantee and the Indenture with the same
effect as if such successor corporation had been named as NHIL herein, and all the obligations of
NHIL under the Guarantee and the Indenture shall terminate.
SECTION 4. LIMITATION ON INDIVIDUAL LIABILITY
No recourse under or upon any obligation, covenant or agreement contained in this Second
Supplemental Indenture or the Guarantee, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, member, shareholder, officer or director, as such,
past, present or future, of any Guarantor, the Company or any successor Person, either directly or
through any Guarantor or the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Second Supplemental Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, members, shareholders, officers or directors, as such, of any
Guarantor, the Company or any successor Person, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
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obligations, covenants or agreements contained in this Second Supplemental Indenture or in the
Guarantee or implied therefrom; and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, member, shareholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Second Supplemental Indenture or in the
Guarantee or implied therefrom, are hereby expressly waived and released as a condition of, and as
a consideration for, the execution of this Second Supplemental Indenture and the issuance of the
Guarantee.
SECTION 5. MISCELLANEOUS
Section 5.1
Trust Indenture Act Controls
. If any provision of this Second Supplemental
Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that is
required under such Act to be part of and govern the Indenture, such provision of the Trust
Indenture Act shall control. If any provision hereof modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the such provision of the Trust Indenture
Act shall be deemed to apply to this Second Supplemental Indenture, as so modified or excluded, as
the case may be.
Section 5.2
Date and Time of Effectiveness
. This Second Supplemental Indenture shall
become a legally effective and binding instrument at and as of the date and time first set forth
above.
Section 5.3
Supplemental Indenture Incorporated into Indenture
. The terms and
conditions of this Second Supplemental Indenture shall be deemed to be part of the Indenture for
all purposes relating to the Securities. All amendments to the Supplemented Indenture made hereby
shall have effect only with respect to the Securities. The Supplemented Indenture is hereby
incorporated by reference herein and, as further supplemented by this Second Supplemental
Indenture, is in all respects adopted, ratified and confirmed.
Section 5.4
Notes Deemed Conformed
. As of the date hereof, the provisions of the Notes
shall be deemed to be conformed, without the necessity for any reissuance or exchange of such Note
or any other action on the part of the Holders of the Securities, the Company, the Guarantors or
the Trustee, so as to reflect this Second Supplemental Indenture.
Section 5.5
Successors
. All agreements of the Company, the Guarantors and the Trustee
in this Second Supplemental Indenture and in the Indenture shall bind their respective successors
and assigns, whether or not so expressed.
Section 5.6
Benefits of Second Supplemental Indenture
. Nothing in this Second
Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders of Notes, any benefit or any legal or equitable
right, remedy or claim under this Second Supplemental Indenture or the Indenture.
Section 5.7
Separability
. In case any provision in this Second Supplemental Indenture,
or in the Indenture, shall be invalid, illegal or unenforceable, the validity, legality and
enforceability
5
of the remaining provisions shall not in any way be affected or impaired thereby, it being intended
that all of the provisions hereof shall be enforceable to the full extent permitted by law.
Section 5.8
Headings
. The section headings of this Second Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part of this Second
Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 5.9
Definitions
. Each capitalized term used but not defined in this Second
Supplemental Indenture shall have the meaning assigned to such term in the Supplemented Indenture.
Section 5.10
Governing Law
. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
Section 5.11
Counterparts
. This Second Supplemental Indenture may be executed in two
or more counterparts, each of which shall constitute an original, but all of which when taken
together shall constitute the same instrument.
Section 5.12
Trustee Not Responsible for Recitals
. The recitals herein contained are
made by the Company and the Guarantors, not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations as to the validity
or sufficiency of this Second Supplemental Indenture.
[signature page follows]
6
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed, as of the date first above written.
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NOBLE CORPORATION
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Company
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By:
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/s/ Julie J. Robertson
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Julie J. Robertson
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Executive Vice President
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Attest:
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/s/ Todd Strickler
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Title: Attorney
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NOBLE DRILLING CORPORATION
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Noble Drilling
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By:
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/s/ Dennis J. Lubojacky
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Dennis J. Lubojacky
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President
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Attest:
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/s/ Pamela Samuels
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Title: Administrative Assistant
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NOBLE HOLDING INTERNATIONAL LIMITED NHIL
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By:
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/s/ Alan R. Hay
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Alan R. Hay
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President
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Attest:
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/s/ Todd Strickler
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Title: Attorney
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THE BANK OF NEW YORK MELLON TRUST COMPANY,
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N.A., as Trustee
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By:
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/s/ Rafael Martinez
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Rafael Martinez
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Senior Associate
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Attest:
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/s/ Julie Hoffman-Ramos
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Title: Senior Associate
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1
EXHIBIT A
[FORM OF NOTATION OF GUARANTEE]
NOTATION OF PAYMENT GUARANTEE OF NOBLE HOLDING
INTERNATIONAL LIMITED
For value received, the undersigned, Noble Holding International Limited, a Cayman Islands
exempted company limited by shares (
NHIL
, which term includes any successor person under
the indenture referred to below), and a wholly-owned indirect subsidiary of Noble Corporation, a
Cayman Islands exempted company limited by shares (the
Company
), has unconditionally
guaranteed, to the extent set forth in, and subject to the provisions of, the Second Supplemental
Indenture, dated as of October 1, 2009 (the
Second Supplemental Indenture
), among the
Company, Noble Drilling Corporation, a Delaware corporation, NHIL and The Bank Of New York Mellon
Trust Company, N.A., a national banking association duly organized and existing under the laws of
the United States of America, successor by merger to JPMorgan Chase Bank, National Association, as
trustee (the
Trustee
), (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes (as defined in the Second Supplemental Indenture), whether at
maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on
overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual
performance of all other payment obligations of the Company to the holders of the Notes or the
Trustee all in accordance with the terms of the Indenture, dated as of May 26, 2006, between the
Company and the Trustee, with respect to the Companys 5.875% Senior Notes due 2013, as
supplemented by the First Supplemental Indenture, dated as of May 26, 2006, and the Second
Supplemental Indenture, and (b) in case of any extension of time of payment or renewal of any Notes
or any of such other payment obligations, that the same will be promptly paid in full when due in
accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. The payment obligations of NHIL to the holders of the Notes and to the Trustee
pursuant to this guarantee are expressly set forth in Sections 1 through 4 of the Second
Supplemental Indenture, and reference is hereby made to the Second Supplemental Indenture for the
precise terms of this payment guarantee.
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NOBLE HOLDING INTERNATIONAL LIMITED
NHIL
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By:
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/s/ Alan R. Hay
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Alan R. Hay
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Director
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1
Exhibit 4.4
SUBSIDIARY GUARANTY AGREEMENT
THIS SUBSIDIARY GUARANTY AGREEMENT
(this
Guaranty
), dated as of October 1, 2009, made by
the undersigned Subsidiary of Noble Corporation, a Cayman Islands exempted company limited by
shares (the
Company
; the undersigned Subsidiary of the Company being herein referred to as the
Guarantor
), in favor of (i) the banks and other financial institutions that are parties to the
Credit Agreement (as hereinafter defined) and each assignee thereof becoming a
Lender
as provided
therein (the
Lenders
), (ii) Citibank, N.A., in its capacity as administrative agent (the
Administrative Agent
) under the terms of the Credit Agreement and (iii) Other Agents and the
Issuing Banks (as such terms are defined in the Credit Agreement) under the terms of the Credit
Agreement (the Lenders, the Administrative Agent, the Other Agents, and the Issuing Banks being
collectively referred to herein as the
Guaranteed Parties
);
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
the Company, the Lenders and the Administrative Agent have entered into a certain
Revolving Credit Agreement dated as of March 15, 2007 (as the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time, and including all schedules,
riders, and supplements thereto, the
Credit Agreement
; terms defined therein and not otherwise
defined herein being used herein as therein defined);
WHEREAS,
the Company owns, directly or indirectly, all or a majority of all outstanding
capital stock or other equity interests of the Guarantor;
WHEREAS,
it is a requirement under Section 6.11(k) of the Credit Agreement that the Guarantor
execute and deliver this Guaranty, and the Guarantor desires to execute and deliver this Guaranty
to satisfy such requirement; and
WHEREAS,
this Guaranty and the obligation of the Guarantor shall remain in full force and
effect until termination of this Guaranty as provided in Section 23 below or as otherwise provided
in Section 10(i) below;
NOW, THEREFORE
, in consideration of the premises and in order to satisfy the requirements of
the Credit Agreement, and for Ten Dollars ($10.00) and other good and valuable consideration, the
Guarantor hereby agrees as follows:
SECTION 1.
Guaranty
. Subject to Section 23 below, the Guarantor hereby irrevocably
and unconditionally, guarantees the punctual payment when due, in lawful money of the United States
of America or in another currency as provided for in Section 3.2(a) of the Credit Agreement (the
Obligation Currency
), whether at stated maturity, by acceleration or otherwise, of the Loans, L/C Obligations, and all other Obligations owing by the Company to
the Lenders, the Administrative Agent, the Swingline Leader, the Issuing Banks and Other
Agents, or any of them, under the Credit Agreement, the Notes, and the other Credit Documents, including
all renewals, extensions, modifications and refinancings thereof, now or hereafter owing, whether
for principal, interest, fees, expenses or otherwise, and any and all reasonable out-of-pocket
expenses (including reasonable attorneys fees and expenses) incurred by the Lenders or the
Administrative Agent in enforcing any rights under this Guaranty (collectively, the
Guaranteed
Obligations
), including without limitation, all interest which, but for the filing of a petition
in bankruptcy, would accrue on any principal portion of the Guaranteed Obligations. Any and all
payments by the Guarantor hereunder shall be made in the Obligation Currency free and clear of and
without deduction for any set-off, counterclaim, or withholding so that, in each case, each
Guaranteed Party will receive, after giving effect to any Indemnified Taxes (as such term is
defined in the Credit Agreement), the full amount, in the Obligation Currency, that it would
otherwise be entitled to receive with respect to the Guaranteed Obligations (but without
duplication of amounts for Indemnified Taxes already included in the Guaranteed Obligations). The
Guarantor acknowledges and agrees that this is a guarantee of payment when due, and not of
collection, and that this Guaranty may be enforced up to the full amount of the Guaranteed
Obligations without proceeding against the Company, against any security for the Guaranteed
Obligations, against any other Guarantor or under any other guaranty covering any portion of the
Guaranteed Obligations.
SECTION 2.
Guaranty Absolute
. The Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Credit Documents, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of any Guaranteed Party with respect thereto. Subject to Section 23
below, the liability of the Guarantor under this Guaranty shall be absolute and unconditional in
accordance with its terms and shall remain in full force and effect without regard to, and shall
not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation, the following (whether or not the Guarantor
consents thereto or has notice thereof):
(a) any change in the time, place or manner of payment of, or in any other term of, all
or any of the Guaranteed Obligations, any waiver, indulgence, renewal, extension, amendment
or modification of or addition, consent or supplement to or deletion from or any other
action or inaction under or in respect of the Credit Agreement or the other Credit
Documents, or any other documents, instruments or agreements relating to the Guaranteed
Obligations or any other instrument or agreement referred to therein or any assignment or
transfer of any thereof;
(b) any lack of validity or enforceability of the Credit Agreement or the other Credit
Documents, or any other document, instrument or agreement referred to therein or any
assignment or transfer of any thereof;
(c) any furnishing to the Guaranteed Parties of any additional security for the
Guaranteed Obligations, or any sale, exchange, release or surrender of, or realization on,
any security for the Guaranteed Obligations;
(d) any settlement or compromise of any of the Guaranteed Obligations, any security
therefor, or any liability of any other party with respect to the Guaranteed Obligations, or
any subordination of the payment of the Guaranteed Obligations to the payment of any other
liability of the Company;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to the Guarantor or the Company, or any action
taken with respect to this Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any nonperfection of any security interest or lien on any collateral, or any
amendment or waiver of or consent to departure from any guaranty or security, for all or any
of the Guaranteed Obligations;
(g) any application of sums paid by the Company or any other Person with respect to the
liabilities of the Company to the Guaranteed Parties, regardless of what liabilities of the
Company remain unpaid;
(h) any act or failure to act by any Guaranteed Party which may adversely affect the
Guarantors subrogation rights, if any, against the Company to recover payments made under
this Guaranty; and
(i) any other circumstance which might otherwise constitute a defense available to, or
a discharge of, the Guarantor.
If claim is ever made upon any Guaranteed Party for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guaranteed Obligations, and any Guaranteed Party
repays all or part of said amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over the Guaranteed Party or any of its property, or (b)
any settlement or compromise of any such claim effected by the Guaranteed Party with any such
claimant (including the Company or a trustee in bankruptcy for the Company), then and in such event
the Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be
binding on it, notwithstanding any revocation hereof or the cancellation of the Credit Agreement,
the other Credit Documents, or any other instrument evidencing any liability of the Company, and
the Guarantor shall be and remain liable to the Guaranteed Party for the amounts so repaid or
recovered to the same extent as if such amount had never originally been paid to the Guaranteed
Party.
SECTION 3.
Waiver
. The Guarantor hereby waives notice of acceptance of this Guaranty,
notice of any liability to which it may apply, and further waive presentment, demand of payment,
protest, notice of dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Guaranteed Parties against, and any other notice to, the Company or any other party liable
with respect to the Guaranteed Obligations (including the Guarantor or any other Person executing a
guaranty of the obligations of the Company).
SECTION 4.
Subrogation
. The Guarantor will not exercise any rights against the
Company which it may acquire by way of subrogation or contribution, by any payment made hereunder
or otherwise, until all the Guaranteed Obligations shall have been irrevocably paid in full and the
Credit Agreement and all Letters of Credit shall have been irrevocably terminated. If any amount
shall be paid to the Guarantor on account of such subrogation or contribution rights at any time
when all the Guaranteed Obligations shall not have been paid in full, or the Credit Agreement or
any Letter of Credit shall not have been irrevocably terminated, such amount shall be held in trust
for the benefit of the Guaranteed Parties and shall forthwith be paid to the Administrative Agent
to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement. If (i) the Guarantor shall make payment to the
Guaranteed Parties of all or any part of the Guaranteed Obligations and (ii) all the Guaranteed
Obligations shall be irrevocably paid in full and the Credit Agreement and all Letters of Credit
irrevocably terminated, the Guaranteed Parties will, at the Guarantors request, execute and
deliver to the Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the
Guaranteed Obligations resulting from such payment by the Guarantor.
SECTION 5.
Severability
. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 6.
Amendments, Etc
. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by the Guarantor therefrom shall in any event be effective unless the
same shall be in writing executed by the Administrative Agent and the Lenders.
SECTION 7
.
Notices
. All notices and other communications provided for hereunder shall
be given in the manner specified in the Credit Agreement (i) in the case of the Administrative
Agent, at the address specified for the Administrative Agent in the Credit Agreement, and (ii) in
the case of the Guarantor, at the address specified for the Guarantor in this Guaranty.
SECTION 8
.
No Waiver; Remedies
. No failure on the part of the Administrative Agent or
other Guaranteed Parties to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. No notice to or demand on
the Guarantor in any case shall entitle the Guarantor to any other further notice or demand in any
similar or other circumstances or constitute a waiver of the rights of the Administrative Agent or
other Guaranteed Parties to any other or further action in any circumstances without notice or
demand. The remedies herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 9
.
Right Of Set Off
. In addition to and not in limitation of all rights of
offset that the Administrative Agent or other Guaranteed Parties may have under applicable law, the
Administrative Agent or other Guaranteed Parties shall, upon the occurrence of any Event of Default
and whether or not the Administrative Agent or other Guaranteed Parties have made any demand or the
Guaranteed Obligations are matured, have the right to appropriate and apply to the payment of the
Guaranteed Obligations, all deposits of the Guarantor (general or special, time or demand,
provisional or final) then or thereafter held by and other indebtedness or property then or
thereafter owing by the Administrative Agent or other Guaranteed Parties to the Guarantor, whether
or not related to this Guaranty or any transaction hereunder.
SECTION 10
.
Continuing Guaranty; Transfer Of Obligations
. This Guaranty is a
continuing guaranty and shall (i) remain in full force and effect, subject to Section 23 below,
until payment in full of the Guaranteed Obligations and all other amounts payable under this
Guaranty, irrevocable termination of all Letters of Credit and the termination of the Credit
Agreement, (ii) be binding upon the Guarantor, its successors and assigns, and (iii) inure to the
benefit of and be enforceable by the Administrative Agent, for the benefit of the Guaranteed
Parties.
SECTION 11
.
Governing Law; Appointment Of Agent For Service Of Process; Submission To
Jurisdiction; Waiver of Jury Trial
.
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAW PRINCIPLES THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR OTHERWISE RELATED HERETO
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF THIS GUARANTY, THE GUARANTOR HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE
RIGHTS OF THE ADMINISTRATIVE AGENT AND OTHER GUARANTEED PARTIES WITH RESPECT TO THIS GUARANTY OR
ANY DOCUMENT RELATED HERETO. THE GUARANTOR HEREBY IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM,
111 8TH AVENUE, NEW YORK, NEW YORK 10011, AS THE DESIGNEE, APPOINTEE AND AGENT OF THE GUARANTOR TO
RECEIVE, FOR AND ON BEHALF OF THE GUARANTOR, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT RELATED HERETO AND SUCH SERVICE
SHALL BE DEEMED COMPLETED 30 DAYS AFTER MAILING THEREOF TO SAID AGENT. IT IS UNDERSTOOD THAT A
COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY MAIL TO THE GUARANTOR AT
ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF THE GUARANTOR TO RECEIVE SUCH COPY
SHALL NOT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AFFECT IN ANY WAY THE SERVICE OF SUCH
PROCESS. IF FOR ANY REASON SERVICE OF PROCESS CANNOT PROMPTLY BE MADE ON EITHER SUCH LOCAL AGENT,
THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM
NON
CONVENIENS
,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE GUARANTOR IN ANY OTHER
JURISDICTION.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR
THEREUNDER.
(d) EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.7 OF THE CREDIT AGREEMENT. NOTHING IN
THIS GUARANTY WILL AFFECT THE RIGHT OF ANY SUCH PARTY TO SERVE PROCESS IN ANY MANNER PERMITTED BY
APPLICABLE LAW.
(e) EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION 11 OR OTHERWISE RELATING TO THE
CREDIT DOCUMENTS ANY PUNITIVE DAMAGES.
SECTION 12
. [INTENTIONALLY OMITTED]
SECTION 13.
Judgment Currency.
The Guarantors obligation hereunder to make payments
in the Obligation Currency shall not be discharged or satisfied by any tender or recovery pursuant
to any judgment expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective receipt by the
Guaranteed Parties of the full amount of the Obligation Currency expressed to be payable under this
Guaranty or the Credit Agreement. If for the purpose of obtaining or enforcing judgment against
the Guarantor in any court or in any jurisdiction, it
becomes necessary to convert into or from any currency other than the Obligation Currency
(such other currency being hereinafter referred to as the
Judgment Currency
) an amount due in the
Obligation Currency, the conversion shall be made in accordance with Section 10.18 of the Credit
Agreement.
SECTION 14.
Automatic Acceleration in Certain Events.
Upon the occurrence of an Event
of Default specified in Section 7.1(f) or (g) of the Credit Agreement, all Guaranteed Obligations
shall automatically become immediately due and payable by the Guarantor, without notice or other
action on the part of the Administrative Agent or other Guaranteed Parties, and regardless of
whether payment of the Guaranteed Obligations by the Company has then been accelerated. In
addition, if any event of the types described in Section 7.1(f) or (g) of the Credit Agreement
should occur with respect to the Guarantor and Guarantor is a Significant Subsidiary, then the
Guaranteed Obligations shall automatically become immediately due and payable by the Guarantor,
without notice or other action on the part of the Administrative Agent or other Guaranteed Parties,
and regardless of whether payment of the Guaranteed Obligations by the Company has then been
accelerated.
SECTION 15.
Maximum Obligations
.
(a) It is the intent of the Guarantor and the
Guaranteed Parties that the Guarantors maximum obligations hereunder shall be in, but not in
excess of:
(i) in a case or proceeding commenced by or against the Guarantor under the Bankruptcy
Code on or within one year from the date on which any of the Guaranteed Obligations are
incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations (or
any other obligations of the Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against the Guarantor under (A) Section 548 of the Bankruptcy Code or (B) any
state fraudulent transfer or fraudulent conveyance act or statute applied in such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against the Guarantor under the Bankruptcy
Code subsequent to one year from the date on which any of the Guaranteed Obligations are
incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations (or
any other obligations of the Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against the Guarantor under any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of
the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against the Guarantor under any law,
statute or regulation other than the Bankruptcy Code (including, without limitation, any
other bankruptcy, reorganization, arrangement, moratorium, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of the Guarantor to the
Guaranteed Parties) to be avoidable or unenforceable against the Guarantor under such law,
statute or regulation including, without limitation, any state
fraudulent transfer or fraudulent conveyance act or statute applied in any such case or
proceeding.
(The substantive laws under which the possible avoidance or unenforceability of the Guaranteed
Obligations (or any other obligations of the Guarantor to the Guaranteed Parties) shall be
determined in any such case or proceeding shall hereinafter be referred to as the
Avoidance
Provisions
).
(b) To the end set forth in Section 15(a), but only to the extent that the Guaranteed
Obligations would otherwise be subject to avoidance under the Avoidance Provisions if the
Guarantor is not deemed to have received valuable consideration, fair value or reasonably
equivalent value for the Guaranteed Obligations, or if the Guaranteed Obligations would
render the Guarantor insolvent, or leave the Guarantor with an unreasonably small capital to
conduct its business, or cause the Guarantor to have incurred debts (or to have intended to
have incurred debts) beyond its ability to pay such debts as they mature, in each case as of
the time any of the Guaranteed Obligations are deemed to have been incurred under the
Avoidance Provisions and after giving effect to rights of contribution, indemnity and
subrogation as among the Guarantor and the Company, the maximum Guaranteed Obligations for
which the Guarantor shall be liable hereunder shall be reduced to that amount which, after
giving effect thereto, would not cause the Guaranteed Obligations (or any other obligations
of the Guarantor to the Guaranteed Parties), as so reduced, to be subject to avoidance under
the Avoidance Provisions. This Section 15(b) is intended solely to preserve the rights of
the Guaranteed Parties hereunder to the maximum extent that would not cause the Guaranteed
Obligations of the Guarantor to be subject to avoidance under the Avoidance Provisions, and
neither the Guarantor nor any other Person shall have any right or claim under this Section
15 as against the Guaranteed Parties that would not otherwise be available to such Person
under the Avoidance Provisions.
SECTION 16.
Indemnity, Contribution, and Subrogation
.
(a) In addition to all such rights of indemnity and subrogation as the Guarantor may have
under applicable law (but subject to Section 4 hereof), the Company agrees that (i) in the event a
payment shall be made on behalf of the Company by the Guarantor hereunder, the Company shall
indemnify the Guarantor for the full amount of such payment and the Guarantor shall be subrogated
to the rights of the person to whom such payment shall have been made to the extent of such
payment, and (ii) in the event any assets of the Guarantor shall be sold to satisfy a claim of any
Guaranteed Party hereunder, the Company shall indemnify the Guarantor in an amount equal to the
greater of the book value or the fair market value of the assets so sold.
(b) The Guarantor (a
Contributing Guarantor
) agrees (subject to Section 4 hereof), that, in
the event a payment shall be made by any other guarantor covering any portion of the Guaranteed
Obligations, or assets of any other guarantor shall be sold to satisfy a claim of any Guaranteed
Party hereunder, and such other guarantor (the
Claiming Guarantor
) shall not have been fully
indemnified by the Company as provided in paragraph (a) above, the
Contributing Guarantor shall indemnify each Claiming Guarantor in an amount equal to the
amount of such payment or the greater of the book value or the fair market value of such assets, as
the case may be, in each case multiplied by a fraction of which the numerator shall be the net
worth of the Contributing Guarantor on the date hereof and the denominator shall be the aggregate
net worth of the Company and the Guarantor on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 22, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming
Guarantor pursuant to this paragraph (b) shall be subrogated to the rights of such Claiming
Guarantor under paragraph (a) above to the extent of such payment. As used herein, the term
net
worth
shall mean, as at any date of determination, the consolidated shareholders equity of the
Company and the Guarantor, as determined in each case on a consolidated basis in accordance with
GAAP.
SECTION 17.
Information
.
The Guarantor assumes all responsibility for being and
keeping itself informed of the Companys financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that the Guarantor assumes and incurs hereunder, and agrees that none
of the Guaranteed Parties will have any duty to advise the Guarantor of information known to it or
any of them regarding such circumstances or risks.
SECTION 18.
Representations and Warranties
.
The Guarantor represents and warrants as
to itself that all representations and warranties relating to it contained in Article 5 of the
Credit Agreement are true and correct.
SECTION 19.
Survival of Agreement
.
All agreements, representations and warranties
made herein shall survive the execution and delivery of this Guaranty, the Credit Agreement, the
making of the Loans, and the execution and delivery of the Notes and the other Credit Documents and
the issuance of Letters of Credit.
SECTION 20.
Counterparts
.
This Guaranty and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be deemed an original,
but all such counterparts together shall constitute but one and the same instrument.
SECTION 21.
Currency of Payment
. All payments to be made by the Guarantor hereunder
shall be made in the applicable currency as provided in Section 10.18 of the Credit Agreement and,
in the case of any required conversion of any currency, shall be determined, and the related
amounts calculated, in the manner provided in Section 10.18 of the Credit Agreement.
SECTION 22.
Additional Guarantors
.
Upon execution and delivery by any Subsidiary of
the Company of an instrument in the form of
Annex 1
, such Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named a Guarantor herein (each
an
Additional Guarantor
). The execution and delivery of any such instrument shall not require
the consent of the Guarantor. The rights and obligations of the Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of any Additional
Guarantor as a party to this Guaranty.
SECTION 23.
Termination of Guaranty
. In addition to termination upon payment in full
of all of the Guaranteed Obligations (subject to the last sentence of Section 2 hereof), all
obligations of the Guarantor to the Guaranteed Parties hereunder shall terminate upon the delivery
by the Company to the Administrative Agent of a certificate stating that (i) the aggregate
principal amount of Indebtedness of all Subsidiaries outstanding pursuant to Section 6.11(j) and
(k) of the Credit Agreement is equal to or less than the Subsidiary Debt Basket Amount, and (ii) no
Default or Event of Default has occurred and is continuing. Upon compliance with the foregoing,
the Administrative Agent and the Lender shall provide written confirmation of such termination as
may be reasonably requested by the Guarantor.
IN WITNESS WHEREOF
, the Guarantor and the Administrative Agent have caused this Guaranty to be
duly executed and delivered by their respective duly authorized officers as of the date first above
written.
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Address for Notices
:
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NOBLE HOLDING INTERNATIONAL
LIMITED
, a Cayman Islands exempted company
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c/o Maples & Calder
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limited by shares
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P.O. Box 309, Ugland House
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South Church Street, Georgetown
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By:
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/s/ Alan R. Hay
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Grand Cayman, Cayman Islands
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Name:
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Alan R. Hay
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British West Indies
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Title:
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Director
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CITIBANK, N.A.
(
Administrative Agent
)
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By:
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/s/ Robert Malleck
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Name:
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Robert Malleck
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Title:
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Director
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SECTION 16 OF THE
FOREGOING GUARANTY
ACKNOWLEDGED AND
AGREED TO:
NOBLE CORPORATION
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By:
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/s/ Alan R. Hay
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Name:
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Alan R. Hay
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Title:
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Director
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