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
”);
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 Guarantor’s 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
Guarantor’s 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
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