EXHIBIT 99.4
GUARANTY
1. GUARANTY: To induce the Agent and the Lenders (as those terms are defined in
the Term Loan Agreement (as defined in Section 2)), in their sole discretion, to
make loans or extend or continue credit, including letters of credit, to Noble
Energy Mediterranean Ltd., a company formed under the laws of the Cayman Islands
(the "Borrower"), whether to the Borrower alone or to the Borrower and others,
and because Noble Energy, Inc., a Delaware corporation (the "Guarantor"), has
determined that executing this Guaranty is in its interest and to its financial
benefit, the Guarantor, as primary obligor and not merely as surety, absolutely
and unconditionally guarantees to the Agent and the Lenders the prompt payment
when due, whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter, of all Obligations of the Borrower now or hereafter existing
under the Term Loan Agreement, whether for principal, interest, fees, expenses
or otherwise (including, without limitation, all renewals, extensions agreed to
in writing by the Guarantor, and modifications thereof, as well as all interest,
fees and other monetary obligations incurred or accrued by the Agent or any
Lender during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding of the Borrower or the Guarantor, regardless of whether
allowed or allowable in such proceeding). The Guarantor further agrees to pay
all costs and expenses including, without limitation, all court costs and
reasonable attorneys' and paralegals' fees (including reasonable allocated costs
of in-house counsel and paralegals) and expenses paid or incurred by the Agent
or any Lender in endeavoring to collect all or any part of the Obligations from,
or in prosecuting any action against, the Borrower or the Guarantor for all or
any part of the Obligations (such costs and expenses, together with the
Obligations, collectively the "Guaranteed Debt"). The Guarantor further agrees
that the Guaranteed Debt may not be extended or renewed in whole or in part
without a prior written approval of the Guarantor in which the Guarantor agrees
to remain bound upon its guarantee for the period of any such extension or
renewal.
2. DEFINITIONS: Capitalized terms used but not defined herein shall, unless the
context otherwise requires, have the respective meanings given to them in that
certain Term Loan Agreement dated as of February 2, 2004, by and among the
Borrower, Bank One, NA, as administrative agent, and the lenders and the agents
party thereto, as amended, supplemented or restated from time to time (the "Term
Loan Agreement").
3. NATURE OF GUARANTY: This Guaranty is a guaranty of payment and not of
collection. The Guarantor waives any right to require the Lenders to xxx the
Borrower, any other guarantor, or any other person obligated for all or any part
of the Guaranteed Debt, or otherwise to enforce its payment against any
collateral securing all or any part of the Guaranteed Debt.
4. NO DISCHARGE OR DIMINISHMENT OF GUARANTY: Except as otherwise provided herein
and to the extent provided herein, the obligations of the Guarantor hereunder
are unconditional and absolute and not subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Guaranteed Debt), including: any claim of waiver, release,
extension, renewal, settlement, surrender, alteration, or compromise of any of
the Guaranteed Debt by operation of law or otherwise; any change in the
corporate existence, structure or ownership of the Borrower or any other
guarantor of or other person liable for any of the Guaranteed Debt, or any
insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower, or any other
guarantor of or other person liable for any of the Guaranteed Debt, or their
assets or any resulting release or discharge of any obligation of the Borrower,
or any other guarantor of or other person liable for any of the Guaranteed Debt;
or the existence of any claim, setoff or other rights which the Guarantor may
have at any time against the Borrower, any other guarantor of the Guaranteed
Debt, the Agent or any Lender, or any other person, whether in connection
herewith or in any unrelated transactions. The obligations of the Guarantor
hereunder are not subject to any defense or setoff, counterclaim, recoupment, or
termination whatsoever by reason of the invalidity, illegality, or
unenforceability of any of the Guaranteed Debt or otherwise, or any provision of
applicable law or regulation purporting to prohibit payment by Borrower or any
other guarantor of or other person liable for any of the Guaranteed Debt of the
Guaranteed Debt or any part thereof. Further, the obligations of the Guarantor
hereunder are not discharged or impaired or otherwise affected by: the failure
of the Agent or any Lender to assert any claim or demand or to enforce any
remedy with respect to all or any part of the Guaranteed Debt; any waiver or
modification of or supplement to any provision of any agreement relating to the
Guaranteed Debt; any release, non-perfection, or invalidity of any indirect or
direct security for the obligations of the Borrower for all or any part of the
Guaranteed Debt or any obligations of any other guarantor of or other person
liable for any of the Guaranteed Debt, or any action or failure to act by Agent
or any Lender with respect to any collateral securing any part of the Guaranteed
Debt; any default, failure or delay, willful or otherwise, in the payment or
performance of any of the Guaranteed Debt, or any other circumstance, act,
omission or delay that might in any manner or to any extent vary the risk of the
Guarantor or that would otherwise operate as a discharge of the Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
the Guaranteed Debt).
5. DEFENSES WAIVED: To the fullest extent permitted by applicable law, the
Guarantor waives any defense based on or arising out of any defense of the
Borrower or the unenforceability of all or any part of the Guaranteed Debt from
any cause, or the cessation from any cause of the liability of the Borrower,
other than the indefeasible payment in full in cash of the Guaranteed Debt.
Without limiting the generality of the foregoing, the Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and, to the fullest
extent permitted by law, any notice not provided for herein, as well as any
requirement that at any time any action be taken by any person against the
Borrower, any other guarantor of any of the Guaranteed Debt, or any other
Person. The Lenders may, at their election, foreclose on any security held by it
by one or more judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure or otherwise act or fail to act with respect to
any collateral securing all or a part of the Guaranteed Debt, compromise or
adjust any part of the Guaranteed Debt, make any other accommodation with the
Borrower, any other guarantor or any other person liable on any part of the
Guaranteed Debt or exercise any other right or remedy available to it against
the Borrower, any other guarantor or any other person liable on any of the
Guaranteed Debt, without affecting or impairing in any way the liability of the
Guarantor under this Guaranty except to the extent the Guaranteed Debt has been
fully and indefeasibly paid in cash. To the fullest extent permitted by
applicable law, the Guarantor waives any defense arising out of any such
election even though that election may operate, pursuant to applicable law, to
impair or extinguish any right of reimbursement or subrogation or other right or
remedy of the Guarantor against the Borrower,
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any other guarantor or any other person liable on any of the Guaranteed Debt,
as the case may be, or any security.
6. RIGHTS OF SUBROGATION: The Guarantor will not assert any right, claim or
cause of action, including, without limitation, a claim of subrogation,
contribution or indemnification that it has against the Borrower, any person
liable on the Guaranteed Debt, or any collateral, until the Borrower and the
Guarantor have fully performed all their obligations to the Agent and each
Lender.
7. REINSTATEMENT; STAY OF ACCELERATION: If at any time any payment of any
portion of the Guaranteed Debt is rescinded or must otherwise be restored or
returned upon the insolvency, bankruptcy, or reorganization of the Borrower or
otherwise, the Guarantor's obligations under this Guaranty with respect to that
payment shall be reinstated at such time as though the payment had not been made
and whether or not the Agent or any Lender is in possession of this Guaranty. If
acceleration of the time for payment of any of the Guaranteed Debt is stayed
upon the insolvency, bankruptcy or reorganization of the Borrower, all such
amounts otherwise subject to acceleration under the terms of any agreement
relating to the Guaranteed Debt shall nonetheless be payable by the Guarantor
forthwith on demand by the Agent or any Lender.
8. INFORMATION: The Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed Debt
and the nature, scope and extent of the risks that the Guarantor assumes and
incurs under this Guaranty, and agrees that the Agent and the Lenders do not
have any duty to advise the Guarantor of information known to it regarding those
circumstances or risks.
9. TERMINATION: The Agent and each Lender may continue to make loans or extend
credit to the Borrower based on this Guaranty until five days after it receives
written notice of termination from the Guarantor. Notwithstanding receipt of any
such notice, the Guarantor will continue to be liable to the Agent and each
Lender for any Guaranteed Debt created, assumed or committed to prior to the
fifth day after receipt of the notice, and all subsequent renewals, extensions,
modifications and amendments with respect to, or substitutions for, all or any
part of that Guaranteed Debt.
10. TAXES: All payments of the Guaranteed Debt will be made by the Guarantor
free and clear of and without deduction for or on account of any and all present
or future taxes, levies, imposts, duties, charges, deductions or withholdings of
whatever nature imposed by any governmental authority with respect to such
payments, and any and all liabilities with respect to the foregoing, but
excluding franchise taxes, income taxes and related taxes imposed on overall net
income or net profit of the Lender by the United States of America or any other
the jurisdiction in which the Lender's applicable Lending Installation is
located (collectively, "Taxes"). If the Guarantor is required by law to deduct
any Taxes from or in respect of any sum payable to the Lender under this
Guaranty, (a) the sum payable must be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this provision) the Lender receives an amount equal to the
sum it would have received had no such deductions been made, (b) the Guarantor
must then make such deductions,
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and must pay the full amount deducted to the relevant authority in accordance
with applicable law, and (c) the Guarantor must furnish to the Lender within 45
days after their due date certified copies of all official receipts evidencing
payment thereof.
11. SEVERABILITY: The provisions of this Guaranty are severable, and in any
action or proceeding involving any state corporate law, or any state, federal or
foreign bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of the Guarantor under this Guaranty
would otherwise be held or determined to be avoidable, invalid or unenforceable
on account of the amount of the Guarantor's liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the amount
of such liability shall, without any further action by the Guarantor or the
Agent or any Lender, be automatically limited and reduced to the highest amount
that is valid and enforceable as determined in such action or proceeding. This
Section with respect to the maximum liability of the Guarantor is intended
solely to preserve the rights of the Agent and the Lenders to the maximum extent
not subject to avoidance under applicable law, and neither the Guarantor nor any
other person or entity shall have any right or claim under this Section with
respect to such maximum liability, except to the extent necessary so that the
obligations of the Guarantor hereunder shall not be rendered voidable under
applicable law. The Guarantor agrees that the Guaranteed Debt may at any time
and from time to time exceed the maximum liability of the Guarantor without
impairing this Guaranty or affecting the rights and remedies of the Lenders
hereunder, provided that, nothing in this sentence shall be construed to
increase the Guarantor's obligations hereunder beyond its maximum liability.
12. REPRESENTATIONS BY GUARANTOR: The Guarantor represents that:
(a) Organization, etc. The Guarantor and each of its Restricted Subsidiaries is
a corporation, partnership, limited partnership or limited liability company, as
the case may be, validly organized and existing and in good standing under the
laws of the jurisdiction of its incorporation or organization. The Guarantor is
duly qualified to do business and is in good standing as a foreign entity in
each jurisdiction where the nature of its business requires such qualification,
and has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its obligations under this
Guaranty and to conduct its business substantially as currently conducted by it
(except where the failure to be so qualified to do business or be in good
standing or to hold any such licenses, permits and other approvals will not have
a Material Adverse Effect).
(b) Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by the Guarantor of this Guaranty are within the Guarantor's powers,
have been duly authorized by all necessary corporate action, and do not (i)
contravene the Guarantor's Organic Documents; (ii) contravene any contractual
restriction, law or governmental regulation or court decree or order binding on
or affecting the Guarantor; or (iii) result in, or require the creation or
imposition of, any Lien on any of the Guarantor's properties.
(c) Government Approval, Regulation, etc. No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or other Person is
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required for the due execution, delivery or performance by the Guarantor of this
Guaranty, except as have been obtained.
(d) Validity, etc. This Guaranty constitutes the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms except as
(i) enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditor's rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(e) Financial Information. The balance sheets of the Guarantor and each of its
consolidated Subsidiaries as at September 30, 2003 and the related statements of
earnings and cash flow, copies of which have been furnished to the Agent and
each Lender, have been prepared in accordance with GAAP consistently applied,
and present fairly the consolidated financial condition of the Persons covered
thereby as at the dates thereof and the results of their operations for the
periods then ended.
(f) No Material Adverse Change. As of the date hereof, since the date of the
financial statements described in clause (e), there has been no material adverse
change in the financial condition, operations, assets, business or properties of
the Guarantor and its Restricted Subsidiaries (on a consolidated basis).
(g) Solvency. After giving effect to any Loans under the Term Loan Agreement and
this Guaranty, the Guarantor is Solvent. As used herein, "Solvent" means, with
respect to a Person at any time, a condition under which (i) the fair valuation
of such Person's property is, on the date of determination, greater than the
total amount of such Person's debts (including contingent and unliquidated
liabilities) at such time; (ii) such Person is able to pay its debts as such
debts become due and owing; and (iii) such Person does not have unreasonably
small capital with which to conduct its business. For purposes of this
definition, the amount of a Person's contingent or unliquidated liabilities at
any time shall be that amount which, in light of all the facts and circumstances
then existing, represents the amount which can reasonably be expected to become
an actual or matured liability.
13. AFFIRMATIVE COVENANTS OF THE GUARANTOR: The Guarantor agrees with the Agent
and each Lender that, until all Commitments have terminated and all Obligations
have been paid and performed in full, the Guarantor will perform the obligations
set forth as follows:
(a) Financial Information, Reports, Notices, etc. The Guarantor will furnish, or
will cause to be furnished, to each Lender and the Agent copies of the following
financial statements, reports, notices and information:
(i) as soon as available and in any event within 45 days after the end of
each of the first three Fiscal Quarters of each Fiscal Year of the
Guarantor, consolidated balance sheets of the Guarantor and its
Subsidiaries as of the end of such Fiscal Quarter and consolidated
statements of earnings and cash flow of the Guarantor and its Subsidiaries
for such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending
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with the end of such Fiscal Quarter, certified by the chief financial
Authorized Officer of the Guarantor as having been prepared in accordance
with GAAP;
(ii) as soon as available and in any event within 90 days after the end of
each Fiscal Year of the Guarantor, a copy of the annual audit report for
such Fiscal Year for the Guarantor and its Subsidiaries, including therein
consolidated balance sheets of the Guarantor and its Subsidiaries as of
the end of such Fiscal Year and consolidated statements of earnings and
cash flow of the Guarantor and its Subsidiaries for such Fiscal Year, in
each case certified (without any Impermissible Qualification) as having
been prepared in accordance with GAAP in a manner acceptable to the Agent
and the Required Lenders by independent public accountants of recognized
national standing;
(iii)as soon as available and in any at the time of each delivery of
financial reports under subclauses (i) and (ii) above, a certificate,
executed by the chief financial Authorized Officer of the Guarantor,
showing (in reasonable detail and with appropriate calculations and
computations in all respects satisfactory to the Agent) compliance with
the financial covenants set forth in Section 7.2.3 of the Term Loan
Agreement;
(iv) promptly, and in any event within three Business Days after an
Authorized Officer of the Guarantor or any of its Subsidiaries becomes
aware of the existence of the occurrence of each Default, a statement of
the chief executive officer or the chief financial Authorized Officer of
the Guarantor setting forth details of such Default and the action which
the Guarantor has taken and proposes to take with respect thereto;
(v) promptly, and in any event within three Business Days after an
Authorized Officer of the Guarantor or any of its Subsidiaries becomes
aware of (x) the occurrence of any adverse development with respect to any
litigation, action, proceeding, or labor controversy described in Section
6.7 of the Term Loan Agreement which would have or reasonably be expected
to have a Material Adverse Effect, or (y) the commencement of any material
labor controversy, litigation, action, proceeding of the type described in
Section 6.7 of the Term Loan Agreement which would have or reasonably be
expected to have a Material Adverse Effect, notice thereof and copies of
all documentation relating thereto requested by the Agent or any Lender;
(vi) promptly after the sending or filing thereof, copies of all reports
and registration statements which the Guarantor or any of its Subsidiaries
files with the Securities and Exchange Commission or any national
securities exchange; and
(vii)immediately upon becoming aware of the institution of any steps by
the Guarantor or any other Person to terminate any Pension Plan, or the
failure to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under section 302(f) of
ERISA, or the taking of any action with respect to a Pension Plan which
could result in the requirement that the Guarantor furnish a bond or other
security to the PBGC or such Pension Plan, or the occurrence of any event
with respect to any Pension Plan which could result in the incurrence by
the Guarantor of any liability, fine or penalty, or any increase in the
contingent liability of the Guarantor with respect to any post-retirement
Welfare Plan benefit
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which would have or could reasonably be expected to have a Material
Adverse Effect, notice thereof and copies of all documentation relating
thereto.
14. DOMESTIC AND EURODOLLAR OFFICES; SETOFF: All terms of this Guaranty apply to
and may be enforced by or on behalf of any Domestic or Eurodollar Office.
Without limiting the rights of any Lender under applicable law, if the
Guaranteed Debt is then due, whether pursuant to any agreement evidencing the
Guaranteed Debt or otherwise, then the Guarantor authorizes each Lender to apply
any sums owing to it by the Guarantor or on deposit with such Lender or any
Domestic or Eurodollar Office toward the payment of the Guaranteed Debt by the
Guarantor under this Guaranty.
15. NOTICES: All notices, requests and other communications to any party under
this Guaranty must be in writing (including bank wire, facsimile transmission or
similar writing) and must be given to that party, in the case of the Guarantor,
at its address or facsimile number set forth on the signature page hereof and,
in the case of the Agent or any Lender, at its Head Office or as otherwise as
specified in a notice by one party to the other. Each notice, request or other
communication is effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified below and confirmation of receipt
is received, (ii) if given by mail, 72 hours after the communication is
deposited in the mails with first class postage prepaid, addressed as specified
above, or (iii) if given by any other means, when delivered at the address
specified above.
16. MISCELLANEOUS: No provision of this Guaranty may be amended, supplemented or
modified, or any of its terms and provisions waived, except by a written
instrument executed by the Agent and the Guarantor. No failure on the part of
the Agent or any Lender to exercise, and no delay in exercising, any right under
this Guaranty waives that right; nor does any single or partial exercise of any
right under this Guaranty preclude any other or further exercise of that or any
other right. The remedies provided in this Guaranty are cumulative and not
exclusive of any remedies provided by law. This Guaranty binds the Guarantor and
its successors and assigns, and benefits the Agent and the Lenders and their
successors and assigns; provided, however, that the Guarantor may not assign or
transfer any of its obligations hereunder without the prior written consent of
the Agent and all Lenders. The use of headings does not limit the provisions of
this Guaranty.
17. GOVERNING LAW: THIS GUARANTY IS TO BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAWS EXCEPT SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATION LAW.
18. FORUM CONSENT AND CONSENT TO JURISDICTION: ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
THE AGENT, THE LENDERS OR THE GUARANTOR SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE GUARANTOR HEREBY
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EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF
ITS OBLIGATIONS UNDER THIS GUARANTY.
19. WAIVER OF JURY TRIAL: THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE GUARANTOR. THE
GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THE TERM LOAN AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by an officer thereunto duly authorized as of the date
set forth below.
Dated: February 2, 2004 GUARANTOR:
Address for Notices: NOBLE ENERGY, INC.
Noble Energy, Inc.
000 Xxxxxxxxxxx, Xxxxx 000 By: /s/ Xxxxx X. XxXxxxxx
Xxxxxxx, XX 00000 ---------------------------
Attention: Xxxxx X. XxXxxxxx Name: Xxxxx X. XxXxxxxx
Telephone No.: (000) 000-0000 Title: Sr. VP, CFO and Treasurer
Facsimile No.: (000) 000-0000
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