EXHIBIT 4.3
EXHIBIT D-1
AMENDED AND RESTATED PARENT GUARANTY
GUARANTY, dated as April 25, 2002, by NOBLE CORPORATION, a Cayman
Islands exempted company limited by shares ("Parent"), NOBLE HOLDING (U.S.)
CORPORATION, a Delaware corporation ("NHC"), and NOBLE DRILLING CORPORATION, a
Delaware corporation ("NDC"; Parent, NHC and NDC each a "Guarantor"), in favor
of JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, f/k/a Chase Bank of Texas,
National Association, as trustee ("Trustee") for the benefit of the Purchasers.
All capitalized terms used herein and not otherwise defined shall have the
meanings provided such terms in the Agreement referred to below.
WITNESSETH:
WHEREAS, Noble Drilling (Xxx Xxxxxxxx) Inc. (the "Company") entered
into a Note Purchase Agreement (the "Agreement"), dated December 21, 1998, among
the Company, the Trustee and the Purchasers, pursuant to which the Company
issued and sold, and the Purchasers purchased, the Notes referred to therein;
WHEREAS, NDC guaranteed the Obligations of the Company under the
Agreement and the Notes pursuant to a certain Parent Guaranty dated December 21,
1998 (the "Original Parent Guaranty") by NDC in favor of Trustee;
WHEREAS, NDC is contemporaneously herewith reorganizing its corporate
structure in order that, immediately after giving effect to such reorganization,
NDC will be a wholly-owned Subsidiary of NHC and NHC will be a wholly-owned
Subsidiary of Parent;
WHEREAS, the Company is a wholly-owned indirect Subsidiary of NDC, and
each Guarantor will continue to obtain benefits from the holding of the Notes by
the Purchasers, and it is a condition precedent to the consent of Purchasers to
such reorganization that the Original Parent Guaranty be amended and restated,
and that each Guarantor execute and deliver this Guaranty guaranteeing the
Obligations of the Company under the Agreement and the Notes;
WHEREAS, each Guarantor may reasonably be expected to benefit, either
directly or indirectly, from this Guaranty;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each Guarantor hereby agrees as
follows:
1. The Guaranty. In order to induce the Purchasers to continue to hold
the Notes and consent to such reorganization, and in recognition of the direct
benefits to be received by each Guarantor therefrom, each Guarantor hereby
jointly and severally unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, acceleration or otherwise, of any and all of the (x) Obligations
and (y) all other obligations (including which but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities owing
by the Company to the Purchasers under the Agreement (including, without
limitation, indemnities and interest thereon) now existing or hereafter incurred
under arising out of or in connection with the Agreement or any other Credit
Document and the due performance and compliance with the terms of the Credit
Documents by the Company (collectively, the "Guaranteed Obligations"), and
additionally each
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Guarantor hereby jointly and severally unconditionally and irrevocably
guarantees the performance of all obligations and covenants of the Company under
the SDDI Contract. If any of the Guaranteed Obligations becomes due and payable
hereunder, each Guarantor unconditionally promises to pay such indebtedness to
Secured Creditors, or order, on demand, together with (without duplication) any
and all expenses which may be incurred by Secured Creditors in collecting any of
the Guaranteed Obligations. This Guaranty is a continuing one and all
liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. If a claim is
ever made upon any Secured Creditor for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guaranteed Obligations
and any of the aforesaid payees repays all or part of said amount by reason of
(i) any judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property, including, but not limited
to any repayment by reason of a preferential payment or fraudulent transfer or
(ii) any settlement or compromise of any such claim effected by such payee with
any such claimant (including the Company), then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be
binding upon such Guarantor, notwithstanding any revocation of this Guaranty or
any other instrument evidencing any liability of the Company, and each Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
2. Bankruptcy. Additionally, each Guarantor unconditionally and
irrevocably guarantees the payment of any and all of the Guaranteed Obligations
to the Secured Creditors whether or not due or payable by the Company upon the
occurrence in respect of the Company of any of the events specified in Section
8.05 of the Agreement, and unconditionally promises to pay such indebtedness on
demand, in Dollars.
3. Nature of Liability. The liability of each Guarantor hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations whether executed by such Guarantor, any other guarantor
or by any other party, and the liability of each Guarantor hereunder is not
affected or impaired by (a) any direction as to application of payment by the
Company or by any other party or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations or (c) any payment on or in reduction of any such other
guaranty or undertaking or (d) any dissolution, termination or increase,
decrease or change in personnel by the Company.
4. Absolute and Independent Obligation. No invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any
security therefor shall affect, impair or be a defense to this Guaranty and this
Guaranty shall be primary, absolute and unconditional notwithstanding the
occurrence of any event or the existence of any other circumstances which might
constitute a legal or equitable discharge of a surety or guarantor except
irrevocable payment in full of the Guaranteed Obligations. The obligations of
each Guarantor hereunder are independent of the obligations of the Company, any
other guarantor or any other Person and a separate action or actions may be
brought and prosecuted against any Guarantor whether or not action is brought
against the Company or any such other guarantor or Person and whether or not the
Company, or any such other guarantor or other Person be joined in any such
action or actions. Each Guarantor waives, to the full extent permitted by law,
the benefit of any statute of limitations affecting its liability hereunder or
the enforcement hereof.
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5. Authorization. Each Guarantor authorizes the Secured Creditors
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed Obligations (including any increase or decrease
in the rate of interest thereon), any security therefor, or any
liability incurred directly or indirectly in respect thereof, and the
Guaranty herein made shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against any Credit
Party or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Company or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
substitute the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Company to its creditors other
than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Company to the Secured Creditors
regardless of what liability or liabilities of the Company remain
unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement, any other Credit Document or any of the
instruments or agreements referred to herein or therein, or otherwise
amend, modify or supplement this Agreement, any other Credit Document
or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge
of such Guarantor from its liabilities under this Guaranty.
6. Reliance. It is not necessary for the Secured Creditors to inquire
into the capacity or powers of the Company or the officers, directors, partners
or agents acting or purporting to act on their behalf, and any Guaranteed
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
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7. Subordination. Any of the indebtedness of the Company now or
hereafter owing to any Guarantor is hereby subordinated to the Guaranteed
Obligations. Prior to the transfer by any Guarantor of any note or negotiable
instrument evidencing any of the indebtedness of the Company to any Guarantor,
such Guarantor shall xxxx such note or negotiable instrument with a legend that
the same is subject to this subordination. Without limiting the generality of
the foregoing, each Guarantor hereby agrees with the Secured Creditors that it
will not exercise any right of subrogation which it may at any time otherwise
have as a result of this Guaranty (whether contractual, under law or otherwise)
until all Guaranteed Obligations have been irrevocably paid in full in cash.
8. Waiver. (a) Each Guarantor waives any right (except as cannot be
waived under law) to require any Secured Creditor to (i) proceed against the
Company, any other guarantor or any other party, (ii) proceed against or exhaust
any security held from the Company, any other guarantor or any other party or
(iii) pursue any other remedy in any Secured Creditor's power whatsoever. Each
Guarantor waives any defense based on or arising out of any defense of the
Company, any other guarantor or any other party, other than irrevocable payment
in full of the Guaranteed Obligations, based on or arising out of the disability
of the Company, any other guarantor or any other party, or the unenforceability
of the Guaranteed Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Company other than irrevocable
payment in full of the Guaranteed Obligations. The Secured Creditors may, at
their election, foreclose on any security held by the Collateral Trustee or any
other Secured Creditor by one or more judicial or nonjudicial sales, whether or
not every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the
Secured Creditors may have against the Company or any other party, or any
security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
irrevocably paid.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices (except notices expressly provided for in the Credit
Documents to be provided to such Guarantor), including, without limitation,
notices of nonperformance, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or incurring
of new or additional Guaranteed Obligations. Each Guarantor assumes all
responsibility for being and keeping itself informed of the Company's 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 which such Guarantor assumes and incurs hereunder, and agrees that the
Secured Creditors shall have no duty to advise any Guarantor of information
known to them regarding such circumstances or risks.
(c) Until such time as the Guaranteed Obligations have been irrevocably
paid in full in cash , each Guarantor hereby waives all rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under law, or otherwise) to the claims of the Secured Creditors
against the Company or any other guarantor of the Guaranteed Obligations and all
contractual, statutory or common law rights of reimbursement, contribution or
indemnity from the Company or any other guarantor which it may at any time
otherwise have as a result of this Guaranty.
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9. Enforcement. The Secured Creditors agree that this Guaranty may be
enforced only by the action of the Trustee, in each case acting upon the
instructions of the Required Purchasers and no Secured Creditor shall have any
right individually to seek to enforce or to enforce this Guaranty or to realize
upon the security to be granted by the Security Documents, it being understood
and agreed that such rights and remedies may be exercised by the Trustee for the
benefit of the Secured Creditors upon the terms of this Guaranty and the
Security Documents.
10. Representations, Warranties and Agreements. In order to induce the
Purchasers to accept this Guaranty and to continue to hold the Notes and consent
to the reorganization, each Guarantor makes the following representations and
warranties to, and agreements with, the Purchasers, all of which shall survive
the execution and delivery of this Guaranty:
(a) Corporate Status. Each Guarantor is a duly organized and validly
existing corporation in good standing under the laws of the
jurisdiction of its organization and has the corporate power and
authority to own its property and assets and to transact the business
in which it is engaged.
(b) Corporate Power and Authority. Each Guarantor has the corporate
power and authority to execute, deliver and carry out the terms and
provisions hereof and has taken all necessary corporate action to
authorize the execution, delivery and performance hereof. Each
Guarantor has duly executed and delivered this Guaranty and such
Guaranty constitutes the legal, valid and binding obligation of such
Guarantor enforceable against such Guarantor in accordance with its
terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in
equity or at law).
(c) No Violation. Neither the execution, delivery and performance by
any Guarantor of this Guaranty nor compliance with the terms and
provisions hereof, nor the consummation of the transactions
contemplated herein (i) will contravene any applicable provision of any
law, statute, rule, regulation, order, writ, injunction or decree of
any court or governmental instrumentality , (ii) will result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien upon any of the
property or assets of such Guarantor pursuant to the terms of, any
indenture, mortgage, deed of trust, agreement or other instrument to
which Parent or any of its Subsidiaries is a party or by which they or
any of their respective property or assets are bound or to which they
are subject, or (iii) will violate any provision of the Certificate of
Incorporation or Bylaws of such Guarantor.
(d) Litigation. There are no actions, suits or proceedings pending or,
to the knowledge of any Guarantor, after due inquiry, threatened with
respect to Parent or its Subsidiaries that are reasonably likely to
have a material adverse effect on the rights or remedies of the
Purchasers or on the ability of any Guarantor to perform its
obligations to them hereunder.
(e) Governmental Approvals. Except for the orders, consents, approvals,
licenses, authorizations, validations, recordings, registrations and
exemptions that have already
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been duly made or obtained and remain in full force and effect, no
order, consent, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, any foreign or
domestic governmental or public body or authority, or any subdivision
thereof, is required to authorize or is required in connection with (i)
the execution, delivery and performance hereof, or (ii) the legality,
validity, binding effect or enforceability hereof.
(f) Investment Company Act. No Guarantor nor any other Credit Party is
an "investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended.
(g) Public Utility Holding Company Act. No Guarantor nor any other
Credit Party is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(h) True and Complete Disclosure. All information (taken as a whole)
heretofore or contemporaneously furnished by or on behalf of any
Guarantor in writing to the Trustee or any Purchaser for purposes of or
in connection with the Agreement, this Guaranty or any transaction
contemplated herein is, and all other such information (taken as a
whole) hereafter furnished by or on behalf of such Guarantor in writing
to any Purchaser will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make
such information (taken as a whole) not misleading at such time in
light of the circumstances under which such information was provided.
There is no fact known to any Guarantor which is reasonably likely to
have a material adverse effect on the rights or remedies of the
Purchasers or on the ability of any Credit Party to perform its
respective obligations under any Credit Document to them, which has not
been disclosed herein or in such other documents, certificates and
statements furnished to the Trustee and the Purchasers for use in
connection with the transactions contemplated hereby.
(i) Financial Condition; Financial Statements. (i) On and as of the
Effective Date, on a pro forma basis after giving effect to all
Indebtedness incurred, and to be incurred, by the Credit Parties in
connection herewith, (x) the sum of the assets, at a fair valuation, of
each Guarantor on a consolidated basis taken as a whole will exceed its
debts, (y) each Guarantor on a consolidated basis taken as a whole will
not have incurred or intended to, or believe that it will, incur debts
beyond its ability to pay such debts as such debts mature and (z) each
Guarantor on a consolidated basis taken as a whole will not have
unreasonably small capital with which to conduct its business.
(ii) The consolidated balance sheet of NDC at December 31,
2001 and the related consolidated statements of operations and cash
flows of NDC for the fiscal year, as the case may be, ended as of said
date, which have been examined by PriceWaterhouseCoopers LLP,
independent certified public accountants, who delivered an unqualified
opinion in respect thereto, copies of which have heretofore been
furnished to each Purchaser, present fairly the financial position of
such entities at the dates of said statements and the results for the
period covered thereby in accordance with GAAP,
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except to the extent provided in the notes to said financial
statements. All such financial statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently applied except to the extent provided in the notes to said
financial statements. Nothing has occurred since December 31, 2001 that
has had or is reasonably likely to have a Material Adverse Effect on
the rights or remedies of the Purchasers hereunder, or on the ability
of any Guarantor to perform its obligations to them.
(iii) Except as reflected in the financial statements and the
notes thereto described in clause (ii) above, there were as of the
Effective Date no liabilities or obligations with respect to any
Guarantor of a nature (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in
aggregate, would be material to Parent on a consolidated basis and its
Subsidiaries taken as a whole, except as incurred subsequent to March
31, 1998 in the ordinary course of business consistent with past
practices.
(j) Tax Returns and Payments. Parent and each of its Subsidiaries has
filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid
all material taxes and assessments payable by it which have become due,
other than those not yet delinquent and except for those contested in
good faith. Parent and each of its Subsidiaries has paid, or has
provided adequate reserves (in the good faith judgment of the
management of Parent) for the payment of, all federal, state and
foreign income taxes applicable for all prior fiscal years and for the
current fiscal year to the date hereof.
(k) Employee Benefit Plans. (i) Neither Parent nor any of its
Subsidiaries nor any ERISA Affiliate has ever maintained or contributed
to (or had an obligation to contribute to) any Plan or any Foreign
Pension Plan where any current or reasonably foreseeable liability of
Parent or any of its Subsidiaries with respect to such Plan or such
Foreign Pension Plan would be reasonably likely to have a Material
Adverse Effect. All contributions required to be made with respect to
(x) any employee pension benefit plan (as defined in Section 3(2) of
ERISA) maintained or contributed to by (or to which there is an
obligation to contribute of) Parent, any of its Subsidiaries or an
ERISA Affiliate and (y) any Foreign Pension Plan have been timely made
except any such failures to contribute which would not individually or
in the aggregate be reasonably likely to have a Material Adverse
Effect. Parent and its Subsidiaries may cease contributions to or
terminate any employee benefit plan (within the meaning of Section 3(3)
of ERISA) maintained or contributed to by (or to which there is an
obligation to contribute of) them without incurring any liability
which, individually or in the aggregate would be reasonably likely to
have a Material Adverse Effect.
(ii) Each Foreign Pension Plan has been maintained in material
compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities.
(l) Pollution and Other Regulations. (i) Parent and its Subsidiaries
are in compliance with all applicable Environmental Laws governing its
business for which
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failure to comply is reasonably likely to have a Material Adverse
Effect, and neither Parent nor any of its Subsidiaries are liable for
any material penalties, fines or forfeitures for failure to comply with
any of the foregoing. All licenses, permits, registrations or approvals
required for the business of Parent and its Subsidiaries, as conducted
as of the Effective Date, under any Environmental Law have been secured
and Parent and its Subsidiaries are in compliance therewith, except
such licenses, permits, registrations or approvals the failure to
secure or to comply therewith is not likely to have a Material Adverse
Effect. Parent and its Subsidiaries are not in any respect in
noncompliance with, breach of or default under any applicable writ,
order, judgment, injunction, or decree to which Parent or any such
Subsidiary is a party or which would affect the ability of Parent and
its Subsidiaries to operate the Vessel or any facility and no event has
occurred and is continuing which, with the passage of time or the
giving of notice or both, would constitute noncompliance, breach of or
default thereunder, except in each such case, such noncompliance,
breaches or defaults as are not likely to, in the aggregate, have a
Material Adverse Effect. There are as of the Effective Date no
Environmental Claims pending or, to the knowledge, after due inquiry,
of Parent, threatened, against Parent or any of its Subsidiaries
wherein an unfavorable decision, ruling or finding would be reasonably
likely to have a Material Adverse Effect. There are no facts,
circumstances, conditions or occurrences on any real property, drilling
rig or facility owned or operated by Parent or any of its Subsidiaries
that is reasonably likely (x) to form the basis of an Environmental
Claim against Parent, the Vessel or facility owned by any Credit Party,
or (y) to cause the Vessel or facility to be subject to any
restrictions on its ownership, occupancy, use or transferability under
any Environmental Law, except in each such case, such Environmental
Claims or restrictions that individually or in the aggregate are not
reasonably likely to have a Material Adverse Effect.
(ii) Hazardous Materials have not at any time been (x)
generated, used, treated or stored on, or transported to or from, any
drilling rig or facility including the Vessel at any time owned or
operated by Parent or any of its Subsidiaries or (y) released on or
from any such drilling rig or facility, in each case where, to Parent's
knowledge, after due inquiry, such occurrence or event individually or
in the aggregate is reasonably likely to have a Material Adverse
Effect.
(m) Properties. Parent and its Subsidiaries have title to all material
properties owned by them, free and clear of all Liens, other than
Permitted Liens.
(n) Labor Relations. Neither Parent nor any of its Subsidiaries is
engaged in any unfair labor practice that is reasonably likely to have
a Material Adverse Effect. There is (i) no unfair labor practice
complaint pending against Parent or any of its Subsidiaries or
threatened against Parent or any of its Subsidiaries, before the
National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement
is pending against Parent or any of its Subsidiaries or, to Parent's
knowledge, after due inquiry, threatened against any of them, (ii) no
strike, labor dispute, slowdown or stoppage is pending against Parent
or any of its Subsidiaries or, to Parent's knowledge, after due
inquiry, threatened against Parent or any of its Subsidiaries and (iii)
no union representation petition existing with respect to
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the employees of Parent or its Subsidiaries and no union organizing
activities are taking place, except with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in
the aggregate, such as is not reasonably likely to have a Material
Adverse Effect.
(o) Rig Classification. The Vessel is classified in the highest class
available for rigs of its age and type with the American Bureau of
Shipping, Inc, Bureau Veritas, Det Norske Veritas, Lloyd's Register of
Shipping, or another internationally recognized classification society
reasonably acceptable to the Trustee, free of any material requirements
or recommendations.
(p) Patents, etc. Parent has obtained all patents, trademarks, service
marks, trade names, copyrights, licenses and other rights, free from
burdensome restrictions, that are necessary for the operation of its
business taken as a whole as presently conducted, and Parent knows of
no such rights the absence of which would be reasonably likely to have
a Material Adverse Effect.
(q) Representations In Mortgages. Each Guarantor hereby confirms each
representation and warranty of the Company set forth in the Mortgage.
11. Affirmative Covenants. Parent covenants and agrees that for so long
as this Agreement is in effect and until the Notes (together with interest),
Fees and all other Obligations incurred hereunder, are irrevocably paid in full:
(a) Information Covenants. Parent will furnish to the Trustee (with
sufficient copies for each of the Purchasers, and the Trustee will
promptly forward to each of the Purchasers):
(i) Annual Financial Statements. Within 120 days after the
close of each fiscal year of Parent, the consolidated balance sheet of
Parent and its Subsidiaries, as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and of
cash flows for such fiscal year, in each case setting forth comparative
consolidated figures for the preceding fiscal year, and examined by
independent certified public accountants of recognized national
standing whose opinion shall not be qualified as to the scope of audit
and as to the status of Parent and its Subsidiaries as a going concern
shall state that such financial statements present fairly, in all
material respects, the financial position of the companies being
reported upon and their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances. Such opinion shall be accompanied by a certificate of
such accountants stating that they have reviewed this Agreement and
stating further whether, in making their audit, they have become aware
of any condition or event that then constitutes a Default or an Event
of Default, and, if they are aware that any such condition or event
then exists, specifying the nature and period of the existence thereof
(it being understood that such accountants shall not be liable,
directly or indirectly, for any failure to obtain knowledge of any
Default or Event of Default unless such accountants should have
obtained knowledge thereof in making an audit in accordance with GAAP
or did not make such an audit),
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(ii) Quarterly Financial Statements. As soon as available and
in any event within 60 days after the close of each of the first three
quarterly accounting periods in each fiscal year, the consolidated
balance sheet of Parent and its Subsidiaries, as at the end of such
quarterly period and the related consolidated statements of income and
retained earnings and of cash flows for such quarterly period and for
the elapsed portion of the fiscal year ended with the last day of such
quarterly period, in each case setting forth comparative consolidated
figures for the related period in the prior fiscal year, subject to
changes resulting from audit and normal year-end audit adjustments.
(iii) Compliance Certificate. At the time of the delivery of
the financial statements provided for in clauses (i) and (ii) above, a
certificate of Parent signed by its Senior Vice President-Finance,
Controller or other Authorized Officer setting forth the calculations
required to establish whether Parent was in compliance with the
provisions of Section 12 hereof as at the end of such fiscal period or
year, as the case may be.
(iv) Notices. Promptly, and in any event (i) within ten
Business Days after Parent obtains knowledge thereof, notice of the
commencement of or any significant development in any litigation or
governmental proceeding pending against Parent which is likely to have
a Material Adverse Effect or (ii) within five days after Parent obtains
knowledge thereof, notice of any Default or Event of Default or a
default or event of default hereunder.
(v) Other Information. From time to time, such other
information or documents (financial or otherwise) as the Trustee or any
Purchaser may reasonably request.
(b) Books, Records, Inspection. Parent will, upon reasonable notice to
the Senior Vice President-Finance, Controller or any other Authorized
Officer of Parent, permit officers and designated representatives of
the Trustee (at the expense of the Trustee, but after the occurrence
and during the continuance of a Default or any Event of Default, at the
expense of Parent) or any Purchaser (at the expense of such Purchaser
but after the occurrence and during the continuance of a Default or an
Event of Default at the expense of Parent), to the extent necessary, to
examine the books of account of Parent and discuss the affairs,
finances and accounts of Parent with, and be advised as to the same by,
its and their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as the
Trustee or the Purchaser may desire.
(c) Maintenance of Property; Insurance. There will at all times be
maintained in full force and effect insurance on the Vessel in such
amounts with carriers of such insurance industry ratings, covering such
risks and liabilities and with such deductibles or self-insured
retentions as are in accordance with normal industry practice for
similarly situated insureds.
(d) Payment of Taxes. Parent will and will cause each of its
Subsidiaries to pay and discharge all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or
profits, or upon any properties belonging to it or its Subsidiaries,
prior to the date on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a Lien or charge upon any
properties of Parent or its
EXHIBIT D-1
Page 11
Subsidiaries, provided that the Company shall not be required to pay
any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings if it has maintained
adequate reserves (in the good faith judgment of the management of
Parent) with respect thereto.
(e) Consolidated Corporate Franchises. Parent will do, and will cause
each Credit Party to do, all things necessary to preserve and keep in
full force and effect its corporate existence, material rights and
authority, unless the failure to do so is not reasonably likely to have
a Material Adverse Effect, provided that any transaction permitted by
Section 7.02 of the Agreement will not constitute a breach of this
clause (d).
(f) Compliance with Statutes, etc. Parent and its Subsidiaries will
comply with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies, domestic
or foreign, in respect of the conduct of their business and the
ownership of their property other than those the non-compliance with
which would not have a Material Adverse Effect or would not have a
material adverse effect on the ability of any Credit Party to perform
its business or its respective obligations under any Credit Document to
which it is a party.
(g) Good Repair. Except in the event the Vessel has been damaged or has
suffered a casualty as to which (within a reasonable period of time)
management has not made a determination whether to replace or repair,
or if the determination to replace or repair has been made, as to which
such replacement or repairs are being undertaken, subject to
availability of equipment, materials and/or repair facilities, Parent
will, and will cause each Credit Party to, keep the Vessel, in
whomsoever's possession it may be, in good repair, working order and
condition, normal wear and tear excepted, and, subject to Section 7.02
of the Agreement, see that from time to time there are made in such
properties and equipment all needful and proper repairs, renewals,
replacements, extensions, additions, betterments and improvements
thereto, (i) to the extent and in the manner useful or customary for
companies in similar businesses and (ii) to the extent the failure to
do so is reasonably likely to cause a Material Adverse Effect.
(h) End of Fiscal Years; Fiscal Quarters. Parent will, for financial
reporting purposes, cause (i) its and its Subsidiaries fiscal years to
end on December 31 of each year and (ii) its fiscal quarters to end on
March 31, June 30, September 30 and December 31 of each year.
(i) ERISA. As soon as possible and, in any event, within 10 days after
Parent, any of its Subsidiaries or any ERISA Affiliate knows or has
reason to know that: (a) a material contribution required to be made
with respect to (i) any employee pension benefit plan (as defined in
Section 3(2) of ERISA) maintained or contributed to by (or to which
there is an obligation to contribute of) Parent, any of its
Subsidiaries or an ERISA Affiliate or (ii) any Foreign Pension Plan has
not been timely made or (b) Parent or any of its Subsidiaries may incur
any material liability pursuant to any employee welfare benefit plan
(as defined in Section 3(1) of ERISA) that provides benefits to retired
employees or other former employees (other than as required by Section
601 of ERISA) or any employee pension benefit plan (as defined in
Section 3(2) of ERISA), Parent or the Company will deliver to each of
the Purchasers a certificate of the Senior Vice
EXHIBIT D-1
Page 12
President-Finance or Controller of Parent setting forth details as to
such occurrence and the action, if any, that Parent, such Subsidiary or
such ERISA Affiliate is required or proposes to take, together with any
notices required or proposed to be given to or filed with or by Parent,
such Subsidiary, the ERISA Affiliate, a plan participant or the plan
administrator.
(j) Further Assurances. (i) Parent will, and will cause each other
Credit Party to, at the expense of such Credit Party, make, execute,
endorse, acknowledge, file and/or deliver to the Trustee, from time to
time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, power of
attorney, certificates, real property surveys, reports and other
assurances or instruments and take such further steps relating to the
Trustee or any Purchaser may reasonably require.
(ii) Parent agrees that each action required above by clause
(i) shall be completed as soon as possible, but in no event later than
30 days after such action is requested to be taken by the Trustee or
the Required Purchasers, provided that in no event shall Parent or any
of its Subsidiaries be required to take any action, other than using
its reasonable commercial efforts without any material expenditure, to
obtain consents or other actions from third parties with respect to its
compliance with clause (i) above.
12. Negative Covenants. Parent hereby covenants and agrees that as of
the Effective Date and thereafter for so long as this Guaranty is in effect and
until all Obligations guaranteed hereunder are irrevocably paid in full:
(a) Changes in Business. Parent will not materially alter the character
of its business taken as a whole from that conducted at the Effective
Date.
(b) Consolidation, Merger, Sale of Assets, etc. Parent will not and
will not permit any Credit Party to wind up, liquidate or dissolve its
affairs, or enter into any transaction of merger or consolidation, sell
or otherwise dispose of all or any part of the Collateral or agree to
do any of the foregoing at any future time, except that the following
shall be permitted:
(i) any Guarantor may be merged into Parent or any other
Credit Party and the Company may be merged into Parent; and
(ii) so long as no Default or Event of Default exists or would
result therefrom, on or after June 1, 2001 the Company may sell the
Vessel for cash at fair market value, provided that the proceeds of any
such disposition shall be applied to prepay the Notes in full in
accordance with Section 3.01 of the Agreement.
(c) Interest Coverage Ratio. Parent shall not permit the ratio at the
end of each fiscal quarter of (i) Adjusted Consolidated EBITDA to (ii)
Consolidated Interest Expense for the period of the four most recently
completed consecutive fiscal quarters of the Company to be less than
3.00:1.00.
EXHIBIT D-1
Page 13
(d) Leverage Ratio. Parent shall not permit the Leverage Ratio as of
the end of any fiscal quarter to be more than 0.40:1.00.
(e) Net Worth. Parent shall not permit Consolidated Net Worth as of the
end of any fiscal quarter to be less than $812,382,000 plus 50% of
Consolidated Net Income (determined on a cumulative basis) for all
Cumulative Net Income Periods ending prior to the date of determination
for which Consolidated Net Income was a positive number.
13. Miscellaneous.
(a) Calculations; Computations. The financial statements to be
furnished to the Purchasers pursuant hereto shall be made and prepared
in accordance with GAAP consistently applied throughout the periods
involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by Parent to the Purchasers), provided that (x)
except as otherwise specifically provided herein, all computations
determining compliance with Section 12, including definitions used
therein, shall utilize accounting principles and policies in effect at
the time of the preparation of, and in conformity with those used to
prepare, the December 31, 2001 historical financial statements of the
Company delivered to the Purchasers pursuant to Section 10(i), and (y)
that if at any time the computations determining compliance with
Section 12 utilize accounting principles different from those utilized
in the financial statements furnished to the Purchasers, such financial
statements shall be accompanied by reconciliation work-sheets.
(b) Notices. All notices and other communications provided for
hereunder shall be given as set forth in the Agreement (i) to each
Guarantor at the address set forth below its execution hereof, and (ii)
to Trustee and/or Purchasers at the addresses set forth in the
Agreement.
(c) Benefit of Agreement. This Guaranty shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, provided that no Guarantor may assign or
transfer any of its rights or obligations hereunder without the prior
written consent of the Purchasers.
(d) Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
Trial.
(i) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK. Any legal
action or proceeding with respect to this Guaranty may be brought in
the courts of the state of New York or of the United States for the
Southern District of New York, and, by execution and delivery of this
Guaranty, each Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts. Each Guarantor
further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage
prepaid, to such Guarantor located outside New York City and by hand
delivery to the Company located within New York City, at its address
for notices pursuant to Section 13(b) above, such service to become
effective 7 days after such mailing. Nothing herein shall affect the
right of the Trustee or any
EXHIBIT D-1
Page 14
Purchaser to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against any Guarantor
in any other jurisdiction.
(ii) Each Guarantor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Guaranty brought in the courts referred to in clause (i) above and
hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
(iii) Each Guarantor by its acceptance hereof, hereby
irrevocably waives all right to a trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Guaranty
or the transactions contemplated hereby.
(e) Headings Descriptive. The headings of the several sections and
subsections of this Guaranty are inserted for convenience only and
shall not in any way affect the meaning or construction of any
provision of this Guaranty.
(f) Amendment/Restatement. This Guaranty amends and restates the
Original Parent Guaranty in its entirety and is given in replacement
thereof.
14. Definitions. As used herein, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the term defined):
"Adjusted Consolidated EBITDA" shall mean for any period,
Consolidated EBITDA for such period, less cash dividends and cash taxes
paid during such period.
"Capital Lease" as applied to any Person shall mean any lease
of any property (whether real, personal or mixed) by that Person as
lessee which, in conformity with GAAP, is accounted for as a capital
lease on the balance sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of Parent or any of its Subsidiaries in each case
taken at the amount thereof accounted for as liabilities in accordance
with GAAP.
"Consolidated EBIT" shall mean, for any period, (A) the sum of
the amounts for such period of (i) Consolidated Net Income, (ii)
provisions for taxes based on income, (iii) Consolidated Interest
Expense, (iv) amortization or write-off of deferred financing costs to
the extent deducted in determining Consolidated Net Income and (v)
losses on sales of assets (excluding sales in the ordinary course of
business) and other extraordinary losses less (B) the amount for such
period of gains on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary gains, all as determined on
a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, the sum of
the amounts for such period of (i) Consolidated EBIT, (ii) depreciation
expense of Parent and its
EXHIBIT D-1
Page 15
Subsidiaries and (iii) amortization expense of Parent and its
Subsidiaries, all as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Indebtedness" shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all
Indebtedness (including the Notes) of Parent and its Subsidiaries on a
consolidated basis as determined in accordance with GAAP, excluding all
Contingent Obligations relating to the Indebtedness of any Person which
is included in the calculation of Consolidated Indebtedness of Parent
and its Subsidiaries.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that attributable to Capital Leases)
of Parent and its Subsidiaries in accordance with GAAP on a
consolidated basis with respect to all outstanding Indebtedness of
Parent and its Subsidiaries, provided that for purposes of this
definition only, "Indebtedness" shall be deemed to include all
indebtedness of Parent and its Subsidiaries which is otherwise excluded
pursuant to clause (y) of the proviso contained in the definition of
"Indebtedness".
"Consolidated Net Income" shall mean for any period, the net
income (or loss) of Parent and its Subsidiaries on a consolidated basis
for such period taken as a single accounting period determined in
conformity with GAAP.
"Consolidated Net Worth" shall mean, at any time,
shareholder's equity of Parent and its Subsidiaries on a consolidated
basis determined in accordance with GAAP.
"Contingent Obligations" shall mean as to any Person any
obligation of such Person guaranteeing or intending to guarantee any
Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent, (a) to
purchase any such primary obligation or any property constituting
direct or indirect security therefor, (b) to advance or supply funds
(i) for the purchase or payment of any such primary obligation or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor,
(c) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof, provided,
however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good
faith.
"Cumulative Net Income Period" shall mean each period
consisting of a fiscal quarter of the Company ending after March 31,
1998.
EXHIBIT D-1
Page 16
"GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect from time to time.
"Indebtedness" of any Person shall mean without duplication
(i) all indebtedness of such Person for borrowed money, (ii) the
deferred purchase price of assets or services which in accordance with
GAAP would be shown on the liability side of the balance sheet of such
Person, (iii) the face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any
Lien on any property owned by such first Person, whether or not such
indebtedness has been assumed, (v) all Capitalized Lease Obligations of
such Person, (vi) all obligations of such Person to pay a specified
purchase price for goods or services whether or not delivered or
accepted, (vii) all net obligations of such Person under Interest Rate
Agreements and (viii) all Contingent Obligations of such Person (other
than Contingent Obligations arising from the guaranty by such Person of
Permitted Indebtedness of the Company and/or its Subsidiaries) provided
that Indebtedness shall not include (x) trade payables and accrued
expenses, in each case arising in the ordinary course of business and
(y) indebtedness incurred by non-Credit Party Subsidiaries of Parent
which is non-recourse to Parent or any other Subsidiary of Parent.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar
agreement or other similar agreement or arrangement designed to protect
Parent against interest rate risk.
"Leverage Ratio" shall mean, at any date of determination, the
ratio of Consolidated Indebtedness on such date to Total Capitalization
on such date.
"Non-Recourse Subsidiary" shall mean any Subsidiary of Parent
which is the obligor with respect to any Indebtedness which is excluded
from the definition of "Indebtedness" pursuant to clause (y) of the
proviso contained therein.
"Total Capitalization" shall mean, at any time, the sum of
Consolidated Indebtedness and Consolidated Net Worth at such time.
EXHIBIT D-1
Page 17
IN WITNESS WHEREOF, each Guarantor has caused multiple counterparts
of this Agreement to be duly executed and delivered as of the date first above
written.
NOBLE CORPORATION
By: [Authorized Signator]
-----------------------------
Name:
Title:
NOBLE HOLDING (U.S.) CORPORATION
By: [Authorized Signator]
-----------------------------
Name:
Title:
NOBLE DRILLING CORPORATION
By: [Authorized Signator]
-----------------------------
Name:
Title:
Address for Notices:
00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Accepted and Agreed to:
JPMORGAN CHASE BANK
NATIONAL ASSOCIATION, as Trustee
By: [Authorized Signator]
-----------------------------
Name:
Title:
