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EXHIBIT 4.8
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REVOLVING CREDIT AGREEMENT
dated as of
October __, 1998
between
DU PONT ENERGY COMPANY
and
CONOCO INC.
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$500,000,000
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms................................................... 1
SECTION 1.02 [RESERVED]....................................................... 6
SECTION 1.03 Terms Generally................................................. 6
SECTION 1.04 Accounting Terms; GAAP.......................................... 7
ARTICLE II
THE CREDITS
SECTION 2.01 The Commitment.................................................. 7
SECTION 2.02 Loans........................................................... 8
SECTION 2.03 Request for Loan................................................ 8
SECTION 2.04 [RESERVED]....................................................... 8
SECTION 2.05 Funding of Loans................................................ 8
SECTION 2.06 [RESERVED]....................................................... 8
SECTION 2.07 [RESERVED]....................................................... 9
SECTION 2.08 Repayment of Loans; Evidence of Debt............................ 9
SECTION 2.09 Prepayment of Loans............................................. 9
SECTION 2.10 [RESERVED].......................................................10
SECTION 2.11 Interest........................................................10
SECTION 2.12 [RESERVED].......................................................11
SECTION 2.13 [RESERVED........................................................11
SECTION 2.14 Taxes............................................................11
SECTION 2.15 [RESERVED].......................................................12
SECTION 2.16 [RESERVED].......................................................12
SECTION 2.17 [RESERVED].......................................................12
SECTION 2.18 [RESERVED].......................................................12
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Organization Powers.............................................12
SECTION 3.02 Authorization; Enforceability...................................12
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SECTION 3.03 Governmental Approvals; No Conflicts............................13
SECTION 3.04 [RESERVED].....................................................13
SECTION 3.05 Litigation......................................................13
SECTION 3.06 Compliance with Laws and Agreements.............................13
SECTION 3.07 [RESERVED].....................................................13
SECTION 3.08 [RESERVED].....................................................13
SECTION 3.09 [RESERVED......................................................13
SECTION 3.10 [RESERVED].....................................................13
SECTION 3.11 Use of Credit...................................................13
SECTION 3.12 [RESERVED].....................................................14
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date..................................................14
SECTION 4.02 Each Credit Event...............................................15
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01 Financial Statements and Other
Information.................................................15
SECTION 5.02 Books and Records; Inspection Rights.............................16
SECTION 5.03 Compliance with Laws.............................................16
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01 Liens...........................................................16
SECTION 6.02 Fundamental Changes.............................................17
SECTION 6.03 Limitation on Indebtedness.......................................17
SECTION 6.04 Use of Credit....................................................17
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
[RESERVED]
ARTICLE IX
MISCELLANEOUS
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SECTION 9.01 Notices.........................................................20
SECTION 9.02 Waivers; Amendments.............................................20
SECTION 9.03 Expenses; Indemnity; Damage Waiver..............................21
SECTION 9.04 Assignments......................................................22
SECTION 9.05 Survival........................................................22
SECTION 9.06 Counterparts; Integration; Effectiveness........................23
SECTION 9.07 Severability. .................................................23
SECTION 9.08 [RESERVED].......................................................23
SECTION 9.09 Governing Law; Jurisdiction; Etc................................23
SECTION 9.10 WAIVER OF JURY TRIAL............................................24
SECTION 9.11 Headings........................................................25
SECTION 9.12 [RESERVED].......................................................25
Exhibit A - Form of Guaranty
Exhibit B - Form of Note
Exhibit C - Form of Loan Request
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CREDIT AGREEMENT dated as of October __, 1998, between DU PONT ENERGY
COMPANY (the "Lender") and CONOCO INC. (the "Borrower").
The Borrower has requested that the Lender make Loans from time to time
to it in an aggregate principal amount not exceeding $500,000,000 at any one
time outstanding. The Lender is prepared to make such loans upon the terms and
conditions hereof, and, accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Con trolled by or is under common Control with the Person specified.
"Applicable Rate" means, for any day, the LIBO Rate for such day plus
0.20% per annum.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Commitment Termination Date and the
date of termination of the Commitment.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Conoco Inc., a Delaware corporation (Charter No.
523126).
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
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"Change in Control" with respect to a Parent Company shall occur if (A)
the Permitted Holders (x) cease to be the beneficial owner, directly or
indirectly, of at least 50% of the aggregate total voting power of each Parent
Company, whether as a result of issuance of securities of a Parent Company, any
merger, consolidation, liquidation or dissolution of a Parent Company, any
direct or indirect transfer of securities by any Permitted Holders or otherwise,
or (y) do not have the ability by voting power, contract or otherwise to elect
or designate for election a majority of the Board of Directors of each Parent
Company or (B) the Borrower ceases to be wholly owned, directly or indirectly,
by each Parent Company. "Permitted Holders" are the Lender, DuPont and any other
Subsidiary of DuPont.
As used in this definition, "control" when used with respect to any
specified person means the power to direct the management and policies of such
person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by the Lender with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" shall mean the principal sum of $500,000,000.
"Commitment Termination Date" means October 11, 1999, subject to
extension as provided in Section 2.08(b).
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
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"dollars" or "$" or "funds" refers to lawful money of the United States
of America.
"DuPont" means E. I. du Pont de Nemours and Company.
"Effective Date" means the first date on which the conditions speci
fied in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Lender hereunder income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which the Lender is
organized or in which its principal office is located.
"Financial Officer" means the chief financial officer, treasurer or
controller of the Borrower, or any other individual to whom any of the chief
financial officer, treasurer or controller of the Borrower shall have delegated
in writing his or her authority to execute and deliver certificates and other
documents hereunder (which writing shall be forwarded to the Lender).
"GAAP" means generally accepted accounting principles from time to time
in the United States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantor" means Conoco Inc. (formerly Conoco Energy Company), a
Delaware corporation.
"Guaranty" means the Guaranty made by the Guarantor of the Borrower's
obligations hereunder substantially in the form of Exhibit A hereto.
"Indebtedness" of any Person means, (a) all obligations of such person
for borrowed money, including Indebtedness under this Agreement or with respect
to
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deposits or advances of any kind, (b) all obligations of such person evidenced
by bonds, debentures, notes or similar instruments, (c) all obligations of such
person upon which interest charges are customarily paid, (d) all obligations of
such person under conditional sale or other title retention agreements relating
to property or assets purchased by such person, (e) all obligations of such
person issued or assumed as the deferred purchase price of property or services,
(f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Mortgage on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all guarantees by such person
of Indebtedness of others which in the aggregate exceed Two Billion Dollars
($2,000,000,000) (provided that the Borrower will promptly notify the Lender of
the incurrence by the Borrower or one of its Subsidiaries of any guarantee of
Indebtedness of others), (h) all capital lease obliga tions of such person, and
(i) all securities or other similar instruments convertible or exchangeable into
any of the foregoing, but excluding (1) industrial revenue bonds, (2) operating
leases and (3) daily cash overdrafts associated with routine cash operations.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Payment Date" means the first Business Day of each calendar
month.
"Interest Period" means the period commencing on the date of such Loan
and ending on the numerically corresponding day in the calendar month that is
one month thereafter; provided, that (i) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next suc ceeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period.
"Lender" means Du Pont Energy Company, a Delaware corporation.
"LIBO Rate" means the rate per annum determined by the Lender on the
first Business Day of each calendar month to be the average of the offered rates
as of 11:00 A.M. (London time) for deposits of one month in dollars of an amount
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equal to $10,000,000 on each Business Day during the calendar month preceding
the month during which the determination of the LIBO Rate is being made, such
rates to be determined by reference to the Bloomberg page 3745 for such Business
Day. The LIBO Rate in effect from time to time shall remain in effect until (but
not including) the next date upon which the Lender shall make a determination of
the LIBO Rate.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party to acquire such
securities.
"Loan Request" means a request by the Borrower, signed by a Financial
Officer, for a Loan in accordance with Section 2.03.
"Loans" means the loans made by the Lender to the Borrower pursuant to
this Agreement.
"Margin Stock" means "margin stock" within the meaning of Regula tion U
of the Board.
"Other Taxes" means any and all present or future stamp or documen tary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Parent Company" means the Guarantor or any other person that, directly
or indirectly, through one or more intermediaries, controls the Borrower, other
than Lender, DuPont, and other Subsidiaries of DuPont. For purposes of this
definition, the Guarantor and its Subsidiaries shall not be deemed to be
Subsidiaries of Lender.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
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"Promissory Note" means the Promissory Note, in principal amount of
Seven Billion Five Hundred Million Dollars, dated as of July 20, 1998, by the
Borrower in favor of the Lender.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Restricted Property" means any shares of capital stock of a Subsid
iary of the Borrower and any manufacturing plant or facility or any mineral, oil
or gas producing property or any research facility owned by the Borrower or any
of its Subsidiaries except any such plant or facility or property or research
facility which, in the opinion of the Board of Directors of the Guarantor is not
a material asset of the Borrower or its Subsidiaries within the meaning of GAAP.
"Significant Subsidiary" shall have the meaning given to such term
under Rule 1-02 of Regulation S-X.
"Subsidiary" means (a) any corporation at least a majority of the
outstanding securities of which having ordinary voting power to elect a majority
of the board of directors of such corporation is at the time owned or controlled
directly or indirectly by such party and (b) any partnership, joint venture,
association, joint stock company, trust, unincorporated organization or other
entity, in which such party, directly or indirectly, has the power to elect or
direct the election of a majority of the members of the governing body of such
entity or otherwise has control over such entity (e.g., as the managing partner
of a partnership).
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental Author
ity.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
SECTION 1.02 [RESERVED]
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SECTION 1.03 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The world "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agree ment, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Lender that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision, regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then such
notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
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ARTICLE II
THE CREDITS
SECTION 2.01 The Commitment. Subject to the terms and condi tions set
forth herein, the Lender agrees to make Loans to the Borrower from time to time
during the Availability Period in an aggregate principal amount of $500,000,000.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Loans during the
Availability Period.
SECTION 2.02 Loans.
(a) Minimum Amounts. Each Loan shall be in an aggregate amount equal to
$10,000,000 or a larger integral multiple of $1,000,000.
(b) Limitations on Lengths of Interest Periods. Notwithstanding any
other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to continue, any Loan if the Interest Period requested with
respect thereto would end after the Commitment Termination Date.
SECTION 2.03 Request for Loan. To request a Loan, the Borrower shall
notify the Lender of such request by telephone not later than 11:00 a.m., New
York City time, two Business Days before the date of the proposed Loan (or such
other period as may be mutually agreed upon). Each such telephonic Loan Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Lender of a written Loan Request in a form attached hereto as
Exhibit C and signed by the Borrower. Each such telephonic and written Loan
Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Loan;
(ii) the date of such Loan, which shall be a Business Day; and
(iii) the location and number of the Borrower's bank account to which
funds are to be disbursed.
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SECTION 2.04 [RESERVED]
SECTION 2.05 Funding of Loans. The Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immedi
ately available funds by noon, New York City time, to the bank account of the
Borrower which was designated by the applicable Loan Request.
SECTION 2.06 [RESERVED]
SECTION 2.07 [RESERVED]
SECTION 2.08 Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to pay to
the Lender the outstanding principal amount of each Loan on the Commit ment
Termination Date.
(b) Commitment Extension Option. Subject to the express written consent
of the Lender, the Borrower may, by notice to the Lender not less than ninety
days prior to Commitment Termination Date, elect to extend the Commitment
Termination Date on one occasion to the date falling one hundred and eighty days
after the initial Commitment Termination Date or, if such date is not a Business
Day, the next preceding Business Day.
(c) Manner of Payment. Prior to any repayment or prepayment of any
Loans hereunder, the Borrower shall select the Loan or Loans to be paid and
shall notify the Lender by telephone (confirmed by telecopy) of such selection
not later than 11:00 a.m., New York City time, two Business Days before the
scheduled date of such repayment or prepayment.
(d) Promissory Note. The Loans made hereunder shall be evi denced by a
promissory note payable by the Borrower to the order of the Lender,
substantially in the form of Exhibit B hereto.
SECTION 2.09 Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at any time
to prepay any Loan in whole or in part, without premium or penalty, subject to
the requirements of this Section.
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(b) Mandatory Prepayments.
(i) On each day that the aggregate principal amount of the Loans
under this Agreement exceeds the Commitment, the Borrower shall repay
the Loans under this Agreement in an amount equal to the aggregate
amount of the Loans less the principal amount of the Com mitment.
(ii) On each day that the aggregate amount of the Borrower's and
its subsidiaries' cash and cash equivalents (including, without
limitation, the proceeds of any divestiture) exceeds $325,000,000, or
such higher amount as may be mutually agreed, the Borrower shall repay
the Loans under this Agreement in amount equal to such excess.
(iii) Upon DuPont's direct or indirect voting power in the Borrower
falling below 50% of the total outstanding voting power of the
Borrower, the Borrower shall repay the entire amount of the Loans under
this Agreement, the Commitment shall terminate and, upon repayment in
full of all principal and interest due under this Agree ment, this
Agreement shall terminate.
(c) Notices, Etc. The Borrower shall notify the Lender by telephone
(confirmed by telecopy) of any optional prepayment hereunder not later than
11:00 a.m., New York City time, two Business Days before the date of prepay
ment. Each such notice shall be irrevocable and shall specify the prepayment
date and the principal amount of each Loan or portion thereof to be prepaid.
Partial repayments shall be in whole multiples of $1,000,000. Prepayments shall
be accompanied by accrued interest to the extent required by Section 2.11 and
shall be made in the manner specified in Section 2.08(c).
SECTION 2.10 [RESERVED]
SECTION 2.11 Interest.
(a) Loans. The Loans shall bear interest at a rate per annum equal to
the Applicable Rate as in effect from time to time.
(b) Default Interest. Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon accelera-
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tion or otherwise, such overdue amount shall bear interest, after as well as
before judgment, at a rate per annum equal to 3% plus the prime rate charged by
X.X. Xxxxxx as in effect in New York City on the date of the non-payment.
(c) Payment of Interest. Accrued interest on each Loan shall be payable
in arrears on each Interest Payment Date for such Loan and upon termination of
the Commitment; provided that interest accrued pursuant to paragraph (b) of this
Section shall be payable on demand.
(d) Computation. All interest hereunder shall be computed on the basis
of a year of 360 days The LIBO Rate shall be determined by the Lender, and such
determination shall be conclusive absent manifest error.
SECTION 2.12 [RESERVED]
SECTION 2.13 [RESERVED]
SECTION 2.14 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Lender receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law. Lender agrees to take any reasonable action in order to avoid
incurrence of Indemnified Taxes or Other Taxes so long as Lender suffers no
legal, economic or other disadvantage.
(b) Payment of Other Taxes by the Borrower. In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by
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the Lender and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Govern mental
Authority.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the borrower to a Governmental Authority,
the Borrower shall deliver to the Lender the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Lender.
SECTION 2.15 [RESERVED]
SECTION 2.16 [RESERVED]
SECTION 2.17 [RESERVED]
SECTION 2.18 [RESERVED]
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that:
SECTION 3.01 Organization Powers. The Borrower and each of its
Significant Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, and has all
requisite power and authority to carry on its business as now conducted.
SECTION 3.02 Authorization; Enforceability. The Transactions are within
the Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, by all necessary shareholder action. This Agreement
has been duly executed and delivered by the Borrower and constitutes a legal,
valid and binding obligation of the Borrower, enforceable in accordance with its
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
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SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions (a)
do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws (or equivalent documents) of the
Borrower or any of its Significant Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instru ment binding upon the Borrower or any of its
Significant Subsidiaries or assets, or give rise to a right thereunder to
require any payment to be made by any such Person, and (d) will not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Significant Subsidiaries.
SECTION 3.04 [RESERVED]
SECTION 3.05 Litigation. There are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority now pending against or, to
the knowledge of the Borrower, threatened against or affecting the Borrower or
any of its Significant Subsidiaries that involve this Agreement or the
Transactions.
SECTION 3.06 Compliance with Laws and Agreements. Each of the Borrower
and its Significant Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property. No
Default has occurred and is continuing.
SECTION 3.07 Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.08 [RESERVED]
SECTION 3.09 [RESERVED]
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SECTION 3.10 [RESERVED]
SECTION 3.11 Use of Credit. The proceeds of the Loans will be used for
the working capital requirements of the Borrower and its Subsidiaries and for
other general corporate purposes. Neither the Borrower nor any of its Subsidiar
ies is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying Margin Stock, and no part of the proceeds of any
Loan hereunder will be used to buy or carry any Margin Stock.
SECTION 3.12 [RESERVED]
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date. The obligation of the Lender to make Loans
hereunder shall not become effective until the first date on which the Lender
shall have received each of the following documents, each of which shall be
satisfac tory to the Lender in form and substance (or such condition shall have
been waived in accordance with Section 9.02).
(a) Executed Counterparts. From each party hereto a
counterpart of this Agreement signed on behalf of such party and an
executed Guaranty duly signed and delivered by the Guarantor.
(b) Corporate Documents. Such documents and certificates as
the Lender or its counsel may reasonably request relating to the
organization, existence and good standing of the Borrower, the
authorization of the Trans actions and any other legal matters relating
to the Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administra tive Agent and its counsel.
(c) Officer's Certificate. A certificate, dated the Effective
Date and signed by the President or a Financial Officer of the
Borrower, confirm ing compliance with the conditions set forth in the
clauses (b) and (c) of the first sentence of Section 4.02.
(d) Note. A promissory note, duly completed and executed by
the Borrower for the Lender in substantially the form of Exhibit B
hereto.
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The Lender shall notify the Borrower of the Effective Date, and such
notice shall be conclusive and binding.
SECTION 4.02 Each Credit Event. The obligation of the Lender to make a
Loan is subject to the satisfaction of the following conditions:
(a) the Borrower shall have delivered to the Lender a
Loan Request;
(b) the representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the date
of such Loan; and
(c) at the time of and immediately after giving effect to such
Loan, no Default or Event of Default shall have occurred and be
continuing.
Each Loan shall constitute a representation and warranty made by the Borrower on
the date thereof as to the matters specified in the preceding sentence.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitment has expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full, the Borrower covenants and agrees with the Lender that:
SECTION 5.01 Financial Statements and Other Information. The Borrower
will furnish to the Lender:
(a) within nine (9) business days after the end of each
quarter and eleven (11) business days after the end of each fiscal
year, the unaudited balance sheet and income statement, or consolidated
balance sheet and income statement, if any, of the Borrower and its
Subsidiaries as at the end of such period in the form and substance
consistent with the current practice of the Borrower;
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(b) such financial information or documents in the possession
of the Borrower or any of its Subsidiaries as the Lender may reasonably
request; and
(c) on a monthly basis such management and other periodic
reports related to financial information in the form and substance
consistent with the current practice of the Borrower.
SECTION 5.02 Books and Records; Inspection Rights. The Borrower and its
Subsidiaries shall keep proper books of record and account in conformity with
GAAP and all requirements of applicable law. The Borrower will provide the
Lender reasonable access to the books and records of the Borrower and any of its
Subsidiaries as the Lender may from time to time reasonably request.
SECTION 5.03 Compliance with Laws. The Borrower shall, and shall cause
each of its Subsidiaries to, comply in all material respects with all applicable
laws, rules, statutes, regulations, decrees 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.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitment has expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full, the
Borrower covenants and agrees with the Lender that:
SECTION 6.01 Liens. Without the Lender's prior written consent, the
Borrower agrees that neither it nor any of its Subsidiaries will issue, assume
or guarantee any notes, bonds, debentures or other similar evidences of
Indebtedness for money borrowed secured by a mortgage, lien, pledge or other
encumbrance ("Mort gages") upon any Restricted Property without effectively
providing that concurrently with issuance, assumption or guaranty of any such
Indebtedness that the obligations under this Agreement (together with, if the
Borrower so determines, any other Indebtedness or obligation then existing or
thereafter created ranking equally with the obligations under this Agreement)
shall be secured equally and ratably with (or prior to) such Indebtedness so
long as such Indebtedness shall be so secured, except that this restriction will
not apply to: (i) Mortgages relating to pollution control or industrial revenue
bonds; and (ii) Mortgages required by any contract or statute in
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order to permit the Borrower or any of its Subsidiaries to perform any contract
or subcontract made by it with or at the request of the United States of
America, any state or any department, agency or instrumentality or political
subdivision of either.
The Borrower agrees that if, upon any consolidation or merger of the Bor
rower with or into any other corporation, or upon any sale or conveyance of all
or substantially all of its property to any other corporation, any of the
Restricted Property of the Borrower or of any of its Subsidiaries would
thereupon become subject to any Mortgage, the Borrower will first secure the
obligations under this Agreement equally and ratably with any obligations of the
Borrower or any of its Subsidiaries then entitled thereto, by a direct lien on
all such property prior to all liens other than any theretofore existing
thereon.
For the purposes of this Section, the following types of transactions shall
not be deemed to create Indebtedness secured by a Mortgage: the sale or other
transfer of (i) oil, gas, coal, uranium, copper or other minerals in place for a
period of time until, or in an amount such that, the purchaser will realize
therefrom a specified amount of money (however determined) or a specified amount
of such minerals, or (ii) any other interest in property of the character
commonly referred to as a "production payment."
SECTION 6.02 Fundamental Changes. Without the Lender's prior written
consent, the Borrower will not, and will not permit its Significant Subsidiar
ies to enter into any merger or consolidation, or liquidate, wind-up or dissolve
(or suffer any liquidation or dissolution), discontinue its business or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of its business or property, whether now
or hereafter acquired.
SECTION 6.03 Limitation on Indebtedness. Without the prior written
consent of the Lender, the Borrower will not, and will not permit any of its
Subsid iaries to, and the Subsidiaries of the Borrower will not, incur any
Indebtedness other than Indebtedness owed to the Borrower or to a wholly owned
Subsidiary of the Borrower; provided, however, that the Borrower may incur
Indebtedness in order to repay the Promissory Note.
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SECTION 6.04 Use of Credit. The proceeds of the Loans will only be used
for the working capital requirements of the Borrower and its Subsidiaries and
for other general corporate purposes. The Borrower and its Subsidiaries will not
engage principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock, and no part of the proceeds of any Loan
hereunder will be used to buy or carry any Margin Stock.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall default in the payment when due of any
principal of or interest on the Indebtedness under this Agreement and
such default shall continue for five days;
(b) any representation or warranty made by the Borrower herein
or in any certificate or statement delivered pursuant hereto shall
prove to be false or misleading in any material respect at any time;
(c) the Borrower shall fail to perform or observe any other
agreement, covenant or obligation arising hereunder; provided, that any
failure pursuant to Article 5 hereof shall be continuing fifteen days
after notice thereof to Borrower;
(d) the Borrower, any of its Subsidiaries or a Parent Company
shall default in the payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) of any amount
owing in respect of any Indebtedness for borrowed money in excess, in
the aggregate, of Fifty Million Dollars ($50,000,000) in principal
outstanding Indebtedness and such default continues after any
applicable grace period; or the Borrower, any of its Subsidiaries or a
Parent Company shall default in the performance or observance of any
obligation or condition with respect to any such Indebtedness or any
other event shall occur or condition shall exist, if the effect of such
default, event or condition is to accelerate the maturity of any
Indebtedness having an aggregate principal amount in excess of Fifty
Million Dollars ($50,000,000), or to permit the holder or holders
thereof, or any trustee or agent for such holders, to accelerate the
maturity of any Indebt-
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edness having an aggregate principal amount in excess of Fifty Million
Dollars ($50,000,000), or any Indebtedness having an aggregate
principal amount in excess of Fifty Million Dollars ($50,000,000) shall
become or be declared to be due and payable prior to its stated
maturity other than as a result of a regularly scheduled payment;
(e) (i) the Borrower shall commence a voluntary case
concerning itself under the Bankruptcy Code; or (ii) an involuntary
case is commenced against the Borrower and the petition is not
dismissed within 30 days after commencement of the case; or (iii) a
custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of the
Borrower or the Borrower commences any other proceedings under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the
Borrower or there is com menced against the Borrower any such
proceeding which remains undismissed for a period of thirty days; or
(iv) any order of relief or other order approving any such case or
proceeding is entered; or (v) the Borrower is adjudicated insolvent or
bankrupt; or (vi) the Borrower suffers any ap pointment of any
custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 30 days; or (vii) the
Borrower makes a general assignment for the benefit of creditors; or
(viii) the Borrower shall fail to pay, or shall state that it is unable
to pay, its debts generally as they become due; or (ix) the Borrower
shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts; or (x) the Borrower shall by
any act or failure to act consent to, approve of or acquiesce in any of
the foregoing; or (xi) any corporate action is taken by the Borrower
for the purpose of effecting any of the foregoing;
(f) a Change of Control of a Parent Company; or
(g) any default or event of default shall occur under the
Promis sory Note;
then, and in every such event, and at any time thereafter during the continuance
of such event, the Lender may in its sole discretion (except in the case of an
Event of Default occurring under clause (e) above, in which case both of the
following will occur automatically) take either or both of the following
actions, at the same or different times: (i) declare the unpaid principal amount
of and any and all accrued and unpaid interest on the Indebtedness under this
Agreement and any and all other
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obligations pursuant to this Agreement, and the same shall thereupon be, immedi
ately due and payable with all additional interest from time to time accrued
thereon and without presentation, demand, or protest or other requirements of
any kind (including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of
acceleration), all of which are hereby expressly waived by Borrower; or (ii)
terminate the Commitment, and thereupon the Commitment shall terminate
immediately.
ARTICLE VIII
[RESERVED]
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Lender, to it at Du Pont Energy Company,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention of Xxxxxx
Xxxxxxxxx, D-8045 (Telecopy No. 302-774-1829); and
(b) if to the Borrower, to it at 000 Xxxxx Xxxxx Xxxxxxx,
Xxxxxxx, Xxxxx 00000-0000, Attention of Treasurer, ML 3060 (Telecopy
No. 281-293-2819).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other party hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02 Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the
Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
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any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Lender hereunder are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan
shall not be construed as a waiver of any Default, regardless of whether the
Lender may have had notice or knowledge of such Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and Lender.
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses incurred by the Lender, including the fees, charges and
disbursements of any counsel for the Lender, in connection with the enforcement
or protection of its rights in connection with this Agreement, including its
rights under this Section, or in connection with the Loans made hereunder,
including in connec tion with any workout, restructuring or negotiations in
respect thereof.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Lender, and each Related Party of the Lender (each such Person being called an
"Indemnitee") against, and shall hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) any Loan or the use of the proceeds therefrom or the
existence of the Commitment and (ii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
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(c) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, each party hereto shall not assert, and hereby waives, any claim
against any other party hereto or any Indemnitee, on any theory of liabil ity,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or the use of the proceeds thereof.
(d) Payments. All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 9.04 Assignments. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Lender (and any attempted assignment or transfer by
the Borrower without such consent shall be null and void). Nothing in this
Agreement, express or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of the Lender) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
SECTION 9.05 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other instru
ments delivered in connection with or pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the making of any Loans,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstand ing and unpaid and so long as the
Commitment has not expired or terminated. The provisions of Sections 2.14 and
9.03 shall survive and remain in full force and effect (but in the case of
Section 2.14, only for a period of one year after the payment in full of the
principal of and interest on the Loans and all other amounts payable hereunder
and the expiration or termination of the Commitment) regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitment or the termination of
this Agree ment or any provision hereof.
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SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts, each of which shall constitute an original, but
all of which when taken together shall constitute a single contract. This
Agreement constitutes the entire contract among the parties relating to the
subject matter hereof and supersedes any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Lender and when the Lender shall have received
counterparts hereof which, when taken together, bear the signatures hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08 [RESERVED]
SECTION 9.09 Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdic tion of the Supreme Court of the State of New York sitting in New York
County and of the United States District Count of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Now York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judg ment or in any other manner
provided by law. Nothing in this Agreement shall affect any right
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that the Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(c) Waiver of Venue. The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
9.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEM PLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REP RESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
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SECTION 9.12 [RESERVED]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
DU PONT ENERGY COMPANY
By
----------------------------------------
Name:
Title:
CONOCO INC.
By
----------------------------------------
Name:
Title:
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Exhibit A to the Revolving
Credit Agreement
GUARANTY
Conoco Inc. (formerly Conoco Energy Company) (the
"Guarantor"), as primary obligor and not merely as surety, on October [__],
1998, hereby unconditionally guarantees (the "Guaranty") (i) the due and
punctual payment of the principal of and interest under that certain Revolving
Credit Agreement, dated as of October [__], 1998 (the "Credit Agreement"),
between Du Pont Energy Company (the "Lender") and Conoco Inc. (the "Borrower"),
subject to any applicable grace periods, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on the overdue principal
and interest, if any, on the Credit Agreement, to the extent lawful, and the
due and punctual performance of all other obligations of the Borrower all in
accordance with the terms set forth in the Credit Agreement and (ii) in case of
any extension of time of payment or renewal of the Credit Agreement or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise (all such obligations guaranteed
hereby by the Guarantor being the "Guaranteed Obligations"). Capitalized terms
used herein but not otherwise defined herein shall have the meanings ascribed
thereto in the Credit Agreement.
This Guaranty is irrevocable, absolute, present and
unconditional. The Guarantor guarantees that the Guaranteed Obligations will
be paid strictly in
32
accordance with the terms of the Credit Agreement regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Lender with respect thereto. The
obligations of the Guarantor under this Guaranty are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other guarantor or
whether the Borrower or any other guarantor is joined in any such action or
actions. The liability of the Guarantor under this Guaranty shall be absolute
and unconditional irrespective of:
(i) any lack of validity or enforceability
of the Credit Agreement with respect to the Borrower or any agreement
or instrument relating thereto;
(ii) any change in the time, manner or
place of payment of, or in any other term of, all or any of the
Guaranteed Obligations, or any other amendment or waiver of or any
consent to departure from the Credit Agreement;
(iii) the failure to give notice to the
Guarantor of the occurrence of an Event of Default under the
provisions of the Credit Agreement;
(iv) any failure, omission, delay by or
inability on the part of the Lender to assert or exercise any right,
power or remedy conferred on the Lender in the Credit Agreement;
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33
(v) any change in the corporate structure,
or termination, dissolution, consolidation or merger of the Borrower
or any guarantor with or into any other entity, the voluntary or
involuntary liquidation, dissolution, sale or other disposition of all
or substantially all the assets of the Borrower or the Guarantor, the
marshaling of the assets and liabilities of the Borrower or any
guarantor, the receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition
with creditors, or readjustment of, or other similar proceedings
affecting the Borrower or any guarantor, or any of the assets of any
of them;
(vi) the assignment of any right, title or
interest of the Lender in the Credit Agreement to any other person; or
(vii) any other event or circumstance
(including any statute of limitations), whether foreseen or unforeseen
and whether similar or dissimilar to any of the foregoing, that might
otherwise constitute a defense available to, or a discharge of, the
Borrower or a guarantor, other than payment in full of the Guaranteed
Obligations; it being the intent of the Guarantor that its obligations
hereunder shall not be discharged except by payment of all amounts
owing pursuant to the Credit Agreement.
This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment or performance with respect to
any of the
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Guaranteed Obligations is rescinded or must otherwise be returned by the
Lender, upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, all as though such payment or performance had not been made or
occurred. The obligations of the Guarantor under this Guaranty shall not be
subject to reduction, termination or other impairment by any set-off,
recoupment, counterclaim or defense or for any other reason.
The Guarantor hereby irrevocably waives, to the extent
permitted by applicable law:
(i) promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty;
(ii) any requirement that the Lender or any
other person protect, secure, perfect or insure any lien or any
property subject thereto or exhaust any right or take any action
against the Borrower or any other person or any collateral, or obtain
any relief pursuant to the Credit Agreement or pursue any other
available remedy;
(iii) all right to trial by jury in any
action, proceeding or counterclaim arising out of or relating to the
Credit Agreement;
(iv) any defense arising by reason of any
claim or defense based upon an election of remedies by the Lender
which in any manner impairs, reduces, releases or otherwise adversely
affects
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its subrogation, contribution or reimbursement rights or other rights
to proceed against the Borrower or any other person; and
(v) any duty on the part of the Lender to
disclose to the Guarantor any matter, fact or thing relating to the
business, operation or condition of the Borrower and its assets now
known or hereafter known by the Lender.
Until the Commitment has expired or terminated and the
principal of and interest on each Loan and all fees payable under the Credit
Agreement have been paid in full, the Guarantor covenants and agrees with the
Lender that:
(i) Without the Lender's prior written
consent, the Guarantor agrees that neither it nor any of its
Subsidiaries will issue, assume or guarantee any notes, bonds,
debentures or other similar evidences of Indebtedness for money
borrowed secured by a mortgage, lien, pledge or other encumbrance
("Mortgages") upon any Restricted Property (as defined below) without
effectively providing that concurrently with issuance, assumption or
guaranty of any such Indebtedness that the obligations under the
Credit Agreement (together with, if the Guarantor so determines, any
other Indebtedness or obligation then existing or thereafter created
ranking equally with the obligations under the Credit Agreement) shall
be secured equally and ratably with (or prior to) such Indebtedness so
long as such Indebtedness shall be so secured, except that this
restriction will not apply to:
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(i) Mortgages relating to pollution control or industrial revenue
bonds; and (ii) Mortgages required by any contract or statute in order
to permit the Guarantor or any of its Subsidiaries to perform any
contract or subcontract made by it with or at the request of the
United States of America, any state or any department, agency or
instrumentality or political subdivision of either.
The Guarantor agrees that if, upon any
consolidation or merger of the Guarantor with or into any other
corporation, or upon any sale or conveyance of all or substantially
all of its property to any other corporation, any of the Restricted
Property of the Guarantor or of any of its Subsidiaries would
thereupon become subject to any Mortgage, the Guarantor will first
secure the obligations under the Credit Agreement equally and ratably
with any obligations of the Guarantor or any of its Subsidiaries then
entitled thereto, by a direct lien on all such property prior to all
liens other than any theretofore existing thereon.
For the purposes of this Section, the following
types of transactions shall not be deemed to create Indebtedness
secured by a Mortgage: the sale or other transfer of (i) oil, gas,
coal, uranium, copper or other minerals in place for a period of time
until, or in an amount such that, the purchaser will realize therefrom
a specified amount of money (however determined) or a specified amount
of such minerals, or (ii) any other interest in property of the
character commonly referred to as a "production payment."
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"Restricted Property" means any shares of capital
stock of a Subsidiary of the Guarantor and any manufacturing plant or
facility or any mineral, oil or gas producing property or any research
facility owned by the Guarantor or any of its Subsidiaries except any
such plant or facility or property or research facility which, in the
opinion of the Board of Directors of the Guarantor, is not a material
asset of the Guarantor or its Subsidiaries within the meaning of GAAP.
(ii) Without the Lender's prior written
consent, the Guarantor will not, and will not permit its Significant
Subsidiaries to enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution),
discontinue its business or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or
substantially all of its business or property, whether now or
hereafter acquired.
(iii) Without the prior written consent of
the Lender, the Guarantor will not, and will not permit any of its
Subsidiaries to, and the Subsidiaries of the Guarantor will not, incur
any Indebtedness other than Indebtedness owed to the Guarantor or to a
wholly owned Subsidiary of the Guarantor.
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IN WITNESS WHEREOF, the Guarantor has caused its duly
authorized officer to execute and deliver this Guaranty as of the day and year
first written above..
CONOCO INC.
(FORMERLY CONOCO ENERGY COMPANY)
By:________________________
Name:
Title:
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