1
EXHIBIT 4
EXECUTION COPY
CREDIT AGREEMENT
DATED AS OF JULY 30, 2001
CREDIT AGREEMENT (this "AGREEMENT") dated as of July 30, 2001
between Amerada Xxxx Corporation, a Delaware corporation (the "BORROWER"), and
Citibank, N.A. ("CITIBANK"). Capitalized terms not otherwise defined in this
Agreement shall have the same meanings as specified therefor in the Third
Amended and Restated Credit Agreement dated as of January 23, 2001 in respect of
Facility A (as in effect on the date hereof, the "EXISTING CREDIT AGREEMENT")
among the Borrower, the lenders party thereto, Xxxxxxx Sachs Credit Partners
L.P., as joint book runner, joint lead arranger and sole syndication agent,
Chase Securities Inc., as joint book runner and joint lead arranger, Bank of
America, N.A., Citibank, N.A. and Barclays Bank PLC, as co-documentation agents
and arrangers, and The Chase Manhattan Bank, as administrative agent for such
lenders.
SECTION 1. The Advances. (a) Citibank hereby agrees, on the
terms and conditions hereinafter set forth, to make advances (each, an
"ADVANCE") to the Borrower from time to time on any Business Day during the
period from the date of this Agreement to (but not including) the Termination
Date in an aggregate principal amount not to exceed $1,000,000,000 at any time
outstanding (the "FACILITY"). Within the limits of the unused portion of the
Facility in effect from time to time, the Borrower may borrow under this Section
1(a), prepay pursuant to Section 1(e) and reborrow under this Section 1(a).
(b) Each Advance shall be made on the same Business Day's
notice for Advances bearing interest by reference to the Base Rate (as defined
below) ("BASE RATE ADVANCES") and on three Business Days' notice for Advances
bearing interest by reference to the Adjusted LIBO Rate ("EURODOLLAR RATE
ADVANCES") subject to a notice of borrowing (a "NOTICE OF BORROWING") being
delivered to Citibank not later than 11:00 A.M. (New York City time) on the
applicable notice date which sets forth the same information and provides the
same certifications and assurances as are required to be included in comparable
Borrowing Request delivered under the Existing Credit Agreement. Upon
fulfillment of the applicable conditions set forth in Sections 2, if applicable,
and 3, Citibank will make the proceeds of such Advance available to the Borrower
at the account specified by the Borrower in the related Notice of Borrowing. All
Notices of Borrowing may be delivered by telephone and confirmed in writing. For
purposes of this Agreement, "BASE RATE" means, for any day, a fluctuating rate
per annum in effect from time to time, which rate per annum shall be equal to
the higher of (a) the rate of interest publicly announced by Citibank in New
York, New York as its base rate in effect on such day and (b) the sum of (i) 1/2
of 1% per annum and (ii) the Federal Funds Effective Rate in effect on such day.
(c) The Facility shall be automatically terminated and the
Borrower shall repay to Citibank the aggregate principal amount of all
outstanding Advances, together with accrued and unpaid interest thereon, on the
earlier of July __, 2003 and the date of the termination of the Facility in full
pursuant to Section 1 hereof or Article VII of the Existing Credit Agreement as
incorporated herein by reference (the "TERMINATION DATE"). Upon the issuance by
the Borrower or any of its Subsidiaries of any debt security in the capital
markets with a maturity in excess of one year and in an amount of $100,000,000
or more, the Facility shall automatically reduce by an amount equal to the net
cash proceeds from any such issuance on the Business Day next following the date
of receipt by the Borrower or its Subsidiaries of such proceeds.
(d) The Borrower may, upon at least three Business Days'
notice to Citibank, terminate in whole or reduce in part the unused portions of
the Facility. The Borrower shall, on each date
1
2
of a reduction in the Facility as set forth in Section 1(c) above, repay the
Advances in a principal amount equal to the excess of the aggregate principal
amount of the Advances over the Facility as so reduced.
(e) The Borrower may, upon at least three Business Days'
notice to Citibank in the case of Eurodollar Rate Advances and at least one
Business Day's notice to Citibank in the case of Base Rate Advances, in each
case received on such day not later than 11:00 A.M. (New York City time) and
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the aggregate principal
amount of the Advances outstanding on such date, in whole or in part. All
prepayments under this Section 1(e) shall be made together with (i) accrued and
unpaid interest to the date of such prepayment on the principal amount so
prepaid and (ii) in the case of any such prepayment of a Eurodollar Rate Advance
on a date other than the last day of an Interest Period therefor, any amounts
owing in respect of Eurodollar Rate Advances pursuant to Section 5(f) hereof.
(f) The Borrower shall pay interest on the unpaid principal
amount of each Advance from the date of such Advance until the principal amount
thereof is paid in full on the dates for payment specified for Advances of the
same type under the Existing Credit Agreement at a rate per annum equal, (i) in
the case of Base Rate Advances, to the Base Rate in effect from time to time
plus, for each date on which the aggregate principal amount of the Advances
outstanding equals or exceeds 33% of the Facility, the Applicable Utilization
Fee (as defined below) and (ii) in the case of Eurodollar Rate Advances, to the
sum of the Adjusted LIBO Rate in effect for the applicable Interest Period plus
the Applicable Margin (as defined below) plus, for each date on which the
aggregate principal amount of the Advances outstanding equals or exceeds 33% of
the Facility, the Applicable Utilization Fee. Similarly, the Borrower shall pay
a facility fee from the date of this Agreement to the Termination Date at a rate
per annum equal to the Applicable Percentage (as defined below) on the Facility
on the dates for payment specified for payment of the "Facility Fee" under the
Existing Credit Agreement. For purposes of this Section 2(f), the terms
"APPLICABLE UTILIZATION FEE", "APPLICABLE MARGIN", and "APPLICABLE PERCENTAGE"
are each defined as a percentage per annum determined by reference to the
Borrower's long term senior unsecured debt rating, as set forth on Schedule I to
this Agreement.
(g) The Borrower shall make each payment hereunder,
irrespective of any right of counterclaim or setoff, not later than 12:00 Noon
(New York City time) on the day when due in U.S. dollars and in same day funds
to Citibank at the account of Citibank most recently specified in writing to the
Borrower by Citibank, with payments received by Citibank after 12:00 Noon (New
York City time) on any such day being deemed to have been received on the next
succeeding Business Day. All computations of interest determined by reference to
the Base Rate payable hereunder shall be made on the basis of a year of 365 or
366 days, as the case may be, and all other computations of interest and fees
payable hereunder shall be made on the basis of a year of 360 days, in each case
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are payable.
(h) The proceeds of the Advances shall be available for
general corporate purposes of the Borrower and its subsidiaries.
SECTION 2. Conditions Precedent to the Effectiveness of
Section 1. Section 1 of this Agreement shall become effective on the first date
(the "EFFECTIVE DATE") on which all of the following conditions precedent have
been satisfied:
(a) The conditions precedent to the closing date under
Sections 4.01(b), (c), (d), (e), (h) and (i) of the Existing Credit
Agreement shall have been satisfied with respect to this Agreement as
if such conditions precedent were set forth in full herein (with
appropriate modifications to refer to Citibank, as the lender, the
Facility and this Agreement).
2
3
(b) The Borrower or its affiliates shall have accepted for
payment at least a majority of the outstanding ordinary shares on a
fully diluted basis of Triton Energy Limited in its cash tender offer
for ordinary shares of Triton as announced July 10, 2001.
(c) All of the representations and warranties incorporated by
reference into this Agreement shall be true and correct in all material
respects on the Effective Date, as though made on and as of such date
(other than any such representation and warranty that, by its terms,
refers to a specific date other than the Effective Date, in which case,
as of such specific date).
(d) No event shall have occurred and be continuing, or shall
occur as a result of the Effective Date, that would constitute a
Default.
SECTION 3. Conditions Precedent to Each Advance. The
obligation of Citibank to make an Advance shall be subject to the further
conditions precedent that on the date of such Advance the following statements
shall be true (and each of the giving of the applicable Notice of Borrowing and
the acceptance by the Borrower of the proceeds of such Advance shall constitute
a representation and warranty by the Borrower that, both on the date of such
notice and on the date of such Advance, such statements are true):
(a) the representations and warranties incorporated by
reference into this Agreement are correct in all material respects on
and as of such date, before and after giving effect to such Advance and
to the application of the proceeds, if any, therefrom, as though made
on and as of such date (except for any such representation and warranty
that, by its terms, refers to a specific date other than the date of
such Advance, in which case, as of such specific date); and
(b) no event has occurred and is continuing, or would result
from such Advance or from the application of the proceeds therefrom,
that constitutes a Default.
SECTION 4. Incorporation by Reference. (a) All of the terms
and conditions of the Existing Credit Agreement (including, without limitation,
all conditions, representations and warranties, covenants, events of default,
increased costs, taxes, capital adequacy and assignment provisions, and all
defined terms used therein and exhibits and schedules to the Existing Credit
Agreement referred to therein, but not including Sections 2.01 through 2.04,
2.10, 2.14, 9.01, 9.02 and 9.03 thereof) that are not otherwise fully and
expressly set forth in this Agreement are specifically incorporated herein by
reference with the same force and effect as if the same were set out in this
Agreement in full. Except as otherwise provided herein, all references in such
incorporated provisions to any "Agent", the "Agents", a "Lender" or the
"Lenders" or words of similar import or to "this Agreement", "hereof", "hereto"
or "hereunder" or words of similar import shall, without further reference, mean
and refer to Citibank under this Agreement and to this Agreement, respectively;
all references in such incorporated provisions to the "Company" shall, without
further reference, mean and refer to the Borrower hereunder; all references in
such incorporated provisions to the "Third Amended and Restated Effective Date"
shall, without further reference, mean and refer to the Effective Date
hereunder; all references in such incorporated provisions to a "Borrowing",
"Borrowings", a "Loan" or the "Loans" (or to a Type of "Loan" or "Borrowing"
under the Existing Credit Agreement) or words of similar import shall, without
further reference, mean and refer to an Advance or the Advances, as appropriate,
hereunder; all references in such incorporated provisions to "ABR" or "Alternate
Base Rate" shall, without further reference, mean and refer to the Base Rate
hereunder; all references in such incorporated provisions to a "Commitment"
shall, without further reference, mean and refer to the Facility hereunder; all
references in such incorporated provisions to the "Maturity Date" shall, without
further reference, mean and refer to the Termination Date hereunder; and all
references in Section 3.04 of such incorporated provisions to the dates
"December 31, 1999" and "September 30, 2000" shall, without further reference,
mean and refer to the dates "December 31 2000"
3
4
and "June 30, 2001", respectively. Similarly, to the extent any word or phrase
is defined in this Agreement, any such word or phrase appearing in provisions so
incorporated by reference from the Existing Credit Agreement shall have the
meaning given to it in this Agreement. The incorporation by reference into this
Agreement of the terms and conditions of the Existing Credit Agreement is for
convenience only, and this Agreement and the Existing Credit Agreement shall at
all times be, and be deemed to be and treated as, separate and distinct loan
obligations. The incorporation by reference into this Agreement of the terms and
conditions of the Existing Credit Agreement shall not be affected or impaired by
any subsequent amendment, expiration or termination of the Existing Credit
Agreement.
(b) The Borrower, by its execution of this Agreement, hereby
agrees to amend and restate this Agreement at the request of Citibank to set
forth in full the provisions incorporated by reference herein from the Existing
Credit Agreement and to modify the terms and provisions of this Agreement as
appropriate to provide for the inclusion of additional lenders upon any
assignment or proposed assignment by Citibank of its rights and obligations
hereunder effected in accordance with Section 5(i). In addition, the Borrower
hereby agrees to notify Citibank promptly and in any event within three Business
Days of any amendment, supplement or other modification to the Existing Credit
Agreement and, at the request of Citibank, to enter into any amendment or
supplement to this Agreement proposed by Citibank to incorporate comparable
amendments, supplements or other modifications to this Agreement.
SECTION 5. Miscellaneous. (a) No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Borrower and Citibank, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
(b) All notices and other communications provided for
hereunder (except as specified in Section 1(b)) shall be in writing (including
telecopier, telegraphic or telex) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer,; and if to Citibank, at its
address at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
XxXxxxxx; or, as to each party, at such other address as shall be designated by
such party in a written notice to the other party. All such notices and
communications shall be effective when received.
(c) No failure on the part of Citibank to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
(d) The Borrower agrees to pay on demand all costs and
expenses of Citibank in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, including, without
limitation, the reasonable fees and expenses of counsel for Citibank with
respect thereto and with respect to advising Citibank as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on
demand all costs and expenses of Citibank, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, including, without limitation, reasonable fees and expenses of
counsel for Citibank in connection with the enforcement of rights under this
Section 5(d).
(e) The Borrower agrees to indemnify and hold harmless
Citibank and each of its affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation,
4
5
reasonable fees and expenses of counsel) incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with
or by reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances or (ii) the
actual or alleged presence of hazardous materials on any property of the
Borrower or any of its Subsidiaries or any action under any Environmental Laws
relating in any way to the Borrower or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from an Indemnified Party's gross negligence or willful misconduct. In the case
of an investigation, litigation or other proceeding to which the indemnity in
this Section 5(e) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower also agrees not
to assert any claim for special, consequential or punitive damages against
Citibank, any of its affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, arising out of or
otherwise relating to this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
(f) If any payment of principal of any Eurodollar Rate Advance
is made by the Borrower to Citibank other than on the last day of the Interest
Period for such Advance, as a result of a payment pursuant to Section 1(c) of
this Agreement, acceleration of the maturity of the Advances pursuant to Article
VII of the Existing Credit Agreement (as incorporated herein by reference) or
for any other reason, the Borrower shall, upon demand by Citibank, pay to
Citibank any amounts required to compensate it for any additional losses, costs
or expenses that it may reasonably incur as a result of such payment, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by Citibank to fund or maintain such Advance.
(g) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 5(d), (e) and (f) shall survive the payment in full of
principal, interest and all other amounts payable hereunder.
(h) This Agreement shall be binding upon and inure to the
benefit of the Borrower and Citibank and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of Citibank.
(i) After Xxxxx 00, 0000, Xxxxxxxx may assign to one or more
Persons reasonably satisfactory to the Borrower all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of the Facility and the Advances owing to it) in a minimum aggregate
assignment level of $10,000,000 (and increments of $1,000,000 in excess thereof)
and otherwise on the same terms and subject to the same conditions as are set
forth for assignments by lenders under the Existing Credit Agreement. In
connection with any such assignment, the Borrower agrees to execute and deliver
such documentation as Citibank or any such permitted assignee may reasonably
request to evidence such assignment and the rights and obligations of such
assignee hereunder.
(j) This Agreement may be executed in separate counterparts by
the parties hereto, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an originally executed
counterpart of this Agreement.
5
6
(k) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(l) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or the
Notes, 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 any such
New York State court 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 judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction. Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that 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, the Notes or
any other Loan Document in any New York State or federal court. 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.
(m) Waiver of Jury Trial.
Each of the Borrower and Citibank hereby irrevocably waives
all right to trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating to this
Agreement, the Notes or any other Loan Document or the actions of Citibank in
the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
AMERADA XXXX CORPORATION
By /s/ G. A. Jamin
---------------------------------------
Name: G. A. Jamin
Title: Senior Vice President, Treasurer
CITIBANK, N.A.
By /s/ Xxxxxx X. XxXxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Vice President
6
7
SCHEDULE I
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5
BASIS FOR PRICING Public Debt Public Debt Public Debt Public Debt Public Debt Rating
Rating At Least Rating Less Rating Less Than Rating Less Than less than Level 4.
A- By S&P Or A3 Than Xxxxx 0 Xxxxx 0 But At Level 3 But At
By Xxxxx'x. But At Least Least BBB By S&P Least BBB- By
BBB+ By S&P Or Or Baa2 By S&P Or Baa3 By
Baa1 By Xxxxx'x. Xxxxx'x.
Xxxxx'x.
-----------------------------------------------------------------------------------------------------------------
APPLICABLE
PERCENTAGE 7.5 bps 10.0 bps 12.5 bps 17.5 bps 35.0 bps
APPLICABLE MARGIN 42.5 bps 52.5 bps 75.0 bps 82.5 bps 115.0 bps
APPLICABLE
UTILIZATION FEE 5.0 bps 7.5 bps 12.5 bps 12.5 bps 25.0 bps
(USAGE > 33%)
bps = basis points per annum
7
