1
Exhibit 10.1
THIRD AMENDMENT AGREEMENT
This Third Amendment Agreement, effective as of April 24, 1995
("Amendment"), is by and among Union Texas Petroleum Holdings, Inc., a Delaware
corporation ("Company"), the Banks and Co-Agents party to the Agreement
(defined below) and NationsBank of Texas, N.A., as Agent ("Agent"). In
consideration of the mutual covenants contained herein, the Company, the Banks,
the Co-Agents and the Agent agree as set forth herein.
1. Amendments to Credit Agreement. The Amended and Restated
Credit Agreement dated as of May 13, 1994, as amended by the First Amendment
Agreement dated as of November 21, 1994 and the Second Amendment Agreement
dated as of January 31, 1995 (as so amended, the "Agreement") among the
Company, the Banks, the Co-Agents and the Agent, is hereby amended as follows:
1.1. Section 1.01. The following respective definitions set
forth in Section 1.01 of the Agreement are hereby amended to read as follows:
"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the signature pages of the
Third Amendment (or, if such Bank is an Assignee and its name is not
set forth on the signature pages of the Third Amendment, the amount of
its Commitment as set forth in the Assignment pursuant to which it
became a Bank), as such amount may be reduced from time to time
pursuant to Sections 2.09 and 2.10 or reduced or increased from time
to time pursuant to any Assignment to which it is a party.
"Current Exchange Rate" means the arithmetic average of the
respective spot exchange rates determined by each of the Reference
Banks (i) for converting Sterling into Dollars (in an amount
substantially equal to the aggregate outstanding principal amount of
the Sterling Loans of such Reference Bank or pound sterling 1,000,000
if no such amount is outstanding) or (ii) in the case of a Conversion
of a Base Rate Loan or a Euro-Dollar Loan into a Sterling Loan, for
converting Dollars into Sterling (in an amount substantially equal to
the aggregate outstanding principal amount of the Base Rate Loans and
Euro-Dollar Loans of such Reference Bank or $1,000,000 if no such
amount is outstanding), in each case in the interbank eurocurrency
market where the foreign currency and exchange operations of such
Reference Bank's Sterling Lending Office are customarily conducted
with respect to Sterling, at 10:00 A.M. (London time) or as near
thereto as practicable on the date that is two Sterling Business Days
prior to the date of determination, as determined by the Agent in
accordance with Section 2.19(a), which determination shall be
conclusive in the absence of manifest error. The Current Exchange
Rate shall be determined for, and shall take effect on, each
Adjustment Date and shall remain in effect until any
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subsequent determination of the Current Exchange Rate. Any Conversion
of a Base Rate Loan or a Euro-Dollar Loan into a Sterling Loan or of a
Sterling Loan into a Base Rate Loan or a Euro-Dollar Loan shall be
made at the Current Exchange Rate in effect on the date of such
Conversion.
"Short-Term Credit Agreement" means the Credit Agreement dated
as of April 24, 1995 among the Company, NationsBank of Texas, N.A., as
agent, and the co-Agents and the banks parties thereto, providing a
$100,000,000 credit facility to the Company, as may be amended from
time to time.
Section 1.01 of the Agreement is hereby further amended by (i)
changing the date "April 30, 1999" set forth in the definitions of
"Excluded Subordinated Debt" and "Restricted Preferred Stock" to
"April 30, 2000", and (ii) changing the date "April 30, 1998" set
forth in the definition of "Termination Date" to "April 30, 1999".
Section 1.01 of the Agreement is hereby further amended by
adding the following new definition in the appropriate alphabetical
order:
"Third Amendment" means the Third Amendment Agreement
effective as of April 24, 1995 executed by the Company, the Agent, the
Co-Agents and various Banks.
1.2. Section 2.03. Section 2.03(b) of the Agreement is
hereby amended by changing the amount "$200,000,000" set forth therein to
"$300,000,000".
1.3. Section 5.05. Section 5.05(a) of the Agreement is
hereby amended by changing the amount "$750,000,000" set forth therein to
"$775,000,000".
1.4. Section 5.19. Section 5.19 of the Agreement is
hereby amended by adding the following sentence at the end thereof:
The Company will cause Union Texas East Kalimantan Limited, as
promptly as reasonably practicable following execution from
time to time of amendments hereto or to the Subsidiary
Guaranty Agreement, (i) to report the execution and delivery
of such amendments to the Team and (ii) to deliver copies of
such amendments to the Team and to Bank Indonesia.
1.5. Section 9.06. The last sentence of Section 9.06(c)
of the Agreement is hereby amended by changing the date "May 1, 1996" therein
to "April 16, 1997".
1.6. Schedule I. Schedule I to the Agreement is hereby
replaced with Schedule I hereto.
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2. Effectiveness. The effectiveness of this Amendment is subject
to the receipt by the Agent of:
2.1. counterparts of this Amendment signed by each of the
parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation
from such party of execution of a counterpart hereof by such party);
2.2. the Second Amendment to Amended and Restated
Subsidiary Guaranty Agreement dated as of the date hereof (the
"Guaranty Amendment"), duly executed by each of the Required
Guarantors, substantially in the form of Exhibit A hereto;
2.3. an opinion of Newton W. Wilson, III, General Counsel
of the Company, substantially in the form of Exhibit B hereto;
2.4. an opinion of Andrews & Kurth L.L.P., special counsel
for the Obligors, substantially in the form of Exhibit C hereto;
2.5. opinions of local counsel, substantially in the forms
of Exhibits D-1 and D-2 hereto;
2.6. an opinion of Bracewell & Patterson, L.L.P., special
counsel for the Agent, substantially in the form of Exhibit E hereto;
and
2.7. all documents which the Agent may reasonably request
relating to the existence of the Obligors, the corporate authority for
and the validity of this Amendment and the Guaranty Amendment and any
other matters relevant thereto, all in form and substance satisfactory
to the Agent.
3. Miscellaneous.
3.1. Bank Consent. Each of the undersigned Banks hereby
consents to the amendment of the Subsidiary Guaranty Agreement pursuant to the
terms and provisions of the Guaranty Amendment.
3.2. Amendments, Etc. No amendment or waiver of any
provision of this Amendment, nor consent to any departure by the Company
therefrom, shall in any event be effective unless effected in accordance with
Section 9.05 of the Agreement.
3.3. Governing Law. This Amendment and the Agreement as
amended hereby shall be construed in accordance with and governed by the laws
of the State of Texas.
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3.4. Preservation. Except as specifically modified by the
terms of this Amendment or the Guaranty Amendment, all of the terms,
provisions, covenants, warranties and agreements contained in the Agreement
(including, without limitation, exhibits thereto) or any other Financing
Document remain in full force and effect. Undefined capitalized terms used
herein are used herein as defined in the Agreement as amended hereby.
3.5. Execution in Counterparts. This Amendment may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
3.6. Representations and Warranties. The Company hereby
represents and warrants to the Banks, the Co-Agent and the Agent that (i) the
representations and warranties contained in Article IV of the Agreement (other
than the representations and warranties contained in Sections 4.04(a) and
4.04(c) thereof) are correct on and as of the date hereof as though made on and
as of the date hereof, with this Amendment, the Agreement as amended hereby,
the Guaranty Amendment and the Subsidiary Guaranty Agreement as amended by the
Guaranty Amendment constituting "Financing Documents" for purposes thereof, and
(ii) no event has occurred and is continuing which constitutes a Default or an
Event of Default.
3.7. Default. Without limiting any other event which may
constitute an Event of Default, in the event that any representation or
warranty set forth herein shall be incorrect or misleading in any material
respect when made, such event shall constitute an "Event of Default" under the
Agreement, as amended hereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
UNION TEXAS PETROLEUM HOLDINGS, INC.
By: /s/ M.N. MARKOWITZ
---------------------------------
M.N. Markowitz
Vice President and Treasurer
1330 Post Oak Blvd.
Houston, Texas 77056
Telex number: 762255
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Commitments
- -----------
$36,818,181.81 NATIONSBANK OF TEXAS, N.A.
By: /s/ PAUL A. SQUIRES
----------------------------------
Paul A. Squires
Senior Vice President
$28,636,363.63 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ LAURA B. SHEPARD
----------------------------------
Authorized Officer
$28,636,363.63 UNION BANK OF SWITZERLAND, HOUSTON
AGENCY
By: /s/ EVANS SWANN
----------------------------------
Evans Swann
Managing Director
By: /s/ JAN BUETTGEN
----------------------------------
Jann Buettgen
Vice President
Corporate Banking
$24,545,454.55 THE BANK OF NOVA SCOTIA
By: /s/ A.S. NORSWORTHY
----------------------------------
A.S. Norsworthy
Assistant Agent
$24,545,454.55 CHEMICAL BANK
By: /s/ [Illegible]
----------------------------------
Authorized Officer
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Commitments
- -----------
$24,545,454.55 CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ XAVIER RATOUIS
----------------------------------
Authorized Officer
$24,545,454.55 THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ [Illegible]
----------------------------------
Authorized Officer
$24,545,454.55 MELLON BANK, N.A.
By: /s/ A. GARY CHACE
----------------------------------
A. Gary Chace
Senior Vice President
$24,545,454.55 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ PHILIP W. MCNEAL
----------------------------------
Philip W. McNeal
Vice President
$20,454,545.45 BANQUE NATIONALE DE PARIS, HOUSTON
AGENCY
By: /s/ [Illegible]
----------------------------------
Authorized Officer
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Commitments
- -----------
$20,454,545.45 LTCB TRUST COMPANY
By: /s/ [Illegible]
-------------------------------
Authorized Officer
$20,454,545.45 SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ [Illegible]
-------------------------------
Authorized Officer
$14,318,181.82 THE BANK OF TOKYO, LTD., DALLAS
AGENCY
By: /s/ JOHN M. MCINTYRE
-------------------------------
Authorized Officer
$14,318,181.82 BANQUE PARIBAS, HOUSTON AGENCY
By: /s/ [Illegible]
-------------------------------
Authorized Officer
By: /s/ BART SCHOUEST
-------------------------------
Authorized Officer
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Commitments
- -----------
$14,318,181.82 CHRISTIANIA BANK
By: /s/ JAHN O. ROISING
----------------------------------
Authorized Officer
By: /s/ [Illegible]
----------------------------------
Authorized Officer
$14,318,181.82 CITIBANK, N.A.
By: /s/ BARBARA A. COHEN
----------------------------------
Barbara A. Cohen
Vice President
$14,318,181.82 DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ B. C. ERICKSON
----------------------------------
Authorized Officer
By: /s/ [Illegible]
----------------------------------
Authorized Officer
$14,318,181.82 THE MITSUBISHI TRUST & BANKING
CORPORATION
By: /s/ [Illegible]
----------------------------------
Authorized Officer
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Commitments
- -----------
$14,318,181.82 NATIONAL WESTMINSTER BANK PLC (NEW
YORK BRANCH)
By: /s/ DAVID L. SMITH
----------------------------------
David L. Smith
Vice President
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH)
By: /s/ DAVID L. SMITH
----------------------------------
David L. Smith
Vice President
$14,318,181.82 THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, NEW YORK BRANCH
By: /s/ NEIL T. CHAU
----------------------------------
Neil T. Chau
First Vice President
$8,181,818.18 BANK OF TAIWAN
By: /s/ [Illegible]
----------------------------------
Authorized Officer
$8,181,818.18 BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: /s/ IAIN A. WHYTE
----------------------------------
Authorized Officer
By: /s/ [Illegible]
----------------------------------
Authorized Officer
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Commitments
- -----------
$8,181,818.18 DEN NORSKE BANK AS
By: /s/ [Illegible]
----------------------------------
Authorized Officer
By: /s/ FRAN MEYERS
----------------------------------
Fran Meyers
Vice President
$8,181,818.18 FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ COLLIE C. MICHAELS
----------------------------------
Authorized Officer
Total Commitments: $450,000,000
------------
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NATIONSBANK OF TEXAS, N.A., as Agent
By: /s/ PAUL A. SQUIRES
----------------------------------------
Paul A. Squires
Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Co-Agent
By: /s/ LAURA B. SHEPARD
----------------------------------------
Authorized Officer
UNION BANK OF SWITZERLAND, HOUSTON AGENCY,
as Co-Agent
By: /s/ EVANS SWANN
----------------------------------------
Evans Swann
Managing Director
By: /s/ JAN BUETTGEN
----------------------------------------
Jan Beuttgen
Vice President
Corporate Banking
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SCHEDULE I
COMMITMENT REDUCTION SCHEDULE
Date Maximum Aggregate Commitments
---- -----------------------------
July 31, 1998 $415,000,000
October 31, 1998 380,000,000
January 31, 1999 345,000,000
April 30, 1999 -0-
13
EXHIBIT A
SECOND AMENDMENT TO AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
This Second Amendment to Amended and Restated Subsidiary Guaranty
dated as of April 24, 1995 (this "Guaranty Amendment") is among each of the
Subsidiary Guarantors listed on the signature pages hereof under the caption
"Subsidiary Guarantors" and NationsBank of Texas, N.A. (the "Agent"), as agent
for the banks under the Amended and Restated Credit Agreement dated as of May
13, 1994 as amended by the First Amendment Agreement dated as of November 21,
1994 and the Second Amendment Agreement dated as of January 31, 1995 (as the
same may be further amended or modified from time to time, the "Credit
Agreement") among Union Texas Petroleum Holdings, Inc. (the "Company"), the
Co-Agents and lenders parties thereto ("Banks") and the Agent.
In consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
1. Amendment to the Guaranty Agreement. The fourth recital to
the Amended and Restated Subsidiary Guaranty Agreement dated as of May 13, 1994
as amended by the First Amendment to Amended and Restated Subsidiary Guaranty
dated as of November 21, 1994 (as so amended, the "Guaranty Agreement")
executed by the Subsidiary Guarantors and the Agent is hereby amended by
deleting the dollar amount "$350,000,000" therein and inserting in lieu thereof
the dollar amount "$450,000,000".
2. Acknowledgement and Consent. To induce the Agent and the
Banks to execute the Third Amendment Agreement dated of even date herewith
among the Company, the Banks and Co-Agents parties thereto, and the Agent (the
"Credit Agreement Amendment") and other Financing Documents, each of the
undersigned Subsidiary Guarantors hereby (a) consents to and agrees to the
terms of the Credit Agreement Amendment and the Credit Agreement as amended
thereby and the other Financing Documents, (b) agrees that (i) none of such
Subsidiary Guarantor's obligations under or in connection with the Financing
Documents and none of the Banks' or the Agent's rights and remedies with
respect to any Subsidiary Guarantor is released, impaired or affected thereby
or by the foregoing, (ii) neither the Guaranty Agreement as amended hereby nor
any other Financing Document provided by any Subsidiary Guarantor is released,
impaired or affected thereby or by any of the foregoing, and (iii) this
acknowledgement shall not be construed as requiring the consent or agreement of
any Subsidiary Guarantor in any circumstance, (c) ratifies and confirms all
provisions of all Financing Documents executed by such Subsidiary Guarantor and
all documents pertaining thereto or referred to therein, and (d) agrees that
none of such Subsidiary Guarantor's obligations, none of the Banks' or the
Agent's rights and remedies and neither the Guaranty Agreement as amended
hereby, nor any
14
other Financing Document, would be released, impaired or affected if such
Subsidiary Guarantor had not acknowledged the Credit Agreement Amendment and
other Financing Documents.
3. Miscellaneous.
3.1. Amendments, Etc. No amendment or waiver of any
provision of this Guaranty Amendment, and no consent to any departure by any
Subsidiary Guarantor, any Bank or the Agent herefrom, shall in any event be
effective unless effected in accordance with Section 3.03 of the Guaranty
Agreement. This Guaranty Amendment shall become effective upon the execution
of this Guaranty Amendment by the Subsidiary Guarantors and the Agent.
3.2. Texas Law. This Guaranty Amendment, and the Guaranty
Agreement as amended hereby, shall be construed in accordance with and governed
by the laws of the State of Texas.
3.3. Preservation. Except as specifically modified by the
terms of this Amendment, all of the terms, provisions, covenants, warranties
and agreements contained in the Guaranty Agreement remain in full force and
effect. Each of the undersigned Subsidiary Guarantors hereby ratifies and
confirms the Guaranty Agreement as amended hereby. Terms used herein which are
not defined herein and are defined in the Credit Agreement, as amended by the
Credit Agreement Amendment, are used herein as defined in the Credit Agreement,
as amended by the Credit Agreement Amendment. References in the Guaranty
Agreement as amended hereby to "the Agreement", "the Guaranty Agreement", "this
Guaranty Agreement" or to "this Agreement" or to words of similar effect (such
as "herein") shall mean the Guaranty Agreement as amended hereby.
3.4. Execution in Counterparts. This Guaranty Amendment may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, 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.
3.5. Authority, etc. Each of the undersigned Subsidiary
Guarantors hereby represents and warrants to the Agent and each of the Banks
that (a) the execution and delivery by such Subsidiary Guarantor of the
Guaranty Agreement and this Guaranty Amendment, and the performance of the
Guaranty Agreement as amended hereby and this Guaranty Amendment, (i) are
within such Subsidiary Guarantor's corporate powers, (ii) have been duly
authorized by all necessary corporate action of such Subsidiary Guarantor,
(iii) do not contravene or constitute a default under any provision of
applicable law or regulation and (iv) require no authorization, consent or
approval of any governmental body, agency or official other than those
authorizations, consents and approvals that have been obtained and are in full
force and effect, and (b) the Guaranty Agreement and this Guaranty Amendment
have been duly executed
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15
and delivered by such Subsidiary Guarantor and this Guaranty Amendment and the
Guaranty Agreement as amended hereby constitute legal, valid and binding
obligations of such Subsidiary Guarantor.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized, as of the date first above written.
SUBSIDIARY GUARANTORS:
UNION TEXAS PETROLEUM ENERGY
CORPORATION
By: ____________________________________
Name: __________________________________
Title: _________________________________
UNION TEXAS PRODUCTS
CORPORATION
By: ____________________________________
Name: __________________________________
Title: _________________________________
UNION TEXAS EAST KALIMANTAN
LIMITED
By: ____________________________________
Name: __________________________________
Title: _________________________________
UNION TEXAS INTERNATIONAL
CORPORATION
By: ____________________________________
Name: __________________________________
Title: _________________________________
-3-
16
UNISTAR, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
AGENT:
NATIONSBANK OF TEXAS, N.A.,
as Agent
By: ____________________________________
Name: __________________________________
Title: _________________________________
-4-
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EXHIBIT B
OPINION OF GENERAL COUNSEL
April 24, 1995
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
700 Louisiana Street
Houston, Texas 77002
Dear Sirs:
I am General Counsel, Vice President-Administration, and
Secretary of Union Texas Petroleum Holdings, Inc., a Delaware corporation (the
"Company"), and have acted as counsel (i) for the Company in connection with
the Third Amendment Agreement dated as of April 24, 1995 (the "Credit
Amendment") among the Company, the Banks and Co-Agents party to the Credit
Agreement (as defined below) and the Agent (as defined below), which Credit
Amendment amends the Amended and Restated Credit Agreement dated as of May 13,
1994, as amended by the First Amendment Agreement dated as of November 21, 1994
and the Second Amendment Agreement dated as of January 31, 1995 (as so amended,
the "Credit Agreement"; and as further amended by the Credit Amendment, the
Amended Credit Agreement"), among the Company, the Banks and Co-Agents listed
on the signature pages thereof and NationsBank of Texas, N.A., as Agent (the
"Agent"), and (ii) for Union Texas Petroleum Energy Corporation, a Delaware
corporation, Union Texas International Corporation, a Delaware corporation,
Unistar, Inc., a Delaware corporation, Union Texas East Kalimantan Limited, a
Bahamian corporation, and Union Texas Products Corporation, a Delaware
corporation (collectively, the "Subsidiary Guarantors" and together with the
Company, the "Obligors"), in connection with the Second Amendment to Amended
and Restated Subsidiary Guaranty Agreement dated as of April 24, 1995 (the
"Guaranty Amendment") among the Subsidiary Guarantors and the Agent, which
Guaranty Amendment amends the Amended and Restated Subsidiary Guaranty
Agreement dated as of May 13, 1994 as amended by the First Amendment to Amended
and Restated Subsidiary Guaranty Agreement dated as of November 21, 1994 (as so
amended and as amended by the Guaranty Amendment, the "Amended Guaranty
Agreement"), among the Subsidiary Guarantors and the Agent. Terms defined in
the Amended Credit Agreement and not otherwise defined herein are used herein
as therein defined.
In connection with the opinions expressed below, I have
examined or caused to be examined executed counterparts of the following
(collectively, the "Financing Documents"):
18
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 2
(a) the Amended Credit Agreement and the Credit Amendment,
(b) the Amended Guaranty Agreement and the Guaranty
Amendment, and
(c) twenty four (24) promissory notes, each substantially
in the form of Exhibit A to the Amended Credit Agreement, one payable
to each Bank.
I have also examined or caused to be examined originals or
copies, certified or otherwise identified to my satisfaction, of such other
instruments, documents and records as I deemed necessary to express the
opinions hereinafter set forth. To the extent relevant to my opinion, I have
assumed, without independent verification, (i) the due execution and delivery
of each Financing Document by each party thereto (other than the Obligors),
(ii) the genuineness of all signatures on all documents submitted to me, (iii)
that each party (other than the Obligors) to each of the Financing Documents is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has full power and authority to enter into
and to carry out its obligations under such Financing Documents, (iv) that the
execution and delivery of each of the Financing Documents by each party thereto
(other than the Obligors) and the performance of its obligations under such
Financing Documents have been duly authorized by all necessary proceedings and
actions, (v) that each of the Financing Documents is the legal, valid and
binding obligation of each party thereto (other than the Obligors), enforceable
against such party in accordance with the terms of such Financing Documents,
subject to limitations of the types described in the opinion of Andrews & Kurth
L.L.P. delivered to you pursuant to the Financing Documents, and (vi) the
authenticity of all documents submitted to me as originals and the conformity
to authentic original documents of all documents submitted to me as certified,
conformed or photostatic copies. I have relied, to the extent that I deem such
reliance proper, upon certificates of officers of one or more of the Obligors
and of governmental officials as to matters of fact not independently
established by me.
For purposes of the opinion set forth in paragraph 2 below, I
have (i) relied on the opinion of Andrews & Kurth L.L.P. with respect to the
agreements and instruments identified on Schedule I thereto, and (ii) examined
or caused to be examined each other agreement or other instrument binding upon
any Obligor, a breach of or default under which would, in my judgment, have a
material adverse effect upon the Company and its Subsidiaries taken as a whole.
As to other agreements and instruments, I have not undertaken such a review for
purposes of this opinion, given the volume of such documents and given the fact
that by virtue of the character of such
19
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 3
documents and the historical practices of the Company with respect thereto, I
have no reason to believe that a breach of or default under any such document
would arise by virtue of the execution, delivery and performance of the
Financing Documents.
Based on the foregoing and subject to the qualifications and
limitations set forth below, I am of the opinion that:
1. Each of the Obligors has all material governmental
licenses, authorizations, consents and approvals required to own its assets and
to carry on its business as now conducted.
2. To the best of my knowledge, the execution, delivery
and performance by each Obligor of each Financing Document to which it is a
party do not constitute a breach of or default under, or result in the creation
or imposition of any Lien on any material asset of the Company or any
Subsidiary under, any provision of any instrument or agreement evidencing or
governing Debt binding upon such Obligor or any other material agreement,
judgment, injunction, order, decree or other instrument binding upon such
Obligor. However, please be advised that the Company currently has an
aggregate $300 million principal amount of its senior notes outstanding
(individually referred to as the $100 million 8.25% Senior Notes due 1999, the
$125 million 8 3/8% Senior Notes due 2005 and the $75 million 8 1/2% Senior
Notes due 2007, and collectively referred to as the "Senior Notes"), and that
the sum of the Senior Notes, the Commitments and the commitments under the
Short-Term Credit Agreement equals $850 million, while the total amount of debt
permitted under Section 5.05(a) of the Amended Credit Agreement and the
Short-Term Credit Agreement may not exceed $775 million.
3. To the best of my knowledge, there is no action, suit
or proceeding pending against, threatened against or affecting the Company or
any of its Subsidiaries or any of their respective properties or interests, at
law or in admiralty or equity, before any court or arbitrator or any
governmental body, agency or official, foreign or domestic, in which there is a
reasonable possibility of an adverse decision which could materially adversely
affect the business, financial position or results of operations of the Company
and its Subsidiaries, taken as a whole, or which in any manner draws into
question the validity of any Financing Document.
My opinions in paragraph 1 are rendered only with respect to
the constitutions, laws, rules and regulations which are currently in effect
and applicable court rulings and orders which have been published and are
generally available. In
20
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 4
addition, the foregoing opinions are rendered only as of the date hereof, and I
disclaim any obligation to advise you of changes thereafter.
I am a member of the bar of the State of Texas only, and this
opinion is limited in all respects to the laws of the State of Texas, the
General Corporation Law of Delaware and federal law of the United States of
America, and, to the limited extent described below, the laws of The
Commonwealth of The Bahamas and The Republic of Indonesia. In rendering
certain of the opinions expressed above, I have relied, with your approval,
upon an opinion, dated the date hereof, of Andrews & Kurth L.L.P., a copy of
which has been furnished to you. My opinion in paragraph 1 addresses, with
respect to Union Texas East Kalimantan Limited, the laws of The Commonwealth of
The Bahamas and The Republic of Indonesia and such opinion with respect to such
laws is, with your permission and without independent investigation, given
solely in reliance upon and limited in scope to the opinions of Graham,
Thompson & Co. and Mochtar, Karuwin & Komar, respectively, copies of which have
been furnished to you, and my opinion incorporates by reference all
qualifications, exceptions and limitations set forth therein.
This opinion is for the benefit of and may be relied upon by
the Banks, the Agent, the Co-Agents, their respective successors and assigns,
their respective counsel and participants in connection with the transactions
contemplated by the Credit Amendment and the Amended Credit Agreement.
Otherwise, this opinion may not be used, published, circulated or relied upon
by any other Person for any purpose without my prior written consent.
Very truly yours,
Newton W. Wilson, III
21
EXHIBIT C
OPINION OF ANDREWS & KURTH L.L.P.
April 24, 1995
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
700 Louisiana Street
Houston, Texas 77002
Dear Sirs:
We have acted as special counsel (i) to Union Texas Petroleum
Holdings, Inc., a Delaware corporation (the "Company"), in connection with the
Third Amendment Agreement dated as of April 24, 1995 (the "Credit Amendment")
among the Company, the Banks and Co-Agents party to the Credit Agreement (as
defined below) and the Agent (as defined below), which Credit Amendment amends
the Amended and Restated Credit Agreement dated as of May 13, 1994, as amended
by the First Amendment Agreement dated as of November 21, 1994 and the Second
Amendment Agreement dated as of January 31, 1995 (as so amended, the "Credit
Agreement"; and as further amended by the Credit Amendment, the "Amended Credit
Agreement"), among the Company, the Banks and Co-Agents listed on the signature
pages thereof and NationsBank of Texas, N.A., as Agent (the "Agent"), and (ii)
for Union Texas Petroleum Energy Corporation, a Delaware corporation, Union
Texas International Corporation, a Delaware corporation, Unistar, Inc., a
Delaware corporation, Union Texas East Kalimantan Limited, a Bahamian
corporation, and Union Texas Products Corporation, a Delaware corporation
(collectively, the "Subsidiary Guarantors" and together with the Company, the
"Obligors"), in connection with the Second Amendment to Amended and Restated
Subsidiary Guaranty Agreement dated as of April 24, 1995 (the "Guaranty
Amendment") among the Subsidiary Guarantors and the Agent, which Guaranty
Amendment amends the Amended and Restated Subsidiary Guaranty Agreement dated
as of May 13, 1994, as amended by the First Amendment to Amended and Restated
Subsidiary Guaranty Agreement dated as of November 21, 1994 (as so amended and
as amended by the Guaranty Amendment, the "Amended Guaranty Agreement"), among
the Subsidiary Guarantors and the Agent. Terms defined in the Amended Credit
Agreement and not otherwise defined herein are used herein as therein defined.
In connection with the opinions expressed below, we have
examined executed counterparts of the following (collectively, the "Financing
Documents"):
(a) the Amended Credit Agreement and the Credit Amendment,
22
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 2
(b) the Amended Guaranty Agreement and the Guaranty
Amendment, and
(c) twenty four (24) promissory notes, each substantially
in the form of Exhibit A to the Amended Credit Agreement, one payable
to each Bank (collectively, the "Notes").
We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such other instruments, documents
and records as we deemed necessary to express the opinions hereinafter set
forth. To the extent relevant to our opinion, we have assumed, without
independent verification, (i) the due execution and delivery of each Financing
Document by each party thereto (other than the Obligors), (ii) the genuineness
of all signatures on all documents submitted to us, (iii) that each party
(other than the Obligors) to each of the Financing Documents is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization and has full power and authority to enter into and to carry out
its obligations under such Financing Documents, (iv) that the execution and
delivery of each of the Financing Documents by each party thereto (other than
the Obligors) and the performance of its obligations under such Financing
Documents have been duly authorized by all necessary proceedings and actions,
(v) that each of the Financing Documents is the legal, valid and binding
obligation of each party thereto (other than the Obligors) enforceable against
such party in accordance with the terms of such Financing Documents, subject to
limitations of the types described herein, and (vi) the authenticity of all
documents submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as certified, conformed or
photostatic copies. We have relied, to the extent that we deem such reliance
proper, upon certificates of officers of one or more of the Obligors and of
governmental officials as to matters of fact not independently established by
us. We have also examined the representations and warranties of the Company
contained in the Credit Amendment, the Amended Credit Agreement, the Guaranty
Amendment and the Amended Guaranty Agreement and have relied, to the extent we
deem such reliance proper, upon the relevant facts stated therein.
Based on the foregoing and subject to the qualifications and
limitations set forth below, we are of the opinion that:
1. (a) Each of the Obligors is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation,
23
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 3
and has all corporate power and authority required to own its assets and to
carry on its business as now conducted.
(b) The execution, delivery and performance by each
Obligor of each Financing Document to which it is a party will not violate the
Public Utility Holding Company Act of 1935, the Investment Company Act of 1940
or the Interstate Commerce Act.
2. The execution, delivery and performance by each
Obligor of each Financing Document to which it is a party are within such
Obligor's corporate powers, have been duly authorized by all necessary
corporate action, and do not constitute a breach or default under, any
provision of applicable law or regulation known to us after reasonable inquiry
or the certificate of incorporation or bylaws of such Obligor.
3. To the best of our knowledge, the execution, delivery
and performance by each Obligor of each Financing Document to which it is a
party do not constitute a breach of or default under, or result in the creation
or imposition of any Lien on any material asset of the Company or any
Subsidiary under, any provision of the instruments and agreements identified in
Schedule I hereto. However, please be advised that the Company currently has
an aggregate $300 million principal amount of its senior notes outstanding
(individually referred to as the $100 million 8.25% Senior Notes due 1999, the
$125 million 8 3/8% Senior Notes due 2005 and the $75 million 8 1/2% Senior
Notes due 2007, and collectively referred to as the "Senior Notes"), and that
the sum of the Senior Notes, the Commitments and the commitments under the
Short-Term Credit Agreement equals $850 million, while the total amount of debt
permitted under Section 5.05(a) of the Amended Credit Agreement and the
Short-Term Credit Agreement may not exceed $775 million.
4. No authorization, consent or approval of any
governmental body, agency or official is required in connection with the
execution, delivery or performance by any Obligor of any of the Financing
Documents to which it is a party.
5. (a) The Credit Amendment and the Notes have been
duly executed and delivered by the Company, and the Credit Amendment, the Notes
and the Amended Credit Agreement constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms.
(b) The Guaranty Amendment has been duly executed and
delivered by each of the Subsidiary Guarantors, and the Guaranty Amendment and
the Amended
24
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 4
Guaranty Agreement constitute legal, valid and binding obligations of each of
the Subsidiary Guarantors, enforceable against each of the Subsidiary
Guarantors in accordance with their respective terms.
6. If all material facts (as we understand them) and
issues of law were presented and properly argued, a Texas court or a federal
court sitting in the State of Texas and applying the laws of the State of Texas
should hold that the consent by the Company in Section 9.09 of the Amended
Credit Agreement, and by each Subsidiary Guarantor in Section 3.05 of the
Amended Guaranty Agreement, to the non-exclusive personal jurisdiction of the
courts of the State of Texas and of any federal court located in the State of
Texas is valid. In this regard we call to your attention that such consents to
non-exclusive jurisdiction are not effective to (1) confer subject matter
jurisdiction that does not otherwise exist in such court or (2) establish
diversity jurisdiction that does not otherwise exist in an action brought in
federal court.
7. Neither the execution, delivery and performance by
any Obligor of the Financing Documents to which it is a party, nor the use of
the proceeds of the Loans in accordance with Section 5.09 of the Amended Credit
Agreement, will violate the provisions of Regulations G, T, U or X of the Board
of Governors of the Federal Reserve System.
The opinions set forth above are subject to the following
additional assumptions, limitations and qualifications:
(a) Our opinions with respect to the enforceability of
the Financing Documents are subject to the qualification that such
enforceability may be (i) limited by applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or similar laws affecting the
rights of creditors generally, (ii) subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity), including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, and (iii) limited by the power of
a court to award damages in lieu of equitable remedies (including specific
performance or injunctive relief) or otherwise to refuse to grant a particular
remedy sought by the parties to the Financing Documents.
(b) We express no opinion herein as to (1) the right of
any Bank to set-off against funds held in any special account maintained by the
Company with such Bank or which are otherwise subject to special agreement
between the Company and such Bank; (2) whether the provisions of the Amended
Credit Agreement which permit
25
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 5
the Agent, the Co-Agents or any Bank to take action or make determinations may
be subject to a requirement that such action be taken or such determination be
made in good faith; (3) whether the holder of a Note may, under certain
circumstances, be called upon to prove the outstanding principal amount of the
loans evidenced thereby; (4) the effect of the law of any jurisdiction (other
than Texas) wherein any Bank may be located which limits rates of interest
which may be charged or collected by such Bank; and (5) the enforceability of
any provision in the Financing Documents that purports to (i) require
indemnification for the negligence or wilful misconduct of the indemnitee or to
otherwise require any Obligor to provide indemnification to the extent the same
may be in conflict with public policy, (ii) limit the effect of any delay or
omission of enforcement of rights or remedies or any course of performance or
course of dealing between the parties, (iii) create an agreement to agree, (iv)
fix evidentiary standards or venue of any proceeding, (v) waive rights to a
trial by jury, or (vi) waive rights to notices, legal defenses or other
benefits that cannot, as a matter of law, be effectively waived.
(c) Whenever this opinion states the existence or absence
of any fact to the best of our knowledge, such statement is intended to convey
that, during the course of our representation of the Obligors with respect to
matters addressed herein, no information has come to our attention which has
given us actual knowledge of facts contrary to the statements so expressed
herein.
(d) In rendering our opinions in paragraph 1 we have
relied upon the description of the properties, assets and businesses of the
Obligors set forth in the Report on Form 10-K for the year ended December 31,
1994 filed by the Company with the Securities and Exchange Commission.
(e) In rendering the opinions in paragraphs 2 and 5, we
have assumed that (i) there are no fees, points, premiums or other sums
contracted for, charged to or paid or to be paid by the Company to the Banks on
account of the transactions described in the Amended Credit Agreement other
than those described in the Amended Credit Agreement and those described in the
letters dated May 13, 1994 from the Agent to us and (ii) the parties to the
Financing Documents will comply strictly with the precise terms of the
Financing Documents, including, without limitation, the usury savings clauses
set forth therein with respect to any consideration contemplated by Financing
Documents that will constitute interest under Texas law.
26
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 6
(f) In rendering our opinions in paragraph 7 we have
assumed that the representations of the Company and the Banks set forth in
Sections 4.12 and 9.07, respectively, of the Amended Credit Agreement will be
true and correct at all times.
(g) The foregoing opinions are rendered only with respect
to the constitutions, laws, rules and regulations which are currently in effect
and applicable court rulings and orders which have been published and are
generally available. In addition, the foregoing opinions are rendered only as
of the date hereof, and we disclaim any obligation to advise you of changes
thereafter.
This opinion is limited in all respects to the laws of the
State of Texas, the General Corporation Law of Delaware and federal law of the
United States of America, and, to the limited extent described below, the laws
of The Commonwealth of The Bahamas and The Republic of Indonesia. Insofar as
our opinion relates to the laws of The Commonwealth of The Bahamas and The
Republic of Indonesia it is, with your permission and without independent
investigation, given solely in reliance upon and limited in scope to the
opinions of Graham, Thompson & Co. and Mochtar, Karuwin & Komar, respectively,
copies of which have been furnished to you, and our opinion incorporates by
reference all qualifications, exceptions and limitations set forth therein.
This opinion is for the benefit of and may be relied upon by
the Banks, the Agent, the Co-Agents, their respective successors and assigns,
their respective counsel and Participants in connection with the transactions
contemplated by the Credit Amendment and the Amended Credit Agreement and may
be relied upon by Newton W. Wilson, III, General Counsel of the Company, in
rendering his opinion to the Banks and the Agent in connection with such
transactions. Otherwise, this opinion may not be used, published, circulated
or relied upon by any other Person for any purpose without our prior written
consent.
Very truly yours,
ANDREWS & KURTH L.L.P.
27
SCHEDULE I
I. UNION TEXAS PETROLEUM HOLDINGS, INC. ("UTPH")
A. Indenture dated as of November 15, 1992 between UTPH, the
guarantors named therein, and State Street Bank and Trust Company, as trustee,
relating to the $100,000,000 8.25% Senior Notes due November 15, 1999 issued by
UTPH.
B. Indenture dated as of March 15, 1995 between UTPH, the guarantors
named therein, and The First National Bank of Chicago, as trustee, relating to
the $125,000,000 8 3/8% Senior Notes due 2005 issued by UTPH and the
$75,000,000 8 1/2% Senior Notes due 2007 issued by UTPH.
C. $450,000,000 Amended and Restated Credit Agreement dated as of
May 13, 1994 among UTPH, the Banks and Co-Agents listed on the signature pages
thereof and NationsBank of Texas, N.A., as Agent, as amended by the First
Amendment Agreement dated as of November 21, 1994, the Second Amendment
Agreement dated as of January 31, 1995 and the Third Amendment Agreement dated
as of April 24, 1995.
D. $100,000,000 Credit Agreement dated as of April 24, 1995 among
UTPH, the Banks and Co-Agents listed on the signature pages thereof and
NationsBank of Texas, N.A., as Agent.
II. UNION TEXAS PAKISTAN, INC. ("UT PAKISTAN")
A. Finance Agreement dated as of December 20, 1988 between UT
Pakistan and Overseas Private Investment Corporation ("OPIC").
B. Issuing and Paying Agency Agreement dated as of December 20, 1988
among First Trust New York National Association (as successor to Morgan
Guaranty Trust Company of New York), as issuing and paying agent, OPIC, and UT
Pakistan, relating to the Promissory Note dated December 20, 1988 issued by UT
Pakistan to Liberty U.S. Government Money Market Trust in the original
principal amount of US$21,250,000.
C. Guaranty Agreement dated as of December 20, 1988 between UTPH
and OPIC.
D. Deed of Floating Charge dated December 20, 1988 by UT Pakistan in
favor of OPIC.
III. UNISTAR, INC. ("UNISTAR") AND UNIMAR COMPANY ("UNIMAR")
A. Amended and Restated Agreement of General Partnership of Unimar
entered into as of September 11, 1990.
B. Indenture dated as of September 25, 1984 between Unimar and
Irving Trust Company, as trustee, relating to 14,077,747 Indonesian
Participating Units, as supplemented by the First Supplemental Indenture dated
as of October 31, 1986 between such parties.
28
C. Shareholders Agreement dated as of September 11, 1990 among UTPH,
Unistar, Ultramar America Limited, Ultramar Indonesia Limited and Ultrastar,
Inc.
D. Second Shareholders Agreement dated as of August 26, 1993 among
UTPH, Unistar, LASMO America Limited, LASMO Sanga Sanga Limited and LASMO
(USTAR) Inc. (formerly Ultrastar, Inc.)
IV. UNION TEXAS EAST KALIMANTAN LIMITED ("UTEK")
A. Production Sharing Contract and related Agreements.
1. Amended and Restated Production Sharing Contract dated April 23,
1990, but effective as of August 8, 1968 among Perusahaan Pertambangan Minyak
Dan Gas Bumi Negara ("Pertamina"), and Roy M. Huffington, Inc., Virginia
Indonesia Company, Virginia International Company, Ultramar Indonesia Limited,
Union Texas East Kalimantan Limited, Universe Gas & Oil Company, Inc. and
Huffington Corporation (all such parties and their predecessors and successors
in interest are herein collectively referred to as the "IJV Contractors"), and
Production Sharing Contract dated April 23, 1990, but effective as of August 8,
1998 among Pertamina and the IJV Contractors.
2. Joint Venture Agreement effective as of August 8, 1968 by and
between Roy M. Huffington, Inc., Virginia International Company, Austral
Petroleum Gas Corporation, Golden Eagle Indonesia Limited and Union Texas Far
East Corporation, as amended by a Settlement Agreement dated as of January 16,
1976 among these parties and Universe Tankships, Inc., an Agreement dated as of
October 1, 1979 among Roy M. Huffington, Inc., Virginia International Company,
Austral Petroleum Gas Corporation, Golden Eagle Indonesia Limited, Universe
Tankships, Inc. and Union Texas Far East Corporation and a Letter dated October
1, 1979 from Roy M. Huffington, Inc. to Virginia International Company, Austral
Petroleum Gas Corporation, Golden Eagle Indonesia Limited, Universe Tankships,
Inc. and Union Texas Far East Corporation.
3. Operating Agreement dated as of August 8, 1968 between Roy M.
Huffington, Inc., as operator, and Union Texas Far East Corporation, Golden
Eagle Indonesia Limited, Virginia International Company and Austral Petroleum
Gas Corporation, as non-operators, as amended by a letter agreement effective
September 15, 1973 among these parties and an Amendment to Operating Agreement
dated as of April 1, 1990 among Roy M. Huffington, Inc., Ultramar Indonesia
Limited, Virginia Indonesia Company, Virginia International Company, Union
Texas East Kalimantan Limited, and Universe Gas & Oil Company, Inc. and a
Letter dated February 8, 1990 from the IJV Contractors to Pertamina.
4. Amended and Restated Bontang Processing Agreement dated as of
February 9, 1988 among Pertamina, the IJV Contractors, Total Indonesie,
Indonesia Petroleum, Ltd., Unocal Indonesia, Ltd., and P. T. Badak.
B. Supply Agreements.
1. Amended and Restated Supply Agreement (In support of the Amended
and Restated 1973 LNG Sales Contract) dated September 22, 1993, but effective
as of December 3, 1973, between Pertamina and the IJV Contractors.
29
2. Supply Agreement for Badak LNG Expansion Project dated as of
April 14, 1981 among Pertamina and the IJV Contractors, as supplemented by the
Memorandum of Understanding dated as of April 14, 1981 among Pertamina, the IJV
Contractors, Total Indonesie, and Union Oil Company of Indonesia, and the
Supplemental Memorandum dated August 24, 1983 among Pertamina and the IJV
Contractors and as amended by the Memorandum dated December 1, 1988 among
Pertamina and the IJV Contractors.
3. Badak III LNG Sales Contract Supply Agreement executed October
19, 1987, but effective as of March 19, 1987 among Pertamina and the IJV
Contractors, as supplemented by the Supplemental Memorandum dated as of January
1, 1990 among Pertamina and the IJV Contractors.
4. Amended and Restated Second Supply Agreement for Excess Sales
(Quantities In Kind and LNG Amounts Under Amended and Restated Invoice
Settlement Agreements) dated as of January 19, 1990, but effective December 1,
1988, among Pertamina and the IJV Contractors, as supplemented by the
Supplemental Memorandum dated as of January 1, 1990 among Pertamina and the IJV
Contractors.
5. Badak IV LNG Sales Contract Supply Agreement dated as of August
12, 1991, but effective as of October 23, 1990, among Pertamina and the IJV
Contractors, as supplemented by the Memorandum of Understanding Re: Supply
Agreements and Package IV Sales dated as of August 12, 1991, but effective as
of July 1, 1990, and the Supplemental Memorandum of Understanding dated as of
January 31, 1994, but effective as of July 1, 1990, each among Pertamina, the
IJV Contractors, Total Indonesie, Unocal Indonesia, Ltd., and Indonesia
Petroleum, Ltd., and the Addendum to Badak IV LNG Sales Contract Supply
Agreement dated as of January 31, 1994, but effective as of October 23, 1990
among Pertamina and the IJV Contractors.
C. Miscellaneous Agreements.
1. Amended and Restated Bontang II Trustee and Paying Agent
Agreement dated as of July 15, 1991 among the IJV Contractors, Pertamina, Total
Indonesie, Unocal Indonesia, Ltd., and Indonesia Petroleum Ltd., and
Continental Bank International ("CBI"), as trustee.
2. Amended and Restated Debt Service Allocation Agreement dated as
of February 9, 1988 among Pertamina, the IJV Contractors, Total Indonesie,
Indonesia Petroleum, Ltd. and Unocal Indonesia, Ltd.
3. Amended and Restated Badak Trustee and Paying Agent Agreement
dated as of February 9, 1988 among Pertamina, the IJV Contractors, Total
Indonesie, Unocal Indonesia, Ltd., Indonesia Petroleum, Ltd., and CBI, as
trustee ("Bontang I Trustee").
D. Bontang Capital Project Financing Tier III-2.
1. Producers Agreement No. 2 dated as of June 9, 1987 among the IJV
Contractors, the lenders named therein, and The Industrial Bank of Japan Trust
Company ("IBJ Trust"), as agent for such lenders, as amended by the Amendment
No. 1 to Producers Agreement No. 2 dated as of February 9, 1988 and Amendment
No. 2 to Producers Agreement No. 2 dated as of May 31, 1988, each among the IJV
Contractors, the lenders named therein, and IBJ Trust, as agent for such
lenders.
30
2. Bontang Capital Projects Loan Agreement No. 2 dated as of June 9,
1987 among the Bontang I Trustee, the lenders named therein, and IBJ Trust, as
agent for such lenders, as amended by the Amendment No. 1 to Bontang Capital
Projects Loan Agreement No. 2 dated as of February 9, 1988 among the Bontang I
Trustee, the lenders named therein, and IBJ Trust, as agent for such lenders.
E. Train E Financing.
1. Bontang III Producers Agreement dated as of February 9, 1988
among Pertamina, the IJV Contractors, Total Indonesie, Indonesia Petroleum,
Ltd., and Unocal Indonesia, Ltd. in favor of Train-E Finance Co., Ltd., as
Tranche A Lender, the banks named therein as Tranche B Lenders and IBJ Trust as
Agent for such Tranche B Lenders, as amended by Amendment No. 1 dated as of May
31, 1988 among Pertamina, the IJV Contractors, Total Indonesie, Indonesia
Petroleum, Ltd., and Unocal Indonesia, Ltd. in favor of Train-E Finance Co.,
Ltd., as Tranche A Lender, the banks named therein as Tranche B Lenders and IBJ
Trust as Agent for such Tranche B Lenders.
2. Bontang III Trustee and Paying Agent Agreement dated as of
February 9, 1988 among Pertamina, the IJV Contractors, Total Indonesie,
Indonesia Petroleum, Ltd., Unocal Indonesia, Ltd. and CBI, as trustee (the
"Bontang III Trustee"), as amended by Amendment No.1 dated as of December 11,
1992 among Pertamina, the IJV Contractors, Total Indonesie, Indonesia
Petroleum, Ltd., Unocal Indonesia, Ltd. and the Bontang III Trustee.
3. Amended and Restated Bontang Excess Sales Trustee and Paying
Agent Agreement dated as of February 9, 1988 among Pertamina, the IJV
Contractors, Total Indonesie, Indonesia Petroleum, Ltd., Unocal Indonesia, Ltd.
and CBI, as trustee.
4. Bontang III Loan Agreement dated as of February 9, 1988 among the
Bontang III Trustee, Train-E Finance Co., Ltd., as Tranche A Lender, the banks
named therein as Lead Managers and Tranche B Lenders and IBJ Trust as Agent for
such Tranche B Lenders.
F. LPG Financing.
1. Amended and Restated Bontang LPG Trustee and Paying Agent
Agreement dated as of December 31, 1991 among Pertamina, the IJV Contractors,
Total Indonesie, Indonesia Petroleum, Ltd., Unocal Indonesia, Ltd. and CBI, as
trustee.
2. Advance Payment Agreement dated as of February 18, 1987 between
Pertamina and Arun Bontang Project Finance Co., Ltd.
G. Train F Financing.
1. Bontang IV Producers Agreement dated as of August 26, 1991 among
Pertamina, the IJV Contractors, Total Indonesie, Indonesia Petroleum, Ltd., and
Unocal Indonesia, Ltd. in favor of the lenders named therein and The Chase
Manhattan Bank, N.A. as agent for such lenders.
31
2. Bontang IV Trustee and Paying Agent Agreement dated as of August
26, 1991 among Pertamina, the IJV Contractors, Total Indonesie, Indonesia
Petroleum, Ltd., Unocal Indonesia, Ltd. and CBI, as trustee (the "Bontang IV
Trustee").
3. Bontang IV Loan Agreement dated as of August 26, 1991 among the
Bontang IV Trustee, the lenders named therein and The Chase Manhattan Bank,
N.A. as agent for such lenders.
32
EXHIBIT D-1
OPINION OF SPECIAL INDONESIAN COUNSEL
April 24, 1995
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
700 Louisiana Street
Houston, Texas 77002
Dear Sirs:
We have acted as special Indonesian counsel to Union Texas
Petroleum Holdings, Inc., a Delaware corporation (the "Company"), in connection
with the Third Amendment Agreement dated as of April 24, 1995 (the "Credit
Amendment") among the Company, the Banks and Co-Agents party to the Credit
Agreement (as defined below) and the Agent (as defined below), which Credit
Amendment amends the Amended and Restated Credit Agreement dated as of May 13,
1994, as amended by the First Amendment Agreement dated as of November 21, 1994
and the Second Amendment Agreement dated as of January 31, 1995 (as so amended,
the "Credit Agreement"), among the Company, the Banks and Co-Agents listed on
the signature pages thereof and NationsBank of Texas, N.A., as Agent (the
"Agent"), and to Union Texas East Kalimantan Limited, a Bahamian corporation
(the "Guarantor"), in connection with the Second Amendment to Amended and
Restated Subsidiary Guaranty dated as of April 24, 1995 (the "Guaranty
Amendment") among the Guarantor, the Other Guarantors (defined below) and the
Agent, which Guaranty Amendment amends the Amended and Restated Subsidiary
Guaranty Agreement dated as of May 13, 1994, as amended by the First Amendment
to Amended and Restated Subsidiary Guaranty dated as of November 21, 1994 (as
so amended, the "Subsidiary Guaranty Agreement"), among Union Texas Petroleum
Energy Corporation, a Delaware corporation, Union Texas Products Corporation, a
Delaware corporation, Union Texas International Corporation, a Delaware
corporation, Unistar, Inc., a Delaware corporation (collectively, the "Other
Guarantors"), the Guarantor and the Agent. Terms defined in the Credit
Agreement as amended by the Credit Amendment (the "Amended Credit Agreement")
and not otherwise defined herein are used herein as therein defined.
In connection with the opinions expressed below, we have
examined the Credit Agreement, the April 3, 1995 draft of the Credit Amendment,
the Subsidiary Guaranty Agreement and the April 3, 1995 draft of the Guaranty
Amendment. We have also examined copies, certified or otherwise identified to
our satisfaction, of the Production Sharing Contracts described in Exhibit "A"
attached hereto and such other instruments, documents and records as we have
deemed necessary to express the opinions hereinafter set forth. We have
relied, to the extent that we deem such reliance
33
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 2
proper, upon certificates of officers of the Guarantor as to matters of fact
not independently established by us.
For purposes of this opinion, we have assumed the genuineness
of all signatures appearing on the documents examined by us, the authenticity
of all documents submitted to us as originals, the conformity with the original
documents of all documents submitted to us, or otherwise in our possession, as
copies, and the due authorization, execution and delivery of all such
documents. Wherever the phrase "to the best of our knowledge" appears in this
opinion, its use reflects that we have no actual knowledge to the contrary,
that we have made due inquiry of the Guarantor, but that we have not made any
independent investigation into any of the matters to which we refer.
Based on the foregoing, and subject to the qualifications and
limitations set forth below, we are of the opinion so far as the laws of the
Republic of Indonesia are concerned that:
1. The Guarantor is duly qualified as a foreign
corporation under the laws of the Republic of Indonesia, to the extent required
by Indonesian law and to the extent necessary to carry out its obligations
under the Production Sharing Contracts, and has all material governmental
licenses, authorizations, consents and approvals required to own property and
assets situated in Indonesia and to carry on business in the Republic of
Indonesia in accordance with the terms of the Production Sharing Contracts.
2. The execution, delivery and performance by the
Guarantor of the Guaranty Amendment and the performance by the Guarantor of the
Subsidiary Guaranty Agreement as amended by the Guaranty Amendment (the
"Amended Guaranty Agreement") do not constitute a breach of or default under
any provision of applicable law or regulation of the Republic of Indonesia.
3. To the best of our knowledge, the execution, delivery
and performance by the Guarantor of the Guaranty Amendment and the performance
by the Guarantor of the Amended Guaranty Agreement do not constitute a breach
of or default under, or result in the creation or imposition of any Lien on any
material asset of the Guarantor under, any judgment, injunction, order or
decree of any court or governmental instrumentality of the Republic of
Indonesia binding upon the Guarantor.
4. No authorization, consent or approval of any
Indonesian governmental body, agency or official is required in connection with
the execution,
34
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 3
delivery or performance by the Guarantor of the Guaranty Amendment and the
performance by the Guarantor of the Amended Guaranty Agreement. [The Guarantor
is obligated to report the execution and delivery of the Guaranty Amendment to
the Foreign Commercial Loan Team (the "Team") established pursuant to
Presidential Decree No. 39 of 1991 and to deliver to the Team and to Bank
Indonesia copies of the Credit Amendment and the Guaranty Amendment.]
5. To the best of our knowledge, there is no action,
suit or proceeding pending against, threatened against or affecting the
Guarantor or any of its properties or interests, at law or in admiralty or
equity, before any court, arbitrator, governmental body, agency or official of
the Republic of Indonesia.
6. The choice of Texas law as the proper law of the
Guaranty Amendment and the Amended Guaranty Agreement would be upheld as a
valid choice of law by the courts of the Republic of Indonesia, and the
submission by the Guarantor to the nonexclusive jurisdiction of the courts
referred to in Section 3.05 of the Amended Guaranty Agreement with respect to
proceedings in connection with the Amended Guaranty Agreement would be treated
by the courts of the Republic of Indonesia as legal, valid, binding and
enforceable in accordance with the terms of such Section 3.05. We note,
however, that judgments of foreign courts are not enforceable in Indonesia.
7. All amounts payable by the Guarantor under the
Guaranty Amendment and the Amended Guaranty Agreement may be made free and
clear of and without deduction for or on account of any taxes, imposts,
withholdings or other deductions imposed, assessed or levied by the Republic of
Indonesia or any department, agency, political subdivision, instrumentality or
authority thereof or therein, irrespective of the fact that the Agent or any of
the Banks may have a representative office or subsidiary in Indonesia, except
that to the extent any payments of interest and other payments in the nature of
interest made by the Guarantor under the Guaranty Amendment and the Amended
Guaranty Agreement are recognized as being effectively connected with the
carrying on of the Guarantor's business in the Republic of Indonesia,
Indonesian withholding tax is payable at a rate of 20% thereof, except where a
recipient qualifies for a lower rate under a bilateral tax treaty and an
approval pursuant to the Circular Letter of the Director General of Taxation
No. SE-22/PJ.35/1993 dated August 31, 1993, has been obtained from the
Indonesian tax authorities acknowledging that the recipient is entitled to the
benefits of the treaty.
35
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 4
8. No stamp or registration duty or similar taxes or
charges are payable in the Republic of Indonesia in respect of the Guaranty
Amendment and the Amended Guaranty Agreement, except nominal stamp taxes.
9. Under the laws of the Republic of Indonesia, neither
the Agent nor any Bank will be deemed to be resident, domiciled or carrying on
any commercial activity in the Republic of Indonesia or, except as provided in
subparagraph 7 above, subject to any Indonesian taxes, imposts or duties as a
result only of the entry into and performance of the Guaranty Amendment and the
Amended Guaranty Agreement or the transactions contemplated thereby.
This opinion is limited in all respects to the laws of the
Republic of Indonesia. This opinion is for the benefit of and may be relied
upon by the Company, the Guarantor, the Banks, the Agent, the Co-Agents, their
respective successors and assigns, their respective counsel and Participants in
connection with the transactions contemplated by the Amended Credit Agreement
and may be relied upon by Newton W. Wilson, III, General Counsel of the
Company, and Andrews & Kurth L.L.P., special counsel to the Company, in
rendering their respective opinions to the Banks and the Agent in connection
with such transactions. Otherwise, this opinion may not be used, published,
circulated or relied upon by any other person for any purpose without our prior
written consent.
Very truly yours,
MOCHTAR, KARUWIN & KOMAR
36
EXHIBIT A
PRODUCTION SHARING CONTRACTS
1. Amended and Restated Production Sharing Contract
dated April 23, 1990, but effective as of August 8, 1968 among Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara, and Roy M. Huffington, Inc., Virginia
Indonesia Company, Virginia International Company, Ultramar Indonesia Limited,
Union Texas East Kalimantan Limited, Universe Gas & Oil Company, Inc. and
Huffington Corporation.
2. Production Sharing Contract dated April 23, 1990, but
effective as of August 8, 1998 among Perusahaan Pertambangan Minyak Dan Gas
Bumi Negara, and Roy M. Huffington, Inc., Virginia Indonesia Company, Virginia
International Company, Ultramar Indonesia Limited, Union Texas East Kalimantan
Limited, Universe Gas & Oil Company, Inc. and Huffington Corporation.
37
EXHIBIT D-2
OPINION OF SPECIAL BAHAMIAN COUNSEL
April 24, 1995
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
700 Louisiana Street
Houston, Texas 77002
Dear Sirs:
We have acted as special Bahamian counsel to Union Texas
Petroleum Holdings, Inc., a Delaware corporation (the "Company"), in connection
with the Third Amendment Agreement dated as of April 24, 1995 (the "Credit
Amendment") among the Company, the Banks and Co-Agents party to the Credit
Agreement (as defined below) and the Agent (as defined below), which Credit
Amendment amends the Amended and Restated Credit Agreement dated as of May 13,
1994, as amended by the First Amendment Agreement dated as of November 21, 1994
and the Second Amendment Agreement dated as of January 31, 1995 (as so amended,
the "Credit Agreement"), among the Company, the Banks and Co-Agents listed on
the signature pages thereof and NationsBank of Texas, N.A., as Agent (the
"Agent"), and to Union Texas East Kalimantan Limited, a Bahamian corporation
(the "Guarantor") in connection with the Second Amendment to Amended and
Restated Subsidiary Guaranty Agreement dated as of April 24, 1995 (the
"Guaranty Amendment") among the Guarantor, the Other Guarantors (defined below)
and the Agent, which Guaranty Amendment amends the Amended and Restated
Subsidiary Guaranty Agreement dated as of May 13, 1994, as amended by the First
Amendment to Amended and Restated Subsidiary Guaranty Agreement dated as of
November 21, 1994 (as so amended, the "Subsidiary Guaranty Agreement"), among
Union Texas Petroleum Energy Corporation, a Delaware corporation, Union Texas
Products Corporation, a Delaware corporation, Union Texas International
Corporation, a Delaware corporation, Unistar, Inc., a Delaware corporation
(collectively, the "Other Guarantors"), the Guarantor and the Agent. Terms
defined in the Credit Agreement as amended by the Credit Amendment (the
"Amended Credit Agreement") and not otherwise defined herein are used herein as
therein defined.
In connection with the opinions expressed below, we have
examined the Credit Agreement, the April 3, 1995 draft of the Credit Amendment,
the Subsidiary Guaranty Agreement and the April 3, 1995 draft of the Guaranty
Amendment. We have also examined copies, certified or otherwise identified to
our satisfaction, of such other instruments, documents and records as we have
deemed necessary to express the opinions hereinafter set forth. We have
relied, to the extent that we deem such reliance
38
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 2
proper, upon certificates of officers of the Guarantor as to matters of fact
not independently established by us.
For purposes of this opinion, we have assumed the genuineness
of all signatures appearing on the documents examined by us, the authenticity
of all documents submitted to us as originals, the conformity with the original
documents of all documents submitted to us, or otherwise in our possession, as
copies, and the due authorization, execution and delivery of all such documents
(other than the Subsidiary Guaranty Agreement and the Guaranty Amendment
insofar as such documents relate to the Guarantor). Wherever the phrase "to
the best of our knowledge" appears in this opinion, its use reflects that we
have no actual knowledge to the contrary, that we have made due inquiry of the
Guarantor, but that we have not made any independent investigation into any of
the matters to which we refer.
Based on the foregoing and subject to the qualifications and
limitations set forth below, we are of the opinion that:
1. The Guarantor is a corporation duly organized,
validly existing and in good standing, and has all corporate power and
authority and all material governmental licenses, authorizations, consents and
approvals required to own its assets and to carry on its business as now
conducted.
2. The execution, delivery and performance by the
Guarantor of the Guaranty Amendment and the performance by the Guarantor of the
Subsidiary Guaranty Agreement as amended by the Guaranty Amendment (the
"Amended Guaranty Agreement") are within the Guarantor's corporate powers, have
been duly authorized by all necessary corporate action, and do not constitute a
breach of or default under any provision of applicable law or regulation of The
Bahamas or the Memorandum of Association or the Articles of Association of the
Guarantor.
3. To the best of our knowledge, the execution, delivery
and performance by the Guarantor of the Guaranty Amendment and the performance
by the Guarantor of the Amended Guaranty Agreement do not constitute a breach
of or default under, or result in the creation or imposition of any Lien on any
material asset of the Company or the Guarantor under, any judgment, injunction,
order or decree of any court or governmental instrumentality of The Bahamas
binding upon the Guarantor.
4. No authorization, consent or approval of any Bahamian
governmental body, agency or official is required in connection with the
execution,
39
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 3
delivery or performance by the Guarantor of the Guaranty Amendment and the
performance by the Guarantor of the Amended Guaranty Agreement.
5. To the best of our knowledge, there is no pending or
threatened action, suit or proceeding before any court or any governmental
agency or body or any arbitrator in The Bahamas involving the Guarantor.
6. The choice of Texas law as the proper law of the
Guaranty Amendment and the Amended Guaranty Agreement would be upheld as a
valid choice of law by the courts of The Bahamas, and the submission by the
Guarantor to the nonexclusive jurisdiction of the courts referred to in Section
3.05 of the Amended Guaranty Agreement with respect to proceedings in
connection with the Amended Guaranty Agreement is legal, valid, binding and
enforceable in accordance with the terms of such Section 3.05.
7. (a) Any of William M. Krips, President, Larry D.
Kalmbach, Vice President, Johnnie J. Cox, Vice President, James E. Knight, Vice
President, Newton W. Wilson, III, Secretary, Michael N. Markowitz, Treasurer,
Robert V. Deere, Controller, Alan R. Crain, Assistant Secretary, and Luis H.
Derrota, Assistant Secretary (collectively, the "Authorized Officers") of the
Guarantor has been duly authorized to sign the Guaranty Amendment and any other
required documents on behalf of the Guarantor and will bind the Guarantor by
their actions.
(b) Upon execution and delivery of the Guaranty Amendment
by any Authorized Officer, the Guaranty Amendment and the Amended Guaranty
Agreement will constitute legal, valid and binding obligations of the Guarantor
enforceable against the Guarantor in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
similar laws affecting creditors' rights generally and to general principles of
equity, and the Guaranty Amendment and the Amended Guaranty Agreement are in
proper form for their enforcement in the courts of The Bahamas.
8. All amounts payable by the Guarantor under the
Guaranty Amendment and the Amended Guaranty Agreement may be made free and
clear of and without deduction for or on account of any taxes, imposts,
withholdings or deductions of any kind imposed, assessed or levied by The
Bahamas or any authority thereof or therein, irrespective of the fact that the
Agent or any of the Banks may have a representative office or subsidiary in The
Bahamas.
40
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 4
9. A stamp duty of Ten dollars Bahamian currency
(B$10.00) is payable in The Bahamas in respect of the Guaranty Amendment. No
other duty, tax or charge is payable in The Bahamas in respect of the Guaranty
Amendment. The required stamp duty has been paid in The Bahamas in respect of
the Subsidiary Guaranty Agreement. No other duty, tax or charge is payable in
respect of the Subsidiary Guaranty Agreement.
10. Under the laws of The Bahamas, neither the Agent nor
any Bank will be deemed to be resident, domiciled or carrying on any commercial
activity in The Bahamas or subject to any Bahamian taxes, imposts or duties as
a result only of the entry into and performance of the Guaranty Amendment and
the Amended Guaranty Agreement or the transactions contemplated thereby.
This opinion is limited in all respects to the laws of The
Bahamas. This opinion is for the benefit of and may be relied upon by the
Company, the Guarantor, the Banks, the Agent, the Co-Agents, their respective
successors and assigns, their respective counsel and Participants in connection
with the transactions contemplated by the Amended Credit Agreement and may be
relied upon by Newton W. Wilson, III, General Counsel of the Company, and
Andrews & Kurth L.L.P., special counsel to the Company, in rendering their
respective opinions to the Banks and the Agent in connection with such
transactions. Otherwise, this opinion may not be used, published, circulated
or relied upon by any other person for any purpose without our prior written
consent.
Yours faithfully,
GRAHAM, THOMPSON & CO.
41
EXHIBIT E
OPINION OF SPECIAL COUNSEL TO THE AGENT
April 24, 1995
To NationsBank of Texas, N.A., as Agent,
and to each of the Banks referred to below
Ladies and Gentlemen:
We have acted as special counsel to NationsBank of Texas, N.A., acting for
itself and as Agent ("Agent"), in connection with the preparation, execution
and delivery of the Third Amendment Agreement dated as of April 24, 1995 (the
"Credit Amendment") among Union Texas Petroleum Holdings, Inc., a Delaware
corporation (the "Company"), the Banks and Co-Agents party to the Credit
Agreement (defined below) and the Agent, which Credit Amendment amends the
Amended and Restated Credit Agreement dated as of May 13, 1994 as amended by
the First Amendment Agreement dated November 21, 1994 and the Second Amendment
Agreement dated as of January 31, 1995 (as so amended, the "Credit Agreement")
among the Company, the banks listed on the signature pages thereof (the
"Banks"), the Agent and the Co-Agents. Capitalized terms defined in the Credit
Agreement as amended by the Credit Amendment (the "Amended Credit Agreement")
and not defined herein are used herein as therein defined.
In that connection, we have examined counterparts of the Credit Amendment
executed by the Agent and the Company respectively and the following documents:
(1) The Notes delivered to the Agent on the date hereof.
(2) The Second Amendment to Amended and Restated Subsidiary
Guaranty Agreement delivered to the Agent on the date hereof
(the "Guaranty Amendment").
(3) The legal opinions delivered to the Agent pursuant to Sections
2.3, 2.4 and 2.5 of the Credit Amendment.
In our examination of the documents referred to above, we have assumed the
authenticity of all such documents submitted to us as originals, the
genuineness of all signatures and the conformity to the originals of all such
documents submitted to us as copies. We have also assumed the accuracy of all
matters set forth in the certificates delivered to the Agent in connection with
the Credit Amendment or the Credit Agreement and assumed that each of Company,
the Banks, the Agent and the Co-Agents has duly executed and delivered, with
all necessary power and authority
42
To the Banks and the Agent
Referred to Below
c/o NationsBank of Texas, N.A., as Agent
April 24, 1995
Page 2
(corporate and otherwise), the Credit Amendment and the Credit Agreement, that
the Company has duly executed and delivered, with all necessary power and
authority (corporate and otherwise), the respective Notes, and that each of the
Required Guarantors and the Agent has duly executed and delivered, with all
necessary power and authority (corporate and otherwise), the Subsidiary
Guaranty Agreement and the Guaranty Amendment. We have also assumed that no
Bank has requested multiple Notes pursuant to Section 2.05(b) of the Amended
Credit Agreement.
Based upon the foregoing examination of documents and assumptions and upon such
other investigation as we have deemed necessary, we are of the opinion that the
documents referred to in items (1), (2) and (3) above are substantially
responsive to the requirements of the Credit Amendment.
This opinion is delivered to you only in connection with the transactions
contemplated by the Credit Amendment, the Amended Credit Agreement, the
Guaranty Amendment and the Subsidiary Guaranty Agreement and may not be quoted,
circulated or published, in whole or in part, or furnished to any Person, other
than your respective successors and assigns and Participants, without our
written consent.
Very truly yours,
Bracewell & Patterson, L.L.P.