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Exhibit 10.5
FOURTH AMENDMENT AGREEMENT
This Fourth Amendment Agreement, effective as of June 16, 1995
("Amendment"), is by and among (i) Union Texas Petroleum Holdings, Inc., a
Delaware corporation ("Company"), (ii) the undersigned lenders ("Banks") which
are parties to 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, the Second Amendment Agreement dated as of January 31, 1995 and the Third
Amendment Agreement dated as of April 24, 1995 (as so amended, the "Agreement")
among the Company, the lenders party thereto, NationsBank of Texas, N.A., as
agent ("Agent"), and the Co-Agents named therein, (iii) the Agent and (iv) the
Co-Agents. 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 Agreement 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:
"Adjusted Equity" means the consolidated stockholders equity
of the Company and its Consolidated Subsidiaries, as determined on a
consolidated basis in accordance with generally accepted accounting
principles, adjusted to exclude (i) any cumulative foreign exchange
translation adjustments, (ii) any non-cash write-up or writedown of
any assets of the Company and its Consolidated Subsidiaries made after
March 31, 1995 in accordance with generally accepted accounting
principles, and (iii) the non-cash effect of the adoption of any
change after March 31, 1995 required by generally accepted accounting
principles.
"Margin Increase Condition" exists at all times during which
any senior unsecured long-term debt of the Company is rated below BBB-
by S&P.
Section 1.01 of the Agreement is hereby further amended by deleting
therefrom the definitions of "Additional Margin Increase Condition" and "Margin
Period".
1.2. Section 2.07(a). The first sentence of Section
2.07(a) of the Agreement is hereby amended to read as follows:
(a) If such Loan is a Base Rate Loan, for each day that
such Loan is a Base Rate Loan, at a rate per annum equal to the sum of (i) the
Base Rate for such day plus (ii) at such times as the Margin Increase Condition
exists, 1/4% plus (iii) at such times as any Event of Default exists, 1%.
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1.3. Section 2.07(b). The first sentence of Section
2.07(b) is hereby amended to read as follows:
(b) If such Loan is a Euro-Dollar Loan, at a rate per
annum equal at all times during any Interest Period for such Loan to the sum of
(i) 0.575% plus (ii) the applicable London Interbank Offered Rate plus (iii) at
such times as the Margin Increase Condition exists, 1/4% plus (iv) at such
times as any Event of Default exists, 1%; provided that if any Euro-Dollar Loan
or any portion thereof shall, as a result of clause (1)(c)(i) of the definition
herein of "Interest Period", have an Interest Period of less than one month,
such portion shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period.
1.4. Section 2.07(c). The first sentence of Section
2.07(c) is hereby amended to read as follows:
(c) If such Loan is a Sterling Loan, at a rate per annum
equal at all times during any Interest Period for such Loan to the sum of (i)
0.575% plus (ii) the applicable Sterling Interbank Offered Rate plus (iii) at
such times as the Margin Increase Condition exists, 1/4% plus (iv) at such
times as any Event of Default exists, 1%; provided that if any Sterling Loan or
any portion thereof shall, as a result of clause (4)(c)(i) of the definition
herein of "Interest Period", have an Interest Period of less than one month,
such portion shall bear interest during such Interest Period at the rate
otherwise applicable to such Sterling Loans during such period plus 1/2%.
1.5. Section 2.07(d). Section 2.07(d) is hereby amended
to read as follows:
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for each day from and
including the date payment thereof was due to but excluding the date of actual
payment, at a rate per annum equal to the sum of 1% plus the higher of (i) the
sum of 0.575% plus the London Interbank Offered Rate applicable to such Loan
plus at such times as the Margin Increase Condition exists, 1/4% and (ii) the
sum of (1) 0.575% plus (2) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than three months as the Agent
may select) deposits in Dollars in an amount approximately equal to such
overdue payment due to each of the Reference Banks are offered to such
Reference Bank in the London interbank market for the applicable period
determined as provided above plus (3) at such times as the Margin Increase
Condition exists, 1/4% (or, if the circumstances described in clause (i) or
(ii) of Section 8.01(a) shall exist, at a rate per annum equal to the sum of 1%
plus the rate applicable to Base Rate Loans for such day).
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1.6. Section 2.07(e). Section 2.07(e) is hereby amended
to read as follows:
(e) Any overdue principal of or interest on any Sterling
Loan shall bear interest, payable on demand, for each day from and including
the date payment thereof was due to but excluding the date of actual payment,
at a rate per annum equal to the sum of 1% plus the higher of (i) the sum of
0.575% plus the Sterling Interbank Offered Rate applicable to such Loan plus at
such times as the Margin Increase Condition exists, 1/4% and (ii) the sum of
(1) 0.575% plus (2) the average (rounded upward, if necessary, to the next
higher 1/16 of 1%) of the respective rates per annum at which one day (or, if
such amount due remains unpaid more than three Sterling Business Days, then for
such other period of time not longer than three months as the Agent may select)
deposits in Sterling in an amount approximately equal to such overdue payment
due to each of the Reference Banks are offered to such Reference Bank in the
London interbank market for the applicable period determined as provided above
plus (3) at such times as the Margin Increase Condition exists, 1/4% (or, if
the circumstances described in clause (i) or (ii) of Section 8.01(b) shall
exist, at a rate per annum equal to the sum of 1% plus the rate applicable to
Base Rate Loans for such day).
1.7. Section 5.01(d). Section 5.01(d) of the Agreement is
hereby amended to read as follows:
(d) as soon as available and in any event within 60 days
after the end of each fiscal quarter of the Company, a certificate of
the chief financial officer, the chief accounting officer or the
treasurer of the Company certifying (i) whether the Margin Increase
Condition exists as of the date of such certificate, (ii) the Unimar
Percentage as of the end of such quarter and the amounts as of the end
of such quarter of Consolidated Debt, Defeased Debt, Excluded
Subordinated Debt, Debt of the Company and its Consolidated
Subsidiaries determined on a consolidated basis, Debt of the Company
and the Restricted Subsidiaries determined on a consolidated basis,
Debt of Unimar, Debt of Unrestricted Subsidiaries, Excess Letter of
Credit/Guarantee Amount, Non-Restricted Asset Non-Recourse Debt,
Non-Recourse Debt of the Company and the Restricted Subsidiaries, and
Restricted Subsidiaries Recourse Debt, and (iii) each Asset Sale that
has been consummated during such quarter, the Fair Market Value of the
Restricted Assets subject thereto, the amount of fees, commissions,
expenses and taxes related thereto, the Net Sales Proceeds therefrom
and the cumulative amount of the Excess Net Sales Proceeds from all
Assets Sales since December 31, 1993;
1.8. Section 5.05(a). Section 5.05(a) of the Agreement is
hereby deleted from the Agreement.
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1.9. Section 5.15. Section 5.15 of the Agreement is
hereby amended by changing the amount "$300,000,000" set forth therein to
"$350,000,000".
1.10. Section 8.01(a). Clause (y) of Section 8.01(a) of
the Agreement is hereby amended to read as follows:
(y) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such
Borrowing shall bear interest for each day from and including
the first day to but excluding the last day of the Interest
Period applicable thereto at the sum of the Base Rate for such
day plus at such times as the Margin Increase Condition
exists, 1/4% plus at such times as any Event of Default
exists, 1%.
1.11. Section 9.05. Section 9.05 of the Agreement is
hereby amended by deleting the second proviso thereof (which pertains to
amendments to or waivers of Section 5.05(a)).
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);
and
2.2. a consent, duly executed by each of the Required
Guarantors, substantially in the form of Exhibit A hereto.
3. Miscellaneous.
3.1. 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.
3.2. 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.
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 Agreement (including, without limitation,
exhibits thereto) or any other
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Financing Document remain in full force and effect. Undefined capitalized
terms used herein are used herein as defined in the Agreement as amended
hereby.
3.4. 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.
3.5. Representations and Warranties. The Company hereby
represents and warrants to the Banks, the Co-Agents 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 and the Agreement as amended hereby,
constituting "Financing Documents" for purposes thereof, and (ii) no event has
occurred and is continuing which constitutes a Default or an Event of Default.
3.6. 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
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M.N. Markowitz
Vice President and Treasurer
BANKS:
NATIONSBANK OF TEXAS, N.A. BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ PAUL A. SQUIRES By: /s/ LAURA B. SHEPARD
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Paul A. Squires Authorized Officer
Senior Vice President
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UNION BANK OF SWITZERLAND, MELLON BANK, N.A.
HOUSTON AGENCY
By: /s/ EVANS SWANN By: /s/ A. J. SABATELLE
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Evans Swann
Managing Director Authorized Officer
By: /s/ DAN O. BOYLE
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Dan O. Boyle
Vice President
THE BANK OF NOVA SCOTIA MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ [Illegible] By: /s/ JOHN KOWALCZUK
------------------------ ----------------------
Authorized Officer Authorized Officer
CHEMICAL BANK BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By: /s/ [Illegible] By: /s/ [Illegible]
------------------------ ----------------------
Authorized Officer Authorized Officer
CREDIT LYONNAIS CAYMAN LTCB TRUST COMPANY
ISLAND BRANCH
By: /s/ XAVIER RATOUIS By: /s/ [Illegible]
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Authorized Officer Authorized Officer
THE FIRST NATIONAL BANK OF SOCIETE GENERALE, SOUTHWEST
CHICAGO AGENCY
By: /s/ [Illegible] By: /s/ [Illegible]
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Authorized Agent Authorized Officer
THE BANK OF TOKYO, LTD.,
DALLAS AGENCY
By: /s/ JOHN M. MCINTYRE
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Authorized Officer
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BANQUE PARIBAS, HOUSTON THE MITSUBISHI TRUST &
AGENCY BANKING CORPORATION
By: /s/ [Illegible] By: /s/ [Illegible]
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Authorized Officer Authorized Officer
By: /s/ BART SCHOUEST
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Authorized Officer
CHRISTIANIA BANK NATIONAL WESTMINSTER BANK
PLC (NEW YORK BRANCH)
By: /s/ JAHN O. ROISING By: /s/ [Illegible]
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Authorized Officer Authorized Officer
By: /s/ [Illegible]
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Authorized Officer
CITIBANK, N.A. NATIONAL WESTMINSTER BANK
PLC (NASSAU BRANCH)
By: /s/ BARBARA A. COHEN By: /s/ [Illegible]
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Barbara A. Cohen Authorized Officer
Vice President
DRESDNER BANK AG, NEW YORK THE YASUDA TRUST AND BANKING
AND GRAND CAYMAN BRANCHES COMPANY, LIMITED, NEW YORK
BRANCH
By: /s/ [Illegible] By: /s/ GERARD GILL
------------------------ ----------------------
Authorized Officer Authorized Officer
By: /s/ B. C. ERICKSON
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Authorized Officer
BANK OF TAIWAN
By: /s/ [Illegible]
----------------------
Authorized Officer
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BANQUE FRANCAISE DU DEN NORSKE BANK AS
COMMERCE EXTERIEUR
By: /s/ IAIN A. WHYTE By: /s/ EDWARD L. METE
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Iain A. Whyte Edward L. Mete
Assistant Vice President Senior Vice President
By: /s/ MARK A. HARRINGTON By: /s/ FRAN MEYERS
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Mark A. Harrington Fran Meyers
Vice President & Vice President
Regional Manager
FIRST INTERSTATE BANK OF
TEXAS, N.A.
By: /s/ COLLIE C. MICHAELS
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Authorized Officer
NATIONSBANK OF TEXAS, N.A.,
as Agent
By: /s/ PAUL A. SQUIRES
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Paul A. Squires
Senior Vice President
BANK OF AMERICA NATIONAL UNION BANK OF SWITZERLAND,
TRUST AND SAVINGS HOUSTON AGENCY, as Co-Agent
ASSOCIATION, as Co-Agent
By: /s/ LAURA B. SHEPARD By: /s/ EVANS SWANN
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Authorized Officer Evans Swann
Managing Director
By: /s/ DAN O. BOYLE
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Dan O. Boyle
Vice President
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EXHIBIT A
ACKNOWLEDGEMENT AND CONSENT
June 16, 1995
Reference is made to 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, the Second Amendment Agreement dated as of January 31,
1995, and the Third Amendment Agreement dated as of April 24, 1995 (as so
amended, the "Credit Agreement"), among Union Texas Petroleum Holdings, Inc., a
Delaware corporation ("Company"), the Banks and Co-Agents parties thereto, and
NationsBank of Texas, N.A., as Agent ("Agent") and to the Fourth Amendment
Agreement dated as of June 16, 1995 (the "Amendment") among the Company, the
Banks and Co-Agents parties thereto, and the Agent. Undefined capitalized
terms are used herein as defined in the Credit Agreement as amended by the
Amendment (the "Amended Credit Agreement").
To induce the Agent and the Banks to execute the Amendment,
each of the undersigned Subsidiary Guarantors hereby (a) acknowledges the
execution, delivery and performance of the Amendment by the Company, (b) agrees
that (i) none of such Subsidiary Guarantor's obligations under or in connection
with the Subsidiary Guaranty Agreement 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) the Subsidiary Guaranty
Agreement is not 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 the Subsidiary Guaranty Agreement, and
(d) agrees that none of such Subsidiary Guarantor's obligations, none of the
Banks' or the Agent's rights and remedies nor the Subsidiary Guaranty
Agreement, would be released, impaired or affected if such Subsidiary Guarantor
had not executed this Acknowledgment and Consent.
IN WITNESS WHEREOF, the parties hereto have caused this
Acknowledgement and Consent to be duly executed and delivered by their
respective officers thereunto duly authorized, as of the 16th day of June,
1995.
SUBSIDIARY GUARANTORS:
UNION TEXAS PETROLEUM ENERGY UNION TEXAS PRODUCTS
CORPORATION CORPORATION
By: By:
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M.N. Markowitz M.N. Markowitz
Treasurer Treasurer
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EXHIBIT A
UNION TEXAS EAST KALIMANTAN UNION TEXAS INTERNATIONAL
LIMITED CORPORATION
By: By:
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M.N. Markowitz M.N. Markowitz
Treasurer Treasurer
UNISTAR, INC.
By:
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M.N. Markowitz
Vice President
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