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EXHIBIT 10.1
FIFTH AMENDMENT AGREEMENT
This Fifth Amendment Agreement dated as of November 3, 1995 (this
"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, the Third
Amendment Agreement dated as of April 24, 1995 and the Fourth Amendment
Agreement dated as of June 16, 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. Section 1.01 of the Agreement is hereby
amended by (i) deleting the definitions of "Obligors", "Required Guarantors",
"Subsidiary Guarantors" and "Subsidiary Guaranty Agreement" and (ii) amending
the definitions of "ERISA Group" and "Financing Documents" to read as follows:
"ERISA Group" means the Company and all members of a
controlled group of corporations and all trades or businesses (whether
or not incorporated) under common control which, together with the
Company, are treated as a single employer under Section 414 of the
Internal Revenue Code.
"Financing Documents" means this Agreement and the Notes.
1.2. References to Obligors. Sections 2.05(c), 2.13 and
4.04(c) of the Agreement are hereby amended, on each occurrence thereof of the
phrase "any Obligor", by deleting such phrase and inserting in lieu thereof the
phrase "the Company". Sections 3.01(e) and 3.01(h) of the Agreement are hereby
amended, on each occurrence thereof of the phrase "the Obligors", by deleting
such phrase and inserting in lieu thereof the phrase "the Company". Section
4.01 of the Agreement is hereby amended by deleting the phrase "Each of the
Obligors" and inserting in lieu thereof the phrase "The Company". Section 4.02
of the Agreement is hereby amended, on each occurrence thereof of any of the
phrases "by each Obligor", "within such Obligor's corporate powers", "of such
Obligor" or "upon such Obligor", by deleting each such phrase and inserting in
lieu thereof the phrase "by the Company", "within the Company's corporate
powers", "of the Company" or "upon the Company", respectively.
1.3. Section 2.17(b). Section 2.17(b) of the Agreement is
hereby amended in its entirety to read as follows:
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(b) In addition, the Company agrees to pay any
present or future stamp or documentary taxes or any other excise or
property taxes, assessments, charges or similar levies which arise
from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, or otherwise with respect to,
this Agreement or any of the Notes (hereinafter referred to as "Other
Taxes").
1.4. Section 3.01(c). Section 3.01(c) of the Agreement is
hereby deleted in its entirety and the phrase "INTENTIONALLY DELETED" is
inserted in lieu thereof.
1.5. Section 3.01(g). Section 3.01(g) of the Agreement is
hereby deleted in its entirety and the phrase "INTENTIONALLY DELETED" is
inserted in lieu thereof.
1.6. Section 4.03. Section 4.03 of the Agreement is hereby
amended in its entirety to read as follows:
SECTION 4.03. Binding Effect. This Agreement and
each of the Notes have been duly executed and delivered by the Company
and constitute legal, valid and binding agreements of the Company.
1.7. Section 4.08. Section 4.08 of the Agreement is hereby
amended in its entirety to read as follows:
SECTION 4.08. Subsidiaries. All Restricted Assets
are owned as of the date of this Agreement by the Company and the
Persons listed in Part B of Schedule II hereto or, in the case of
Restricted Assets sold since December 31, 1993, by Persons other than
Unrestricted Subsidiaries. Part A of Schedule II hereto contains a
true, complete and accurate list of all Unrestricted Subsidiaries, and
Part B of Schedule II hereto contains a true, complete and accurate
list of all Restricted Subsidiaries as of the date of this Agreement.
1.8. Section 5.10. Section 5.10 of the Agreement is hereby
amended in its entirety to read as follows:
SECTION 5.10. Addition of Guarantors. If any
Subsidiary of the Company Guarantees (i) Debt (other than Funded Debt)
of the Company having an aggregate outstanding balance less than
$25,000,000, and any Guarantee of such Debt has not been released or
terminated within 60 days of the date of the incurrence of such
obligation or (ii) Debt (other than Debt described in clause (i)
above) of the Company, then the Company shall (a) cause all Loans and
all other amounts payable at any time under any of the Financing
Documents, including, without limitation, interest which accrues
during a proceeding which occurs under the U.S. Bankruptcy Code or
which would otherwise accrue under
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the terms of any of the Financing Documents, but for a proceeding
under the U.S. Bankruptcy Code, to be equally and ratably guaranteed
by such Subsidiary, (b) cause such Subsidiary to execute and deliver a
subsidiary guaranty agreement in form and substance satisfactory to
the Banks, and (c) deliver an opinion of counsel and officers'
certificate to the effect that such subsidiary guaranty agreement has
been duly authorized and executed by such Subsidiary and constitutes
the legal, valid, binding and enforceable obligation of such
Subsidiary, all in form and substance satisfactory to the Banks.
"Funded Debt" of any Person means at any date, all Debt (including,
without limitation, Debt incurred under any revolving credit, letter
of credit or working capital facility) of such Person that matures by
its terms, or that is renewable at the option of such Person to a date
more than one year after the date on which such Debt is originally
incurred.
1.9. Section 5.19. Section 5.19 of the Agreement is hereby
deleted in its entirety and the phrase "INTENTIONALLY DELETED" is inserted in
lieu thereof.
1.10. Section 5.20. Section 5.20 of the Agreement is hereby
amended in its entirety to read as follows:
SECTION 5.20. Conversion to Unrestricted Subsidiary.
The Company may convert a Restricted Subsidiary into an Unrestricted
Subsidiary by giving the Agent notice of such conversion at least 5
Domestic Business Days prior to such conversion; provided that (i) no
Restricted Subsidiary shall be so converted so long as it owns
directly or indirectly any interest in any Restricted Asset and (ii)
no such conversion shall be made if at the time of such notice or
after giving effect to such conversion, any Default would exist.
1.11. Section 6.01(c). Section 6.01(c) of the Agreement is
hereby amended in its entirety to read as follows:
(c) the Company or any Subsidiary shall
fail to observe or perform any covenant or agreement contained in this
Agreement (other than those covered by clause (a) or (b) above) for 30
days after written notice thereof has been given to the Company by the
Agent at the request of any Bank;
1.12. Section 6.01(d). Section 6.01(d) of the Agreement is
hereby amended in its entirety to read as follows:
(d) any representation, warranty,
certification or statement made by the Company or any Subsidiary in
this Agreement or made in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to
have been incorrect in any material respect when made (or deemed
made);
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1.13. Section 7.01. Section 7.01 of the Agreement is hereby
amended in its entirety to read as follows:
SECTION 7.01. Appointment and Authorization. Each
Bank irrevocably appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Financing
Documents as are delegated to the Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental
thereto.
2. Return of Guaranty. The Banks hereby consent to the release
of the Subsidiary Guarantors from the Subsidiary Guaranty Agreement (defined
below), and hereby authorize and direct the Agent, on behalf of the Banks, to
execute and deliver a Release of Guaranty substantially in the form attached as
Exhibit A hereto and to deliver to the Company 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 and by the Second Amendment to Amended and Restated
Subsidiary Guaranty Agreement dated as of April 24, 1995 (as so amended, the
"Subsidiary Guaranty Agreement") executed by Union Texas Petroleum Energy
Corporation, Union Texas Products Corporation, Union Texas East Kalimantan
Limited, Union Texas International Corporation, Unistar, Inc. and the Agent.
Upon such delivery the Subsidiary Guaranty Agreement shall be deemed released.
3. Effectiveness. The effectiveness of this Amendment is subject
to the receipt by the Agent of counterparts of this Amendment signed by the
Company, the Banks, the Agent and the Co-Agents (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).
4. Miscellaneous.
4.1. 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.
4.2. 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.
4.3. 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 Financing Document remain in full force and
effect. Undefined capitalized terms used herein are used herein as defined in
the Agreement as amended hereby.
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4.4. 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.
4.5. 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.
4.6. 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
-----------------------------------
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
Paul A. Squires -----------------------------------
Senior Vice President Authorized Officer
Laura B. Shepard
Vice President
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UNION BANK OF SWITZERLAND, MELLON BANK, N.A.
HOUSTON AGENCY
By: /s/ [Illegible]
By: /s/ E. SWANN -----------------------------------
----------------------------------- Authorized Officer
Authorized Officer
MORGAN GUARANTY TRUST
By: /s/ [Illegible] COMPANY OF NEW YORK
-----------------------------------
Authorized Officer
By: /s/ VERNON M. FORD, JR.
-----------------------------------
THE BANK OF NOVA SCOTIA Authorized Officer
By: /s/ M. D. SMITH BANQUE NATIONALE DE PARIS,
----------------------------------- HOUSTON AGENCY
Authorized Officer
M. D. Smith
Agent Operations By: /s/ [Illegible]
-----------------------------------
Authorized Officer
CHEMICAL BANK
By: /s/ [Illegible] LTCB TRUST COMPANY
-----------------------------------
Authorized Officer
By: /s/ [Illegible]
-----------------------------------
CREDIT LYONNAIS CAYMAN Authorized Officer
ISLAND BRANCH
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ XAVIER RATOUIS
-----------------------------------
Authorized Officer By: /s/ [Illegible]
Xavier Ratouis -----------------------------------
Authorized Officer
THE FIRST NATIONAL BANK OF CHICAGO
THE BANK OF TOKYO, LTD.,
DALLAS AGENCY
By: /s/ DANIEL B. CATLIN
-----------------------------------
Authorized Officer By: /s/ J. McINTYRE
Daniel B. Catlin -----------------------------------
Vice President Authorized Officer
J. McIntyre
Vice President
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BANQUE PARIBAS, HOUSTON AGENCY THE MITSUBISHI TRUST &
BANKING CORPORATION
By: /s/ [Illegible]
----------------------------------- By: /s/ [Illegible]
Authorized Officer -----------------------------------
Authorized Officer
By: /s/ [Illegible]
----------------------------------- NATIONAL WESTMINSTER BANK
Authorized Officer PLC (NEW YORK BRANCH)
CHRISTIANIA BANK By: /s/ [Illegible]
-----------------------------------
Authorized Officer
By: /s/ [Illegible]
-----------------------------------
Authorized Officer NATIONAL WESTMINSTER BANK
PLC (NASSAU BRANCH)
By: /s/ [Illegible]
----------------------------------- By: /s/ [Illegible]
Authorized Officer -----------------------------------
Authorized Officer
CITIBANK, N.A.
THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, NEW YORK
By: /s/ AREZOO TAFARI BRANCH
-----------------------------------
Authorized Office
Arezoo Tafari By: /s/ GERALD T. GILL
Assistant Vice President -----------------------------------
Authorized Officer
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
BANK OF TAIWAN
By: /s/ B. CRAIG ERICKSON
-----------------------------------
Authorized Officer By: /s/ [Illegible]
B. Craig Erickson VP -----------------------------------
Authorized Officer
By: /s/ J. MICHAEL LEFFLER
-----------------------------------
Authorized Officer
J. Michael Leffler
Senior Vice President
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BANQUE FRANCAISE DU BANK OF AMERICA NATIONAL TRUST AND
COMMERCE EXTERIEUR SAVINGS ASSOCIATION, as Co-Agent
By: /s/ IAIN A. WHYTE By: /s/ LAURA B. SHEPARD
----------------------------------- -----------------------------------
Authorized Officer Authorized Officer
Iain A. Whyte Laura B. Shepard
Assistant Vice President Vice President
By: /s/ MARK A. HARRINGTON UNION BANK OF SWITZERLAND,
----------------------------------- HOUSTON AGENCY, as Co-Agent
Authorized Officer
Mark A. Harrington
Vice President & Regional Manager
By: /s/ E. SWANN
DEN NORSKE BANK AS -----------------------------------
Authorized Officer
By: /s/ [ILLEGIBLE]
----------------------------------- By: /s/ [ILLEGIBLE]
Authorized Officer -----------------------------------
Authorized Officer
By: /s/ [ILLEGIBLE]
-----------------------------------
Authorized Officer
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ [ILLEGIBLE]
-----------------------------------
Authorized Officer
NATIONSBANK OF TEXAS, N.A., as Agent
By: /s/ PAUL A. SQUIRES
-----------------------------------
Paul A. Squires
Senior Vice President
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EXHIBIT A
RELEASE OF GUARANTY
This Release of Guaranty dated as of November 3, 1995 (this "Release")
is among Union Texas Petroleum Energy Corporation, Union Texas Products
Corporation, Union Texas East Kalimantan Limited, Union Texas International
Corporation, Unistar, Inc. (collectively, the "Subsidiary Guarantors"), Union
Texas Petroleum Holdings, Inc. (the "Company"), and NationsBank of Texas, N.A.,
as agent (the "Agent") for the banks under the Amended and Restated Credit
Agreement dated as of May 13, 1994 (as amended through the date hereof, the
"Credit Agreement") among the Company, the lenders and Co-Agents party thereto
and the Agent.
PRELIMINARY STATEMENT
WHEREAS, the Subsidiary Guarantors have previously executed and
delivered 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 and by the Second
Amendment to Amended and Restated Subsidiary Guaranty Agreement dated as of
April 24, 1995 (as so amended, the Subsidiary Guaranty Agreement") among the
Subsidiary Guarantors and the Agent;
WHEREAS, the Company has requested that the Subsidiary Guarantors be
released from their obligations under the Subsidiary Guaranty Agreement;
WHEREAS, Banks having at least 66 2/3% of the aggregate amount of the
Commitments (as defined in the Credit Agreement) have consented (in accordance
with clause (ii) of Section 3.03 of the Subsidiary Guaranty Agreement) to the
release of the Subsidiary Guarantors from their obligations under the
Subsidiary Guaranty Agreement and have authorized and directed the Agent to
take certain actions on behalf of the Banks pertaining to the Subsidiary
Guaranty Agreement in connection with the Fifth Amendment Agreement dated as of
November 3, 1995 among the Company, the Banks, the Co-Agents and the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
RELEASE
A. Release of Obligations. The Agent, on behalf of the Agent and
the Banks, hereby releases each of the Subsidiary Guarantors party to the
Subsidiary Guaranty Agreement of its respective obligations under the
Subsidiary Guaranty Agreement.
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B. Termination of Guaranty. The Subsidiary Guarantors, the
Company and the Agent, on behalf of the Agent and the Banks, agree that the
Subsidiary Guaranty Agreement is hereby terminated.
C. Company's Acknowledgement and Confirmation. The Company
hereby acknowledges receipt of delivery of the Subsidiary Guaranty Agreement,
and confirms to the Agent and the Banks that none of the Company's obligations
under any Financing Document (as defined in the Credit Agreement), and none of
the Banks' or the Agent's rights and remedies under any Financing Document, are
released, impaired or affected by the termination of the Subsidiary Guaranty
Agreement and the release of the Subsidiary Guarantors from their respective
obligations thereunder.
D. Representation. The Subsidiary Guarantors and the Company
represent and warrant to the Agent and the Banks that each of the "Subsidiary
Guarantors" (as defined in the Subsidiary Guaranty Agreement) affected by this
Release has duly executed and delivered this Release.
E. Governing Law. This Release shall be governed by and
construed in accordance with the applicable laws of the State of Texas and the
United States of America.
F. Counterparts. This Release may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
counterpart, when so executed and delivered, shall be deemed to be an original
and all of which counterparts taken together shall constitute a single
instrument, with the same effect as if the signatures thereto and hereto were
upon the same Release.
IN WITNESS WHEREOF, the parties hereto, by their officers duly
authorized have executed this Release as of the date first written above.
NATIONSBANK OF TEXAS, N.A., UNION TEXAS PETROLEUM
as Agent HOLDINGS, INC.
By: By:
----------------------------------- -----------------------------------
Paul A. Squires M.N. Markowitz
Senior Vice President Vice President and Treasurer
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SUBSIDIARY GUARANTORS:
UNION TEXAS PETROLEUM UNISTAR, INC.
ENERGY CORPORATION
By:
-----------------------------------
By: M.N. Markowitz
----------------------------------- Vice President
M.N. Markowitz
Treasurer
UNION TEXAS PRODUCTS UNION TEXAS INTERNATIONAL
CORPORATION CORPORATION
By: By:
----------------------------------- -----------------------------------
M.N. Markowitz M.N. Markowitz
Treasurer Treasurer
UNION TEXAS EAST
KALIMANTAN LIMITED
By:
-----------------------------------
M.N. Markowitz
Treasurer
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