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EXHIBIT 10.3
FIRST AMENDMENT AGREEMENT
This First 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 Credit Agreement dated as of June 30, 1995 (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(g) 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:
(b) In addition, the Company agrees to pay any
present or future stamp or documentary taxes or any other excise or
property taxes,
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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 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.
1.6. 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.
1.7. 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 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
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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.
1.8. 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.
1.9. 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.
1.10. 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;
1.11. 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);
1.12. 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
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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 Subsidiary Guaranty
Agreement dated as of June 30, 1995 (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.
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
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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. ▇▇▇▇▇▇▇▇▇
--------------------------------
M.N. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
BANKS:
NATIONSBANK OF TEXAS, N.A. UNION BANK OF SWITZERLAND,
HOUSTON AGENCY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇
Senior Vice President --------------------------------
Authorized Officer
BANK OF AMERICA NATIONAL By: /s/ [Illegible]
TRUST AND SAVINGS ASSOCIATION --------------------------------
Authorized Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ NATIONSBANK OF TEXAS, N.A.,
--------------------------- as Agent
Authorized Officer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
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BANK OF AMERICA NATIONAL UNION BANK OF SWITZERLAND,
TRUST AND SAVINGS HOUSTON AGENCY, as Co-Agent
ASSOCIATION, as Co-Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇
-------------------- --------------------
Authorized Officer Authorized Officer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ [Illegible]
-------------------- -------------------
Vice President Authorized Officer
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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 Credit Agreement dated as of
June 30, 1995 (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 Subsidiary Guaranty Agreement dated as of June 30, 1995 (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 pertaining to the Subsidiary Guaranty Agreement in
connection with the First 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.
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
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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: ______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ M.N. ▇▇▇▇▇▇▇▇▇
Senior Vice President Vice President and Treasurer
SUBSIDIARY GUARANTORS:
UNION TEXAS PETROLEUM UNION TEXAS PRODUCTS
ENERGY CORPORATION CORPORATION
By: ___________________________ By: ______________________________
M.N. ▇▇▇▇▇▇▇▇▇ M.N. ▇▇▇▇▇▇▇▇▇
Treasurer Treasurer
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▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
KALIMANTAN LIMITED CORPORATION
By: ___________________________ By: ______________________________
M.N. ▇▇▇▇▇▇▇▇▇ M.N. ▇▇▇▇▇▇▇▇▇
Treasurer Treasurer
UNISTAR, INC.
By: ___________________________
M.N. ▇▇▇▇▇▇▇▇▇
Vice President
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