<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 15, 1994
REGISTRATION NO. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
<TABLE>
<S> <C> <C>
UNION TEXAS PETROLEUM HOLDINGS, INC. DELAWARE 76-0040040
UNION TEXAS EAST KALIMANTAN LIMITED THE BAHAMAS N/A
UNION TEXAS PETROLEUM ENERGY CORPORATION DELAWARE 76-0351014
UNION TEXAS INTERNATIONAL CORPORATION DELAWARE 76-6044301
UNION TEXAS PRODUCTS CORPORATION DELAWARE 76-0040039
UNISTAR, INC. DELAWARE 76-0108150
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN (STATE OR OTHER (I.R.S. EMPLOYER
ITS CHARTER) JURISDICTION OF IDENTIFICATION NO.)
INCORPORATION OR
ORGANIZATION)
</TABLE>
<TABLE>
<S> <C>
1330 POST OAK BOULEVARD NEWTON W. WILSON, III
HOUSTON, TEXAS 77056 GENERAL COUNSEL, VICE PRESIDENT -- ADMINISTRATION
(713) 623-6544 AND SECRETARY
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, 1330 POST OAK BOULEVARD
INCLUDING AREA CODE, OF EACH REGISTRANT'S HOUSTON, TEXAS 77056
PRINCIPAL EXECUTIVE OFFICES) (713) 623-6544
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
---------------------
Copies to:
MARK ZVONKOVIC JOHN B. TEHAN
CHRISTINE B. LAFOLLETTE SIMPSON THACHER & BARTLETT
ANDREWS & KURTH L.L.P. 425 LEXINGTON AVENUE
425 LEXINGTON AVENUE NEW YORK, NEW YORK 10017
NEW YORK, NEW YORK 10017 (212) 455-2000
(212) 850-2800
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of the Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER NOTE(1) PRICE(1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
% Senior Notes due 2004........ $200,000,000 100% $200,000,000 $68,966
- ----------------------------------------------------------------------------------------------------------
Subsidiary Guarantees(3)............ (3) (3) (3) (2)
- ----------------------------------------------------------------------------------------------------------
Company Guarantees(3)............... (3) (3) (3) (2)
==========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(a).
(2) Each Registrant other than Union Texas Petroleum Holdings, Inc. is a
subsidiary of Union Texas Petroleum Holdings, Inc. and is guaranteeing
payment of the Notes. Union Texas Petroleum Holdings, Inc. is guaranteeing
such subsidiary guarantees. Pursuant to Rule 457(n) under the Securities Act
of 1933, no registration fee is required with respect to these guarantees.
(3) No separate consideration will be received from purchasers of the Notes with
respect to these guarantees.
---------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
===============================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may
not be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer
to buy nor shall there be any sale of these securities in any State in
which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED MARCH 15, 1994
$200,000,000
UNION TEXAS PETROLEUM HOLDINGS, INC.
% SENIOR NOTES DUE 2004
---------------------
Interest on the Notes is payable semiannually on and
of each year, commencing , 1994. The Notes will
mature on , 2004. The Notes may be redeemed at any time, at
the option of the Company, in whole or in part, at a price equal to 100% of
their principal amount plus accrued interest plus a Make-Whole Premium
calculated by reference to the then prevailing Treasury Yield and the remaining
life of the Notes. The Notes will be senior unsecured obligations of the Company
and will rank pari passu in right of payment with the Company's obligations
under its credit facility and its 8.25% Senior Notes due 1999 and senior in
right of payment to all subordinated indebtedness of the Company. The Company's
obligations under the Notes will be unconditionally guaranteed by certain of its
subsidiaries for the purpose of assuring that the Notes will not be structurally
subordinated to the Company's obligations under its credit facility, 8.25%
Senior Notes due 1999 or any other funded indebtedness of the Company that is
guaranteed, from time to time, by subsidiaries of the Company. The Indenture
relating to the Notes will provide for the release and addition of subsidiaries
of the Company as guarantors and for the limitation of obligations of each
guarantor under certain circumstances. The guarantee of the Notes by any
subsidiary may be released if, but only so long as, no other funded indebtedness
of the Company is guaranteed by such subsidiary. See "Capitalization" and
"Description of the Notes." The Notes are not subject to any sinking fund.
Application will be made to list the Notes on the New York Stock Exchange.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE(1) DISCOUNT(2) COMPANY(3)
---------------------------------------------------------------
<S> <C> <C> <C>
Per Note.......................... % % %
Total............................. $ $ $
</TABLE>
- ------------
(1) Plus accrued interest from , 1994.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
(3) Before deducting estimated expenses of $450,000 payable by the Company.
---------------------
The Notes are being offered by the Underwriters, subject to receipt and
acceptance by them and subject to their right to reject any order in whole or in
part. It is expected that the Notes will be ready for delivery in New York, New
York, on or about , 1994.
GOLDMAN, SACHS & CO.
CHEMICAL SECURITIES INC.
J.P. MORGAN SECURITIES INC.
SALOMON BROTHERS INC
---------------------
The date of this Prospectus is , 1994.
<PAGE> 3
AVAILABLE INFORMATION
Union Texas Petroleum Holdings, Inc. is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by the Company may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at certain of the Commission's Regional Offices located at 7
World Trade Center, 13th Floor, New York, NY 10048 and 500 West Madison Street,
Suite 1400, Chicago, IL 60601. Copies of such materials can be obtained by mail
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549, at prescribed rates. In addition, the
Company's common stock, par value $.05 per share, is listed on the New York
Stock Exchange and the Pacific Stock Exchange, and the Company's 8.25% Senior
Notes due 1999 are listed on the New York Stock Exchange. The Company's reports,
proxy statements and other information filed under the Exchange Act may also be
inspected and copied at the offices of the New York Stock Exchange, 20 Broad
Street, New York, NY 10005 and the Pacific Stock Exchange, 301 Pine Street, San
Francisco, CA 94104.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement and to the
exhibits and schedules filed therewith. All of these documents may be inspected
without charge at the Commission's principal office in Washington, D.C., and
copies thereof may be obtained from the Commission at the prescribed rates or
may be examined without charge at the public reference facilities of the
Commission.
---------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-9019)
pursuant to the Exchange Act are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993; and
(2) All other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering made hereby.
Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified shall not be deemed to constitute a part of
this Prospectus except as so modified, and any statement so superseded shall not
be deemed to constitute part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all documents which
are incorporated herein by reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference into such
documents). Requests should be directed to the Company, at its principal
executive offices at 1330 Post Oak Boulevard, Houston, TX 77056, Attention:
Corporate Secretary, telephone (713) 623-6544, or to the Company, c/o
Registration Department, Goldman, Sachs & Co., 85 Broad Street, New York, NY
10004, Attention: Donald T. Hansen, telephone (212) 902-6686.
---------------------
Quantities of natural gas are expressed in this Prospectus in terms of
thousand cubic feet ("Mcf"), million cubic feet ("MMcf") or billion cubic feet
("Bcf"). Oil is quantified in terms of barrels ("Bbls"). Gas is converted into a
barrel of oil equivalent ("boe") based on 5.8 Mcf of gas to one barrel of oil.
---------------------
IN CONNECTION WITH THE OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES AT A
LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE> 4
THE COMPANY
The Company, the successor to a corporation founded in 1896, is an
independent (non-integrated) oil and gas company with worldwide operations. At
December 31, 1993, the Company had net proved oil and gas reserves of 381
million barrels of oil equivalent. The Company's average net daily oil and gas
production during 1993 was approximately 40,000 Bbls and 373 MMcf, respectively.
Substantially all of the Company's oil and gas activities are presently
conducted outside of the United States, primarily in the U.K. sector of the
North Sea, Indonesia and Pakistan. The Company also owns an interest in a
U.S.-based petrochemicals business.
The Company's principal properties in the North Sea are interests in the
Piper, Claymore, Scapa, Saltire and Chanter oil fields, in each of which the
Company owns a 20% working interest, and the Sean gas fields, in which the
Company owns a 25% working interest. Major development projects undertaken by
the Company at the Piper and Saltire fields in the U.K. sector of the North Sea
were substantially completed in 1993. With the Piper, Saltire and Chanter fields
now on stream, net daily production from the Piper and Claymore blocks is more
than triple the 1992 average of 13,200 boe. During 1994, the Company expects its
net daily production from these blocks to average approximately 44,000 boe. The
Company's Indonesian activities consist primarily of its 37.81% working interest
in a joint venture that produces natural gas and, to a lesser extent, oil and
condensate from several fields in East Kalimantan, Indonesia. The natural gas is
converted into liquefied natural gas ("LNG") at the Indonesian-owned LNG plant
at Bontang Bay and is sold under contracts at prices that are based on a
"basket" of world crude oil prices. In 1993, shipments from this plant were 217
cargoes (96 Bcf net to the Company), and the plant has shipments of
approximately 240 cargoes (103 Bcf net to the Company) scheduled for 1994. The
Company holds its interests in this joint venture both directly through a wholly
owned subsidiary and indirectly through Unimar Company ("Unimar"), a 50/50
partnership with a subsidiary of a U.K. company, LASMO plc. The Company also
participates as operator through a joint venture for the exploration for, and
production of, oil and gas in Pakistan and has a 30% working interest in the
currently producing fields. In the United States, the Company operates the
Geismar ethylene plant near Baton Rouge, Louisiana, in which it owns a 41.67%
interest.
The Company participates worldwide in new venture exploration for oil and
gas. Current activity includes interests in prospects in the United Kingdom,
eastern Indonesia, Pakistan, Alaska, offshore Argentina, and offshore Tunisia.
The strategic focus of the Company's business plan through 1995 is to
concentrate approximately two-thirds of capital spending on developing the
Company's core holdings, while committing the balance of the capital budget to
an active exploration program targeting areas in which the Company has existing
interests or experience. Capital expenditures by the Company in 1993 totaled
$192 million, which included $45 million for the Company's large development
projects in the U.K. sector of the North Sea that were substantially completed
in 1993. For 1994, the Company has budgeted approximately $160 million for
capital expenditures. In addition, during 1994 the Company intends to evaluate
oil and gas reserve acquisition opportunities. The Company's business plan is
based upon numerous assumptions, including assumptions as to the prices received
for the Company's production, and there can be no assurance that such
assumptions will prove to be correct or that actual capital expenditures will be
as budgeted. See "Selected Consolidated Financial Data."
As used herein, the "Company" means Union Texas Petroleum Holdings, Inc.
and its subsidiaries unless the context requires otherwise. Two limited
partnerships organized and controlled by an affiliate of Kohlberg Kravis Roberts
& Co. own approximately 38% of the Company's issued and outstanding common
stock. The address and telephone number of the Company's principal executive
offices are 1330 Post Oak Boulevard, Houston, TX 77056, (713) 623-6544.
3
<PAGE> 5
USE OF PROCEEDS
The net proceeds from the sale of the Notes offered hereby are estimated to
be approximately $ million (after deducting underwriting discounts and
commissions and offering expenses). The Company intends to use all such proceeds
to reduce the Company's debt under its $650 million unsecured revolving credit
facility (the "Credit Facility") and its uncommitted and unsecured lines of
credit (including approximately $4 million to be repaid to Morgan Guaranty Trust
Company of New York, an affiliate of J.P. Morgan Securities Inc., and $6 million
to be repaid to Chemical Bank, an affiliate of Chemical Securities Inc.). On
February 28, 1994, approximately $368 million was outstanding under the Credit
Facility and these lines of credit. At March 7, 1994, the Credit Facility and
the lines of credit bore interest at the weighted average rate of 4.11% per
annum and 3.87% per annum, respectively. The lenders' commitments under the
Credit Facility terminate on June 30, 1998 (unless earlier terminated under
certain circumstances).
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company as of December 31,1993, and as adjusted to give effect to the sale of
the Notes offered hereby and the application of the net proceeds thereof
(assumed to be approximately $198 million) as described under "Use of Proceeds."
The following table should be read in conjunction with the Company's
consolidated financial statements and notes thereto incorporated by reference in
this Prospectus. See "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
AT DECEMBER 31, 1993
-----------------------
AS
ACTUAL ADJUSTED
------- -------
(IN MILLIONS)
<S> <C> <C>
Debt
Short-term debt, including current maturities of
long-term debt........................................ $ 63 $ 55
Long-term debt
Credit facility....................................... 280 90
8.25% Senior Notes due 1999........................... 100 100
Senior notes offered hereby........................... -- 200
Other................................................. 7 7
------- -------
Total debt....................................... 450 452
------- -------
Stockholders' equity
Common stock, par value $.05 per share; 200,000,000
shares authorized (a)................................. 4 4
Capital in excess of par value........................... 20 20
Retained earnings........................................ 346 346
Treasury stock (b)....................................... (3) (3)
Cumulative foreign exchange translation adjustment....... (86) (86)
------- -------
Total stockholders' equity.......................... 281 281
------- -------
Total capitalization............................. $ 731 $ 733
------- -------
------- -------
</TABLE>
- ---------------
(a) As of December 31, 1993, there were 87,659,267 shares of Common Stock issued
and outstanding. This amount does not reflect 2,819,708 shares issuable on
the exercise of stock options granted by the Company.
(b) At December 31, 1993, the Company held in treasury 145,828 shares of Common
Stock at cost.
4
<PAGE> 6
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial information has been derived
from the consolidated financial statements of the Company for each of the five
years in the period ended December 31, 1993, which statements have been audited
by Price Waterhouse. The information set forth below should be read in
conjunction with the Company's consolidated financial statements and notes
thereto incorporated herein by reference and "Capitalization" included elsewhere
in this Prospectus. See "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------------------------------------
1989 1990 1991 1992 1993
------- ------- ------- ------- -------
(IN MILLIONS, EXCEPT PER SHARE AND RATIO DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF CONSOLIDATED INCOME DATA
Revenues
Sales and operating revenues.............................. $ 982 $ 1,283 $ 977 $ 669 $ 682
Business interruption insurance........................... 155 -- -- -- --
Interest income and other revenues........................ 23 49 92 32 6
Net income of equity investees............................ 17 1 11 13 9
------- ------- ------- ------- -------
Total................................................. 1,177 1,333 1,080 714 697
Costs and other deductions
Product costs and operating expenses...................... 594 676 553 318 301
Exploration expenses...................................... 75 83 71 67 94
Depreciation, depletion and amortization.................. 154 186 125 77 243(c)
Selling, general and administrative expenses.............. 47 52 44 27 24
Interest expenses......................................... 55 62 47 4 6
Preferred dividends of a subsidiary....................... 5 5 4 2 2
Other credits, net........................................ -- -- (212) 6 --
------- ------- ------- ------- -------
Income before income taxes, extraordinary items and
cumulative effect of changes in accounting principles... 247 269 448 213 27
(Benefit from) provision for income taxes................. 74 153 168 103 (4)
------- ------- ------- ------- -------
Income before extraordinary items and cumulative effect of
changes in accounting principles........................ 173 116 280 110 31
Extraordinary items(a).................................... -- -- 53 (20) --
Cumulative effect of changes in accounting principles..... -- -- -- (76) (4)
------- ------- ------- ------- -------
Net income.................................................. $ 173 $ 116 $ 333 $ 14 $ 27
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Net income (loss) per share of common stock................. $ 1.49 $ .81 $ 3.11 $ (.26) $ .31
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Common stock dividends per share............................ $ .20 $ .20 $ .20 $ .20 $ .20
Average number of shares outstanding........................ 84.0 84.6 85.2 85.8 87.2
STATEMENT OF CASH FLOW DATA
Net cash provided by operating activities................... $ 233 $ 367 $ 272 $ 241 $ 191
------- ------- ------- ------- -------
Cash flows from investing activities
Additions to property, plant and equipment................ (220) (301) (377) (296) (144)
Cash provided (required) by equity investees.............. 13 (22) (31) 29 20
Net proceeds from sales of businesses..................... -- -- 831 (18) (43)
Disposition (acquisition) of note receivable, net......... (38) 42 -- -- --
------- ------- ------- ------- -------
Net cash provided (required) by investing activities...... (245) (281) 423 (285) (167)
------- ------- ------- ------- -------
Cash flows from financing activities
Proceeds from issuance of long-term debt.................. -- 151 31 465 30
Payments to settle long-term debt and capitalized lease
obligations............................................. (4) (4) (172) (529) (118)
Redemption of Preferred Auction Rate Stock................ -- -- -- -- (75)
Redemption of preferred stock and common stock warrants... -- -- -- (500) --
Purchase of treasury stock................................ (2) -- (4) -- --
Proceeds from issuance of treasury stock.................. -- 10 -- -- --
Proceeds from issuance of common stock.................... -- -- 9 4 18
Short-term borrowings..................................... -- -- -- 6 55
Dividends paid............................................ (58) (58) (58) (47) (17)
------- ------- ------- ------- -------
Net cash provided (required) by financing activities.... (64) 99 (194) (601) (107)
------- ------- ------- ------- -------
Net increase (decrease) in cash and cash equivalents........ $ (76) $ 185 $ 501 $ (645) $ (83)
------- ------- ------- ------- -------
------- ------- ------- ------- -------
RATIO OF EARNINGS TO FIXED CHARGES(B)......................... 3.60 3.47 4.94 7.93 1.61(c)
</TABLE>
- ------------
See accompanying notes.
5
<PAGE> 7
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------------------
1989 1990 1991 1992 1993
------- ------- ------- ------- -------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
SELECTED BALANCE SHEET DATA
Cash and cash equivalents....................................... $ 61 $ 245 $ 746 $ 101 $ 18
Working capital................................................. (8) 114 576 34 (113)
Property, plant and equipment (net)............................. 1,253 1,487 1,157 1,199 1,089
Total assets.................................................... 1,721 2,102 2,247 1,581 1,339
Short-term debt, including current
maturities of long-term debt.................................. 5 6 104 9 63
Long-term debt.................................................. 534 685 422 474 387
Total debt...................................................... 539 691 526 483 450
Preferred stock................................................. 275 275 275 75 --
Stockholders' equity............................................ 275 375 674 269 281
</TABLE>
- ------------
(a) In the year ended December 31, 1991, the Company recognized an extraordinary
tax benefit of $53 million from utilization of net operating loss
carryforwards as a result of the sale of the domestic businesses. In the
first quarter of 1992, the Company recognized an extraordinary loss of $20
million as a result of the early redemption of debt.
(b) For purposes of computing the ratio of earnings to fixed charges, earnings
consist of pretax income plus fixed charges. Fixed charges consist of
interest expense, capitalized interest, amortization of discount and
financing costs and the portion of rent expense which is deemed to be
representative of the interest component of rent expense.
(c) During 1993, the Company recorded a non-cash charge to depreciation,
depletion and amortization of $103 million pretax ($48 million after-tax)
for the write-down of its investment in the U.K. North Sea's Piper field.
Excluding the effect of the Piper write-down, the ratio of earnings to fixed
charges for 1993 would have been 4.45. As adjusted to give effect to the
sale of the Notes at an assumed interest rate of 7.8%, and the application
of the proceeds therefrom, the ratio of earnings to fixed charges for the
year ended December 31, 1993 would have been 1.34; excluding the effect of
the Piper write-down, this pro forma ratio would have been 3.71.
During 1991, the Company sold its domestic exploration and production
business and its domestic gas processing business for $861 million in cash. As a
result of the net gain on such sales, the Company's 1991 income increased by
$203 million. In 1992, the Company completed the early redemption of its Senior
Subordinated Reset Notes and 13% Subordinated Notes. As a result of this early
redemption, the results of operations for the year ended December 31, 1992
include an extraordinary charge of $20 million representing the debt premium and
the unamortized issuance cost. In 1992, the Company adopted, effective January
1, 1992, two new accounting standards for income taxes and postretirement
benefits, respectively. The adoption of these standards resulted in a cumulative
charge to net income of $76 million, representing the effect on prior years of
adopting the standards. Results in 1993 included certain significant items
related to the U.K. North Sea's Piper field write-down, the benefit of a U.K.
tax law change and the write-off of the Kuvlum prospect in Alaska. Also in 1993,
the Company adopted, effective January 1, 1993, the new accounting standard for
postemployment benefits, which resulted in a cumulative charge to net income of
$4 million, representing the estimated future obligation for those employees
currently under the long-term disability program. Excluding the special items
and accounting changes described above, net income for 1991, 1992 and 1993 would
have been $130 million, $109 million and $54 million, respectively. The 1993
earnings were negatively impacted by lower oil and Indonesian LNG prices and
decreased interest income on refunds of prior years' Petroleum Revenue Tax. The
1993 results benefited from the elimination of preferred stock dividends and
higher worldwide oil volumes.
The Company cannot predict with any degree of certainty the prices it will
receive in 1994 and future years for its crude oil, LNG, natural gas and
ethylene. In addition, uncertainty in the Middle East, policies of oil exporting
countries and worldwide demand for products affect the Company's sales. The
Company's financial condition, operating results and liquidity may be materially
affected by any significant fluctuations in its sales prices. The Company's
ability to service its long-term obligations, including the Notes offered
hereby, and to internally generate funds for capital expenditures will be
similarly affected.
The Company's overseas operations are subject to certain risks, including
expropriation of assets, governmental reinterpretation of applicable law and
contract terms, increases in taxes and government royalties, renegotiation of
contracts with foreign governments, foreign government approvals of lease,
permit or similar applications and of exploration and production plans,
political instability and disputes
6
<PAGE> 8
between governments, payment delays, export restrictions, increased
environmental regulations, limits on allowable levels of exploration and
production and currency exchange losses and repatriation restrictions, as well
as changes in laws and policies governing operations of companies with overseas
operations generally. Foreign operations and investments may also be subject to
laws and policies of the United States affecting foreign trade, investment and
taxation that could affect the conduct and profitability of these operations.
All of the Company's oil and gas activities are subject to the risks
normally associated with exploration for and production of oil and gas. Also,
the Company's activities are subject to stringent environmental regulations. The
Company believes that its operations and facilities are in general compliance
with existing environmental regulations. Nevertheless, the risks of substantive
costs and liabilities are inherent in operations such as the Company's, and
there can be no assurance that significant costs and liabilities will not be
incurred in the future.
7
<PAGE> 9
OPERATING DATA
The following summary of operating information has been derived from the
supplementary oil and gas data to the Company's consolidated financial
statements and other records of the Company and should be read in conjunction
with such data in the Company's consolidated financial statements and notes
thereto incorporated herein by reference. See "Incorporation of Certain
Documents by Reference."
The proved reserves and production statistics for the Company set forth
below are net of royalties and operating interests owned by others, unless
otherwise indicated.
<TABLE>
<CAPTION>
AT DECEMBER 31,
--------------------------------------------------
1989 1990 1991 1992 1993
------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
NET PROVED DEVELOPED AND UNDEVELOPED OIL AND GAS
RESERVES:
Crude oil, including condensate and natural
gas liquids (millions of barrels)
United Kingdom............................. 79 81 79 76 69
Indonesia.................................. 11 11 13 13 18
Pakistan................................... 8 8 7 6 5
United States(a)........................... 25 27 -- -- --
Other International(b)..................... 8 7 8 -- --
Equity Partnerships(c)..................... 9 4 5 5 6
------ ------ ------ ------ ------
Total................................. 140 138 112 100 98
------ ------ ------ ------ ------
------ ------ ------ ------ ------
Natural gas (billion cubic feet)
United Kingdom............................. 90 86 93 90 139
Indonesia.................................. 917 864 879 798 1,009
Pakistan................................... 101 116 108 101 102
United States(a)........................... 399 423 -- -- --
Equity Partnerships(c)..................... 506 309 321 295 389
------ ------ ------ ------ ------
Total................................. 2,013 1,798 1,401 1,284 1,639
------ ------ ------ ------ ------
------ ------ ------ ------ ------
NET PROVED DEVELOPED OIL AND GAS RESERVES:
Crude oil, including condensate and natural
gas liquids (millions of barrels)
United Kingdom............................. 33 31 28 25 34
Indonesia.................................. 9 8 12 12 15
Pakistan................................... 5 4 3 3 3
United States(a)........................... 21 22 -- -- --
Other International(b)..................... 7 6 7 -- --
Equity Partnerships(c)..................... 7 3 4 5 5
------ ------ ------ ------ ------
Total................................. 82 74 54 45 57
------ ------ ------ ------ ------
------ ------ ------ ------ ------
Natural gas (billion cubic feet)
United Kingdom............................. 86 82 78 75 131
Indonesia.................................. 788 679 737 725 785
Pakistan................................... 36 41 32 35 39
United States(a)........................... 289 278 -- -- --
Equity Partnerships(c)..................... 425 241 267 267 300
------ ------ ------ ------ ------
Total................................. 1,624 1,321 1,114 1,102 1,255
------ ------ ------ ------ ------
------ ------ ------ ------ ------
</TABLE>
- ------------
<TABLE>
<S> <C>
(a) U.S. offshore and onshore reserves were sold during 1991.
(b) Primarily relates to a service contract in Argentina under which Unola de Argentina,
Ltd., formerly a wholly owned subsidiary of the Company ("Unola"), was paid a fee based
on production. The Company sold Unola, which held a minority interest in that service
contract, in January 1992.
(c) Includes the U.S. reserves attributable to the Company's domestic partnerships, Unimar
Company and Unicon Producing Company, through 1989.
</TABLE>
8
<PAGE> 10
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------------------
1989 1990 1991 1992 1993
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
NET PRODUCTION PER DAY:
Crude oil, including
condensate
(thousands of barrels)
United Kingdom(a)......... 3 12 14 13 27
Indonesia................. 4 3 4 5 6
Pakistan.................. 4 5 5 5 5
Other International(b).... 4 4 4 -- --
United States(c).......... 9 9 5 -- --
Equity Partnerships
United States(d)........ 1 -- -- -- --
Indonesia............... 2 1 1 2 2
------- ------- ------- ------- -------
Total................ 27 34 33 25 40
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Natural gas (million cubic
feet)
United Kingdom(a)......... 8 14 10 7 8
Indonesia(e).............. 211 234 232 244 242
Pakistan.................. 13 28 38 39 43
United States(c).......... 215 206 68 -- --
Equity Partnerships
United States(d)........ 36 16 -- -- --
Indonesia(e)............ 70 78 77 81 80
------- ------- ------- ------- -------
Total................ 553 576 425 371 373
------- ------- ------- ------- -------
------- ------- ------- ------- -------
AVERAGE SALES PRICE:
Crude oil, including
condensate
(dollars per barrel)
United Kingdom(a)......... $ 17.90 $ 21.78 $ 18.75 $ 18.47 $ 15.10
Indonesia................. 19.41 22.92 19.38 20.69 17.26
Pakistan.................. 13.86 19.24 15.60 16.32 15.04
Other International(b).... 6.35 7.84 9.06 -- --
United States(c).......... 17.72 20.41 19.06 -- --
Equity Partnerships
United States(d)........ 17.32 -- -- -- --
Indonesia............... 19.41 22.92 19.38 20.69 17.26
Natural gas (dollars per
thousand cubic feet)
United Kingdom(a)......... 3.02 3.26 3.74 3.69 2.49
Indonesia(e).............. 2.90 3.52 3.35 3.22 3.00
Pakistan.................. .93 1.13 1.40 1.09 1.26
United States(c).......... 1.93 1.84 1.46 -- --
Equity Partnerships
United States(d)........ 2.02 1.86 -- -- --
Indonesia(e)............ 2.90 3.52 3.35 3.22 3.00
</TABLE>
- ---------------
(a) Includes Piper activity after January 1993 and Claymore and Scapa activity
from August 1989.
(b) Primarily represents a service fee received per barrel of production under a
service contract in Argentina. The Company sold Unola, which held an
interest in the service contract, in January 1992.
(c) Includes U.S. offshore and onshore results through April 5, 1991, and
September 17, 1991, respectively.
(d) Represents U.S. activity through April and May 1990, respectively, for the
Unimar and Unicon partnerships. Such production averaged less than 1,000
barrels per day on an annual basis in 1990.
(e) Includes gas consumed in the operation of the liquefied natural gas plant in
the Company's Indonesian joint venture.
9
<PAGE> 11
DESCRIPTION OF THE NOTES
The Notes will be issued pursuant to an Indenture to be dated as of
1994, (the "Indenture") among the Company, the Guarantors referred to
below and The First National Bank of Chicago, as trustee (the "Trustee"), a copy
of the form of which is filed as an exhibit to the Registration Statement of
which this Prospectus is a part. The following summaries of certain provisions
of the Notes and the Indenture do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, the Notes and the
Indenture, including the definitions therein of certain capitalized terms used
but not defined herein.
GENERAL
Each Note will mature on , 2004, and will bear interest at the
rate per annum stated on the cover page hereof from , 1994, payable
semiannually on and of each year, commencing ,
1994, to the person in whose name the Note is registered at the close of
business on the record date next preceding such interest payment date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
Principal and interest will be payable at the offices of the Trustee and the
Paying Agents, provided that, at the option of the Company, payment of interest
will be made by check mailed to the address of the person entitled thereto as it
appears in the register of the Notes (the "Note Register") maintained by the
Registrar. The aggregate principal amount of the Notes that may be issued will
be limited to $200,000,000. The Notes will be transferable and exchangeable at
the office of the Registrar and any co-registrar and will be issued in fully
registered form, without coupons, in denominations of $1,000 and any whole
multiple thereof. The Company may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection with
certain transfers and exchanges.
RANKING AND GUARANTEES
The Notes will be senior unsecured obligations of the Company and will rank
pari passu in right of payment with the Company's obligations under the Credit
Facility and the 8.25% Senior Notes due 1999 and senior in right of payment to
all future indebtedness of the Company that is, by its terms, expressly
subordinated to the Notes.
The following Subsidiaries of the Company, each of which also is a
guarantor of the Company's obligations under the Credit Facility (collectively,
the "Guarantors"), will unconditionally guarantee (the "Guarantees") on a joint
and several basis the Company's obligations to pay principal, premium, if any,
and interest with respect to the Notes: Union Texas East Kalimantan Limited,
Union Texas Petroleum Energy Corporation, Union Texas International Corporation,
Union Texas Products Corporation and Unistar, Inc. Each of the Guarantees will
be an unsecured obligation of the Guarantor providing such Guarantee, and will
rank pari passu with the guarantee provided by such Guarantor under the Credit
Facility and the 8.25% Senior Notes due 1999 and with all existing and future
unsecured indebtedness of such Guarantor that is not, by its terms, expressly
subordinated in right of payment to such Guarantee.
Under the terms of the Indenture, a Guarantor may be released from its
Guarantee if such Guarantor is not a guarantor of any Funded Indebtedness of the
Company other than the Notes, provided that no Default or Event of Default under
the Indenture has occurred and is continuing. The Indenture will also provide
that if any Subsidiary of the Company guarantees any Funded Indebtedness of the
Company other than the Notes at any time subsequent to the date on which the
Notes are originally issued (including, without limitation, following any
release of such Subsidiary from its Guarantee as described above), then the
Company will cause the Notes to be equally and ratably guaranteed by such
Subsidiary.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
the Indenture, result in the obligations of such Guarantor under its Guarantee
not constituting a fraudulent conveyance or fraudulent
10
<PAGE> 12
transfer under federal, state or foreign law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount based on the Adjusted Net Assets
of each Guarantor.
Although holders of the Notes will be direct creditors of a significant
portion of the Company's operating Subsidiaries by virtue of the Guarantees,
existing or future creditors of the Guarantors could avoid or subordinate
Guarantees, in whole or in part, under fraudulent conveyance laws to the extent
they were successful in establishing that (i) a Guarantee was incurred with
intent to hinder, delay or defraud any present or future creditor or
contemplated insolvency with a design to prefer one or more creditors to the
exclusion in whole or in part of others or (ii) any of the Guarantors did not
receive fair consideration or reasonably equivalent value for issuing its
Guarantee and that it (w) was insolvent at the time of such issuance, or (x) was
rendered insolvent by reason of such issuance, or (y) was engaged in a business
or transaction for which its assets constituted unreasonably small capital to
carry on its business, or (z) intended to incur, or believed that it would
incur, debts beyond its ability to pay such debts as they matured. Under the
circumstances referred to in clause (ii), but not clause (i), above, the
provision of the Indenture described in the previous paragraph generally would
limit the obligations of each Guarantor to the maximum amount that would not
constitute a fraudulent conveyance or transfer under applicable law. To the
extent any Guarantee was avoided as a fraudulent conveyance or held
unenforceable for any other reason (or limited pursuant to such provision) the
holders of the Notes would cease to have any claim (or, as applicable, have only
a limited claim) in respect of a Guarantor, and would be solely creditors of the
Company or any Guarantor whose Guarantee was not avoided or held unenforceable
(or to the extent not so limited). In such event (and to the extent of any such
limitation), the claims of the holders of the Notes would be subject to the
prior payment of all liabilities and preferred stock claims of the Subsidiaries
who were not valid Guarantors.
OPTIONAL REDEMPTION
The Notes will be redeemable, at the option of the Company, at any time in
whole or from time to time in part, upon not less than 30 and not more than 60
days' notice mailed to each holder of Notes to be redeemed at the holder's
address appearing in the Note Register, on any date prior to maturity at a price
equal to 100% of the principal amount thereof plus accrued interest to the
Redemption Date (subject to the right of holders of record on the relevant
record date to receive interest due on an interest payment date that is on or
prior to the Redemption Date) plus a Make-Whole Premium, if any.
The amount of the Make-Whole Premium with respect to any Note (or portion
thereof) to be redeemed will be equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption
Date, of:
(A) each interest payment that, but for such redemption, would have
been payable on the Note (or portion thereof) being redeemed on each
Interest Payment Date occurring after the Redemption Date (excluding any
accrued interest for the period prior to the Redemption Date); and
(B) the principal amount that, but for such redemption, would have
been payable at the final maturity of the Note (or portion thereof)
being redeemed;
over
(ii) the principal amount of the Note (or portion thereof) being
redeemed.
The present values of interest and principal payments referred to in clause (i)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield (as defined below).
11
<PAGE> 13
The Make-Whole Premium will be calculated by an independent investment
banking institution of national standing appointed by the Company; provided,
that if the Company fails to make such appointment at least 10 business days
prior to the Redemption Date, or if the institution so appointed is unwilling or
unable to make such calculation, such calculation will be made by Goldman, Sachs
& Co. or, if such firm is unwilling or unable to make such calculation, by an
independent investment banking institution of national standing appointed by the
Trustee (in any such case, an "Independent Investment Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield" means
a rate of interest per annum equal to the weekly average yield to maturity of
United States Treasury Notes that have a constant maturity that corresponds to
the remaining term to maturity of the Notes, calculated to the nearest 1/12 of a
year (the "Remaining Term"). The Treasury Yield will be determined as of the
third business day immediately preceding the applicable Redemption Date.
The weekly average yields of United States Treasury Notes will be
determined by reference to the most recent statistical release published by the
Federal Reserve Bank of New York and designated "H.15(519) Selected Interest
Rates" or any successor release (the "H.15 Statistical Release"). If the H.15
Statistical Release sets forth a weekly average yield for United States Treasury
Notes having a constant maturity that is the same as the Remaining Term, then
the Treasury Yield will be equal to such weekly average yield. In all other
cases, the Treasury Yield will be calculated by interpolation, on a
straight-line basis, between the weekly average yields on the United States
Treasury Notes that have a constant maturity closest to and greater than the
Remaining Term and the United States Treasury Notes that have a constant
maturity closest to and less than the Remaining Term (in each case as set forth
in the H.15 Statistical Release). Any weekly average yields so calculated by
interpolation will be rounded to the nearest 1/100 of 1%, with any figure of
1/200% or above being rounded upward. If weekly average yields for United States
Treasury Notes are not available in the H.15 Statistical Release or otherwise,
then the Treasury Yield will be calculated by interpolation of comparable rates
selected by the Independent Investment Banker.
If less than all of the Notes are to be redeemed, the Trustee will select
the Notes to be redeemed pro rata or by lot. The Trustee may select for
redemption Notes and portions of Notes in amounts of $1,000 or whole multiples
of $1,000, provided that if all of the Notes of a holder are to be redeemed, the
entire outstanding amount of Notes held by such holder, even if not a whole
multiple of $1,000, will be redeemed.
The Notes will not be entitled to the benefit of any sinking fund or other
mandatory redemption provisions.
CERTAIN COVENANTS
Limitation on Liens. Nothing in the Indenture or the Notes will in any way
limit the amount of indebtedness or securities (other than the Notes) that the
Company or any of its Subsidiaries may issue, assume, guarantee or otherwise
incur. The Indenture will provide that the Company will not, and will not permit
any Restricted Subsidiary to, issue, assume or guarantee any Indebtedness for
borrowed money secured by any Lien on any property or asset now owned or
hereafter acquired by the Company or such Restricted Subsidiary without making
effective provision whereby any and all Notes then or thereafter outstanding
will be secured by a Lien equally and ratably with any and all other obligations
thereby secured for so long as any such obligations shall be so secured.
The foregoing restriction will not, however, apply to:
(a) Liens existing on the date on which the Notes are originally
issued or provided for under the terms of agreements existing on such date;
(b) Liens on property securing (i) all or any portion of the cost of
exploration, drilling or development of such property, (ii) all or any
portion of the cost of acquiring, constructing, altering, improving or
repairing any property or assets, real or personal, or improvements used or
to be used
12
<PAGE> 14
in connection with such property or (iii) Indebtedness incurred by the
Company or any Restricted Subsidiary to provide funds for the activities
set forth in clauses (i) and (ii) above;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary to the
Company or to any other Restricted Subsidiary;
(d) Liens on the property of any corporation or other entity existing
at the time such corporation or other entity becomes a Subsidiary of the
Company and not incurred as a result of (or in connection with or in
anticipation of) such corporation or other entity becoming a Subsidiary of
the Company, provided that such Liens do not extend to or cover any
property or assets of the Company or any of its Subsidiaries other than the
property so acquired;
(e) Liens on any property securing (i) Indebtedness incurred in
connection with the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial revenue bond
financing or (ii) Indebtedness issued or guaranteed by the United States or
any State thereof or any department, agency or instrumentality of either;
(f) any Lien on any asset securing Non-Recourse Indebtedness of the
Company or any Restricted Subsidiary or on any asset of Union Texas East
Kalimantan Limited securing Joint Venture Indebtedness;
(g) any Lien extending, renewing or replacing (or successive
extensions, renewals or replacements of) any Lien of any type permitted
under clauses (a) through (f) above, provided that such Lien extends to or
covers only the property that is subject to the Lien being extended,
renewed or replaced;
(h) certain Liens arising in the ordinary course of business of the
Company and the Restricted Subsidiaries; or
(i) Liens (exclusive of any Lien of any type otherwise permitted under
clauses (a) through (h) above) securing Indebtedness of the Company or any
Restricted Subsidiary in an aggregate principal amount which, together with
the aggregate amount of Attributable Indebtedness deemed to be outstanding
in respect of all Sale/Leaseback Transactions entered into pursuant to
clause (a) of the covenant described under "Limitation on Sale/Leaseback
Transactions" below (exclusive of any such Sale/Leaseback Transactions
otherwise permitted under clauses (a) through (h) above), does not at the
time such Indebtedness is incurred exceed 10% of the Consolidated Net Worth
of the Company (as shown in the most recent audited consolidated balance
sheet of the Company and its Subsidiaries).
The following types of transactions will not be prohibited or otherwise
limited by the foregoing covenant: (i) the sale, granting of Liens with respect
to, or other transfer of, crude oil, natural gas or other petroleum hydrocarbons
in place for a period of time until, or in an amount such that, the transferee
will realize therefrom a specified amount (however determined) of money or of
such crude oil, natural gas or other petroleum hydrocarbons; (ii) the sale or
other transfer of any other interest in property of the character commonly
referred to as a production payment, overriding royalty, forward sale or similar
interest; and (iii) the granting of Liens required by any contract or statute in
order to permit the Company or any Restricted Subsidiary to perform any contract
or subcontract made by it with or at the request of the United States or any
State thereof or any department, agency or instrumentality of either, or to
secure partial, progress, advance or other payments to the Company or any
Restricted Subsidiary by such governmental unit pursuant to the provisions of
any contract or statute.
Limitation on Sale/Leaseback Transactions. The Indenture will provide that
the Company will not, and will not permit any Restricted Subsidiary to, enter
into any Sale/Leaseback Transaction with any person (other than the Company or a
Restricted Subsidiary) unless:
(a) the Company or such Restricted Subsidiary would be entitled to
incur Indebtedness, in a principal amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback
13
<PAGE> 15
Transaction, secured by a Lien on the property subject to such
Sale/Leaseback Transaction pursuant to the covenant described under
"Limitation on Liens" above without equally and ratably securing the Notes
pursuant to such covenant;
(b) after the date on which the Notes are originally issued and within
a period commencing six months prior to the consummation of such
Sale/Leaseback Transaction and ending six months after the consummation
thereof, the Company or such Restricted Subsidiary shall have expended for
property used or to be used in the ordinary course of business of the
Company and the Restricted Subsidiaries (including amounts expended for the
exploration, drilling or development thereof, and for additions,
alterations, repairs and improvements thereto) an amount equal to all or a
portion of the net proceeds of such Sale/Leaseback Transaction and the
Company shall have elected to designate such amount as a credit against
such Sale/Leaseback Transaction (with any such amount not being so
designated to be applied as set forth in clause (c) below); or
(c) the Company, during the 12-month period after the effective date
of such Sale/Leaseback Transaction, shall have applied to the voluntary
defeasance or retirement of Notes or any Pari Passu Indebtedness an amount
equal to the greater of the net proceeds of the sale or transfer of the
property leased in such Sale/Leaseback Transaction and the fair value, as
determined by the Board of Directors of the Company, of such property at
the time of entering into such Sale/Leaseback Transaction (in either case
adjusted to reflect the remaining term of the lease and any amount expended
by the Company as set forth in clause (b) above), less an amount equal to
the principal amount of Notes and Pari Passu Indebtedness voluntarily
defeased or retired by the Company within such 12-month period and not
designated as a credit against any other Sale/Leaseback Transaction entered
into by the Company or any Restricted Subsidiary during such period.
LIMITATIONS ON MERGERS AND CONSOLIDATIONS
The Indenture will provide that neither the Company nor any Guarantor
(other than any Guarantor that shall have been released from its Guarantee
pursuant to the provisions of the Indenture) will consolidate or merge with or
into any Person, or sell, lease, convey or otherwise dispose of all or
substantially all of its assets, or assign any of its obligations under the
Indenture or under the Notes, to any Person, unless: (i) the Person formed by or
surviving such consolidation or merger (if other than the Company or such
Guarantor, as the case may be), or to which such sale, lease, conveyance or
other disposition or assignment shall be made (collectively, the "Successor"),
is a corporation organized and existing under the laws of the United States or
any State thereof or the District of Columbia (or, in the case of a Guarantor
organized under the laws of a jurisdiction outside the United States, a
corporation organized and existing under the laws of such foreign jurisdiction)
and the Successor assumes by supplemental indenture in a form satisfactory to
the Trustee all of the obligations of the Company or such Guarantor, as the case
may be, under the Indenture and under the Notes; and (ii) immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing.
CERTAIN DEFINITIONS
The following is a summary of certain defined terms to be used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms and for the definitions of other capitalized terms used herein and
not defined below.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser of
(x) the amount by which the fair value of the property of such Guarantor at such
date exceeds the total amount of liabilities, including, without limitation, the
probable amount of contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date), of such
Guarantor at such date, but excluding liabilities under the Guarantee of such
Guarantor, and (y) the amount by which the present fair saleable value of the
assets of such Guarantor at such date exceeds the amount that will be required
to pay the probable liability of such Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date and after giving effect to any collection from any
14
<PAGE> 16
subsidiary of such Guarantor in respect of any obligations of such subsidiary
under the Guarantee of such Guarantor), excluding debt in respect of the
Guarantee of such Guarantor, as they become absolute and matured.
"Attributable Indebtedness," when used with respect to any Sale/Leaseback
Transaction, means, as at the time of determination, the present value
(discounted at a rate equivalent to the Company's then current weighted average
cost of funds for borrowed money as at the time of determination, compounded on
a semiannual basis) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended).
"Capitalized Lease Obligation" of any Person means any obligation of such
Person to pay rent or other amounts under a lease of property, real or personal,
that is required to be capitalized for financial reporting purposes in
accordance with generally accepted accounting principles; and the amount of such
obligation shall be the capitalized amount thereof determined in accordance with
generally accepted accounting principles.
"Consolidated Net Worth" of the Company means the consolidated
stockholders' equity of the Company and its Subsidiaries, as determined in
accordance with generally accepted accounting principles.
"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that matures by its terms, or that is renewable at the option of any
obligor thereon to a date, more than one year after the date on which such
Indebtedness is originally incurred.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any interest rate swap agreement, foreign currency exchange
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement relating to interest rates or foreign exchange
rates.
"Indebtedness" of any Person at any date means, without duplication, (i)
all indebtedness of such Person for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof), (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in
respect of letters of credit or other similar instruments (or reimbursement
obligations with respect thereto), other than standby letters of credit incurred
by such Person in the ordinary course of business, (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
except trade payables and accrued expenses incurred in the ordinary course of
business, (v) all Capitalized Lease Obligations of such Person, (vi) all
Indebtedness (other than Joint Venture Indebtedness) of others secured by a Lien
on any asset of such Person, whether or not such Indebtedness is assumed by such
Person, (vii) all Indebtedness of others guaranteed by such Person to the extent
of such guarantee and (viii) all Hedging Obligations of such Person.
"Joint Venture Indebtedness" means obligations secured by a Lien on the
interests of the Company or a Restricted Subsidiary, as the case may be, arising
under production sharing contracts or related supply contracts, if such Lien
covers ratably the interests of Pertamina, the Indonesian national oil company,
and all production sharing contractors thereunder.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(including, without limitation, any production payment, advance payment or
similar arrangement with respect to minerals in place), whether or not filed,
recorded or otherwise perfected under applicable law. For the purposes of the
Indenture, the Company or any Restricted Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capitalized
Lease Obligation (other than any Capitalized Lease Obligation relating to any
building, structure,
15
<PAGE> 17
equipment or other property used or to be used in the ordinary course of
business of the Company and the Restricted Subsidiaries) or other title
retention agreement relating to such asset.
"Non-Recourse Indebtedness" means, at any date, the aggregate amount at
such date of Indebtedness of the Company or a Restricted Subsidiary in respect
of which the recourse of the holder of such Indebtedness, whether direct or
indirect and whether contingent or otherwise, is effectively limited to
specified assets.
"Pari Passu Indebtedness" means any Indebtedness of the Company, whether
outstanding on the date on which the Notes are originally issued or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall be
subordinated in right of payment to the Notes.
"Restricted Subsidiary" means (i) each Subsidiary of the Company executing
the Indenture (and listed under "Ranking and Guarantees" above), (ii) Union
Texas Petroleum Limited, an English limited company, so long as it is a
Subsidiary of the Company and (iii) any Subsidiary of the Company that is a
successor corporation of any Subsidiary of the Company referred to in clauses
(i) and (ii). The status of any Subsidiary of the Company as a Restricted
Subsidiary shall continue irrespective of any release of any Guarantee provided
by such Subsidiary under the Indenture so long as it is a Subsidiary of the
Company.
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary, for a
period of more than three years, of any real or tangible personal property,
which property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person in contemplation of such leasing.
EVENTS OF DEFAULT
An Event of Default will be defined in the Indenture as being: (i) default
by the Company or any Guarantor for 30 days in payment of any interest on the
Notes; (ii) default by the Company or any Guarantor in any payment of principal
of or premium, if any, on the Notes; (iii) default by the Company or any
Guarantor in performance of any other covenant or agreement in the Notes, the
Guarantees or the Indenture which shall not have been remedied within 60 days
after receipt of written notice by the Trustee or by the holders of at least 25%
in principal amount of the Notes then outstanding; (iv) the acceleration of the
maturity of any Indebtedness (other than the Notes or any Non-Recourse
Indebtedness) of the Company or any Restricted Subsidiary having an outstanding
principal amount of $20 million or more, individually, or in the aggregate, or a
default in the payment of any principal or interest in respect of any
Indebtedness (other than the Notes or any Non-Recourse Indebtedness) of the
Company or any Restricted Subsidiary having an outstanding principal amount of
$20 million or more individually or in the aggregate and such default shall be
continuing for a period of 30 days without the Company or such Restricted
Subsidiary, as the case may be, effecting a cure of such default; (v) a judgment
or order for the payment of money in excess of $20 million (net of applicable
insurance coverage which is acknowledged in writing by the insurer) having been
rendered against the Company or any Restricted Subsidiary and such judgment or
order shall continue unsatisfied and unstayed for a period of 30 days; or (vi)
certain events involving bankruptcy, insolvency or reorganization of the Company
or any Restricted Subsidiary. Pursuant to the Indenture, Guarantors may not be
released from their Guarantees if a default or Event of Default has occurred and
is continuing. The obligations of any Subsidiary of the Company that becomes a
Guarantor are not dependent upon whether such Subsidiary becomes a Guarantor
prior to or after an Event of Default. The Indenture will provide that the
Trustee may withhold notice to the holders of the Notes of any default or Event
of Default (except in payment of principal of, or premium, if any, or interest
on the Notes) if the Trustee considers it in the interest of the holders of the
Notes to do so.
The Indenture will provide that if an Event of Default occurs and is
continuing with respect to the Indenture, the Trustee or the holders of not less
than 25% in principal amount of the Notes outstanding
16
<PAGE> 18
may declare the principal of and premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. Upon such a declaration, such
principal, premium, if any, and interest will be due and payable immediately. If
an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company or any Restricted Subsidiary occurs and is
continuing, the principal of and premium, if any, and interest on all the Notes
will become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any holders of the Notes. The amount due and
payable on the acceleration of any Note will be equal to 100% of the principal
amount of such Note, plus accrued interest to the date of payment. Under certain
circumstances, the holders of a majority in principal amount of the outstanding
Notes may rescind any such acceleration with respect to the Notes and its
consequences.
The Indenture will provide that no holder of a Note may pursue any remedy
under the Indenture unless (i) the Trustee shall have received written notice of
a continuing Event of Default, (ii) the Trustee shall have received a request
from holders of at least 25% in principal amount of the Notes to pursue such
remedy, (iii) the Trustee shall have been offered indemnity reasonably
satisfactory to it and (iv) the Trustee shall have failed to act for a period of
60 days after receipt of such notice and offer of indemnity; however, such
provision does not affect the right of a holder of a Note to sue for enforcement
of any overdue payment thereon.
The holders of a majority in principal amount of the Notes then outstanding
will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee under the
Indenture, subject to certain limitations specified in the Indenture. The
Indenture will require the annual filing by the Company with the Trustee of a
written statement as to compliance with the covenants contained in the
Indenture.
MODIFICATION AND WAIVER
The Indenture will provide that modifications and amendments to the
Indenture or the Notes may be made by the Company, the Guarantors and the
Trustee with the consent of the holders of a majority in principal amount of the
Notes then outstanding; provided that no such modification or amendment may,
without the consent of the holder of each Note then outstanding affected
thereby, (i) reduce the amount of Notes whose holders must consent to an
amendment, supplement or waiver; (ii) reduce the rate of or change the time for
payment of interest, including default interest, on any Note; (iii) reduce the
principal of or change the fixed maturity of any Note or alter the premium or
other provisions with respect to redemption; (iv) make any Note payable in money
other than that stated in the Note; (v) impair the right to institute suit for
the enforcement of any payment of principal of, or premium, if any, or interest
on, any Note; (vi) make any change in the percentage of principal amount of
Notes necessary to waive compliance with certain provisions of the Indenture; or
(vii) waive a continuing Default or Event of Default in the payment of principal
of, or premium, if any, or interest on the Securities. The Indenture will
provide that modifications and amendments of the Indenture may be made by the
Company, the Guarantors and the Trustee without the consent of any holders of
Notes in certain limited circumstances, including (a) to cure any ambiguity,
omission, defect or inconsistency, (b) to provide for the assumption of the
obligations of the Company or any Guarantor under the Indenture upon the merger,
consolidation or sale or other disposition of all or substantially all of the
assets of the Company or any such Guarantor, (c) to provide for uncertificated
Notes in addition to or in place of certificated Notes, (d) to reflect the
release of any Guarantor from its Guarantee, or the addition of any Subsidiary
of the Company as a Guarantor, in the manner provided by the Indenture, (e) to
comply with any requirement in order to effect or maintain the qualification of
the Indenture under the Trust Indenture Act of 1939 or (f) to make any change
that does not adversely affect the rights of any holder of Notes in any material
respect.
The Indenture will provide that the holders of a majority in aggregate
principal amount of the Notes then outstanding may waive any existing default or
Event of Default under the Indenture, except a default or Event of Default in
the payment of principal, or premium, if any, or interest.
17
<PAGE> 19
DISCHARGE AND TERMINATION
Defeasance of Certain Obligations. The Indenture will provide that the
Company and the Guarantors may terminate certain of their respective obligations
under the Indenture, including those described under the section "Certain
Covenants," if (i) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations sufficient to pay principal of and interest
on the Notes to maturity, and to pay all other sums payable by it hereunder,
provided that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government Obligations to the payment of said
principal and interest with respect to the Notes as the same shall become due;
(ii) the Company delivers to the Trustee an Officer's Certificate stating that
all conditions precedent to satisfaction and discharge of the Indenture have
been complied with, and an Opinion of Counsel to the same effect; (iii) no
Default or Event of Default shall have occurred and be continuing on the date of
such deposit; and (iv) the Company shall have delivered to the Trustee an
Opinion of Counsel from nationally recognized counsel acceptable to the Trustee
or a tax ruling to the effect that the holders of the Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of the
Company's exercise of its option under such section and will be subject to
Federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been exercised. In
order to have money available on a payment date to pay principal of or interest
on the Notes, the U.S Government Obligations shall be payable as to principal or
interest on or before such payment date in such amounts as will provide the
necessary money. U.S. Government Obligations shall not be callable at the
issuer's option. The Company's payment obligation and the Guarantors' Guarantees
(among certain other obligations) shall survive until the Notes are no longer
outstanding.
Discharge. The Indenture will provide that the Indenture shall cease to be
of further effect (subject to certain exceptions relating to compensation and
indemnity of the Trustee and repayment to the Company of excess money or
securities) when (i) either (A) all outstanding Notes theretofore authenticated
and issued (other than destroyed, lost or stolen Notes that have been replaced
or paid) have been delivered to the Trustee for cancellation; or (B) all
outstanding Notes not theretofore delivered to the Trustee for cancellation: (x)
have become due and payable, or (y) will become due and payable at their stated
maturity within one year or (z) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of clause (x), (y) or (z) above, has deposited or
caused to be deposited with the Trustee as funds (immediately available to the
holders in the case of clause (x)) in trust for such purpose an amount which,
together with earnings thereon, will be sufficient to pay and discharge the
entire indebtedness on such Notes for principal, premium, if any, and interest
to the date of such deposit (in the case of Notes which have become due and
payable) or to the stated maturity or Redemption Date, as the case may be; (ii)
the Company has paid all other sums payable by it under the Indenture; and (iii)
the Company has delivered to the Trustee an Officer's Certificate stating that
all conditions precedent to satisfaction and discharge of the Indenture have
been complied with, together with an Opinion of Counsel to the same effect.
GOVERNING LAW
The Indenture will provide that it will be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
principles of conflicts of law.
THE TRUSTEE
The First National Bank of Chicago will be the Trustee under the Indenture.
Its address is One First National Plaza, Suite 0126, Chicago, IL 60670-0126. The
Company has also appointed the Trustee as the initial Registrar and as one of
the initial Paying Agents under the Indenture.
The Indenture will contain certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any such
claim as security or otherwise. The Trustee is one of the lenders under the
18
<PAGE> 20
Company's Credit Facility. The Trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest (as defined in
the Trust Indenture Act of 1939), it must eliminate such conflict or resign.
The Indenture will provide that in case an Event of Default shall occur
(and be continuing), the Trustee will be required to use the degree of care and
skill of a prudent man in the conduct of his own affairs. The Trustee will be
under no obligation to exercise any of its powers under the Indenture at the
request of any of the holders of the Notes, unless such holders shall have
offered the Trustee indemnity reasonably satisfactory to it.
AUTHENTICATION
Two officers of the Company will sign the Notes on behalf of the Company,
and two officers of each Guarantor will sign the notation on the Notes relating
to the Guarantee of such Guarantor on behalf of such Guarantor, in each case by
manual or facsimile signature. The Company's seal will be reproduced on the
Notes and may be in facsimile form. A note will not be valid until the Trustee
or an authenticating agent manually signs the certificate of authentication on
the Note. Each Note will be dated the date of its authentication.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, the
Company has agreed to sell to each of the Underwriters named below, and each of
the Underwriters has severally agreed to purchase from the Company, the
principal amount of the Notes set forth opposite its name below.
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT
UNDERWRITER OF NOTES
-------------
<S> <C>
Goldman, Sachs & Co. ................................................ $
Chemical Securities Inc..............................................
J.P. Morgan Securities Inc...........................................
Salomon Brothers Inc.................................................
-------------
Total............................................................ $ 200,000,000
-------------
-------------
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all of the Notes offered hereby,
if any are taken.
The Underwriters propose to offer the Notes in part directly to the public
at the initial public offering price set forth on the cover page of this
Prospectus and in part to certain securities dealers at such price less a
concession of % of the principal amount of the Notes. The Underwriters
may allow, and such dealers may reallow, a concession not to exceed %
of the principal amount of the Notes to certain brokers and dealers. After the
Notes are released for sale to the public, the offering price and other selling
terms may from time to time be varied by the Underwriters.
The Notes are a new issue of securities with no established trading market.
The Company has been advised by the Underwriters that the Underwriters intend to
make a market in the Notes but are not obligated to do so and may discontinue
market making at any time without notice. Although the Company expects that the
Notes will be approved for listing on the New York Stock Exchange, no assurance
can be given that an active public trading market for the Notes will develop.
The absence of an active public trading market could have an adverse effect on
the liquidity and value of the Notes.
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
19
<PAGE> 21
The Underwriters have in the past and may in the future provide investment
banking and other related services to the Company and its affiliates in the
ordinary course of their respective businesses. In addition, in the ordinary
course of their respective businesses, affiliates of Chemical Securities Inc.
and J.P. Morgan Securities Inc. have engaged, and may in the future engage, in
commercial banking transactions with the Company and its affiliates. As
discussed under "Use of Proceeds," the Company intends to use a portion of the
proceeds from the offering of the Notes to repay certain bank debt, and
affiliates of Chemical Securities Inc. and J.P. Morgan Securities Inc. are,
among others, lenders of such bank debt.
LEGAL MATTERS
Certain legal matters regarding the issuance of the Notes have been passed
upon by the Company's General Counsel, Newton W. Wilson, III. As of the date of
this Prospectus, Mr. Wilson owned approximately 6,400 shares of Common Stock of
the Company (excluding shares held indirectly by Mr. Wilson in the Company's
Savings Plan for Salaried Employees) and options to purchase 143,053 shares of
Common Stock (including options which are not yet vested). Certain legal matters
in connection with the Notes will also be passed upon for the Company by Andrews
& Kurth L.L.P., Houston, Texas, and for the Underwriters by Simpson Thacher &
Bartlett (a partnership which includes professional corporations), New York, New
York.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K of Union Texas Petroleum Holdings, Inc. for the
year ended December 31, 1993, have been so incorporated in reliance on the
report of Price Waterhouse, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
20
<PAGE> 22
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION
IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---
<S> <C>
Available Information.................. 2
Incorporation of Certain Documents by
Reference............................ 2
The Company............................ 3
Use of Proceeds........................ 4
Capitalization......................... 4
Selected Consolidated Financial Data... 5
Operating Data......................... 8
Description of the Notes............... 10
Underwriting........................... 19
Legal Matters.......................... 20
Experts................................ 20
</TABLE>
$200,000,000
UNION TEXAS
PETROLEUM HOLDINGS, INC.
% SENIOR NOTES
DUE 2004
---------------------
UNION TEXAS PETROLEUM
---------------------
GOLDMAN, SACHS & CO.
CHEMICAL SECURITIES INC.
J.P. MORGAN SECURITIES INC.
SALOMON BROTHERS INC
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE> 23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
An itemized statement of the estimated amount of all expenses in connection
with the distribution of the securities registered hereby, all of which will be
paid by the Company, is as follows:
<TABLE>
<S> <C>
Registration fee................................................. $ 68,966
Blue Sky fees and expenses....................................... 15,000
Printing and engraving expenses.................................. 80,000
Legal fees and expenses.......................................... 100,000
Accounting fees and expenses..................................... 100,000
Rating agencies' fees and expenses............................... 70,000
Trustee's and registrar's fees................................... 4,000
Miscellaneous fees and expenses.................................. 12,034
---------
Total..................................................... $ 450,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, inter alia, empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such persons against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
any such threatened, pending or completed action or suit if such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only as
authorized in each specific case upon a determination by the stockholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. The Company
maintains policies insuring its and its subsidiaries' officers and directors
against certain liabilities for actions taken in such capacities, including
liabilities under the Securities Act.
The Bylaws for each Registrant other than Union Texas East Kalimantan
Limited provide for indemnification of the directors and officers of the
Registrant to the full extent permitted by law, as now in effect or later
amended. In addition, the Bylaws provide for indemnification against expenses
incurred by a director or officer to be paid by the Registrant at reasonable
intervals in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director or officer to
repay such amount if it shall be ultimately determined that he is not entitled
to be indemnified by the Registrant. The Bylaws further provide for a
contractual cause of action on the part of directors and officers of each
Registrant for indemnification claims which have not been paid by the
Registrant. The
II-1
<PAGE> 24
Articles of Association of Union Texas East Kalimantan Limited provide for
indemnification of directors and officers except for wilful neglect or default.
The Company also has provided liability insurance for each director and
officer for certain losses arising from claims or charges made against them
while acting in their capacities as directors or officers of each Registrant.
The Certificate of Incorporation for each Registrant other than Union Texas
East Kalimantan Limited limits under certain circumstances the liability of each
Registrant's directors for a breach of their fiduciary duty as directors. These
provisions do not eliminate the liability of a director (i) for a breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law (relating to the declaration of dividends and purchase or
redemption of shares in violation of the Delaware General Corporation Law) or
(iv) for any transaction from which the director derived an improper personal
benefit.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
*1.1 -- Form of Underwriting Agreement.
3.1 -- Certificate of Incorporation of each Registrant (the Company's
Certificate of Incorporation is incorporated by reference from the
identical exhibit number in Post Effective Amendment No. 1 to the
Company's Registration Statement No. 33-12800; the Guarantors'
certificates of incorporation are incorporated by reference from the
identical exhibit number in the Company's Registration Statement No.
33-52400).
*3.2 -- Bylaws, as amended, of Union Texas Petroleum Energy Corporation.
*3.3 -- Bylaws, as amended, of Union Texas International Corporation.
*3.4 -- Bylaws, as amended, of Union Texas Products Corporation.
3.5 -- Bylaws of each other Registrant, as amended (the Company's Bylaws
were filed as Exhibit 3.1 to the Company's Form 8-K dated February 4,
1993 (Commission File No. 1-9019) and are incorporated herein by
reference, and the remaining Guarantors' Bylaws were filed as Exhibit
3.2 to the Company's Registration Statement No. 33-52400 and are
incorporated herein by reference).
*4.1 -- Form of Indenture.
*4.2 -- Form of Note (included in Exhibit 4.1).
*5.1 -- Opinion of legal counsel regarding legality of securities being
registered.
10.1 -- Credit Agreement, dated as of August 31, 1992, among the Company, the
Banks listed therein and NationsBank of Texas, N.A., as Agent, and
The First National Bank of Chicago and Union Bank of Switzerland,
Houston Agency, as Co-Agents (incorporated by reference from the
identical exhibit number in the Company's Registration Statement No.
33-52400).
10.2 -- First Amendment to Credit Agreement, dated as of September 30, 1992,
among the Company, the Banks listed therein and NationsBank of Texas,
N.A., as Agent, and The First National Bank of Chicago and Union Bank
of Switzerland, Houston Agency, as Co-Agents (incorporated by
reference from the identical exhibit number in the Company's
Registration Statement No. 33-52400).
10.3 -- The Indenture for the 8.25% Notes, dated as of November 15, 1992,
among the Company, the Guarantors and State Street Bank and Trust
Company (incorporated by reference from Exhibit 4.1 in Amendment No.
2 to the Company's Registration Statement No. 33-52400).
*12.1 -- Computation of Ratio of Earnings to Fixed Charges.
</TABLE>
II-2
<PAGE> 25
<TABLE>
<S> <C>
*12.2 -- Computation of Pro Forma Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Price Waterhouse.
*23.2 -- Consent of legal counsel (included in Exhibit 5.1).
*24.1 -- Power of Attorney included in Part II of the Registration Statement.
*25.1 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ------------
* Filed herewith.
ITEM 17. UNDERTAKINGS
Each undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Each undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
Registrant pursuant to the provisions in Item 15 above, or otherwise, each
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a Registrant
of expenses incurred or paid by a director, officer or controlling person of
such Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, such Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 26
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MARCH 15, 1994.
UNION TEXAS PETROLEUM HOLDINGS, INC.
By: /s/ LARRY D. KALMBACH
-------------------------------
Larry D. Kalmbach
Vice President -- Finance
POWER OF ATTORNEY
We the undersigned, directors and officers of Union Texas Petroleum
Holdings, Inc. (the "Company"), do hereby severally constitute and appoint A.
Clark Johnson, Newton W. Wilson, III, Larry D. Kalmbach and Donald M. McMullan
and each or any of them, our true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments or
post-effective amendments to this Registration Statement, and to file the same
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys and agents,
and each or any of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, and each of them, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------------------------
<C> <S> <C>
/s/ A. CLARK JOHNSON Chairman of the Board and March 15, 1994
(A. Clark Johnson) Chief Executive Officer
(Principal Executive
Officer)
/s/ LARRY D. KALMBACH Vice President -- Finance March 15, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
/s/ DONALD M. McMULLAN Vice President and Controller March 15, 1994
(Donald M. McMullan) (Principal Accounting
Officer)
/s/ GLENN A. COX Director March 15, 1994
(Glenn A. Cox)
/s/ SAUL A. FOX Director March 15, 1994
(Saul A. Fox)
Director , 1994
(Edward A. Gilhuly)
/s/ JAMES H. GREENE, JR. Director March 15, 1994
(James H. Greene, Jr.)
/s/ HENRY R. KRAVIS Director March 15, 1994
(Henry R. Kravis)
/s/ MICHAEL W. MICHELSON Director March 15, 1994
(Michael W. Michelson)
/s/ STANLEY P. PORTER Director March 15, 1994
(Stanley P. Porter)
/s/ GEORGE R. ROBERTS Director March 15, 1994
(George R. Roberts)
/s/ RICHARD R. SHINN Director March 15, 1994
(Richard R. Shinn)
/s/ SELLERS STOUGH Director March 15, 1994
(Sellers Stough)
</TABLE>
II-4
<PAGE> 27
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MARCH 15, 1994.
UNION TEXAS EAST KALIMANTAN LIMITED
By: /s/ LARRY D. KALMBACH
--------------------------------
Larry D. Kalmbach
Vice President
POWER OF ATTORNEY
We the undersigned, directors and officers of Union Texas East Kalimantan
Limited (the "Company"), do hereby severally constitute and appoint A. Clark
Johnson, Newton W. Wilson, III, Larry D. Kalmbach and Donald M. McMullan and
each or any of them, our true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments or
post-effective amendments to this Registration Statement, and to file the same
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys and agents,
and each or any of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, and each of them, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------------------------
<C> <S> <C>
/s/ ARTHUR W. PEABODY, JR. Director and President March 15, 1994
(Arthur W. Peabody, Jr.) (Principal Executive
Officer)
/s/ LARRY D. KALMBACH Director and Vice President March 15, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
/s/ ROBERT V. DEERE Controller (Principal March 15, 1994
(Robert V. Deere) Accounting Officer)
/s/ JOHNNIE J. COX Director March 15, 1994
(Johnnie J. Cox)
/s/ JAMES E. KNIGHT Director March 15, 1994
(James E. Knight)
/s/ WILLIAM M. KRIPS Director March 15, 1994
(William M. Krips)
/s/ NEWTON W. WILSON, III Director March 15, 1994
(Newton W. Wilson, III)
</TABLE>
II-5
<PAGE> 28
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MARCH 15, 1994.
UNION TEXAS PETROLEUM ENERGY
CORPORATION
By: /s/ LARRY D. KALMBACH
----------------------------------
Larry D. Kalmbach
Vice President
POWER OF ATTORNEY
We the undersigned, directors and officers of Union Texas Petroleum Energy
Corporation (the "Company"), do hereby severally constitute and appoint A. Clark
Johnson, Newton W. Wilson, III, Larry D. Kalmbach and Donald M. McMullan and
each or any of them, our true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments or
post-effective amendments to this Registration Statement, and to file the same
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys and agents,
and each or any of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, and each of them, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------------------------
<C> <S> <C>
/s/ ARTHUR W. PEABODY, JR. Director and President March 15, 1994
(Arthur W. Peabody, Jr.) (Principal Executive
Officer)
/s/ LARRY D. KALMBACH Director and Vice President March 15, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
/s/ ROBERT V. DEERE Controller (Principal March 15, 1994
(Robert V. Deere) Accounting Officer)
/s/ JAMES E. KNIGHT Director March 15, 1994
(James E. Knight)
/s/ WILLIAM M. KRIPS Director March 15, 1994
(William M. Krips)
</TABLE>
II-6
<PAGE> 29
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MARCH 15, 1994.
UNION TEXAS INTERNATIONAL CORPORATION
By: /s/ LARRY D. KALMBACH
-----------------------------------
Larry D. Kalmbach
Vice President
POWER OF ATTORNEY
We the undersigned, directors and officers of Union Texas International
Corporation (the "Company"), do hereby severally constitute and appoint A. Clark
Johnson, Newton W. Wilson, III, Larry D. Kalmbach and Donald M. McMullan and
each or any of them, our true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments or
post-effective amendments to this Registration Statement, and to file the same
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys and agents,
and each or any of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, and each of them, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------------------------
<C> <S> <C>
/s/ WILLIAM M. KRIPS Director and President March 15, 1994
(William M. Krips) (Principal Executive
Officer)
/s/ LARRY D. KALMBACH Director and Vice President March 15, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
/s/ ROBERT V. DEERE Controller (Principal March 15, 1994
(Robert V. Deere) Accounting Officer)
/s/ JAMES E. KNIGHT Director March 15, 1994
(James E. Knight)
/s/ ARTHUR W. PEABODY, JR. Director March 15, 1994
(Arthur W. Peabody, Jr.)
</TABLE>
II-7
<PAGE> 30
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MARCH 15, 1994.
UNION TEXAS PRODUCTS CORPORATION
By: /s/ LARRY D. KALMBACH
-----------------------------
Larry D. Kalmbach
Vice President
POWER OF ATTORNEY
We the undersigned, directors and officers of Union Texas Products
Corporation (the "Company"), do hereby severally constitute and appoint A. Clark
Johnson, Newton W. Wilson, III, Larry D. Kalmbach and Donald M. McMullan and
each or any of them, our true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments or
post-effective amendments to this Registration Statement, and to file the same
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys and agents,
and each or any of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, and each of them, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------------------------
<C> <S> <C>
/s/ ARTHUR W. PEABODY, JR. Director and President March 15, 1994
(Arthur W. Peabody, Jr.) (Principal Executive
Officer)
/s/ LARRY D. KALMBACH Director and Vice President March 15, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
/s/ C. J. SMITH Controller (Principal March 15, 1994
(C. J. Smith) Accounting Officer)
/s/ WILLIAM M. KRIPS Director March 15, 1994
(William M. Krips)
</TABLE>
II-8
<PAGE> 31
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MARCH 15, 1994.
UNISTAR, INC.
By: /s/ LARRY D. KALMBACH
-----------------------------
Larry D. Kalmbach
Vice President
POWER OF ATTORNEY
We the undersigned, directors and officers of Unistar, Inc. (the
"Company"), do hereby severally constitute and appoint A. Clark Johnson, Newton
W. Wilson, III, Larry D. Kalmbach and Donald M. McMullan and each or any of
them, our true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments or post-effective
amendments to this Registration Statement, and to file the same with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys and agents, and
each or any of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, and each of them, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ ARTHUR W. PEABODY, JR. Director and President March 15, 1994
---------------------------- (Principal Executive
(Arthur W. Peabody, Jr.) Officer)
/s/ LARRY D. KALMBACH Director and Vice President March 15, 1994
---------------------------- (Principal Financial
(Larry D. Kalmbach) Officer)
/s/ ROBERT V. DEERE Controller (Principal March 15, 1994
---------------------------- Accounting Officer)
(Robert V. Deere)
/s/ WILLIAM M. KRIPS Director March 15, 1994
----------------------------
(William M. Krips)
</TABLE>
II-9
<PAGE> 32
INDEX TO EXHIBITS
<TABLE>
<S> <C>
*1.1 -- Form of Underwriting Agreement.
3.1 -- Certificate of Incorporation of each Registrant (the Company's
Certificate of Incorporation is incorporated by reference from the
identical exhibit number in Post Effective Amendment No. 1 to the
Company's Registration Statement No. 33-12800; the Guarantors'
certificates of incorporation are incorporated by reference from the
identical exhibit number in the Company's Registration Statement No.
33-52400).
*3.2 -- Bylaws, as amended, of Union Texas Petroleum Energy Corporation.
*3.3 -- Bylaws, as amended, of Union Texas International Corporation.
*3.4 -- Bylaws, as amended, of Union Texas Products Corporation.
3.5 -- Bylaws of each other Registrant, as amended (the Company's Bylaws
were filed as Exhibit 3.1 to the Company's Form 8-K dated February 4,
1993 (Commission File No. 1-9019) and are incorporated herein by
reference, and the remaining Guarantors' Bylaws were filed as Exhibit
3.2 to the Company's Registration Statement No. 33-52400 and are
incorporated herein by reference).
*4.1 -- Form of Indenture.
*4.2 -- Form of Note (included in Exhibit 4.1).
*5.1 -- Opinion of legal counsel regarding legality of securities being
registered.
10.1 -- Credit Agreement, dated as of August 31, 1992, among the Company, the
Banks listed therein and NationsBank of Texas, N.A., as Agent, and
The First National Bank of Chicago and Union Bank of Switzerland,
Houston Agency, as Co-Agents (incorporated by reference from the
identical exhibit number in the Company's Registration Statement No.
33-52400).
10.2 -- First Amendment to Credit Agreement, dated as of September 30, 1992,
among the Company, the Banks listed therein and NationsBank of Texas,
N.A., as Agent, and The First National Bank of Chicago and Union Bank
of Switzerland, Houston Agency, as Co-Agents (incorporated by
reference from the identical exhibit number in the Company's
Registration Statement No. 33-52400).
10.3 -- The Indenture for the 8.25% Notes, dated as of November 15, 1992,
among the Company, the Guarantors and State Street Bank and Trust
Company (incorporated by reference from Exhibit 4.1 in Amendment No.
2 to the Company's Registration Statement No. 33-52400).
*12.1 -- Computation of Ratio of Earnings to Fixed Charges.
*12.2 -- Computation of Pro Forma Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Price Waterhouse.
*23.2 -- Consent of legal counsel (included in Exhibit 5.1).
*24.1 -- Power of Attorney included in Part II of the Registration Statement.
*25.1 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ------------
* Filed herewith.
<PAGE> 1
Union Texas Petroleum Holdings, Inc.
{ }% Senior Notes due 2004
Underwriting Agreement
April { }, 1994
Goldman, Sachs & Co.
Chemical Securities Inc.
J.P. Morgan Securities Inc.
Salomon Brothers Inc
As Underwriters
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
Union Texas Petroleum Holdings, Inc., a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated herein,
to issue and sell to Goldman, Sachs & Co., Chemical Securities Inc., J.P.
Morgan Securities Inc. and Salomon Brothers Inc (the "Underwriters") an
aggregate of $200,000,000 principal amount of the { }% Senior Notes due 2004
of the Company (the "Notes"). The Company's obligations to pay principal,
premium, if any, and interest with respect to the Notes will be unconditionally
guaranteed (the "Guarantees") on a joint and several basis by each of the
following subsidiaries of the Company (collectively, the "Guarantors"): (i)
Union Texas East Kalimantan Limited, a Bahamian corporation ("UTEK"); (ii)
Union Texas Petroleum Energy Corporation, a Delaware corporation; (iii) Union
Texas International Corporation, a Delaware corporation; (iv) Union Texas
Products Corporation, a Delaware corporation; and (v) Unistar, Inc., a Delaware
corporation.
1. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement in respect of the Notes
and the Guarantees has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, have been declared effective by the Commission in
such form; no other document with respect to such registration
statement or document incorporated by reference therein has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Securities Act of
1933, as amended (the "Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement,
including all exhibits thereto (other than the Statement of
Eligibility and Qualification on Form T-1 of the Trustee) and
including (i) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the registration statement at
the time it
<PAGE> 2
was declared effective and (ii) the documents incorporated by
reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective,
each as amended at the time such part of the registration statement
became effective, being hereinafter called the "Registration
Statement"; such final prospectus, in the form first filed pursuant to
Rule 424(b) under the Act, being hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus
being deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus being deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement being
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
published rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by you expressly for use therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the published rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(d) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act
and the published rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by you expressly for
use therein;
2
<PAGE> 3
(e) None of the Company or any of its subsidiaries or,
to the best of the Company's knowledge, Unimar Company, a Texas
general partnership ("Unimar"), has sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus, which loss or interference is material to the
Company and its subsidiaries taken as a whole; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock (other than (i) any shares of capital stock of the
Company sold upon exercise of a subscription, option or warrant or the
conversion of a security outstanding on the date of this Agreement and
(ii) any shares of such capital stock, or other securities convertible
or exercisable or exchangeable for such shares, in either case issued
pursuant to any employee stock option or benefit plan of the Company
existing on the date of this Agreement) or any increase of more than
$25,000,000 in the consolidated short-term or long-term debt of the
Company or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(f) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, or is
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction; each subsidiary
of the Company identified in Annex II hereto (collectively, the
"Material Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; Unimar has been duly formed and is
validly existing as a partnership under the laws of the State of
Texas; and the Company does not have any subsidiary that is a
"significant subsidiary" (within the meaning of the published rules
and regulations of the Commission under the Act) that is not
identified in Annex II hereto;
(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each Material Subsidiary of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable,
and all of such shares of capital stock and 50% of the equity
interests in Unimar (except for directors' qualifying shares and
except as set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(h) The Notes have been duly authorized and, when
issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered by the Company and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the indenture dated as of April {
}, 1994 (the "Indenture") among the Company, the Guarantors and
the First National Bank of Chicago, as Trustee (the "Trustee"), under
which they are to be issued, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Guarantees
have been duly authorized by each of the Guarantors and, upon the due
authentication, execution, issuance and delivery of the Notes, will
have been duly executed, issued and
3
<PAGE> 4
delivered by each Guarantor and will constitute valid and legally
binding obligations of each Guarantor entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized by
the Company and each Guarantor and duly qualified under the Trust
Indenture Act and, when executed and delivered by the Company, each
Guarantor and the Trustee, will constitute a valid and legally binding
instrument of the Company and each Guarantor, enforceable against the
Company and each Guarantor in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Notes, the Guarantees
and the Indenture will conform to the descriptions thereof in the
Prospectus;
(i) The issue and sale of the Notes, the issue of the
Guarantees and the compliance by the Company and the Guarantors with
all of the provisions of the Notes, the Guarantees, the Indenture and
this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries or, to the best of the Company's knowledge, Unimar is a
party or by which the Company or any of its subsidiaries or Unimar is
bound or to which any of the property or assets of the Company or any
of its subsidiaries or Unimar is subject, or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or Unimar or
any of their properties (excluding conflicts, breaches, violations and
defaults that, individually or in the aggregate, will not have any
material adverse effect on the general affairs, management, financial
position, stockholders' equity, results of operations or prospects of
the Company and its subsidiaries taken as a whole), nor will any such
action result in any violation of the provisions of the Restated
Certificate of Incorporation or By-laws of the Company or the charter
or by-laws of any Guarantor; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the
Company and the Guarantors of the transactions contemplated by this
Agreement or the Indenture, except the registration under the Act of
the Notes and the Guarantees, the qualification under the Trust
Indenture Act of the Indenture and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Underwriters;
(j) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries or, to the best of the Company's knowledge,
Unimar is a party or of which any property of the Company or any of
its subsidiaries or Unimar is the subject which, if determined
adversely to the Company or any of its subsidiaries or Unimar, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(k) Price Waterhouse, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(l) The Notes have been approved for listing on the New
York Stock Exchange, subject to notice of issuance; and
(m) Neither the Company nor any of the Guarantors is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the
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<PAGE> 5
"Investment Company Act"), and the published rules and regulations of
the Commission thereunder, and the offer and sale of the Notes and the
Guarantees will not subject the Company or any of the Guarantors to
registration under, or result in a violation of, the Investment
Company Act.
2. Subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price of { }% of the principal amount thereof, plus accrued
interest from April { }, 1994 to the Time of Delivery (as defined in Section 4
hereof), $200,000,000 principal amount of the Notes.
3. Upon the authorization by you of the release of the Notes,
the Underwriters propose to offer the Notes for sale upon the terms and
conditions set forth in the Prospectus.
4. The Notes to be purchased by the Underwriters hereunder,
in definitive form and in such denominations and registered in such names as
you may request upon at least forty-eight hours' prior notice to the Company,
shall be delivered by or on behalf of the Company to you against payment by you
by certified or official bank check or checks, payable to the order of the
Company, in New York Clearing House funds, all at the office of Goldman, Sachs
& Co., 85 Broad Street, New York, New York. The time and date of such delivery
and payment shall be 9:30 a.m., New York time, on April { }, 1994 or such
other time and date as you and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery." Such certificates will be
made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery at such office of Goldman, Sachs & Co.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and
to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be reasonably
disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when the
Registration Statement, or any amendment thereto, has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you copies thereof; to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering
or sale of the Notes; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus
or prospectus, of the suspension of the qualification of the Notes or
the Guarantees for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Notes and the Guarantees for
offering and sale under the securities laws of such jurisdictions as
you may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Notes,
provided that in connection therewith
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<PAGE> 6
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction;
(c) To furnish you with copies of the Prospectus in such
quantities as you may from time to time reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Notes and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to you and to any
dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance, and in case you are required to deliver a prospectus
in connection with sales of any of the Notes at any time nine months
or more after the time of issue of the Prospectus, upon your request
but at your expense, to prepare and deliver to you as many copies as
you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the earlier of (i) the termination of
trading restrictions on the Notes as notified to the Company by you,
and (ii) the Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of debt securities of the Company which mature more
than one year after the Time of Delivery and which are substantially
similar to the Notes, except (x) with your prior written consent, (y)
as described in the Prospectus or (z) pursuant to borrowings under the
Credit Agreement dated as of August 31, 1992 between the Company and
the Banks named therein;
(f) To furnish to the holders of the Notes as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail; and
(g) During a period of three years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such
financial statements to be
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<PAGE> 7
on a consolidated basis to the extent the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission).
6. The Company covenants and agrees with you that it will pay
or cause to be paid the following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of
the Notes and the Guarantees under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to you and to dealers;
(ii) the cost of printing or producing this Agreement, the Indenture, the Blue
Sky Memorandum and any other documents in connection with the offering,
purchase, sale and delivery of the Notes and the Guarantees; (iii) all expenses
in connection with the qualification of the Notes and the Guarantees for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) any fees charged by securities rating services for rating the Notes; (v)
the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Notes;
(vi) the costs of preparing and delivering the Notes and the Guarantees to the
Underwriters, including any capital, stamp or other tax or duty payable upon
the issuance of the Notes or the Guarantees; (vii) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Notes; (viii) all
expenses and listing fees in connection with the listing of the Notes on the
New York Stock Exchange; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that except as
provided in this Section, Section 8 and Section 11 hereof, you will pay all of
your own costs and expenses, including the fees of your counsel, transfer taxes
on resale of any of the Notes by you, and any advertising expenses connected
with any offers you may make.
7. The obligations of each of the Underwriters hereunder
shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery, true and correct, the condition that the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Simpson Thacher & Bartlett, counsel for the Underwriters,
shall have furnished to you such opinion or opinions, dated the Time
of Delivery, with respect to the incorporation of the Company, this
Agreement, the Indenture, the validity of the Notes and the
Guarantees, the Registration Statement, the Prospectus, and other
related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Andrews & Kurth L.L.P., counsel for the Company and the
Guarantors, shall have furnished to you their written opinion, dated
the Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) Each of the Company and the Guarantors
(other than UTEK) has been duly incorporated and is validly
existing as a corporation in good standing
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<PAGE> 8
under the laws of the State of Delaware, with requisite
corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and all of the
issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases a material amount of properties, or
conducts any material business, so as to require such
qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of public
officials or officers of the Company, provided that such
counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates);
(iv) Each Material Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
to the best of such counsel's knowledge after reasonable
investigation, Unimar has been duly formed and is validly
existing as a partnership under the laws of the State of
Texas; and all of the issued shares of capital stock of each
Material Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable, and (except for
directors' qualifying shares and shares held by third parties
solely to satisfy local law requirements and except as
otherwise set forth in the Prospectus), to the best of such
counsel's knowledge after reasonable investigation, all of
such shares of capital stock and 50% of the equity interests
in Unimar are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims
within the meaning of the Uniform Commercial Code (such
counsel being entitled to (A) state that the opinion in this
clause relating to the ownership of capital stock and equity
interests is based solely on a review of the corporate records
of the Company and its subsidiaries and the records of Unimar,
the certificate or certificates representing such shares of
capital stock and evidence of such equity interests in Unimar
and a certificate or certificates in respect of matters of
fact as to ownership of and liens, encumbrances, equities or
claims on such shares of capital stock and equity interests,
provided that such counsel shall state that he believes that
both you and he are justified in relying upon such certificate
or certificates and (B) rely in respect of the opinion in this
clause upon opinions of local counsel furnished to you at the
Time of Delivery and in respect of matters of fact upon
certificates of public officials or officers of the Company or
its subsidiaries furnished to you at the Time of Delivery,
provided that such counsel shall state that they believe that
both you and they are justified in relying upon such opinions
and certificates);
(v) To the best of such counsel's knowledge
after reasonable investigation, other than as set forth in the
Prospectus, there is no pending or threatened action, suit or
proceeding before any court or any governmental agency or body
or any arbitrator involving the Company, any Material
Subsidiary or Unimar required to be disclosed in the
Registration Statement that is not adequately disclosed
therein;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
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<PAGE> 9
(vii) The Notes have been duly authorized,
executed, issued and delivered by the Company and, assuming
the due authentication thereof by the Trustee, constitute
valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; the Guarantees have
been duly authorized, executed, issued and delivered by each
Guarantor and constitute valid and legally binding obligations
of each Guarantor entitled to the benefits provided by the
Indenture; and the Notes, the Guarantees and the Indenture
conform to the descriptions thereof in the Prospectus;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and each Guarantor and,
assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding
instrument of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Indenture has been duly
qualified under the Trust Indenture Act;
(ix) The issue and sale of the Notes, the issue
of the Guarantees and the compliance by the Company and the
Guarantors with all of the provisions of the Notes, the
Guarantees, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not result in any violation of the Restated
Certificate of Incorporation or By-laws of the Company or the
charter or by-laws of any Guarantor (other than UTEK) and, to
the best of such counsel's knowledge after reasonable
investigation, such actions will not result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its Material Subsidiaries or, to the best of
the Company's knowledge, Unimar is a party or by which the
Company or any of its Material Subsidiaries or Unimar is bound
or to which any of the property or assets of the Company or
any of its Material Subsidiaries or Unimar is subject, or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company, any of its Material
Subsidiaries or Unimar or any of their properties (excluding
breaches, violations and defaults that, individually or in the
aggregate, will not have any material adverse effect on the
general affairs, management, financial position, stockholders'
equity, results of operations or prospects of the Company and
its subsidiaries taken as a whole) (such counsel being
entitled to rely in respect of the opinion in this clause
relating to statutes, orders, rules or regulations upon
opinions of local counsel furnished to you at the Time of
Delivery, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such opinions);
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body having jurisdiction over the
Company is required for the consummation by the Company and
the Guarantors of the transactions contemplated by this
Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act, and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Notes and
the Guarantees by the Underwriters;
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<PAGE> 10
(xi) The statements made in the Prospectus under
the caption "Description of the Notes", insofar as they
purport to constitute summaries of the legal matters and
documents referred to therein, fairly present the information
called for with respect to such legal matters and documents
and fairly summarize such legal matters and documents;
(xii) Neither the Company nor any of the
Guarantors is an "investment company" within the meaning of
the Investment Company Act and the published rules and
regulations of the Commission thereunder, and no registration
of the Company or any of the Guarantors under the Investment
Company Act is required for, or will be required as a
consequence of, the issuance, offer and sale of the Notes and
the Guarantees pursuant to this Agreement;
(xiii) The documents incorporated by reference in
the Prospectus or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules and engineering
and statistical data therein, as to which such counsel need
express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the published rules and
regulations of the Commission thereunder; and
(xiv) The Registration Statement and the
Prospectus and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules and engineering
and statistical data therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Act and the Trust Indenture Act
and the published rules and regulations of the Commission
thereunder.
Such counsel shall state that, although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in any of the documents referred to in subclause
(xiii) of this Clause (c) or in the Registration Statement or the
Prospectus (except as and to the extent described in subclause (xi) of
this Clause (c)), they have no reason to believe that (i) any of the
documents referred to in subclause (xiii) of this Clause (c) when such
documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact, or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Exchange Act with
the Commission, an untrue statement of a material fact, or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or, in the case of other
documents which were filed under the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
10
<PAGE> 11
light of the circumstances under which they were made when such
documents were so filed, not misleading; or (ii) as of its effective
date, the Registration Statement or any further amendment thereto made
by the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion or belief) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion or belief)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of the Time of Delivery, either the Registration Statement or
the Prospectus or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion or belief) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by
reference or described as required.
In rendering the opinions referred to in subclauses (ii)
(other than with respect to authorized capitalization), (iii), (iv),
(v), (ix) and (x) of this Clause (c), such counsel may rely upon an
opinion of Newton W. Wilson, III, Esq., Vice President, General
Counsel and Secretary of the Company, provided that such counsel shall
state that they believe that both you and they are justified in
relying upon such opinion.
In rendering such opinion, such counsel may (A) state that
their opinion is limited to matters governed by the Federal laws of
the United States, the laws of the State of New York and the State of
Texas, and the General Corporation Law of the State of Delaware and
(B) rely (to the extent such counsel deem proper and specify in their
opinion), as to matters involving the application of the laws of other
jurisdictions, upon the opinions of local counsel referred to in
subclauses (iii), (iv) and (ix) of this Clause (c).
(d) Graham, Thompson & Co., Bahamian counsel for the Company,
and Mochtar, Karuwin & Komar, Indonesian counsel for the Company,
shall have furnished to you their written opinions, dated the Time of
Delivery, in form and substance satisfactory to you, with respect to
such matters as you may reasonably request concerning UTEK and its
Guarantee.
(e) On the effective date of the Registration Statement and
the effective date of the most recently filed post-effective amendment
to the Registration Statement and also at the Time of Delivery, Price
Waterhouse shall have furnished to you a letter or letters, dated the
respective date of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto;
(f) (i) None of the Company or any of its subsidiaries or
Unimar shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or
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<PAGE> 12
contemplated in the Prospectus, which loss or interference is material
to the Company and its subsidiaries taken as a whole, and (ii) since
the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock
(other than (i) any shares of capital stock of the Company sold upon
the exercise of a subscription, option or warrant or the conversion of
a security outstanding on the date of this Agreement and (ii) any
shares of such capital stock, or other securities convertible or
exercisable or exchangeable for such shares, in either case issued
pursuant to any employee stock option or benefit plan of the Company
existing on the date of this Agreement) or any increase of more than
$25,000,000 in the consolidated short-term or long- term debt of the
Company or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in Clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Notes being delivered at the
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or its
subsidiaries' preferred stock by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or its subsidiary's
preferred stock;
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii) the
outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war if
the effect of any such event specified in this Clause (iii) in your
judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Notes on the terms and in the
manner contemplated in the Prospectus; and
(i) The Company shall have furnished or caused to be
furnished to you at the Time of Delivery certificates of officers of
the Company and the Guarantors satisfactory to you as to the accuracy
of the representations and warranties of the Company herein at and as
of the Time of Delivery, as to the performance by the Company of all
of its obligations hereunder to be performed at or prior to the Time
of Delivery, and as to such other matters as you may reasonably
request, and the Company shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (a)
and (f) of this Section, and as to such other matters as you may
reasonably request.
8. (a) The Company will indemnify and hold each Underwriter
harmless against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter expressly for use therein; and provided, further,
that the Company shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Notes to a person as to whom
it shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (excluding
documents incorporated by reference) or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) in any case where
such delivery is required by the Act if the Company has previously furnished
copies thereof to such Underwriter and the loss,
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<PAGE> 13
claim, damage or liability of such Underwriter results from an untrue statement
or omission of a material fact contained in the Preliminary Prospectus which
was corrected in the Prospectus (excluding documents incorporated by reference)
or in the Prospectus as then amended or supplemented (excluding documents
incorporated by reference).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by a party entitled to
indemnification under subsection (a) or (b) above (the "indemnified party") of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against a party required to provide
indemnification to such indemnified party under such subsection (the
"indemnifying party"), notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (which shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. In no event shall an
indemnifying party be liable for the fees and expenses of more than one counsel
(in addition to any local counsel), apart from counsel to such indemnifying
party, for all indemnified parties in connection with any one action or
separate but similar or related actions arising out of the same general
allegations or circumstances. No indemnifying party shall be liable for any
settlement of any such action effected without its consent, provided that such
consent is not unreasonably withheld or delayed.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Notes. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the
13
<PAGE> 14
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Underwriter agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
would have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
each Underwriter under this Section 8 shall be in addition to any liability
which such Underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of the Underwriters or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Notes.
10. If for any reason any Notes are not delivered by or on
behalf of the Company as provided herein, the Company will reimburse the
Underwriters for all of their out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Notes not so delivered,
but the Company shall then be under no further liability to any Underwriter in
respect of the Notes not so delivered except as provided in Section 6 and
Section 8 hereof.
11. All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to Goldman, Sachs & Co. at 85
Broad Street, New York, N.Y. 10004, Attention: Registration Department; and if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14
<PAGE> 15
12. This Agreement shall be binding upon, and inure solely to
the benefit of the Underwriters, the Company and, to the extent provided in
Sections 8 and 9 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser
of any of the Notes from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
13. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
15
<PAGE> 16
If the foregoing is in accordance with your understanding,
please sign and return to us nine counterparts hereof, and upon the acceptance
hereof by you this letter and such acceptance hereof shall constitute a binding
agreement between you and the Company.
Very truly yours,
UNION TEXAS PETROLEUM HOLDINGS, INC.
By:_____________________________________
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
________________________________________
(Goldman, Sachs & Co.)
CHEMICAL SECURITIES INC.
By:_____________________________________
Name:
Title:
J.P. MORGAN SECURITIES INC.
By:_____________________________________
Name:
Title:
SALOMON BROTHERS INC
By:_____________________________________
Name:
Title:
16
<PAGE> 17
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial
statement schedules provided pursuant to Article 12 of Regulation S-X audited
by them and incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and the
applicable related published rules and regulations thereunder with respect to
Registration Statements on Form S-3; and they have made a review in accordance
with standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the Underwriters;
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements referred to below, a reading of
the latest available interim financial data of the Company and its
subsidiaries, a reading of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
regarding the specified items for which representations are requested below,
nothing came to their attention as a result of the foregoing procedures that
caused them to believe that:
(A) at the date of the latest available interim financial data
and at a specified date not more than five days prior to the date of such
letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated short-term or long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets
(working capital) or stockholders' equity or other items heretofore
determined with the Underwriters, or any increases in any items
heretofore determined with the Underwriters, in each case as compared
with amounts shown in the latest balance sheet included or incorporated
by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter;
(B) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (B) there were any decreases in
consolidated net revenues or operating profit or the total or per share
amounts of consolidated net income or other items heretofore determined
with the Underwriters, or any increases in any items heretofore
determined with the Underwriters, in each case as compared with the
comparable period of the preceding year, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
<PAGE> 18
(iv) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in paragraphs (ii) and (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Underwriters which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference) or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the
Underwriters or in documents incorporated by reference in the Prospectus
specified by the Underwriters, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and its subsidiaries and have found them to be in agreement.
2
<PAGE> 19
ANNEX II
MATERIAL SUBSIDIARIES
{UNION TEXAS PETROLEUM FIRST FINANCIAL CORPORATION
UNION TEXAS PETROLEUM ENERGY CORPORATION
UNION TEXAS INTERNATIONAL CORPORATION
UNION TEXAS EAST KALIMANTAN LIMITED
UNION TEXAS PAKISTAN, INC.
UNION TEXAS PETROLEUM LIMITED
UNION TEXAS PETROLEUM ALASKA CORPORATION
UNION TEXAS PRODUCTS CORPORATION
UNION TEXAS PETROCHEMICALS PIPELINE, INC.
UNISTAR, INC.}
<PAGE> 1
UNION TEXAS PETROLEUM ENERGY CORPORATION
BYLAWS
DATED MAY 18, 1993
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may
from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of HOUSTON, State of TEXAS, at such place
as may be fixed from time to time by the board of directors or at such other
place either within or without the State of Texas as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Unless otherwise set by the board of directors, annual
meetings of stockholders shall be held on the third Tuesday of May if not a
legal holiday, and if a
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legal holiday, then on the next secular day following, at 3:00 p.m., at which
the stockholders shall elect by a plurality vote a board of directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Subject to the provisions of Article IV, written notice of
the annual meeting stating the place, date and hour of the meeting shall be
given to each stockholder entitled to vote thereat at least ten days before the
date of the meeting.
Section 4. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the President and shall be called by the
President or Secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the Corporation issued and outstanding
and entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 5. Written notice of a special meeting of stockholders stating
the time, place and object thereof, shall be given to each stockholder entitled
to vote thereat, at least ten days before the date fixed for the meeting.
Section 6. Business transacted at any special meeting of the
stockholders shall be limited to the purposes stated in the notice or whatever
business the stockholders mutually agree to consider.
Section 7. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the
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<PAGE> 3
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present
or represented any business may be transacted which might have been transacted
at the meeting as originally notified.
Section 8. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or
of the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 9. Each stockholder shall at every meeting of the stockholders
be entitled to one vote in person or by proxy for each share of the capital
stock having voting power held by such stockholder, but no proxy shall be voted
on after three years from its date, unless the proxy provides for a longer
period.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than three nor more than ten. Within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each
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<PAGE> 4
director elected shall hold office until his successor is elected and
qualifies. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, and the directors
so chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced.
Section 3. The business of the Corporation shall be managed under the
direction of its board of directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these bylaws directed or required to be
exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting to the newly
elected directors shall be necessary in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the
time and place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter provided
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<PAGE> 5
for special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board or stockholders.
Section 7. Special meetings of the board may be held at any time upon
the call of the President, any Vice President, or the Secretary by oral,
telegraphic or written notice, duly served on or sent or mailed to each
director not less than two days before such meeting.
Section 8. At all meetings of the board two directors shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors may be taken without a meeting if all
members of the board consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the board.
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<PAGE> 6
RESIGNATIONS
Section 10. Any director or officer of the Corporation may resign at
any time by giving written notice to the President or to the Secretary of the
Corporation. Such resignation shall take effect at the time specified
therein; and unless otherwise specified therein the acceptance of such
resignation shall not be necessary to make it effective.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing
and delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the Corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. Notice to
directors may also be given orally or by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE V
COMMITTEES OF THE BOARD
Section 1. The board of directors may, by resolution or resolutions
passed by a majority of the whole board of directors, designate one or more
directors to constitute an Executive Committee and such other committees as the
board of directors may
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<PAGE> 7
determine, each of which committees to the extent provided in said resolution
or resolutions or in these bylaws, shall have and may exercise all the powers
of the board of directors in the management of the business and affairs of the
Corporation, except in those cases where the authority of the board of
directors is specifically denied to the Executive Committee or such other
committee or committees by law, the certificate of incorporation or these
bylaws, and may authorize the seal of the Corporation to be affixed to all
papers that may require it. The designation of an Executive Committee or other
committee and the delegation thereto of authority shall not operate to relieve
the board of directors, or any member thereof, of any responsibility imposed
upon it or him by law.
Section 2. The board of directors may designate one or more of its
members as alternate members of any committee who may replace any absent or
disqualified member at any meeting of such committee. If no alternate members
have been appointed, the committee member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the board of directors to
act at the meeting in the place of any absent or disqualified member. The
board of directors shall have the power at any time to fill vacancies in, to
change the membership of, and to dissolve, any committee.
Section 3. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
a meeting of any committee designated by the board of directors may be taken
without a meeting if all the members of the committee consent thereto in
writing and the writing or writings are filed with the minutes of the committee
proceedings.
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<PAGE> 8
ARTICLE VI
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the
board of directors and shall be a president, a vice president, a secretary, a
controller and a treasurer. The board of directors may also choose additional
vice presidents, and one or more assistant secretaries and assistant treasurers
or other officers as deemed necessary. Two or more offices may be held by the
same person.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice
presidents, a secretary and a treasurer, none of whom need be a member of the
board.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the Corporation
may be fixed by the board of directors. The board of directors may delegate to
any committee or officer the power to fix from time to time the salary or other
compensation of subordinate officers and agents.
Section 5. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise shall be filled by the
board of directors.
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<PAGE> 9
PRESIDENT
Section 6. The President shall perform such duties as from time to
time shall be assigned to him by the Board of Directors. He shall also be the
chief operating officer of the Corporation and shall generally supervise and
direct the business and affairs of the Corporation. He may execute bonds,
mortgages, and other contracts requiring a seal, under the seal of the
Corporation, and any and all other contracts or obligations of the Corporation.
THE VICE PRESIDENTS
Section 7. The Vice Presidents in the order of their seniority, unless
otherwise determined by the board of directors, shall, in the absence or
disability of the President, perform the duties and exercise the powers of the
President. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe. They may execute
bonds, mortgages, and other contracts requiring a seal, under the seal of the
Corporation, and any and all other contracts or obligations of the Corporation.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 8. The Secretary or other person acting in that capacity shall
attend all meetings of the board of directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the board of directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give,
or cause to be given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall perform
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<PAGE> 10
such other duties as may be prescribed by the board of directors or the
President, under whose supervision he shall be. He shall keep in safe custody
the seal of the Corporation, affix the same to any instrument requiring it and,
when so affixed, such instrument may be attested by his signature or by the
signature of the Treasurer or an Assistant Secretary.
Section 9. The Assistant Secretaries in the order of their seniority,
unless otherwise determined by the board of directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE TREASURER, THE CONTROLLER AND ASSISTANT TREASURERS
Section 10. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the board of
directors.
Section 11. He shall disburse the funds of the Corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the President and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation.
Section 12. If required by the board of directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and
with such surety or
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<PAGE> 11
sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 13. The Controller and the Assistant Treasurers in the order of
their seniority, unless otherwise determined by the board of directors, shall,
in the absence or disability of the Treasurer, perform the duties and exercise
the powers of the Treasurer. They shall perform such other duties and have
such other powers as the board of directors may from time to time prescribe.
ARTICLE VII
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Corporation shall be entitled
to have a certificate, signed by, or in the name of the Corporation, by the
President or the Vice President, the Treasurer, or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation. If the Corporation shall be
authorized to issue more than one class of stock, the designations, preferences
and relative, participating, optional or other special rights of each class and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class of stock.
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<PAGE> 12
LOST CERTIFICATES
Section 2. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the board of directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate
alleged to have been lost or destroyed.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the Corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves
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<PAGE> 13
to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose as the
directors shall think conducive to the interest of the Corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
CHECKS
Section 3. The persons from time to time holding the position of
President, Vice President, Secretary, Treasurer or Controller, of the
Corporation, acting by written instrument signed by any two of them are hereby
authorized: (1) to open or close any bank account of the Corporation,
including Operating Company accounts; (2) to designate the use of any such
account; (3) to grant authority to any person or combination of persons to sign
checks, by manual or facsimile signature, or issue instructions for the
withdrawal of funds from any account maintained by the Corporation; (4) to
revoke the authority of any person or persons to sign checks or to issue
instructions; (5) to establish a maximum amount as to which any person or
combination of persons shall be authorized to sign checks or issue
instructions; and (6) to take all further actions, and to execute and deliver
all such further instruments and documents, in the name and on behalf of the
Corporation, as in their judgment shall be necessary, proper or advisable in
connection with the foregoing.
FISCAL YEAR
Section 4. The fiscal year of the Corporation shall be fixed by
resolution of the board of directors.
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SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the Corporation and the words "Corporate Seal, Delaware." The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
ARTICLE IX
INDEMNIFICATION
Section 1.(a) The Corporation shall indemnify, in the manner and to
the full extent authorized by law (as now in effect or later amended), any
person who was or is a witness in or a party to, or who is threatened to be
made a party to, any action, suit or proceedings, whether criminal, civil,
administrative or investigative, by reason, in whole or in part, of the fact
that he is or was a director or officer of the Corporation or any predecessor
of the Corporation or serves or served in any other corporation or enterprise
as a director, officer, employee or agent at the request of the Corporation or
any predecessor of the Corporation.
(b) Without limitation of subsection (a) above, the Corporation
shall indemnify any person who was or is a witness, a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation or any predecessor of the
Corporation) by reason of the fact that such person is or was, at any time
prior to or during which this Article IX is in effect, a director or officer of
the Corporation or any predecessor of the Corporation, or is or was, at any
time prior to or during which this Article IX is in effect, serving at the
request of the Corporation or any predecessor of the Corporation as a director,
officer,
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employee or agent of another corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan against reasonable expenses
(including attorneys' fees), judgments, fines, penalties, amounts paid in
settlement and other liabilities actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation or any predecessor of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
such person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation or
any predecessor of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(c) Without limitation of subsection (a) above, the Corporation
shall indemnify any person who was or is a witness, a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation or any predecessor of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was, at any
time prior to or during which this Article IX is in effect, a director or
officer of the Corporation or any predecessor of the Corporation, or is or was,
at any time prior to or during which this Article IX is in effect, serving at
the request of the Corporation or any predecessor of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against reasonable expenses
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(including attorneys' fees) and amounts paid in settlement, actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to the amounts paid in settlement, the
settlement is determined to be in the best interests of the Corporation;
provided, that no indemnification shall be made under this subsection (c) in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Delaware Court of Chancery, or other court of appropriate jurisdiction, shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity of such expenses which the Delaware Court of Chancery, or
other court of appropriate jurisdiction, shall deem proper.
(d) Any indemnification under subsections (b) or (c) (unless
ordered by the Delaware Court of Chancery or other court of appropriate
jurisdiction) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of such person is
proper in the circumstances because he has met the applicable standard of
conduct set forth in subsections (b) and (c). Such determination shall be made
(1) by the board of directors by a majority vote of a quorum consisting of
directors not parties to such action, suit or proceeding; or (2) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel, selected by the board of
directors; or (3) by the stockholders. In the event a determination is made
under this subsection
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(d) that the director or officer has met the applicable standard of conduct as
to some matters but not as to others, amounts to be indemnified may be
reasonably prorated.
(e) In addition to and without limitation of subsections (b) or
(c) above, expenses incurred by a person who is or was a director or officer of
the Corporation, in appearing at, participating in or defending any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, shall be paid by the Corporation at reasonable
intervals in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation as authorized by this Article
IX.
(f) If a claim under this Article IX is not paid in full by the
Corporation within ninety days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the
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claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
(g) It is the intention of the Corporation to indemnify the
persons referred to in this Article IX to the fullest extent permitted by law
(as now in effect or later amended) and with respect to any action, suit or
proceeding arising from events which occur at any time prior to or during which
this Article IX is in effect. The indemnification and advancement of expenses
provided by this Article IX shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be or
become entitled under any law, the certificate of incorporation, agreement,
vote of stockholders or disinterested directors or otherwise, or under any
policy or policies of insurance purchased and maintained by the Corporation on
behalf of any such person, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall inure to the
benefit of his or her heirs, legal representatives and assigns. The provisions
of this Article IX are contract rights which (i) are for the benefit of, and
may be enforced by, each director or officer of the Corporation the same as if
set forth in their entirety in a written instrument duly executed and delivered
by the Corporation and each such director or officer and (ii) constitute a
continuing offer to all present and future directors or officers of the
Corporation. The Corporation, by its adoption of these bylaws, (i)
acknowledges and agrees that each present and future director or officer
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of the Corporation has relied upon and will continue to rely upon the
provisions of this Article IX in becoming, and serving as, a director or
officer of the Corporation or, if requested by the Corporation, a director,
officer, employee, agent, trustee or the like of another corporation or other
enterprise, (ii) waives reliance upon, and all notices of acceptance of, such
provisions by such directors or officers and (iii) acknowledges and agrees that
no present or future director or officer of the Corporation shall be prejudiced
in his right to enforce the provisions of this Article IX in accordance with
their terms by any act or failure to act on the part of the Corporation. No
amendment, modification or repeal of this Article IX or any provision hereof
shall in any manner terminate, reduce or impair the right of any past, present
or future director or officer of the Corporation to be indemnified or advanced
expenses by the Corporation, nor the obligation of the Corporation to indemnify
or advance expenses to any such director or officer under and in accordance
with the provisions of this Article IX as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claim may arise or be asserted.
The provisions of this Article IX shall be binding upon the Corporation and its
successors and assigns and shall inure to the benefit of each director or
officer of the Corporation and his or her heirs, legal representatives and
assigns.
(h) The indemnification provided by this Article IX shall be
subject to all valid and applicable laws, and, in the event this Article IX or
any of the provisions hereof or the indemnification contemplated hereby are
found to be inconsistent with or contrary to any such valid laws, the latter
shall be deemed to control and this Article IX shall be regarded as modified so
that this Article and the indemnification
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provided for herein shall be valid and enforceable to the greatest extent
permitted by applicable laws, and, as so modified, this Article shall continue
in full force and effect.
ARTICLE X
AMENDMENTS
Section 1. Except as otherwise expressly provided in the certificate
of incorporation, the directors, by the affirmative vote of a majority of the
entire board of directors and without the assent or vote of the stockholders,
may at any meeting, provided the substance of the proposed amendment shall have
been stated in the notice of the meeting, make, repeal, alter, amend or rescind
any of these bylaws. The stockholders shall not make, repeal, alter, amend or
rescind any of the provisions of these bylaws except by the holders of not less
than a majority of the total voting power of all shares of stock of the
Corporation entitled to vote in the election of directors, considered for
purposes of this Article X as one class.
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UNION TEXAS INTERNATIONAL CORPORATION
BYLAWS
(ADOPTED MAY 18, 1993)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of
directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of HOUSTON, State of TEXAS, at such place
as may be fixed from time to time by the board of directors or at such other
place either within or without the State of Texas as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
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Section 2. Annual meetings of stockholders shall be held on the third
Tuesday of May if not a legal holiday, and if a legal holiday, then on the next
secular day following, at 3:15 p.m., at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Subject to the provisions of Article IV, written notice of
the annual meeting stating the place, date and hour of the meeting shall be
given to each stockholder entitled to vote thereat at least ten days before the
date of the meeting.
Section 4. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the President and shall be called by the
President or Secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the Corporation issued and outstanding
and entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 5. Written notice of a special meeting of stockholders
stating the time, place and object thereof shall be given to each stockholder
entitled to vote thereat at least ten days before the date fixed for the
meeting.
Section 6. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice and whatever business the
stockholders mutually agree to consider.
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Section 7. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 8. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or
of the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 9. Each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
the capital stock having voting power held by such stockholder, but no proxy
shall be voted on after three years from its date, unless the proxy provides
for a longer period.
Section 10. Whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection with any
corporate action by any provisions of the statutes or of the certificate of
incorporation, the meeting and vote of stockholders may be
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dispensed with if all the stockholders who would have been entitled to vote
upon the action if such meeting were held shall consent in writing to such
corporate action being taken.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than three nor more than ten. Within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualifies. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, and the directors
so chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced.
Section 3. The business of the Corporation shall be managed under the
direction of its board of directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these bylaws directed or required to be
exercised or done by the stockholders.
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MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting to the newly
elected directors shall be necessary in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the
time and place so fixed by stockholders, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
such special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board or stockholders.
Section 7. Special meetings of the board may be held at any time upon
the call of the President, any Vice President, or the Secretary by oral,
telegraphic or written notice, duly served on or sent or mailed to each
director not less than two days before such meeting.
Section 8. At all meetings of the board two directors shall
constitute a quorum for the transaction of business and the act of majority of
the directors present at any meeting at which
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there is a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the board of
directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors may be taken without a meeting if all
members of the board consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the board.
RESIGNATIONS
Section 10. Any director or officer of the Corporation may resign at
any time by giving written notice to the President or to the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein;
and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing
and delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books
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of the Corporation. Notice by mail shall be deemed to be given at the time
when the same shall be mailed. Notice to directors may also be given orally or
by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the
board of directors and shall be a president, a vice president, a secretary, a
controller and a treasurer. The board of directors may also choose additional
vice presidents, and one or more assistant secretaries and assistant treasurers
or other officers as deemed necessary. Two or more offices may be held by the
same person.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice
presidents, a secretary and a treasurer, none of whom need to be a member of
the board.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
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Section 4. The salaries of all officers and agents of the Corporation
may be fixed by the board of directors.
Section 5. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise shall be filled by the
action of the board of directors.
PRESIDENT
Section 6. The President shall perform such duties as from time to
time shall be assigned to him by the board of directors. He shall also be the
chief operating officer of the Corporation and shall generally supervise and
direct the business and affairs of the Corporation. He may execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
Corporation, and any and all other contracts or obligations of the Corporation.
THE VICE PRESIDENTS
Section 7. The vice presidents in the order of their seniority,
unless otherwise determined by the board of directors, shall, in the absence or
disability of the President, perform the duties and exercise the powers of the
President. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe. They may
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execute bonds, mortgages and other contracts requiring a seal, under the seal
of the Corporation, and any and all other contracts or obligations of the
Corporation.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 8. The Secretary or other person acting in that capacity
shall attend all meetings of the board of directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the board of directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give,
or cause to be given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, or the President, under whose
supervision he shall be. He shall keep in safe custody the seal of the
Corporation, affix the same to any instrument requiring it and, when so
affixed, such instrument may be attested by his signature or by the signature
of the Treasurer or an assistant secretary.
Section 9. The Assistant Secretaries in the order of their seniority,
unless otherwise determined by the board of directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
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THE TREASURER, THE CONTROLLER AND ASSISTANT TREASURERS
Section 10. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the board of
directors.
Section 11. He shall disburse the funds of the Corporation to be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the President and the board of directors,
at its regular meetings, or when the board of directors so requires, an account
of all his transactions as Treasurer and of the financial condition of the
Corporation.
Section 12. If required by the board of directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the board of directors
for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to
the Corporation.
Section 13. The Controller and the Assistant Treasurers in the order
of their seniority, unless otherwise determined by the board of directors,
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer. They shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
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ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Corporation shall be entitled
to have a certificate, signed by or in the name of the Corporation, by the
President or the Vice President, the Treasurer, or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation. If the Corporation shall be
authorized to issue more than one class of stock, the designations, preferences
and relative, participating, optional or other special rights of each class and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class of stock.
LOST CERTIFICATES
Section 2. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the board of directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claims
that may be
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made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the Corporation
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. The persons from time to time holding the position of
President, Vice President, Secretary, Treasurer or Controller, of the
Corporation, acting by written instrument signed by any two of them are hereby
authorized: (1) to open or close any bank account of the
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Corporation including Operating Company accounts; (2) to designate the use of
any such account; (3) to grant authority to any person or combination of
persons to sign checks, by manual or facsimile signature, or issue instructions
for withdrawal of funds from any account maintained by the Corporation; (4) to
revoke the authority of any person or persons to sign checks or to issue
instructions; (5) to establish a maximum amount as to which any person or
combination of persons shall be authorized to sign checks or issue
instructions; and (6) to take all such further actions, and to execute and
deliver all such further instruments and documents, in the name and on behalf
of the Corporation, as in their judgment shall be necessary, proper or
advisable.
FISCAL YEAR
Section 4. The fiscal year of the Corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name
of the Corporation and words "Corporate Seal, Delaware." The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
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ARTICLE VIII
INDEMNIFICATION
Section 1.(a) The Corporation shall indemnify, in the manner and to
the full extent authorized by law (as now in effect or later amended), any
person who was or is a witness in or a party to, or who is threatened to be
made a party to, any action, suit or proceedings, whether criminal, civil,
administrative or investigative, by reason, in whole or in part, of the fact
that he is or was a director or officer of the Corporation or any predecessor
of the Corporation or serves or served in any other corporation or enterprise
as director, officer, employee or agent at the request of the Corporation or
any predecessor of the Corporation.
(b) Without limitation of subsection (a) above, the Corporation
shall indemnify any person who was or is a witness, a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation or any predecessor of the
Corporation) by reason of the fact that such person is or was, at any time
prior to or during which this Article VIII is in effect, a director or officer
of the Corporation or any predecessor of the Corporation, or is or was, at any
time prior to or during which this Article VIII is in effect, serving at the
request of the Corporation or any predecessor of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, other enterprise or employee benefit plan against reasonable expenses
(including attorneys' fees), judgments, fines, penalties, amounts paid in
settlement and other liabilities actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation or any predecessor of the Corporation,
and, with respect to any
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criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that such person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation or any predecessor of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(c) Without limitation of subsection (a) above, the Corporation
shall indemnify any person who was or is a witness, a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation or any predecessor of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was, at any
time prior to or during which this Article VIII is in effect, a director or
officer of the Corporation or any predecessor of the Corporation, or is or was,
at any time prior to or during which this Article VIII is in effect, serving at
the request of the Corporation or any predecessor of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against reasonable expenses (including
attorneys' fees) and amounts paid in settlement, actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to the amounts paid in settlement, the settlement is determined to
be in the best interests of the Corporation; provided that no indemnification
shall be made under this subsection (c) in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Delaware Court of Chancery,
or other court of appropriate jurisdiction, shall determine upon
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application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity of such expenses which the Delaware Court of Chancery, or other court
of appropriate jurisdiction, shall deem proper.
(d) Any indemnification under subsections (b) or (c) (unless
ordered by the Delaware Court of Chancery or other court of appropriate
jurisdiction) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of such person is
proper in the circumstances because he has met the applicable standard of
conduct set forth in subsections (b) and (c). Such determination shall be made
(1) by the board of directors by a majority vote of a quorum consisting of
directors not parties to such action, suit or proceeding; or (2) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel, selected by the board of
directors; or (3) by the stockholders. In the event a determination is made
under this subsection (d) that the director or officer has met the applicable
standard of conduct as to some matters but not as to others, amounts to be
indemnified may be reasonably prorated.
(e) In addition to and without limitation of subsections (b) or
(c) above, expenses incurred by a person who is or was a director or officer of
the Corporation, in appearing at, participating in or defending any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, shall be paid by the Corporation at reasonable
intervals in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation as authorized by this Article
VII.
(f) If a claim under this Article VIII is not paid in full by the
Corporation within ninety days after a written claim has been received by the
Corporation, the claimant may at any
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time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its board of directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual determination by
the Corporation (including its board of directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(g) It is the intention of the Corporation to indemnify the
persons referred to in this Article VIII to the fullest extent permitted by law
(as now in effect or later amended) and with respect to any action, suit or
proceeding arising from events which occur at any time prior to or during which
this Article VIII is in effect. The indemnification and advancement of
expenses provided by this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be or become entitled under any law, the certificate of incorporation,
agreement, vote of stockholders or disinterested directors or otherwise, or
under any policy or policies of insurance purchased and maintained by the
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Corporation on behalf of any such person, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall inure to the benefit of his or her heirs, legal representatives and
assigns. The provisions of this Article VIII are contract rights which (i) are
for the benefit of, and may be enforced by, each director or officer of the
Corporation the same as if set forth in their entirety in a written instrument
duly executed and delivered by the Corporation and each such director or
officer and (ii) constitute a continuing offer to all present and future
directors or officers of the Corporation. The Corporation, by its adoption of
these bylaws, (i) acknowledges and agrees that each present and future director
or officer of the Corporation has relied upon and will continue to rely upon
the provisions of this Article VIII in becoming, and serving as, a director or
officer of the Corporation or, if requested by the Corporation, a director,
officer, employee, agent, trustee or the like of another corporation or other
enterprise, (ii) waives reliance upon, and all notices of acceptance of, such
provisions by such directors or officers and (iii) acknowledges and agrees that
no present or future director or officer of the Corporation shall be prejudiced
in his right to enforce the provisions of this Article VIII in accordance with
their terms by any act or failure to act on the part of the Corporation. No
amendment, modification or repeal of this Article VIII or any provisions hereof
shall in any manner terminate, reduce or impair the right of any past, present
or future director or officer of the Corporation to be indemnified or advanced
expenses by the Corporation, nor the obligation of the Corporation to indemnify
or advance expenses to any such director or officer under and in accordance
with the provisions of this Article VIII as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claim may arise or be asserted.
The provisions of this Article VIII shall be binding upon the Corporation and
its successors and assigns and shall inure to the
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benefit of each director or officer of the Corporation and his or her heirs,
legal representatives and assigns.
(h) The indemnification provided by this Article VIII shall be
subject to all valid and applicable laws, and, in the event this Article VIII
or any of the provisions hereof or the indemnification contemplated hereby are
found to be inconsistent with or contrary to any such valid laws, the latter
shall be deemed to control, and this Article VIII shall be regarded as modified
so that this Article and the indemnification provided for herein shall be valid
and enforceable to the greatest extent permitted by applicable laws, and, as so
modified, this Article shall continue in full force and effect.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors.
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UNION TEXAS PRODUCTS CORPORATION
BYLAWS
(ADOPTED MAY 18, 1993)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of
directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of HOUSTON, State of TEXAS, at such place
as may be fixed from time to time by the board of directors or at such other
place either within or without the State of Texas as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
Meetings of the stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
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Section 2. Annual meetings of stockholders shall be held on the third
Tuesday of May if not a legal holiday, and if a legal holiday, then on the next
secular day following, at 3:30 p.m., at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Subject to the provisions of Article IV, written notice of
the annual meeting stating the place, date and hour of the meeting shall be
given to each stockholder entitled to vote thereat at least ten days before the
date of the meeting.
Section 4. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the President and shall be called by the
President or Secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the Corporation issued and outstanding
and entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 5. Written notice of a special meeting of stockholders
stating the time, place and object thereof shall be given to each stockholder
entitled to vote thereat at least ten days before the date fixed for the
meeting.
Section 6. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice and whatever business the
stockholders mutually agree to consider.
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Section 7. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 8. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or
of the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 9. Each stockholder shall at every meeting of the
stockholders be entitled to one vote in person on or by proxy for each share of
the capital stock having voting power held by such stockholder, but no proxy
shall be voted on after three years from its date, unless the proxy provides
for a longer period.
Section 10. Whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection with any
corporate action by any provisions of the statutes or of the certificate of
incorporation, the meeting and vote of stockholders may be
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dispensed with if all the stockholders who would have been entitled to vote
upon the action if such meeting were held shall consent in writing to such
corporate action being taken.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than three nor more than ten. Within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualifies. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, and the directors
so chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced.
Section 3. The business of the Corporation shall be managed under the
direction of its board of directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these bylaws directed or required to be
exercised or done by the stockholders.
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MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting to the newly
elected directors shall be necessary in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the
time and place so fixed by stockholders, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board or stockholders.
Section 7. Special meetings of the board may be held at any time upon
the call of the President, any Vice President, or the Secretary by oral,
telegraphic or written notice, duly served on or sent or mailed to each
director not less than two days before such meeting.
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Section 8. At all meetings of the board two directors shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the board of directors, except as may be otherwise specifically provided
by statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors may be taken without a meeting if all
members of the board consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the board.
RESIGNATIONS
Section 10. Any director or officer of the Corporation may resign at
any time by giving written notice to the President or to the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein;
and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
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ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing
and delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the Corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. Notice to
directors may also be given orally or by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the
board of directors and shall be a president, a vice president, a secretary, a
controller and a treasurer. The board of directors may also choose additional
vice presidents, and one or more assistant secretaries and assistant treasurers
or other officers as deemed necessary. Two or more offices may be held by the
same person.
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Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice
presidents, a secretary and a treasurer, none of whom need to be a member of
the board.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the Corporation
may be fixed by the board of directors.
Section 5. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise shall be filled by the
board of directors.
PRESIDENT
Section 6. The President shall perform such duties as from time to
time shall be assigned to him by the board of directors. He shall also be the
chief operating officer of the Corporation and shall generally supervise and
direct the business and affairs of the Corporation. He may execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
Corporation, and any and all other contracts or obligations of the Corporation.
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THE VICE PRESIDENTS
Section 7. The vice presidents in the order of their seniority,
unless otherwise determined by the board of directors, shall, in the absence or
disability of the President, perform the duties and exercise the powers of the
President. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe. They may execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
Corporation, and any and all other contracts or obligations of the Corporation.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 8. The Secretary or other person acting in that capacity
shall attend all meetings of the board of directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the board of directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give,
or cause to be given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, or the President, under whose
supervision he shall be. He shall keep in safe custody the seal of the
Corporation, affix the same to any instrument requiring it and, when so
affixed, such instrument may be attested by his signature or by the signature
of the Treasurer or an assistant secretary.
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Section 9. The Assistant Secretaries in the order of their seniority,
unless otherwise determined by the board of directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE TREASURER, THE CONTROLLER AND ASSISTANT TREASURERS
Section 10. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the board of
directors.
Section 11. He shall disburse the funds of the Corporation to be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the President and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation.
Section 12. If required by the board of directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the board of directors
for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to
the Corporation.
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Section 13. The Controller and the Assistant Treasurers in the order
of their seniority, unless otherwise determined by the board of directors,
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer. They shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Corporation shall be entitled
to have a certificate, signed by, or in the name of the Corporation, by the
President or the Vice President, the Treasurer, or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation. If the Corporation shall be
authorized to issue more than one class of stock, the designations, preferences
and relative, participating, optional or other special rights of each class and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class of stock.
LOST CERTIFICATES
Section 2. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
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certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the board of directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claims
that may be made against the Corporation with respect to the certificate
alleged to have been lost or destroyed.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the Corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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CHECKS
Section 3. The persons from time to time holding the position of
President, Vice President, Secretary, Treasurer or Controller, of the
Corporation, acting by written instrument signed by any two of them are hereby
authorized: (1) to open or close any bank account of the Corporation including
Operating Company accounts; (2) to designate the use of any such account; (3)
to grant authority to any person or combination of persons to sign checks, by
manual or facsimile signature, or issue instructions for the withdrawal of
funds from any account maintained by the Corporation; (4) to revoke the
authority of any person or persons to sign checks or to issue instructions; (5)
to establish a maximum amount as to which any person or combination of persons
shall be authorized to sign checks or issue instructions; and (6) to take all
such further actions, and to execute and deliver all such further instruments
and documents, in the name and on behalf of the Corporation, as in their
judgment shall be necessary, proper or advisable.
FISCAL YEAR
Section 4. The fiscal year of the Corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name
of the Corporation and words "Corporate Seal, Delaware." The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
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ARTICLE VIII
INDEMNIFICATION
Section 1.(a) The Corporation shall indemnify, in the manner and to
the full extent authorized by law (as now in effect or later amended), any
person who was or is a witness in or a party to, or who is threatened to be
made a party to, any action, suit or proceedings, whether criminal, civil,
administrative or investigative, by reason, in whole or in part, of the fact
that he is or was a director or officer of the Corporation or any predecessor
of the Corporation or serves or served in any other corporation or enterprise
as director, officer, employee or agent at the request of the Corporation or
any predecessor of the Corporation.
(b) Without limitation of subsection (a) above, the Corporation
shall indemnify any person who was or is a witness, a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation or any predecessor of the
Corporation) by reason of the fact that such person is or was, at any time
prior to or during which this Article VIII is in effect, a director or officer
of the Corporation or any predecessor of the Corporation, or is or was, at any
time prior to or during which this Article VIII is in effect, serving at the
request of the Corporation or any predecessor of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, other enterprise or employee benefit plan against reasonable expenses
(including attorneys' fees), judgments, fines, penalties, amounts paid in
settlement and other liabilities actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation or any predecessor of the Corporation,
and, with respect to any
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criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that such person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation or any predecessor of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(c) Without limitation of subsection (a) above, the Corporation
shall indemnify any person who was or is a witness, a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation or any predecessor of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was, at any
time prior to or during which this Article VIII is in effect, a director or
officer of the Corporation or any predecessor of the Corporation, or is or was,
at any time prior to or during which this Article VIII is in effect, serving at
the request of the Corporation or any predecessor of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against reasonable expenses (including
attorneys' fees) and amounts paid in settlement, actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to the amounts paid in settlement, the settlement is determined to
be in the best interests of the Corporation; provided, that no indemnification
shall be made under this subsection (c) in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Delaware Court of Chancery,
or other court of appropriate jurisdiction, shall determine upon
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application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity of such expenses which the Delaware Court of Chancery, or other court
of appropriate jurisdiction, shall deem proper.
(d) Any indemnification under subsections (b) or (c) (unless
ordered by the Delaware Court of Chancery or other court of appropriate
jurisdiction) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of such person is
proper in the circumstances because he has met the applicable standard of
conduct set forth in subsections (b) and (c). Such determination shall be made
(1) by the board of directors by a majority vote of a quorum consisting of
directors not parties to such action, suit or proceeding; or (2) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel, selected by the board of
directors; or (3) by the stockholders. In the event a determination is made
under this subsection (d) that the director or officer has met the applicable
standard of conduct as to some matters but not as to others, amounts to be
indemnified may be reasonably prorated.
(e) In addition to and without limitation of subsections (b) or
(c) above, expenses incurred by a person who is or was a director or officer of
the Corporation, in appearing at, participating in or defending any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, shall be paid by the Corporation at reasonable
intervals in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation as authorized by this Article
VII.
(f) If a claim under this Article VIII is not paid in full by the
Corporation within ninety days after a written claim has been received by the
Corporation, the claimant may at any
-16-
<PAGE> 17
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its board of directors, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its board of directors, independent legal counsel
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(g) It is the intention of the Corporation to indemnify the
persons referred to in this Article VIII to the fullest extent permitted by law
(as now in effect or later amended) and with respect to any action, suit or
proceeding arising from events which occur at any time prior to or during which
this Article VIII is in effect. The indemnification and advancement of
expenses provided by this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be or become entitled under any law, the certificate of incorporation,
agreement, vote of stockholders or disinterested directors or otherwise, or
under any policy or policies of insurance purchased and maintained by the
-17-
<PAGE> 18
Corporation on behalf of any such person, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall inure to the benefit of his or her heirs, legal representatives and
assigns. The provisions of this Article VIII are contract rights which (i) are
for the benefit of, and may be enforced by, each director or officer of the
Corporation the same as if set forth in their entirety in a written instrument
duly executed and delivered by the Corporation and each such director or
officer and (ii) constitute a continuing offer to all present and future
directors or officers of the Corporation. The Corporation, by its adoption of
these bylaws, (i) acknowledges and agrees that each present and future director
or officer of the Corporation has relied upon and will continue to rely upon
the provisions of this Article VIII in becoming, and serving as, a director or
officer of the Corporation or, if requested by the Corporation, a director,
officer, employee, agent, trustee or the like of another corporation or other
enterprise, (ii) waives reliance upon, and all notices of acceptance of, such
provisions by such directors or officers and (iii) acknowledges and agrees that
no present or future director or officer of the Corporation shall be prejudiced
in his right to enforce the provisions of this Article VIII in accordance with
their terms by any act or failure to act on the part of the Corporation. No
amendment, modification or repeal of this Article VIII or any provisions hereof
shall in any manner terminate, reduce or impair the right of any past, present
or future director or officer of the Corporation to be indemnified or advanced
expenses by the Corporation, nor the obligation of the Corporation to indemnify
or advance expenses to any such director or officer under and in accordance
with the provisions of this Article VIII as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claim may arise or be asserted.
The provisions of this Article VIII shall be binding upon the Corporation and
its successors and assigns and shall inure to the
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<PAGE> 19
benefit of each director or officer of the Corporation and his or her heirs,
legal representatives and assigns.
(h) The indemnification provided by this Article VIII shall be
subject to all valid and applicable laws, and, in the event this Article VIII
or any of the provisions hereof or the indemnification contemplated hereby are
found to be inconsistent with or contrary to any such valid laws, the latter
shall be deemed to control, and this Article VIII shall be regarded as modified
so that this Article and the indemnification provided for herein shall be valid
and enforceable to the greatest extent permitted by applicable laws, and, as so
modified, this Article VIII shall continue in full force and effect.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors.
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<PAGE> 1
[CONFORMED COPY]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNION TEXAS PETROLEUM HOLDINGS, INC.,
AS ISSUER,
THE GUARANTORS NAMED HEREIN,
AS GUARANTORS,
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
------------------------
INDENTURE
DATED AS OF , 1994
------------------------
$200,000,000
% SENIOR NOTES DUE 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- -------------- -----------------
<S> <C>
310 (a) (1)................................................................. 7.10
(a) (2)................................................................. 7.10
(a) (3)................................................................. N.A.
(a) (4)................................................................. N.A.
(b) .................................................................... 7.08; 7.10
(c) .................................................................... N.A.
311 (a) .................................................................... 7.11
(b) .................................................................... 7.11
(c) .................................................................... N.A.
312 (a) .................................................................... 2.05
(b) .................................................................... 11.03
(c) .................................................................... 11.03
313 (a) .................................................................... 7.06
(b) .................................................................... 7.06
(c) .................................................................... 7.06
(d) .................................................................... 7.06
314 (a) .................................................................... 4.03
(b) .................................................................... N.A.
(c) (1)................................................................. 11.04
(c) (2)................................................................. 11.04
(c) (3)................................................................. N.A.
(d) .................................................................... N.A.
(e) .................................................................... 11.05
(f) .................................................................... N.A.
315 (a) .................................................................... 7.01(2)
(b) .................................................................... 7.05
(c) .................................................................... 7.01(1)
(d) .................................................................... 7.01(3)
(e) .................................................................... 6.11
316 (a) (last sentence)..................................................... 2.09
(a) (1)(A).............................................................. 6.05
(a) (1)(B).............................................................. 6.04
(a) (2)................................................................. N.A.
(b) .................................................................... 6.07
(c) .................................................................... 9.04
317 (a) (1)................................................................. 6.08
(a) (2)................................................................. 6.09
(b) .................................................................... 2.04
318 (a) .................................................................... 11.01
</TABLE>
- ------------
N.A. means not applicable
*This Cross-Reference Table is not part of the Indenture
<PAGE> 3
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 1.01 Definitions........................................................... 1
SECTION 1.02 Other Definitions..................................................... 6
SECTION 1.03 Incorporation by Reference of Trust Indenture Act..................... 6
SECTION 1.04 Rules of Construction................................................. 6
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating....................................................... 6
SECTION 2.02 Execution and Authentication.......................................... 7
SECTION 2.03 Registrar and Paying Agent............................................ 7
SECTION 2.04 Paying Agent to Hold Money in Trust................................... 7
SECTION 2.05 Holder Lists.......................................................... 7
SECTION 2.06 Transfer and Exchange................................................. 8
SECTION 2.07 Replacement Securities................................................ 8
SECTION 2.08 Outstanding Securities................................................ 8
SECTION 2.09 Treasury Securities................................................... 9
SECTION 2.10 Temporary Securities.................................................. 9
SECTION 2.11 Cancellation.......................................................... 9
SECTION 2.12 Defaulted Interest.................................................... 9
SECTION 2.13 Persons Deemed Owners................................................. 9
ARTICLE 3
REDEMPTION
SECTION 3.01 Notices to Trustee.................................................... 9
SECTION 3.02 Selection of Securities to be Redeemed................................ 10
SECTION 3.03 Notices to Holders.................................................... 10
SECTION 3.04 Effect of Notice of Redemption........................................ 10
SECTION 3.05 Deposit of Redemption Price........................................... 11
SECTION 3.06 Securities Redeemed in Part........................................... 11
SECTION 3.07 Optional Redemption................................................... 11
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities................................................. 11
SECTION 4.02 Maintenance of Office or Agency....................................... 11
SECTION 4.03 SEC Reports; Financial Statements..................................... 12
SECTION 4.04 Compliance Certificate................................................ 12
SECTION 4.05 Corporate Existence................................................... 13
SECTION 4.06 Maintenance of Properties............................................. 13
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 4.07 Payment of Taxes and Other Claims..................................... 13
SECTION 4.08 Limitation on Sale/Leaseback Transactions............................. 14
SECTION 4.09 Limitation on Liens................................................... 14
ARTICLE 5
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations............................. 15
SECTION 5.02 Successor Corporation Substituted..................................... 16
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default..................................................... 16
SECTION 6.02 Acceleration.......................................................... 17
SECTION 6.03 Other Remedies........................................................ 18
SECTION 6.04 Waiver of Existing Defaults........................................... 18
SECTION 6.05 Control by Majority................................................... 18
SECTION 6.06 Limitations on Suits.................................................. 18
SECTION 6.07 Rights of Holders to Receive Payment.................................. 18
SECTION 6.08 Collection Suit by Trustee............................................ 19
SECTION 6.09 Trustee May File Proofs of Claim...................................... 19
SECTION 6.10 Priorities............................................................ 19
SECTION 6.11 Undertaking for Costs................................................. 19
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee..................................................... 20
SECTION 7.02 Rights of Trustee..................................................... 20
SECTION 7.03 Individual Rights of Trustee.......................................... 21
SECTION 7.04 Trustee's Disclaimer.................................................. 21
SECTION 7.05 Notice of Defaults.................................................... 21
SECTION 7.06 Reports by Trustee to Holders......................................... 21
SECTION 7.07 Compensation and Indemnity............................................ 21
SECTION 7.08 Replacement of Trustee................................................ 22
SECTION 7.09 Successor Trustee by Merger, etc...................................... 22
SECTION 7.10 Eligibility; Disqualification......................................... 23
SECTION 7.11 Preferential Collection of Claims Against Company..................... 23
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of Company's Obligations.................................. 23
SECTION 8.02 Application of Trust Money............................................ 24
SECTION 8.03 Repayment to Company.................................................. 25
SECTION 8.04 Reinstatement......................................................... 25
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders............................................ 25
SECTION 9.02 With Consent of Holders............................................... 26
SECTION 9.03 Compliance with Trust Indenture Act................................... 27
SECTION 9.04 Revocation and Effect of Consents..................................... 27
SECTION 9.05 Notation on or Exchange of Securities................................. 27
SECTION 9.06 Trustee to Sign Amendments, etc. ..................................... 27
ARTICLE 10
GUARANTEES OF SECURITIES
SECTION 10.01 Unconditional Guarantees.............................................. 28
SECTION 10.02 Limitation of Guarantor's Liability................................... 29
SECTION 10.03 Contribution.......................................................... 29
SECTION 10.04 Execution and Delivery of Guarantees.................................. 30
SECTION 10.05 Addition of Guarantors................................................ 30
SECTION 10.06 Release of Guarantee.................................................. 30
SECTION 10.07 Consent to Jurisdiction and Service of Process........................ 30
SECTION 10.08 Waiver of Immunity.................................................... 31
SECTION 10.09 Judgment Currency..................................................... 31
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.......................................... 32
SECTION 11.02 Notices............................................................... 32
SECTION 11.03 Communication by Holders with Other Holders........................... 32
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.................... 32
SECTION 11.05 Statements Required in Certificate or Opinion......................... 33
SECTION 11.06 Rules by Trustee and Agents........................................... 33
SECTION 11.07 Legal Holidays........................................................ 33
SECTION 11.08 No Recourse Against Others............................................ 33
SECTION 11.09 Governing Law......................................................... 33
SECTION 11.10 No Adverse Interpretation of Other Agreements......................... 33
SECTION 11.11 Successors............................................................ 33
SECTION 11.12 Severability.......................................................... 34
SECTION 11.13 Counterpart Originals................................................. 34
SECTION 11.14 Trustee as Paying Agent and Registrar................................. 34
SECTION 11.15 Table of Contents, Headings, etc. .................................... 34
</TABLE>
iii
<PAGE> 6
INDENTURE dated as of , 1994 among Union Texas Petroleum
Holdings, Inc., a Delaware corporation (the "Company"), the Guarantors named
herein and The First National Bank of Chicago, a national banking association,
as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of the Company's % Senior
Notes due (the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions
"Adjusted Net Assets" of a Guarantor at any date means the lesser of (x)
the amount by which the fair value of the property of such Guarantor at such
date exceeds the total amount of liabilities, including, without limitation, the
probable amount of contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date) of such
Guarantor at such date, but excluding liabilities under the Guarantee of such
Guarantor, and (y) the amount by which the present fair saleable value of the
assets of such Guarantor at such date exceeds the amount that will be required
to pay the probable liability of such Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date and after giving effect to any collection from any Subsidiary of such
Guarantor in respect of any obligations of such Subsidiary under the Guarantee
of such Guarantor), excluding debt in respect of the Guarantee of such
Guarantor, as they become absolute and matured.
"Affiliate" of any specified Person means any Person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
such specified Person. For purposes of this definition, control of a Person
shall mean the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise. The Trustee may request and may conclusively rely upon an
Officers' Certificate to determine whether any Person is an Affiliate of any
specified Person.
"Agent" means any Registrar or Paying Agent.
"Attributable Indebtedness", when used with respect to any Sale/Leaseback
Transaction, means, as at the time of determination, the present value
(discounted at a rate equivalent to the Company's then current weighted average
cost of funds for borrowed money as at the time of determination, compounded on
a semi-annual basis) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal, state or
foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors of the Company.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means and includes any and all shares, rights
to purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interests in (however designated) the
equity (which includes, but is not limited to, common stock, preferred stock and
partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"Capitalized Lease Obligation" of any Person means any obligation of such
Person to pay rent or other amounts under a lease of property, real or personal,
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.
<PAGE> 7
"Common Equity" of any Person means and includes all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person, or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Consolidated Net Worth" of the Company means the consolidated
stockholders' equity of the Company and its Subsidiaries, as determined in
accordance with GAAP.
"Corporate Trust Office of the Trustee" means the address of the Trustee
specified in Section 11.02 or such other address as the Trustee may give notice
to the Company.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor statute.
"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that matures by its terms, or that is renewable at the option of any
obligor thereon to a date, more than one year after the date on which such
Indebtedness is originally incurred.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as in effect on the Issue Date.
"Guarantor" means (i) each Subsidiary of the Company executing this
Indenture, (ii) each Subsidiary of the Company that becomes a guarantor of the
Securities pursuant to Section 10.05, (iii) each Subsidiary of the Company that
executes a supplemental indenture in which such Subsidiary agrees to be bound by
Article 10 and (iv) any Subsidiary of the Company that is a successor
corporation of any Subsidiary of the Company referred to in clauses (i) through
(iii). The term "Guarantor" shall not include any Subsidiary of the Company
referred to in clauses (i) through (iv) that shall have been released from its
obligations under Article 10 pursuant to Section 10.06.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any interest rate swap agreement, foreign currency exchange
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement relating to interest rates or foreign exchange
rates.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" of any Person at any date means, without duplication, (i)
all indebtedness of such Person for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof), (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in
respect of letters of credit or other similar instruments (or reimbursement
obligations with respect thereto), other than standby letters of credit incurred
by such Person in the ordinary course of business, (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
except trade payables and accrued expenses incurred in the ordinary course of
business, (v) all Capitalized Lease Obligations of such Person, (vi) all
Indebtedness (other than Joint Venture Indebtedness) of others secured by a Lien
on any asset of such Person, whether or not such Indebtedness is assumed by such
Person, (vii) all Indebtedness of others guaranteed by such Person to the extent
of such guarantee and (viii) all Hedging Obligations of such Person.
"Indenture" means this Indenture as amended from time to time.
2
<PAGE> 8
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by the Company for purposes of
calculating any Make-Whole Premium, provided, that if the Company fails to make
such appointment at least 10 Business Days prior to the Redemption Date for any
Security to be redeemed, or if the institution so appointed is unwilling or
unable to make such calculation, such calculation will be made by Goldman, Sachs
& Co. or, if such firm is unwilling or unable to make such calculation, by an
independent investment banking institution of national standing appointed by the
Trustee.
"Interest Payment Date" shall have the meaning assigned to such term in the
Securities.
"Issue Date" means the date on which the Securities are originally issued
under this Indenture.
"Joint Venture Indebtedness" means obligations secured by a Lien on the
interests of the Company or a Restricted Subsidiary, as the case may be, arising
under production sharing contracts or related supply contracts, if such Lien
covers ratably the interests of Pertamina, the Indonesian national oil company,
and all production sharing contractors thereunder.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(including, without limitation, any production payment, advance payment or
similar arrangement with respect to minerals in place), whether or not filed,
recorded or otherwise perfected under applicable law. For the purposes of this
Indenture, the Company or any Restricted Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capitalized
Lease Obligation (other than any Capitalized Lease Obligation relating to any
building, structure, equipment or other property used or to be used in the
ordinary course of business of the Company and the Restricted Subsidiaries) or
other title retention agreement relating to such asset.
"Make-Whole Premium" means, with respect to any Security (or portion
thereof) to be redeemed, an amount equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption
Date, of:
(A) each interest payment that, but for such redemption, would have
been payable on the Security (or portion thereof) being redeemed on each
Interest Payment Date occurring after the Redemption Date (excluding any
accrued interest for the period prior to the Redemption Date); and
(B) the principal amount that, but for such redemption, would have
been payable at the final maturity of the Security (or portion thereof)
being redeemed;
over
(ii) the principal amount of the Security (or portion thereof) being
redeemed.
The present values of interest and principal payments referred to in clause (i)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield. The Make-Whole Premium shall be
calculated by an Independent Investment Banker.
For purposes of determining the Make-Whole Premium, "Treasury Yield" means
a rate of interest per annum equal to the weekly average yield to maturity of
United States Treasury Notes that have a constant maturity that corresponds to
the remaining term to maturity of the Securities, calculated to the nearest
1/12 of a year (the "Remaining Term"). The Treasury Yield will be determined as
of the third Business Day immediately preceding the applicable Redemption Date.
The weekly average yields of United States Treasury Notes will be determined by
reference to the most recent statistical release published by the Federal
Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or
any successor release (the "H.15 Statistical Release"). If the H.15 Statistical
Release sets forth a weekly average yield for United States Treasury Notes
having a constant maturity that is the same as the Remaining Term, then the
Treasury Yield will be equal to such weekly average yield. In all other cases,
the Treasury Yield will be calculated by interpolation, on a straight-line
basis, between the weekly average yields on the United States Treasury Notes
3
<PAGE> 9
that have a constant maturity closest to and greater than the Remaining Term and
the United States Treasury Notes that have a constant maturity closest to and
less than the Remaining Term (in each case as set forth in the H.15 Statistical
Release). Any weekly average yields so calculated by interpolation will be
rounded to the nearest 1/100 of 1%, with any figure of 1/200% or above being
rounded upward. If weekly average yields for United States Treasury Notes are
not available in the H.15 Statistical Release or otherwise, then the Treasury
Yield will be calculated by interpolation of comparable rates selected by the
Independent Investment Banker.
"Net Proceeds" means, with respect to any Sale/Leaseback Transaction
entered into by the Company or any Restricted Subsidiary, the aggregate net
proceeds received by the Company or such Restricted Subsidiary from such
Sale/Leaseback Transaction after payment of expenses, taxes, commissions and
similar amounts incurred in connection therewith, whether such proceeds are in
cash or in property (valued at the fair market value thereof at the time of
receipt, as determined by the Board of Directors).
"Non-Recourse Indebtedness" means, at any date, the aggregate amount at
such date of Indebtedness of the Company or a Restricted Subsidiary in respect
of which the recourse of the holder of such Indebtedness, whether direct or
indirect and whether contingent or otherwise, is effectively limited to
specified assets.
"Officer" means the President, the Treasurer, any Assistant Treasurer,
Controller, Secretary, Assistant Secretary or any Vice President of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a
Person, one of whom must be the Person's chief executive officer, chief
financial officer or chief accounting officer.
"Opinion of Counsel" means an opinion from legal counsel who is acceptable
to the Trustee. The counsel may be an employee of or counsel to the Company, a
Guarantor or the Trustee.
"Ordinary Course Lien" means:
(a) Liens for taxes, assessments or governmental charges or levies on
the property of the Company or any Restricted Subsidiary if the same shall
not at the time be delinquent or thereafter can be paid without penalty, or
are being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on the
books of the Company;
(b) Liens imposed by law, such as carriers', warehousemen's,
landlords' and mechanics' liens and other similar liens arising in the
ordinary course of business which secure obligations not more than 60 days
past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on the books of the Company;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not
in any material way affect the marketability of the same or interfere with
the use thereof in the ordinary course of business of the Company and the
Restricted Subsidiaries;
(e) Liens arising under operating agreements or similar agreements in
respect of obligations which are not yet due or which are being contested
in good faith by appropriate proceedings;
(f) Liens reserved in oil, gas and/or mineral leases, production
sharing contracts and petroleum concession agreements and licenses for
bonus or rental payments and for compliance with the terms of such leases,
contracts, agreements and licenses;
(g) Liens pursuant to partnership agreements, oil, gas and/or mineral
leases, production sharing contracts, petroleum concession agreements and
licenses, farm-out agreements, division orders, contracts for the sale,
purchase, exchange, processing or transportation of oil, gas and/or other
hydrocarbons, unitization and pooling declarations and agreements,
operating agreements, development agreements, area of mutual interest
agreements, and other agreements which are customary in the oil, gas and
other mineral exploration, development and production business and in the
business of processing of gas and gas condensate production for the
extraction of products therefrom;
4
<PAGE> 10
(h) Liens on personal property (excluding the Capital Stock of any
Restricted Subsidiary) securing Indebtedness of the Company or any
Restricted Subsidiary other than Funded Indebtedness; and
(i) Liens which secure a judgment or other court-ordered award or
settlement as to which the Company has not exhausted its appellate rights.
"Pari Passu Indebtedness" means any Indebtedness of the Company, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall be subordinated in right of payment to the
Securities.
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" shall have the meaning assigned to such term in the
Securities.
"Restricted Subsidiary" means (i) each Subsidiary of the Company executing
this Indenture, (ii) Union Texas Petroleum Limited so long as it is a Subsidiary
of the Company and (iii) any Subsidiary of the Company that is a successor
corporation of any Subsidiary of the Company referred to in clauses (i) and
(ii). The status of any Subsidiary of the Company as a Restricted Subsidiary
shall continue, irrespective of any release of any Guarantee provided by such
Subsidiary under Article 10, so long as it is a Subsidiary of the Company.
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary, for a
period of more than three years, of any real or tangible personal property,
which property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person in contemplation of such leasing.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities described above issued under this
Indenture. For purposes of this Indenture, the term "Securities" shall, except
where the context otherwise requires, include the Guarantees.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute.
"Subsidiary" of any Person means any corporation of which at least a
majority of the aggregate voting power of all classes of the Common Equity is
owned by such Person directly or through one or more other Subsidiaries of such
Person, and any entity other than a corporation in which such Person, directly
or indirectly, owns at least a majority of the Common Equity of such entity.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. sec.sec.
77aaa-77bbbb), as in effect on the Issue Date.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Union Texas East Kalimantan Limited" means Union Texas East Kalimantan
Limited, a Bahamian corporation and a Subsidiary of the Company.
"Union Texas Petroleum Limited" means Union Texas Petroleum Limited, an
English limited company and a Subsidiary of the Company.
"U.S. Government Obligations" means direct obligations of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged.
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<PAGE> 11
SECTION 1.02 Other Definitions
<TABLE>
<CAPTION>
DEFINED
IN
TERM SECTION
---- -------
<S> <C>
"Authorized Agent"..................................................... 10.07
"Company Guarantee".................................................... 10.01(a)
"Custodian"............................................................ 6.01
"Event of Default"..................................................... 6.01
"Funding Guarantor".................................................... 10.03
"Guarantees"........................................................... 10.01(a)
"Judgment Currency".................................................... 10.09
"Legal Holiday"........................................................ 11.07
"Non-U.S. Guarantor"................................................... 10.07
"Paying Agent"......................................................... 2.03
"Registrar"............................................................ 2.03
"Successor"............................................................ 5.01
</TABLE>
SECTION 1.03 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
SECTION 1.04 Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating
The Securities, the notations thereon relating to the Guarantees and the
Company Guarantee and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A to this Indenture. The Securities may
have notations, legends or endorsements required by law, securities exchange
rule or usage. Each Security shall be dated the date of its authentication. The
Securities shall be in denominations of $1,000 and whole multiples thereof.
The terms and provisions contained in the Securities shall constitute, and
are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company, the Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
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<PAGE> 12
SECTION 2.02 Execution and Authentication
Two Officers of the Company shall sign the Securities and the notation
thereon relating to the Company Guarantee on behalf of the Company, and two
Officers of each Guarantor shall sign the notation on the Securities relating to
the Guarantees on behalf of such Guarantor, in each case by manual or facsimile
signature. The Company's seal shall be reproduced on the Securities and may be
in facsimile form.
If an Officer of the Company or any Guarantor whose signature is on a
Security no longer holds that office at the time the Security is authenticated,
the Security shall nevertheless be valid.
A Security shall not be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature
of the Trustee, which signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue up to the
aggregate principal amount of $200,000,000, upon a written order of the Company
signed by two Officers of the Company. The aggregate principal amount of
Securities outstanding at any time may not exceed such amount except as provided
in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company,
the Guarantors or an Affiliate of any of them.
SECTION 2.03 Registrar and Paying Agent
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or exchange ("Registrar") and an office
or agency where Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
SECTION 2.04 Paying Agent to Hold Money in Trust
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal
of, or premium, if any, or interest on the Securities, whether such money shall
have been paid to it by the Company or any Guarantor, and will notify the
Trustee of any default by the Company or any Guarantor in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon payment
over to the Trustee and upon accounting for any funds disbursed, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
SECTION 2.05 Holder Lists
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA sec. 312(a). If the Trustee is
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<PAGE> 13
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date, and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, and the
Company shall otherwise comply with TIA sec. 312(a).
SECTION 2.06 Transfer and Exchange
The Securities shall be issued in registered form and shall be transferable
only upon their surrender for registration of transfer. Where Securities are
presented to the Registrar with a request to register a transfer or to exchange
the Securities for an equal principal amount of Securities of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transaction are met; provided, however, that any
Security presented or surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied by a written instruction of transfer in a form
satisfactory to the Registrar and the Trustee, duly executed by the Holder
thereof or the Holder's attorney duly authorized in writing. To permit
registrations of transfer and exchanges, the Company shall issue and the Trustee
shall authenticate Securities at the Registrar's request.
The Company shall not be required (i) to issue, to register the transfer
of, or to exchange Securities during a period beginning at the opening of
business on a Business Day 15 days before the day of any selection of Securities
for redemption under Section 3.02 and ending at the close of business on the
date of selection, (ii) to register the transfer of or to exchange any Security
so selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part, or (iii) to register the transfer or
exchange of a Security between the record date and the next succeeding Interest
Payment Date.
No service charge shall be made to a Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Section 3.06 or 9.05).
SECTION 2.07 Replacement Securities
If any mutilated Security is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements are met. If
required by the Trustee, the Company or any Guarantor, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee, the
Company and the Guarantors to protect the Company, the Guarantors, the Trustee,
any Agent or any authenticating agent from any loss which any of them may suffer
if a Security is replaced. The Company and the Guarantors may charge for their
expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company and
the Guarantors.
SECTION 2.08 Outstanding Securities
The Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue.
Except as set forth in Section 2.09, a Security does not cease to be
outstanding because the Company, a Guarantor or an Affiliate of any of them
holds the Security.
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<PAGE> 14
SECTION 2.09 Treasury Securities
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, a Guarantor or an Affiliate of any of them shall be considered
as though not outstanding, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
disregarded.
SECTION 2.10 Temporary Securities
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities, but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
so exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION 2.11 Cancellation
The Company or any Guarantor at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation. Unless
the Company shall direct that cancelled Securities be returned to it, after
written notice to the Company all cancelled Securities held by the Trustee shall
be destroyed in accordance with the usual destruction procedures of the Trustee,
and the Trustee shall maintain a record of their destruction. The Company may
not issue new Securities to replace Securities that have been paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12 Defaulted Interest
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the
Securities and in Section 4.01. The Company shall, with the consent of the
Trustee, fix each such special record date and payment date. At least 15 days
before any special record date, the Company (or the Trustee, in the name of and
at the expense of the Company) shall mail to Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
SECTION 2.13 Persons Deemed Owners
The Company, the Trustee, any Agent and any authenticating agent may treat
the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payments of principal of, or premium, if
any, or interest on such Security and for all other purposes. None of the
Company, the Trustee, any Agent or any authenticating agent shall be affected by
any notice to the contrary.
ARTICLE 3
REDEMPTION
SECTION 3.01 Notices to Trustee
If the Company elects to redeem Securities pursuant to the redemption
provisions of Section 3.07, it shall furnish to the Trustee, at least 30 days
but not more than 60 days before a Redemption Date, an Officers' Certificate
setting forth the Section of this Indenture pursuant to which the redemption
shall occur, the Redemption Date, the principal amount of Securities to be
redeemed and the Redemption Price.
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<PAGE> 15
SECTION 3.02 Selection of Securities to be Redeemed
If less than all of the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed pro rata or by lot. The particular
Securities to be redeemed shall be selected, unless otherwise provided herein,
not less than 30 days nor more than 60 days prior to the Redemption Date by the
Trustee from the outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities and portions
of them selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Securities of a Holder are to be redeemed, the entire
outstanding amount of Securities held by such Holder, even if not a whole
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.03 Notices to Holders
(a) At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail in conformity with Section 11.02 a notice of redemption
to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the
Redemption Price;
(6) that unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after
the Redemption Date and the only remaining right of the Holders is to
receive payment of the Redemption Price upon surrender to the Paying Agent
of the Securities;
(7) the paragraph of the Securities pursuant to which the Securities
are being redeemed;
(8) the aggregate principal amount of Securities being redeemed; and
(9) the CUSIP number of the Securities.
(b) At the Company's request, the Trustee shall give the notice required in
Section 3.03(a) in the Company's name and at its expense; provided, however,
that the Company shall deliver to the Trustee, at least 40 days prior to the
Redemption Date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in Section 3.03(a).
SECTION 3.04 Effect of Notice of Redemption
Once notice of redemption is mailed pursuant to Section 3.03, Securities
called for redemption become due and payable on the Redemption Date at the
Redemption Price. Upon surrender to the Paying Agent, such Securities shall be
paid out at the Redemption Price.
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<PAGE> 16
SECTION 3.05 Deposit of Redemption Price
One Business Day prior to the Redemption Date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the Redemption
Price of all Securities to be redeemed on that date. The Trustee or the Paying
Agent shall return to the Company any money not required for that purpose.
If the Company complies with the preceding paragraph, interest on the
Securities or portions thereof to be redeemed (whether or not such Securities
are presented for payment) will cease to accrue on the applicable Redemption
Date. If any Security called for redemption shall not be so paid upon surrender
because of the failure of the Company to comply with the preceding paragraph,
then interest will be paid on the unpaid principal and premium, if any, from the
Redemption Date until such principal and premium are paid and, to the extent
lawful, on any interest not paid on such unpaid principal, in each case at the
rate provided in the Securities and in Section 4.01.
SECTION 3.06 Securities Redeemed in Part
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder, at the expense of the
Company, a new Security equal in principal amount to the unredeemed portion of
the Security surrendered.
SECTION 3.07 Optional Redemption
The Securities may be redeemed at any time, at the option of the Company,
in whole or from time to time in part, at the Redemption Price specified in the
Securities.
Any redemption pursuant to this Section 3.07 shall be made, to the extent
applicable, pursuant to the provisions of Sections 3.01 through 3.06.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities
The Company shall pay the principal of, and premium, if any, and interest
on the Securities on the dates and in the manner provided in the Securities.
Principal, premium and interest shall be considered paid on the date due if the
Paying Agent, other than the Company or a Subsidiary of the Company, holds on
that date money deposited by the Company designated for and sufficient to pay
all principal, premium and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal, and premium, if any,
at a rate equal to the then applicable interest rate on the Securities to the
extent lawful; and it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.02 Maintenance of Office or Agency
The Company will maintain, in the Borough of Manhattan, The City of New
York, an office or agency (which may be an office of the Trustee, the Registrar
or the Paying Agent) where Securities may be presented for registration of
transfer or exchange, where Securities may be presented for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. Unless otherwise designated by the Company by written
notice to the Trustee, such office or agency shall be the principal office of
The First National Bank of Chicago, in The City of New York which, on the date
hereof, is located at . The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with
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<PAGE> 17
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. The Company hereby
designates the Corporate Trust Services Division of the Trustee as one such
office or agency of the Company in accordance with Section 2.03.
SECTION 4.03 SEC Reports; Financial Statements
(a) The Company shall file with the Trustee, within 15 days after it files
the same with the SEC, copies of the annual reports and the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) that the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the
Company is not subject to the requirements of such Section 13 or 15(d), the
Company shall file with the Trustee, within 15 days after it would have been
required to file the same with the SEC, financial statements, including any
notes thereto (and with respect to annual reports, an auditors' report by a firm
of established national reputation), and a "Management's Discussion and Analysis
of Financial Condition and Results of Operations," both comparable to that which
the Company would have been required to include in such annual reports,
information, documents or other reports if the Company had been subject to the
requirements of such Section 13 or 15(d). The Company and each Guarantor shall
also comply with the provisions of TIA sec. 314(a).
(b) If the Company is required to furnish annual or quarterly reports to
its stockholders pursuant to the Exchange Act, the Company shall cause any
annual report furnished to its stockholders generally and any quarterly or other
financial reports furnished by it to its stockholders generally to be filed with
the Trustee and mailed to the Holders at their addresses appearing in the
register of Securities maintained by the Registrar. If the Company is not
required to furnish annual or quarterly reports to its stockholders pursuant to
the Exchange Act, the Company shall cause its financial statements referred to
in Section 4.03(a), including any notes thereto (and with respect to annual
reports, an auditors' report by a firm of established national reputation), and
a "Management's Discussion and Analysis of Financial Condition and Results of
Operations" to be so mailed to the Holders within 90 days after the end of each
of the Company's fiscal years and within 60 days after the end of each of the
Company's first three fiscal quarters.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Trustee may
be required to deliver to Holders under this Section.
SECTION 4.04 Compliance Certificate
(a) The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers of the Company with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his knowledge the Company and each Guarantor has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which such
Officer may have knowledge and what action the Company or such Guarantor, as the
case may be, is taking or proposes to take with respect thereto) and that to the
best of his knowledge no event has occurred and remains in existence by reason
of which payments on account of the principal of, or premium, if any, or
interest, if any, on the Securities or payments on account of the
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<PAGE> 18
Guarantees are prohibited or, if such event has occurred, a description of the
event and what action the Company and the Guarantors are taking or propose to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 shall be accompanied by a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Article 4 or 5 of this Indenture (to the extent such provisions relate to
accounting matters) or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company and the Guarantors shall, so long as any of the Securities
are outstanding, deliver to the Trustee, forthwith upon any Officer of the
Company or any Guarantor becoming aware of any Default or Event of Default under
this Indenture, an Officers' Certificate specifying such Default or Event of
Default and what action the Company or such Guarantor is taking or proposes to
take with respect thereto.
SECTION 4.05 Corporate Existence
The Company shall do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and the corporate,
partnership and other existence of each of its Subsidiaries and all rights
(charter and statutory) and franchises of the Company and its Subsidiaries,
provided that the Company shall not be required to preserve the corporate
existence of any Subsidiary of the Company or any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and the Restricted
Subsidiaries and that the loss thereof would not have a material adverse effect
on the business, prospects, assets or financial condition of the Company and its
Subsidiaries taken as a whole and would not have any material adverse effect on
the payment and performance of the obligations of the Company and the Guarantors
under the Securities and this Indenture.
SECTION 4.06 Maintenance of Properties
The Company shall cause all properties owned by the Company or any of its
Subsidiaries or used or held for use in the conduct of its business or the
business of any such Subsidiary to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted) and supplied with
all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any such Subsidiary and not disadvantageous in
any material respect to the Holders.
SECTION 4.07 Payment of Taxes and Other Claims
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (i) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or upon
the income, profits or property of the Company or any of its Subsidiaries, and
(ii) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a Lien upon the property of the Company or any of its
Subsidiaries; provided that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
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SECTION 4.08 Limitation on Sale/Leaseback Transactions
The Company shall not, and shall not permit any Restricted Subsidiary to,
enter into any Sale/Leaseback Transaction with any Person (other than the
Company or a Restricted Subsidiary) unless:
(a) the Company or such Restricted Subsidiary would be entitled to
incur Indebtedness, in a principal amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction, secured by a
Lien on the property subject to such Sale/Leaseback Transaction pursuant to
Section 4.09 without equally and ratably securing the Securities pursuant
to such Section;
(b) after the Issue Date and within a period commencing six months
prior to the consummation of such Sale/Leaseback Transaction and ending six
months after the consummation thereof, the Company or such Restricted
Subsidiary shall have expended for property used or to be used in the
ordinary course of business of the Company and the Restricted Subsidiaries
(including amounts expended for the exploration, drilling or development
thereof, and for additions, alterations, repairs and improvements thereto)
an amount equal to all or a portion of the Net Proceeds of such
Sale/Leaseback Transaction and the Company shall have elected to designate
such amount as a credit against such Sale/Leaseback Transaction (with any
such amount not being so designated to be applied as set forth in clause
(c) below); or
(c) the Company, during the 12-month period after the effective date
of such Sale/Leaseback Transaction, shall have applied to the voluntary
defeasance or retirement of Securities or any Pari Passu Indebtedness an
amount equal to the greater of the Net Proceeds of the sale or transfer of
the property leased in such Sale/Leaseback Transaction and the fair value,
as determined by the Board of Directors of the Company, of such property at
the time of entering into such Sale/Leaseback Transaction (in either case
adjusted to reflect the remaining term of the lease and any amount expended
by the Company as set forth in clause (b) above), less an amount equal to
the principal amount of Securities and Pari Passu Indebtedness voluntarily
defeased or retired by the Company within such 12-month period and not
designated as a credit against any other Sale/Leaseback Transaction entered
into by the Company or any Restricted Subsidiary during such period.
SECTION 4.09 Limitation on Liens
No provision of this Indenture or the Securities shall in any way restrict
or prevent the Company or any Restricted Subsidiary from issuing, assuming,
guaranteeing or otherwise incurring any Indebtedness, provided, however, that
the Company shall not, and shall not permit any Restricted Subsidiary to, issue,
assume or guarantee any Indebtedness for borrowed money secured by any Lien on
any property or asset now owned or hereafter acquired by the Company or such
Restricted Subsidiary without making effective provision whereby any and all
Securities then or thereafter outstanding will be secured by a Lien equally and
ratably with any and all other obligations thereby secured for so long as any
such obligations shall be so secured. Notwithstanding the foregoing, the Company
or any Restricted Subsidiary may, without so securing the Securities, issue,
assume or guarantee Indebtedness secured by the following Liens:
(a) Liens existing on the Issue Date or provided for under the terms
of agreements existing on the Issue Date (including, without limitation,
the Lien provided for pursuant to Section 7.07);
(b) Liens on property securing (i) all or any portion of the cost of
exploration, drilling or development of such property, (ii) all or any
portion of the cost of acquiring, constructing, altering, improving or
repairing any property or assets, real or personal, or improvements used or
to be used in connection with such property or (iii) Indebtedness incurred
by the Company or any Restricted Subsidiary to provide funds for the
activities set forth in clauses (i) and (ii) above;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary to the
Company or to any other Restricted Subsidiary;
(d) Liens on the property of any Person existing at the time such
Person becomes a Subsidiary of the Company and not incurred as a result of
(or in connection with or in anticipation of) such Person
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becoming a Subsidiary of the Company, provided that such Liens do not
extend to or cover any property or assets of the Company or any of its
Subsidiaries other than the property so acquired;
(e) Liens on any property securing (i) Indebtedness incurred in
connection with the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial revenue bond
financing or (ii) Indebtedness issued or guaranteed by the United States or
any State thereof or any department, agency or instrumentality of either;
(f) any Lien on any asset securing Non-Recourse Indebtedness of the
Company or any Restricted Subsidiary or on any asset of Union Texas East
Kalimantan Limited securing Joint Venture Indebtedness;
(g) any Lien extending, renewing or replacing (or successive
extensions, renewals or replacements of) any Lien of any type permitted
under clauses (a) through (f) above, provided that such Lien extends to or
covers only the property that is subject to the Lien being extended,
renewed or replaced;
(h) any Ordinary Course Lien arising, but only so long as continuing,
in the ordinary course of business of the Company and the Restricted
Subsidiaries; or
(i) Liens (exclusive of any Lien of any type otherwise permitted under
clauses (a) through (h) above) securing Indebtedness of the Company or any
Restricted Subsidiary in an aggregate principal amount which, together with
the aggregate amount of Attributable Indebtedness deemed to be outstanding
in respect of all Sale/Leaseback Transactions entered into pursuant to
clause (a) of Section 4.08 (exclusive of any such Sale/Leaseback
Transactions otherwise permitted under clauses (a) through (h) above), does
not at the time such Indebtedness is incurred exceed 10% of the
Consolidated Net Worth of the Company (as shown in the most recent audited
consolidated balance sheet of the Company and its Subsidiaries).
Notwithstanding the foregoing, nothing in this Section 4.09 shall be deemed
to prohibit or otherwise limit the following types of transactions:
(i) the sale, granting of Liens with respect to, or other transfer of,
crude oil, natural gas or other petroleum hydrocarbons in place for a
period of time until, or in an amount such that, the transferee will
realize therefrom a specified amount (however determined) of money or of
such crude oil, natural gas or other petroleum hydrocarbons;
(ii) the sale or other transfer of any other interest in property of
the character commonly referred to as a production payment, overriding
royalty, forward sale or similar interest; or
(iii) the granting of Liens required by any contract or statute in
order to permit the Company or any Restricted Subsidiary to perform any
contract or subcontract made by it with or at the request of the United
States or any State thereof or any department, agency or instrumentality of
either, or to secure partial, progress, advance or other payments to the
Company or any Restricted Subsidiary by such governmental unit pursuant to
the provisions of any contract or statute.
ARTICLE 5
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations
Neither the Company nor any Guarantor shall consolidate or merge with or
into any Person, or sell, lease, convey or otherwise dispose of all or
substantially all of its assets, or assign any of its obligations hereunder or
under the Securities, to any Person, unless:
(i) the Person formed by or surviving such consolidation or merger (if
other than the Company or such Guarantor, as the case may be), or to which
such sale, lease, conveyance or other disposition or assignment shall be
made (collectively, the "Successor"), is a corporation organized and
existing under
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the laws of the United States or any State thereof or the District of
Columbia (or, in the case of a Guarantor organized under the laws of a
jurisdiction outside the United States, a corporation organized and
existing under the laws of such foreign jurisdiction), and the Successor
assumes by supplemental indenture in a form satisfactory to the Trustee all
of the obligations of the Company or such Guarantor, as the case may be,
under this Indenture and the Securities;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate and an
Opinion of Counsel, each stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
SECTION 5.02 Successor Corporation Substituted
Upon any consolidation or merger of the Company or any Guarantor, or any
sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Company or any Guarantor or any assignment of the obligations of
the Company or any Guarantor under this Indenture or the Securities in
accordance with Section 5.01, the Successor formed by such consolidation or into
or with which the Company or such Guarantor is merged or to which such sale,
lease, conveyance or other disposition or assignment is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
or such Guarantor, as the case may be, under this Indenture and the Securities
with the same effect as if such Successor had been named as the Company or such
Guarantor herein and the predecessor Company or Guarantor, in the case of a
sale, lease, conveyance or other disposition or assignment, shall be released
from all obligations under this Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default
An "Event of Default" occurs if:
(1) the Company or any Guarantor defaults in the payment of interest
on any Security when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Company or any Guarantor defaults in the payment of the
principal of or premium, if any, on any Security when the same becomes due
and payable at maturity, upon acceleration or otherwise;
(3) the Company or any Guarantor fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities, the
Guarantees or this Indenture and such failure continues for the period and
after the notice specified in the last paragraph of this Section 6.01;
(4) any default shall occur which results in the acceleration of the
maturity of any Indebtedness of the Company or any Restricted Subsidiary
(other than the Securities or any Non-Recourse Indebtedness) having an
outstanding principal amount of $20 million or more individually or, taken
together with all other such Indebtedness that has been so accelerated, in
the aggregate; or any default shall occur in the payment of any principal
or interest in respect of any Indebtedness of the Company or any Restricted
Subsidiary (other than the Securities or any Non-Recourse Indebtedness)
having an outstanding principal amount of $20 million or more individually
or, taken together with all other such Indebtedness with respect to which
any such payment has not been made, in the aggregate and such default shall
be continuing for a period of 30 days without the Company or such
Restricted Subsidiary, as the case may be, effecting a cure of such
default;
(5) a judgment or order for the payment of money in excess of $20
million (net of applicable insurance coverage which is acknowledged in
writing by the insurer) shall be rendered against the
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Company or any Restricted Subsidiary and such judgment or order shall
continue unsatisfied and unstayed for a period of 30 days;
(6) the Company or any Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(d) makes a general assignment for the benefit of its creditors; or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company or any Restricted Subsidiary
as debtor in an involuntary case,
(b) appoints a Custodian of the Company or any Restricted
Subsidiary or a Custodian for all or substantially all of the property
of the Company or any Restricted Subsidiary, or
(c) orders the liquidation of the Company or any Restricted
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know of a Default unless a Trust Officer
at the Corporate Trust Office of the Trustee has actual knowledge of such
Default or the Trustee receives written notice at the Corporate Trust Office of
the Trustee of such Default with specific reference to such Default.
A Default under clause (3) is not an Event of Default until the Trustee
notifies the Company and, in the case of a Default by a Guarantor, such
Guarantor, or the Holders of at least 25% in principal amount of the then
outstanding Securities notify the Company, such Guarantor (where applicable) and
the Trustee, of the Default, and neither the Company nor such Guarantor cures
the Default within 60 days after receipt of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a "Notice
of Default."
SECTION 6.02 Acceleration
If an Event of Default (other than an Event of Default specified in clauses
(6) or (7) of Section 6.01) occurs and is continuing, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount of the then
outstanding Securities by notice to the Company and the Trustee, may declare the
principal of and premium, if any, and accrued and unpaid interest on all then
outstanding Securities to be due and payable immediately. Upon any such
declaration the amounts due and payable on the Securities, as determined in
accordance with the next succeeding paragraph, shall be due and payable
immediately. If an Event of Default specified in clause (6) or (7) of Section
6.01 occurs, such amounts shall ipso facto become and be immediately due and
payable without any declaration, notice or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the then
outstanding Securities by written notice to the Trustee may rescind an
acceleration and its consequences (other than nonpayment of principal of, or
premium, if any, or interest on the Securities) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived.
In the event that the maturity of the Securities is accelerated pursuant to
this Section 6.02, 100% of the principal amount thereof shall become due and
payable plus accrued interest to the date of payment.
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SECTION 6.03 Other Remedies
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, or premium, if any, or
interest on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 6.04 Waiver of Existing Defaults
Subject to Sections 6.07 and 9.02, the Holders of a majority in principal
amount of the then outstanding Securities by notice to the Trustee may waive an
existing Default or Event of Default and its consequences (including waivers
obtained in connection with a tender offer or exchange offer for Securities or a
solicitation of consents in respect of Securities, provided that in each case
such offer or solicitation is made to all Holders of then outstanding Securities
on equal terms), except a continuing Default or Event of Default in the payment
of the principal of, or premium, if any, or interest on any Security. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 6.05 Control by Majority
The Holders of a majority in principal amount of the then outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it hereunder. However, the Trustee may refuse to follow any
direction that conflicts with applicable law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders, or that may
involve the Trustee in personal liability.
SECTION 6.06 Limitations on Suits
Subject to Section 6.07, a Holder may pursue a remedy with respect to this
Indenture (including the Guarantees) or the Securities only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense; and
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
SECTION 6.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of, and premium, if any,
and interest on the Security, on or after the respective due dates expressed in
the Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of the Holder.
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SECTION 6.08 Collection Suit by Trustee
If an Event of Default specified in Section 6.01(1) or (2) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company and any Guarantor for the amount
of principal, premium, if any, and interest remaining unpaid on the Securities,
and interest on overdue principal and premium, if any, and, to the extent
lawful, interest on overdue interest, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim and other papers or
documents and to take such actions, including participating as a member, voting
or otherwise, of any committee of creditors, as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to the
Company and any Guarantor or their respective creditors or properties and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties which the Holders of the Securities may
be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10 Priorities
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, and interest ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal, premium, if any, and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Article.
SECTION 6.11 Undertaking for Costs
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07,
or a suit by a Holder or Holders of more than 10% in principal amount of the
then outstanding Securities.
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ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in such exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(a) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine such certificates and opinions to determine
whether or not, on their face, they appear to conform to the requirements
of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(a) this paragraph does not limit the effect of paragraph (2) of this
Section;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(4) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (1),
(2) and (3) of this Section.
(5) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity reasonably
satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law. All money received by the Trustee shall, until applied
as herein provided, be held in trust for the payment of the principal of, and
premium, if any, and interest on the Securities.
SECTION 7.02 Rights of Trustee
(1) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(3) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
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(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company or any Guarantor shall be
sufficient if signed by an Officer of the Company or such Guarantor.
SECTION 7.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company, the Guarantors or
any of their Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
of the proceeds from the Securities or any money paid to the Company or upon the
Company's direction under any provision hereof, it shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee and it shall not be responsible for any statement or recital herein or
any statement in the Securities other than its certificate of authentication.
SECTION 7.05 Notice of Defaults
If a Default or Event of Default occurs and is continuing and it is known
to the Trustee, the Trustee shall mail to Holders a notice of the Default or
Event of Default within 45 days after it occurs. Except in the case of a Default
or Event of Default in payment of principal of, or premium, if any, or interest
on any Security, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Holders.
SECTION 7.06 Reports by Trustee to Holders
Within 60 days after each January 31, beginning with January 31, 1995, and
in any event prior to March 31 in each year, the Trustee shall mail to Holders a
brief report dated as of such reporting date that complies with TIA sec. 313(a);
provided, however, that if no event described in TIA sec. 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted. The Trustee also shall comply with TIA sec. 313(b). The Trustee
shall also transmit by mail all reports as required by TIA sec. 313(c).
A copy of each report at the time of its mailing to Holders shall be filed
with the SEC and each securities exchange, if any, on which the Securities are
listed. The Company shall notify the Trustee when the Securities are listed on
any stock exchange.
SECTION 7.07 Compensation and Indemnity
The Company and the Guarantors jointly and severally agree to pay to the
Trustee from time to time reasonable compensation for its acceptance of this
Indenture and services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
and the Guarantors jointly and severally agree to reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred by it.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company and the Guarantors jointly and severally agree to indemnify the
Trustee against any loss, liability or expense incurred by it arising out of or
in connection with the acceptance or administration of its duties under this
Indenture, except as set forth in the next paragraph. The Trustee shall notify
the Company and the Guarantors promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the
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Company and the Guarantors shall pay the reasonable fees and expenses of such
counsel. The Company and the Guarantors need not pay for any settlement made
without their consent, which consent shall not be unreasonably withheld.
Neither the Company nor the Guarantors shall be obligated to reimburse any
expense or indemnify against any loss or liability incurred by the Trustee
through negligence or bad faith.
To secure the payment obligations of the Company and the Guarantors in this
Section, the Trustee shall have a Lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal of and premium, if any, and interest on particular Securities. Such
Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign and be discharged from the trust hereby created by
so notifying the Company and the Guarantors. The Holders of a majority in
principal amount of the then outstanding Securities may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company and the Guarantors shall promptly appoint
a successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company and the Guarantors. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the Lien provided for
in Section 7.07. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the obligations of the Company and the Guarantors under Section
7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be
the successor Trustee; provided, however, that in the case of a transfer of all
or substantially all of its corporate trust business to another corporation, the
transferee corporation expressly assumes all of the Trustee's liabilities
hereunder.
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In case any Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated, with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 7.10 Eligibility; Disqualification
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under such
laws to exercise corporate trust power, shall be subject to supervision or
examination by Federal or State (or the District of Columbia) authority and
shall have a combined capital and surplus of at least $50 million as set forth
in its most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements of
TIA sec.sec. 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to and
shall comply with the provisions of TIA sec. 310(b) during the period of time
required by this Indenture. Nothing in this Indenture shall prevent the Trustee
from filing with the SEC the application referred to in the penultimate
paragraph of TIA sec. 310(b).
SECTION 7.11 Preferential Collection of Claims Against Company
The Trustee is subject to and shall comply with the provisions of TIA
sec. 311(a), excluding any creditor relationship listed in TIA sec. 311(b). A
Trustee who has resigned or been removed shall be subject to TIA sec. 311(a) to
the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of Company's Obligations
(a) This Indenture shall cease to be of further effect (except that the
Company's and the Guarantors' obligations under Section 7.07 and the Trustee's
and Paying Agent's obligations under Section 8.03 shall survive), and the
Trustee, on demand of the Company, shall execute proper instruments
acknowledging the satisfaction and discharge of this Indenture, when:
(1) either
(A) all outstanding Securities theretofore authenticated and issued
(other than destroyed, lost or stolen Securities that have been replaced
or paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities not theretofore delivered to the
Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their stated maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of clause (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as funds
(immediately available to the Holders in the case of clause (i)) in
trust for the purpose an amount which, together with earnings thereon,
will be sufficient to pay and discharge the entire indebtedness on such
Securities for principal, premium, if any, and interest to the date of
such deposit (in the case of Securities which have become due and
payable) or to the stated maturity or Redemption Date, as the case may
be;
(2) the Company has paid all other sums payable by it hereunder; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture have been complied with, together with an Opinion of Counsel to
the same effect.
(b) The Company and the Guarantors may, subject as provided herein,
terminate all of their obligations under this Indenture if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations sufficient to pay principal of and interest
on the Securities to maturity, and to pay all other sums payable by it
hereunder; provided that the Trustee shall have been irrevocably instructed
to apply such money or the proceeds of such U.S. Government Obligations to
the payment of said principal and interest with respect to the Securities
as the same shall become due;
(2) the Company delivers to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit; and
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel from nationally recognized counsel acceptable to the Trustee or a
tax ruling to the effect that the Holders of the Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of the Company's exercise of its option under this Section 8.01(b) and will
be subject to Federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had not
been exercised.
In such event, this Indenture shall cease to be of further effect (except
as provided in the next succeeding paragraph), and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging confirmation of and
discharge under this Indenture.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 4.01, 5.01, 7.07, 7.08 and 8.04, the Guarantors' obligations in Sections
5.01, 7.07, 8.04 and 10.01 and the Company's, the Trustee's and Paying Agent's
obligations in Section 8.03 shall survive until the Securities are no longer
outstanding. Thereafter, only the Company's and the Guarantor's obligations in
Section 7.07 and the Trustee's and Paying Agent's obligations in Section 8.03
shall survive.
After such irrevocable deposit made pursuant to this Section 8.01(b) and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the discharge of the Company's and the Guarantors'
obligations under this Indenture except for those surviving obligations
specified above.
In order to have money available on a payment date to pay principal of or
interest on the Securities, the U.S. Government Obligations shall be payable as
to principal or interest on or before such payment date in such amounts as will
provide the necessary money. U.S. Government Obligations shall not be callable
at the issuer's option.
SECTION 8.02 Application of Trust Money
The Trustee or a trustee satisfactory to the Trustee and the Company shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
Section 8.01. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and premium, if any, and interest on
the Securities.
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SECTION 8.03 Repayment to Company
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due; provided, however, that the Company shall have
either caused notice of such payment to be mailed to each Holder entitled
thereto no less than 30 days prior to such repayment or within such period shall
have published such notice in a financial newspaper of widespread circulation
published in The City of New York. After payment to the Company, Holders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person, and all
liability of the Trustee and the Paying Agent with respect to such money shall
cease.
SECTION 8.04 Reinstatement
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company and the Guarantors under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01; provided, however, that if the Company or any Guarantor has
made any payment of principal of or premium, if any, or interest on any
Securities because of the reinstatement of its obligations, the Company or such
Guarantor shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or the Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders
The Company, the Guarantors and the Trustee may amend this Indenture or the
Securities or waive any provision hereof or thereof without the consent of any
Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to reflect the release of any Guarantor from its Guarantee, or the
addition of any Subsidiary of the Company as a Guarantor, in the manner
provided by this Indenture;
(5) to comply with any requirement in order to effect or maintain the
qualification of this Indenture under the TIA; or
(6) to make any change that does not adversely affect the rights
hereunder of any Holder in any material respect.
Upon the request of the Company and the Guarantors, accompanied by a
resolution of the Board of Directors and of the board of directors, board of
trustees or managing partners of each Guarantor authorizing the execution of any
such supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 9.06, the Trustee shall join with the Company and the
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and make any further appropriate
agreements and stipulations that may be therein contained. After an amendment or
waiver under
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this Section becomes effective, the Company shall mail to the Holders of each
Security affected thereby a notice briefly describing the amendment or waiver.
Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.02 With Consent of Holders
Except as provided below in this Section 9.02, the Company, the Guarantors
and the Trustee may amend this Indenture or the Securities with the written
consent (including consents obtained in connection with a tender offer or
exchange offer for Securities or a solicitation of consents in respect of
Securities, provided that in each case such offer or solicitation is made to all
Holders of then outstanding Securities on equal terms) of the Holders of at
least a majority in principal amount of the then outstanding Securities.
Upon the request of the Company and the Guarantors, accompanied by a
resolution of the Board of Directors and of the board of directors, board of
trustees or managing partners of each Guarantor authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 9.06, the Trustee shall join with the Company and
the Guarantors in the execution of such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding
Securities may waive compliance in a particular instance by the Company or the
Guarantors with any provision of this Indenture or the Securities (including
waivers obtained in connection with a tender offer or exchange offer for
Securities or a solicitation of consents in respect of Securities, provided that
in each case such offer or solicitation is made to all Holders of then
outstanding Securities on equal terms). However, without the consent of each
Holder affected, an amendment or waiver under this Section may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including default interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any
Security or alter the premium or other provisions with respect to
redemption under Section 3.07 or specified in the Securities;
(4) make any Security payable in money other than that stated in the
Security;
(5) impair the right to institute suit for the enforcement of any
payment of principal of, or premium, if any, or interest on any Security
pursuant to Sections 6.07 and 6.08, except as limited by Section 6.06;
(6) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of this
Indenture pursuant to Section 6.04 or 6.07 or this sentence of this Section
9.02; or
(7) waive a continuing Default or Event of Default in the payment of
principal of, or premium, if any, or interest on the Securities.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of this Indenture (and the obligation of the Company
to obtain any such consent otherwise required from such Holder) may be subject
to the requirement that such Holder shall have been the Holder of record of any
Securities with respect to which such consent is required or sought as of a date
identified by the Trustee in a notice furnished to Holders in accordance with
the terms of this Indenture.
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SECTION 9.03 Compliance with Trust Indenture Act
Every amendment to this Indenture or the Securities shall comply in form
and substance with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents
Until an amendment (which includes any supplement) or waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his or her Security or portion of
a Security if the Trustee receives written notice of revocation before the date
the amendment or waiver becomes effective. An amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver. If the Company elects to fix a record date for such purpose, the record
date shall be fixed at (i) the later of 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 2.05, or (ii) such other
date as the Company shall designate. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consents from Holders of the
principal amount of Securities required hereunder for such amendment or waiver
to be effective shall have also been given and not revoked within such 90-day
period.
After an amendment or waiver becomes effective, it shall bind every Holder,
unless it is of the type described in any of clauses (1) through (7) of Section
9.02. In such case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security that evidences
the same debt as the consenting Holder's Security.
SECTION 9.05 Notation on or Exchange of Securities
The Trustee may place an appropriate notation about an amendment or waiver
on any Security thereafter authenticated. The Company in exchange for all
Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article if the amendment does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may,
but need not, sign it. In signing or refusing to sign such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject to
Section 7.01, shall be fully protected in relying upon, an Opinion of Counsel as
conclusive evidence that such amendment or supplemental indenture is authorized
or permitted by this Indenture, that it is not inconsistent herewith, and that
it will be valid and binding upon the Company and the Guarantors in accordance
with its terms.
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ARTICLE 10
GUARANTEES OF SECURITIES
SECTION 10.01 Unconditional Guarantees
(a) For value received, (i) the Guarantors, jointly and severally, hereby
fully, unconditionally and absolutely guarantee (the "Guarantees") to the
Holders and to the Trustee the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and
payable under this Indenture and the Securities by the Company, and (ii) the
Company hereby fully, unconditionally and absolutely guarantees (the "Company
Guarantee") to the Holders and to the Trustee the obligations of the Guarantors
described in clause (i), each when and as such principal, premium, if any, and
interest shall become due and payable, whether at the stated maturity or by
declaration of acceleration, call for redemption or otherwise, according to the
terms of the Securities and this Indenture.
(b) Failing payment when due of any amount guaranteed pursuant to the
Guarantees, for whatever reason, each Guarantor will be obligated to pay the
same immediately. Each Guarantee hereunder is intended to be a general,
unsecured, senior obligation of each Guarantor and will rank pari passu in right
of payment with all Indebtedness of each such Guarantor that is not, by its
terms, expressly subordinated in right of payment to the Guarantee of such
Guarantor. Each of the Guarantors hereby agrees that its obligations hereunder
shall be full, unconditional and absolute, irrespective of the validity,
regularity or enforceability of the Securities, the Guarantees or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Securities with respect to any provisions hereof or
thereof, any release of any other Guarantor, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each of the Guarantors hereby agrees that in the event of a default
in payment of the principal of, or premium, if any, or interest on the
Securities, whether at the stated maturity or by declaration of acceleration,
call for redemption or otherwise, legal proceedings may be instituted by the
Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on
the terms and conditions set forth in this Indenture, directly against each of
the Guarantors to enforce the Guarantees without first proceeding against the
Company.
(c) Failing payment of the Guarantees, for whatever reason, the Company
will be obligated to pay, or to perform or cause the performance of, the same
immediately. The Company Guarantee is intended to be a general, unsecured,
senior obligation of the Company and will rank pari passu in right of payment
with all Indebtedness of the Company that is not, by its terms, expressly
subordinated in right of payment to the Company Guarantee. The Company hereby
agrees that its obligations under the Company Guarantee shall be full,
unconditional and absolute, irrespective of the validity, regularity or
enforceability of the Securities, the Guarantees, the Company Guarantee or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Securities with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company or any Guarantor, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the Company.
(d) The obligations of each Guarantor and the Company under this Article 10
shall be as aforesaid full, unconditional and absolute and shall not be
impaired, modified, released or limited by any occurrence or condition
whatsoever, including, without limitation, (i) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of, or any
change in, any of the obligations and liabilities of the Company or any
Guarantor contained in the Securities or this Indenture, (ii) any impairment,
modification, release or limitation of the liability of the Company, any
Guarantor or any of their estates in bankruptcy, or any remedy for the
enforcement thereof, resulting from the operation of any present or future
provision of any applicable Bankruptcy Law, as amended, or other statute or from
the decision of any court, (iii) the assertion or exercise by the Company, any
Guarantor or the Trustee of any rights or remedies under the Securities or this
Indenture or their delay in or failure to assert or exercise any such rights or
remedies, (iv) the assignment or the purported assignment of any property as
security for the Securities, including all or any part of the rights of the
Company or any Guarantor under this Indenture, (v) the extension of the time for
payment by the Company or any Guarantor of any payments or other sums or any
part thereof owing or payable under any of the terms and provisions of the
Securities or this Indenture or of the time for performance by the Company or
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any Guarantor of any other obligations under or arising out of any such terms
and provisions or the extension or the renewal of any thereof, (vi) the
modification or amendment (whether material or otherwise) of any duty, agreement
or obligation of the Company or any Guarantor set forth in this Indenture, (vii)
the voluntary or involuntary liquidation, dissolution, sale or other disposition
of all or substantially all of the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other
similar proceeding affecting, the Company or any of the Guarantors or any of
their respective assets, or the disaffirmance of the Securities, the Guarantees,
the Company Guarantee or this Indenture in any such proceeding, (viii) the
release or discharge of the Company or any Guarantor from the performance or
observance of any agreement, covenant, term or condition contained in any of
such instruments by operation of law, (ix) the unenforceability of the
Securities, the Guarantees, the Company Guarantee or this Indenture or (x) any
other circumstance which might otherwise constitute a legal or equitable
discharge of a surety or guarantor.
(e) The Guarantors and the Company each hereby (i) waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
the merger, insolvency or bankruptcy of the Company or a Guarantor, and all
demands whatsoever, (ii) acknowledges that any agreement, instrument or document
evidencing the Guarantees or the Company Guarantee may be transferred and that
the benefit of its obligations hereunder shall extend to each holder of any
agreement, instrument or document evidencing the Guarantees or the Company
Guarantee without notice to them and (iii) covenants that its Guarantee or the
Company Guarantee, as the case may be, will not be discharged except by complete
performance of the Guarantees or the Company Guarantee, as the case may be. Each
Guarantor and the Company further agrees that if at any time all or any part of
any payment theretofore applied by any Person to any Guarantee or the Company
Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization of
the Company or any Guarantor, such Guarantee or the Company Guarantee, as the
case may be, shall, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence notwithstanding such
application, and the Guarantees or the Company Guarantee, as the case may be,
shall continue to be effective or be reinstated, as the case may be, as though
such application had not been made.
(f) Each Guarantor shall be subrogated to all rights of the Holders and the
Trustee against the Company in respect of any amounts paid by such Guarantor
pursuant to the provisions of this Indenture, provided, however, that no
Guarantor shall be entitled to enforce or to receive any payments arising out
of, or based upon, such right of subrogation until all of the Securities and the
Guarantees shall have been paid in full or discharged.
(g) A director, officer, employee or stockholder, as such, of any Guarantor
shall not have any liability for any obligations of such Guarantor under this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation.
SECTION 10.02 Limitation of Guarantor's Liability
Each Guarantor and by its acceptance hereof each Holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any federal, state or foreign law. To effectuate the
foregoing intention, the Holders and each Guarantor hereby irrevocably agree
that the obligations of each Guarantor under its Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
10.03, result in the obligations of such Guarantor under its Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal, state
or foreign law.
SECTION 10.03 Contribution
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
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Guarantee, such Funding Guarantor shall be entitled to a contribution from each
other Guarantor in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by the Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to its Guarantee.
SECTION 10.04 Execution and Delivery of Guarantees
To further evidence the Guarantees set forth in Section 10.01, each
Guarantor hereby agrees that a notation relating to such Guarantees shall be
endorsed on each Security authenticated and delivered by the Trustee and
executed by either manual or facsimile signature of two Officers of each
Guarantor.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation relating to such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee authenticates such
Security or at any time thereafter, such Guarantor's Guarantee of such Security
shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 10.05 Addition of Guarantors
(a) If any Subsidiary of the Company guarantees any Funded Indebtedness of
the Company other than the Securities at any time subsequent to the Issue Date
(including, without limitation, following any release of such Subsidiary
pursuant to Section 10.06 from any Guarantee previously provided by it under
this Article 10), then the Company shall (i) cause the Securities to be equally
and ratably guaranteed by such Subsidiary, but only to the extent that the
Securities are not already guaranteed by such Subsidiary on reasonably
comparable terms and (ii) cause such Subsidiary to execute and deliver a
supplemental indenture evidencing its provision of a Guarantee in accordance
with clause (b) below.
(b) Any Person that was not a Guarantor on the Issue Date may become a
Guarantor by executing and delivering to the Trustee (i) a supplemental
indenture in form and substance satisfactory to the Trustee, which subjects such
Person to the provisions (including the representations and warranties) of this
Indenture as a Guarantor and (ii) an Opinion of Counsel and Officers'
Certificate to the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the legal, valid, binding
and enforceable obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be acceptable to
the Trustee in its discretion and provided that no opinion need be rendered
concerning the enforceability of the Guarantee).
SECTION 10.06 Release of Guarantee
Notwithstanding anything to the contrary in this Article 10, in the event
that any Guarantor shall no longer be a guarantor of any Funded Indebtedness of
the Company other than the Securities, and so long as no Default or Event of
Default shall have occurred or be continuing, such Guarantor, upon giving notice
to the Trustee to the foregoing effect, shall be deemed to be released from all
of its obligations under this Indenture and the Guarantee of such Guarantor
shall be of no further force or effect. Following the receipt by the Trustee of
any such notice, the Company shall cause this Indenture to be amended as
provided in Section 9.01; provided, however, that the failure to so amend this
Indenture shall not affect the validity of the termination of the Guarantee of
such Guarantor.
SECTION 10.07 Consent to Jurisdiction and Service of Process
Each Guarantor that is not organized under the laws of the United States
(including the States and the District of Columbia) (each a "Non-U.S.
Guarantor") hereby appoints the principal office of CT Corporation System in The
City of New York which, on the date hereof, is located at 1633 Broadway, New
York, New York 10019, as the authorized agent thereof (the "Authorized Agent")
upon whom process may be served in
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any action, suit or proceeding arising out of or based on this Indenture or the
Securities which may be instituted in the Supreme Court of the State of New York
or the United States District Court for the Southern District of New York, in
either case in The Borough of Manhattan, The City of New York, by the Holder of
any Security, and each Non-U.S. Guarantor hereby waives any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
expressly and irrevocably accepts and submits, for the benefit of the Holders
from time to time of the Securities, to the nonexclusive jurisdiction of any
such court in respect of any such action, suit or proceeding, for itself and
with respect to its properties, revenues and assets. Such appointment shall be
irrevocable unless and until the appointment of a successor authorized agent for
such purpose, and such successor's acceptance of such appointment, shall have
occurred. Each Non-U.S. Guarantor agrees to take any and all actions, including
the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent with respect to any such action shall be
deemed, in every respect, effective service of process upon any such Non-U.S.
Guarantor. Notwithstanding the foregoing, any action against any Non-U.S.
Guarantor arising out of or based on any Security may also be instituted by the
Holder of such Security in any court in the jurisdiction of organization of such
Non-U.S. Guarantor, and such Non-U.S. Guarantor expressly accepts the
jurisdiction of any such court in any such action. The Company shall require the
Authorized Agent to agree in writing to accept the foregoing appointment as
agent for service of process.
SECTION 10.08 Waiver of Immunity
To the extent that any Non-U.S. Guarantor or any of its properties, assets
or revenues may have or may hereafter become entitled to, or have attributed to
it, any right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any thereof,
from set-off or counterclaim, from the jurisdiction of any court, from service
of process, from attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with this Indenture or the Securities, such Non-U.S.
Guarantor, to the maximum extent permitted by law, hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement.
SECTION 10.09 Judgment Currency
Each Non-U.S. Guarantor agrees to indemnify the Trustee and each Holder
against any loss incurred by it as a result of any judgment or order being given
or made and expressed and paid in a currency (the "Judgment Currency") other
than United States dollars and as a result of any variation as between (i) the
rate of exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in The City of New York at which the Trustee or such Holder on
the date of payment of such judgment or order is able to purchase United States
dollars with the amount of the Judgment Currency actually received by the
Trustee or such Holder. The foregoing indemnity shall constitute a separate and
independent obligation of each Non-U.S. Guarantor and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, United States
dollars.
31
<PAGE> 37
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA sec. 318(c) the imposed duties shall control.
SECTION 11.02 Notices
Any notice or communication by the Company, the Guarantors or the Trustee
to the others is duly given if in writing and delivered in Person or mailed by
first-class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company or the Guarantors:
Union Texas Petroleum Holdings, Inc.
1330 Post Oak Boulevard
Houston, Texas 77056
Attention: General Counsel
If to the Trustee:
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
The Company, the Guarantors or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company or any Guarantor mails a notice or communication to Holders,
it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03 Communication by Holders with Other Holders
Holders may communicate pursuant to TIA sec. 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Company, the
Guarantors, the Trustee, the Registrar and anyone else shall have the protection
of TIA sec. 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company or such Guarantor
shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 11.05) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
32
<PAGE> 38
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 11.05) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been complied with.
SECTION 11.05 Statements Required in Certificate or Opinion
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 11.06 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or the Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07 Legal Holidays
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in any of The City of New York, Chicago, Illinois or at a place of
payment are authorized or obligated by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08 No Recourse Against Others
A director, officer, employee or stockholder of the Company or any
Guarantor, as such, shall not have any liability for any obligations of the
Company or such Guarantor under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability.
SECTION 11.09 Governing Law
This Indenture and the Securities shall be governed by and constructed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law.
SECTION 11.10 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company, any Guarantor or any other Subsidiary of the Company.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.11 Successors
All agreements of the Company and the Guarantors in this Indenture and the
Securities shall bind their respective successors. All agreements of the Trustee
in this Indenture shall bind its successor.
33
<PAGE> 39
SECTION 11.12 Severability
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.13 Counterpart Originals
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.14 Trustee as Paying Agent and Registrar
The Company initially appoints the Trustee as Paying Agent and Registrar.
SECTION 11.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
34
<PAGE> 40
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
UNION TEXAS PETROLEUM HOLDINGS, INC.
By:
-------------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-------------------------------------
Title:
UNION TEXAS EAST KALIMANTAN LIMITED
By:
-------------------------------------
Title:
UNION TEXAS PETROLEUM ENERGY CORPORATION
By:
-------------------------------------
Title:
UNION TEXAS INTERNATIONAL CORPORATION
By:
-------------------------------------
Title:
UNION TEXAS PRODUCTS CORPORATION
By:
-------------------------------------
Title:
UNISTAR, INC.
By:
-------------------------------------
Title:
35
<PAGE> 41
EXHIBIT A
[FACE OF SECURITY]
UNION TEXAS PETROLEUM HOLDINGS, INC.
% SENIOR NOTE DUE
CUSIP 908640
No. $
Union Texas Petroleum Holdings, Inc., a Delaware corporation (the
"Company"), for value received promises to pay to or
registered assigns, the principal sum of Dollars on
.
Interest Payment Dates: 15 and 15
Record Dates: 1 and 1
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
[SEAL] UNION TEXAS PETROLEUM HOLDINGS, INC.
By:
-------------------------------
By:
-------------------------------
Certificate of Authentication:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee, certifies that this is
one of the Securities referred to
in the within-mentioned Indenture.
By:
-------------------------------
Authorized Signature
A-1
<PAGE> 42
[REVERSE OF SECURITY]
UNION TEXAS PETROLEUM HOLDINGS, INC.
% SENIOR NOTE DUE
1. Interest. Union Texas Petroleum Holdings, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this
Security at % per annum from , 1994 until maturity. The
Company will pay interest semiannually on and of
each year (each an "Interest Payment Date"), or if any such day is not a
Business Day, on the next succeeding Business Day. Interest on the Securities
will accrue from the most recent Interest Payment Date on which interest has
been paid or, if no interest has been paid, from , 1994;
provided, that if there is no existing Default in the payment of interest, and
if this Security is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be , 1994. The Company shall pay
interest on overdue principal and premium, if any, from time to time on demand
at a rate equal to the interest rate then in effect; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender this
Security to a Paying Agent to collect principal payments. The Company will pay
the principal of, premium, if any, and interest on the Securities in money of
the United States of America that at the time of payment is legal tender for
payment of public and private debts. The Company, however, may pay such amounts
by check payable in such money. It may mail an interest check to a Holder's
registered address.
3. Ranking and Guarantees. The Securities will be senior unsecured
obligations of the Company. The Company's obligations to pay principal, premium,
if any, and interest with respect to the Securities are unconditionally
guaranteed on a joint and several basis (the "Guarantees") by the guarantors
(the "Guarantors") parties to the Indenture. Each of the Guarantees will be an
unsecured obligation of the Guarantor providing such Guarantee. Certain
limitations to the obligations of the Guarantors are set forth in further detail
in the Indenture. References herein to the Indenture or the Securities shall be
deemed also to refer to the Guarantees set forth in the Indenture except where
the context otherwise requires.
4. Paying Agent and Registrar. Initially, The First National Bank of
Chicago, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-registrar
without notice to any Holder. The Company may act in any such capacity.
5. Indenture. The Company issued the Securities under an Indenture dated as
of , 1994 (the "Indenture") among the Company, the Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code sec.sec. 77aaa-77bbbb) as in effect on the date
of execution of the Indenture. The Securities are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. The Securities are unsecured general obligations of the Company limited
to $200,000,000 in aggregate principal amount.
6. Optional Redemption. The Securities may be redeemed at any time, at the
option of the Company, in whole or from time to time in part, at a price equal
to 100% of their principal amount plus accrued and unpaid interest, if any, to
the Redemption Date plus the Make-Whole Premium, if any (the "Redemption
Price").
A-2
<PAGE> 43
The amount of the Make-Whole Premium with respect to any Security (or portion
thereof) to be redeemed will be the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption
Date, of:
(A) each interest payment that, but for such redemption, would have
been payable on the Security (or portion thereof) being
redeemed on each Interest Payment Date occurring after the
Redemption Date (excluding any accrued interest for the
period prior to the Redemption Date); and
(B) the principal amount that, but for such redemption, would have
been payable at the final maturity of the Security (or
portion thereof) being redeemed;
over
(ii) the principal amount of the Security (or portion thereof) being
redeemed.
The present values of interest and principal payments referred to in clause (i)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield. The Make-Whole Premium shall be
calculated by an Independent Investment Banker (as defined in the Indenture).
For purposes of determining the Make-Whole Premium, "Treasury Yield" means
a rate of interest per annum equal to the weekly average yield to maturity of
United States Treasury Notes that have a constant maturity that corresponds to
the remaining term to maturity of the Securities, calculated to the nearest
1/12 of a year (the "Remaining Term"). The Treasury Yield will be determined as
of the third business day immediately preceding the applicable Redemption Date.
The weekly average yields of United States Treasury Notes will be determined by
reference to the most recent statistical release published by the Federal
Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or
any successor release (the "H.15 Statistical Release"). If the H.15 Statistical
Release sets forth a weekly average yield for United States Treasury Notes
having a constant maturity that is the same as the Remaining Term, then the
Treasury Yield will be equal to such weekly average yield. In all other cases,
the Treasury Yield will be calculated by interpolation, on a straight-line
basis, between the weekly average yields on the United States Treasury Notes
that have a constant maturity closest to and greater than the Remaining Term and
the United States Treasury Notes that have a constant maturity closest to and
less than the Remaining Term (in each case as set forth in the H.15 Statistical
Release). Any weekly average yields so calculated by interpolation will be
rounded to the nearest 1/100 of 1%, with any figure of 1/200% or above being
rounded upward. If weekly average yields for United States Treasury Notes are
not available in the H.15 Statistical Release or otherwise, then the Treasury
Yield will be calculated by interpolation of comparable rates selected by the
Independent Investment Banker.
Periodic interest installments with respect to which the Interest Payment
Date is on or prior to any Redemption Date will be payable to the Holders of
record at the close of business on the relevant record dates referred to herein,
all as provided in the Indenture.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities to be redeemed at
his registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, provided that if all the
Securities of a Holder are to be redeemed, the entire outstanding amount of
Securities held by such Holder, even if not a whole multiple of $1,000, will be
redeemed. On and after the Redemption Date interest will cease to accrue on
Securities or on the portions thereof called for redemption, as the case may be.
7. Denominations, Transfer, Exchange. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the
A-3
<PAGE> 44
transfer of any Security or portion of a Security selected for redemption. Also,
it need not exchange or register the transfer of any Securities for a period of
15 days before a selection of Securities to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Security shall be
treated as its owner for all purposes.
9. Amendments and Waivers. Subject to certain exceptions and limitations,
the Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Securities, and any existing Default under, or compliance with any
provision of, the Indenture may be waived (other than any continuing Default or
Event of Default in the payment of the principal of or premium, if any, or
interest on the Securities) by the Holders of at least a majority in principal
amount of the Securities then outstanding in accordance with the terms of the
Indenture. Without the consent of any Holder, the Company, the Guarantors and
the Trustee may amend or supplement the Indenture or the Securities to cure any
ambiguity, omission, defect or inconsistency; to provide for uncertificated
Securities in addition to or in place of certificated Securities; to provide for
the assumption of the obligations of the Company and each Guarantor under the
Indenture to Holders in the case of the merger, consolidation or sale or other
disposition of all or substantially all of the assets of the Company or any
Guarantor; to reflect the release of any Guarantor from its Guarantee to the
extent permitted by the Indenture; to make any change that does not materially
adversely affect the rights of any Holder; or to comply with the qualification
of the Indenture under the Trust Indenture Act of 1939, as amended.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of the Indenture (and the obligation of the Company to
obtain any such consent otherwise required from such Holder) may be subject to
the requirement that such Holder shall have been the Holder of record of any
Securities with respect to which such consent is required or sought as of a date
identified by the Trustee in a notice furnished to Holders in accordance with
the terms of the Indenture.
Without the consent of each Holder affected, the Company may not (i) reduce
the amount of Securities whose Holders must consent to an amendment, supplement
or waiver, (ii) reduce the rate of or change the time for payment of interest,
including default interest, on any Security, (iii) reduce the principal of or
change the fixed maturity of any Security or alter the premium or other
provisions with respect to redemption, (iv) make any Security payable in money
other than that stated in the Security, (v) impair the right to institute suit
for the enforcement of any payment of principal of, or premium, if any, or
interest on any Security, (vi) make any change in the percentage of principal
amount of Securities necessary to waive compliance with certain provisions of
the Indenture or (vii) waive a continuing Default or Event of Default in the
payment of principal of or premium, if any, or interest on the Securities.
10. Defaults and Remedies. Events of Default include: default in payment of
interest on the Securities for 30 days; default in payment of principal of or
premium, if any, on the Securities; failure by the Company or any Guarantor for
60 days after written notice by the Trustee or by the Holders of at least 25% of
the aggregate principal amount of the Securities then outstanding to it to
comply with any of its other covenants or agreements in the Indenture, the
Guarantees or the Securities; the acceleration of the maturity of any
Indebtedness of the Company or any Restricted Subsidiary (other than the
Securities or any Non-Recourse Indebtedness) that has an outstanding principal
amount of $20 million or more individually or in the aggregate; a default in the
payment of principal or interest in respect of any Indebtedness of the Company
or any Restricted Subsidiary (other than the Securities or any Non-Recourse
Indebtedness) having an outstanding principal amount of $20 million or more
individually or in the aggregate, and such default shall be continuing for a
period of 30 days without the Company or such Restricted Subsidiary, as the case
may be, effecting a cure of such default; a judgment or order for the payment of
money in excess of $20 million (net of applicable insurance coverage which is
acknowledged in writing by the insurer) having been rendered against the Company
or any Restricted Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days; or certain events involving
bankruptcy, insolvency or reorganization of the Company or any Restricted
Subsidiary. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
may declare the principal of, and premium, if
A-4
<PAGE> 45
any, and interest on all the Securities to be immediately due and payable,
except that in the case of an Event of Default arising from certain events of
bankruptcy, insolvency or reorganization of the Company or any Restricted
Subsidiary, all outstanding Securities become due and payable immediately
without further action or notice. The amount due and payable upon the
acceleration of any Security is equal to 100% of the principal amount thereof
plus accrued interest to the date of payment. Holders may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee may
require indemnity reasonably satisfactory to it before it enforces the Indenture
or the Securities. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Securities may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders notice
of any continuing default (except a default in payment of principal or interest)
if it determines that withholding notice is in their interests. The Company must
furnish an annual compliance certificate to the Trustee.
11. Trustee Dealings with Company and Guarantors. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company, the Guarantors or their respective Affiliates,
and may otherwise deal with the Company, the Guarantors or their respective
Affiliates, as if it were not Trustee.
12. No Recourse against Others. A director, officer, employee or
stockholder, as such, of the Company or any Guarantor shall not have any
liability for any obligations of the Company or such Guarantor under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Securities.
13. Authentication. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
14. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to:
Union Texas Petroleum Holdings, Inc.
1330 Post Oak Boulevard
Houston, Texas 77056
Attention: General Counsel
A-5
<PAGE> 46
FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEES
Each Guarantor (which term includes any successor Person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture, the
due and punctual payment of the principal of, and premium, if any, and interest
on the Securities and all other amounts due and payable under the Indenture and
the Securities by the Company.
The obligations of the Guarantors to the Holders of Securities and to the
Trustee pursuant to the Guarantees and the Indenture are expressly set forth in
Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Guarantees.
UNION TEXAS EAST KALIMANTAN LIMITED
By:
-------------------------------
By:
-------------------------------
UNION TEXAS PETROLEUM ENERGY
CORPORATION
By:
-------------------------------
By:
-------------------------------
UNION TEXAS INTERNATIONAL
CORPORATION
By:
-------------------------------
By:
-------------------------------
UNION TEXAS PRODUCTS CORPORATION
By:
-------------------------------
By:
-------------------------------
UNISTAR, INC.
By:
-------------------------------
By:
-------------------------------
A-6
<PAGE> 47
FORM OF NOTATION ON SECURITY
RELATING TO COMPANY GUARANTEE
The Company (which term includes any successor Person under the Indenture)
has fully, unconditionally and absolutely guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the Indenture, the obligations of
the Guarantors pursuant to the Guarantees set forth in Article 10 of the
Indenture.
The obligations of the Company to the Holders of Securities and to the
Trustee pursuant to the Company Guarantee and the Indenture are expressly set
forth in Article 10 of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Company Guarantee.
UNION TEXAS PETROLEUM HOLDINGS, INC.
By:
-------------------------------
By:
-------------------------------
A-7
<PAGE> 48
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Date: Your Signature:
------------------ -------------------------------------
(Sign exactly as your name appears on
the face of this Security)
Signature Guarantee:
----------------------------------------------------------
(Participant in a Recognized Signature
Guaranty Medallion Program)
A-8
<PAGE> 1
Exhibit 5.1
Board of Directors Union Texas Petroleum Holdings, Inc. Page Two
[LETTERHEAD]
March 15, 1994
Board of Directors
Union Texas Petroleum Holdings, Inc.
1330 Post Oak Boulevard
Houston, Texas 77056
Gentlemen:
In my capacity as General Counsel, Vice President-Administration
and Secretary of Union Texas Petroleum Holdings, Inc. (the "Company"), I have
acted as counsel in connection with the Company's Registration Statement on
Form S-3 (the "Registration Statement") relating to registration under the
Securities Act of 1933, as amended, of the offering and sale of up to
$200,000,000 principal amount of the Company's Senior Notes due 2004 (the
"Notes") as guaranteed (the "Guarantees") by certain subsidiaries of the
Company (the "Guarantors").
As the basis for the opinion hereinafter expressed, I have
examined such statutes, regulations, corporate records and documents,
certificates of corporate and public officials and other instruments as I have
deemed necessary or advisable for the purposes of this opinion. In such
examination, I have assumed the authenticity of all documents submitted to me
as originals and the conformity with the original documents of all documents
submitted to me as copies.
Based on the foregoing and on such legal considerations as I deem
relevant, I am of the opinion that the Notes and the Guarantees have been duly
and validly authorized by all necessary corporate action by the Company and the
Guarantors, and assuming due execution and delivery of the Indenture and the
qualification
<PAGE> 2
Board of Directors Union Texas Petroleum Holdings, Inc. Page Two
thereof under the Trust Indenture Act of 1939, as amended, the due
execution and authentication of the Notes as specified in the Indenture and
delivery of the Notes and the Guarantees against payment therefor, the Notes
and the Guarantees will constitute valid and legally binding obligations of the
Company and the Guarantors, respectively, subject to any applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to general
equitable principles.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of my name under the heading "Legal
Matters" in the Registration Statement.
Very truly yours,
Newton W. Wilson, III
<PAGE> 1
EXHIBIT 12.1
RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------------------------------
1989 1990 1991 1992 1993
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Net pretax income....................... $ 246,650 $ 268,886 $ 447,972 $ 213,206 $ 26,983(1)
Fixed charges
Interest expense...................... 72,099 82,244 88,377 20,261 30,506
Preferred stock dividends of a
subsidiary......................... 7,994 11,791 5,934 4,674 1,681
Capitalized debt cost................. 2,736 2,677 3,044 913 1,536
Interest portion of rent expenses..... 6,521 6,915 6,201 2,840 2,777
--------- --------- --------- --------- ---------
Total fixed charges........... 89,350 103,627 103,556 28,688 36,500
Less: Capitalized interest, net....... 14,169 13,313 39,852 14,408 4,623
--------- --------- --------- --------- ---------
75,181 90,314 63,704 14,280 31,877
Earnings before fixed charges........... $ 321,831 $ 359,200 $ 511,676 $ 227,486 $ 58,860
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Ratio of earnings to fixed charges...... 3.60 3.47 4.94 7.93 1.61
</TABLE>
- ---------------
(1) During 1993, the Company recorded a non-cash charge to depreciation,
depletion and amortization of $103 million pretax ($48 million after-tax)
for the write-down of its investment in the U.K. North Sea's Piper field.
Excluding the effect of the Piper write-down, the ratio of earnings to fixed
charges for 1993 would have been 4.45.
<PAGE> 1
EXHIBIT 12.2
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
YEAR ENDED DECEMBER 31, 1993
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
PRO
HISTORICAL ADJUSTMENTS(1) FORMA
---------- -------------- -----
<S> <C> <C> <C>
Net pretax income(2)..................................... $ 26,983 $ (7,293) $ 19,690
Fixed Charges
Interest expense....................................... 30,506 7,293 37,799
Preferred stock dividends of a subsidiary.............. 1,681 1,681
Capitalized debt cost.................................. 1,536 1,536
Interest portion of rent expenses...................... 2,777 2,777
-------- --------- --------
Total fixed charges............................ 36,500 7,293 43,793
Less: Capitalized interest, net........................ 4,623 4,623
-------- --------- --------
31,877 7,293 39,170
Earnings before fixed charges............................ $ 58,860 58,860
-------- --------- --------
-------- --------- --------
Ratio of earnings to fixed charges....................... 1.61 1.34
</TABLE>
- ------------
(1) The pro forma adjustments give effect to increased interest expense, as if
such transaction had taken place January 1, 1993 as a result of the issuance
of $200 million of the Notes at a pro forma annual interest rate of 7.8% and
the application of proceeds to the reduction of debt under the revolving
credit facility and the uncommitted and unsecured lines of credit.
(2) During 1993, the Company recorded a non-cash charge to depreciation,
depletion and amortization of $103 million pretax ($48 million after-tax)
for the write-down of its investment in the U. K. North Sea's Piper field.
Excluding the effect of the Piper write-down, the historical ratio of
earnings to fixed charges for 1993 would have been 4.45. Excluding the
effect of the Piper write-down, this pro forma ratio would have been 3.71.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 26, 1994 appearing on page 29 of Union Texas Petroleum Holdings, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1993. We also consent
to the references to us under the headings "Experts" and "Selected Consolidated
Financial Data" in such Prospectus. However, it should be noted that Price
Waterhouse has not prepared or certified such "Selected Consolidated Financial
Data."
PRICE WATERHOUSE
Houston, Texas
March 14, 1994
<PAGE> 1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305((b)(2)______
____________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
Union Texas Petroleum Holdings, Inc. Delaware 76-0040040
Union Texas East Kalimantan Limited The Bahamas N/A
Union Texas Petroleum Energy Corporation Delaware 76-0351014
Union Texas International Corporation Delaware 76-6044301
Union Texas Products Corporation Delaware 76-0040039
Unistar, Inc. Delaware 76-0108150
(Exact name of obligor as specified (State or other (I.R.S. Employer
in its charter) jurisdiction of identification No.)
incorporation or
organization
1330 Post Oak Boulevard
Houston, Texas 77056
(Address of principal executive offices) (Zip code)
____________
% Senior Notes due 2004
(Title of indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation Washington, D.C., The Board of Governors
of the Federal Reserve System, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF
THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the Trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not applicable
9. Not applicable
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 26 to the Registration Statement on Form S-3
of The CIT Group Holdings, Inc., filed with the Securities and Exchange
Commission of February 16, 1993 (Registration No. 33-58418).
<PAGE> 3
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Chicago and State of Illinois, on the 14th day of March, 1994.
The First National Bank of Chicago,
Trustee
By: /s/ STEVEN M. WAGNER
_________________________
Steven M. Wagner
Vice President and
Senior Counsel Corporate
Trust Services Division
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED BY
SECTION 321(B) OF THE ACT
March 14, 1994
Securities and Exchange Commission,
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture among Union Texas
Petroleum Holdings, Inc., as Issuer, Union Texas Kalimantan Limited, Union
Texas Petroleum Energy Corporation, Union Texas International Corporation,
Union Texas Products Corporation, and Unistar, Inc., as Guarantors, and The
First National Bank of Chicago, as trustee, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
Authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request
therefore.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ STEVEN M. WAGNER
_______________________________
Steven M. Wagner
Vice President and Senior Counsel
Corporate Trust Services Division
<PAGE> 5
EXHIBIT 7
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State, Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC -- BALANCE SHEET
<TABLE>
<CAPTION>
C400
----------
DOLLAR AMOUNTS BIL MIL
IN THOUSANDS RCFD THOU (-)
--------------------- ------ ---------- -----
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from
Schedule RCA-A):
a. Noninterest-bearing balances and currency and
coin(1)............................................... 0081 3,552,441 1.a.
b. Interest-bearing balances(2).......................... 0071 5,687,085 1.b.
2. Securities (from Schedule RC-B).......................... 0390 470,252 2
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank and
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal Funds sold.................................... 0276 3,985,638 3.a.
b. Securities purchased under agreements to resell....... 0277 880,886 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C)......................................... RCFD 2122 13,308,340 4.a.
b. LESS: Allowance for loan and lease losses............. RCFD 3123 339,885 4.b.
c. LESS: Allocated transfer risk reserve................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance,
and reserve (item 4.a minus 4.b and 4.c).............. 2125 12,968,455 4.d.
5. Assets held in trading accounts.......................... 2146 3,109,630 5.
6. Premises and fixed assets (including capitalized
leases).................................................. 2145 497,559 6.
7. Other real estate owned (from Schedule RC-M)............. 7 2150 101,446 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................ 2130 6,375 8.
9. Customers' liability to this bank on acceptances
outstanding.............................................. 2155 477,130 9.
10. Intangible assets (from Schedule (RC-M).................. 2143 147,257 10.
11. Other assets (from Schedule RC-F)........................ 2160 2,607,308 11.
12. Total assets (sum of items 1 through 11)................. 2170 34,491,462 12.
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State, Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC -- CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN THOUSANDS BIL MIL THOU
--------------------- ----------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and
C from Schedule RC-E, part I).......................... RCON 2200 15,870,533 13.a.
(1) Noninterest-bearing(1)............................. RCON 6631 7,494,138 13.a.(1)
(2) Interest-bearing................................... RCON 6636 8,376,395 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E, part II)................. RCFN 2200 7,254,022 13.b.
(1) Noninterest-bearing................................ RCFN 6631 352,283 13.b.(1)
(2) Interest-bearing................................... RCFN 6636 6,901,739 13.b.(2)
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the
bank and of its Edge and Agreement subsidiares, and in
IBFs:
a. Federal funds purchased............................. RCFD 0278 2,649,907 14.a.
b. Securities sold under agreements to repurchase...... RCFD 0279 171,899 14.b.
15. Demand notes issued to the U.S. Treasury............... RCON 2840 106,087 15.
16. Other borrowed money................................... RCFD 2850 1,782,869 16.
17. Mortgage, indebtedness and obligations under
capitalized leases..................................... RCFD 2910 267,000 17.
18. Bank's liability on acceptance executed and
outstanding............................................ RCFD 2920 477,130 18.
19. Subordinated notes and debentures...................... RCFD 3200 1,175,000 19.
20. Other liabilities (from Schedule RC-G)................. RCFD 2930 2,049,329 20.
21. Total liabilities (sum of items 13 through 20)......... RCFD 2948 31,803,776 21.
22. Limited-Life preferred stock and related surplus....... RCFD 3282 --0-- 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.......... RCFD 3838 --0-- 23.
24. Common stock........................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred
stock)................................................. RCFD 3839 2,254,940 25.
26. a. Undivided profits and capital reserves.............. RCFD 3632 232,478 26.a.
b. LESS: Net unrealized loss on marketable equity
securities.......................................... RCFD 0297 (299) 26.b.
27. Cumulative foreign currency translation adjustments.... RCFD 3284 (889) 27.
28. Total equity capital (sum of items 23 through 27)...... RCFD 3210 2,687,686 28.
29. Total liabilities, limited-life preferred stock, and
equity capital (sum of items 21, 22 and 28)............ RCFD 3300 34,491,462 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C> <C>
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1992.................... RCFA 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted standards by a certified public accounting firm which submits a
report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
