Exhibit 10.67
EXECUTION COPY
FIRST AMENDMENT dated as of March 31, 1995 (the
"Amendment"), to CREDIT AGREEMENT II dated as of April
14, 1987, as amended and restated through April 15,
1993 (the "Credit Agreement"), among DIAMOND SHAMROCK,
INC., a Delaware corporation (the "Borrower"), DIAMOND
SHAMROCK REFINING AND MARKETING COMPANY, a Delaware
corporation ("R&M"), the corporations listed in
Schedule I to the Credit Agreement (together with R&M,
collectively referred to as the "Guarantors"), the
banks party to the Credit Agreement (the "Banks") and
CHEMICAL BANK, as agent for the Banks (the "Agent").
A. The Borrower and the Guarantors have requested that
the Banks amend certain provisions of the Credit Agreement. The Banks
are willing to enter into this Amendment, subject to the terms and
conditions set forth herein.
B. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in the Credit
Agreement.
Accordingly, in consideration of the mutual agreements
contained in this Amendment and other good and valuable consideration,
the sufficiency and receipt of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Amendments to Article I. (a) The definition of
"Fixed Charge Coverage Ratio" in Article I of the Credit Agreement is
hereby deleted.
(b) Clause (ii) of the definition of "Funded Debt" in
Article I of the Credit Agreement is hereby amended to read in its
entirety as follows:
(ii) all Guarantees of obligations of the type described in
clause (i) above (other than (a) Guarantees by any Subsidiary of
obligations of the Borrower or any other Subsidiary, and (b)
Guarantees by the Borrower of obligations of any Subsidiary);
and
(c) Article I of the Credit Agreement is hereby amended
to include the following definition of "Interest Coverage Ratio":
"Interest Coverace Ratio", with respect to any period,
shall mean the ratio of: (a) the sum of (i) Consolidated
Adjusted Net Income of the Borrower and the Subsidiaries for
such period, (ii) interest expense deducted in determining such
Consolidated Adjusted Net Income, (iii) depreciation,
amortization and taxes deducted in determining such Consolidated
Adjusted Net Income, and (iv) other noncash items deducted in
determining such Consolidated Adjusted Net Income, to (b) total
interest expense of the Borrower and the Subsidiaries, on a
consolidated basis, for such period.
(d) Article I of the Credit Agreement is hereby amended
to include the following definition of "Level IV Pricing Period":
"Level IV Pricing Period" shall have the meaning assigned
to such term in Section 2.16(a).
(e) Article I of the Credit Agreement is hereby amended
to include the following definition of "Level V Pricing Period":
"Level V Pricing Period" shall have the meaning assigned to
such term in Section 2.16(a).
(f) The definition of "Maturity Date" in Article I of the
Credit Agreement is hereby amended to read in its entirety as follows:
"Maturity Date" shall mean March 29, 1996.
(g) The definition of "Periodic Fixed Charge Coverage
Ratio" in Article I of the Credit Agreement is hereby deleted.
(h) Article I of the Credit Agreement is hereby amended
to include the following definition of "Periodic Interest Coverage
Ratio":
"Periodic Interest Coverage Ratio" shall mean, as
of any date, the Interest Coverage Ratio for the 12-month period
(treated as one period) ending on the last day of the month
immediately preceding such date.
SECTION 2. Amendments to Section 2.05.
(a) Section 2.05(b) and 2.05(c) of the Credit Agreement are amended to
read in their entirety as follows:
(b) Subject to the provisions of Sections 2.08 and 2.10,
Certificate of Deposit Loans shall bear interest at a rate per
annum (computed on the basis of the actual number of days
elapsed over a year of 360 days) equal to the Adjusted CD Rate
for the Interest Period in effect for such Loan plus, for each
day such Certificate of Deposit Loan is outstanding, a rate per
annum equal to (i) 0.385% per annum if such day falls within a
Level I Pricing Period, (ii) 0.525% per annum, if such day falls
within a Level II Pricing Period, (iii) 0.500% per annum, if
such day falls within a Level III Pricing Period, (iv) 0.475%
per annum, if such day falls within a Level IV Pricing Period,
or (v) 0.700% per annum, if such day falls within a Level V
Pricing Period. Interest on each Certificate of Deposit Loan
shall be payable on each applicable Interest Payment Date. The
Adjusted CD Rate shall be determined by the Agent and such
determination shall be conclusive absent manifest error. The
Agent shall promptly advise the Borrower and each Bank of such
determination.
(c) Subject to the provisions of Sections 2.08 and 2.10,
Eurodollar Standby Loans shall bear interest at a rate per annum
(computed on the basis of the actual number of days elapsed over
a year of 360 days) equal to the LIBO Rate for the Interest
Period in effect for such Loan plus, for each day such
Eurodollar Standby Loan is outstanding, a rate per annum equal
to (i) 0.260% per annum, if such day falls within a Level I
Pricing Period, (ii) 0.400% per annum, if such day falls within
a Level II Pricing Period, (iii) 0.375% per annum, if such day
falls within a Level III Pricing Period, (iv) 0.350% per annum,
if such day falls within a Level IV Pricing Period, or (v)
0.575% per annum, if such day falls within a Level V Pricing
Period. Interest on each Eurodollar Borrowing shall be payable
on each applicable Interest Payment Date. The LIBO Rate shall
be determined by the Agent and such determination shall be
conclusive absent manifest error. The Agent shall promptly
advise the Borrower and each Bank of such determination.
(b) Section 2.05(d) of the Credit Agreement is hereby
deleted.
SECTION 3. Amendments to Section 2.06.
(a) Section 2.06(b) of the Credit Agreement is hereby amended by
deleting the reference to "April 15, 1993" and replacing it with
"March 24, 1995".
(b) Sections 2.06(c) and 2.06(d) of the Credit Agreement
are hereby amended to read in their entirety as follows:
(c) The Borrower agrees to pay to each Bank, through the
Agent, on each March 31, June 30, September 30 and December 31
and on the date on which the Commitment of such Bank shall be
terminated as provided herein, a facility fee (a "Facility Fee")
for each day during the period from and including the Effective
Date to and including the date on which the Commitment of such
Bank is terminated, at a rate per annum equal to (i) 0.090% per
annum, if such day falls within a Level I Pricing Period, (ii)
0.100% per annum, if such day falls within a Level II Pricing
Period, (iii) 0.125% per annum, if such day falls within a Level
III Pricing Period, (iv) 0.150% per annum, if such day falls
within a Level IV Pricing Period, or (v) 0.175% per annum, if
such day falls within a Level V Pricing Period, in each case on
the average daily amount of the Commitment of such Bank, whether
used or unused, during the preceding quarter (or shorter period
commencing on the Effective Date or ending with the Maturity
Date or any date on which the Commitment of such Bank shall be
terminated). All Facility Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days. The
Facility Fee due to each Bank shall commence to accrue on the
Effective Date and shall cease to accrue on the earlier of the
Maturity Date and the termination of the Commitment of such Bank
as provided herein.
(d) It is acknowledged that the Facility Fee has been
determined based on the understanding that the Banks will not be
required to maintain capital against their Commitments under
currently applicable laws, regulations and guidelines. In the
event that any Bank shall be advised by any governmental or
regulatory authority, or shall otherwise determine on the basis
of any order, ruling, decree, pronouncement or other formal or
informal governmental or regulatory action or communication,
that such understanding is incorrect, then such Bank may notify
the Borrower, the Agent and the other Banks of such
determination and request that the Facility Fee be increased in
order to compensate therefor (an "Increase Notice") and, upon
notice by the Required Banks to the Agent that such increase is
required, then, without the necessity of any approval by the
Borrower, effective as of the date of the Increase Notice, the
Facility Fee shall be increased by (i) 0.075% per annum for each
day falling witlin a Level V Pricing Period or (ii) 0.025% per
annum for each day not falling within a Level V Pricing Period,
and the Agent shall notify the Borrower and the Banks thereof.
SECTION 4. Amendments to Section 2.16(a) Section 2.16(a) of
the Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION 2.16. Pricing Periods. (a) Subject to paragraph (b)
below, "Level I Pricing Period" shall mean any period during
which Index Debt shall be rated A- or better by S&P and A3 or
better by Moody's; "Level II Pricing Period" shall mean any
period during which Index Debt shall be rated (i) BBB+ or better
by S&P and Baal by Moody's or (ii) BBB+ by S&P and Baal or
better by Moody's; "Level III Pricing Period" shall mean any
period during which Index Debt shall be rated (i) BBB or better
by S&P and Baa2 by Moody's or (ii) BBB by S&P and Baa2 or better
by Moody's; "Level IV Pricing Period" shall mean any period
during which Index Debt shall be rated (i) BBB- or better by S&P
and Baa3 by Moody's or (ii) BBB- by S&P and Baa3 or better by
Moody's; and "Level V Pricing Period" shall mean any period that
is not a Level I Pricing Period, a Level II Pricing Period, a
Level III Pricing Period or a Level IV Pricing Period, including
any period during which Index Debt shall be unrated by either
S&P or Moody's. "Pricing Period" shall mean a Level I Pricing
Period, a Level II Pricing Period, a Level III Pricing Period, a
Level IV Pricing Period or a Level V Pricing Period.
SECTION 5. Amendment to Section 3.16.
Section 3.16 of the Credit Agreement is hereby amended by deleting all
references to "December 31, 1992" and replacing each such reference
with "December 31, 1994".
SECTION 6. Amendment to Section 6.01. Section 6.01 of the
Credit Agreement is hereby amended to read in its entirety as follows:
SECTION 6.01. Indebtedness. (a) Permit the Total Funded
Debt Ratio at any time to exceed 0.63 to 1.00, (b) in the case
of any Subsidiary now owned or hereafter acquired, permit any
such Subsidiary to create, incur, suffer to exist or assume any
Funded Debt except (i) the obligations of any acquired
Subsidiary present at the time of acquisition or (ii) Funded
Debt if the aggregate amount of such Funded Debt of all
Subsidiaries does not exceed 15% of Consolidated Net Tangible
Assets at such time, or (c) create, incur, suffer to exist or
assume any Indebtedness consisting of Commercial Paper in the
aggregate principal amount at any time in excess of the sum of
the unused Commitments and unused Other Commitments at such
time.
SECTION 7. Amendment to Section 6.02. Clause (n) of Section
6.02 of the Credit Agreement is hereby amended by deleting the
reference to "80%" and replacing it with "100%".
SECTION 8. Amendments to Section 6.05. (a) Section 6.05 of
the Credit Agreement is hereby amended by inserting the following as a
new clause (e) immediately preceding the existing clause (e):
(e) investments in the ordinary course of business in
corporations, partnerships, joint ventures or other entities
primarily engaged in petroleum-related activities in Mexico,
Central America or South America; provided that the aggregate
amount of all such investments pursuant to this subsection (e)
shall not at any time exceed $30,000,000; and
(b) the existing clause (e) of Section 6.05 of the Credit
Agreement will be redesignated as clause (f) and such clause (f) is
hereby amended as follows:
(i) the reference to clause "(d)" is deleted and
replaced with a reference to clause "(e)"; and
(ii) the reference to "this subsection (e)" is
deleted and replaced with a reference to "this subsection
(f)".
SECTION 9. Amendments to Section 6.06. Section
6.06 of the Credit Agreement is hereby amended by
(a) deleting all references to "December 31, 1992" and
replacing each such reference with "December 31, 1994" and (b)
deleting the reference to "$184,087,000" and replacing such reference
with "$200,000,000".
SECTION 10. Amendments to Section 6.08. Section 6.08 of the
Credit Agreement is hereby amended to read in its entirety as follows:
SECTION 6.08. Consolidated Tangible Net Worth. Permit
Consolidated Tangible Net Worth less paid in capital and surplus
attributable to any Preferred Stock (other than treasury stock)
issued and outstanding on the Effective Date plus any treasury
stock of the Borrower (such treasury stock consisting solely of
up to 1,400,000 shares of common stock) to be less than the sum
of (i) $350,000,000 plus (ii) 50% of Consolidated Net Income (to
the extent such Net Income is positive) for the period
commencing on December 31, 1994 and ending on the last day of
the most recently completed fiscal quarter.
SECTION 11. Amendment to Section 6.10.
Section 6.10 of the Credit Agreement is hereby amended to read in its
entirety as follows:
SECTION 6.10. Interest Coverage Ratio. Permit the Periodic
Interest Coverage Ratio at any time to be less than 3.00 to
1.00.
SECTION 12. Amendment to Schedule I. Schedule I to the
Credit Agreement is hereby amended and replaced in its entirety by
Schedule I attached hereto.
SECTION 13. Amendment to Schedule II.
Schedule II to the Credit Agreement is hereby amended by deleting the
reference to "$1.00 par value" with respect to the Shares Authorized
of Diamond Shamrock Refining and Marketing Company and replacing it
with 11 0.01 par value."
SECTION 14. Commitments and Addresses of Banks. The
parties hereby confirm and agree that the current Commitments of the
respective Banks and their respective addresses for notices under the
Credit Agreement are as set forth in Schedule II attached hereto.
SECTION 15. Representations and Warranties. The Borrower
and each of the Guarantors represent and warrant to the Agent and to
each of the Banks that (provided that the representations of each
Guarantor shall be limited to matters relating to the Borrower or such
Guarantor):
(a) This Amendment, and the Credit Agreement as amended
hereby, have been duly authorized, executed and delivered by it
and constitute its legal, valid and binding obligations
enforceable in accordance with their respective terms (subject,
as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws
affecting creditors, rights generally and to general principles
of equity).
(b) The representations and warranties set forth in
Article III of the Credit Agreement are true and correct in all
material respects before and after giving effect to this
Amendment with the same effect as if made on the date hereof,
except to the extent such representations and warranties
expressly relate to an earlier date, in which case they were
true and correct in all material respects on and as of such
earlier date.
(c) As of the date hereof, the Borrower and each
Guarantor is in compliance with all the terms and provisions
contained in the Credit Agreement on its part to be observed as
performed, and at the time of and immediately after giving
effect to this Amendment no Event of Default has occurred and is
continuing and no event which with notice or lapse of time or
both would constitute an Event of Default has occurred and is
continuing.
SECTION 16. Conditions to Effectiveness. The
amendments to the Credit Agreement set forth in this Amendment shall
become effective on March 31, 1995; provided that:
(a) the Agent shall have received counterparts of this
Amendment which, when taken together, bear the signatures of the
Borrower, each of the Guarantors and each Bank;
(b) the Agent shall have received a favorable written
opinion of the Borrower's counsel, addressed to the Banks, to
the effect set forth in Annex I hereto;
(c) the Borrower shall have paid all accrued Fees and
other amounts owing under the Credit Agreement as of March 31,
1995, as well as all fees payable pursuant to the letter
agreement dated March 24, 1995, among Chemical Bank, Chemical
Securities Inc. and the Borrower, and no Loans shall be
outstanding as of such date; and
(d) the conditions to the amendment of the Other Credit
Agreement, as set forth in the First Amendment thereto dated as
of the date hereof, shall have been satisfied.
SECTION 17. Credit Agreement. Except as specifically
amended hereby, the Credit Agreement shall continue in full force and
effect in accordance with the provisions thereof as in existence on
the date hereof. After the date that this Amendment becomes effective
as provided in Section 11 above, any reference to the Credit Agreement
shall mean the Credit Agreement as amended hereby.
SECTION 18. Applicable Law. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 19. Counterparts. This Amendment may be executed
in two or more counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute but
one contract.
SECTION 20. Expenses. The Borrower agrees to reimburse the
Agent for its out-of-pocket expenses in connection with the
preparation and execution of this Amendment, including the fees,
charges and disbursements of Cravath, Swaine & Moore, counsel for the
Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers
as of the day and year first written above.
DIAMOND SHAMROCK, INC.,
DIAMOND SHAMROCK REFINING AND
MARKETING COMPANY,
DIAMOND SHAMROCK STATIONS,
INC.,
DIAMOND SHAMROCK PIPELINE
COMPANY,
DIAMOND SHAMROCK REFINING
COMPANY, L.P.,
SIGMOR CORPORATION,
XRAL STORAGE AND TERMINALING
COMPANY,
THE SHAMROCK PIPE LINE
CORPORATION,
SIGMOR PIPELINE COMPANY,
TOC-DS COMPANY,
D-S SPLITTER, INC.,
D-S PIPE LINE CORPORATION, and
NORTH AMERICAN INTELECOMJI
INC.,
By: /s/ R.C. BECKER
R.C. Becker, in each case,
Vice President and
Treasurer
CHEMICAL BANK, individually
and as Agent,
By: /s/ RONALD POTTER
Ronald Potter
Managing Director
THE CHASE MANHATTAN BANK,
NATIONAL ASSOCIATION,
By: /s/ BETTY LOU J. ROBERT
Betty Lou J. Robert
Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ HELEN A. CARR
Helen A. Carr
Vice President
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By: /s/ LAURA B. SHEPARD
Laura B. Shepard
Vice President
ROYAL BANK OF CANADA,
By: /s/ EVERETT M. HARNER
Everett M. Harner
Manager
NATIONAL WESTMINSTER BANK PLC
New York Branch,
By: /s/ STEPHEN R. PARKER
Stephen R. Parker
Vice President
NATIONAL WESTMINSTER BANK PLC
Nassau Branch,
By: /s/ STEPHEN R. PARKER
Stephen R. Parker
Vice President
THE FROST NATIONAL BANK OF
SAN ANTONIO,
By: /s/ PHIL DUDLEY
Phil Dudley
Vice President
BANK OF SCOTLAND,
By: /s/ ELIZABETH WILSON
Elizabeth Wilson
Vice President and
Branch Manager
NATIONS BANK OF TEXAS, N.A.,
By: /s/ JAMES R. ALLRED
James R. Allred
Vice President
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
By: /s/ DAN M. DANELO
Dan M. Danelo
Senior Vice President
BANK ONE, TEXAS, NATIONAL
ASSOCIATION,
By: /s/ ROBERT S. GLENN
Robert S. Glenn
Vice President
INDUSTRIAL BANK OF JAPAN,
LIMITED,
By: /s/ ROBERT W. RAMAGE, JR.
Robert W. Ramage, Jr.
Senior Vice President
THE BANK OF TOKYO, LTD.,
DALLAS AGENCY
By: /s/ MICHAEL MEISS
Michael Meiss
Vice President
THE FIRST NATIONAL BANK OF
BOSTON,
By: /s/ CYNTHIA A. STABLEFORD
Cynthia A. Stableford
Vice President
THE FUJI BANK, LIMITED,
NEW YORK BRANCH,
By: /s/ SOICHI YOSHIDA
Soichi Yoshida
Vice President
SOCIETE GENERALE,
By: /s/ MARK A. COX
Mark A. Cox
Vice President
SCHEDULE I
Additional Guarantors
1. Diamond Shamrock Refining and Marketing Company, a Delaware
corporation.
2. The Shamrock Pipe Line Corporation, a Delaware corporation.
3. Sigmor Corporation, a Delaware corporation
4. Sigmor Pipeline Company, a Texas corporation
5. Sigmor Beverage, Inc., a Texas corporation
6. North American InTeleCom, Inc., a Texas
corporation
7. Diamond Shamrock Stations, Inc., a Delaware corporation
8. XRAL Storage and Terminaling Company, a Texas corporation
9. TOC-DS Company, a Delaware corporation
10. D-S Splitter, Inc., a Delaware corporation
ii. Big Diamond, Inc., a Texas corporation
12. Big Diamond Number 1, Inc., a Texas corporation
13. Diamond Shamrock Pipeline Company, a Delaware corporation
14. Diamond Shamrock Refining Company, L.P., a Delaware limited
partnership
SCHEDULE II
Name and Address
of Bank Commitment
Chemical Bank $11,666,666.00
c/o Texas Commerce Bank
2200 Ross Avenue
Dallas, TX 75201
Attn of: W. Paschall Tosch
Bank of America, National Trust $10,000,000.00
and Savings Association
3 Allen Center
333 Clay Street
Suite 4550
Houston, TX 77002-4103
Attn of: Lee McKinsley
The First National Bank of Chicago $10,000,000.00
1100 Louisiana Street
Suite 3200
Houston, TX 77002
Attn of: Helen Carr
National Westminster Bank PLC $ 8,333,333.00
Texas Commerce Tower
600 Travis Street
Suite 6070
Houston, TX 77002
Attn of: James Moyes
Royal Bank of Canada $ 8,333,333.00
600 Wilshire Blvd.
Suite 800
Los Angeles, CA 90017
Attn of: Everett Hamer
NationsBank of Texas, N.A. $ 8,333,333.00
700 Louisiana Street
8th Floor
Houston, TX 77002
Attn of: James Alfred
Bank One, Texas, National Association $ 8,333,333.00
105 St. Mary's Street
Alamo National Building
2nd Floor
San Antonio, TX 78205
Attn of: Rob Glenn
Industrial Bank of Japan, Limited $ 5,000,000.00
Allen Center
333 Clay Street
Suite 4850
Houston, TX 772002
lkttn of: Lynn Williford
Fuji Bank, Limited, $ 5,000,000.00
Houston Agency
1 Houston Center
1221 McKinney Street
Suite 4100
Houston, TX 77010
Attn of: Jacques Azagury
Bank of Tokyo $ 5,000,000.00
2 Houston Center
1309 Fannin
Suite 1104
Houston, TX, 77010
Attn of: Micheal Weiss
Bank of Scotland $ 5,000,000.00
2 Allen Center
1200 Smith Street
Suite 1750
Houston, TX 77002-4912
Attn of: Janni Blanter
The Chase Manhattan Bank, $ 5,000,000.00
National Association
1 Houston Center
1221 McKinney Street
Suite 3003
Houston, TX 77010
Attn of: Peter Lind
The First National Bank of Boston $ 3,333,333.00
100 Federal Street
Mail Stop 01-08-02
Boston, MA 02110
Attn of: Cynthia Stableford
Societe Generale $ 3,333,333.00
1111 Bagby Street
Suite 2020
Houston, TX 77002
Attn of: Mark Cox
The Frost National Bank $ 1,666,668.00
of San Antionio
100 West Houston Street
San Antonio, TX 78205
Attn of: Phil Dudley
Texas Commerce Bank $ 1,666,668.00
National Association
2200 Ross Avenue
3rd Floor
Dallas, TX 75201
Attn of: W. Paschall Tosch
TOTAL $100,000,000.00
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