ULTRAMAR DIAMOND SHAMROCK CORPORATION
SENIOR NOTES
Underwriting Agreement
October 8, 1997
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
ULTRAMAR DIAMOND SHAMROCK CORPORATION, a Delaware corporation
(the "Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its
debt securities identified in Schedule I hereto (the "Securities"), to
be issued under the indenture specified in Schedule I hereto (the
"Indenture") between the Company and the Trustee identified in such
Schedule (the "Trustee"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then
the terms "Underwriters" and "Representatives", as used herein, shall
each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement and post-effective amendment (File numbers 33-82662 and
333-28737) on Form S-3, relating to certain debt securities (the
"Securities") to be issued from time to time by the Company. The Company
also has filed with, or proposes to file with, the Commission pursuant
to Rule 424 under the Securities Act a prospectus supplement specifically
relating to the Securities. The registration statements as
amended to the date of this Agreement are hereinafter referred to
collectively as the "Registration Statement" and the related prospectus
covering the Securities in the form first used to confirm sales of the
Securities is hereinafter referred to as the "Basic Prospectus". The
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales
of the Securities is hereinafter referred to as the "Prospectus". If
the Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement. Any
reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") on or before the date of
this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of
the Basic Prospectus, any preliminary prospectus or the Prospectus, as
the case may be, which are deemed to be incorporated by reference
therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on
the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective principal
amount of Securities set forth opposite such Underwriter's name in
Schedule II hereto at the purchase price set forth in Schedule I hereto
plus accrued interest, if any, from the date specified in Schedule I
hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters
intend (i) to make a public offering of their respective portions of the
Securities and (ii) initially to offer the Securities upon the terms set
forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer
in immediately available funds to the account specified by the Company
to the Representatives, no later than noon the Business Day (as defined
below) prior to the Closing Date (as defined below), on the date and at
the time and place set forth in Schedule I hereto (or at such other time
and place on the same or such other date, not later than the fifth
Business Day thereafter, as you and the Company may agree in writing).
As used herein, the term "Business Day" means any day other than a day
on which banks are permitted or required to be closed in New York City.
The time and date of such payment and delivery with respect to the
Designated Securities are referred to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to
the nominee of The Depository Trust Company for the respective accounts
of the several Underwriters of the Securities of one or more global
notes (the "Global Notes") representing the Securities, with any transfer
taxes payable in connection with the transfer to the Underwriters of
the Securities duly paid by the Company. The Global Notes will be made
available for inspection by the Representatives at the office of J.P.
Morgan Securities Inc. ("JP Morgan") at 60 Wall Street, New York, New
York 10260-0060 not later than 1:00 P.M., New York City time, on the
Business Day prior to the Closing Date.
4. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, copying and delivery to the
Underwriters of this Agreement, the Indenture and such other documents
as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the Global Notes for the Securities to the Underwriters,
(iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any term sheets and of the
Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel
for the Trustees in connection with the Indenture, and (viii) any fees
payable in connection with the rating of the Securities; provided,
however that, except as provided in this Section and Section 8 hereof,
the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any
offers they may make.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 7(i) or Section 9 hereof, the
Company shall reimburse the Underwriters for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
5. The Company represents and warrants to each Underwriter as
of the date hereof, and as of the Closing Date referred to in Section 3
hereof, and agrees with each underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the Securities Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Date, the Registration Statement,
any Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the Securities Act and the Trust Indenture Act of 1939
and the rules and regulations of the Commission thereunder (the "Trust
Indenture Act"), and did not 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. At
the date of the Prospectus and at the Closing Date, the Prospectus and
any amendments or supplements thereto did not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to (A)
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter through J.P. Morgan expressly
for use in the Registration Statement or Prospectus or (B) that part of
the Registration Statement that constitutes the Statement of Eligibility
on Form T-1 (the "Form T-1") under the Trust Indenture Act of a trustee.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the Securities
Act and each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act, and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus was issued and at the
Closing Date, did not 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.
(iii) Independent Accountants. The accountants who certified
the financial statements and any supporting Schedules thereto included
in the Registration Statement and the Prospectus are independent public
accountants as required by the Securities Act.
(iv) Financial Statements. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the
financial position of the Company and its consolidated subsidiaries at
the dates indicated and the statements of consolidated earnings,
consolidated stockholders' equity and consolidated cash flows of the
Company
and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved except as otherwise described therein.
The supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information of the Company
required to be stated therein. Except as otherwise described therein,
the selected financial data and the summary financial information
included in the Registration Statement and the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements incorporated by
reference in the Registration Statement and the Prospectus.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change in the condition, financial or
otherwise, or in the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those arising
in the ordinary course of business, which are material with respect to
the Company and its subsidiaries considered as one enterprise and (C)
except for regular quarterly dividends on the outstanding common stock
of the Company and regular dividends on the outstanding preferred stock
of the Company in amounts per share that are consistent with the terms
of such preferred stock, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the
Company which is a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X under the 1933 Act (each a "Subsidiary" and, collectively,
the "Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own,
lease and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable and is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; and none of the outstanding shares
of capital stock of any Subsidiary was issued in violation of preemptive
or similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are (A) the subsidiaries listed in Exhibit
21 to the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1996, filed with the Commission under Section 13 of
the Exchange Act, (B) certain other subsidiaries of the Company which
were excluded from such Exhibit 21 pursuant to Regulation S-K, rule 601
because they would not, in the aggregate, have constituted a "Significant
Subsidiary" under Regulation S-X, (C) Ultramar Inc. (Nevada) and
(D) the subsidiaries listed in Exhibit III hereto, each of which is a
Subsidiary for the purposes hereof.
(viii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) Authorization of the Securities and the Indenture. The
Indenture has been duly authorized, duly executed and delivered by the
Company. The Indenture has been duly executed and delivered by the
Trustee, and constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) (the "Bankruptcy
Exceptions"). The Indenture has been duly qualified under the Trust
Indenture Act. The Securities have been duly authorized for issuance and
sale pursuant to this Agreement and, at the Closing Date, will have been
duly executed by the Company and, when authenticated, issued and delivered
in the manner provided for in the applicable Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by the Bankruptcy
Exceptions.
(x) Absence of Defaults and Conflicts. Neither the Company
nor any of its Subsidiaries is in violation of its charter or by-laws or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any Subsidiary is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of the agreements, instruments, documents, and
certificates to be executed and delivered in connection with the issuance
and purchase of the Securities (collectively, the "Transaction
Documents") by the Company and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company in connection
with the transactions contemplated hereby or thereby or in the
Registration Statement and the Prospectus and the consummation of the
transactions contemplated herein and in the Registration Statement and
the Prospectus (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as described in
the Prospectus under the caption "Use of Proceeds") and compliance by
the Company with its obligations hereunder and thereunder do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or a default or
Repayment Event (as defined below) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary of the Company pursuant to, the
Agreements and Instruments (except for such conflicts, breaches, defaults,
events, liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any material
violation of the provisions of the charter or by-laws of the Company or
any Subsidiary or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company
or any Subsidiary or any of their assets, properties or operations;
provided, however, that the parties hereto acknowledge that the terms of
the bridge loan described in the "Use of Proceeds" section of the
Prospectus require that a portion of the proceeds of the sale of Securities
hereunder be used to repay amounts outstanding in connection with
such loan. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness of the Company or any of its Subsidiaries (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness
by the Company or any of its Subsidiaries.
(xi) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its Subsidiaries exists or, to the
knowledge of the Company, is imminent, which may reasonably be expected
to result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is not any action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its Subsidiaries, which is required to be disclosed in
the Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or the consummation of the transactions contemplated in
the Transaction Documents and the Securities and the Indenture or the
performance by the Company of its obligations hereunder and thereunder.
(xiii) Exhibits. There are no contracts or documents which are
of a character required to be described in the Registration Statement,
the Prospectus or the documents incorporated by reference therein or to
be filed as exhibits thereto which have not been so described and filed
as required.
(xiv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is
necessary or required for the performance by the Company of its obligations
under this Agreement, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the transactions
contemplated under this Agreement, or the due execution, delivery or
performance of any Indenture except such as have been already obtained
or as may be required under the Securities Act, the Exchange Act or
state securities laws.
(xv) Possession of Licenses and Permits. The Company and its
Subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure to so possess such Governmental Licenses would not,
singly or in the aggregate, have a Material Adverse Effect; the Company
and its Subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor any of its
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
(xvi) Title to Property. The Company and its Subsidiaries have
good and marketable title to all real property owned by the Company and
its Subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind, except such
as (A) are described in the Registration Statement and the Prospectus or
(B) do not, singly or in the aggregate, materially affect the value of
such property, do not interfere with the use made and proposed to be
made of such property by the Company or any of its Subsidiaries and do
not, singly or in the aggregate have a Material Adverse Effect; and all
of the leases and subleases material to the business of the Company and
its Subsidiaries, considered as one enterprise, and under which the
Company or any of its Subsidiaries holds properties described in the
Prospectus, are in full force and effect, except where the failure of
such leases or subleases to be in full force and effect would not have a
Material Adverse Effect, and neither the Company nor any Subsidiary has
any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any Subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such Subsidiary to the continued possession
of the leased or subleased premises under any such lease or sublease
which could reasonably be expected to result in a Material Adverse
Effect.
(xvii) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xviii) Officers' Certificates. Any certificate signed by any
officer of the Company or any of its Subsidiaries and delivered to any
Underwriter or to counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered thereby on
the date of such certificate.
6. Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 6(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Representatives promptly, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps they deem necessary to ascertain
promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company
will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at
the earliest practicable moment.
(b) Filing of Amendments. During the period when the
Underwriters are required to deliver a prospectus with respect to the
Securities, the Company will give the Representatives notice of their
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the Securities Act, the Exchange Act or
otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall reasonably
object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to JP Morgan and counsel for the Underwriters,
without charge, conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and conformed
copies of all consents and certificates of experts, and will also
deliver to the Representatives, upon request and without charge, a
conformed copy of the Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
Securities Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the Securities Act, the Exchange Act and the Trust
Indenture Act with respect to the offer of the Securities so as to
permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the Securities Act to be delivered in connection
with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters and for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with
the requirements of the Securities Act, the Company will promptly
prepare and file with the Commission, subject to Section 6(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply
with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters
may reasonably request.
(f) Rule 158. The Company will timely file such reports
pursuant to the Exchange Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the Securities Act.
(g) Use of Proceeds. The Company will use or cause to be
used the net proceeds received by and from the sale of the Securities in
the manner specified in the Prospectus under "Use of Proceeds".
(h) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the Securities Act
or the Exchange Act, will file all documents required to be filed with
the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act.
7. The obligations of the several Underwriters hereunder are
subject to the accuracy of the representations and warranties of the
Company contained in Section 5 hereof or in certificates of any officer
of the Company or any Subsidiary of the Company delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants
and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has
become effective and at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Securities Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing
such information shall have been filed and declared effective in accordance
with the requirements of Rule 430A) or, if the Company has elected
to rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for the Company. At the Closing Date,
the Representatives shall have received the favorable opinion, dated as
of the Closing Date, of Curtis V. Anastasio, Vice President, General
Counsel and Secretary of the Company, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters.
(c) Opinion of Counsel for the Underwriters. At the Closing
Date, the Representatives shall have received the favorable opinion,
dated as of the Closing Date, of Skadden, Arps, Slate, Meagher & Flom
LLP, counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, in form and
substance satisfactory to the Underwriters. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York and the federal law of
the United States, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
Subsidiaries and certificates of public officials.
(d) Officers' Certificate. At the Closing Date, there shall
not have been, since the date hereof or since the respective dates as of
which information is given in the Prospectus except as stated therein,
any Material Adverse Effect, and the Representatives shall have received
a certificate of the President or a Vice President of the Company or of
the chief financial or chief accounting officer of the Company, dated as
of the Closing Date, to the effect that (i) there has been no such
Material Adverse Effect, (ii) the representations and warranties in
Section 5 hereof are true and correct in all material respects with the
same force and effect as though expressly made at and as of the Closing
Date, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
the Closing Date, and (iv) to the knowledge of such officer, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are pending or are contemplated by the Commission.
(e) Accountants' Comfort Letters. At the time of the execution
of this Agreement, the Representatives shall have received from
each of Ernst & Young LLP and Arthur Andersen LLP, a letter dated such
date, in form and substance satisfactory to the Representatives, together
with signed or reproduced copies of such letter for each of the
other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus in a
form acceptable to the Representatives.
(f) Bring-down Comfort Letter. As of the Closing Date, the
Representatives shall have received from Arthur Andersen LLP a letter,
dated as of the Closing Date, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Date.
(g) Maintenance of Rating. At the Closing Date, the Securities
shall be rated at least "Baa2" by Moody's Investors Service Inc.
("Moody's") and "BBB" by Standard & Poor's Ratings Services, a division
of the McGraw-Hill Companies, Inc. ("S&P"); and since the date of this
Agreement, there shall not have occurred a downgrading in the rating
assigned to the Securities or the Company's debt securities by Moody's
or S&P and neither of such organizations shall have publicly announced
that it has under surveillance or review, its rating of the Securities
or any of the Company's debt securities.
(h) Additional Documents. At the Closing Date, counsel for
the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(i) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Representatives by
notice to the Company at any time at or prior to the Closing Date, and
such termination shall be without liability of any party to any other
party except as provided in Section 8 and except that Sections 5, 8 and
9 shall survive any such termination and remain in full force and
effect.
8. The Company agrees to indemnify and hold harmless each
Underwriter, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities and each person, if
any, who controls any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject to
Section 8(iii) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to this section, the fees and disbursements of
counsel chosen by JP Morgan), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above; provided,
however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through JP Morgan expressly for
use in the Registration Statement (or any amendment thereto), including
the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
Each Underwriter severally agrees to indemnify and hold
harmless the Company, directors of the Company, each of the officers of
the Company who signed the Registration Statement, and each person, if
any, who controls any of the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity
contained in subsection (i) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information,
if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through JP Morgan expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus
(or any amendment or supplement thereto).
Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder,
but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 8(i) above, counsel to the indemnified parties shall
be selected by JP Morgan and approved by the Company, such approval not
to be unreasonably withheld, and, in the case of parties indemnified
pursuant to Section 8(i) above, counsel to the indemnified parties shall
be selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action. In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances unless
the named parties in such action or separate but similar or related
actions include both the indemnifying and indemnified parties and legal
defenses available to the indemnified party create a conflict of interest
with the indemnifying party, in which case the indemnified party
shall have the right to employ separate counsel, and the indemnifying
party shall bear the reasonable fees and expenses of such separate
counsel, provided that the indemnifying party shall not be responsible
for the fees and expenses of more than one such separate counsel (in
addition to any local counsel) for all indemnified parties. No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 8 or Section 9 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable
fees and expenses of counsel and shall have provided to the indemnifying
party all information and documentation reasonably requested by the
indemnifying party regarding such fees and expenses (collectively, a
"Completed Request"), such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 8(ii)
effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the
aforesaid Completed Request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior
to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
Completed Request prior to the date of such settlement.
If the indemnification provided for in this Section 8 is for
any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, in
such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or by the Underwriters
and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this Section 8. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 8 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required
to pay by reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are
several in proportion to the principal amount of Securities set forth
opposite their respective names in Schedule A hereto and not joint.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of
its Subsidiaries submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of
the Company, and shall survive delivery of the Securities to the
Underwriters.
9. The Representatives may terminate this Agreement, by
notice to the Company, at any time at or prior to the Closing Date (i)
if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the
Prospectus any Material Adverse Effect, or (ii) if there has occurred
any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or
the New York Stock Exchange or if trading generally on the New York
Stock Exchange has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices
have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium
has been declared by either Federal or New York State authorities.
If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party
except as provided in Section 8 hereof, and provided further that
Sections 1, 8 and 9 shall survive such termination and remain in full
force and effect.
If one or more of the Underwriters shall fail at the Closing
Date to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the aggregate number of the Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate number of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company
shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 9.
10. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at 60 Wall Street,
New York, New York, 10260-0060; and notice to the Company shall be
directed to it at 9830 Colonnade Boulevard, San Antonio, Texas 78230,
attention of the Vice President, General Counsel, and Secretary.
11. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended
or shall be construed to give any person, firm or corporation,
other than the Underwriters and the Company and their respective successors
and the controlling persons and officers and directors referred to
in Section 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
12. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
13. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriters and the Company in
accordance with its terms.
Very truly yours,
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: /s/ Jean Gaulin
Name: Jean Gaulin
Title: Vice President, President,
and Chief Operating Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
J.P. MORGAN SECURITIES INC.
By: /s/ Thomas Hagerstrom
Authorized Signatory
Thomas Hagerstrom, Managing Director
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
SCHEDULE I
Representatives: J.P. Morgan Securities Inc.
Underwriting Agreement
dated: October 8, 1997
Registration Statement
Nos.: 33-82662 and 333-28737
Title of Securities: 7.20% Senior Notes due 2017
6.75% Senior Notes due 2037
7.45% Senior Notes due 2097
Aggregate principal
amount: $400,000,000
$200,000,000 2017 Notes
$100,000,000 2037 Notes
$100,000,000 2097 Notes
Price to Public: 2017 Notes: 99.979% of the principal amount of
the Securities, plus accrued interest, if any,
from October 14, 1997.
2037 Notes: 99.521% of the principal
amount of the Securities, plus accrued
interest, if any, from October 14, 1997.
2097 Notes: 99.838% of the principal
amount of the Securities, plus accrued
interest, if any, from October 14, 1997.
Indenture: Indenture dated as of March 15, 1995 between
the Company and the Bank of New York as
Trustee, as supplemented by the First
Supplemental Indenture dated as of October 14,
1997 between the Company and the Bank of New
York as Trustee.
Maturity: October 15, 2017
October 15, 2037
October 15, 2097
Interest Rate: 2017 Notes: 7.20%
2037 Notes: 6.75%
2097 Notes: 7.45%
Interest Payment Dates: April 15 and October 15, beginning
with April 15, 1998
Optional Redemption
Provisions: The 2017 Notes and the 2097 Notes may be
redeemed at anytime at the option of the
Company, in whole or in part, at a redemp
tion price equal to the greater of (i)
100% of their principal amount and (ii)
the sum of the present values of the
remaining scheduled payments of principal
and interest thereon discounted, on a
semi-annual basis, at the Treasury Yield
(as defined in the Prospectus) plus 20
basis points, together with accrued
interest, if any, to the date of redemp
tion.
Each holder of the 2037 Notes has the
right to require the Company to redeem
such holder's 2037 Notes, in whole or in
part, on October 15, 2009, at a redemption
price equal to 100% of the principal
amount thereof plus accrued and unpaid
interest. Thereafter, the 2037 Notes
shall be redeemable at any time at the
option of the Company in the same manner
as the 2017 Notes and the 2097 Notes.
Sinking Fund Provisions: None
Closing Date and
Time of Delivery: 9:00 a.m., October 14, 1997
Closing Location: Skadden, Arps, Slate, Meagher and
Flom, LLP, 919 Third Avenue, New York
New York 10024
Address for Notices
to Underwriters: JP Morgan, 60 Wall Street, New York,
New York 10260-0060
SCHEDULE II
Principal Amount
of Securities
To Be Purchased
Underwriter
J. P. Morgan Securities Inc. . . . . . . . . . . . . . . $100,000,000
Chase Securities Inc.. . . . . . . . . . . . . . . . . . $100,000,000
Lehman Brothers. . . . . . . . . . . . . . . . . . . . . $100,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . $100,000,000
Total . . . . . . . . . . . . . . . . . . $400,000,000
SCHEDULE III
Subsidiary State of Incorporation
3007152 NOVA SCOTIA COMPANY Nova Scotia
3070336 CANADA INC. Canada
585043 ONTARIO LIMITED Ontario
ARKANSAS CENTRAL, INC. Arkansas
ARKANSAS LR, INC. Arkansas
ARKANSAS NE, INC. Arkansas
ARKANSAS NW, INC. Arkansas
ARKANSAS SE, INC. Arkansas
ARKANSAS SW, INC. Arkansas
BARINCO INSURANCE LTD. Barbados
BIOREMETEC INC. Canada
CANADIAN MARINE RESPONSE MANAGEMENT Canada
CORPORATION LTD.
CANADIAN ULTRAMAR COMPANY Canada
COLORADO REFINING COMPANY Colorado
CUSH-PO, INC. Oklahoma
DIAMOND SHAMROCK BOLIVIANA, LTD. California
EASTERN CANADA RESPONSE CORPORATION LTD. Canada
GEO WILLIAMSON FUELS LTD Ontario
HANOVER PETROLEUM CORPORATION Delaware
LAURELGLEN HOLDINGS, INC. Delaware
LES CARBURANTS ULTRA-GNV ENR. Quebec
LES PETROLES D. KIROUAC INC. Quebec
METRO OIL CO. Michigan
NAVAJO SALES COMPANY, INC. Arizona
OCEANIC TANKERS AGENCY LIMITED Quebec
SALLANS FUELS LIMITED Ontario
SKIPPER BEVERAGE COMPANY, INC. Texas
SUNSHINE BEVERAGE CO. Texas
TOTAL ENGINEERING & RESEARCH COMPANY Colorado
TOTAL PETROLEUM (NORTH AMERICA) LTD. Canada
TOTAL PETROLEUM, INC. Michigan
TOTAL PIPELINE CORPORATION Michigan
UDS CAPITAL I Delaware
UDS CAPITAL II Delaware
UDS CORPORATION Delaware
UDS FUNDING I, L.P. Delaware
UDS FUNDING II, L.P. Delaware
ULTRAMAR ACCEPTANCE INC. Ontario
ULTRAMAR ENERGY INC. Delaware