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EXHIBIT 4.3
CONFORMED COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of December 23, 1998 to the Amended and Restated
Credit Agreement dated as of November 28, 1997 ( the "CREDIT AGREEMENT") among
VALERO ENERGY CORPORATION (the "BORROWER"), the BANKS party thereto (the
"BANKS"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent
(the "ADMINISTRATIVE AGENT") and Bank of Montreal, as Syndication Agent and
Issuing Bank. The parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each capitalized term used herein which is defined in the Credit
Agreement has the meaning assigned to such term in the Credit Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference contained in the Credit Agreement shall, after this Amendment becomes
effective, refer to the Credit Agreement as amended hereby.
SECTION 2. Amendment of Section 6.08. Section 6.08 of the Credit
Agreement is amended to read as follows:
SECTION 6.08. Debt. Consolidated Debt of the Borrower will at
no time exceed 50% of the sum of Consolidated Debt of the Borrower plus
the Consolidated Net Worth of the Borrower plus the involuntary
liquidation value of outstanding shares of redeemable preferred stock
of the Borrower.
SECTION 3. Year 2000. The following new Section 5.13 is added at the
end of Article 5 of the Credit Agreement.
SECTION 5.13. Year 2000 Compliance. The Borrower has (i)
initiated a review and assessment of all material areas of the business
operations of it and its Subsidiaries (including those areas affected
by suppliers and vendors) that could be adversely affected by the "YEAR
2000 PROBLEM" (that is, the risk that computer applications used by it
or any of its Subsidiaries (or their respective suppliers and vendors)
may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December
31, 1999), (ii) developed a plan and timeline for addressing the Year
2000 Problem on a timely basis and (iii) to date, implemented such plan
substantially in accordance with such timetable. The Borrower
reasonably believes that all computer applications (including those of
suppliers and vendors material to the operations of the Borrower and
its Subsidiaries) that are material to the business or operations of
the Borrower or any of its Subsidiaries will on a timely basis be able
to perform properly date-sensitive functions for all dates before and
from and after January 1, 2000 (that is, be "YEAR 2000 COMPLIANT"),
except to the extent that a failure to do so could not reasonably be
expected to have a material adverse effect on the business, financial
condition or results of operations of the Borrower and its
Subsidiaries, taken as a whole.
SECTION 4. Increase of Interest Rates. The Pricing Schedule attached to
the Credit Agreement (the "EXISTING PRICING SCHEDULE") is deleted and replaced
by the Pricing Schedule attached to this Amendment (the "NEW PRICING SCHEDULE").
The New Pricing Schedule shall apply to interest and fees accruing under the
Credit Agreement on and after the date hereof. The Existing Pricing Schedule
shall continue to apply to interest and fees accruing under the Credit Agreement
prior to the date hereof.
SECTION 5. Representations of Borrower. The Borrower represents and
warrants that (i) the representations and warranties of the Borrower set forth
in Article 5 of the Credit Agreement will be true on and as of the Amendment
Effective Date and (ii) no Default will have occurred and be continuing on such
date.
SECTION 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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SECTION 8. Effectiveness. This Amendment shall become effective on the
date when the following conditions are met (the "AMENDMENT EFFECTIVE DATE"):
(a) the Administrative Agent shall have received from each of
the Borrower and the Required Banks a counterpart hereof signed by such
party or facsimile or other written confirmation (in form satisfactory
to the Administrative Agent) that such party has signed a counterpart
hereof; and
(b) the Administrative Agent shall have received an amendment
fee for the account of each Bank that has delivered to the
Administrative Agent on or before the close of business (New York City
time) on December 21, 1998 a counterpart hereof signed by such Bank or
facsimile or other written confirmation (in form satisfactory to the
Administrative Agent) that such party has signed a counterpart hereof,
such fee in an amount equal to .05% of such Bank's Commitment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
VALERO ENERGY CORPORATION
By /s/ John D. Gibbons
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Title: Chief Financial Officer and
Treasurer
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Stacey Haimes
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Title: Vice President
BANK OF MONTREAL
By /s/ Mary Lee Latta
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Title: Director
BANK OF TOKYO-MITSUBISHI,
LTD.
By /s/ I. Otani
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Title: Deputy General Manager
BANKBOSTON, N.A.
By /s/ Terrence Ronan
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Title: Director
BANQUE NATIONALE DE
PARIS, HOUSTON AGENCY
By /s/ Henry F. Setina
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Title: Vice President
BHF-BANK
AKTIENGESELLSCHAFT
By /s/ John Sykes
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Title: Vice President
By /s/ Peter Leibman
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Title: Assistant Treasurer
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CIBC INC.
By /s/ Michael A.G. Corkum
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Title: Authorized Signatory
CREDIT LYONNAIS NEW YORK
BRANCH
By /s/ Phillippe Soustra
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Title: Senior Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Dixon P. Schultz
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Title: First Vice President
THE FUJI BANK, LIMITED
By /s/ Raymond Ventura
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Title: Vice President & Manager
ROYAL BANK OF CANADA
By /s/ Gil J. Benard
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Title: Senior Manager
SOCIETE GENERALE
By /s/ Richard A. Gould
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Title: Director
TORONTO DOMINION (TEXAS),
INC.
By /s/ Alva J. Jones
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Title: Vice President
BARCLAYS BANK PLC
By /s/ J. Onischuk
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Title: Associate Director
CHRISTIANIA BANK, NEW YORK
BRANCH
By /s/ William S. Phillips
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Title: First Vice President
By /s/ Peter M. Dodge
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Title: Senior Vice President
DEN NORSKE BANK ASA
By /s/ Byron L. Cooley
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Title: Senior Vice President
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By /s/ Charles E. Hall
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Title: Senior Vice President
GUARANTY FEDERAL BANK,
F.S.B.
By /s/ Jim R. Hamilton
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Title: Vice President
THE INDUSTRIAL BANK OF
JAPAN, LIMITED, NEW YORK
BRANCH
By /s/ Kazutoshi Kuwahara
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Title: Executive Vice President,
Houston Office
THE BANK OF NOVA SCOTIA
By /s/ F. C. H. Ashby
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Title: Senior Manager, Loan
Operations
CREDIT AGRICOLE INDOSUEZ
By /s/ David Bouhl
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Title: First Vice President, Head
of Corporate Banking Chicago
By /s/ Katherine L. Abbott
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Title: First Vice President
THE DAI-ICHI KANGYO BANK,
LTD.
By /s/ Matthew G. Murphy
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Title: Vice President
THE FROST NATIONAL BANK
By /s/ Jim Crosby
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Title: Senior Vice President
MELLON BANK, N.A.
By /s/ Roger E. Howard
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Title: Vice President
THE SANWA BANK, LIMITED
By /s/ Takuro Ojima
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Title: Assistant Vice President
UBS AG, STAMFORD BRANCH
By /s/ M.C. Hansen
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Title: Associate Director
By /s/ Robert W. Casey Jr.
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Title: Executive Director
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PRICING SCHEDULE
The "EURO-DOLLAR MARGIN", "FACILITY FEE RATE" and "LETTER OF CREDIT RATE" for
any day are the respective percentages set forth below in the applicable row
under the column corresponding to the Status that exists on such day:
Status Level I Level II Level III Level IV Level V
Euro-Dollar 0.360% 0.390% 0.600% 0.750% 1.125%
Margin
Facility Fee 0.090% 0.110% 0.150% 0.250% 0.375%
Rate
Letter of Credit
Rate
Performance 0.1800% 0.1950% 0.3000% 0.3750% 0.5625%
Financial 0.360% 0.390% 0.600% 0.750% 1.125%
For purposes of this Schedule, the following terms have the following
meanings (subject to the last paragraph of this Schedule):
"LEVEL I STATUS" exists at any date if, at such date, the Borrower's
long-term debt is rated at least BBB+ by S&P or at least Baa1 by Moody's.
"LEVEL II STATUS" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least BBB by S&P or at least Baa2 by
Moody's and (ii) Level I Status does not exist.
"LEVEL III STATUS" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least BBB- by S&P or at least Baa3 by
Moody's and (ii) neither Level I Status nor Level II Status exists.
"LEVEL IV STATUS" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least BB+ by S&P and at least Ba1 by
Moody's and (ii) none of Level I Status, Level II Status and Level III Status
exists.
"LEVEL V STATUS" exists at any date if, at such date, no other Status
exists.
"STATUS" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status exists at any
date.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date.
So long as the Borrower is rated at least BB- by S&P and at least Ba3
by Moody's, if the Borrower is split-rated and the ratings differential is one
level, the higher of the two ratings will apply (e.g., BBB/Baa3 results in Level
II Status). If the Borrower is split-rated and the ratings differential is more
than one level, the average of the two ratings (or the higher of two
intermediate ratings) shall be used (e.g., BBB-/Ba1 results in Level III Status,
as does BBB/Ba2).