SECOND AMENDMENT dated as of December 5, 1995 (the
"Amendment"), to CREDIT AGREEMENT II dated as of April
14, 1987, as amended and restated through April 15,
1993, as amended by the First Amendment thereto dated
March 31, 1995 (the "Credit Agreement"), among DIAMOND
SHAMROCK, INC., a Delaware corporation (the
"Borrower"), DIAMOND SHAMROCK REFINING AND MARKETING
COMPANY, a Delaware corporation ("R&M"), the entities
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 following definitions are hereby added to
Article I:
"Consolidated Net Worth" shall mean at any date,
with respect to the Borrower and its Subsidiaries on a
consolidated basis, (a) the sum of (i) capital stock taken
at par value, plus (ii) capital surplus, plus (iii)
retained earnings, minus (b) treasury stock.
"NCS" shall mean National Convenience Stores
Incorporated, a Delaware corporation.
"NCS Subsidiaries" shall mean, with respect to
NCS, all corporations, associations, or other business
entities, the accounts of which are consolidated in the
financial statements of NCS in accordance with generally
accepted accounting principles.
"NCS Purchase Date" shall mean the date on which
common stock and warrants to purchase common stock of NCS
tendered pursuant to that certain Offer to Purchase by
Shamrock Acquisition Corp., a Delaware corporation, dated
November 14, 1995, as it may be amended or extended (the
"Offer to Purchase"), are accepted for payment by Shamrock
Acquisition Corp. pursuant to the terms of the Offer to
Purchase.
"NCS Guaranty Date" shall mean the date upon which
NCS and such of the NCS Subsidiaries as have either
$20,000,000 in assets or $20,000,000 in revenue as of the
end of the most recently completed fiscal year become
Guarantors hereunder.
"NCS Mortgages" shall mean those certain mortgage
notes secured by Deed of Trust liens on certain real
property of NCS Subsidiaries, bearing interest at a fixed
rate of 9.5%, increasing to 11% in 2001 and to 12% in 2002,
payable in quarterly installments and maturing on September
30, 2003, and any renewals, extensions, restatements, or
reamortizations thereof.
(b) The definition of "Total Funded Debt Ratio" in
Article I of the Credit Agreement is hereby amended to read
in its entirety as follows:
"Total Funded Debt Ratio" shall mean, at any time,
with respect to the Borrower and the Subsidiaries on a
consolidated basis, the ratio of (a) the sum of (i) Funded
Debt at such time and (ii) Subordinated Indebtedness at
such time to (b) the sum of (i) Funded Debt at such time
and (ii) Subordinated Indebtedness at such time and (iii)
Consolidated Net Worth at such time.
SECTION 2. Amendments to Article III:
The first sentence of Section 3.16 is amended to read
as follows:
Each Subsidiary which, at December 31, 1994, had
total assets exceeding $20,000,000, or which, for the year
ended December 31, 1994 had revenues exceeding $20,000,000,
is a Guarantor, other than D-S Venture Company, L.L.C., a
Delaware limited liability company, over ninety-eight
percent (98%) of the assets of which on that date consisted
of its limited partnership interest in Diamond Shamrock
Refining Company, L.P.
SECTION 3. Amendment to Article V:
The following section is hereby added to Article V:
SECTION 5.10. NCS Guaranties. Cause NCS and such
of the NCS Subsidiaries as had either $20,000,000 in assets
or $20,000,000 in revenues as of the end of the then most
recently completed fiscal year to become Guarantors under
this agreement at such time as such entities can deliver
such guaranties without violating the terms and provisions
of the NCS Mortgages.
SECTION 4. Amendments to Article VI:
(a) Amendments to Section 6.01:
(a) Section 6.01(a) of the Credit Agreement is
amended by deleting the reference to "0.63" and inserting
in lieu thereof "0.65".
(b) The following sections are hereby added to Article
VI:
SECTION 6.12. Additional NCS Indebtedness. Permit
NCS or the NCS Subsidiaries to create, incur, assume, or
otherwise be obligated with respect to Indebtedness for
reimbursement obligations relating to letters of credit or
for money borrowed, as an obligor, guarantor, mortgagor,
lessee under a capital lease, or otherwise, after thirty
days following the NCS Purchase Date and prior to the NCS
Guaranty Date, except for (a) Indebtedness in respect of
the NCS Mortgages, in an aggregate amount not to exceed
$57,000,000, (b) Intercompany Loans, and (c) Indebtedness
for money borrowed not otherwise permitted by clauses (a)
and (b) of this section 6.12 in an amount not exceeding
$500,000 in the aggregate outstanding at any one time.
SECTION 6.13. Certain NCS Agreements. Permit NCS
or the NCS Subsidiaries, after the NCS Purchase Date and
prior to the NCS Guaranty Date, to enter into or to allow
to remain in place any provision in any agreement or
arrangement with any Person to which any such entity is a
party which would restrict the ability of such entity to
declare and pay dividends and distributions with respect to
outstanding shares of its common stock or to repay advances
to Borrower or any other Subsidiary.
SECTION 5. 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 6. Conditions to Effectiveness. The amendments to
the Credit Agreement set forth in this Amendment shall become
effective on December 5, 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 the Required
Banks;
(b) the Borrower shall have paid all Fees and other
amounts due under the Credit Agreement as of December 5,
1995; and
(c) the conditions to the amendment of the Other
Credit Agreement, as set forth in the Second Amendment
thereto dated as of the date hereof, shall have been
satisfied.
SECTION 7. 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 4 above, any
reference to the Credit Agreement shall mean the Credit
Agreement as amended hereby.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 9. 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 10. 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 & Xxxxx, 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-DIAMOND SHAMROCK COMPANY,
D-S SPLITTER, INC.
and
NORTH AMERICAN INTELECOM, INC.,
By: /s/ X. X. XXXXXX
X. X. Xxxxxx, in each case,
Vice President and Treasurer
SIGMOR BEVERAGE, INC.,
By: /s/ XXXX X. XXX
Xxxx X. Xxx,
Vice President, Secretary
and Treasurer
BIG DIAMOND, INC.,
By: /s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx,
Vice President, Secretary
and Treasurer
BIG DIAMOND NUMBER 1, INC.,
By: /s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx,
Vice President, Secretary
and Treasurer
CHEMICAL BANK, individually and as
Agent
By: /s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
Managing Director
THE CHASE MANHATTAN BANK,
NATIONAL ASSOCIATION
By: /s/ XXXXX XXX X. XXXXXX
Xxxxx Xxx X. Xxxxxx
Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXXX X. XXXX
Xxxxx X. Xxxx
Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: /s/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx
Vice President
ROYAL BANK OF CANADA
By: /s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Manager
NATIONAL WESTMINSTER BANK PLC,
New York Branch
By: /s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Vice President
NATIONAL WESTMINSTER BANK PLC,
Nassau Branch
By: /S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Vice President
THE FROST NATIONAL BANK OF SAN
ANTONIO
By: /s/ XXXX XXXXXX
Xxxx Xxxxxx
Vice President
BANK OF SCOTLAND
By: /s/ XXXXXXXXX XXXXXX
Xxxxxxxxx Xxxxxx
Vice President and
Branch Manager
NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Vice President
TEXAS COMMERCE BANK, NATIONAL
ASSOCIATION
By: /s/ XXX X. XXXXXX
Xxx X. Xxxxxx
Senior Vice President
BANK ONE, TEXAS, NATIONAL
ASSOCIATION
By: /s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Vice President
INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ XXXXXX X. XXXXXX, XX.
Xxxxxx X. Xxxxxx, Xx.
Senior Vice President
THE BANK OF TOKYO, LTD., DALLAS
AGENCY
By: /s/ XXXXXXX XXXXX
Xxxxxxx Xxxxx
Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ XXXXXXX X. XXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxx
Vice President
THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By: /s/ XXXXXX XXXXXXX
Xxxxxx Xxxxxxx
Vice President
SOCIETE GENERALE
By: /s/ XXXX X. XXX
Xxxx X. Xxx
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
11. 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
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