Exhibit 10.65
EXECUTION COPY
FIRST AMENDMENT dated as of March
31, 1995 (the "Amendment"), to CREDIT
AGREEMENT I 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 Coverage 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 31, 2000.
(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) 0.360%
per annum if such day falls within a Level I Pricing
Period, (ii) 0.500% per annum, if such day falls within a
Level II Pricing Period, (iii) 0.475% per annum, if such
day falls within a Level III Pricing Period, (iv) 0.450%
per annum, if such day falls within a Level IV Pricing
Period, or (v) 0.625% 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) 0.235% per annum, if such
day falls within a Level I Pricing Period, (ii) 0.375% per
annum, if such day falls within a Level II Pricing Period,
(iii) 0.350% per annum, if such day falls within a Level
III Pricing Period, (iv) 0.325% per annum, if such day
falls within a Level IV Pricing Period, or (v) 0.500% per
annum, if such day falls within a Level V Pricing Period.
Subject to the provisions of Sections 2.08 and 2.10,
Eurodollar Competitive 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
the Margin offered by the Bank making such Loan and
accepted by the Borrower pursuant to Section 2.02A.
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(e) 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) Section 2.06(c) of the Credit Agreement is
hereby amended to read in its 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) 0.115% per
annum, if such day falls within a Level I Pricing Period,
(ii) 0.125% per annum, if such day falls within a Level II
Pricing Period, (iii) 0.150% per annum, if such day falls
within a Level III Pricing Period, (iv) 0.175% per annum,
if such day falls within a Level IV Pricing Period, or (v)
0.250% 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.
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 Xxxxx'x; "Level II
Pricing Period" shall mean any period during which Index
Debt shall be rated (i) BBB+ or better by S&P and Baa1 by
Xxxxx'x or (ii) BBB+ by S&P and Baa1 or better by Xxxxx'x;
"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 Xxxxx'x or (ii) BBB by S&P and Baa2 or better
by Xxxxx'x; "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 Xxxxx'x or (ii) BBB- by S&P and
Baa3 or better by Xxxxx'x; 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
Xxxxx'x. "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 5.05(f).
Section 5.05(f) of the Credit Agreement is hereby amended by
deleting the reference to "the Maturity Date" and replacing it
with "the second anniverary of such date of preparation".
SECTION 7. 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 8. 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 9. 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.
(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 10. 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 11. 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 12. 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 13. Amendment to Schedule I. Schedule I to
the Credit Agreement is hereby amended and replaced in its
entirety by Schedule I attached hereto.
SECTION 14. 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 "0.01 par value."
SECTION 15. 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 16. 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 17. 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 18. 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 19. Applicable Law. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 20. 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 21. 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-DS COMPANY,
D-S SPLITTER, INC.,
D-S PIPE LINE CORPORATION,
and NORTH AMERICAN INTELECOM,
INC.,
By: /s/ X.X. XXXXXX
X.X. Xxxxxx, in each
case, Vice President and
Treasurer
SIGMOR BEVERAGE
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
NATIONS BANK 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
SCHEDULE II
Name and Address
of Bank Commitment
Chemical Bank $23,333,334.00
c/o Texas Commerce Bank
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn of: X. Xxxxxxxx Xxxxx
Bank of America, National Trust $20,000,000.00
and Savings Association
3 Xxxxx Center
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn of: Xxx XxXxxxxxx
The First National Bank of Chicago $20,000,000.00
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn of: Xxxxx Xxxx
National Westminster Bank PLC $16,666,667.00
Texas Commerce Tower
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn of: Xxxxx Xxxxx
Royal Bank of Canada $16,666,667.00
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn of: Xxxxxxx Xxxxx
NationsBank of Texas, N.A. $16,666,667.00
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attn of: Xxxxx Xxxxxx
Bank One, Texas, National Association $16,666,667.00
000 X. Xx. Xxxx'x Xxxxxx
Xxxxx National Building
2nd Floor
San Antonio, TX 78205
Attn of: Xxx Xxxxx
Industrial Bank of Japan, Limited $10,000,000.00
3 Xxxxx Center
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn of: Xxxx Xxxxxxxxx
Fuji Bank, Limited, $10,000,000.00
Houston Agency
1 Houston Center
0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn of: Xxxxxxx Xxxxxxx
Bank of Tokyo $10,000,000.00
2 Houston Center
000 Xxxxxx
Xxxxx 0000
Xxxxxxx, XX, 00000
Attn of: Xxxxxxx Xxxxx
Bank of Scotland $10,000,000.00
2 Xxxxx Center
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn of: Xxxxx Xxxxxxx
The Chase Manhattan Bank, $10,000,000.00
National Association
1 Houston Center
0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn of: Xxxxx Xxxx
The First National Bank of Boston $ 6,666,666.67
000 Xxxxxxx Xxxxxx
Mail Stop 01-08-02
Xxxxxx, XX 00000
Attn of: Xxxxxxx Xxxxxxxxxx
Societe Generale $ 6,666,667.33
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn of: Xxxx Xxx
The Xxxxx National Bank $ 3,333,332.00
of San Xxxxxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn of: Xxxx Xxxxxx
Texas Commerce Bank $ 3,333,332.00
National Association
0000 Xxxx Xxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Attn of: X. Xxxxxxxx Xxxxx
TOTAL $200,000,000.00
