EXHIBIT 10.6
AMENDMENT NUMBER ONE, dated as of January 26, 1994 (this "Amendment"), to
CREDIT AGREEMENT, dated as of November 30, 1990, and Amended and Restated as of
February 10, 1993, as thereafter amended (the "Credit Agreement"), among CLARK
REFINING & MARKETING, INC. (formerly CLARK OIL & REFINING CORPORATION), a
Delaware corporation (the "Company"), the banks signatory thereto (each a "Bank"
and, collectively, the "Banks"), BANKERS TRUST COMPANY, a New York banking
corporation, as an Issuing Bank, THE TORONTO-DOMINION BANK, a Canadian chartered
bank, as Co-Agent, and BT COMMERCIAL CORPORATION, a Delaware corporation, as a
Bank and as agent for the Banks (in such capacity, including its successors and
permitted assigns, the "Agent"). Terms which are capitalized herein and not
otherwise defined shall have the meanings ascribed thereto in the Credit
Agreement.
WHEREAS, the Company has requested that the Agent and the Banks agree to (i)
amend certain provisions of the Credit Agreement and (ii) consent to the
purchase of insurance from HSM Insurance Ltd., a company organized under the
laws of Barbados and a wholly owned subsidiary of Horsham (the "Insurer"); and
WHEREAS, the Agent and the Banks have considered and agreed to the Company's
requests, upon the terms and subject to the conditions set forth in
this Amendment;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION ONE - AMENDMENTS
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Upon the fulfillment of the conditions set forth in Section Three hereof,
the Credit Agreement is hereby amended as follows:
(1) Section 1.1 of the Credit Agreement is amended by deleting the
definition of the term "Company" contained in such Section and replacing it
with the following:
"Company" means Clark Refining & Marketing, Inc., a Delaware corporation."
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(2) Section 6.13C of the Credit Agreement is amended by deleting such
Section in its entirety and replacing it with the following:
"C. Minimum Net Worth. The Company shall not permit or suffer
its Net Worth at any time during any period listed below to be less
than the amount set forth opposite such period:
Period Amount
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January 1, 1994 to December 31, 1994 "$140,000,000
January 1, 1995 to December 31, 1995 175,000,000"
(3) References in the Loan Documents to "Clark Oil & Refining
Corporation" or the "Company" shall be deemed to be references to "Clark
Refining & Marketing, Inc."
SECTION TWO - CONSENTS
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(1) Effective upon the fulfillment of the conditions set forth in
Section Three hereof, each Bank hereby consents to the purchase by the Company
of insurance in respect of environmental liabilities of the Company, on the
terms and conditions set forth in the Insurance Policy attached hereto as Annex
1, from the Insurer at an aggregate cost not to exceed $2,000,000 in any Fiscal
Year if, and for so long as:
(a) The Insurer is a Wholly Owned Subsidiary of Horsham;
(b) The Insurer provides to the Agent, on behalf of the Banks, within
30 days following the end of each Fiscal Quarter, the consolidated balance
sheet of the Insurer as at the end of such Fiscal Quarter and the related
consolidated statements of income and shareholder's equity and cash flows
of the Insurer, in each case certified by the chief financial officer of
the Insurer to the effect that they fairly present the consolidated
financial condition of the Insurer as at the dates indicated and the
results of its operations and changes in its financial position, based on
GAAP applied on a consistent basis;
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(c) On the date hereof and within 10 days following the end of each
Fiscal Year beginning with the Fiscal Year ended December 31, 1994, the
Company delivers to the Agent, on behalf of the Banks, the written opinion
of Marsh & McLennan Limited to the effect that the insurance arrangement
between the Company and the Insurer is fair to the Company; and
(d) The Insurer delivers to the Company the consolidated balance
sheet of the Insurer as of a recent date certified by its chief financial
officer to the effect that such balance sheet fairly presents the financial
condition of the Insurer as of its date in accordance with GAAP.
(2) Effective upon the fulfillment of the conditions set forth in
Section Three hereof, each Bank hereby consents to (x) the deletion of
"PaineWebber Inc." from Schedule 1-D to the Credit Agreement and to the addition
of "Dean Witter Inc." to such Schedule 1-D and (y) the execution and delivery of
a Commodities Account Agreement by the Company, the Collateral Agent and Dean
Witter Inc., as Broker (the "Dean Witter Agreement").
SECTION THREE - CONDITIONS PRECEDENT
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Upon the fulfillment of the following conditions the amendments and
consents contemplated by this Amendment shall become effective:
(1) All representations and warranties of the Company set forth in
Section 4 of the Credit Agreement and Section Four of this Amendment shall
be true and correct in all material respects on and as of the date hereof,
and, immediately before and immediately after giving effect to the
effectiveness of this Amendment, no Unmatured Event of Default and no Event
of Default shall have occurred and be continuing at such time;
(2) Since December 31, 1991, nothing shall have occurred or become
known that the Agent shall have determined has a Materially Adverse Effect;
(3) The Agent shall have received a certificate from the Company,
executed by the Company's
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Treasurer or Chief Financial Officer, as to the effect of paragraphs (a) and
(b); and
(4) The Collateral Agent, the Company and Dean Witter Inc., as Broker, shall
have entered into a Commodities Account Agreement and such Agreement shall be
in full force and effect and the Secured Parties shall have obtained, to each
Secured Party's satisfaction, a valid and enforceable perfected security
interest in the Collateral thereunder on the terrms contemplated by the Loan
Documents and such Collateral shall be subject to no Liens other than the
Liens permitted thereunder.
SECTION FOUR - REPRESENTATIONS AND WARRANTIES
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The Company hereby confirms, reaffirms and restates the representations and
warranties made by it in Section 4 of the Credit Agreement, as amended hereby,
and all such representations and warranties are true and correct in all material
respects as of the date hereof. The Company further represents and warrants
(which representations and warranties shall survive the execution and delivery
hereof) to the Agent, for the benefit of the Banks and to any Issuing Bank that:
(1) The Company has the corporate power, authority and legal right to
execute, deliver and perform this Amendment, and the transactions contemplated
hereby, and has taken all actions necessary to authorize the execution,
delivery and performance of this Amendment and the transactions contemplated
hereby;
(2) No consent of any person (including, without limitation, shareholders or
creditors of the Company, as the case may be) other than the Required Banks,
and no consent, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required in connection with the execution, delivery, performance,
validity or enforceability of this Amendment and the transactions contemplated
hereby;
(3) Each of this Amendment and the Dean Witter Agreement has been duly
executed and
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delivered on behalf of the Company by its duly authorized officer, and
constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally;
and
(4) The execution, delivery and performance of this Amendment and the
Dean Witter Agreement will not violate any requirement of law or
contractual obligation of the Company.
SECTION FIVE - MISCELLANEOUS
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(1) Except as herein expressly amended, the Credit Agreement and all
other agreements, documents, instruments and certificates executed in connection
therewith, except as otherwise provided herein, are ratified and confirmed in
all respects and shall remain in full force and effect in accordance with their
respective terms.
(2) All references to the Credit Agreement or any of the other Loan
Documents shall mean the Credit Agreement or such other Loan Documents, as the
case may be, as amended as of the effective date hereof, and as amended hereby
and as hereafter amended, supplemented and modified from time to time. All
references in the Loan Documents to Schedule 1-D to the Credit Agreement shall
mean Schedule 1-D as amended as of the effective date hereof, and as amended
hereby and as hereafter amended, supplemented and modified from time to time.
(3) This Amendment may be executed by the parties hereto individually
or in combination, in one or more counterparts, each of which shall be an
original and all of which shall constitute one and the same agreement.
(4) This Amendment shall be governed by, construed and interpreted in
accordance with, the internal laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
CLARK REFINING & MARKETING, INC.
(formerly CLARK OIL & REFINING
CORPORATION)
By: /s/ Dennis R. Eichholz
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Title: Treasurer
BT COMMERCIAL CORPORATION, as
Agent and as a Bank
By: /s/ Christopher Kinslow
---------------------------------
Title: Vice-President
BANKERS TRUST COMPANY, as an
Issuing Bank
By: /s/ Christopher Kinslow
---------------------------------
Title: Vice-President
THE TORONTO-DOMINION BANK, as a
Bank and as Co-Agent
By: /s/ Martin T. Snyder
---------------------------------
Title: Director Corporate Finance
SWISS BANK CORPORATION, New York
Branch, as a Bank
By: /s/ William N. Schwarze
---------------------------------
Title: Director-Commodity Trade
Finance
By: /s/ David S. Dickenson
---------------------------------
Title: Director-Commodity Trade
Finance
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NATIONAL CITY BANK, as a Bank
By: /s/ Brian J. Karrip
---------------------------------
Title: Vice President
DRESDNER BANK AG, Chicago Branch,
as a Bank
By: /s/ John H. Schaus
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Title: First Vice-President
By: /s/ Brian J. Brodeur
---------------------------------
Title: Vice-President
LASALLE NATIONAL BANK, as a Bank
By: /s/ Christopher G. Clifford
---------------------------------
Title: First Vice-President
Acknowledged by:
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Christopher Kinslow
---------------------------------
Title: Vice-President