EXHIBIT 10.7
AMENDMENT NUMBER TWO, dated as of July 15, 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 amend Section 1.1 of the Credit Agreement; and
WHEREAS, the Agent and the Banks have considered and agreed to the
Company's request, upon the terms and subject to the conditions set forth in
this Amendment; and
WHEREAS, in connection with the proposed amendment, the Banks have
entered into an Assignment and Assumption Agreement dated as of the date hereof
in the form attached hereto as Exhibit A (the "Assignment and Assumption
Agreement");
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 Amendment
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(1) Upon the satisfaction of the conditions set forth in Section Two
hereof, the Credit Agreement is hereby amended as follows:
Section 1.1 of the Credit Agreement is amended by deleting the
definition of the term "Total Commitment" from such Section and replacing
it with the following:
""Total Commitment" means the aggregate Commitment of all of the
Banks, which shall initially be $120,000,000."
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(2) Upon satisfaction of the conditions set forth in Section Two hereof,
the Commitment of each Bank shall initially be the amount specified on the
signature page hereto for such Bank, subject to adjustment from time to time as
provided for in the Credit Agreement.
(3) Upon satisfaction of the conditions set forth in Section Two hereof,
the Pro Rata Share of each Bank shall initially be the percentage specified on
the signature page hereto for such Bank, subject to adjustment from time to time
as provided in the Credit Agreement.
SECTION TWO Conditions Precedent
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Upon the fulfillment of the following conditions the amendments
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 Three 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 Treasurer or Chief Financial Officer, as to the
effect of paragraphs (a) and (b);
(4) The Assignment and Assumption Agreement shall be in full force and
effect; and
(5) The Agent shall have received from the Company, for pro rata
distribution to each Bank, a fee equal to $20,000.00.
SECTION THREE Representations and Warranties
------------------------------
The Company hereby confirms, reaffirms and restates the representations
and warranties made by it in Section 4 of
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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 and thereby;
(2) No consent of any person (including, without limitation,
shareholders or creditors of the Company, as the case may be) other than
the 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 or the
transactions contemplated hereby;
(3) This Amendment has been duly executed and 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 will not
violate any requirement of law or contractual obligation of the Company.
SECTION FOUR 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.
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(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.
(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
---------------------------------
Title: VICE PRESIDENT - 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
Commitment: $26,100,000.00
Pro Rata Share: 21.75%
THE TORONTO-DOMINION BANK, as a
Bank and as Co-Agent
By: /s/ Jano Mott
---------------------------------
Title: MGR. CR. ADMIN.
Commitment: $40,540,000.00
Pro Rata Share: 33.78333%
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NBD BANK, N.A. as a Bank
By: /s/ Thomas A. Levasseur
---------------------------------
Title: VICE PRESIDENT
Commitment: $12,560,000.00
Pro Rata Share: 10.46667%
NATIONAL CITY BANK, as a Bank
By: /s/ J. Runk, Jr.
---------------------------------
Title: ACCOUNT OFFICER
Commitment: $7,800,000.00
Pro Rata Share: 6.50%
DRESDNER BANK AG, Chicago Branch,
as a Bank
By: /s/ G.D. Lewis
---------------------------------
Title: ASST. VICE PRESIDENT
Commitment: $15,000,000.00
Pro Rata Share: 12.50%
LASALLE NATIONAL BANK, as a Bank
By: /s/ Steven Fenton
---------------------------------
Title: VP/COUNSEL
Commitment: $18,000,000.00
Pro Rata Share: 15.00%
Acknowledged by:
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Christopher Kinslow
--------------------------
Title: VICE-PRESIDENT