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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 4, 1996
CLARK REFINING & MARKETING, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-11392 43-1491230
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
8182 Maryland Avenue 63105-3721
St. Louis, Missouri (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including are code: (314) 854-9696
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Item 2. Acquisition or Disposition of Assets
On October 4, 1996, Clark Refining & Marketing, Inc. (the "Company"),
a wholly-owned subsidiary of Clark USA, Inc. ("Clark USA"), sold an
advance crude oil purchase receivable, together with certain associated
hedge contracts. The receivable, together with the associated hedge
contracts, were assigned to the Company by Clark USA on October 3, 1996
at fair market value and recorded as an equity contribution. The
advance crude oil purchase receivable was sold along with the
associated hedge contracts to J. Aron & Company for net cash proceeds
of $235.4 million. The advance crude oil purchase receivable was
valued based on its defined future delivery schedule, associated forward
crude oil price quotes and discounted for certain assumed credit risk
factors.
As a result of the transaction, the Company substantially increased
its cash balance and Clark USA will recognize approximately $110.6
million of net equity issued as part of the original consideration
for the advance crude oil purchase receivable. The Company and Clark
USA have historically maintained substantial cash reserves to mitigate
the cyclical nature of their business. Such cash reserves may also be
used to enhance existing assets, for acquisitions or to reduce debt.
Clark USA acquired the above referenced advance crude oil purchase
receivable in December 1995 from subsidiaries of Occidental Petroleum
Corporation ("Occidental"). The advance crude oil purchase receivable
originally entitled Clark USA to the equivalent of 17.661 million
barrels of West Texas Intermediate crude oil ("WTI") to be delivered
through 2001 according to a defined schedule (the "Occidental
Transaction"). Clark USA had collected value on approximately 1.5
million WTI equivalent barrels on the receivable prior to the sale.
In connection with the Occidental Transaction, Clark USA issued common
stock valued at approximately $120 million, or $22 per share
(3,954,545 shares of Common Stock and 1,500,000 shares of non-voting
Class D Common Stock which were converted into an equal number of
shares of Common Stock), and paid $100 million in cash to Occidental.
Clark USA had contracted to resell the Occidental oil to a marketing
subsidiary of Occidental immediately after delivery at then current
market prices.
Clark USA continues to own an advance crude oil purchase receivable
from subsidiaries of Gulf Resources Corporation ("Gulf") also acquired
in December, 1995. This agreement entitles Clark USA to receive from
1996 through 2001, 3.164 million barrels of certain royalty oil to be
received by Gulf pursuant to agreements among Gulf, an Occidental
subsidiary and the Government of the Congo.
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EXHIBIT INDEX
2.1 Assignment and Assumption Agreement, dated as of October 4, 1996 among
Clark Refining & Marketing, Inc., J. Aron & Company, Clark USA, Inc. and
for limited purposes, Occidental Petroleum Corporation and Occidental
Crude Sales, Inc.
2.2 Assignment and Assumption Agreement, dated as of October 3, 1996 among
Clark USA, Inc. and Clark Refining & Marketing, Inc.
10.1 Agreement Regarding Limited Consent and Waiver to the Amended and
Restated Credit Agreement, dated as of September 30, 1996.
10.2 Fourth Amendment to Amended and Restated Credit Agreement, dated
as of July 12, 1996
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Dated: October 16, 1996 CLARK REFINING & MARKETING, INC.
By: /s/ Dennis R. Eichholz
Dennis R. Eichholz
Controller and Treasurer
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Exhibit 2.1
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of October 4, 1996
(the "Agreement"), among Clark Refining & Marketing, Inc. ("Assignor"),
a Delaware corporation, J. ARON & COMPANY ("Assignee"), a New York
partnership, Clark USA, Inc. ("Clark USA"), a Delaware corporation,
and, solely for the limited purposes of Sections 4.06, 4.08, 4.10 and
4.12(a) hereof and no other, each of Occidental Petroleum Corporation
("OPC"), a Delaware corporation, Occidental C.O.B. Partners ("OCP"),
a Delaware general partnership, and Occidental Crude Sales, Inc.
(International) ("OCS") , a Delaware corporation.
WHEREAS, the Assignor is a party to certain agreements set forth on
Annex A and it desires to assign to Assignee, and Assignee desires
to assume from Assignor, such agreements.
WHEREAS, the Assignor acquired such agreements from Clark USA pursuant
to an Assignment and Assumption Agreement dated as of October 3, 1996
between Clark USA and Assignor (the "USA Assignment" and, together with
this Agreement, the "Agreements").
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties agree as follows:
I. ASSIGNMENT AND ASSUMPTION
SECTION 1.01. Assignment and Assumption. (a) For and in consideration
of the Purchase Price (as defined below) the receipt whereof is hereby
acknowledged by the Assignor, the Assignor does hereby sell, assign and
transfer to the Assignee, effective as of 11:59 p.m. (the "Effective
Time") on October 3, 1996 (the "Effective Date"), all of the Assignor's
right, title and interest (i) in the agreements listed on Annex A annexed
hereto (hereinafter referred to, individually and collectively, as the
"Instruments") and (ii) in the USA Assignment.
(b) The Assignee does hereby, for the benefit of the Assignor and the
other parties to the Instruments, accept this assignment and expressly
assume and agree to hereafter perform, observe and abide by all of the
terms, covenants, conditions and obligations under the Instruments on the
part of the Assignor to be kept, observed and performed thereunder, and
the Assignee does hereby agree to defend and indemnify the Assignor, and
save the Assignor and its successors harmless, of and from any and all
demands, claims, actions or causes of action, assessments, expenses,
costs, damages, losses and liabilities, including reasonable attorneys'
fees and disbursements, that the Assignor or the Assignor's successors
may sustain or incur as a result of the failure of the Assignee, or
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those claiming under or through the Assignee, from and after the
Effective Time on the Effective Date, to keep, observe and perform any
of the terms, covenants, conditions and obligations under the
Instruments that are to be observed or performed from and after the
Effective Time.
SECTION 1.02. Purchase Price. The "Purchase Price" is $235,400,000.00
in immediately available funds delivered by wire transfer to an account
designated by Assignor.
II. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
As an inducement to Assignee to enter into this Agreement, each of
Assignor and Clark USA hereby represents and warrants to Assignee as of
the Effective Time on the Effective Date as follows (such
representations and warranties to survive (i) for a period of six
months after the Effective Time on the Effective Date in the case of
Sections 2.01, 2.02, 2.03, 2.04 and 2.06, and (ii) into perpetuity in
the case of Section 2.05) (provided, however, that the representations
and warranties made by Assignor with respect to Sections 2.01, 2.02,
2.03 and 2.04 are made only with respect to itself):
SECTION 2.01. Organization and Authority of Assignor. Each of
Assignor and Clark USA is a corporation duly organized, validly existing
and in good standing under the laws of Delaware and has all necessary
power and authority to enter into this Agreement and the USA Agreement,
to carry out its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution and
delivery of each of the Agreements by Assignor and Clark USA, the
performance by Assignor and Clark USA of its obligations under the
Agreements and the consummation by Assignor and Clark USA of the
transactions contemplated by the Agreements have been duly authorized
by all requisite action on the part of Assignor and Clark USA. Each
Agreement has been duly executed and delivered by Assignor and Clark
USA, and (assuming due authorization, execution and delivery by the
other parties hereto in the case of this Agreement) each Agreement
constitutes legal, valid and binding obligations of Assignor and Clark
USA enforceable against Assignor and Clark USA in accordance with its
terms.
SECTION 2.02. No Conflict. The execution, delivery and performance
of the Agreements by Assignor and Clark USA does not and will not (a)
violate, conflict with or result in the breach of any provision of the
certificate of incorporation or by-laws of Assignor or Clark USA, (b)
conflict with or violate any law or governmental order applicable to
Assignor or Clark USA, or (c) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or lapse
of time, or both, would become a default) under, require any consent
under, or give to others any rights of termination,
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amendment, acceleration, suspension, revocation or cancellation of any
of the Instruments or of any other agreement binding on or affecting
Assignor or Clark USA or any of either of their assets.
SECTION 2.03. No Default. Each of the Instruments to which Assignor
or Clark USA is a party is in full force and effect and is Assignor's
or Clark USA's, as applicable, legal, valid and binding obligation,
enforceable against Assignor or Clark USA, as applicable, in accordance
with the terms thereof. To Assignor's and Clark USA's best knowledge, no
party to an Instrument is in default thereunder or has breached any
terms or provisions thereof. No third party has given Assignor or Clark
USA notice of any claim, dispute or controversy with respect to any of
the Instruments nor has Assignor or Clark USA received notice of alleged
nonperformance, or other noncompliance by Assignor or Clark USA with
respect to Assignor's and Clark USA's obligations under any of the
Instruments. Neither Assignor or Clark USA is in default under any of
the Instruments or has breached any terms or provisions thereof. The
Instruments have not been amended or supplemented by agreement, course
of conduct or otherwise, other than (i) by the Agreements, (ii) the
reports and notices referenced in Section 2.06 hereof and (iii) notices
delivered to Clark USA in connection with the matters referred to in
Section 4.08 and no waivers have been granted thereunder. There are no
other agreements or instruments that vary the terms of any of the
Instruments. Attached hereto as Annex B are true, correct and complete
copies of the Instruments.
SECTION 2.04. Title; No Liens (a) Immediately prior to the
Effective Time on the Effective Date, Assignor had good and marketable
title to each of the Instruments free and clear of any liens, claims
or encumbrances of any kind (each, a "Lien"), including but not limited
to any Lien of Universal Exchange Corporation ("UEC"), and the Assignor
is hereby transferring to the Assignee pursuant to this Agreement, good
and marketable title to each of the Instruments free and clear of any
Liens.
(b) Immediately prior to the execution and delivery of the USA
Assignment, Clark USA had good and marketable title to each of the
Instruments free and clear of any Liens, including but not limited to
any Lien of UEC, and by executing and delivering the USA Assignment
Clark USA transferred to Assignor good and marketable title to each of
the Instruments free and clear of any Liens.
SECTION 2.05. Delivery of Crude Oil. As of August 31, 1996, 1,452,000
barrels (in barrels of WTI) will have been delivered under the
Instruments at an average WTI Reference Price of $20.03 per barrel
(after deduction of the marketing fee of $0.25 per barrel)
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SECTION 2.06. Reports and Information. Attached hereto as Annex C are
true, correct and complete copies of all reports and notices furnished
to Assignor or Clark USA in connection with the Instruments. The
Assignor has no reason to believe that such information is not accurate
in all material respects.
III. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE
As an inducement to Assignor and Clark USA to enter into this
Agreement, Assignee hereby represents and warrants to Assignor and Clark
USA as of the Effective Time on the Effective Date as follows (such
representations and warranties to survive for a period of six months
after the Effective Time on the Effective Date):
SECTION 3.01. Organization and Authority of Assignee. Assignee is a
partnership duly organized, validly existing and in good standing under
the laws of the State of New York and has all necessary power and
authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Assignee, the performance
by Assignee of its obligations hereunder and the consummation by
Assignee of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of Assignee. This
Agreement has been duly executed and delivered by Assignee and
(assuming due authorization, execution and delivery by the other parties
hereto) this Agreement constitutes legal, valid and binding obligations
of Assignee, enforceable against Assignee in accordance with its terms.
SECTION 3.02. No Conflict. The execution, delivery and performance of
this Agreement by Assignee do not and will not (a) violate, conflict
with or result in the breach of any provision of the partnership
agreement or organizational documents of Assignee or (b) conflict with
or violate any law or governmental order applicable to Assignee.
SECTION 3.03. Assignee Business. Assignee is not, and is not an
affiliate of, one of the twenty (20) largest international oil
companies, as measured by revenue, as of the most recent calendar year
for which such information is available.
IV. MISCELLANEOUS
SECTION 4.01. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees
and disbursements of counsel, financial advisors and accountants,
incurred in connection with this
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Agreement and the transactions contemplated hereby shall be paid
by the party incurring such costs and expenses.
SECTION 4.02. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given
or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by courier service, by facsimile, or
by registered or certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in
accordance with this Section 4.02):
(a) if to Assignor:
Clark Refining & Marketing, Inc.
8182 Maryland Avenue
St. Louis, Missouri 63105-3721
Attn: Maura Clark
Facsimile: (314) 854-1580
(b) If to Clark USA
Clark USA, Inc.
8182 Maryland Avenue
St. Louis, Missouri 63105-3721
Attn: Maura Clark
Facsimile: (314) 854-1580
(c) if to Assignee:
J. Aron & Company
85 Broad Street
New York, New York 10004
Attn: W. Thaddeus Miller
Facsimile: 212-902-3876
(d) if to OPC:
Occidental Petroleum Corporation
10889 Wilshire Blvd.
Los Angeles, California 90024
Attn: Treasurer
Facsimile: (310) 443-6661
(e) if to OCS:
Occidental Crude Sales, Inc. (International)
1200 Discovery Drive
Bakersfield, California 93309-7008
Attn: Lynn T. Boulware,
Director of Financial Services
Facsimile: (805) 321-6829
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(f) if to OCP:
OXY USA, Inc.
1200 Discovery Drive
Bakersfield, California 93309-7008
Attn: Lynn T. Boulware,
Director of Financial Services
Facsimile: (805) 321-6829
SECTION 4.03. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 4.04. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
law or public policy, all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is
not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 4.05. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and undertakings, both
written and oral, between the parties with respect to the subject
matter hereof.
SECTION 4.06. Assignment; Parties in Interest. No party to this
Agreement (or any assignee of a party to this Agreement or any assignee
of such assignee) shall have the right to assign its rights and
obligations under this Agreement without the prior written consent of
each other party (which consent shall not be unreasonably withheld);
provided, however, that, without any consent of any other party to this
Agreement being necessary, (i) Assignee may assign all or any portion
of its rights and obligations under this Agreement to The Goldman Sachs
Group, L.P. (including any successor entity, "Group") or any company a
majority of the voting interests in which are owned or controlled by
Group and (ii) in connection with any securitization of this Agreement
(the "Securitization") Assignee and any Securitization vehicle shall
have the right to assign or otherwise transfer all or any portion of
its rights and obligations under this Agreement to any Securitization
vehicle that assumes such obligations. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto (and any
Securitization vehicle or other proper assignee of the Assignee or any
Securitization vehicle in accordance with this Section 4.06), and
nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement provided that the
provisions of Section 1.01(b) and Section 3.03 shall also be for the
benefit of the other parties to the Instruments. Each party to this
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Agreement acknowledges and agrees that the provisions of this Section
4.06 pertain only to assignments of the rights and obligations of the
parties under this Agreement and do not pertain, and have no effect on,
the right of the Assignee to assign or otherwise dispose of the
Instruments (it being understood that the right of the Assignee or any
successor to assign or otherwise dispose of the Instruments or any of
its rights or obligations thereunder shall be governed solely by the
terms of the Instruments).
SECTION 4.07. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. With
respect to any suit, action or proceedings relating to this Agreement,
each party irrevocably submits to the non-exclusive jurisdiction of the
courts of the State of New York and federal courts located in the
Borough of Manhattan in New York City and of the courts of the State of
Missouri and federal courts located in St. Louis.
SECTION 4.08. Contract Crude Oil. OCP acknowledges that (i) the
provisions of Section 2.04 of the Purchase Contract (as defined in
Annex A) shall be of no force or effect, and (ii) it has no, and waives
any, right pursuant to Section 2.04 of the Purchase Contract to reduce
the number of Barrels of Contract Crude Oil (both as defined in such
Purchase Contract) it is obligated to deliver.
SECTION 4.09. Indemnification. Each of the Assignor and the Assignee
agrees to indemnify the other from and hold it harmless against any and
all losses, damages, liabilities, claims and costs (including attorneys
fees) which the indemnified party may sustain by reason of any breach by
the indemnifying party of any of the representations, warranties and
agreements by the indemnifying party contained in this Agreement. Each
of the Assignor and the Assignee acknowledges that its obligations under
this Section 4.09 shall survive any assignment of its rights and
obligations under this Agreement made in accordance with Section 4.06.
SECTION 4.10. Further Assurances. Each of Assignor, Clark USA, OPC,
OCS and OCP agrees to execute and deliver such additional documents, and
take such additional steps, as either Assignee or any proper transferee
from Assignee in accordance with Section 4.06 (including a
Securitization vehicle) may reasonably request in order to more fully
give effect to the
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sale, assignment, transfer and assumption provided
for in Article I and to assist in the consummation of the
Securitization, provided, however, that neither OPC, OCS or OCP shall
be required to execute and deliver any document or take any action if
the result thereof is to (i) cause such party to incur any expense which
is not reimbursed to it by Assignee or a proper transferee of Assignee
in accordance with Section 4.06 or (ii) subject OPC, OCS or OCP to
liability. Each of OCP, OCS and OPC also acknowledges that Assignee
is planning a Securitization and will make a standard non-petition
covenant with respect to any bankruptcy remote Securitization vehicle
upon the request of one or more rating agencies.
SECTION 4.11. Interpretations. (a) It is Assignor's and Clark USA's
understanding that for purposes of Section 1 of the L/C Agreement (as
defined in Annex A), if an amount is drawn under the L/C (as defined in
Annex A), and it is determined (through arbitration, by agreement of the
parties or otherwise) that a portion of such draw was made for a purpose
permitted under the L/C Agreement (the "Permitted Amount") and that the
balance of such draw was not made for a purpose permitted under the L/C
Agreement (the "Impermissible Amount") , OPC (i) shall be required in
accordance with the terms of the L/C Agreement to cause the amount
available to be drawn under the L/C to be increased by an amount equal
to the Permitted Amount and (ii) shall be entitled to receive a refund
of an amount equal to the Impermissible Amount from the person that
drew it.
(b) It is Assignor's and Clark USA's understanding that all
references to "WTI (at Cushing, Oklahoma), as published in Platt's" in
the definition of "WTI Reference Price" in any of the Instruments refers
to the WTI price on line 1 in Platt's Oilgram Price Report.
SECTION 4.12. Miscellaneous. (a) Each of OCS and OCP shall deliver to
Assignee (with a copy to Assignor) (in each case in accordance with
Section 4.02) information (including, without limitation, monthly
statements) of the type and content that have been furnished to Clark
USA in connection with any of the Instruments on a similar schedule.
(b) Assignor agrees to instruct OCS and OCP (i) to make all payments
that OCS is obligated to make pursuant to the Marketing Contract
(as defined in Annex A) in respect of Delivery Dates (as defined in the
Marketing Contract) on
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or after September 1, 1996 to Assignee and (ii) to replace Assignor with
Assignee in all oil contracts entered into pursuant to the Purchase
Contract and the Marketing Contract (both as defined in Annex A) after
the Effective Date.
SECTION 4.13. Use of Proceeds Assignor agrees to use and apply all
amounts received pursuant to Section 1.02 hereof in accordance with the
terms of each agreement binding on or affecting Assignor or Clark USA
or any of their respective assets, including, without limitation, the
following: (i) the Indenture dated as of September 15, 1992, as amended,
between Assignor and Nationsbank of Virginia, N.A., as Trustee,
relating to $175,000,000 9-1/2% Senior Notes due September 15, 2004;
(ii) the Indenture dated as of December 1, 1991, between Assignor and
Sovran Bank, NA., as Trustee, relating to $225,000,000 10-1/2% Senior
Notes due December 1, 2001; (iii) the Indenture dated as of May 15,
1993, as amended, between Clark USA and Bankers Trust Company, as
Trustee, relating to $264,000,000 Senior Secured Zero Coupon Notes due
2000; and (iv) the Indenture dated as of December 1, 1995, between
Clark USA and The Chase Manhattan Bank, N.A., as Trustee, relating to
$175,000,000 Senior Notes due 2005.
<PAGE> 10
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
CLARK REFINING & MARKETING, INC.
By: /s/ M. J. Clark
Name: Maura J. Clark
Title: Executive Vice President
& Chief Financial Officer
CLARK USA, INC.
By: /s/ M. J. Clark
Name: Maura J. Clark
Title: Executive Vice President
& Chief Financial Officer
J. ARON & COMPANY
By: /s/ Steven M. Schultz
Name: Steven M. Schultz
Title: Partner
<PAGE> 11
As of the date first written above, the undersigned hereby consent to the terms
hereof, and on their own behalf acknowledge and agree to the provisions of
Sections 4.06, 4.08, 4.10 and 4.12(a).
OCCIDENTAL PETROLEUM CORPORATION
By: /s/ John W. Alden
Name: John W. Alden
Title: Assistant Secretary and
Assistant Treasurer
OCCIDENTAL C.O.B. PARTNERS
By OXY USA, Inc., its Managing Partner
By: /s/ John W. Alden
Name: John W. Alden
Title: Assistant Secretary
OCCIDENTAL CRUDE SALES, INC.
(INTERNATIONAL)
By: /s/ Linda S. Peterson
Name: Linda S. Peterson
Title: Vice President and Secretary
<PAGE> 12
Annex A
1. Crude Oil Purchase Contract (the "Purchase Contract"), dated as of
December 1, 1995, between Occidental C.O.B. Partners and Clark U.S.A., Inc.
2. Crude Oil Marketing Contract (the "Marketing Contract"), dated as of
December 1, 1995, between Clark U.S.A., Inc. and Occidental Crude Sales, Inc.
(International) ("OCS").
3. Guaranty, dated as of December 1, 1995 (the "Guaranty"), from Occidental
Petroleum Corporation in favor of Clark U.S.A., Inc. of the obligations of
OCP and OCS under the Purchase Contract and the Marketing Contract,
respectively.
4. Letter of Credit Agreement (the "L/C Agreement"), dated as of December 1,
1995, between Clark U.S.A., Inc. and Occidental Petroleum Corporation.
5. Designation Agreement, dated as of December 1, 1995, between Clark USA,
Inc. and Occidental C.O.B. Partners.
6. Irrevocable Letter of Credit No. LASB-226690 dated (the "L/C") November
28, 1995, as amended, issued by the Bank of America National Trust and Savings
Association in favor of Clark USA, Inc.
<PAGE> 1
Exhibit 2.2
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of October 3, 1996,
between CLARK USA, INC. ("Assignor"), a Delaware corporation, and Clark
Refining & Marketing, Inc., a Delaware corporation, ("Assignee").
WHEREAS, the Assignor is a party to certain contracts set forth on
Annex A and it desires to assign to Assignee, and Assignee desires to assume
from Assignor, such contracts.
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor does hereby
contribute, sell, assign and transfer to the Assignee, effective as of the
date hereof, all of the Assignor's right, title and interest in the agreements
listed on Annex A annexed hereto, together with all of the Assignor's right,
title and interest in and to any and all instruments amending, supplementing
or in any way affecting said agreements (hereinafter referred to,
individually and collectively, as the "Instruments").
(b) The Assignee does hereby, for the benefit of the Assignor and
the other parties to the Instruments, accept this Assignment and expressly
assume and agree to hereafter perform, observe and abide by all of the terms,
covenants, conditions and obligations under the Instruments on the part of the
Assignor to be kept, observed and performed thereunder, and the Assignee does
hereby agree to defend and indemnify the Assignor, and save the Assignor and
its successors harmless, of and from any and all demands, claims, actions or
causes of action, assessments, expenses, costs, damages, losses and
liabilities, including reasonable attorneys' fees and disbursements, that the
Assignor or the Assignor's successors may sustain or incur as a result of the
failure of the Assignee, or those claiming under or through the Assignee, from
and after the date hereof, to keep, observe and perform any of the terms,
covenants, conditions and obligations under the Instruments.
2. Expenses. All costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and accountants, incurred
in connection with this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such costs and expenses.
3. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the successors or assigns of Assignor or Assignee.
<PAGE> 2
4. Governing Law This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, applicable to
contracts executed in and to be performed entirely within that state.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized
CLARK USA, INC.
By: /s/ M. J. Clark
Name: Maura J. Clark
Title: Executive Vice President
& Chief Financial Officer
CLARK REFINING & MARKETING, INC.
By: /s/ M. J. Clark
Name: Maura J. Clark
Title: Executive Vice President
& Chief Financial Officer
<PAGE> 3
Annex A
1. Crude Oil Purchase Contract, dated as of December 1, 1995, between
Occidental C.O.B. Partners and Clark U.S.A., Inc.
2. Crude Oil Marketing Contract, dated as of December 1, 1995, between
Clark U.S.A., Inc. and Occidental Crude Sales, Inc. (International) ("OCS").
3. Guaranty, dated as of December 1, 1995, from Occidental Petroleum
Corporation in favor of Clark U.S.A., Inc. of the obligations of OCP and OCS
under the Purchase Contract and the Marketing Contract, respectively.
4. Letter of Credit Agreement, dated as of December 1, 1995, between Clark
U.S.A., Inc. and Occidental Petroleum Corporation.
5. Letter of Credit No. LASB-226690 dated November 28, 1995, as amended,
issued by the Bank of America in favor of Clark USA, Inc.
6. Designation Agreement, dated as of December 1, 1995, between Clark USA,
Inc. and Occidental C.O.B. Partners.
<PAGE> 1
Exhibit 10.1
AGREEMENT REGARDING LIMITED CONSENT AND WAIVER
This Agreement Regarding Limited Consent and Waiver (this "Agreement")
is dated as of September 30, 1996 and is entered into by and among
Clark Refining & Marketing, Inc., a Delaware corporation (the
"Company"), and the financial institutions party hereto (the "Banks").
RECITALS
WHEREAS, the Company has entered into the Amended and Restated
Credit Agreement dated as of April 19, 1995 with the financial
institutions party thereto, as amended by (i) the First Amendment
to Amended and Restated Credit Agreement dated as of June 14, 1995,
(ii) the Second Amendment to Amended and Restated Credit Agreement
dated as of November 27, 1995, (iii) the Third Amendment to Amended
and Restated Credit Agreement dated as of January 31, 1996, and (iv)
the Fourth Amendment to Amended and Restated Credit Agreement dated
as of July 12, 1996 (as so amended, the "Credit Agreement") Capitalized
terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
WHEREAS, Holdings has entered into a crude oil supply arrangement
consisting of (i) a Crude Oil Purchase Contract dated as of December 1,
1995 between Holdings and Occidental C.O.B. Partners, (ii) a Crude Oil
Marketing Contract dated as of December 1, 1995 between Holdings and
Occidental Crude Sales, Inc., (iii) a Letter of Credit Agreement dated
as of December 1, 1995 between Holdings and Occidental Petroleum
Corporation, and (iv) a Guaranty of occidental Petroleum Company
in favor of Holdings dated as of December 1, 1995 (collectively, the
"Crude Oil Purchase Agreements").
WHEREAS, Holdings has entered into various hedging and forward sale
contracts (the "Forward Contracts") with various financial and trading
institutions that relate to deliveries expected under the Crude Oil
Purchase Agreements.
WHEREAS, there would be a positive cash value resulting from the
liquidation of Holdings' position with respect to the Crude Oil Purchase
Agreements and the Forward Contracts.
WHEREAS, Holdings desires to assign and contribute as additional
capital to the Company, in exchange for newly issued shares of the
Company, all of Holdings' interests in the Crude Oil Purchase Agreements
and the Forward Contracts.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and Covenants herein contained, the parties
hereto agree as follows:
<PAGE> 2
1. Contribution by Holdings. An amount equal to the cash proceeds
(net of all costs and expenses incurred by Holdings or the Company in
connection with the transactions Contemplated hereby) that result from
the transfer described in Section 2(ii) below (such amount being the
"Net Cash Proceeds") shall be deemed to be a contribution by Holdings
of additional capital to the Company in the form of cash.
2. Consent to Dividends. The undersigned Banks hereby consent to
(i) one or more cash dividends (the "Dividends") declared and made by
the Company to Holdings in an aggregate amount not exceeding the Net
Cash Proceeds and (ii) the sale or assignment of all of the Company's
interests in the Crude Oil Purchase Agreements and the Forward Contracts
to a third party.
3. Limited Waiver. The undersigned Banks hereby waive compliance by
the Company with the requirements of Sections 8.02 (regarding
disposition of assets) and 8.11 (regarding restricted payments) of the
Credit Agreement, to the extent, and only to the extent, necessary to
permit Holdings and the Company to consummate the transactions described
in Sections 1 and 2 of this Agreement.
4. Conditions Precedent. This Agreement shall become effective upon
the satisfaction in full of each of the following conditions:
(i) each of the Company, the Administrative Agent and Banks sufficient
to constitute Majority Banks under the Credit Agreement shall have
executed and delivered to Administrative Agent a counterpart signature
page hereto; and
(ii) Administrative Agent, on behalf of the Banks, shall have received
an opinion of Mayer, Brown & Platt, counsel to the Company, addressed
to the Administrative Agent and the Banks, in form and substance
satisfactory to Administrative Agent and the Banks.
5. Effect. The agreements and waivers set forth herein shall be
limited precisely as written and nothing in this Agreement shall be
deemed to waive any other term, provision or condition of the Credit
Agreement or prejudice any right or remedy that the Banks or the
Administrative Agent may now have or may in the future have under or
in connection with the Credit Agreement. Except as expressly set forth
herein, the terms, provisions and conditions of the Credit Agreement
shall remain in full force and effect and in all other respects are
hereby ratified and confirmed.
6. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
<PAGE> 3
7. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an
original, but all such counterparts together shall constitute but one
and the same instrument.
[remainder of page intentionally blank]
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
CLARK REFINING & MARKETING, INC.
By: /s/ M. J. Clark
Name: Maura J. Clark
Title: Executive Vice President
& Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: /s/ Judith L. Kramer
Name: Judith L. Kramer
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as an
Issuing Bank and as a Bank
By: /s/ David E. Sisler
Name: David E. Sisler
Title: Vice President
THE TORONTO-DOMINION BANK, as
Syndications Agent, as a
Co-Arranger, as an Issuing Bank
and as a Bank
` By: /s/ L. Allison
Name: Lisa Allison
Title: Manager, Credit Administration
<PAGE> 5
BANKERS TRUST COMPANY, as
Documentation Agent, as a Co-Arranger,
as an Issuing Bank and as a Bank
By: /s/ Basil Palmeri
Name: Basil Palmeri
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON, as an Issuing Bank and
as a Bank
By: /s/ Christopher Holmgren
Name: Christopher Holmgren
Title: Director
BANK OF AMERICA ILLINOIS, N.A.,
as an Issuing Bank
By: /s/ David Sisler
Name: David Sisler
Title: Vice President
UNION BANK, as a Bank
By: /s/ W. M. Roth
Name: Walter M. Roth
Title: Vice President
<PAGE> 6
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By:
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH, as a Bank
By:
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., CHICAGO BRANCH, as
a Bank
By:
Name:
Title:
NBD BANK, as a Bank
By: /s/ Steven P. Capouch
Name: Steven P. Capouch
Title: First Vice President
<PAGE> 7
ABN AMRO BANK N.V , CHICAGO
BRANCH, as a Bank
By: /s/ Scott J. Albert
Name: Scott J. Albert
Title: Vice President
By: /s/ Mary L. Honda
Name: Mary L. Honda
Title: Vice President
BANK OF SCOTLAND, NEW YORK
BRANCH, as a Bank
By: /s/ Catherine M. Oniffrey
Name: Catherine M. Oniffrey
Title: Vice President
THE FUJI BANK, LIMITED, CHICAGO
BRANCH, as a Bank
By: /s/ Hidekazu Seo
Name: Hidekazu Seo
Title: General Manager
COMERICA BANK, as a Bank
By: /s/ Darlene Persons
Name: Darlene Persons
Title: Vice President
<PAGE> 8
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Bank
By: /s/ Hiroski Nakamura
Name: Hiroaki Nakamura
Title: Joint General Manager
NATIONAL CITY BANK, as a Bank
By:
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH, as
a Bank
By: /s/ Masaaki Yamagishi
Name: Masaaki Yamagishi
Title: Chief Manager
THE YASUDA TRUST AND BANKING
CO., LTD., CHICAGO BRANCH
as a Bank
By: /s/ Joseph C. Meek
Name: Joseph C. Meek
Title: Deputy General Manager
WELLS FARGO BANK, N.A.,
as a Bank
By:
Name:
Title:
<PAGE> 1
` Exhibit 10.2
CLARK REFINING & MARKETING, INC.
FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(the "Amendment") is dated as of July 12, 1996 and entered into by and
among Clark Refining & Marketing, Inc., a Delaware corporation, Bank of
America National Trust and Savings Association, a national banking
association, as Administrative Agent, Bankers Trust Company, a New York
Banking corporation, as Documentation Agent, The Toronto-Dominion Bank, a
Canadian chartered bank, as Syndication Agent, BA Securities, Inc., a
Delaware corporation, as Technical Agent, and the other financial
institutions party hereto. This Amendment amends the Amended and
Restated Credit Agreement dated as of April 19, 1995, as amended by (i)
the First Amendment to Amended and Restated Credit Agreement dated as of
June 14, 1995, (ii) the Second Amendment to Amended and Restated
Credit Agreement dated as of November 27, 1995 and (iii) the Third
Amendment to Amended and Restated Credit Agreement dated as of January
31, 1995 (as amended, the "Credit Agreement"), by and among the parties
hereto. Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, the parties hereto entered into the Credit Agreement,
which provides for aggregate Commitments of $400,000,000;
WHEREAS, the parties hereto desire to make certain amendments
as set forth below.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties
hereto agree as follows;
Article I.
AMENDMENTS TO THE CREDIT AGREEMENT
1.01 Amendment to Section 1.01: Certain Defined Terms. The
definition of "Long Term Treasury Securities" set forth in Section 1.01
of the Credit Agreement is hereby amended by deleting it in its
entirety and substituting the following therefor:
<PAGE> 2
"Long Term Treasury Securities" means (a) the U.S. Treasury
Notes specified in Schedule 1.01(d) owned by the Company on the Closing
Date and (b) U.S. Treasury Notes or similar investments backed by the
full faith and credit of the United States with maturities not exceeding
five years.
1.02 Amendments to Section 8.01: Limitation on Liens.
(a) Subsection 8.01(n) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting the following
therefor:
"(n) Liens (other than Liens on the Collateral) (i)
arising from precautionary filings of UCC Financing Statements relating
solely to operating leases permitted by this Agreement and (ii) on
equipment or intangible assets purchased in connection with an operating
lease permitted by this Agreement granted to secure obligations under
such operating lease."
(b) Section 8.01 is hereby amended by adding the following new
subsection (r) at the end thereof:
"(r) Liens (other than Liens on the Collateral) to provide
additional security for obligations under operating leases or
Capitalized Leases permitted by this Agreement not exceeding
$30,000,000, which Liens shall be in addition to the Liens permitted
pursuant to subsections (k) and (n) of this Section 8.01."
Article II.
EFFECTIVENESS OF AMENDMENTS
This Amendment shall become effective on the opening of business in
San Francisco on the Business Day (the "Fourth Amendment Effective
Date") on which the Administrative Agent has notified the Company and
the Banks that the Administrative Agent has (i) executed a counterpart
signature page of this Amendment and (ii) received executed counterpart
signature pages of this Amendment from the Company and the Majority
Banks.
<PAGE> 3
Article III.
MISCELLANEOUS
3.01 Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(a) On and after the Fourth Amendment Effective Date,
each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import
referring to the Credit Agreement, and each reference in the
other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement
as amended by this Amendment.
(b) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right,
power or remedy of the Administrative Agent, any Bank or any
Issuing Bank under, the Credit Agreement or any of the other
Loan Documents.
3.02 Headings. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given
any substantive effect.
3.03 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
3.04 Counter Parts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one
and the same instrument.
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
CLARK REFINING & MARKETING, INC.
By: /s/ M. J. Clark
Name: Maura J. Clark
Title: Executive Vice President
& Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: /s/ Kay S. Warren
Name: Kay S. Warren
Title: Vice President
BA SECURITIES, INC.,
as Technical Agent
By: N/A
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as an
Issuing Bank and as a Bank
By: /s/ David E. Sisler
Name: David E. Sisler
Title: Vice President
<PAGE> 5
THE TORONTO-DOMINION BANK, as
Syndications Agent, as a Co-Arranger,
as an Issuing Bank and as a Bank
By: /s/ L. Allison
Name: Lisa Allison
Title: Manager, Credit Administration
BANKERS TRUST COMPANY, as
Documentation Agent, as a Co-Arranger,
as an Issuing Bank and as a Bank
By: /s/ Basil Palmeri
Name: Basil Palmeri
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON, as an Issuing Bank and
as a Bank
By: /s/ Christopher Holmgren
Name: Christopher Holmgren
Title: Director
BANK OF AMERICA ILLINOIS, N.A.,
as an Issuing Bank
By: /s/ David Sisler
Name: David Sisler
Title: Vice President
<PAGE> 6
UNION BANK, as a Bank
By: /s/ W. M. Roth
Name: Walter M. Roth
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By: /s/ Jacques-Yves Mulliez
Name: Jacques-Yves Mulliez
Title: Senior Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH, as a Bank
By: /s/ Jacques-Yves Mulliez
Name: Jacques-Yves Mulliez
Title: Authorized Signature
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., CHICAGO BRANCH, as
a Bank
By: /s/ Armund J. Schoen, Jr.
Name: Armund J. Schoen, Jr.
Title: V.P. & Deputy General Manager
NBD BANK, as a Bank
By: /s/ William V. Clifford
Name: William V. Clifford
Title: Vice President
<PAGE> 7
ABN AMRO BANK N.V , CHICAGO
BRANCH, as a Bank
By: /s/ Scott J. Albert
Name: Scott J. Albert
Title: Vice President
By: /s/ Mary L. Honda
Name: Mary L. Honda
Title: Vice President
BANK OF SCOTLAND, NEW YORK
BRANCH, as a Bank
By: /s/ Catherine M. Oniffrey
Name: Catherine M. Oniffrey
Title: Vice President
THE FUJI BANK, LIMITED, CHICAGO
BRANCH, as a Bank
By: /s/ Hidekazu Seo
Name: Hidekazu Seo
Title: Joint General Manager
COMERICA BANK, as a Bank
By: /s/ Thomas J. Parnell
Name: Thomas J. Parnell
Title: Vice President
<PAGE> 8
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Bank
By: /s/ Hiroski Nakamura
Name: Hiroaki Nakamura
Title: Joint General Manager
NATIONAL CITY BANK, as a Bank
By: /s/ Barry C. Robinson
Name: Barry C. Robinson
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH, as
a Bank
By: /s/ Masaaki Yamagishi
Name: Masaaki Yamagishi
Title: Chief Manager
THE YASUDA TRUST AND BANKING
CO., LTD., CHICAGO BRANCH
as a Bank
By: /s/ Joseph C. Meek
Name: Joseph C. Meek
Title: Deputy General Manager
WELLS FARGO BANK, N.A.,
as a Bank
By: /s/ Charles D. Kirkham
Name: Charles D. Kirkham
Title: Vice President
