EXHIBIT 10.13
LIMITED WAIVER AND AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS LIMITED WAIVER AND AMENDMENT NO. 3 TO CREDIT AGREEMENT ("Amendment No. 3")
is dated as of March 24, 2003 and is made by and among UNITED REFINING COMPANY,
a Pennsylvania corporation ("United Refining'), UNITED REFINING COMPANY OF
PENNSYLVANIA, a Pennsylvania corporation ("United Refining of PA"), KIANTONE
PIPELINE CORPORATION, a New York corporation ("Kiantone"), COUNTRY FAIR, INC., a
Pennsylvania corporation ("Country Fair"), MANUFACTURERS AND TRADERS TRUST
COMPANY ("M&T") and PNC BANK, NATIONAL ASSOCIATION ("PNC") as Agent ("Agent").
WITNESSETH:
WHEREAS, United Refining, United Refining of PA, Kiantone and Country
Fair as Borrowers (collectively, the "Borrowers"), PNC and the Banks (as defined
in the Credit Agreement, the "Banks") are party to that certain Amended and
Restated Credit Agreement dated as of July 12, 2002, as amended by that
Amendment No. 1 to Credit Agreement dated as of November 27, 2002 and as amended
by that Limited Waiver and Amendment No. 2 dated as of February 19, 2003 (as
amended, restated, supplemented or modified, the "Credit Agreement");
WHEREAS, capitalized terms used herein shall have the meanings given to
them in the Credit Agreement;
WHEREAS, Section 7.2.15 of the Credit Agreement provides in part that
the Fixed Charge Coverage Ratio must equal 1.0 to 1.0 as of the Measurement Date
occurring on February 28, 2003;
WHEREAS, Borrowers' Fixed Charge Coverage Ratio was less than 1.0 to
1.0 as of February 28, 2003 and the Borrowers have requested that the Banks
waive the requirement that Borrowers comply with the covenant set forth in
Section 7.2.15 for the period ended February 28, 2003 subject to the terms and
conditions hereof;
WHEREAS, Borrowers have also requested that the Banks amend the
covenant set forth in Section 7.2.15 subject to the terms and conditions hereof;
WHEREAS, the Loan Parties and the Banks desire to amend the Credit
Agreement to make certain other modifications as more fully set forth herein.
NOW, THEREFORE, the parties hereto and in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Amendment of Definitions. The following definitions in Section 1.1
of the Credit Agreement shall be amended and restated as follows:
"Fixed Charge Coverage Ratio shall mean and include, with respect to
any fiscal period, the ratio of (a) EBITDA to (b) interest expense, scheduled
principal payments on Indebtedness (excluding principal payments on Loans),
current portion of income tax expense, non-financed capital expenditures
(capital expenditures which are (1) not financed with Indebtedness (other than
Revolving Credit Loans) or (2) financed with Revolving Credit Loans) to the
extent that the amount thereof exceeds $5,000,000 in the aggregate over the
relevant reporting period (i.e. 1,2, 3 or 4 quarters as provided for in Section
7.2.15), plus payments for stock repurchases during such period."
"Revolving Credit Commitment shall mean, as to any Bank at anytime,
the amount initially set forth opposite its name on Schedule 1.1(B) for the
relevant time period in the column labeled "Amount of Commitment for Revolving
Credit Loans," and thereafter on Schedule I to the most recent Assignment and
Assumption Agreement, and Revolving Credit Commitments shall mean the aggregate
Revolving Credit Commitments of all of the Banks."
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2. Amendment of Section 1.3 of the Credit Agreement. Section 1.3 of the
Credit Agreement is hereby amended and restated as follows:
"1.3 Accounting Principles.
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and prepared
in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP; provided, however, that all accounting terms
used in Section 7.2 [Negative Covenants] (and all defined terms used in the
definition of any accounting term used in Section 7.2 shall have the meaning
given to such terms (and defined terms) under GAAP as in effect on the date
hereof applied on a basis consistent with those used in preparing the Annual
Statements referred to in subsection 5.1.9(i) [Historical Statements].
Notwithstanding the foregoing, for all periods subsequent to November 30, 2002,
inventory shall be valued based on the first in first out lower of cost or
market method. In the event of any change after the date hereof in GAAP, and if
such change would result in the inability to determine compliance with the
financial covenants set forth in Section 7.2 based upon a Borrower's regularly
prepared financial statements by reason of the preceding sentence, then the
parties hereto agree to endeavor, in good faith, to agree upon an amendment to
this Agreement that would adjust such financial covenants in a manner that would
not affect the substance thereof, but would allow compliance therewith to be
determined in accordance with such Borrower's financial statements at that
time."
3. Amendment of Section 7.2.15 of the Credit Agreement. Section 7.2.15
of the Credit Agreement is hereby amended and restated as follows:
"7.2.15 Minimum Fixed Charge Coverage Ratio.
The Loan Parties shall not permit the Fixed Charge Coverage
Ratio, calculated as of the end of each fiscal quarter set forth below (each a
"Measurement Date") for the period set forth below (each a "Measurement Period")
to be less than the ratio set forth below for the periods specified:
Measurement Date Measurement Period Minimum Ratio
---------------- ------------------ -------------
May 31, 2002 Quarter then ended 1.0 to 1.0
August 31, 2002 Two quarters then ended 1.0 to 1.0
November 30, 2002 Three quarters then ended 1.0 to 1.0
February 28, 2003 Quarter then ended 1.75 to 1.0
May 31, 2003 Two quarters then ended 1.25 to 1.0
August 31, 2003 Three quarters then ended 1.25 to 1.0
November 30, 2003 and each Four quarters then ended 1.0 to 1.0
fiscal quarter thereafter
4. Amendments to Schedules: Temporary Increase in Commitments. Schedule
1.1(B) is hereby amended and restated in its entirety to read as set forth on
Schedule 1.1 (B) hereto. In connection with the temporary increase in
Commitments, the Borrowers shall repay all of the Loans, subject to the
Borrowers' obligation under Section 4.6.2 [Indemnity] of the Credit Agreement,
on the date hereof, and the Borrowers shall re-borrow the same amount of Loans
on such date without the necessity of a Loan Request or without other notice to
the Agent or the Banks. Thereafter, the Banks shall (i) participate in the new
Loans, and (ii) make Participation Advances for Letters of Credit, on and after
the date hereof ratably according to their Revolving Credit Commitments as
modified on such date.
5. Amendments to Revolving Credit Notes. The Revolving Credit Notes
made by Borrowers in favor of each Bank are hereby amended and restated to
reflect the maximum Revolving Credit Commitment of each such Bank, and the
Borrowers shall execute and deliver new Revolving Credit Notes evidencing such
increased Revolving Credit Commitments on or prior to the Effective Date of this
Amendment No. 3.
6. Waiver. Prior to giving effect to the amendment to the Fixed Charge
Coverage Ratio provided for herein, the Borrowers were required to maintain a
Fixed Charge Coverage Ratio of 1.0 to 1.0 for the
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four quarters ended February 28, 2003. The Banks hereby waive the requirement
that the Borrowers comply with the covenant set forth in Section 7.2.15 that the
Borrowers maintain a Fixed Charge Coverage Ratio of 1.0 to 1.0 for the four
quarters ended February 28, 2003, provided that (i) the Borrowers hereby
represent and warrant and covenant that the Fixed Charge Coverage Ratio was at
least, after giving effect to this Amendment No. 3, (a) .84 to 1.0 as of the
four quarters ended February 28, 2003 and (b) 1.75 to 1.0 for the quarter ended
February 28, 2003 and (ii) the Borrowers' compliance certificate to be delivered
under Section 7.3.3 of the Credit Agreement for the four quarters ended and for
the quarter ended February 28, 2003 shall evidence that the Fixed Charge
Coverage Ratio equaled or exceeded the relevant ratios required in clause (i) of
this sentence for the four quarters ended February 28, 2003 and the quarter
ended February 28, 2003 respectively. Any breach of the warranty contained in
clause (i) of the preceding sentence shall constitute an Event of Default under
the Credit Agreement on and after the date hereof The Banks do not waive the
covenant contained in Section 7.2.15 for periods prior to or after February 28,
2003.
7. Conditions to Effectiveness. This Amendment No. 3 shall be effective
on the date (the "Effective Date") on which each of the following conditions
have been satisfied: (i) Borrowers shall pay to the Agent for the benefit of the
Banks (a) a fee of $200,000 on account of the increase in Revolving credit
Commitments, to be allocated to the Banks according to their pro rata share of
the increase in Revolving Credit Commitments after giving effect to the increase
in Revolving Credit Commitments provided for in this Amendment No. 3, and (b) a
fee of $50,000 on account of the amendments provided for herein, to be allocated
to the Banks according to their pro rata share of the Revolving Credit
Commitments prior to giving effect to the increase in Revolving Credit
Commitments provided for in this Amendment No. 3, (ii) there shall have been
delivered to the Agent for the benefit of each Bank a certificate dated as of
the date hereof and signed by the Secretary or an Assistant Secretary of each of
the Loan Parties certifying as appropriate to: (a) all corporate action taken by
each Loan Party in connection with this Amendment No. 3 together with a copy of
the resolutions of each Loan Party evidencing same; (b) the names of the officer
or officers authorized to sign this Amendment No. 3 and the true signatures of
such officer or officers and specifying the officers authorized to act on behalf
of each Loan Party for purposes of this Amendment No. 3 and the true signatures
of such officers, on which the Agent and each Bank may conclusively rely; and
(c) a certificate from the Secretary or Assistant Secretary stating that each
Loan Party's organizational documents, including its certificate or articles of
incorporation and bylaws have not changed since the Closing Date and are in
effect on the date hereof as on the Closing Date together with certificates of
the appropriate state officials as to the continued existence and good standing
of each Loan Party in each state where organized or qualified to do business,
(iii) the Borrowers shall have executed and delivered to the Agent a Revolving
Credit Note in favor of each Bank evidencing the total amount of Revolving
Credit Commitment of such Bank, (iv) Borrowers shall pay all of Agent's
outstanding legal fees and expenses through the Effective Date, (v) this
Amendment No. 3 shall have been executed by the Banks, the Agent and the
Borrowers and delivered to the Agent, (vi) the Borrowers shall repay all of the
Loans, subject to the Borrowers' obligation under Section 4.6.2 [Indemnity] of
the Credit Agreement, on the date hereof, and (vii) the Borrowers shall
re-borrow the same amount of Loans on such date without the necessity of a Loan
Request or without other notice to the Agent or the Banks. The Effective Date
shall be the same as the date of this Amendment No. 3 first written above.
8. Full Compliance. The Borrowers represent and warrant that (after
giving effect to the waiver set forth in paragraph 6 above) they are in full
compliance with each of the provisions of the Credit Agreement and that no
Potential Default or Event of Default exists (after giving effect to the waiver
set forth in Paragraph 6 above). The Banks do not amend or waive any provisions
of the Credit Agreement, except as expressly set forth herein. All terms of the
Credit Agreement and each of the other Loan Documents remain in full force and
effect on and after the date hereof except as provided herein.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto by their duly authorized
officers have executed this Limited Waiver and Amendment No. 3 as of the day and
year first written above.
UNITED REFINING COMPANY
/s/ John R. Wagner
---------------------------------------------------
Title: Vice President, Secretary & General Counsel
--------------------------------------------
UNITED REFINING COMPANY OF
PENNSYLVANIA
/s/ John R. Wagner
---------------------------------------------------
Title: Vice President, Secretary & General Counsel
--------------------------------------------
KIANTONE PIPELINE CORPORATION
/s/ John R. Wagner
---------------------------------------------------
Title: Vice President, Secretary & General Counsel
--------------------------------------------
COUNTRY FAIR, INC.
/s/ John R. Wagner
---------------------------------------------------
Title: Vice President, Secretary & General Counsel
--------------------------------------------
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
/s/ James Steffy
---------------------------------------------------
Title: Vice President
--------------------------------------------
MANUFACTURERS AND TRADERS TRUST
COMPANY
/s/ Geoffrey Fenn
---------------------------------------------------
Title: Administrative Vice President
--------------------------------------------
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SCHEDULE 1.1 (B)
COMMITMENT OF BANKS AND ADDRESSES FOR NOTICES
PAGE 1 OF 2
PART 1 - COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES TO BANKS
- ---------------------------------------------------------------------------------------------------------
AMOUNT OF
COMMITMENT FOR
REVOLVING CREDIT
LOANS FROM AMOUNT OF
CLOSING DATE TO COMMITMENT FOR
BUT NOT INCLUDING RATABLE SHARE REVOLVING CREDIT RATABLE SHARE
AMENDMENT NO. 3 FROM CLOSING LOANS FROM FROM AMENDMENT
EFFECTIVE DATE DATE TO BUT NOT AMENDMENT NO. 3 NO. 3 EFFECTIVE
AND FROM OCTOBER INCLUDING EFFECTIVE DATE TO DATE TO AND
1, 2003 AND AMENDMENT NO. 3 AND INCLUDING INCLUDING
BANK THEREAFTER EFFECTIVE DATE JULY 31, 2003 JULY 31, 2003
---- ---------- --------------- ------------- -------------
Name: PNC Bank, National
Association
Address:
One PNC Plaza, 3rd floor
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Attention: James Steffy
Telephone: 412-768-6387
Telecopy: 412-768-4369 $30,000,000 60% $46,000,000 65.71%
Name: Manufacturers and
Traders Trust Company
Address: One Fountain Plaza
Buffalo, NY 14203-1495
Attention: Geoffrey Fenn
Telephone: 716-848-7308
Telecopy: 716-848-7318 $20,000,000 40% $24,000,000 34.29%
Total: $50,000,000 100.00% $70,000,000 100.00%
----------- ------ ----------- -------
- ---------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------
AMOUNT OF
COMMITMENT FOR
REVOLVING CREDIT RATABLE SHARE
LOANS FROM FROM AUGUST 1,
AUGUST 1, 2003 2003 TO AND
TO AND INCLUDING INCLUDING
SEPTEMBER 30, SEPTEMBER 30,
BANK 2003 2003
---- ---- ----
Name: PNC Bank, National
Association
Address:
One PNC Plaza, 3rd floor
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Attention: James Steffy
Telephone: 412-768-6387
Telecopy: 412-768-4369 $38,000,000 63.33%
Name: Manufacturers and
Traders Trust Company
Address: One Fountain Plaza
Buffalo, NY 14203-1495
Attention: Geoffrey Fenn
Telephone: 716-848-7308
Telecopy: 716-848-7318 $22,000,000 36.67%
Total: $60,000,000 100.00%
----------- -------
- ----------------------------------------------------------------------
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SCHEDULE 1.1 (B)
COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES
PAGE 2 OF 2
Part 2 - Addresses for Notices to Borrowers and Guarantors
AGENT
Address:
PNC Bank, National Association
One PNC Plaza, 3rd Floor
249 Fifth Avenue
Pittsburgh, PA 15222-7207
Attention: James Steffy
Telephone: 412-768-6387
Telecopy: 412-768-4369
BORROWERS AND GUARANTORS
Address:
c/o United Refining Company
15 Bradley Street
Warren, PA 16365
Attention: Myron L. Turfitt
Telephone: 814-723-1500
Telecopy: 814-723-4371
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