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EXHIBIT 10.19
WAIVER AND AMENDMENT AGREEMENT
This Waiver Agreement (the "Waiver") is dated as of September 29, 2000 and
is made by and among UNITED REFINING COMPANY, a Pennsylvania corporation
("United Refining"), UNITED REFINING COMPANY OF PENNSYLVANIA, a Pennsylvania
Corporation ("United Refining PA"), KIANTONE PIPELINE CORPORATION, a New York
Corporation ("Kiantone, and hereinafter together with United Refining and United
Refining PA sometimes collectively referred to as the "Borrowers" and
individually as a "Borrower") the BANKS under the Credit Agreement (as
hereinafter defined) and PNC BANK, NATIONAL ASSOCIATION, in its capacity as
agent for the Banks under the Credit Agreement (hereinafter referred to in such
capacity as the "Agent").
RECITALS:
WHEREAS, the Borrowers, the Banks and the Agent entered into that certain
Credit Agreement dated as of June 9, 1997 (as previously amended, restated,
supplemented or modified, the "Credit Agreement"); and
WHEREAS, Borrowers desire to effect a transaction (the "Acquisition
Transaction") whereby:
(a) United Refining PA will sell certain of its real estate
assets (the "Real Estate Assets") to a new wholly owned special purpose
subsidiary ("Newco 1") of United Refining, Inc. ("URI"), United Refining's
parent;
(b) Newco 1 will enter into a loan transaction with Franchise
Financial Corporation of America secured by mortgages on the Real Estate Assets
and will pay approximately $28,000,000 from the loan proceeds to United Refining
PA as consideration for the sale of the Real Estate Assets;
(c) Newco 1 will also lease the Real Estate Assets to URI,
which will enter into a management agreement with United Refining PA for the
management of the Real Estate Assets; and
(d) The funds paid to United Refining PA and other funds of
Borrowers up to a total of $30,000,000 will be used by Borrowers either to
reduce indebtedness under the Senior Unsecured Notes or to invest in another new
wholly owned special purpose subsidiary ("Newco 2") of URI to fund the equity
portion of a proposed acquisition (presently confidential) of an entity whose
identity has been disclosed to the Banks ("Proposed Acquisition"); and
WHEREAS, the Loan Parties have requested that the Banks waive the
application of Sections 7.2.4, 7.2.7, 7.2.8, 7.2.10 and 7.2.15 of the Credit
Agreement to the Acquisition Transaction, as more fully provided herein; and
WHEREAS, capitalized terms used herein and not otherwise defined
herein shall have the meanings given to them under the Credit Agreement.
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NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound, the parties hereto agree as follows:
1. Waiver With Respect To Application of Sections 7.2.4, 7.2.7, 7.2.8,
7.2.10 and 7.2.15.
Subject to the terms and conditions contained in the Waiver, the Banks
hereby waive the application of Sections 7.2.4, 7.2.7, 7.2.8, 7.2.10 and 7.2.15
to the Acquisition Transaction to the extent necessary to permit Borrowers to
enter into and carry out the Acquisition Transaction.
2. Warranties.
The Loan Parties, jointly and severally, represent and warrant as
follows:
A. Recitals.
The recitals hereto are true and correct in all material respects.
B. Incorporation into Credit Agreement.
The representations and warranties in this Section 2 are
incorporated in Section 5 of the Credit Agreement and any breach of such
representations or warranties is a breach under Section 5 of the Credit
Agreement.
C. Other Warranties Under the Credit Agreement
The other representations and warranties of the Loan Parties
contained in the Credit Agreement are true and correct on and as of the date
hereof with the same force and effect as though made by the Loan Parties on such
date, except to the extent that any such representation or warranty expressly
relates solely to a previous date. The Loan Parties are in compliance with all
terms, conditions, provisions and covenants contained in the Credit Agreement.
3. Conditions to Waivers.
The Loan Parties acknowledge and agree that as conditions to the
effectiveness of the waivers granted by the Banks herein, the following
shall have been delivered to the Agent prior to consummation of the
Proposed Acquisition:
A. Internally prepared financial statements for Borrower for
the fiscal year ended August 31, 2000 if at such time the Annual Financial
Statements required under Section 7.3.2 have not yet been delivered to the
Agent;
B. A fairness opinion with respect to the Proposed
Acquisition prepared by an investment banker or other investment professional
satisfactory to the Agent, in form and substance satisfactory to the Agent;
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C. Evidence satisfactory to the Agent of the consummation of
the sale of the Real Estate Assets and the receipt of the sale proceeds by
United Refining PA; and
D. Such other due diligence materials relating to the
Proposed Acquisition as deemed necessary by the Agent.
4. Waiver Fee. The Borrowers shall pay to the Agent for the ratable
benefit of the Banks, as consideration for the waivers being made with respect
to the Credit Agreement hereunder, a non-refundable fee equal to $6,250 (the
"Waiver Fee"), payable upon execution of this Waiver by all of the parties
hereto.
5. Full Force and Effect. All provisions of the Credit Agreement remain
in full force and effect on and after the date hereof. The Banks and the Agent
do not waive any provisions of the Credit Agreement except as expressly waived
hereby.
6. Counterparts: Effective Date. This Waiver may be signed in
counterparts. This Waiver shall become effective as of the date first above when
it has been executed by the Borrowers, and the Required Banks and the Waiver Fee
has been paid to the Agent.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 1 TO WAIVER AGREEMENT]
The undersigned have executed this Waiver as of the date first above
written.
UNITED REFINING COMPANY,
a Pennsylvania corporation
By: /s/ Myron L. Turfitt
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Title: President
UNITED REFINING COMPANY OF PENNSYLVANIA,
a Pennsylvania corporation
By: /s/ Myron L. Turfitt
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Title: President
KIANTONE PIPELINE CORPORATION,
a New York corporation
By: /s/ Myron Turfitt
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Title: President
NATIONAL BANK OF CANADA
By: /s / Eric L. Moore
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Title: Vice President
By: /s/ Donald P. Haddad
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Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ James M. Steffy
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Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ C. Gregory Vogelsang
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Title: Assistant Vice President
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