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EXHIBIT 4.4
SECOND AMENDMENT
to the
AMENDED AND RESTATED LOAN AGREEMENT
This SECOND AMENDMENT to the AMENDED AND RESTATED LOAN AGREEMENT (this
"Second Amendment"), dated as of January 30, 1998, is by and between LEEMILT'S
PETROLEUM, INC., a New York corporation having its principal office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Borrower") and FLEET NATIONAL
BANK (successor in interest to Fleet Bank of Massachusetts, N.A.), a national
banking association having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Bank").
WHEREAS, the Borrower and the Bank are parties to that certain Amended and
Restated Loan Agreement, dated as of October 27, 1995, as amended by that
certain First Amendment to the Amended and Restated Loan Agreement, dated as of
April 18, 1997 (as amended, the "Loan Agreement"), pursuant to which the Bank,
upon certain terms and conditions, has made a loan to the Borrower;
WHEREAS, Getty Realty Corp., a Delaware corporation ("Getty"), the parent
corporation of the Borrower and the guarantor of the Loans (as defined in the
Loan Agreement), changed its name to Getty Properties Corp. ("Properties")
effective January 30, 1998;
WHEREAS, Getty Realty Corp., a Maryland corporation (f/k/a Getty Realty
Holding Corp.) ("Realty"), an affiliate of Properties, has become a guarantor of
the Loans;
WHEREAS, the Borrower has requested that certain provisions of the Loan
Agreement be amended in order, among other things, to provide for certain
changes; and
WHEREAS, the Bank, subject to the terms and provisions hereof, has agreed
to amend the Loan Agreement in order to provide for the foregoing matters;
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NOW, THEREFORE, the Borrower and the Bank hereby agree as follows:
Section 1. Defined Terms. Capitalized terms used in this Second Amendment
without definition that are defined in the Loan Agreement shall have the
meanings set forth in the Loan Agreement.
Section 2. Amendment to Loan Agreement. Subject to the satisfaction of the
conditions precedent set forth in Section 5 hereof, the Loan Agreement is hereby
amended as follows:
Section 2.1. Prior to giving effect to any other changes in this
Second Amendment, all references in the Loan Agreement to "Realty" shall
be deemed to be references to "Properties".
Section 2.2. The definition of Realty set forth in Section 1 of the
Loan Agreement is hereby deleted in its entirety and the following
definition is substituted in place thereof:
Realty means Getty Realty Corp., a Maryland corporation,
successor by name change to Getty Realty Holding Corp.
Section 2.3. The following definitions are hereby added to Section 1
of the Loan Agreement in the alphabetically appropriate order:
Properties means Getty Properties Corp., a Delaware
corporation, successor by name change to Getty Realty Corp.
Realty Guaranty means that certain Guaranty Agreement dated as
of January 30, 1998 by and between Realty and the Bank.
Section 2.4. The definition of Agreement is hereby deleted in its
entirety and the following definition is substituted in place thereof:
Agreement means the Amended and Restated Loan Agreement dated
as of October 27, 1995 between the Bank and the Borrower, as amended
by First Amendment to the Amended and Restated Loan Agreement dated
as of April 18, 1997, as further amended by the Second Amendment to
the Amended and Restated Loan Agreement dated as of January 30,
1998, including the Exhibits and Schedules thereto, as such may be
further amended, modified or supplemented.
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Section 2.5. In line 1 of the definition of Bank's Special Counsel
in Section 1 of the Loan Agreement, the name "▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇" is
hereby replaced with the name "▇▇▇▇▇▇▇ ▇▇▇▇ LLP".
Section 2.6. In line 3 of the definition of Loan Documents in
Section 1 of the Loan Agreement, the words ", the Realty Guaranty" are
hereby inserted after "Guaranty Agreement."
Section 2.7. Section 2.4.1(b) of the Loan Agreement is hereby
amended by deleting the table set forth therein in its entirety and
replacing it with the following new table:
Funded Debt to EBITDA Ratio Interest Rate
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.50x or less to 1 LIBOR Rate + 0.875%
.51x - .75x to 1 LIBOR Rate + 1.00%
.76x - 1.00x to 1 LIBOR Rate + 1.125%
1.01x - 1.24x to 1 LIBOR Rate + 1.25%
1.25x - 1.49x to 1 LIBOR Rate + 1.375%
1.50x - 1.74x to 1 LIBOR Rate + 1.50%
1.75x - 1.99x to 1 LIBOR Rate + 1.625%
2.00x or greater to 1 LIBOR Rate + 1.75%
Section 2.8. In line 4 of Section 2.13 of the Loan Agreement, the
words "and the Realty Guaranty" are hereby inserted immediately before the
comma.
Section 2.9. In Section 3.7 and Section 3.8 of the Loan Agreement,
each reference to the date "January 31, 1997" is hereby replaced with
"October 31, 1997."
Section 2.10. Section 5.8 of the Loan Agreement is deleted in its
entirety and the following is substituted in place thereof:
Section 5.8. Financial Statements, Certificates and Other
Information. The Borrower will furnish or cause to be furnished to
the Bank with regard to the Borrower, Marketing, Properties and
Realty, as the case may be:
(a) as soon as available but in any event within
forty-five (45) days after the end of each of the first three
fiscal quarters in any fiscal year of Realty and Marketing,
unaudited consolidated balance sheets for Realty and its
Subsidiaries (including the Borrower)
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and for Marketing as at the end of such quarter, and unaudited
consolidated statements of income and summaries of changes in
financial position for Realty and its subsidiaries (including
the Borrower) and for Marketing for the period commencing with
the end of the preceding fiscal year and ending with the end
of such quarter, prepared in accordance with generally
accepted accounting principles consistently applied, in each
case the financial statements for Realty and its Subsidiaries
(including the Borrower) shall be certified by the chief
financial officer of Realty, subject, however to audit and
year-end adjustments;
(b) as soon as available but in any event within ninety
(90) days after the end of each fiscal year of Realty and
Marketing, audited consolidated balance sheets for Realty and
its Subsidiaries (including the Borrower) and for Marketing as
at the end of such fiscal year and audited consolidated
statements of income and summaries of changes in financial
position for Realty and its Subsidiaries (including the
Borrower) and for Marketing for such fiscal year, prepared in
accordance with generally accepted accounting principles
consistently applied, in each case accompanied by the opinion
of and report by Coopers & ▇▇▇▇▇▇▇ or other independent
certified public accountants of nationally recognized standing
selected by Realty or Marketing, as the case may be, and
acceptable to the Bank, such opinion to be unqualified as to
scope limitations imposed by Realty or Marketing and otherwise
without qualification except as therein noted;
(c) to the extent available, if at all, as soon as
available but in any event within one hundred eighty (180)
days after the end of each fiscal year of Realty or Marketing,
any CPA management letters prepared for Realty or any of its
Subsidiaries (including the Borrower) relating to the annual
audit;
(d) as soon as available but in any event within
forty-five (45) days after the end of each fiscal quarter of
Realty and ninety (90) days after the end of each fiscal year
of Realty, a statement from the
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Borrower of the Funded Debt to EBITDA Ratio as of the end of
the most recent fiscal quarter of Realty and Marketing,
together with a certificate of the chief financial officer of
the Borrower stating that such statement fairly and accurately
reflects the Funded Debt to EBITDA Ratio as of the end of the
most recent fiscal quarter of Realty and is prepared in
accordance with generally accepted accounting principles
consistently applied; and
(e) with reasonable promptness, such other information
relating to the business or financial affairs of the Borrower,
Marketing, Properties or Realty as the Bank may reasonably
request.
Section 3. Affirmation of Borrower. The Borrower hereby affirms its
absolute and unconditional promise to pay to the Bank the Loan and all other
amounts due under the Notes and the Loan Agreement, as amended hereby, at the
times and in the amounts provided for therein. The Borrower confirms and agrees
that the obligations of the Borrower to the Bank under the Loan Agreement, as
amended hereby, remain secured by and entitled to the benefits of the Loan
Documents as amended and in effect from time to time.
Section 4. Representations and Warranties. The Borrower hereby represents
and warrants to the Bank that the representations and warranties of the Borrower
set forth in the Loan Agreement were true and correct when made with respect to
the Loan Agreement as in effect as of such time and continue to be true and
correct on and as of the date hereof as if made on the date hereof.
Section 5. Conditions to Effectiveness. The effectiveness of this Second
Amendment shall be subject to the delivery to the Bank by (or on behalf of) the
Borrower, contemporaneously with the execution hereof, of the following, in form
and substance satisfactory to the Bank:
(a) This Second Amendment executed and delivered by the Borrower and the
Bank;
(b) A Second Affirmation and Acknowledgment of Amended and Restated
Hazardous Waste Indemnification Agreement executed by Properties;
(c) An Amendment to Three Party Lease Agreement executed by Properties;
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(d) A favorable opinion from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., counsel to the
Borrower, Realty, Marketing and Properties, addressed to the Bank and dated the
date of the execution and delivery of this Second Amendment, in form, scope and
substance satisfactory to the Bank;
(e) Certified copies of all documents relating to the authorization and
execution of this Second Amendment and the documents contemplated hereby and
related authority and organizational documents of the Borrower, Realty, and
Properties and related organizational documents of Marketing as the Bank may
request;
(f) A Guaranty Agreement executed and delivered by Realty in form, scope
and substance satisfactory to the Bank;
(g) A First Amendment to Amended and Restated Guaranty Agreement executed
and delivered by Properties in form, scope and substance satisfactory to the
Bank; and
(h) Any other document or instrument the Bank may reasonably request.
Section 6. Miscellaneous Provisions.
(a) Except as otherwise expressly provided by this Second Amendment, all
of the terms, conditions and provisions of the Loan Agreement shall remain the
same. It is declared and agreed by each of the parties hereto that the Loan
Agreement, as amended hereby, shall continue in full force and effect, and that
this Second Amendment and the Loan Agreement shall be read and construed as one
instrument.
(b) THIS SECOND AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER
SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
(c) This Second Amendment may be executed in any number of counterparts,
and all such counterparts shall together constitute but one instrument. In
making proof of this Second Amendment it shall not be necessary to produce or
account for more than one counterpart signed by each party hereto by and against
which enforcement hereof is sought.
(d) Headings or captions used in this Second Amendment are for convenience
of reference only and shall not define or limit the provisions hereof.
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(e) The Borrower hereby agrees to pay to the Bank, on demand by the Bank,
all out-of-pocket costs and expenses incurred or sustained by any Person in
connection with the preparation of this Second Amendment (including legal fees).
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be made by their duly authorized officers as a sealed instrument as of the
date first set forth at the beginning of this Second Amendment.
LEEMILT'S PETROLEUM, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
FLEET NATIONAL BANK,
successor in interest to Fleet Bank of
Massachusetts, N.A.
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be made by their duly authorized officers as a sealed instrument as of the
date first set forth at the beginning of this Second Amendment.
LEEMILT'S PETROLEUM, INC.
By:
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
FLEET NATIONAL BANK,
successor in interest to Fleet Bank of
Massachusetts, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
