1
THIRD AMENDMENT
TO THE
AMENDED AND RESTATED LOAN AGREEMENT
This THIRD Amendment to the AMENDED AND RESTATED LOAN AGREEMENT (this
"THIRD AMENDMENT"), dated as of March 1, 2000, is by and between POWER TEST
REALTY COMPANY LIMITED PARTNERSHIP, a New York limited partnership having its
principal office at 125 Jericho Turnpike, Jericho, New York 11753 (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 100 Federal Street, Boston, Massachusetts 02110 (the "BANK").
WHEREAS, the Borrower and the Bank are parties to that certain Amended
and Restated Loan Agreement, dated as of October 31, 1995, as amended by that
certain First Amendment to the Amended and Restated Loan Agreement, dated as of
April 18, 1997, as further amended by that certain Second Amendment to the
Amended and Restated Loan Agreement dated as of January 30, 1998 (as so amended,
the "LOAN AGREEMENT"), pursuant to which the Bank, upon certain terms and
conditions, has made a loan to the Borrower;
WHEREAS, the Borrower has requested that certain provisions of the Loan
Agreement be amended in order, among other things, to extend the term of the
loan; 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;
NOW, THEREFORE, the Borrower and the Bank hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used in this Third
Amendment without definition that are defined in the Loan Agreement shall have
the meanings set forth in the Loan Agreement.
2
-2-
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. The following definitions are hereby added to
Section 1 of the Loan Agreement in the proper alphabetical order:
Primary Stations means those Stations located
in Delaware, Pennsylvania and New York and set forth in
Schedule PS hereto.
Second Amended Master Note has the meaning set
forth in Section 2.2 hereof.
Secondary Stations means those Stations which
are not Primary Stations, as set forth in Schedule SS
hereto.
Updated Appraisal Report, an appraisal report
of Akerson & Wiley to the Bank dated February 16, 2000
Updated Appraised Value, with respect to any
Station, means the appraised value of such Station as set
forth in the Updated Appraisal Report
SECTION 2.2. The definitions of Marketing and Master Note in
Section 1 of the Loan Agreement are hereby deleted in their entirety.
SECTION 2.3. All references in the Loan Agreement to the
"Master Note" shall be deemed to be references to the "Second Amended
Master Note."
SECTION 2.4. The definition of Funded Debt to EBITDA Ratio
is hereby deleted in its entirety and the following definition is
substituted in place thereof:
Funded Debt to EBITDA Ratio means the ratio of
(i) Realty's funded indebtedness for borrowed money
(including obligations with respect to leases which would be
capitalized) as carried on the consolidated balance sheet of
Realty in accordance with generally accepted accounting
principles, other than trade debt or similar obligations
incurred in the ordinary course of business, on the last day
of each fiscal quarter to (ii) Realty's Earnings Before
Interest, Taxes, Depreciation and Amortization, for the
period of four
3
-3-
consecutive fiscal quarters, ending on the last day of the
fiscal quarter referred to in clause (i) above.
SECTION 2.5. All references to "Marketing" in the Loan
Agreement are hereby deleted. In addition, Exhibit F to the Loan
Agreement (Master Lease Agreement with Marketing) is hereby deleted.
SECTION 2.6. In the definition of Loan in Section 1 of the
Loan Agreement, the amount "$31,844,998.23" is hereby deleted and the
amount "$22,619,574.61" is substituted in place thereof.
SECTION 2.7. In the definition of Maturity Date in Section 1
of the Loan Agreement, the date "November 1, 2000" is hereby deleted
and the date "March 1, 2005" is substituted in place thereof.
SECTION 2.8. In Section 2.1 of the Loan Agreement, the
amount "$31,844,998.23" is hereby deleted and the amount
"$22,619,574.61" is substituted in place thereof.
SECTION 2.9. Section 2.2 of the Loan Agreement is hereby
deleted in its entirety and the following provision is substituted in
place thereof:
SECTION 2.2 The Master Note. The Loan shall be
evidenced by the Second Amended and Restated Master Note of
the Borrower in the principal amount of $22,619,574.61 dated
as of the date hereof (the "Second Amended Master Note").
SECTION 2.10. Section 2.3(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
--------------------------- -------------
.50x or less to 1 LIBOR Rate + 0.750%
.51x - .75x to 1 LIBOR Rate + 0.875%
.76x - 1.00x to 1 LIBOR Rate + 1.000%
1.01x - 1.24x to 1 LIBOR Rate + 1.125%
1.25x - 1.49x to 1 LIBOR Rate + 1.250%
1.50x - 1.74x to 1 LIBOR Rate + 1.375%
1.75x - 1.99x to 1 LIBOR Rate + 1.500%
2.00x - 2.49x to 1 LIBOR Rate + 1.625%
2.50x or greater to 1 LIBOR Rate + 1.750%
4
-4-
SECTION 2.11. Section 2.4 of the Loan Agreement is hereby
deleted in its entirety and the following provision is substituted in
place thereof:
SECTION 2.4 Repayment of Principal. The
principal amount of the Loan shall be repaid in fifty-nine
(59) consecutive monthly installments payable on the first day
of each calendar month of each calendar year, commencing on
April 1, 2000 to and including February 1, 2005, in the amount
of $175,000 monthly, with the Balloon Payment of
$12,294,574.61 due on the Maturity Date (as reduced by any
prepayments of principal by the Borrower).
The entire principal amount of the Loan
outstanding after the payment scheduled to be made on February
1, 2005, as reduced by any prepayments of principal by the
Borrower, together with all accrued interest and any other
amounts owing to the Bank by the Borrower in connection with
the Loan, shall be paid in full on the Maturity Date (the
"Balloon Payment").
SECTION 2.12. Section 6.13 of the Loan Agreement is hereby
deleted in its entirety and the following provision is substituted in
place thereof:
SECTION 6.13. Sale of Stations. (A) The Borrower
will not sell any Primary Station except upon the election of
the Borrower of one of the following: (a) repayment of the
Loan in an amount at least equal to the Updated Appraised
Value of such Primary Station, or (b) the substitution of one
or more gasoline station properties with an Appraised Value
(such appraisal to be paid for by the Borrower in the case of
Stations that are purchased, and the Updated Appraisal Report
sets forth the value in the case of the substitution of a
Secondary Station) equal to or greater than the Updated
Appraised Value of the Primary Station sold. Prior to the sale
of any Primary Station, in the case of repayment under clause
(a) above, the Borrower shall pay to the Bank an amount at
least equal to the Updated Appraised Value for such Primary
Station. Promptly after receipt of such payment pursuant to
clause (a), the Bank will release the Mortgage relating to the
Primary Station to be sold. Any station(s) substituted for a
Primary Station in accordance with the provisions of this
Section 6.13 shall, prior to or at the time
5
-5-
of such sale, be made subject to a Mortgage on terms
equivalent to those in effect with regard to the Primary
Station sold. Upon satisfaction of the conditions for
substitution hereunder, any substituted station shall become a
Primary Station hereunder and, where the Bank has not
previously released the Primary Station as provided herein,
the Bank shall release the Mortgage relating to the Primary
Station to be sold. All properties designated for substitution
shall either be (i) purchased from third parties at a price
which approximates its fair market value, provided that the
Appraised Value of such property or properties shall be equal
to or greater than the Updated Appraised Value of the Primary
Station for which it is substituted, and the Borrower shall
provide to the Bank upon its request any information relating
to the property to be purchased and any agreements or
instruments in connection therewith, or (ii) any of the
Secondary Stations which have not been released from their
Mortgages, provided that the Borrower obtains a current date
down endorsement to the existing title insurance policy for
such Secondary Station showing no new encumbrances other than
liens permitted under Section 6.2.
(B) Upon the Borrower's written request from
time to time, the Bank will discharge its Mortgage on any
Secondary Station, provided the Borrower covenants that during
the term of this Loan, as it may be extended, and so long as
the Borrower shall continue to own such Secondary Station,
such Secondary Station shall remain free of mortgage liens and
any other security interests, other than liens permitted under
Section 6.2.
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
6
-6-
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 Third
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) A Second Amended Master Note executed and delivered by the
Borrower;
(b) A Third Affirmation and Acknowledgment of Amended and Restated
Hazardous Waste and PMPA Indemnification Agreement executed by Properties;
(c) A Third Affirmation and Acknowledgment of Three Party Lease
Agreement executed by Properties;
(d) A favorable opinion from Samuel M. Jones, Esq. or Randi Young
Filip, Esq., each a counsel to the Borrower, Realty and Properties, addressed to
the Bank and dated the date of the execution and delivery of this Third
Amendment, in form, scope and substance satisfactory to the Bank;
(e) Certified copies of all documents relating to the authorization and
execution of this Third Amendment and the documents contemplated hereby and
related authority and organizational documents of the Borrower, Realty and
Properties 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 Guaranty Agreement executed and delivered by Properties in form,
scope and substance satisfactory to the Bank;
(h) The Updated Appraisal Report which the Bank can use to verify that
the ratio of the Loan to the Updated Appraisal Value of the Primary Stations
does not exceed seventy percent (70%); and
(i) Any other document or instrument the Bank may reasonably request.
SECTION 6. MISCELLANEOUS PROVISIONS.
(a) Except as otherwise expressly provided by this Third Amendment, all
of the terms, conditions and provisions of the Loan
7
-7-
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 Third Amendment and the Loan Agreement
shall be read and construed as one instrument.
(b) THIS THIRD 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 Third Amendment may be executed in any number of counterparts,
and all such counterparts shall together constitute but one instrument. In
making proof of this Third 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 Third Amendment are for
convenience of reference only and shall not define or limit the provisions
hereof.
(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 Third Amendment (including legal
fees).
[Remainder of Page Intentionally Left Blank]
8
IN WITNESS WHEREOF, the parties hereto have caused this Third 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 Third Amendment.
POWER TEST REALTY COMPANY
LIMITED PARTNERSHIP
By: Getty Properties Corp., its
General Partner
By: /s/ John J. Fitteron
-----------------------------
Name: John J. Fitteron
Title: Senior Vice President,
Treasurer and Chief
Financial Officer
FLEET NATIONAL BANK, successor in
interest to Fleet Bank of Massachusetts,
N.A.
By: /s/ Michael A. Palmer
-----------------------------
Name: Michael A. Palmer
Title: Vice President