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GUARANTY AGREEMENT
This GUARANTY AGREEMENT (this "GUARANTY"), dated as of March 1, 2000,
by and between GETTY PROPERTIES CORP., a Delaware corporation having its
principal place of business at 125 Jericho Turnpike, Jericho, New York 11753
(the "GUARANTOR") and FLEET NATIONAL BANK (the "BANK").
In order to induce the Bank to amend its loan arrangement with Power
Test Realty Company Limited Partnership, a New York limited partnership (the
"BORROWER"), which loan arrangement is set forth in an Amended and Restated Loan
Agreement dated as of October 31, 1995 by and between the Borrower and Fleet
Bank of Massachusetts, N.A., predecessor in interest to the Bank, 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 further
amended by that certain Third Amendment to the Amended and Restated Loan
Agreement of even date herewith (as amended, the "LOAN AGREEMENT"), the
Guarantor is entering into this Guaranty with the Bank pursuant to which the
Guarantor guarantees the payment and performance in full of all of the
Obligations (as that term is hereinafter defined).
Accordingly, in consideration of the Bank's consent as aforesaid and
its amendment of its loan arrangement with the Borrower and in consideration of
the premises and of the covenants herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Definitions. The following terms shall have the meanings set
forth in thissection 1 hereof or elsewhere in the provisions of this Guaranty
referred to below:
"BANK" means Fleet National Bank.
"BORROWER" means Power Test Realty Company Limited
Partnership, a New York limited partnership.
"CONTINGENT LIABILITIES" means any guaranties, endorsements,
agreements to purchase or provide funds for the
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payment of obligations of others, or other liabilities which would be
classified as contingent in accordance with generally accepted
accounting principles consistently applied, excluding, however,
endorsements of checks or other negotiable instruments for deposit or
collection in the ordinary course of business.
"GUARANTOR" means Getty Properties Corp., a Delaware
corporation.
"GUARANTY" means this Guaranty Agreement as originally
executed, or, if this Guaranty Agreement is amended, modified or
supplemented, as so amended, modified or supplemented.
"LOAN" means the loan from the Bank to the Borrower pursuant
to the terms of the Loan Agreement.
"LOAN AGREEMENT" means the Amended and Restated Loan
Agreement dated as of October 31, 1995 between the Borrower and Fleet
Bank of Massachusetts, N.A., predecessor in interest to the Bank, 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 further modified by that certain Third
Amendment to the Amended and Restated Loan Agreement of even date
herewith, or if further amended, modified or supplemented, as so
further amended, modified or supplemented.
"NOTES" means, collectively, the Master Note and the
Collateral Note(s), or if amended, modified or supplemented, as so
amended, modified or supplemented, and any note issued in exchange for
or replacement of any such note pursuant to the terms of the Loan
Agreement.
"OBLIGATIONS" means all indebtedness, obligations and
liabilities, direct or indirect, matured or unmatured, primary or
secondary, certain or contingent, of the Borrower to the Bank for the
payment of money now or hereafter owing or incurred (including, without
limitation, reasonable costs and expenses incurred by the Bank in
attempting to collect or enforce any of the foregoing) which are
chargeable to the Borrower and which arise under or pursuant to the
Loan Agreement or the Notes, accrued in each case to the date of
payment hereunder, and "OBLIGATION" means any one of the Obligations.
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"OTHER BUSINESS(ES)" has the meaning set forth in section
16.2 hereof.
"PERSON" means any individual, corporation, partnership,
trust, unincorporated association, joint stock company or other legal
entity or organization and any government or agency or political
subdivision thereof.
"SUBSIDIARY" means, with respect to any Person that is not
an individual, any other present or future corporation or other legal
entity a majority of whose outstanding capital stock or other ownership
interests having ordinary voting power to elect a majority of the board
of directors or other persons performing similar functions is at the
time owned directly or indirectly by such Person.
All other capitalized terms used herein which are defined in the Loan
Agreement have the meanings ascribed to them therein, unless they are expressly
otherwise defined herein.
SECTION 2. Guaranty of Payment.
SECTION 2.1. Guaranty of Payment of Obligations. The Guarantor hereby
unconditionally guarantees to the Bank the payment in full of each Obligation,
when and as such Obligation becomes due and payable in accordance with the terms
of the Loan Agreement and the Notes, whether such Obligation is outstanding on
the date hereof or arises or is incurred hereafter. The guaranty hereby made by
the Guarantor is an absolute, unconditional and continuing guaranty of the full
and punctual payment by the Borrower of all of the Obligations in accordance
with the terms of the Loan Agreement and not of their collectibility only and is
in no way conditioned upon any requirement that the Bank first attempt to
collect any of the Obligations from the Borrower or resort to any other
security, collateral or other means of obtaining payment of any of the
Obligations which the Bank now has or may acquire after the date hereof, or upon
any other contingency whatsoever.
SECTION 2.2. Payments. If the Borrower shall fail to make any payment
of any Obligation punctually when and as such obligation shall become due and
payable and such failure shall continue beyond the period of grace, if any,
applicable thereto, then the Guarantor hereby agrees to make such payment of
such Obligation, in funds immediately available to the Bank, upon written demand
by the Bank.
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SECTION 2.3. Continuing Security of this Guaranty. This Guaranty and
the rights, remedies, powers and privileges of the Bank hereunder shall not in
any way be prejudiced or affected by an intermediate payment by the Borrower of
any part of the Obligations. This Guaranty and the obligations of the Guarantor
hereunder shall be in addition to and shall not in any way be prejudiced or
affected by any other collateral or other security or guarantees now or
hereafter held by the Bank for all or any part of the Obligations, and every
right, remedy, power or privilege given to the Bank hereunder shall be in
addition to and not a limitation of any and every other right, remedy, power or
privilege vested in the Bank under any other collateral. No assurances, security
or payment of any of the Obligations which is avoided under any enactment
relating to bankruptcy, liquidation or insolvency, and no release, settlement or
discharge given or made by the Bank on the faith of any such assurance, security
or payment shall prejudice or affect the right of the Bank to recover from the
Guarantor to the full extent of the guaranty hereby made by the Guarantor as if
such assurance, security, payment, release, settlement or discharge (as the case
may be) had never been given or made.
SECTION 3. Demands for Payment. Each demand for payment pursuant to
section 2.2 hereof shall be made in accordance with the terms of section 18
hereof. Demands for payment hereunder may be made on any number of occasions. A
dated statement signed by an officer of the Bank and setting forth the amount of
the Obligations at the time owing to the Bank, or (as the case may be) setting
forth the amount of the obligations at the time owing by the Guarantor to the
Bank pursuant to section 9 hereof, shall, save for manifest error, be prima
facie evidence thereof as between the Guarantor and the Bank in any legal
proceedings against the Guarantor in connection with this Guaranty.
SECTION 4. Waivers of Notice, Assent, Etc. The Guarantor hereby waives
notice of acceptance of this Guaranty, notice of any and all loans or advances
made or other financial accommodations extended to the Borrower by the Bank
under the Loan Agreement, notice of the occurrence of any default or of any
demand upon the Borrower for any payment under the Loan Agreement, notice of any
action at any time taken or omitted by the Bank under or in respect of the Loan
Agreement or any of the Obligations, any requirement of diligence or to mitigate
damages and, generally, all demands, notices and other formalities of every kind
in connection with this Guaranty (except as otherwise expressly provided
hereby), the Loan Agreement or any of the Obligations. The Guarantor hereby
assents to, and waives notice of, any extension or postponement of
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the time for the payment of any of the Obligations, the acceptance of any
partial payment thereon, any waiver, consent or other action or acquiescence by
the Bank at any time or times in respect of any default by the Borrower in the
performance or satisfaction of any term, covenant, condition or provision of the
Loan Agreement, any amendment, modification or waiver to the Loan Agreement, the
Notes or any other Loan Document, any and all other indulgences whatsoever by
the Bank in respect of any of the Obligations or otherwise, the taking,
addition, substitution or release, in whole or in part, at any time or times, of
any security for any of the Obligations, the addition, substitution or release,
in whole or in part, of any person or persons (other than the Borrower)
primarily or secondarily liable in respect of any of the Obligations or any
other events or circumstances which might constitute a legal or equitable
discharge of a surety or guaranty. Without limitation of the generality of the
foregoing, the Guarantor assents to any other action or delay in acting or
failure to act on the part of the Bank, including, without limitation, any
failure strictly or diligently to assert any right or pursue any remedy or to
mitigate damages or to comply fully with applicable laws or regulations
thereunder, which might, but for the provisions of this SECTION 4 hereof, afford
grounds for terminating, discharging or relieving the Guarantor, in whole or in
part, from any of its absolute and unconditional obligations hereunder, it being
the intention of the Guarantor that, so long as any of the Obligations remains
unsatisfied, the obligations of the Guarantor hereunder shall not be discharged
except by payment and then only to the extent of such payment. The obligations
of the Guarantor hereunder shall not be diminished or rendered unenforceable by
any bankruptcy, winding up, reorganization, arrangement, liquidation or similar
proceeding with respect to the Borrower, the Guarantor or the Bank. The guaranty
hereby made by the Guarantor shall continue in full force and effect
notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of the
Borrower, the Guarantor or the Bank.
SECTION 5. Place and Mode of Payments. Each payment by the Guarantor
under or in respect of this Guaranty shall be made to the Bank in immediately
available and freely transferable funds at the Bank's office at One Federal
Street, Boston, Massachusetts 02110, Attention: Michael A. Palmer, Vice
President.
SECTION 6. Set-off. Regardless of the adequacy of any collateral or
other means of obtaining prepayment of the Obligations, the Bank may at any time
and without prior notice to the Guarantor set-off the whole or any portion or
portions of any or all deposits and other sums credited by or due from the Bank
to the Guarantor against amounts payable under this
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Guaranty, whether or not any other person or persons could also withdraw money
therefrom. The Bank will promptly thereafter notify the Guarantor of any such
set-off.
SECTION 7. Freedom to Deal with Borrower and Other Banks. The Bank
shall be at liberty, without giving notice to or obtaining the assent of the
Guarantor and without relieving the Guarantor of any liability hereunder, to
deal with the Borrower and with each other party who now is or after the date
hereof becomes liable in any manner for any of the Obligations, in such manner
as the Bank in its sole discretion deems fit, and to this end the Guarantor
agrees that the Bank may in its sole discretion do any or all of the following
things: (a) extend credit, make loans and afford other financial accommodations
to the Borrower at such times, in such amounts and on such terms as the Bank may
approve, (b) vary the terms and grant extensions or renewals of any present or
future indebtedness or obligation to the Bank of the Borrower or of any such
other party, (c) grant time, waivers and other indulgences in respect thereto,
(d) vary, exchange, release or discharge, wholly or partially, or delay in or
abstain from perfecting and enforcing any security or guaranty or other means of
obtaining payment of any of the Obligations which the Bank now have or acquire
after the date hereof, (e) accept partial payments from the Borrower or any such
other party, (f) release or discharge, wholly or partially, any endorser or
guarantor, and (g) compromise or make any settlement or other arrangement with
the Borrower or any such other party.
SECTION 8. Election of Remedies. This Guaranty may be enforced by the
Bank from time to time as often as occasion therefor may arise and without any
requirement on the part of the Bank first to exercise any rights against the
Borrower or any other person or to exhaust any remedies available to the Bank
against the Borrower or any other person or to resort to any collateral or
security for any of the Obligations which is in the possession or under the
control of the Bank or to resort to any other source or means of obtaining
payment or enforcing payment of the Obligations or any of them.
SECTION 9. Expenses. The Guarantor hereby agrees to pay upon demand by
the Bank all reasonable out-of-pocket costs and expenses, including, but not
limited to, court costs and expenses and the fees and disbursements of lawyers,
incurred or expended by the Bank in connection with the enforcement of this
Guaranty, together with interest on amounts recoverable under this section 9
hereof from the time such amounts become due until payment at the rate
applicable to amounts overdue under the Loan
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Agreement. The covenant contained in this section 9 hereof shall survive the
payment in full of all of the Obligations.
SECTION 10. Further Assurances. The Guarantor will, at any time and
from time to time, upon request by the Bank, take or cause to be taken any
action and execute and deliver such, if any, further documents as, in the
reasonable opinion of the Bank, are necessary in order to give full effect to
this Guaranty and to preserve the rights, powers, privileges and remedies of the
Bank hereunder.
SECTION 11. Waiver of Certain Defenses. The Guarantor hereby absolutely
and irrevocably waives, to the fullest extent permitted by law, any and all
defenses which may now or hereafter exist in respect of its obligations
hereunder by virtue of any statute of limitations, stay or moratorium law or
other similar law now or hereafter in effect.
SECTION 12. Unenforceability of Obligations Against Borrower, Etc. It
is hereby agreed as a separate and independent stipulation that, if for any
reason the Borrower ceases to have any legal obligation to discharge the
Obligations or any of them, or if any of the moneys included in the Obligations
have become irrecoverable from the Borrower by operation of law or for any other
reason, or if any of the Obligations become unenforceable against the Borrower
by operation of law or for any other reason, this Guaranty and the obligations
of the Guarantor hereunder shall nevertheless be binding on the Guarantor to the
same extent as if the Guarantor at all times prior to demand by the Bank for
payment hereunder had been, and at the time of, such demand was, the principal
debtor on all of such Obligations.
SECTION 13. Amendments and Waivers. Neither this Guaranty nor any term
hereof may be changed, waived, discharged or terminated except by an instrument
in writing signed by the Bank and the Guarantor expressly referring to this
Guaranty and to the provisions so changed, waived, discharged or terminated. No
such waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing by the Bank and no
delay or omission on the part of the Bank in exercising any right or remedy
hereunder shall operate as a waiver of that or any other right or remedy
hereunder or otherwise be prejudicial thereto.
SECTION 14. Representations and Warranties of the Guarantor. The
Guarantor represents and warrants to the Bank that on and as of the date hereof:
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(a) Organization; Good Standing. The Guarantor (i) is a
corporation duly organized, validly existing and in good standing under
the laws of Delaware, (ii) has all requisite corporate power to own its
property and conduct its business as now conducted and as presently
contemplated, and (iii) is in good standing and is duly authorized to
do business in each jurisdiction where the nature of its properties or
its business requires such qualification and in which failure so to
qualify would materially adversely affect its business or financial
condition.
(b) Authorization. The execution, delivery and performance
of this Guaranty and the transactions contemplated hereby (i) are
within the corporate authority of the Guarantor, (ii) have been duly
authorized by all proper corporate proceedings required to make this
Guaranty the valid and enforceable obligation it purports to be, (iii)
will not contravene any provision of law, the charter documents or
by-laws of the Guarantor or any other material agreement, instrument or
undertaking binding upon the Guarantor, and (iv) do not require any
approval or consent of, or filing with, any governmental agency or
authority.
(c) Enforceability. Upon execution by the parties hereto,
this Guaranty will be the valid and legally binding obligation of the
Guarantor, enforceable against it in accordance with the terms hereof,
except to the extent that the enforcement of the rights and remedies of
the Bank may be subject to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting generally the enforcement of
creditors' rights and remedies, and the availability of equitable
remedies may be subject to the discretion of the court before which any
proceeding thereof is brought.
SECTION 14.2. Governmental Approvals. No approval or consent or filing
with any governmental agency or authority is required to make valid and legally
binding the execution, delivery or performance by the Guarantor of this
Guaranty.
SECTION 14.3. Financial Statements. The Guarantor has furnished to the
Bank the unaudited consolidated financial statements of the Guarantor as at
January 31, 2000. Such financial statements were prepared in accordance with
generally accepted accounting principles (except for requisite footnotes)
applied on a consistent basis and fairly present the financial position of the
Guarantor as at the respective dates thereof and its respective results of
operations for the fiscal year or quarter then ended.
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SECTION 14.4. No Material Changes. Since January 31, 2000, there has
been no materially adverse change in the assets, liabilities, financial
condition or business of the Guarantor.
SECTION 14.5. Compliance With Other Instruments, Laws, Etc. The
Guarantor is not in violation of any provision of its charter documents or
by-laws or any agreement or instrument to which it may be subject or by which it
or any of its properties may be bound or any decree, order, judgment, or any
statute, license, rule or regulation, in any of the foregoing cases in a manner
which could result in the imposition of substantial penalties or materially and
adversely affect the financial condition, properties or business of the
Guarantor.
SECTION 14.6. Governmental Approvals. The execution, delivery and
performance by the Guarantor of this Guaranty and the transactions contemplated
hereby do not require the approval or consent of, or filing with, any
governmental agency or authority other than those already obtained.
SECTION 14.7. Litigation. There is no action, suit or proceeding at law
or in equity or by or before any governmental instrumentality or other agency
now pending or, to the knowledge of the Guarantor, threatened against or
affecting the Guarantor, or any properties or rights of the Guarantor, which, if
adversely determined, would materially impair the ability of the Guarantor to
carry on its business substantially as now conducted or would materially
adversely affect the financial condition of the Guarantor.
SECTION 14.8. Chief Executive Offices. Until the Bank receives notice
of a change, the chief executive offices of the Guarantor and the offices where
all the records and books of account of the Guarantor are kept shall be located
at 125 Jericho Turnpike, Jericho, New York 11753.
SECTION 14.9. Indebtedness. No instrument evidencing or relating to any
indebtedness of the Guarantor contains any restriction prohibiting the Guarantor
from incurring any other indebtedness or Contingent Liabilities or any provision
requiring the Guarantor to maintain any minimum level of net worth or comply
with any other financial covenants.
SECTION 14.10. True Copies of Charter Documents. The Guarantor has
furnished or caused to be furnished to the Bank true and complete copies of the
charter documents and by-laws of the Guarantor, together with any amendments
thereto.
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SECTION 14.11. Guaranteed Pension Plans. The Guarantor does not
contribute to any Guaranteed Pension Plans. The Guarantor does not contribute to
any multiemployer pension plans.
SECTION 14.12. Disclosure. No material representation or warranty made
by the Guarantor in any Loan Document or in any agreement, instrument, document,
certificate, statement or letter furnished to the Bank by or on behalf of the
Guarantor in connection with any of the transactions contemplated by any of the
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein not misleading in light of the circumstances in which they are made.
There is no fact known to any officer of the Guarantor which materially
adversely affects, or which, in the best judgment of any officer of the
Guarantor, would in the future materially adversely affect, the financial
position, business, operations or affairs of the Guarantor.
SECTION 15. Affirmative Covenants. The Guarantor covenants and agrees
that, so long as any of the Loan, the Master Note, any Collateral Note or the
Chase Note is outstanding, or any Obligations are outstanding:
SECTION 15.1. Conduct of Business. The Guarantor will:
(a) do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, rights
(charter and statutory), and franchises, licenses, material trademarks
and service marks, and copyrights; and
(b) keep true and accurate records and books of account,
prepared in accordance with generally accepted accounting principles,
consistently applied;
(c) cause all of its properties used or useful in the
conduct of its business to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and
cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the
Guarantor may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at
all times, and continue to engage primarily in the business now
conducted by it and in related businesses, except as may be otherwise
permitted under section 16.2 hereof.
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SECTION 15.2. Compliance with Agreements and Contracts. The Guarantor
will observe, conform to and comply with the provisions of its charter documents
and by-laws, all leases, and all agreements and instruments by which it or any
of its properties may be bound.
SECTION 15.3. Compliance with Law. The Guarantor will (a) comply with
all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject, noncompliance with which would have a
materially adverse effect on the business, operations or financial condition of
the Guarantor or the ability of the Guarantor to fulfill its obligations under
this Guaranty and (b) promptly obtain, maintain, apply for renewal, and not
allow to lapse, any authorization, consent, approval, license or order, and
accomplish any filing or registration with, any court or judicial,
administrative or governmental authority, which may be or may become necessary
in order that it perform all of its obligations under this Guaranty and in order
that the same may be valid and binding and effective in accordance with its
terms and in order that the Bank may be able freely to exercise and enforce any
and all of its rights under this Guaranty.
SECTION 15.4. Notification of Material Litigation, Default, Etc. The
Guarantor will promptly notify the Bank of (a) the commencement of any
litigation or administrative proceeding initiated against it (if it has
knowledge of the same) which is likely to involve any material risk of any
material judgment or liability not substantially covered by insurance or which
may otherwise result in a materially adverse change in the assets, financial
condition or business of the Guarantor, and (b) the occurrence of any default.
The Guarantor will promptly give notice to the Bank of the occurrence of any
material default under any material instrument or agreement to which the
Guarantor (if it has knowledge of the same) is a party, and if any person shall
give any written notice or take any other action in respect of a claimed default
under any other material evidence of indebtedness, indenture, note or other
obligation as to which the Guarantor is a party or obligor, whether as principal
or surety, the Guarantor shall promptly give written notice thereof to the Bank,
describing the notice or action and the nature of the claimed default.
SECTION 15.5. Financial Statements, Certificates and Other Information.
The Guarantor will furnish to the Bank:
(a) as soon as available but in any event within ninety (90)
days after the end of each fiscal year, an unaudited consolidated
balance sheet for the Guarantor and its Subsidiaries as at the end of
such fiscal year, and an unaudited consolidated statement of
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income and statement of changes in financial position for the Guarantor
and its Subsidiaries for such fiscal year, prepared in accordance with
generally accepted accounting principles consistently applied (except
for the exclusion of footnotes related thereto), together with a
certificate of the chief financial officer of the Guarantor stating
that such financial statements fairly present the financial condition
of the Guarantor and its Subsidiaries as of the date thereof and have
been prepared in accordance with generally accepted accounting
principles consistently applied (except for the exclusion of footnotes
related thereto); and
(b) with reasonable promptness, such other information
relating to the business or financial affairs of the Guarantor as the
Bank may reasonably request.
SECTION 15.6. Notice of Material Change. The Guarantor will promptly
notify the Bank of any materially adverse change in its financial condition,
business or operations.
SECTION 15.7. Inspection of Properties and Books. The Bank or any of
its designated representatives shall have the right to visit and inspect any of
the properties of the Guarantor, to examine the books of account of the
Guarantor, and to discuss the affairs, finances and accounts of the Guarantor
with, and to be advised as to the same by, its officers, all at such reasonable
times and intervals as the Bank may desire.
SECTION 15.8. ERISA. The Guarantor will promptly notify the Bank of any
Reportable Event (other than a Reportable Event as to which the Pension Benefit
Guaranty Corporation has waived the applicable 30-day notice requirement
pursuant to the provisions of ERISA) or any notice of termination of any Plan
under Sections 4041 or 4042 of ERISA. The Guarantor shall not permit any
employee pension benefit plan (as that term is defined in Section 3 of ERISA)
maintained by the Guarantor to (a) engage in any "prohibited transaction" as
such term is defined in Section 4975 of the Code which might result in a
material liability for the Guarantor, or (b) incur any "accumulated funding
deficiency", as such term is defined in Section 302 of ERISA, whether or not
waived, or (c) terminate any such benefit plan in a manner which could result in
the imposition of any material lien or encumbrance on the assets of the
Guarantor under Section 4068 of ERISA.
SECTION 15.9. Maintenance of Office. The Guarantor will maintain its
chief executive office in Jericho, New York, or at such other place in the
United States of America as the Guarantor shall designate upon written
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notice to the Bank, where notices, presentations and demands to or upon the
Guarantor in respect of this Guaranty may be made.
SECTION 15.10. Further Assurances. The Guarantor shall at any time or
from time to time execute and deliver such further instruments and take such
further action as may reasonably be requested by the Bank, in each case further
and more perfectly to effect the purposes of this Guaranty.
SECTION 16. Negative Covenants. The Guarantor covenants and agrees
that, so long as any of the Loans, the Master Note or any Collateral Note is
outstanding, or any Obligations are outstanding:
SECTION 16.1. Merger or Sale of Assets. The Guarantor will not:
(a) consolidate or merge with or into any other Person
unless (i) after giving effect to such consolidation or merger, no
default exists and (ii) the Guarantor is the surviving corporation of
such consolidation or merger; or
(b) sell, lease, transfer or otherwise dispose of all or any
substantial portion of its assets; or
(c) at any time transfer, assign or hypothecate any of its
partnership interests or rights in respect of the Borrower;
provided, however, the Guarantor shall have the right at any
time to consolidate or merge with or into Getty Realty Corp., a
Maryland corporation, without having to obtain the consent of the Bank.
SECTION 16.2. Lines of Business. The Guarantor will not directly or
indirectly through a Subsidiary engage in any business other than the
acquisition, management, leasing, financing and disposition of petroleum and
convenience store related real estate, the retail and wholesale distribution of
petroleum products, the operation of convenience stores or other retail
businesses related to the operation of gasoline service stations and convenience
stores or other businesses which can reasonably be conducted at gasoline service
stations or convenience stores, except that the Guarantor may engage in any
other business (each an "OTHER BUSINESS" and collectively "OTHER BUSINESSES")
acquired by the Guarantor if the aggregate purchase price (including any direct
or contingent liabilities assumed by the Guarantor in connection with such
acquisition) for such Other Business, plus the aggregate purchase prices
(including assumed liabilities) for all Other Businesses previously
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acquired by the Guarantor, does not exceed $25,000,000. The Bank shall have the
right to approve all purchase price allocations made in connection with any such
acquisition of an Other Business or Other Businesses as the same relate to
compliance with this section 16.2.
SECTION 16.3. Acquisitions. The Guarantor will provide the Bank with
reasonable advance notice of any proposed acquisitions of assets or stock of
Other Businesses (whether directly by the Guarantor or indirectly through a
Subsidiary of the Guarantor) with respect to which the aggregate purchase price
(including any assumption of liabilities) is $25,000,000 or more as set forth in
Section 16.2 hereof and will provide to the Bank all information relating to
such transactions as may be reasonably requested by the Bank.
SECTION 16.4. Interest Rate Protection Arrangements. The Guarantor will
not, and will not permit the Borrower to, enter into any interest rate
protection arrangements with respect to the Loans with any Person other than the
Bank, unless the Guarantor shall have first requested the Bank to enter into an
interest rate protection arrangement on terms and conditions proposed in good
faith by the Borrower and the Bank shall have declined such request.
SECTION 17. Survival of Covenants. All covenants, agreements,
representations and warranties made herein shall be deemed to have been relied
on by the Bank notwithstanding any investigation made by the Bank or on its
behalf, and shall survive the execution and delivery of this Guaranty.
SECTION 18. Notices, Etc. (a) The Bank shall provide the Guarantor with
a copy of each notice sent to the Borrower pursuant to section 7 of the Loan
Agreement. No failure of the Bank to provide any such notice shall operate to
relieve the Guarantor of any of its obligations hereunder.
(b) Except as otherwise expressly provided herein, all notices and
other communications made or required to be given pursuant to this Guaranty
shall be deemed delivered if in writing (or in the form of a telecopy confirmed
by letter) addressed as provided below and if either (i) actually delivered at
said address, or (ii) in the case of a letter, five Business Days shall have
elapsed after the same shall have been deposited in the United States mails,
postage prepaid and registered or certified:
(x) if to the Guarantor, at 125 Jericho Turnpike, Jericho,
New York 11753, Attention: John J. Fitteron, Senior Vice President,
15
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Treasurer and Chief Financial Officer, or at such other address for notice as
the Guarantor shall last have furnished in writing to the Person giving the
notice; or
(y) if to the Bank, at 100 Federal Street, Boston,
Massachusetts 02110, Attention: Michael A. Palmer, Vice President, or at such
other address for notice as the Bank shall last have furnished in writing to the
Person giving the notice.
SECTION 19. Governing Law; Miscellaneous. This Guaranty is intended to
take effect as a sealed instrument to be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts and shall inure to the
benefit of the Bank and its successors and assigns, and shall be binding on the
Guarantor and the Guarantor's successors, assigns and legal representatives. The
descriptive headings of the sections hereof have been inserted herein for
convenience of reference only and shall not define or limit the provisions
hereof.
SECTION 20. Counterparts. This Guaranty may be executed in any number
of counterparts, but all of such counterparts together shall constitute one and
the same agreement. In making proof of this Guaranty, it shall not be necessary
to produce or account for more than one counterpart hereof executed by each of
the parties hereto.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Guaranty has been executed by or on behalf of
the parties hereto as an instrument under seal as of the day first above
written.
GETTY PROPERTIES CORP.
By: /s/ John J. Fitteron
------------------------------
Name: John J. Fitteron
Title: Senior Vice President,
Treasurer and Chief
Financial Officer
FLEET NATIONAL BANK
By: /s/ Michael A. Palmer
------------------------------
Name: Michael A. Palmer
Title: Vice President