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GUARANTY OF LEASE
This GUARANTY OF LEASE (such guaranty, together with the Exhibits and
Schedules attached hereto and made a part hereof, being referred to herein as
this "Guaranty") is made and entered into as of November 2, 2000 by OAO LUKoil,
a Russian open joint stock company, whose address is Russia 101000 Moscow,
Stratesky Boulevard, 11 ("Russian Guarantor") and LUKoil International GmbH, an
Austrian corporation, whose address is c/o OAO LUKoil, Russia 101000 Moscow,
Stratesky Boulevard, 11 ("Austrian Guarantor"; and together with Russian
Guarantor, "Guarantor"), for the benefit of Getty Properties Corp., a Delaware
corporation, whose address is 125 Jericho Turnpike, Jericho, New York 11753 (as
further defined below, "Landlord").
RECITALS
A. Landlord is about to enter into the Lease (as hereinafter defined)
with Tenant.
B. As of the Restatement Effective Date, Tenant will be an indirect
wholly owned subsidiary of Russian Guarantor, and Austrian Guarantor is a
direct, wholly owned subsidiary of Russian Guarantor.
C. Guarantor acknowledges that it is in the best interests of Guarantor
to execute this Guaranty, as Guarantor will derive substantial direct and
indirect benefits from Tenant's entering into the Lease.
D. Landlord would not enter into the Lease unless Guarantor executed
this Guaranty. This Guaranty is therefore being delivered to Landlord to induce
Landlord to enter into the Lease.
E. Guarantor has duly authorized the execution, delivery and
performance of this Guaranty.
NOW, THEREFORE, in exchange for good, adequate and valuable
consideration, the receipt of which Guarantor acknowledges, and to induce
Landlord to enter into the Lease, as of the Restatement Effective Date,
Guarantor, intending to be legally bound, agrees as follows:
1. Definitions.
For purposes of this Guaranty, the following terms shall be defined as
follows. In addition, any terms defined in the Lease and used herein shall have
the same meanings in this Guaranty, except to the extent that this Guaranty
provides some other meaning(s) for such terms.
1.1 Bankruptcy Code. The "Bankruptcy Code" means Title 11 of the United
States Code, as the same may be amended from time to time.
1.2 EBITDAR Coverage Ratio. The "EBITDAR Coverage Ratio" means the
ratio described on Schedule 1.
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1.3 Foreclosure Event. A "Foreclosure Event" means: (a) any foreclosure
or sale under any Mortgage; (b) any other exercise by the Mortgagee of rights
and remedies (whether under the Mortgage or under applicable law, including
bankruptcy law) as holder of the Mortgage, as a result of which a Person other
than Landlord becomes owner of the Premises; or (c) delivery by Landlord to
Mortgagee (or its designee or nominee) of a deed, assignment or other conveyance
of Landlord's interest in the Premises in lieu of any of the foregoing.
1.4 Guarantied Obligations. The "Guarantied Obligations" means only the
following obligations of Tenant under the Lease:
1.4.1 Rent. Tenant's obligation to pay the Fixed Rent, Real
Estate Taxes and insurance premiums pursuant to Article 12 of the Lease
(as such terms may be amended and increased or reduced pursuant to the
terms of the Lease, whether or not with Guarantor's agreement or
consent) prior to the occurrence of the Liability Termination Date,
together with any late charges, interest, and Legal Costs (as such term
is defined in the Lease) actually incurred by Landlord in connection
with the collection or enforcement of such late payment or nonpayment
of the Fixed Rent, Real Estate Taxes and insurance premiums pursuant to
Article 12 of the Lease, when and as required by the Lease, but
specifically excluding the payment on account of any remedies available
to Landlord pursuant to Section 18.2 of the Lease. The payment of the
Fixed Rent (or any of the foregoing monetary obligations of Tenant
under the Lease) shall be calculated without regard to any limitation
or reduction that might apply pursuant to 11 U.S.C. Section 502(b)(6)
in an Insolvency Proceeding affecting Tenant. Guarantor's obligations
hereunder shall be determined under the terms of the Lease before
taking into account any limitation, reduction, or modification of
Tenant's obligations under the Lease arising under any Insolvency
Proceeding. Notwithstanding anything to the contrary contained in this
Guaranty, Guarantor shall not be liable to pay the Guaranteed
Obligations to Landlord, nor shall this Guaranty be of any force or
effect, in the event that Landlord terminates the Lease pursuant to
Section 18.2.1 of the Lease relating to Landlord obtaining final
non-appealable judgments relating to Tenant's failure to maintain the
Premises (as such term is defined in the Lease) as contemplated by that
Section.
1.4.2 Legal Costs. Whether or not incurred or accrued before
the Liability Termination Date, the reasonable costs and expenses
incurred by Landlord in collecting under this Guaranty and enforcing
Landlord's rights under this Guaranty and enforcing and collecting any
judgment(s) obtained by Landlord against Guarantor pursuant to this
Guaranty, including reasonable attorneys' fees and court costs
(collectively, "Legal Costs").
1.5 Insolvency Proceeding. An "Insolvency Proceeding" means any
voluntary or involuntary case under the Bankruptcy Code or any similar or
successor statute or any other voluntary or involuntary insolvency, bankruptcy,
reorganization, liquidation, assignment for the benefit of creditors or like
proceeding, whether brought under state, federal or foreign law, or any
proceeding by which any liquidator, sequestrator, receiver or trustee of a
Person or a Person's property is appointed or sought to be appointed.
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1.6 Landlord. The "Landlord" means Getty Properties Corp. (formerly
known as Getty Realty Corp.) and certain of its subsidiaries who have approved
the Lease on the signature page thereof, and its successors and assigns.
Notwithstanding the foregoing, Guarantor shall be entitled to treat Getty
Properties Corp. and its successors and assigns as "Landlord" for all purposes
hereunder.
1.7 Lease. The "Lease" means that certain Consolidated, Amended and
Restated Lease, dated as of the date hereof, between Landlord and Tenant. The
term "Lease" shall also include: (a) all renewals, modifications, options,
extensions, expansions, or assignments of the Lease, whether or not in
accordance with the express terms of the Lease; (b) any amendment or
modification of the Lease, whether or not consented to by Guarantor; (c)
Tenant's obligations relating to the Premises during any period when Tenant is
occupying the Premises or any portion thereof (including as a "holdover
tenant"); and (d) any Transferee Lease entered into between the transferee of
Landlord's fee or leasehold interest in any Property and Tenant pursuant to the
terms of the Lease. If Landlord has terminated the Lease, then at Landlord's
option, notwithstanding such termination (and in the event of any subsequent
reinstatement of the Lease), all Guarantied Obligations under this Guaranty
shall be calculated and determined as if the Lease were still in effect. Any
request by Landlord that Tenant vacate the Premises and surrender the Lease
shall not affect the definition of "Lease" for all purposes of this Guaranty. If
Tenant's obligations, or Landlord's rights and remedies (including Landlord's
right to collect damages for breach), under the Lease are modified or limited
pursuant to any Insolvency Proceeding, then for purposes of this Guaranty the
"Lease" shall continue to be defined as it existed before giving effect to any
such modification or limitation.
1.8 Liability Termination Date. The "Liability Termination Date" means
the end of the third Lease Year, as such date may be extended pursuant to the
provisions of Article 7 hereof.
1.9 Mortgagee. A "Mortgagee" means the mortgagee, holder, or
beneficiary under any mortgage, deed of trust, deed to secure debt, assignment,
security interest, pledge, financing statement or any other instrument(s) or
agreement(s) intended to grant security for any obligation encumbering the Fee
Estate or Landlord's leasehold interest in any Fee Estate owned by a Third Party
Lessor or the Power Test Lessor, as the case may be, as existing, entered into,
renewed, modified, amended, extended or assigned from time to time during the
Term.
1.10 Person. A "Person" means any association, bank, business trust,
corporation, estate, general partnership, Government, individual, joint stock
company, joint venture, labor union, limited liability company, limited
partnership, non-profit corporation, professional association, professional
corporation, trust or any other organization or person.
1.11 Preserved Defense. A "Preserved Defense" means any defense that
Tenant would be entitled to assert under the Lease with respect to the
Guarantied Obligations, other than those defenses to which Tenant may be
entitled as a result of an Insolvency Proceeding affecting Tenant.
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1.12 Proceeding. A "Proceeding" means any legal action, suit,
arbitration hearing or proceeding arising out of, or relating to the
interpretation or enforcement of, this Guaranty or the Lease, including an
Insolvency Proceeding affecting Tenant or Guarantor.
1.13 Restatement Effective Date. The "Restatement Effective Date" means
the Restatement Effective Date (as defined in the Lease).
1.15 SNDA. An "SNDA" means any agreement regarding subordination,
nondisturbance, and/or attornment between Tenant and a Mortgagee in the form
required by the Lease or, if the Lease provides for no particular form of SNDA,
then the form required by the applicable Mortgagee.
1.16 State. The "State" means the State of New York.
1.17 Successor Landlord. A "Successor Landlord" means any Person that
becomes owner of the Premises as the result of any Foreclosure Event.
1.18 Taxes. "Taxes" means any taxes, levies, fees, imposts, duties,
expenses, commissions, withholding, assessments, or other charges, or any
penalties, fines, additions or interest thereon or with respect thereto.
1.19 Tenant. "Tenant" means (a) with respect to the Service Station
Premises, Getty Petroleum Marketing Inc. and for certain Service Station
Premises located in the Mid-Hudson Valley, Kingston Oil Supply Corp. and (b)
with respect to the Petroleum Terminal Premises, Getty Terminals Corp. and for
certain Petroleum Terminal Premises located in the Mid-Hudson Valley, Kingston
Oil Supply Corp., including, in all cases, any and all successors and assigns of
such entities as may be permitted under the Lease.
2. Guaranty of Obligations. Guarantor absolutely, unconditionally, irrevocably,
jointly and severally guarantees, as principal and not as indemnitor, to
Landlord, in accordance with and pursuant to this Guaranty, Tenant's full and
punctual payment of all Guarantied Obligations. Upon either Guarantor's receipt
of Notice of any Material Monetary Default by Tenant ("Material Monetary Default
Notice"), Guarantor agrees to pay Landlord any and all sums with respect to such
Material Monetary Default then due and payable under the Lease, within ten (10)
days after receipt of the Material Monetary Default Notice. Guarantor's
liability under this Guaranty shall be primary and not secondary and Landlord
may, at Landlord's option, but Landlord need not, join Guarantor in any action
or Proceeding commenced by Landlord against Tenant in connection with the
Guarantied Obligations. Any notice sent pursuant to this Guaranty shall be sent
to Agent (as hereinafter defined) (i) by personal delivery, (ii) by Federal
Express or other reputable international courier service, or (iii) by certified
mail, return receipt requested. Any notice sent in the manner referred to in
clause (i) or (ii) of the preceding sentence shall be deemed delivered to
Guarantor on the date of delivery (or when delivery has been attempted twice, as
evidenced by the written report of the courier service), and any notice sent in
the manner referred to in clause (iii) of the preceding sentence shall be deemed
delivered to Guarantor three Business Days after deposit in the United States
mail, provided that no postal strike is then in effect. Notice to Agent shall be
deemed notice to both Guarantors. Landlord shall deliver any notice required to
be sent to Guarantor hereunder concurrently with or at any
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time after the delivery of any corresponding notice in connection with a claim
for any of the Guarantied Obligations to Tenant pursuant to the Lease. If,
however, Tenant is the subject of any Insolvency Proceeding (or Landlord is
otherwise not reasonably able to give Tenant Notice of Tenant's Material
Monetary Default) then Landlord may give Guarantor a Material Monetary Default
Notice whether or not Landlord has given or simultaneously gives Tenant a Notice
of Tenant's Material Monetary Default, and such Material Monetary Default Notice
shall be fully valid and effective as against Guarantor, as if it had already
been given to Tenant. A copy of any Notice of Tenant's Material Monetary Default
delivered to Guarantor pursuant to this Article shall simultaneously be sent to
Akin, Gump, Strauss, Hauer and Feld, L.L.P., 590 Madison Avenue, New York, New
York 10022, Attention: Patrick Dooley, Esq.
3. Changes in Lease; Other Matters.
3.1 Changes in Lease. Guarantor hereby unconditionally agrees that its
obligations under this Guaranty shall not be affected by: (i) any amendment(s)
or modification(s) to the terms and conditions of the Lease, or any extension(s)
of time for payment of monies or the performance of any act required under the
Lease; (ii) the release of Tenant from its obligations under the Lease or the
release of any security or other guarantor (including the other Guarantor)
securing the performance of Tenant under the Lease, whether made with or without
notice to or the consent of Guarantor or Landlord; or (iii) any delay in
exercising any right or remedy under the Lease or this Guaranty. Notwithstanding
the foregoing, (a) to the extent that any of the events referred to in clauses
(i), (ii) or (iii) of the preceding sentence directly reduces the extent or
nature of the Guarantied Obligations, Guarantor shall be entitled to the benefit
of such reduction in the Guarantied Obligations; and (b) to the extent any of
the events referred to in clauses (i), (ii) or (iii) of the preceding sentence
directly increases the extent or nature of the Guarantied Obligations, Guarantor
shall be bound by such increase in the Guarantied Obligations. Anything
contained in clause (b) of the preceding sentence to the contrary
notwithstanding, in the event that Tenant assigns the Lease to a Person that is
not an Affiliate or subsidiary of Tenant in accordance with the express
provisions of the Lease, and, after notice of such assignment to Landlord, the
extent or nature of the Guarantied Obligations are increased by one or more of
the events referred to in clauses (i), (ii) or (iii) above, Guarantor shall in
no event be liable for such increase in the Guarantied Obligations, and shall
continue to be liable for such Guarantied Obligations, as they existed prior to
any such increase.
3.2 Other Matters. None of the following other events shall diminish
Guarantor's liability under this Guaranty except to the extent that Section 3.1
above and Sections 3.2(c), (i) and/or (l) below directly reduce the extant or
nature of the Guarantied Obligations: (a) any assignment or subletting under the
Lease; (b) any forbearance by Landlord under the Lease or this Guaranty; (c) any
consent or waiver by Landlord; (d) any other dealings between Landlord and
Tenant or Guarantor; (e) any termination of the affiliation between Guarantor
and Tenant; (f) failure of Landlord to mitigate its damages for Tenant's Default
under the Lease unless required to do so prior to the Liability Termination Date
pursuant to the terms of the Lease; (g) Landlord's failure to assert any claim
against Tenant in any Insolvency Proceeding or any acts or omissions of Landlord
in any Insolvency Proceeding or any limitation of Tenant's liability under the
Lease in any Insolvency Proceeding; (h) the dissolution, liquidation, or
termination of Tenant; (i) the damage, destruction, condemnation, foreclosure or
surrender of all or any part of the Premises; (j) Landlord's exercise of (or
failure to exercise) any rights or
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remedies under the Lease or under applicable landlord-tenant law; (k) Landlord's
transfer of its fee or leasehold interest in any Property demised under the
Lease, or (l) any other fact, circumstance, event, or defense whatsoever that
would or could otherwise discharge, limit, terminate, or diminish Guarantor's
liability under this Guaranty or give rise to any defense or counterclaim by
Guarantor under this Guaranty (other than a Preserved Defense). To the extent
that Tenant or Guarantor may have any claim, defense, counterclaim, or offset
against Landlord's enforcement of the Lease or this Guaranty, but such claim,
defense, counterclaim, or offset is not a Preserved Defense, it may not be
asserted as a defense against the enforcement of this Guaranty unless failure to
assert such claim, defense, counterclaim, or offset in such proceeding would
constitute a permanent waiver thereof. Except as otherwise provided in the
preceding sentence, all such claims, defenses, counterclaims and offsets must be
asserted, if at all, only in the form of a separate claim by Tenant and/or
Guarantor against Landlord brought and prosecuted in a separate proceeding,
which proceeding shall not be consolidated (without Landlord's written consent)
with any action by Landlord to enforce this Guaranty.
4. Nature of Guaranty. Guarantor's liability under this Guaranty is a guaranty
of payment of money only. This Guaranty is a guaranty of payment when due and
not merely of collection. Guarantor's liability under this Guaranty is not
conditioned or contingent upon the genuineness, validity, legality, regularity
or enforceability of the Lease. Guarantor acknowledges that Guarantor is fully
obligated under this Guaranty (with respect to the Guarantied Obligations only)
even if Tenant later ceases to be liable under the Lease pursuant to an
Insolvency Proceeding. This Guaranty shall apply to any additional premises
leased by Tenant from time to time under the Lease. Guarantor specifically
agrees that it shall not be necessary or required that Landlord exercise any
right, assert any claim or demand (other than declare, by Notice to Guarantor, a
Material Monetary Default) or enforce any remedy whatsoever against Tenant (or
any other Person, including any other guarantor) before or as a condition to the
performance of Guarantor hereunder. Landlord need not commence separate
proceedings against Guarantor for each month's Guarantied Obligations, but may
proceed against Guarantor in a single action.
5. Payment of Guaranty.
5.1 Payments Net of Taxes. All payments due hereunder shall be made to
Landlord at its address set forth on the first page hereof, in lawful money of
the United States of America in immediately available funds free and clear of,
and without deduction or withholding (including withholding as a result of
Guarantor's status as a foreign corporation, if applicable) for or on account
of, any Taxes to the extent that any such Taxes would reduce the amount Landlord
would otherwise have received had Tenant made such payment. If any Taxes shall
be required by law to be deducted or withheld from any payment hereunder and as
a result thereof the amount Landlord would otherwise have received had Tenant
made such payment is reduced, Guarantor shall increase the amount paid so that
Landlord receives, after deduction or withholding on account of Taxes, the full
amount of the payment provided for in this Guaranty.
5.2 Currency. Any and all payments of the Guaranteed Obligations to be
made by Guarantor hereunder shall be made in U.S. dollars and no other currency.
6. Landlord's Assignment of Lease. If Landlord executes and delivers any
Mortgage or assignment of the Lease to a Mortgagee, then, provided such
Mortgagee has executed and
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delivered to Tenant an SNDA with respect to such Mortgage as set forth in the
Lease, from and after such time (up to the Liability Termination Date) as
Guarantor has received notice thereof and continuing (a) so long as the Mortgage
is of record or (b) until a Foreclosure Event has occurred and all Guarantied
Obligations have been paid or performed:
6.1 Effect on Guaranty. Landlord's assignment of the Lease shall be
deemed, without any further action by anyone, to include an assignment of this
Guaranty to Mortgagee or, from and after a Foreclosure Event, to Successor
Landlord.
6.2 No Amendment or Waiver. This Guaranty may not be amended, modified,
or waived, in whole or in part, without Mortgagee's prior written consent.
6.3 Continuation of Guaranty. From and after any Foreclosure Event, if
either or both (a) the Lease remains in effect and/or (b) Tenant remains in the
Premises, then this Guaranty shall continue to apply to the Guarantied
Obligations for the benefit of Successor Landlord. In addition, this Guaranty
may be enforced by Mortgagee (or its successors or assigns) or Successor
Landlord, provided that Mortgagee (or its successors or assigns, as the case may
be) or Successor Landlord complies with its obligations under the SNDA entered
into with Tenant. The foregoing shall not limit the effectiveness of any other
waivers provided for in this Guaranty.
7. Extension of Liability Termination Date; Effect of Liability Termination
Date. If at the end of the third Lease Year, Tenant is not in compliance with
the EBITDAR Coverage Ratio, then the Liability Termination Date shall be
automatically extended, without the necessity for any further action, to the end
of the fourth Lease Year. If the Liability Termination Date has occurred, then
Guarantor's liability hereunder shall terminate with respect to any Material
Monetary Default that occurs after such date and any obligation(s) arising after
such Liability Termination Date (other than Landlord's Legal Costs with respect
to Guarantied Obligations that otherwise accrued before the Liability
Termination Date) shall under no circumstance be deemed "Guarantied
Obligation(s)" hereunder. Guarantor's liability for the Guarantied Obligations
that accrued before the Liability Termination Date shall continue at all times
until such Guarantied Obligations have actually been paid in full,
notwithstanding the occurrence of the Liability Termination Date. To the extent
that Tenant makes any payments of any Fixed Rent, Real Estate Taxes or insurance
premiums pursuant to Article 12 of the Lease after the Liability Termination
Date, Landlord shall have the right, as against Guarantor, to apply such
payments first to any monetary obligations of Tenant with respect to payment of
Fixed Rent, Real Estate Taxes or insurance premiums pursuant to Article 12 of
the Lease which accrue after the occurrence of the Liability Termination Date.
8. Waivers of Rights and Defenses. In the event it shall be asserted that
Tenant's obligations under the Lease are void or voidable due to any illegal or
unauthorized acts by Tenant in the execution and delivery of the Lease, or if
the Lease (or Tenant's obligations under the Lease) are invalidated or set aside
in whole or in part in an Insolvency Proceeding affecting Tenant, then Guarantor
shall nevertheless be liable under this Guaranty to the extent of the Guarantied
Obligations to the same extent as Guarantor would have been liable if the
obligations of Tenant under the Lease had been fully enforceable against Tenant.
Guarantor waives any right to require Landlord to proceed against Tenant or any
other Person (including the other Guarantor or any other guarantor) or pursue
any other right or remedy for Guarantor's benefit. Guarantor
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agrees that Landlord may proceed against Guarantor with respect to the
Guarantied Obligations without taking any action against Tenant or any other
Person, other than delivery of the Material Monetary Default Notice to
Guarantor. Guarantor agrees that Landlord may unqualifiedly exercise in its sole
discretion any or all rights and remedies available to it against Tenant or any
other Person without impairing Landlord's rights and remedies in enforcing this
Guaranty, under which Guarantor's liabilities shall remain independent and
unconditional.
9. Additional Waivers. Guarantor waives presentment; notice of dishonor; protest
and notice of non-payment, non-performance or non-observance; notice of
acceptance of this Guaranty; notice of any obligations or liabilities contracted
or incurred by Tenant; and all other notices and demands otherwise required by
law which Guarantor may lawfully waive, except for giving Guarantor (but not
Tenant) the Material Monetary Default Notice.
10. No Claims Against Tenant; Subordination. If Guarantor shall provide (whether
by capital contribution or loan) any sums to Tenant in connection with a
Material Monetary Default or otherwise, all such sums and claims relating
thereto shall be subordinate in all respects to the prior payment of all amounts
due and owing by Tenant to Landlord with respect to any Material Monetary
Default accruing prior to the Liability Termination Date under the Lease. So
long as Tenant has not committed a Material Monetary Default under the Lease
prior to the Liability Termination Date, Tenant may pay to Guarantor all sums
due and owing to it (subject to applicable debtor-creditor law); provided,
however, that upon Guarantor's receipt of Notice from Landlord that Tenant has
committed a Material Monetary Default accruing prior to the Liability
Termination Date under the Lease, Guarantor shall take no action to assert,
enforce or collect, nor shall it accept any payment due it from Tenant, unless
and until all sums owed to Landlord under the Lease with respect to the Material
Monetary Default have been paid in full. In any Insolvency Proceeding,
Landlord's claims against the assets of Tenant with respect to a Material
Monetary Default accruing prior to the Liability Termination Date shall be paid
in full before any payment is made to Guarantor, including any payment in
connection with reimbursement for payment of a Material Monetary Default to or
on behalf of Tenant, whether such payment is in kind or in cash. Nothing herein
contained shall be construed to give Guarantor any right of subrogation with
respect to reimbursement in connection with payment made to or on behalf of
Tenant to cure a Material Monetary Default under the Lease accruing prior to the
Liability Termination Date until all amounts owing to Landlord in connection
with a Material Monetary Default accruing prior to the Liability Termination
Date have been paid in full. Notwithstanding the foregoing, nothing contained in
this Article 10 shall survive the payment in full of the Guarantied Obligations.
Nothing in the Article 10 shall cause Guarantor to be subordinated to the claims
of any other third party.
11. Landlord's Disgorgement of Payments. Upon Tenant's or Guarantor's payment of
all or any portion of the Guarantied Obligations, even if the Liability
Termination Date has occurred, Guarantor's obligations under this Guaranty shall
continue and remain in full force and effect if all or any part of any such
payment is, pursuant to any Insolvency Proceeding or otherwise, avoided or
recovered directly or indirectly, from Landlord as a preference, fraudulent
transfer, fraudulent conveyance or otherwise, irrespective of any notice of
revocation given by Guarantor prior to such avoidance or recovery. Guarantor
shall promptly repay to Landlord any payment of the Guarantied Obligations so
recovered from Landlord. Guarantor's liability under this Guaranty shall
continue until (a) all periods have expired within which Landlord could (on
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account of Insolvency Proceedings, whether or not then pending, affecting Tenant
or any other Person) be required to return or repay any amount paid at any time
on account of the Guarantied Obligations; (b) Guarantor has made all payments
required under this Article; and (c) all other conditions to the termination of
this Guaranty have been satisfied.
12. Guarantor's Financial Statements.
12.1 Russian Guarantor; Confidentiality. Russian Guarantor shall
deliver to Landlord, for Landlord's information, Russian Guarantor's financial
information (a) if and when publicly available pursuant to the reporting
requirements of any jurisdiction, in the form made publicly available pursuant
to such reporting requirements or (b) if not publicly available, within 150 days
after the end of the Russian Guarantor's fiscal year consisting of Russian
Guarantor's balance sheet, income statement and statement of changes in cash
flow for the year then ended. In the event that Russian Guarantor's financial
information provided pursuant to clause (b) above is certified by an independent
certified public accountant, at the time Russian Guarantor delivers its
financial information pursuant to the preceding sentence, Russian Guarantor
shall also deliver to Landlord a copy of such certified financial information.
With respect to any Russian Guarantor information that is not publicly
available, Landlord may use or disclose such financial information to its
directors, officers, employees, controlling persons, affiliates, legal and
financial advisors, accountants and other agents and representatives as well as
any bank or other financial institution or institutional lender who is
considering providing financing to Landlord (the "Landlord's Representatives")
to the extent necessary for Landlord to conduct its business; provided, however,
that Landlord agrees to (x) keep such financial information strictly
confidential, (y) take all reasonable measures to prevent Landlord's
Representatives from using or disclosing such financial information in violation
of this sentence and (z) be responsible for any breach of this sentence by any
of Landlord's Representatives.
12.2 Austrian Guarantor. Within 150 days after the end of Austrian
Guarantor's fiscal year, Austrian Guarantor shall deliver to Landlord, for
Landlord's information, Austrian Guarantor's financial information only if and
when publicly available pursuant to the reporting requirements of any
jurisdiction, in the form made publicly available pursuant to such reporting
requirements.
13. Representations and Warranties. Guarantor acknowledges, represents and
warrants as follows, and acknowledges that Landlord is relying upon the
following acknowledgments, representations and warranties by Guarantor in
entering into the Lease.
13.1 Incorporation; Valid Title; Liens. Russian Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of Russia. Austrian Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of Austria. Each is qualified in the
appropriate jurisdictions of the United States of America as may be necessary to
legally carry on its business. To the best of Guarantor's knowledge, Guarantor
has good and marketable title to all its property and assets, real and personal.
13.2 Valid Obligation. This Guaranty constitutes a legal, valid and
binding obligation of Guarantor, except that the Russian Guarantor will not be
permitted to make payments under this Guaranty in any currency other than the
Ruble until such time, if any, as the Russian
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Guarantor receives a license from the Central Bank of the Russian Federation
permitting it to make payments under this Guaranty in currencies other than the
Ruble.
13.3 Accuracy of Facts. To the best of Guarantor's knowledge, the
Recitals of this Guaranty are true and correct.
13.4 No Conflict. Except as set forth in Section 13.2, the execution,
delivery, and performance of this Guaranty will not violate any provision of any
law, regulation, judgment, order, decree, determination or award of any court,
arbitrator or governmental authority, or of any mortgage, indenture, loan or
security agreement, lease, contract or other agreement, instrument or
undertaking to which Guarantor is a party or that purports to be binding upon
Guarantor or any of its property or assets, except as could not reasonably be
expected to have a material adverse effect on Guarantor or its assets or
property.
13.5 No Third Party Consent Required. No consent of any Person (other
than the license to be obtained from the Central Bank of the Russian Federation
as set forth in Section 13.2 and other consents which have been obtained) is
required in connection with Guarantor's execution of this Guaranty or
performance of its obligations under this Guaranty. Except as set forth above,
Guarantor's execution of, or obligations under, this Guaranty are not contingent
upon any consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority, bureau or agency, whether local, state, federal or
foreign, except to the extent failure to obtain the same would not adversely
affect Guarantor's obligations hereunder or Landlord's pursuit of the remedies
afforded to it by reason of this Guaranty.
13.6 No Legal Action Pending. "Legal Action" means any litigation,
arbitration, investigation or administrative proceeding of or before any court,
arbitrator or governmental authority, bureau or agency: (a) with respect to this
Guaranty or any of the transactions contemplated by this Guaranty, or (b)
against or affecting Guarantor's property or assets. Except as set forth in
Section 13.2 herein, Guarantor represents and warrants that no Legal Action is
pending or (to the best of Guarantor's knowledge) threatened, except as could
not reasonably be expected to have a material adverse effect on Guarantor or its
ability to perform under this Guaranty.
14. Other Guaranties. This Guaranty is in addition to and independent of any
guaranty(ies) executed by any other Person(s) and any other guaranties of
Tenant's obligations executed by Guarantor in favor of Landlord. This Guaranty
shall in no way limit or lessen any other liability, arising in any way, that
Guarantor may have regarding the Lease.
15. Joint and Several Liability. The obligations and liabilities of each
Guarantor under this Guaranty shall be joint and several. Landlord may, at its
option, enforce this Guaranty against either or both Guarantors.
16. Counterparts. This Guaranty may be executed in counterparts. If this
Guaranty provides for execution by more than one Guarantor, then the
effectiveness of this Guaranty against each Guarantor executing this Guaranty is
not conditioned upon execution of this Guaranty by any other Guarantor.
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17. No Waiver. Neither any waiver or modification of any provision of this
Guaranty, nor any termination of this Guaranty, shall be effective unless in
writing and signed by the party against which the waiver, modification or
termination is sought to be enforced, nor shall any waiver be applicable except
in the specific instance for which it is given.
18. Remedies. All remedies afforded to Landlord by reason of this Guaranty and
under the Lease are separate and cumulative remedies and it is agreed that no
one remedy, whether exercised by Landlord or not, shall be deemed to be in
exclusion of any other remedy available to Landlord and shall not limit or
prejudice any other legal or equitable remedy which Landlord may have.
19. Choice of Law; Consent to Jurisdiction. THIS GUARANTY SHALL BE GOVERNED BY
NEW YORK LAW. Landlord and Guarantor each hereby irrevocably submit to the
exclusive jurisdiction of the New York County Supreme Court of the State of New
York sitting in New York County and to the jurisdiction of the United States
District Court for the Southern District of New York for purposes of all
Proceedings arising out of or relating, directly or indirectly to this Guaranty.
This consent to jurisdiction shall be self-operative and no further instrument
or action, other than service of process on Agent, shall be necessary in order
to confer jurisdiction upon Guarantor or Landlord in any such court. Guarantor
and Landlord each hereby irrevocably waive and agree not to assert, by way of
motion, as a defense, or otherwise, in any such suit, action or Proceeding
brought in any such court, any claim that Guarantor or Landlord, as the case may
be, is immune from or not subject personally to the jurisdiction of the
above-named courts, that Guarantor's property is exempt or immune from
attachment or execution, that the suit, action or Proceeding is brought in an
inconvenient forum, that the venue of the suit, action or Proceeding is improper
or that this Guaranty or the subject matter hereof may not be enforced in or by
such court, and further agrees to waive, to the fullest extent permitted under
applicable law, the benefit of any defense that would hinder, fetter or delay
the levy, execution or collection of any amount to which Landlord or its
successors or assigns or Guarantor or its successors or assigns are entitled
pursuant to the final non-appealable judgment of any court having jurisdiction.
By executing this Guaranty, Landlord and Guarantor each irrevocably accept and
submit to the personal jurisdiction of each of the aforesaid courts, solely with
respect to any such Proceeding. Guarantor further agrees that a final,
non-appealable judgment against Guarantor in any Proceeding shall be conclusive
evidence of Guarantor's liability for the full amount of such judgment. Any such
judgment may be enforced in any other jurisdiction, either inside or outside of
the United States, (a) by suit, action or Proceeding on the judgment or (b) in
any other manner provided by or pursuant to the laws of such other jurisdiction;
provided, however, that, only with respect to, Landlord may at its option bring
an attachment proceeding or suit, or institute other judicial Proceedings
against Guarantor or any of Guarantor's assets in any state or federal court of
the United States or of any country or place where Guarantor or any such assets
may be found. Each party agrees that its aforesaid consent to jurisdiction is
made for the express benefit of the other party.
20. Designation of Guarantor's Agent. Guarantor irrevocably designates and
appoints CT Corporation, 111 Eighth Avenue, New York, New York 10011 ("Agent"),
as Guarantor's agent for service of process for all Proceedings brought by
Landlord under this Guaranty and for receipt of any and all notices otherwise
required to be given to Guarantor pursuant to this Guaranty. Guarantor agrees to
take any and all action reasonably necessary under the laws of the
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State of New York and the United States of America to make effective the
aforesaid designation and appointment of Agent and to continue such appointment
and designation in full force and effect. Guarantor may terminate such
appointment (or the appointment of any replacement Agent) only by: (a)
appointing either (i) any law firm with a street address and an office in
Manhattan as Agent, provided that members of such law firm are attorneys
admitted to practice in the courts of New York and such law firm is lawfully
practicing law in the State of New York or (ii) any reputable company regularly
engaged in the business of accepting service of process and other notices on
behalf of others, provided that such company is not an Affiliate of Tenant or
Guarantor and has a street address and an office in Manhattan; and (b) causing
such law firm or such company to deliver to Landlord a written consent, which
consent shall provide it accepts its appointment as Agent hereunder and will
accept service of process and all other notices otherwise required to be given
to Guarantor hereunder, in each case on behalf of each of the Guarantors, and
shall set forth such law firm's street address in the Borough of Manhattan or
such company's address, as the case may be.
21. Merger; No Conditions; Amendments. This Guaranty contains the entire
agreement among the parties with respect to the matters set forth in this
Guaranty. This Guaranty supersedes all prior agreements among the parties with
respect to the matters set forth in this Guaranty. No course of prior dealings
among the parties, no usage of trade, and no parol or extrinsic evidence of any
nature shall be used to supplement, modify or vary any terms of this Guaranty.
This Guaranty is unconditional. There are no unsatisfied conditions to the full
effectiveness of this Guaranty except as set forth in Section 13.2. No terms or
provisions of this Guaranty may be changed, waived, revoked or amended without
Landlord's prior written consent.
22. Interpretation. This Guaranty shall be governed under and construed in
accordance with the internal laws of the State without regard to principles of
conflicts of laws, and such laws shall apply in any action or Proceeding arising
out of or under this Guaranty. The words "include" or "including" are intended
to be interpreted as if followed in each case by the words "without limitation."
23. Legal Costs. In the event of any Proceeding between Guarantor and Landlord,
the successful party in any such Proceeding shall reimburse the other for all
Legal Costs of such Proceeding.
24. Further Assurances. Upon Landlord's request in connection with any
assignment of the Lease, Guarantor shall confirm in writing to the transferee
the continued effectiveness of this Guaranty, in a form reasonably satisfactory
to such transferee.
25. Maximum Guaranteed Amount. Notwithstanding anything to the contrary in this
Guaranty, if the obligations of any Guarantor under this Guaranty would
otherwise be held or determined (beyond further appeal) by a court of competent
jurisdiction in any action or Proceeding involving any state or foreign
corporate law or in any Insolvency Proceeding affecting Guarantor to be void,
invalid or unenforceable to any extent on account of the amount of such
Guarantor's liability under this Guaranty, then notwithstanding any other
provision of this Guaranty to the contrary, as to such Guarantor, the amount of
such Guarantor's liability under this Guaranty shall, without any further action
by any Guarantor, by Landlord, or by any
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other Person, be automatically limited and reduced to the maximum amount that is
valid and enforceable as determined (beyond further appeal) in such action or
Proceeding, and not for any greater amount. The foregoing limitation of a
particular Guarantor's liability under this Guaranty shall in no way limit the
liability of any other Person, including any other guarantor.
26. Assignability. Landlord may assign this Guaranty but only in connection with
an assignment of the Lease by Landlord in accordance with the terms therein and
Article 6 hereof. If the Lease is severed into more than one lease or if the
Lease is terminated and Tenant or its affiliate enters into a new lease of the
terminated premises with Landlord or its designee or assignee, then this
Guaranty shall apply to each such severed or new lease and the Guarantied
Obligations thereunder and Guarantor shall upon request enter into a separate
guaranty thereof in the same form as this Guaranty. Except as described in the
preceding sentence, this Guaranty shall benefit only Landlord and its successors
and assigns (including any Successor Landlord), and no other Persons.
Notwithstanding anything to the contrary contained herein, this Guaranty shall
bind Guarantor and its heirs, executors, administrators, successors and assigns.
27. Severability. If any provision of this Guaranty or the application thereof
to any Person or circumstance shall to any extent be held void, unenforceable or
invalid, then the remainder of this Guaranty or the application of such
provision to Persons or circumstances other than those as to which it is held
void, unenforceable or invalid, shall not be affected thereby and each provision
of this Guaranty shall be valid and enforceable to the fullest extent permitted
by law.
28. TRIAL BY JURY. GUARANTOR AND LANDLORD WAIVE TRIAL BY JURY IN ANY ACTION TO
ENFORCE OR INTERPRET THIS GUARANTY OR ARISING OUT OF THE RELATIONSHIP BETWEEN
THE PARTIES HEREUNDER.
29. Notices. Any notice by Landlord under this Guaranty (including a Material
Monetary Default Notice) may be given by Landlord's then-current attorneys, and
any such notice shall be as effective as if given directly by Landlord. No proof
of authority of such attorneys shall be required.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the
date indicated below.
RUSSIAN GUARANTOR
OAO LUKoil, a Russian open joint stock company
By: /s/ Ralif Safin
-------------------------------------------
Name: Ralif Safin
Title: First Vice President
Date: November 2, 2000
AUSTRIAN GUARANTOR
LUKoil International GmbH, an Austrian corporation
By: /s/ Ralif Safin
-------------------------------------------
Name: Ralif Safin
Title: First Vice President
Date: November 2, 2000
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ACKNOWLEDGMENTS
GETTY PROPERTIES CORP.
By: /s/ John Fitteron
--------------------------------------
Name: John Fitteron
Title: Senior Vice President
Date: November 2, 2000
GETTY PETROLEUM MARKETING INC.
By: /s/ Vincent DeLaurentis
--------------------------------------
Name: Vincent DeLaurentis
Title: President and Chief Operating Officer
Date: November 2, 2000
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SCHEDULE 1
EBITDAR COVERAGE RATIO
The "EBITDAR Coverage Ratio" shall be equal to 1.2 times and will be calculated
as the ratio of EBITDAR(1) to interest expense(2) plus rent expense(3) for the
most recently ended four fiscal quarter periods, as set forth in Tenant's
financial statements prepared in accordance with GAAP.
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(1) EBITDAR means income before interest expense, income taxes,
depreciation and amortization and rent expense.
(2) Interest expense means interest expense recorded during the relating
period excluding interest income and amortization of deferred financing
fees and including capitalized interest.
(3) Rent expense includes minimum rents and percentage rents (as per lease
agreements) and deferred rents, if any.