1
===============================================================================
SECOND AMENDED AND RESTATED LOAN AGREEMENT
between
POWER TEST REALTY COMPANY LIMITED PARTNERSHIP
and
THE CHASE MANHATTAN BANK
dated as of July 20, 2001
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TABLE OF CONTENTS
PAGE
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ss.1. DEFINITIONS.........................................................1
ss.2. THE LOAN............................................................8
2.1. The Loan...................................................8
2.2. The Third Amended Master Note..............................8
2.3. Interest on the Loan.......................................8
2.3.1. Interest Rates....................................8
2.3.2. Notification by Borrower..........................8
2.3.3. Amounts, Etc......................................8
2.3.4 Overdue Amounts...................................8
2.4. Repayment of Principal.....................................9
2.5. Conversion Options.........................................9
2.5.1. Conversion to Different Type of Loan..............9
2.5.2. Continuation of Type of LIBOR Loan................9
2.5.3. LIBOR Rate Loans..................................9
2.6. Payments and Prepayments of Principal......................9
2.7. Method of Computing Interest..............................10
2.8. Place and Method of Payments..............................10
2.9. Application of Payments...................................10
2.10. Indemnity.................................................10
2.11. Illegality................................................11
2.12. Increased Costs...........................................11
2.13. Taxes.....................................................12
2.14 Change of Lending Office..................................12
2.15 Inability to Determine Interest Rate......................12
2.16. Security..................................................13
2.17. Structuring Fee...........................................13
ss.3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.....................13
3.1. Authority.................................................13
3.2. Membership................................................13
3.3. Title to Properties; Absence of Liens.....................14
3.4. No Default or Violation of Law............................14
3.5. Environmental Compliance and Storage Tank Regulations.....14
3.6. Enforceability of the Loan Documents......................16
3.7. Use of Proceeds...........................................16
3.8. Financial Statements......................................16
3.9. No Material Changes.......................................16
3.10. No Materially Adverse Contracts, Etc......................16
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3.11. Compliance With Other Instruments, Laws, Etc..............16
3.12. Governmental Approvals....................................17
3.13. Taxes.....................................................17
3.14. Franchises, Patents, Copyrights, Etc......................17
3.15. Litigation................................................17
3.16. No Events of Default, Etc.................................17
3.17. Chief Executive Offices...................................17
3.18. [INTENTIONALLY DELETED]...................................18
3.19. [INTENTIONALLY DELETED] ..................................18
3.20. Collateral................................................18
3.21. Leases....................................................18
3.22. Master Lease..............................................19
3.23. True Copies of Partnership and Other Documents............20
3.24. Guaranteed Pension Plans..................................20
3.25. Disclosure................................................20
3.26. No Subsidiaries: Affiliates...............................20
ss.4. CONDITIONS OF LOAN....................................................20
4.1. Loan Documents. Etc.......................................20
4.2. Partnership Action........................................21
4.3. Real Estate Appraisals....................................21
4.4. Proceedings and Documents.................................21
4.5. Opinions of Counsel.......................................21
4.6. Security Documents........................................21
4.7. Collateral Notes..........................................21
4.8. Insurance.................................................21
4.9. Endorsements..............................................21
ss.5. AFFIRMATIVE COVENANTS.................................................22
5.1. Punctual Payment..........................................22
5.2. Conduct of Business.......................................22
5.3. Compliance with Agreements and Contracts..................22
5.4. Insurance.................................................22
5.5. Payment of Taxes..........................................23
5.6. Compliance with Law.......................................23
5.7. Notification of Material Litigation. Default, Etc.........23
5.8. Financial Statements, Certificates and Other Information..24
5.9. Notice of Material Change.................................25
5.10. Inspection of Properties and Books........................25
5.11. ERISA.....................................................25
5.12. Change of Name; Jurisdiction of Formation.................25
5.13. Maintenance of Office.....................................25
5.14. Further Assurances........................................25
5.15. Collateral Notes..........................................26
5.16. Principal Bank............................................26
5.17. Flood Insurance...........................................26
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5.18. Environmental Events.....................................26
5.19. Environmental Assessments................................26
5.20. Delivery of Mortgages....................................27
ss.6. NEGATIVE COVENANTS................................................28
6.1. [Intentionally Deleted]..................................28
6.2. Liens....................................................28
6.3. [Intentionally Deleted]..................................28
6.4. Merger. Sale of Assets and Termination of Leases.........28
6.5. Lines of Business........................................29
6.7. [Intentionally Deleted]..................................29
6.8. [Intentionally Deleted]..................................29
6.9. [Intentionally Deleted]..................................29
6.10. [Intentionally Deleted]..................................29
6.11. Continent Liabilities....................................29
6.12. Compensation Limitations.................................30
6.13. Sale of Stations.........................................30
6.14. Modifications to Leases..................................30
6.15. [Intentionally Deleted.].................................30
6.16. [Intentionally Deleted.].................................30
6.17. [Intentionally Deleted]..................................30
6.18. Contracts with Affiliates................................30
6.19. Compliance with Environmental Laws.......................31
ss.7. DISTRIBUTIONS.....................................................31
7.1. Permitted Distributions..................................31
7.2. [Intentionally Deleted.].................................31
7.3. [Intentionally Deleted.].................................31
7.4. No Distributions During Default..........................31
ss.8. EVENTS OF DEFAULT; ACCELERATION...................................31
ss.9. REMEDIES ON DEFAULT, ETC..........................................34
9.1. Foreclosure on Collateral................................34
9.2. Setoff...................................................34
9.3. Pursue Other Remedies....................................34
ss.10. EXPENSES........................................................34
ss.11. NOTICE, ETC.....................................................35
ss.12. MISCELLANEOUS...................................................35
ss.13. CONSENTS, AMENDMENTS, WAIVERS, ACKNOWLEDGMENTS, ETC.............35
ss.14. SUCCESSORS AND ASSIGNS; PARTICIPATIONS..........................36
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EXHIBITS
Exhibit A - Form of Lease
Exhibit B - Form of Sublease
Exhibit C - [intentionally omitted]
Exhibit D - Affirmation of Loan Documents
Exhibit E - Master Lease
SCHEDULES
Schedule 1 - List of Mortgages
Schedule 3.5 - Environmental Matters
Schedule 5.4 - Insurance
Schedule 6.2 - Liens
Schedule 6.11 - Contingent Liabilities
Schedule PS - List of Primary Stations
Schedule SS - List of Secondary Stations
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POWER TEST REALTY COMPANY LIMITED PARTNERSHIP
SECOND AMENDED AND RESTATED
LOAN AGREEMENT
This Second Amended and Restated Loan Agreement (this "Loan Agreement") is
entered into as of the 20th day of July, 2001, by and between Power Test Realty
Company Limited Partnership, a New York limited partnership ("the Borrower") and
The Chase Manhattan Bank, a New York banking corporation (the "Bank").
This Second Amended and Restated Loan Agreement amends and restates, but is
not in satisfaction or cancellation of the underlying obligations under, or the
promissory notes referred to in, the Amended and Restated Loan Agreement dated
as of October 31, 1995 between the Borrower and Fleet National Bank f/k/a Fleet
Bank of Massachusetts, N.A. ("Fleet") and assigned to the Bank on the date
hereof (as amended, the "Original Loan Agreement"). This Loan Agreement is
secured by the Bank's mortgage liens and security, interests in property of the
Borrower created pursuant to the agreements and instruments executed and
delivered by the Borrower in connection with the Original Loan Agreement. This
Loan Agreement shall in no way release, impair or interrupt the continued
perfection and priority of such mortgage liens and security interests in favor
of the Bank as collateral security for the obligations of the Borrower
hereunder. The Loan hereunder is in continuance of, a restatement of, and not in
satisfaction or cancellation of, the loans made to the Borrower pursuant to the
Original Loan Agreement.
ss.1. DEFINITIONS. (a) The following terms shall have the meanings set
forth in this ss.1 or elsewhere in the provisions of this Agreement referred to
below:
Affiliate means any Person directly or indirectly, through one or more
intermediaries, controlling, controlled or under common control with any other
Person. For purposes of this Agreement and the other Loan Documents, each of
Realty and Properties will be deemed to be an Affiliate of the Borrower.
Agreement means this Loan Agreement, including the Exhibits and Schedules
hereto, as such may be amended, modified or supplemented from time to time.
Appraised Value, with respect to any particular Station, means the value of
such Station, as set forth in an appraisal of the Station's real estate, such
appraisal to be in form, substance and methodology satisfactory to the Bank and
prepared by an independent appraiser approved by the Bank.
Bank means The Chase Manhattan Bank, a New York banking corporation.
Bank's Special Counsel means Farrell Fritz, P.C., or such other counsel
selected by the Bank from time to time to represent it in connection with the
Loan Documents.
Borrower means Power Test Realty Company Limited Partnership, a New York
limited partnership.
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Business Day means a day on which banks in New York, New York are open for
the transaction of banking business.
CERCLA has the meaning set forth in ss.3.5 hereof.
Chase Note means the promissory note of the Borrower to The Chase Manhattan
Bank, N.A. dated February 1, 1985, in an original principal amount $34,000,000
and which was assigned to Fleet on December 10, 1986 and assigned to the Bank on
the Closing Date.
Closing Date means the date on which this Agreement has been executed and
delivered by all parties thereto.
Code means the Internal Revenue Code of 1986, as amended.
Collateral Assignments means the Collateral Assignments of Leases and
Rentals dated as of December 10, 1986 or November 30, 1989 between the Borrower
and Bank of New England, N.A., assigned to Fleet and further assigned to the
Bank on the Closing Date, as such may have been or may be amended, varied,
restated, modified or supplemented from time to time.
Collateral Note(s) means the Collateral Note dated December 10, 1986
executed by the Borrower in favor of the Bank, as successor by assignment to
Fleet, in the original principal amount of $15,000,000, and each note, if any,
executed pursuant to Section 5.15.
Consolidated Tangible Net Worth shall mean (a) the consolidated assets of
Realty and its consolidated Subsidiaries determined in accordance with generally
accepted accounting principles, applied on a consistent basis except that there
shall be excluded therefrom all obligations due to Realty and its consolidated
Subsidiaries from any of its Affiliates and all intangible assets, including,
without limitation, organizational expenses, patents, trademarks, copyrights,
goodwill, covenants not to compete, research and development costs, training
costs, and all unamortized debt discount, and deferred charges, less (b) the
consolidated liabilities of Realty and its consolidated Subsidiaries determined
in accordance with generally accepted accounting principles, applied on a
consistent basis.
Contingent Liabilities means any guaranties, endorsements, agreements to
purchase or provide funds for the 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, and excluding amounts claimed in litigation
or any administrative or governmental claim or proceeding against the Borrower
which are indemnifiable by Properties under any Lease and with regard to which
the Bank has received evidence satisfactory to it that Properties acknowledges
an obligation to indemnify the Borrower with respect thereto.
Conversion Request means a notice given by the Borrower to the Bank of the
Borrower's election to convert all or any portion of the Loan in accordance with
ss.2.5.
Default means any event or condition which with the lapse of time or the
giving of notice,
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or both, would become an Event of Default.
Distributions means any distributions of any kind whatever out of the
property, assets, income or revenues of the Borrower in respect of all or any of
the partnership interests or rights of any kind in the capital of the Borrower
owned or held by any one or more of the Partners or by any one or more of the
Persons to whom any such partnership interests or rights in the Borrower shall
have been sold, transferred or assigned at any time or times, any return of all
or any part of the contributions to the capital of the Borrower made by any
Partner or any other Person to whom any partnership interest or other rights of
any kind in the capital of the Borrower has been sold, transferred or assigned.
Dollars or $ means dollars in lawful currency of the United States of
America.
Drawdown Date means the date on which all or any portion of the Loan is
converted or continued in accordance with ss.2.5.
Environmental Laws has the meaning set forth in ss.3.5 hereof.
EPA has the meaning set forth in ss.3.5 hereof.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
Eurocurrency Reserve Rate means for any day with respect to a LIBOR Rate
Loan, the maximum rate (expressed as a decimal) at which the Bank or any
participant or assignee of the Bank subject thereto would be required to
maintain reserves under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor or similar regulations relating to such reserve
requirements) against "Eurocurrency Liabilities" (as that term is used in
Regulation D), if such liabilities were outstanding. The Eurocurrency Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in the Eurocurrency Reserve Rate.
Events of Default means any of those events described in ss.8 hereof.
Guaranteed Pension Plan means any pension plan maintained by the Borrower,
or to which the Borrower contributes, which is required to pay plan termination
insurance premiums to the Pension Benefit Guaranty Corporation.
Guarantees means, collectively, the Realty Guaranty and the Properties
Guaranty.
Guarantors means, collectively, Properties and Realty.
Hazardous Substances has the meaning set forth in ss.3.5 hereof.
Hazardous Waste and PMPA Indemnification Agreement means the Amended and
Restated Hazardous Waste and PMPA Indemnification Agreement dated October 31,
1995 between the Borrower, Properties and the Bank, as assignee of Fleet, as
amended, modified, varied or supplemented from time to time.
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Indebtedness means all indebtedness for borrowed money or credit received
(including obligations with respect to leases of any of the foregoing which
would be required to be capitalized and carried on the balance sheet of the
Borrower in accordance with generally accepted accounting principles) other than
trade debt or other similar obligations incurred in the ordinary course of
business.
Interest Payment Date means (i) as to any Prime Rate Loan, the first day of
the calendar month and (ii) as to any LIBOR Rate Loan the last day of the
applicable Interest Period.
Interest Period means with respect to the Loan, (i) initially, the period
commencing on the Closing Date of the Loan and ending on the last day of one of
the periods set forth below, as selected by the Borrower (A) for any Prime Rate
Loan, the last day of the calendar month; (B) for any LIBOR Rate Loan, 30 days;
and (ii) thereafter, each period commencing on the first day of the next
Interest Period applicable to such Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Conversion Request;
provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(a) if any Interest Period with respect to a LIBOR Rate Loan would
otherwise end on a day that is not a LIBOR Business Day, that Interest Period
shall be extended to the next succeeding LIBOR Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding LIBOR Business Day;
(b) if any Interest Period with respect to a Prime Rate Loan would end on a
day that is not a Business Day, that Interest Period shall end on the next
succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in ss.2.5, the
Borrower shall be deemed to have requested a conversion of the affected LIBOR
Rate Loan to a Prime Rate Loan and the continuance of any Prime Rate Loan as a
Prime Rate Loan on the last day of the then current Interest Period with respect
thereto;
(d) the Borrower shall not select an Interest Period relating to any LIBOR
Rate Loan that would extend beyond the Maturity Date.
Leases means the service Station leases covering the Stations, between the
Borrower and Properties, as in effect on the date hereof, and as amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.
LIBOR Business Day means any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other LIBOR market as may be selected by the Bank in its sole discretion acting
in good faith.
LIBOR Rate means for any Interest Period with respect to a LIBOR Rate Loan,
the rate of interest equal to (i) the rate determined by the Bank at which
Dollar deposits of an amount comparable to the LIBOR Rate Loan for such Interest
Period are offered to the London office of the Bank in immediately available
funds in the London interbank market for eurodollars by leading
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banks in the eurodollar market at approximately 11:00 a.m. London time on the
second LIBOR Business Day prior to the first day of such Interest Period,
divided by (ii) a number equal to 1.00 minus the Eurocurrency Reserve Rate, if
applicable.
LIBOR Rate Loan means all or any portion of the Loan bearing interest
calculated by reference to the LIBOR Rate.
Liens means any mortgage, security interest, lien, pledge, charge or other
encumbrance of any kind.
Loan means the loan in the principal amount of $19,819,574.61 made by the
Bank to the Borrower hereunder, as evidenced by the Third Amended Master Note
and the Collateral Note(s).
Loan Documents means collectively, this Agreement, the Third Amended Master
Note, the Collateral Note(s), the Chase Note, the Security Documents, the Three
Party Lease Agreement and Hazardous Waste and PMPA Indemnification Agreement,
the Realty Guaranty, the Properties Guaranty and all other agreements or
documents under which the Borrower, Realty or Properties create or assume
liabilities or obligations owed the Bank with respect to the Loan or this or any
other agreement or grants collateral security therefor, as the same may be
amended, modified. varied or supplemented from time to time.
Marketing shall mean Getty Petroleum Marketing Inc., a Maryland
corporation.
Master Lease shall mean the Consolidated, Amended and Restated Master Lease
dated as of November 2, 2000 between Properties and Marketing as the same may be
amended, modified, varied or supplemented from time to time.
Maturity Date means August 31, 2002.
Mortgages means the mortgages with respect to the real property of the
Borrower listed on Schedule I hereto, executed and delivered by the Borrower in
favor of Bank of New England, N.A. prior to the date hereof, including, without
limitation, those mortgages assigned to Bank of New England. N.A. by The Chase
Manhattan Bank, N.A., as such mortgages have been or may hereafter be amended,
modified or supplemented.
Notes means, collectively, the Third Amended Master Note, all Collateral
Note(s), the Chase Note, as such may be amended, varied or supplemented from
time to time, and any note issued in exchange for or replacement of any such
note pursuant to the terms hereof.
Officer's Certificate means certificate signed by the chairman, the
president, chief financial officer, or general partner of the Person delivering
such certificate.
Partners means, collectively, Realty, Properties and any other Person who
is admitted as a general partner or a limited partner of the Borrower or to whom
is transferred, sold or assigned any partnership interest or other right of any
kind in the capital of the Borrower after the date hereof; and
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Partner means any one of the Partners.
Partnership Agreement means that Certificate and Agreement of Limited
Partnership of Power Test Realty Company Limited Partnership, dated as of
January 10, 1985, as amended on July 9, 1986 and on February 1, 1998, as it may
be amended, modified or supplemented from time to time.
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.
Plan means an employee benefit plan or other plan maintained for employees
of the Borrower and covered by Title IV of ERISA.
Primary Stations means those Stations located in Delaware, Pennsylvania and
New York and set forth in Schedule PS hereto.
Prime Rate means the rate of interest per annum announced from time to time
by the Bank at its main office in New York, New York as its Prime Rate.
Prime Rate Loan means all or any portion of the Loan bearing interest
calculated by reference to the Prime Rate.
Properties means Getty Properties Corp., a Delaware corporation, successor
by name change to Getty Realty Corp., a Delaware corporation.
Properties Guaranty means that certain Guaranty Agreement dated as of
January 30, 1998 by and between Properties and the Bank, as assignee of Fleet,
as amended, modified or supplemented from time to time.
RCRA has the meaning set forth in ss.3.5 hereof.
Realty means Getty Realty Corp., a Maryland corporation, successor by name
change to Getty Realty Holding Corp.
Realty Guaranty means that certain Guaranty Agreement dated as of January
30, 1998 by and between Realty and the Bank, as assignee of Fleet, as amended,
modified or supplemented from time to time.
Regulation D means Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from time to time.
Reportable Event has the meaning which is assigned to that term by ERISA.
SARA has the meaning set forth in ss.3.5 hereof.
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SNDA means the Subordination, Non-Disturbance and Attornment Agreement,
dated the date hereof, by and among the Bank, Borrower, Properties and Marketing
Secondary Stations means those Stations which are not Primary Stations, as
set forth in Schedule SS hereto.
Security Documents means, collectively, the Mortgages, the Realty Guaranty,
the Properties Guaranty and the Collateral Assignments.
Stations means, collectively, all of the gasoline service stations, located
at the addresses set forth on Schedule I hereto, which are owned by the Borrower
and subject to a Mortgage in favor of the Bank: and Station means any one of
such Stations.
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.
For the purposes of this Loan Agreement, the Borrower shall be deemed to be a
Subsidiary of Realty.
Third Amended Master Note has the meaning set forth in ss.2.2 hereof.
Three Party Lease Agreement means the Amended and Restated Three Party
Lease Agreement relating to the Stations, among the Borrower, the Bank, as
assignee of Fleet, and Properties, dated as of October 31, 1995 as such may be
amended, modified, varied or supplemented from time to time.
Type means as to all or any portion of the Loans, its nature as a Prime
Rate Loan or a LIBOR Rate Loan.
Updated Appraisal Report means an appraisal report of Akerson & Wiley to
Fleet 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.
(b) All terms of an accounting character not specifically defined herein
shall have the meanings assigned thereto by generally accepted accounting
principles. All terms not specifically defined herein which are defined in the
Uniform Commercial Code as in effect in the State of New York shall have the
same meanings herein as therein. Each reference herein to a particular Person
shall include a reference to such Person's successors and permitted assigns. The
words "herein", "hereof", "hereunder" and words of like import shall refer to
this Agreement as a whole and not to any particular section or subdivision of
this Agreement.
ss.2. THE LOAN
ss.2.1. The Loan. Subject to the satisfaction of all terms and conditions
of this Agreement,
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the Bank agrees to continue the loan made to the Borrower pursuant to the
Original Loan Agreement and outstanding on the date hereof (the "Loan"). Any
portion of the Loan which is repaid may not be reborrowed. The outstanding
principal amount of the Loan on the Closing Date is equal to $19,819,574.61.
ss.2.2. The Third Amended Master Note. The Loan shall be evidenced by the
Third Amended and Restated Master Note of the Borrower in the principal amount
of $19,819,574.61 dated as of the date hereof (the "Third Amended Master Note").
ss.2.3. Interest on the Loan.
ss.2.3.1. Interest Rates. Except as otherwise provided inss.2.5, the Loan
shall bear interest during each Interest Period relating to all or any portion
of the Loan at the following rates:
(a) To the extent that all or any portion of the Loan bears interest during
such Interest Period at the Prime Rate, the Loan or such portion shall bear
interest during such Interest Period at the Prime Rate.
(b) To the extent that all or any portion of the Loan bears interest during
such Interest Period at the LIBOR Rate, the Loan or such portion shall bear
interest during such Interest Period at the LIBOR Rate plus a margin of 2.50%
per annum.
The Borrower promises to pay interest on the Loan or any portion thereof
outstanding during each Interest Period in arrears on each Interest Payment Date
applicable to such Interest Period.
ss.2.3.2. Notification by Borrower. The Borrower shall notify the Bank,
such notice to be irrevocable, at least three (3) LIBOR Business Days prior to
the Drawdown Date of the Loan if all or any portion of the Loan is to bear
interest at the LIBOR Rate.
ss.2.3.3. Amounts, Etc. Any portion of the Loan bearing interest at the
LIBOR Rate relating to any Interest Period shall be in the amount of $1,000,000
or an integral multiple thereof. No Interest Period relating to the Loan or any
portion thereof bearing interest at the LIBOR Rate shall extend beyond the date
on which a regularly scheduled installment payment of the principal of the Loan
is to be made unless a portion of the Loan at least equal to such installment
payment has an Interest Period ending on such date.
ss.2.3.4 Overdue Amounts. Overdue principal and, to the extent permitted by
applicable law, overdue interest on the Loan and all other overdue amounts
payable hereunder shall bear interest from the due date thereof at a rate per
annum equal to two percent (2%) above the then applicable interest rate in
effect as set forth in this ss.2.3, (or if no rate is in effect 2% above the
Prime Rate) payable on demand, to accrue from the due date of such principal,
interest or other amount and, to the extent permitted by applicable law, to be
compounded monthly until the obligation of the Borrower hereunder shall be
discharged, whether before or after judgment. In addition, in the event that any
principal or interest on the Loan is overdue for ten (10) days or more, the
Borrower shall pay a late fee in the amount of 5% of the past due payments.
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ss.2.4. Repayment of Principal. The principal amount of the
Loan shall be repaid in two (2) installments. The initial installment shall be
in the amount of $1,981,958 and shall be payable on January 20, 2002 and the
last installment shall be in the amount of $17,837,616.61 or the remaining
outstanding principal balance, whichever is less, and shall be payable, together
with all accrued interest and any other amounts owing to the Bank by the
Borrower in connection with the Loan, on the Maturity Date.
ss.2.5. Conversion Options.
ss.2.5.1. Conversion to Different Type of Loan. The Borrower
may elect from time to time to convert the Loan to another Type, provided that
(i) with respect to any such conversion of a LIBOR Rate Loan into another Type,
such conversion shall only be made on the last day of the Interest Period with
respect thereto; (ii) with respect to any conversion of a Prime Rate Loan to a
LIBOR Rate Loan or the continuation of a LIBOR Rate Loan as a LIBOR Rate Loan,
the Borrower shall give the Bank at least three (3) LIBOR Business Days prior
written notice of such election; and (iii) the Loan may not be converted into a
LIBOR Rate Loan when any Default or Event of Default has occurred and is
continuing. All or any part of the Loan of any Type may be converted as provided
herein, provided that partial conversions shall be in an aggregate principal
amount of $1,000,000 or a whole multiple thereof. Each Conversion Request
relating to the conversion of the Loan to a LIBOR Rate Loan shall be irrevocable
by the Borrower.
ss.2.5.2. Continuation of Type of LIBOR Loan. Any Loan of any
Type may be continued as such upon the expiration of an Interest Period with
respect thereto by compliance by the Borrower with the notice provisions
contained in ss.2.5.1; provided that no LIBOR Rate Loan may be continued as such
when any Default or Event of Default has occurred and is continuing, but shall
be automatically converted to a Prime Rate Loan on the last day of the first
Interest Period relating thereto ending during the continuance of any Default or
Event of Default of which the officers of the Bank active upon the Borrower's
account have actual knowledge. In the event that the Borrower fails to provide
any such notice with respect to the continuation of any LIBOR Rate Loan as such,
then such LIBOR Rate Loan shall be automatically converted to a Prime Rate Loan
on the last day of the first Interest Period relating thereto.
ss.2.5.3. LIBOR Rate Loans. Any conversion to or from a LIBOR
Rate Loan shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of all LIBOR
Rate Loans having the same Interest Period shall not be less than $1,000,000 or
a whole multiple of $1,000,000 in excess thereof. In no event shall more than
seven (7) LIBOR Rate Loans be outstanding at any one time.
ss.2.6. Payments and Prepayments of Principal.
(a) The Borrower may, upon two (2) Business Days' advance
notice to the Bank, which if not in writing shall be promptly confirmed in
writing, make voluntary full or partial prepayments of the outstanding principal
amount of any Prime Rate Loan on any Business Day and any LIBOR Rate Loan on the
last day of any Interest Period applicable thereto, in integral multiples of
$100,000, without premium or penalty. Each such voluntary prepayment shall be
applied to the last maturing installment or installments of principal of the
Loan in inverse order of their maturity.
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(b) On the date of consummation of a public offering of
preferred stock or other equity interest of Realty, the Borrower shall prepay
the outstanding principal amount of the Loan together with all accrued and
unpaid interest thereon to the full extent of the proceeds of each such offering
net of customary and usual fees incurred in connection therein including
underwriter commissions. In the event any prepayment of the Loan pursuant to
this Section 2.6(b) would require an indemnity payment to the Bank in accordance
with Section 2.10 then, the Bank in its discretion may either (i) hold the
payment in an interest-bearing account at the Bank under the Bank's sole
dominion and control as cash collateral for the Obligations and not credit the
same to payment of the Loan until the last day of the Interest Period then in
effect or, if earlier, the date of any acceleration of the Loan or (ii) waive
payment of the fee pursuant to Section 2.10. The interest accrued on any such
cash collateral shall be remitted to the Borrower to the extent of any such
interest after payment in full of the Loan, the interest thereon and all fees,
expenses and other obligations due hereunder and under the other Loan Documents.
(c) No amount prepaid on the Loan may be reborrowed.
ss.2.7. Method of Computing Interest. All computations of
interest and other amounts payable hereunder shall be made on the basis of the
actual number of days elapsed divided by 360.
ss.2.8. Place and Method of Payments. All payments due
hereunder shall be made by the Borrower to the Bank at its office at 395 North
Service Road, Melville, New York, in immediately available funds for the account
of the Bank without setoff, counterclaim or any other deduction whatsoever. Any
payment required hereunder to be made on a day which is not a Business Day shall
be made on the next succeeding Business Day.
ss.2.9. Application of Payments. All payments of principal on
the Loan shall be applied first to reduce the principal balance of the Third
Amended Master Note until such time as the outstanding principal balance of the
Loan equals the aggregate principal amount of the Collateral Notes, following
which any further payments shall be applied to reduce the balances owing on the
Collateral Notes in such order or preference as the Bank. in its sole
discretion, may determine.
ss.2.10. Indemnity. The Borrower agrees to indemnify the Bank
and to hold the Bank harmless from and against any loss, cost or expense that
the Bank may sustain or incur as a consequence of (a) default by the Borrower in
payment of the principal amount of or any interest on any LIBOR Rate Loans as
and when due and payable, including any such loss or expense arising from
interest or fees payable by the Bank to lenders of funds obtained by it in order
to maintain its LIBOR Rate Loans, (b) default by the Borrower in making a
borrowing or conversion after the Borrower has given (or is deemed to have
given) a Conversion Request relating thereto in accordance with Section 2.5.1 or
(c) the making of any payment of a LIBOR Rate Loan or the making of any
conversion of any such Loan to a Prime Rate Loan on a day that is not the last
day of the applicable Interest Period with respect thereto, including interest
or fees payable by the Bank to lenders of funds obtained by it in order to
maintain any such Loans.
ss.2.11. Illegality. Notwithstanding any other provisions
herein, if any introduction of or change in any law, regulation, treaty or
directive or in the interpretation or application thereof shall make it unlawful
for the Bank to make or maintain LIBOR Loans as contemplated by this
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Agreement, the Bank shall forthwith give notice by telephone of such
circumstances, promptly confirmed in writing, and (a) the commitment of the Bank
to make and to allow conversion to or continuations of LIBOR Rate Loans shall
forthwith be cancelled for the duration of such illegality and (b) the Loans
then outstanding as LIBOR Rate Loans, if any, shall be converted automatically
to Prime Rate Loans on the next succeeding last day of each Interest Period
applicable to any LIBOR Rate Loan or, with respect to any LIBOR Rate Loan,
within such earlier period as may be required by law. The Borrower shall pay to
the Bank, upon demand, any additional amounts required to be paid pursuant to
Section 2.10 hereof.
ss.2.12. Increased Costs. (a) In the event that any
introduction of or change in any applicable law, regulation, treaty, order,
directive or in the interpretation or application thereof (including, without
limitation, any request, guideline or policy, whether or not having the force of
law, of or from any central bank or other governmental authority, agency or
instrumentality and including, without limitation, Regulation D) on or after the
Closing Date, by any authority charged with the administration or interpretation
thereof shall occur, which:
(i) shall subject the Bank to any tax of any kind whatsoever
with respect to this Agreement, the Third Amended Master Note, or any Loan, or
change the basis of taxation of payments to the Bank of principal, interest,
fees or any other amount payable hereunder (other than any tax that is measured
with respect to the overall net income of the Bank or lending office of the Bank
and that is imposed by the United States of America, or any political
subdivision or taxing authority thereof or therein, or by any jurisdiction in
which the Bank's lending office is located, or by any jurisdiction in which the
Bank is organized, has its principal office or is managed and controlled); or
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement (whether or not having
the force of law) against assets held by, or deposits or other liabilities in or
for the account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of the Bank; or
(iii) shall impose on the Bank any other condition, or change
therein;
and the result of any of the foregoing is to increase the cost to the Bank of
making, renewing or maintaining or participating in advances or extensions of
credit hereunder or to reduce any amount receivable hereunder, in each case by
an amount which the Bank deems material, then, in any such case, the Borrower
shall pay the Bank, within twenty (20) days of a written notice from Bank of
such circumstances, such additional amount or amounts as the Bank shall have
determined will compensate the Bank for such increased costs or reduction.
(b) If the Bank shall have determined that the adoption of any
applicable law, rule or regulation, on or after the Closing Date, regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Bank (or any lending office of the Bank) or the Bank's holding company,
with any request or directive regarding capital adequacy (whether or not having
the force of the law) of any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of
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return on the Bank's capital or on the capital of the Bank's holding company as
a consequence of its obligations hereunder to a level below that which the Bank
could have achieved but for such adoption, change or compliance (taking into
consideration the Bank's policies and the policies of the Bank's holding company
with respect to capital adequacy) by an amount deemed by the Bank to be
material, then from time to time, the Borrower shall pay to the Bank, the
additional amount or amounts as the Bank shall have determined will compensate
the Bank or the Bank's holding company for such reduction. The Bank's
determination of such amounts shall be conclusive and binding on the Borrower
absent manifest error.
(c) A notice of the Bank setting forth the amount or amounts
payable pursuant to Sections 2.12(a) and 2.12(b) above shall be conclusive
absent manifest error. The Borrower shall pay the Bank the amount shown as due
on any such certificate within twenty (20) days of such notice. The provisions
of this Section 2.12 shall survive payment in full of the Loan.
ss.2.13. Taxes. Except as required by law, all payments made
by the Borrower under this Agreement shall be made free and clear of, and
without reduction for or on account of, any present or future taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any governmental authority,
excluding income and franchise taxes imposed on the Bank by (i) the United
States of America or any political subdivision or taxing authority thereof or
therein, (ii) the jurisdiction under the laws of which the Bank is organized or
in which it has its principal office or is managed and controlled or any
political subdivision or taxing authority thereof or therein, or (iii) any
jurisdiction in which the Bank's lending office is located or any political
subdivision or taxing authority thereof or therein (such non-excluded taxes
being called "Taxes"). If any Taxes are required to be withheld from any amounts
payable to the Bank hereunder, or under the Notes, the amount so payable to the
Bank shall be increased to the extent necessary to yield to the Bank (after
payment of all Taxes and free and clear of all liability in respect of such
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the Notes. Whenever any Taxes are
payable by the Borrower, the Borrower shall promptly send to the Bank, a
certified copy of an original official receipt showing payment thereof. If the
Borrower fails to pay Taxes when due to the appropriate taxing authority or
fails to remit to the Bank the required receipts or other required documentary
evidence, the Borrower shall indemnify the Bank for any incremental taxes,
interest or penalties that may become payable by the Bank as a result of any
such failure together with any expenses payable by the Bank in connection
therewith. The provisions of this Section 2.13 shall survive payment in full of
the Loan.
2.14 Change of Lending Office. (a) The Bank agrees to use
reasonable efforts to designate an alternate lending office with respect to any
Type of Loan or Note affected by the events or circumstances described in
ss.2.12 or ss.2.13 hereof to avoid or minimize the Borrower's liability
thereunder; provided, however, that such efforts shall not cause the imposition
on the Bank of any additional cost or legal, regulatory or administrative
burdens deemed by the Bank, in its sole discretion, to be material.
ss.2.15 Inability to Determine Interest Rate. In the event
that the Bank shall have determined (which determination shall be conclusive and
binding upon the Borrower), that, by reason of circumstances affecting the
London interbank market, adequate and reasonable means do
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not exist for ascertaining the LIBOR Rate applicable pursuant to ss.2.3.1(b) for
any requested Interest Period with respect to (a) the making of a LIBOR Rate
Loan, (b) a LIBOR Rate Loan that will result from the requested conversion of a
Prime Rate Loan into an LIBOR Rate Loan, or (c) the continuation of a LIBOR Rate
Loan beyond the expiration of the then current Interest Period with respect
thereto, the Bank shall forthwith give notice by telephone of such
determination, promptly confirmed in writing, to the Borrower of such
determination. Until the Bank notifies the Borrower that the circumstances
giving rise to the suspension described herein no longer exist, the Borrower
shall not have the right to request or continue a LIBOR Rate Loan or to convert
a Prime Rate Loan to a LIBOR Rate Loan.
ss.2.16. Security. All amounts due hereunder and under the
Third Amended Master Note, the Collateral Notes and the other Loan Documents
shall be secured pursuant to the Security Documents, and all such amounts shall
be entitled to the benefits of such instruments and documents.
ss.2.17. Structuring Fee. The Borrower agrees to pay to the
Bank on the date of this Agreement, a structuring fee in the amount of $70,000.
ss.3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants to the Bank that on and as of the date hereof:
ss.3.1. Authority.
(a) Organization: Good Standing. The Borrower (i) is a limited
partnership duly organized, validly existing and in good standing under the laws
of New York, (ii) has all requisite partnership 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 the Loan
Documents to which the Borrower is a party and the transactions contemplated
thereby (i) are within the partnership authority of the Borrower, (ii) have been
duly authorized by all proper a partnership proceedings required to make the
Loan Documents the valid and enforceable obligations they purport to be, (iii)
will not contravene any provision of law, the Partnership Agreement, any other
partnership documents or any other material agreement, instrument or undertaking
binding upon the Borrower, and (iv) do not require any approval or consent of,
or filing with, any governmental agency or authority.
ss.3.2. Membership.
(a) The membership of the Borrower is comprised of Properties, the
general partner and Realty, the limited partner.
(b) The partnership interests of the general partner and the limited
partner in the Borrower are owned by Properties and Realty, respectively, free
and clear of all Liens except liens for taxes
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not yet due and payable.
(c) There are no outstanding securities or partnership interests
exchangeable for or convertible into or carrying any rights to acquire from any
of the Borrower, Properties or Realty or any other Person, any partnership
interest or any other right of any kind in the capital of the Borrower, and
there are no outstanding options, warrants or other similar rights to acquire
from any of the Borrower, Properties, Realty or any other Person, any
partnership interest or any other right of any kind in the capital of the
Borrower.
(d) There are no outstanding commitments, options, warrants, calls or
other agreements or obligations (whether written or oral) binding on any of the
Borrower, Properties or Realty or which require or could require any of such
Persons to issue, sell, grant, transfer, assign, mortgage, pledge or otherwise
dispose of (i) any partnership interest or any other rights of any kind in the
capital of the Borrower, (ii) any securities exchangeable for or convertible
into or carrying any rights to acquire any partnership interest or any other
right of any kind in the capital of the Borrower, or (iii) any options, warrants
or any other rights to acquire any partnership interest or any other right of
any kind in the capital of the Borrower.
ss.3.3. Title to Properties; Absence of Liens. The Borrower
has good and marketable title to all of the Stations, all properties and assets
of whatever nature used in connection with the operation of the Stations, and
all other properties, assets and rights reflected in the financial statements
referred to in ss.3.8 hereof (except assets disposed of since such date in the
ordinary course of business), free from all Liens except Liens permitted by the
provisions of ss.6.2 hereof. None of the income or revenues of any character of
the Borrower is subject to any Liens other than Liens permitted by the
provisions of ss.6.2 hereof.
ss.3.4. No Default or Violation of Law. The Borrower is not in
default in any material respect under any contract, agreement or obligation or
in violation in any material respect of any law, decree or regulation applicable
to it or its properties or business operations, which default or violation could
result in an impairment of the ability of the Borrower to fulfill its
obligations under the Loan Documents or a material impairment of the financial
position or business prospects of the Borrower.
ss.3.5. Environmental Compliance and Storage Tank Regulations.
The Borrower has complied in all material respects with all applicable
requirements of the Solid Waste Disposal Act of 1970, as amended, including,
without limitation, requirements that owners of underground storage tanks notify
state and local agencies of the existence of such tanks. The Borrower is also in
compliance in all material respects with underground storage tank regulations
pertaining to underground leak detection and inventory audit procedures.
The Borrower has taken, or has required its tenants to take, all
appropriate steps consistent with petroleum industry practices to investigate
the present condition and usage of the Stations and the operations conducted
thereon and, based upon such investigation, has determined that:
(a) The Borrower is not in violation of any judgment, decree,
order, law, license, rule or regulation pertaining to environmental
matters, including without limitation. those arising
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under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state
or local statute, regulation, ordinance, order or decree relating to
health, safety or the environment (hereinafter "Environmental Laws"),
which violation would have a material adverse effect on the business,
assets or financial condition of the Borrower;
(b) except as provided in Schedule 3.5(b) hereto, the Borrower
has not received notice from any third party including, without
limitation, any federal, state or local governmental authority, (i)
that it has been identified by the United States Environmental
Protection Agency ("EPA") as a potentially responsible party under
CERCLA with respect to a site listed on the National Priorities List,
40 C.F.R. Part 300 Appendix B; (ii) that any hazardous waste, as
defined by 42 U.S.C. ss.9601(14), any pollutant or contaminant as
defined by 42 U.S.C. ss.9601(33) and any toxic substances, or hazardous
materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Substances") which it has generated,
transported or disposed of has been found at any site at which a
federal, state or local agency or other third party has conducted or
has ordered that Borrower conduct a remedial investigation, removal or
other response action pursuant to any Environmental Law; or (iii) that
it is or shall be a named party to any claim, action, cause of action,
complaint, or legal or administrative proceeding (in each case,
contingent or otherwise) arising out of any third party's incurrence of
costs, expenses, losses or damages of any kind whatsoever in connection
with the release of Hazardous Substances;
(c) to the best knowledge of Borrower, (i) no portion of any
Stations has been used for the handling, processing, storage or
disposal of Hazardous Substances except in compliance with applicable
Environmental Laws except where failure to comply with such laws would
not have a material adverse effect on the value of the Stations taken
as a whole; (ii) except as set forth on Schedule 3.5(c) attached
hereto, no underground tank or other underground tank storage
receptacle for Hazardous Substances is located on any portion of the
Stations; (iii) in the course of any activities conducted by the
Borrower, no Hazardous Substances have been generated or are being used
at the Stations except in accordance with applicable Environmental
Laws; (iv) there have been no releases (i.e., any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping) or threatened
release of Hazardous Substances on, upon, into or from the properties
of the Borrower, which releases would have a material adverse effect on
the value of the Stations taken as a whole; (v) there have been no
releases on, upon, from or into any real property in the vicinity of
any of the Stations which, through soil or groundwater contamination,
may have come to be located on, and which would have a material adverse
effect on the value of the Stations taken as a whole; and (vi) in
addition, any Hazardous Substances that have been generated on any of
the Stations have been transported offsite only by carriers having an
identification number issued by the EPA, treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required
under applicable Environmental Laws, which transporters and facilities
have been and are operating in compliance with such permits and
applicable Environmental laws; and
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(d) except as set forth on Schedule 3.5(d), the Borrower is
not subject to any applicable environmental law requiring the
performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any
governmental agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby.
ss.3.6. Enforceability of the Loan Documents. Upon execution
by the parties hereto and thereto, each of the Loan Documents to which the
Borrower is a party will be the valid and legally binding obligation of the
Borrower, enforceable against it in accordance with the terms thereof, 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.
ss.3.7. Use of Proceeds.
(a) The proceeds of the Loan shall be used to refinance the
existing indebtedness of the Borrower under the Original Loan Agreement.
(b) No proceeds of any Loan will be used in violation of the
provisions of Regulations T, U, or X of the Board of Governors of the Federal
Reserve System.
ss.3.8. Financial Statements. The Borrower has furnished to
the Bank (a) the audited consolidated financial statements of Realty and its
subsidiaries, as at December 31, 2000 and (b) the unaudited consolidated
financial statements of Realty and its subsidiaries as at March 31, 2001. Such
financial statements were prepared in accordance with generally accepted
accounting principles applied on a consistent basis and fairly present the
financial position of the respective entities named above as at the respective
dates thereof and their respective results of operations for the fiscal year or
quarter then ended.
ss.3.9. No Material Changes. Since March 31, 2001, there has
been no materially adverse change in the assets, liabilities, condition
(financial or otherwise), operations, properties (including intangible
properties) or business of the Borrower or any Guarantor.
ss.3.10. No Materially Adverse Contracts, Etc. The Borrower is
not subject to any charter, partnership or other legal restriction, or any
judgment, decree, order, rule or regulation which has or is expected in the
future to have a materially adverse effect on the business, assets or financial
condition of the Borrower. The Borrower is not a party to any contract or
agreement which has or is expected, in the judgment of the officers of the
Borrower's general partner to have any materially adverse effect on the business
of the Borrower.
ss.3.11. Compliance With Other Instruments, Laws, Etc. The
Borrower is not in violation of any provision of its Partnership Agreement,
other partnership documents 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
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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 Borrower.
ss.3.12. Governmental Approvals. The execution, delivery and
performance by the Borrower of this Agreement, the Notes and the other Loan
Documents and the transactions contemplated hereby and thereby do not require
the approval or consent of, or filing with, any governmental agency or authority
other than those already obtained.
ss.3.13. Taxes. (a) The Borrower has filed all federal, state
and local tax returns which are required to be filed (other than personal
property tax returns required to be filed with the State of Maryland for the
calendar years 1996 through 2001 with respect to which no taxes are due), and
has paid all taxes shown on such tax returns and all other due and payable
taxes, assessments and governmental charges of which the Borrower has knowledge,
except those being contested in good faith by appropriate proceedings and as to
which there have been set aside reserves adequate under generally accepted
accounting principles with respect to such tax, assessment or charge so
contested. All known deficiencies finally resulting from examinations of any
such returns by the respective taxing authorities have been discharged or
reserved against. The Borrower has set up reserves which are adequate under
generally accepted accounting principles for the payment of all federal, state
and local taxes for the years that have not been audited by the respective tax
authorities.
(b) As to the real estate constituting the Stations, the Borrower has
caused Properties to file all tax returns of any nature which are required to be
filed in connection therewith, and Properties has paid all taxes shown on such
tax returns and all other due and payable taxes, assessments and other
governmental charges of which Properties has knowledge.
ss.3.14. Franchises, Patents, Copyrights, Etc. The Borrower
possesses all franchises, patents, copyrights, trademarks, trade names, licenses
and permits, and rights in respect of the foregoing, adequate for the conduct of
its business substantially as now conducted without known conflict with any
rights of others.
ss.3.15. 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 Borrower, threatened against or
affecting the Borrower, or any properties or rights of the Borrower, which, if
adversely determined, would materially impair the ability of the Borrower to
carry on its business substantially as now conducted or would materially
adversely affect the financial condition of the Borrower.
ss.3.16. No Events of Default, Etc. No Event of Default has
occurred and is continuing. No event has occurred and is continuing, and no
condition exists within the knowledge of the Borrower which would, with notice
or the lapse of time, or both, constitute an Event of Default.
ss.3.17. Chief Executive Offices. Until the Bank receives
notice of a change, the chief executive offices of the Borrower and the offices
where all the records and books of account of the Borrower are kept shall be
located at 125 Jericho Turnpike, Suite 103, Jericho, New York 11753.
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ss. 3.18. [Intentionally Deleted]
ss. 3.19. [Intentionally Deleted]
ss. 3.20. Collateral.
(a) All the obligations of the Borrower to the Bank under or in respect
of the Loan Documents will, at all times from and after the execution and
delivery of the Security Documents and all appropriate filings or recordings
thereof, be entitled to all the benefits of and be secured by each of such
Security Documents.
(b) No financing statement which names the Borrower as a debtor has
been filed in any jurisdiction in the United States or any state thereof
pursuant to Article 9 of the Uniform Commercial Code of any state, and the
Borrower has not signed any financing statement or any security agreement
authorizing any secured party thereunder to file any such financing statement in
any such jurisdiction, other than with respect to Liens permitted by the
provisions of ss.6.2 hereof, which Liens do not affect any of the property
subject to the Security Documents.
(c) No mortgages, chattel mortgages, assignments, statements of
assignment, security agreements or deeds of trust have been filed by any Person
or Persons with respect to any part of the property or assets of the Borrower,
except for mortgages and security agreements permitted by the provisions of
ss.6.2 hereof.
ss. 3.21. Leases.
(a) The Leases have been duly authorized and validly executed and are
legal, valid and binding instruments enforceable against Properties in
accordance with their terms without any defense, counterclaim or setoff, and
each Lease is presently in full force and effect and has not been assigned by
the Lessee, modified, supplemented or amended in any way except as described on
Exhibit A hereto. Each Lease as so modified, together with the Three Party Lease
Agreements, represents the entire agreement between the Borrower and Properties
with respect to any Station and taken as a whole, the Leases, together with the
Three Party Lease Agreements, represent all the agreements between the Borrower
and Properties with respect to the Stations taken as a whole.
(b) All installments of rent and other payments due and payable and all
obligations required to be performed as of the date hereof under the Leases have
been paid or performed.
(c) There does not presently exist any event of default under any Lease
or other lease of any gasoline service station or petroleum marketing terminal
by Borrower to Properties (excluding any sublease from Properties to any third
party) or any event which, with the giving of notice or the passage of time or
both, would result in a default under any such Lease or lease.
(d) The interest of the Borrower in each Lease is free and clear from
all Liens of whatever kind or nature whatsoever.
(e) Properties is not in default under any obligation to the Borrower
under the Leases and
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there are no disputes between Properties and the Borrower existing as of the
date hereof which affect the Leases or which may be asserted as a defense or
setoff to any payments payable thereunder.
(f) The Borrower has attached hereto as Exhibit A a copy of the form of
lease which is identical to each Lease in effect on the date hereof, except for
differences relating to (i) the location of the particular Station to which any
Lease relates, (ii) the particular term of any Lease and (iii) the rental
amounts due under any given Lease.
(g) Any sublease of any kind with respect to any Station (other than
the Master Lease, which shall be subject to the terms of the SNDA) is and will
be subject and subordinate to the Mortgage relating to such Stations and
substantially all of the Subleases (other than the Master Lease) are
substantially in the form of one or more of the attachments included in Exhibit
B annexed hereto.
(h) There are no judicial proceedings pending or, to the best knowledge
of the Borrower, threatened against the Borrower or Properties which would
materially impair the rights of the Borrower under the Leases or the ability of
Properties to perform the covenants and obligations required to be performed
under the Leases.
(i) Properties is not the subject of any bankruptcy or insolvency
proceeding nor has Properties made an assignment for the benefit of its
creditors and there has been no material adverse change in the financial
condition of Properties since the date of the financial statements referred to
in ss.3.8(d) hereof which would materially impair the capacity of Properties to
respond to its obligations under the Leases.
ss. 3.22. Master Lease.
(a) The Master Lease has been duly authorized and validly executed by
Properties and is a legal, valid and binding instrument enforceable against
Properties in accordance with its terms without any defense, counterclaim or
setoff (except as expressly provided to the contrary in the Master Lease), and
the Master Lease is presently in full force and effect and has not been assigned
by Properties, modified, supplemented or amended in any way. The Master Lease
represents the entire agreement between Marketing and Properties with respect to
any Station and the Master Lease represents all the agreements between Marketing
and Properties with respect to the Stations except as set forth in Section 33.11
of the Master Lease.
(b) All installments of rent have been paid and to the best of the
Borrower's knowledge, all other payments due and payable and all obligations
required to be performed as of the date hereof under the Master Lease have been
paid or performed in all material respects.
(c) There does not presently exist any Landlord Default (as that term
is defined in the Master Lease) and to the best of the Borrower's knowledge no
other event of default under the Master Lease or other lease of any gasoline
service station or petroleum marketing terminal from the Borrower or Properties
to Marketing (excluding any sublease from Marketing to any third party) or any
event which, with the giving of notice or the passage of time or both, would
result in a default under the Master Lease has occurred and is continuing.
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(d) The interest of Properties in the Master Lease is free and clear
from all Liens of whatever kind or nature whatsoever.
(e) Marketing is not in default under any obligation to Properties to
pay rent under the Master Lease and to the best of its knowledge Marketing is
not in default under any other obligation to Properties under the Master Lease
and there are no material disputes between Marketing and Properties existing as
of the date hereof which affect the Master Lease or which may be asserted as a
defense or setoff to any payments payable thereunder.
(f) The Borrower has attached hereto as Exhibit E a true, correct and
complete copy of the Master Lease.
(g) There are no judicial proceedings pending or, to the best knowledge
of the Borrower, threatened against Properties which would materially impair the
rights of Properties under the Master Lease. To the best knowledge of the
Borrower, no event has occurred or condition exists which could reasonably be
expected to impair the ability of Marketing to perform its covenants and
obligations under the Master Lease.
ss. 3.23. True Copies of Partnership and Other Documents. The
Borrower has furnished or caused to be furnished to the Bank true and complete
copies of the Partnership Agreement and other partnership documents of the
Borrower, together with any amendments thereto.
ss. 3.24. Guaranteed Pension Plans. The Borrower does not
contribute to any Guaranteed Pension Plans. The Borrower does not contribute to
any multiemployer plans.
ss. 3.25. Disclosure. No material representation or warranty
made by the Borrower in any Loan Document or in any agreement, instrument,
document, certificate, statement or letter furnished to any Bank by or on behalf
of the Borrower 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 general partner of the Borrower
which materially adversely affects, or which, in the best judgment of any
officer of the general partner of the Borrower, would in the future materially
adversely affect, the financial position, business, operations or affairs of the
Borrower.
ss. 3.26. No Subsidiaries: Affiliates. The Borrower has no
Subsidiaries and its only Affiliates (for the purposes of this Agreement and the
other Loan Documents) are Realty and Properties.
ss. 3.27 No Indebtedness. There is no indebtedness outstanding
under the promissory note of the Borrower to Properties effective as of April
18, 1986 in the original principal amount of $30,500,000 and there is no
indebtedness owing by the Borrower to Massachusetts Mutual Life Insurance
Corporation which is secured by a lien on real property.
ss. 4. CONDITIONS OF LOAN. The obligation of the Bank with respect to
the Loan hereunder is subject to the following conditions precedent:
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ss. 4.1. Loan Documents. Etc. Each of the Loan Documents shall
have been duly and properly authorized, executed and delivered by the respective
party or parties thereto, and shall be in full force and effect on the date
hereof. Executed original counterparts of each of the Loan Documents shall have
been furnished to the Bank.
ss. 4.2. Partnership and Corporate Action. The Bank shall have
received certified copies of all documents relating to the due authorization and
execution of the Loan Documents as the Bank may request.
ss. 4.3. Real Estate Appraisals. The Bank shall have received
from Fleet copies of all real estate appraisals delivered in connection with the
Original Loan Agreement, including any amendments thereto.
ss. 4.4. Proceedings and Documents. The Bank shall have received
all such other documents as it may request and are incidental to, or necessary
or desirable in connection with, the due execution and delivery of the Loan
Documents, and all proceedings in connection with the transactions contemplated
by this Agreement, shall be satisfactory in substance and in form to the Bank
and the Bank's Special Counsel, and the Bank and such counsel shall have
received all information and such counterpart originals or certified or other
copies of such documents as the Bank or such counsel may request. Without
limiting the generality of the foregoing, the Bank shall have received all
certificates, consents and other documents required to be delivered to the Bank
pursuant to each of the Loan Documents.
ss. 4.5. Opinions of Counsel. The Bank shall have received from
Latham & Watkins, counsel to the Borrower, Realty and Properties, and Randi
Young Filip, Esq., Vice President, General Counsel and Secretary of Realty,
favorable opinions addressed to the Bank and dated the date of the execution and
delivery of this Agreement, in scope and form satisfactory to the Bank and with
customary qualifications and limitations.
ss. 4.6. Security Documents. The Security Documents and the
appropriate financing statements and other documents with respect thereto and
necessary to enable the Bank to perfect its security interests or mortgage liens
thereunder shall have been duly executed by the Borrower and the other parties
thereto and filed or recorded, as applicable, in all appropriate filing offices
or other locations necessary for the perfection of such security interests or
mortgage liens, and there shall have been completed all other actions necessary
for the perfection of such security interests or mortgage liens.
ss. 4.7. Collateral Notes. The Collateral Notes contemplated
byss.5.15 shall have been executed and delivered by the Borrower to the Bank.
ss. 4.8. Insurance. The Bank shall have received certificates of
insurance for the Stations reflecting the insurance the Borrower is required to
maintain pursuant toss.5.4 hereof, each in form and substance satisfactory to
the Bank.
ss. 4.9. Endorsements. The Bank shall have received (a) the
promissory note of the Borrower to The Chase Manhattan Bank, N.A., dated
February 1, 1985, in a principal amount of
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$34,000,000.00 (the "Chase Note"), properly endorsed by The Chase Manhattan
Bank, N.A. to Fleet and from Fleet to the Bank and (b) the Second Amended and
Restated Master Note dated March 1, 2000 of the Borrower to Fleet National Bank
in the principal amount of $22,619,074.61.
ss. 4.10. Amendment and Reaffirmation of Loan Documents. The
Bank shall have received an Amendment and Reaffirmation of Loan Documents in the
form attached as Exhibit D hereto duly executed by the Borrower and the
Guarantors.
ss. 5. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees
that, so long as the Loan, the Third Amended Master Note, any Collateral Note or
the Chase Note is outstanding, or any obligations are owed to the Bank under any
of the Loan Documents:
ss. 5.1. Punctual Payment. The Borrower will duly and punctually
pay or cause to be paid the principal and interest on the Loan and any mandatory
prepayments, all in accordance with the terms hereof and of the Notes.
ss. 5.2. Conduct of Business. The Borrower will:
(a) do or cause to be done all things necessary to preserve and
keep in full force and effect its partnership existence, rights
(charter and statutory), and franchises, licenses, patents, 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 condition, repair working 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 Borrower 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.
ss. 5.3. Compliance with Agreements and Contracts. The Borrower
will observe, conform to and comply with the provisions of its Partnership
Agreement and other partnership documents, all leases (including the Leases),
and all agreements and instruments by which it or any of its properties may be
bound.
ss. 5.4. Insurance. The Borrower will at all times maintain, or
cause to be maintained, the minimum insurance coverages described on Schedule
5.4 hereto and such other insurance as the Bank may reasonably require from time
to time (except to the extent any such other insurance coverages are not
required to be maintained by Marketing pursuant to the Master Lease for those
Stations demised to Marketing pursuant thereto). Notwithstanding and without
limiting the foregoing, the Borrower will keep or cause the lessees under the
Leases to keep each Station continuously insured, in amounts sufficient to
prevent the Borrower from being a coinsurer of any loss under the applicable
policies, but in any event in amounts not less than the amounts specified
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on Schedule 5.4 hereto (or, if applicable, the Master Lease) as to property,
casualty and liability policies, including policies for any amounts carried in
excess of the required minimum and policies not specifically required by the
Bank, (a) shall be in form satisfactory to the Bank. (b) shall be issued by
companies satisfactory to the Bank, (c) shall be maintained in full force and
effect, and copies thereof shall be delivered to the Bank. with copies of
receipts for premiums prepaid, (d) shall provide that losses are payable to the
Bank pursuant to a loss payable-to-mortgagee clause which is, as to each
Station, standard in the jurisdiction in which such Station is situated, not
subject to contribution, (e) shall not be invalidated or adversely affected and
shall be payable to the Bank notwithstanding any act or omission of the Borrower
or Properties or any employee thereof or any defense the insurer may have to
payment of the same to the Bank or to any person holding any other interest in
any Station, (f) shall be primary and without any right of contribution as to
any other insurance carried by or for the Borrower or Properties and shall be
endorsed to state that all terms and conditions except for limits of liability
shall operate in the same manner as if there were a separate policy covering
each insured, (g) with respect to property insurance, shall provide for full
repair and replacement coverage without allowance for depreciation, and (h)
shall provide for at least sixty (60) days notice to the Bank of cancellation,
termination or material change. Certificates of insurance, addressed to the
Bank, evidencing such public liability, property damage and worker compensation
insurance may be delivered to the Bank in lieu of the policies therefor,
provided that a copy of the underlying policy is also delivered to the Bank.
ss. 5.5. Payment of Taxes. The Borrower will cause to be paid
and discharged, before the same shall become in default, all due and payable
lawful taxes, assessments and governmental charges or levies imposed upon it or
upon its properties, sales or activities or upon the income and profits thereon,
or upon any part thereon, or for labor, materials and supplies, which, if
unpaid, might become a lien or charge upon such property or any part thereof,
provided that the provisions of this ss.5.5 shall not require to be paid and
discharged any such tax, assessment, charge, levy, or claim so long as the same
shall be actively contested in good faith by appropriate proceedings and as to
which there shall have been set aside reserves adequate with respect to such
tax, assessments, charge, levy or claim so contested, and provided further that
such tax or other sum shall be paid before it gives rise to a lien against any
property of the Borrower.
ss. 5.6. Compliance with Law. The Borrower will (a) comply with
all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject, including Environmental Laws, noncompliance
with which would have a material adverse effect on the business, operations or
financial condition of the Borrower or the ability of the Borrower to fulfill
its obligations under this Agreement or the other Loan Documents, 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 Agreement or the other Loan Documents and in order
that the same may be valid and binding and effective in accordance with their
terms and in order that the Bank may be able freely to exercise and enforce any
and all of its rights under this Agreement or the other Loan Documents.
ss. 5.7. Notification of Material Litigation. Default, Etc. The
Borrower will promptly notify the Bank of (a) the commencement of any litigation
or administrative proceeding initiated
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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 material adverse change in the
assets, financial condition or business of the Borrower, and (b) the occurrence
of any Default or Event of Default hereunder. The Borrower will promptly give
notice to the Bank of the occurrence of any material default under any other
material instrument or agreement to which the Borrower (if it has knowledge of
the same) is a party, and if any person shall give any notice or take any other
action in respect of a claimed material default under any other evidence of
indebtedness, indenture, note or other obligation as to which the Borrower is a
party or obligor, whether as principal or surety, the Borrower shall promptly
give written notice thereof to the Bank, describing the notice or action and the
nature of the claimed default.
ss. 5.8. Financial Statements, Certificates and Other
Information. The Borrower will furnish or cause to be furnished to the Bank with
regard to the Borrower, Properties and Realty, as the case may be:
(a) as soon as available but in any event within
forty-five (45) days after the end of each of the first three
fiscal quarters in any fiscal year of Realty, unaudited
consolidated balance sheets for Realty and its Subsidiaries as
at the end of such quarter, and unaudited consolidated
statements of income and cash flows for Realty and its
Subsidiaries for the period commencing with the end of the
preceding fiscal year and ending with the end of such quarter
prepared in accordance with generally accepted accounting
principles consistently applied, in each case the financial
statements for realty and its Subsidiaries shall be certified by
the chief financial officer of Realty, subject, however to audit
and year-end adjustments.
(b) as soon as available but in any event within ninety
(90) days after the end of each fiscal year of Realty, audited
consolidated balance sheets for Realty and its Subsidiaries as
at the end of such fiscal year and audited consolidated
statements of income and cash flows for Realty and its
Subsidiaries for such fiscal year, prepared in accordance with
generally accepted accounting principles consistently applied,
in each case accompanied by the opinion of and report by Price
Waterhouse Coopers LLP or other independent certified public
accountants of nationally recognized standing selected by
Realty, as the case may be, and acceptable to the Bank, such
opinion to be unqualified as to scope limitations imposed by
Realty and otherwise without qualification except as therein
noted;
(c) accompanying each set of financial statements of
Realty furnished pursuant to paragraph (a) or (b) above, an
officer's certificate executed by the chief financial officer of
the Borrower and Realty stating that a review of the activities
of the Guarantors and the Borrower during the period covered by
such financial statements has been made under the supervision of
the signer with a view to determining whether, during such
period, each of the Guarantors and the Borrower has complied
with the Loan Documents to which it is a party and either (i)
stating that, to the best of his or her knowledge and belief,
there neither exists on the date of such certificate, nor
existed during such period, any Default or Event of Default; or
(ii) if any such Default or Event of Default exists, specifying
the nature thereof, the
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period of existence thereof and what action the Guarantors or
the Borrower, as appropriate, has taken, is taking or proposes
to take with respect thereto;
(d) to the extent available, if at all, as soon as
available but in any event within one hundred eighty (180) days
after the end of each fiscal year of Realty, any CPA management
letters prepared for Realty or any of its Subsidiaries relating
to the annual audit; and
(e) with reasonable promptness, such other information
relating to the business or financial affairs of the Borrower,
Properties or Realty as the Bank may reasonably request.
ss. 5.9. Notice of Material Change. Each of the Borrower,
Properties and Realty will promptly notify the Bank of any material adverse
change in its financial condition, business or operations.
ss. 5.10. 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 Borrower, to examine the books of account of the Borrower,
and to discuss the affairs, finances and accounts of the Borrower with, and to
be advised as to the same by, its officers, all at such reasonable times and
intervals as the Bank may desire.
ss. 5.11. ERISA. The Borrower will promptly notify the Bank of
any Reportable Event as defined in Section 4043 of ERISA (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
Borrower shall not permit any employee pension benefit plan (as that term is
defined in Section 3 of ERISA) maintained by the Borrower 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 Borrower, 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 Borrower under Section 4068 of ERISA.
ss. 5.12. Change of Name; Jurisdiction of Formation. The
Borrower will notify the Bank thirty days in advance of (i) any proposed change
in its partnership name and (ii) any change in the jurisdiction of its
formation, and the Borrower will duly execute and deliver appropriate financing
statements and other documents necessary to enable the Bank to maintain
continuously perfected security interests under the Security Documents and shall
take all other actions requested by the Bank necessary to maintain the
perfection and priority of such security interests.
ss. 5.13. Maintenance of Office. The Borrower will maintain its
chief executive office in Jericho, New York, or at such other place in the
United States of America as the Borrower shall designate upon written notice to
the Bank, where notices, presentations and demands to or upon the Borrower in
respect of the Notes may be made.
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ss. 5.14. Further Assurances. The Borrower 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 Agreement and the other Loan
Documents.
ss. 5.15. Collateral Notes. In addition to the Third Amended
Master Note, the Borrower agrees that with respect to any or all of the real
estate interests to be made subject to Mortgages, it will execute and deliver to
the Bank such notes as the Bank and the Borrower may agree upon, it being
understood, however, that (a) the aggregate of all payments or recoveries on the
Collateral Notes and the Third Amended Master Note shall not exceed the amount
of the Loan on the date of this Agreement plus any and all interest, fees and
other amounts owed the Bank hereunder or under the Loan Documents, and (b) any
payments or recoveries on the Collateral Notes shall be credited to the
principal of the Loan outstanding and such interest, fees or other amounts in
such order of application as the Bank may determine. All Collateral Notes shall
be payable to the order of the Bank, on demand.
ss. 5.16. Principal Bank. The Borrower shall designate and
maintain the Bank as its principal bank of account.
ss. 5.17. Flood Insurance. If at any time during the term of
this Agreement any of the real property of the Borrower or any portion thereof
is designated a "Flood Hazard Area" pursuant to the Flood Disaster Protection
Act of 1973 or any amendments or supplements thereto, the Borrower shall obtain
flood insurance, in such total amount as the Bank may from time to time require
and shall otherwise comply with the National Flood Insurance Program as set
forth in said Act.
ss. 5.18. Environmental Events. The Borrower will promptly give
notice to the Bank (i) of any violation of any Environmental Law that the
Borrower reports in writing or is reportable by the Borrower in writing (or for
which any written report supplemental to any oral report is made) to any
federal, state or local environmental agency, and (ii) upon becoming aware
thereof, of any inquiry, proceeding, investigation, or other action, including
any notice from any agency of potential environmental liability, of any federal,
state or local environmental agency or board, that has the potential to
materially affect the assets, liabilities, financial conditions or operations of
the Borrower. The Borrower covenants and agrees that if any release or disposal
of Hazardous Substances shall occur or shall have occurred at any Station,
Borrower will cause the prompt containment and removal of such Hazardous
Substances and remediation of the Station as necessary to comply with all
Environmental Laws.
ss. 5.19. Environmental Assessments. Whether or not an Event of
Default shall have occurred, but only in the event that facts or circumstances
have come to the attention of the Bank reasonably indicating (i) that the use or
operation of any Station does not comply with any Environmental Law or (ii) the
presence of Hazardous Substances in the soil or water at any Station, the Bank
may request that Borrower deliver to the Bank all information pertaining to such
occurrence or conditions available to the Borrower and that Borrower inform the
Bank of any proposed actions by the Borrower to rectify such occurrence or
condition. If upon review of such material provided by the Borrower concerning
such occurrence or conditions and the Borrower's
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plans with respect thereto, the Bank is not satisfied in its reasonable
discretion that such plans will promptly correct and rectify such occurrence or
condition, the Bank may obtain one or more environmental assessments or audits
of any such affected Station prepared by a hydrogeologist, an independent
engineer or other qualified consultant or expert approved by the Bank to
evaluate or confirm (i) whether any Hazardous Substances are present in the soil
or water at such Station and (ii) whether the use and operation of such Station
complies with all Environmental Laws. Environmental assessments may include
without limitation detailed visual inspections of such Station including any and
all storage areas, storage tanks, drains, dry wells and leaching areas, and the
taking of soil samples, surface water samples and ground water samples, as well
as such other investigations or analyses as the Bank deems appropriate. All such
environmental assessments shall be conducted and made at the expense of the
Borrower.
ss. 5.20. Delivery of Mortgages. In the event the Borrower shall
have not paid in full the outstanding principal amount of the Loan, together
with all accrued and unpaid interest thereon on or prior to January 20, 2002,
then the Borrower will upon request of the Bank, in the Bank's sole and absolute
discretion and, at the Borrower's sole cost and expense, provide to the Bank
with the following:
(i) An appraisal of each Station, prepared by an appraiser designated
by the Bank, in form and substance reasonably acceptable to the Bank. The Bank
shall have the right to adjust the amount reflected in such appraisal based upon
the review thereof by its "in-house" appraisal group.
(ii) An environmental assessment of each Station, prepared by an
environmental consultant retained by the Bank, in form and substance reasonably
acceptable to the Bank. The Bank reserves the right, in its sole and absolute
discretion, to conduct its own investigation of each Station, and the Borrower
hereby grants to the Bank, its agents, employees, consultants and contractors
the right to enter upon the premises of each Station and to perform such tests
on the premises of each Station as are necessary to conduct such a review or
investigation.
(iii) A policy or policies of mortgage title insurance in the then
aggregate outstanding principal balance of the Loan insuring the lien of the
Mortgages, subject only to those exceptions to title as are reasonably
acceptable to the Bank and its counsel, and with affirmative insurance with
respect to such matters as the Bank or its counsel may reasonably require. The
title policy shall be issued by a company or companies acceptable to the Bank
(the "Title Company"), and shall contain such terms and coverage as the Bank and
its counsel shall deem reasonably acceptable, and shall name the Bank as the
insured party.
(iv) Certificates of compliance or occupancy covering all improvements
located at each Station as to the extent the same are required as of the then
current date, together with a search of municipal violations against each
Station, in each case in form and substance satisfactory to the Bank and the
Bank's counsel.
(v) An up-to-date survey of each Station, satisfactory to the Bank and
its counsel, which survey shall be certified to the Title Company and to the
Bank (the "Survey"). The Survey shall show, in addition to the metes and bounds
of the perimeter, all monuments and angles referred to in the description,
dimensions and locations of any above ground improvements, easements, rights
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of way, adjoining sites and encroachments, and the extent thereof, established
building lines and street lines, the distance to and the names of the nearest
intersecting streets, and such other details as the Bank may request.
(vi) copies of each Lease to the extent not previously delivered to the
Bank.
The Borrower, Realty and Properties shall execute any and all
documentation concerning environmental matters as the Bank may request, which
documentation shall include, but not be limited to, an indemnification that
shall survive foreclosure or a conveyance made pursuant to a deed in lieu of
foreclosure.
The Borrower shall execute any and all documentation required by the
Bank to amend and restate the Mortgages and the Collateral Assignments in a
manner satisfactory to the Bank and its counsel in all respects.
ss. 6. NEGATIVE COVENANTS. The Borrower covenants and agrees that, so
long as the Loan, the Third Amended Master Note, any Collateral Note or the
Chase Note is outstanding, or any obligations are owed to the Bank under any of
the Loan Documents:
ss. 6.1. [Intentionally Deleted]
ss. 6.2. Liens. The Borrower will not create, incur, assume or
permit to exist any Lien, on any properties or assets owned by it, except:
(a) Liens and security interests granted in favor of the Bank
pursuant to the terms of any of the Loan Documents;
(b) Liens in respect of taxes, fees, assessments and other
governmental charges to the extent that payment of the same may be postponed or
is not required in accordance with the provisions of ss.5.5 hereof:
(c) judgment Liens which shall not have been in existence for a
period longer than thirty days after the creation thereof, or if a stay of
execution shall have been obtained, for a period longer than thirty days after
the expiration of such stay;
(d) Liens on real property owned by the Borrower existing on the
Closing Date, in favor of certain existing creditors described on Schedule
6.2(d) hereto and securing Indebtedness, described on Schedule 6.2(d) hereto, or
other Liens on such real property incurred in connection with the refunding or
refinancing of the Indebtedness owed to such creditors; and
(e) easements, rights of way, restrictions on use and other
similar charges or encumbrances on real property which in the aggregate do not
interfere in any material respect with the occupation, use and enjoyment by the
Borrower of the real property encumbered thereby in the normal course of it
business or materially impair the value of the property subject thereto; and
(f) Liens listed as exceptions to any title insurance policy
relating to the Stations
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assigned to the Bank by Fleet or any insurance policy relating to real property
of the Borrower not subject to Mortgages.
ss. 6.3. [Intentionally Deleted]
ss. 6.4. Merger. Sale of Assets and Termination of Leases. The
Borrower will not:
(a) consolidate or merge with or into any other Person or agree
to or effect any asset acquisition or stock acquisition or otherwise alter its
capital structure;
(b) sell, lease, transfer or otherwise dispose of any of its
assets other than (i) for the fair market value in cash of the assets disposed
of, or (ii) in the case of the Stations, in accordance with the provisions of
ss.6.13; or
(c) sell, lease, transfer or otherwise dispose of all or any
substantial portion of its assets, regardless of the value to be received
therefor;
(d) terminate any Lease or other lease of properties except in
connection with the sale of a Station in accordance with the provisions of
ss.6.13.
ss. 6.5. Lines of Business. The Borrower will not engage in any
business other than those lines of business in which the Borrower is engaged on
the date hereof or any business related thereto.
ss. 6.6 Consolidated Tangible Net Worth. The Borrower will not
permit Consolidated Tangible Worth to be less than the amount set forth below
opposite the applicable date:
DATE AMOUNT
- ---- ------
Closing Date $122,000,000
September 30, 2001 the greater of 95% of the
Consolidated Tangible Net Worth
at March 31, 2001 and 95% of the
actual Consolidated Tangible Net
Worth at June 30, 2001
December 31, 2001 and the last day of 95% of the actual Consolidated
each fiscal quarter thereafter Tangible Net Worth as of the
last day of the immediately
preceding fiscal quarter
ss. 6.7. [Intentionally Deleted]
ss. 6.8. [Intentionally Deleted]
ss. 6.9. [Intentionally Deleted]
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ss. 6.10. [Intentionally Deleted]
ss. 6.11. Continent Liabilities. The Borrower will not create,
incur, assume or permit to exist any Contingent Liabilities except for (i) those
incurred pursuant to the terms of the Loan Documents, (ii) the Contingent
Liabilities described on Schedule 6.11 hereto, and (iii) Contingent Liabilities
incurred in the ordinary course of business and not exceeding $100,000 in any
instance and $500,000 in the aggregate.
ss. 6.12. Compensation Limitations. The Borrower will not pay
any wages, salary, bonus, commission or other compensation for services in
excess of the reasonable value to the Borrower of such services.
ss. 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 ss.6.13 shall,
prior to or at the time 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 interest,
other than liens permitted under Section 6.2.
ss. 6.14. Modifications to Leases. The Borrower will not,
without the prior written consent of the Bank, make any material waivers or
agreements respecting, or enter into any material amendments, modifications or
alterations relating to any provision of any Lease, nor will it declare
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any Lease in default, exercise any of the rights or remedies of lessor under any
Lease, settle or compromise any claims relating to any Lease, or exercise or
grant any approval under any material Lease, whether verbal or in writing.
ss. 6.15. [Intentionally Deleted.]
ss. 6.16. [Intentionally Deleted.]
ss. 6.17. [Intentionally Deleted.]
ss. 6.18. Contracts with Affiliates. The Borrower will not enter
into or participate in any agreements or transactions of any kind with any
Partner or Affiliate or any Affiliate of any Partner, except for (a) agreements
or transactions in the ordinary course of business and on an arm's length basis
involving terms no less favorable to the Borrower than would be the terms of a
similar agreement or transaction with any person other than a Partner, Affiliate
or Affiliate of a Partner, and (b) existing written agreements or contracts
which have been disclosed to the Bank.
ss. 6.19. Compliance with Environmental Laws. The Borrower will
not (i) use any of the Stations or any portion thereof for the handling,
processing, storage or disposal of Hazardous Substances except in accordance
with applicable Environmental Laws, (ii) cause or permit to be located at any of
the Stations any underground tank or other underground storage receptacle for
Hazardous Substances except in compliance with applicable Environmental Laws,
(iii) generate any Hazardous Substances at any of the Stations, (iv) conduct any
activity at any of the Stations or use any of the Stations in any manner so as
to cause a release (i.e. releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing or
dumping) or threatened release of Hazardous Substances on, upon or at the
Stations or (v) otherwise conduct any activity at any Station or use any Station
in any manner that would violate any Environmental Law or bring such Station in
violation of any Environmental Law.
ss. 7. DISTRIBUTIONS.
ss. 7.1. Permitted Distributions. The Borrower may make
partnership Distributions except as otherwise prohibited byss.7.4 hereof.
ss. 7.2. [Intentionally Deleted.]
ss. 7.3. [Intentionally Deleted.]
ss. 7.4. No Distributions During Default. Notwithstanding the
foregoing, the Borrower shall not make any Distribution if a Default or Event of
Default then exists, or would occur after giving effect to such Distribution.
ss. 8. EVENTS OF DEFAULT; ACCELERATION. If any of the following
events ("Events of Default") shall occur:
(a) if the Borrower shall fail to pay the principal owing on any
of the Notes or
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shall default in the payment of any principal obligation under any of the Loan
Documents when the same shall become due and payable, whether at maturity or at
any date fixed for payment or prepayment or by acceleration or otherwise;
(b) if the Borrower shall fail to pay any interest owing on any
of the Notes, or any other sums due hereunder or under any of the Loan Documents
when the same shall become due and payable, whether at maturity or at any date
fixed for payment or prepayment or by acceleration or otherwise; or
(c) any representation or warranty made in writing by or on
behalf of the Borrower or any Guarantor in any Loan Document to which it is a
party or in connection with any of the transactions contemplated hereby shall
prove to have been false or incorrect in any material respect on the date as of
which made or deemed made; or
(d) if the Borrower shall default in the performance of or
compliance with any term, covenant or provision applicable to it contained in
ss.ss.6 or 7 hereof, provided, that with respect to any Lien or Contingent
Liability incurred without the consent or voluntary action of the Borrower, the
Borrower shall have ten (10) days after the Borrower receives knowledge of the
existence of such Lien or Contingent Liability in which to discharge such Lien
or Contingent Liability, provided, however, that the Borrower may contest such
Lien or Contingent Liability in good faith so long as (i) the enforcement
thereof is stayed, (ii) the Borrower has set aside reserves therefor which are
adequate under generally accepted accounting principles or has furnished the
Bank with security therefor acceptable to the Bank and (iii) such contest does
not involve any material risk of foreclosure, sale, forfeiture or loss of, or
imposition of any Lien on, other than a Lien permitted by ss.6.2, any Station;
or
(e) if the Borrower shall default in the performance of or
compliance with any term, covenant or provision applicable to it contained in
ss.5 hereof and such default if capable of cure shall not have been remedied
within ten (10) days after notice from the Bank of such default; or
(f) if the Borrower shall default in the performance of or
compliance with any other material term, covenant or provision contained herein,
other than those referred to in ss.ss.8(d) and (e) hereof, or in any of the Loan
Documents and such default if capable of cure shall not have been remedied
within ten (10) days after notice from the Bank of such default or such longer
period of time as is provided for in any other Loan Documents; or
(g) [intentionally omitted]; or
(h) if the Borrower, Properties or Realty (i) shall fail to pay
at maturity or within any applicable period of grace, any obligation for money
borrowed or credit advances in excess of $100,000 in the aggregate, (ii) shall
fail to observe or perform any term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing borrowed money or credit
advanced in excess of $100,000 in the aggregate and such failure would permit
the acceleration of the indebtedness evidenced or secured by such agreement, or
(iii) shall have received notice of the existence of a default resulting from
its failure to observe or perform any term, covenant or agreement contained in
any agreement by which it is bound, evidencing or securing money borrowed
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or credit advanced in excess of $100,000 in the aggregate , and such default
shall continue without waiver thereof beyond any period of grace provided with
respect thereto; or
(i) if any of the Borrower, Properties, or Realty shall make
an assignment for the benefit of creditors or shall admit in writing its
inability to pay or shall generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of it or of any substantial part of its assets
or shall commence any case or other proceeding relating to it under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law or similar law of any jurisdiction, now or
hereafter in effect or shall take any action to authorize or in furtherance of
any of the foregoing; or
(j) if any such petition or application shall be filed or any
such proceeding shall be filed against any of the Borrower, Properties, or
Realty and shall remain undischarged for a period of more than 30 days after the
filing thereof or a decree or order shall be entered appointing any such
trustee, custodian, liquidator or receiver, or adjudicating such entity a
bankrupt or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief shall be entered in respect of such
entity in an involuntary case under federal bankruptcy laws as now or hereafter
in effect; or
(k) if there shall remain in force, undischarged, unsatisfied
and unstayed, for more than forty-five (45) days, whether or not consecutive,
any final judgment against the Borrower, Properties or Realty which, with other
outstanding final judgments, undischarged, against the Borrower, Properties or
Realty exceeds in the aggregate $100,000; or
(1) any of the Loan Documents shall for any reason cease to be
in full force and effect in accordance with its terms or the validity or
enforceability thereof shall be contested by the Borrower, any Partner of the
Borrower, Properties or Realty; or
(m) if Properties shall fail to make any lease payment under
any Lease when the same shall become due and payable (after giving effect to any
grace period applicable thereto), or shall fail to make any payment under any
Loan Document to which Properties is a party when the same shall become due and
payable, or shall default in the performance of or compliance with any term,
covenant or provision contained in any Loan Document to which Properties is a
party or in any Lease between Properties and the Borrower relating to any
Station; or
(n) any Reportable Event which constitutes grounds for the
termination of any Plan or for the appointment by the appropriate United States
district court of a trustee to administer any Plan shall have occurred and be
continuing, or any Plan shall be terminated, in either case in circumstances
giving rise to liabilities which are material in amount or otherwise having a
materially adverse effect on the financial condition of the Borrower, or a
trustee shall be appointed by a United States district court to administer any
Plan, or the Pension Benefit Guaranty Corporation shall institute proceedings to
terminate any Plan or to appoint a trustee to administer any Plan; or
(o) if any Guarantor should default in the performance of or
compliance with any term, covenant or provision contained in its Guaranty or any
other Loan Document to which it is a
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party and such default, if capable of cure, shall not have been remedied within
ten (10) days after notice from the Bank of such default; or
(p) the Master Lease shall, for any reason, cease to be in
full force and effect or a "Landlord Default" (as that term is defined in the
Master Lease) shall have occurred and be continuing; or
(q) Properties shall cease to be a wholly-owned subsidiary of
Realty;
then and in any such event (i) the Borrower shall not make any further
Distributions of any kind, and (ii) the Bank may by notice to the Borrower
declare all amounts owing to the Bank on or pursuant to the Loan Documents to be
forthwith due and payable, where upon the same shall forthwith mature and be and
become immediately due and payable together with interest thereon as well as all
other amounts then owing on or pursuant to the Loan Documents, without
presentment, demand, protest or notice, all of which are hereby waived, provided
that in the event of any Event of Default specified in ss.ss.8(i) and (j)
hereof, all such amounts shall be and become forthwith due and payable
automatically and without any requirement of notice from the Bank.
ss.9. REMEDIES ON DEFAULT, ETC. Upon the occurrence of any Event of
Default and at any time thereafter so long as the same shall be continuing, the
Bank may, in addition to accelerating the Loan, do any one or more of the
following acts, as the Bank in its sole and complete discretion may elect:
ss.9.1. Foreclosure on Collateral. Institute legal proceedings
to foreclose upon and against the Stations under the Mortgages, and exercise any
other right, power, privilege or remedy which may be available to a secured
party under the Uniform Commercial Code or other applicable law, to recover all
amounts then due and owing under the Loan Documents.
ss.9.2. Setoff. Regardless of the adequacy of any collateral,
apply to or set off against the payment of obligations of the Borrower under the
Loan Documents and any and all other liabilities, direct, or indirect, absolute
or contingent, due or to become due, now existing or hereafter arising, of the
Borrower to the Bank or its Affiliates, any deposits or other sums credited by
or due from the Bank or its Affiliates (including, without limitation, any
foreign branches of the Bank) to the Borrower and any securities or other
property of the Borrower in the possession of the Bank or its Affiliates.
ss.9.3. Pursue Other Remedies. The Bank may proceed to protect
and enforce all or any of its rights, remedies, powers and privileges under this
Agreement, the Notes and the Security Documents by action at law, suit in equity
or other appropriate proceedings, whether for specific performance of any
covenant contained in this Agreement or any of the other Security Documents or
in aid of the exercise of any power granted to the Bank herein or therein.
ss.9.4. Cumulative Remedies. The rights, remedies, powers and
privileges herein provided or provided in the other Loan Documents are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
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ss.10. EXPENSES. Whether or not the transactions contemplated hereby
are consummated, the Borrower will (a) reimburse the Bank for all its reasonable
out-of-pocket expenses (including but not limited to the reasonable attorneys'
fees and disbursements of the Bank's Special Counsel and other reasonable
attorneys fees and disbursements), incurred or expended in connection with the
preparation or interpretation of this Agreement and the other Loan Documents or
any amendment hereof or thereof and in connection with the assignment of the
Original Loan Agreement from Fleet to the Bank, including without limitation,
recording fees incurred in connection with recordation of the assignments of the
Mortgages from Fleet, (b) pay any fees incurred in connection with any appraisal
of any Station or any property proposed to be substituted for any Station, (c)
reimburse the Bank for its expenses incurred or expended in connection with the
enforcement of any obligations or the satisfaction of any indebtedness of the
Borrower hereunder or thereunder, or any litigation, proceeding, dispute or
so-called "workout" in any way related to the loan hereunder, (d) pay any taxes
(including any interest and penalties in respect thereof), other than the Bank's
federal and state income or franchise taxes, payable on or with respect to the
transactions contemplated by this Agreement (the Borrower hereby agreeing to
indemnify the Bank with respect thereto) and (e) pay and hold the Bank and any
holder of any Note harmless from and against any and all present and future
stamp and other similar taxes with respect to the foregoing matters and to save
the Bank and the holder of any Note harmless from and against any and all
liabilities with respect to or resulting from any delay or omission to pay such
taxes.
ss.11. NOTICE, ETC. All notices and other communications made or
required to be given pursuant to this Agreement shall be deemed delivered if in
writing (or in the form of a telecopy confirmed by letter) addressed as provided
below and if either (a) actually delivered at said address, or (b) 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:
(i) if to the Borrower, at 125 Jericho Turnpike, Suite 103, Jericho,
New York 11753, Attention: Finance Department, or at such other address for
notice as the Borrower shall last have furnished in writing to the Person giving
such notice; or
(ii) if to the Bank, at 395 North Service Road, Melville, New York
11747, Attention: Relationship Manager, Getty Realty Corp., or at such other
address for notice as the Bank shall last have furnished in writing to the
Person giving such notice.
ss.12. MISCELLANEOUS. Whether or not the Loan is outstanding, this
Agreement shall continue in full force and effect until all obligations of the
Borrower under any of the Loan Documents have been fully paid. The captions in
this Agreement are for convenience of reference only and shall not define or
limit the provisions hereof. This Agreement or any amendment may be executed in
separate counterparts by the parties hereto, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
instrument. In proving this Agreement, it shall not be necessary to produce or
account for more than one such counterpart. This Agreement and any other
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally or in writing, except as provided in ss. 13 of
this Agreement.
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ss.13. CONSENTS, AMENDMENTS, WAIVERS, ACKNOWLEDGMENTS, ETC. Except as
otherwise expressly provided in this Agreement, any consent or approval required
or permitted by this Agreement to be given by the Bank may be given, and any
term of this Agreement or of any other instrument related hereto or mentioned
herein may be amended, and the performance or observance by the Borrower of any
terms of this Agreement or such other instrument or the continuance of any
Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Borrower and the written consent of the Bank.
No waiver shall extend to or affect any obligation not expressly waived
or impair any right consequent thereon. No course of dealing or delay or
omission on the part of the Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Borrower shall entitle the Borrower to other or further notice or demand in
similar or other circumstances.
ss.14. SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Bank, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Bank.
(b) The Bank reserves the right, at its sole cost and expense,
to sell participations in or to sell and assign its rights, duties or
obligations with respect to the Loans to such banks, lending institutions or
other financial institutions as it may choose and without the consent of the
Borrower. The Bank may furnish any information concerning the Borrower in its
possession from time to time to any assignee or participant (or proposed
assignee or participant) provided such assignee or participant has agreed to
maintain the confidentiality thereof pursuant to the Bank's customary and usual
form of agreement therefor. The Bank may at any time pledge or assign or grant a
security interest in all or any part of its rights under this Agreement and its
Notes to a Federal Reserve Bank, provided that no such assignment shall release
the Bank from its obligations hereunder or substitute any such pledgee or
assignee for the Bank as a party to this Agreement.
ss.15. GOVERNING LAW; SUBMISSION TO JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL
COURT SITTING THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER
BY MAIL AT THE ADDRESS SPECIFIED IN ss.11 HEREOF. THE BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first set forth at the
beginning of this Agreement.
POWER TEST REALTY COMPANY
LIMITED PARTNERSHIP
By: Getty Properties Corp.
Its General Partner
By: /s/ LEO LIEBOWITZ
-----------------------
Name: Leo Liebowitz
Title: President
THE CHASE MANHATTAN BANK
By: /s/ RICHARD G. WILLIAMS
---------------------------
Name: Richard G. Williams
Title: Vice President
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