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EXHIBIT 4.6
FIRST AMENDMENT
to the
AMENDED AND RESTATED LOAN AGREEMENT
This FIRST AMENDMENT to the AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment"), dated as of April 18, 1997, is by and between POWER TEST REALTY
COMPANY LIMITED PARTNERSHIP, a New York limited partnership having its principal
office at 000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000 (the "Borrower") and
FLEET NATIONAL BANK (successor in interest to Fleet Bank of Massachusetts,
N.A.), a national banking association having its principal place of business at
Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Borrower and the Bank are parties to that certain Amended and
Restated Loan Agreement, dated as of October 31, 1995 (the "Loan Agreement"),
pursuant to which the Bank, upon certain terms and conditions, has made a loan
to the Borrower;
WHEREAS, Getty Petroleum Corp., a Delaware corporation ("Getty"), an
affiliate of the Borrower, has decided to spin-off its petroleum marketing
business to its shareholders on a tax-free basis effective as of March 21, 1997,
so as to separate Getty's real estate business from its petroleum marketing
business;
WHEREAS, Getty has formed Getty Petroleum Marketing Inc., a Maryland
corporation ("Marketing"), to hold and operate its petroleum marketing and
related businesses;
WHEREAS, the Board of Directors of Getty has declared a special
distribution of the common stock of Marketing to the shareholders of Getty which
was effectuated on March 31, 1997;
WHEREAS, Getty will retain its real estate business and lease the Stations
(as defined in the Loan Agreement) on a long-term net basis to
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Marketing pursuant to a Master Lease Agreement dated as of February 1, 1997;
WHEREAS, effective as of March 31, 1997, Getty Realty Corp., a Delaware
corporation, has merged with and into Getty and Getty in turn has changed its
name to "Getty Realty Corp." ("Realty");
WHEREAS, the Borrower has requested that certain provisions of the Loan
Agreement be amended in order, among other things, to provide for certain
changes; and
WHEREAS, the Bank, subject to the terms and provisions hereof, has agreed
to amend the Loan Agreement in order to provide for the foregoing matters;
NOW, THEREFORE, the Borrower and the Bank hereby agree as follows:
Section 1. Defined Terms. Capitalized terms used in this Amendment without
definition that are defined in the Loan Agreement shall have the meanings set
forth in the Loan Agreement.
Section 2. Amendment to Loan Agreement. Subject to the satisfaction of the
conditions precedent set forth in Section 5 hereof, the Loan Agreement is hereby
amended as follows:
Section 2.1. The definition of Getty set forth in Section 1 of the
Loan Agreement is hereby deleted in its entirety.
Section 2.2. The following definitions are hereby added to Section 1
of the Loan Agreement in the alphabetically appropriate order:
Marketing means Getty Petroleum Marketing Inc., a Maryland
corporation.
Realty means Getty Realty Corp., a Delaware corporation,
successor by name change to Getty Petroleum Corp.
Section 2.3. All references in the Loan Agreement to "Getty" shall
be deemed to be references to "Realty".
Section 2.4. In line 4 of the definition of Affiliate in Section 1
of the Loan Agreement, the word "Marketing," is hereby inserted after the
word "PTI,".
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Section 2.5. In line 1 of the definition of Bank in Section 1 of the
Loan Agreement, the words "Fleet National Bank, a national banking
association, as successor in interest to" shall be inserted after the word
"means".
Section 2.6. The definition of Funded Debt to EBITDA Ratio as set
forth in Section 1 of the Loan Agreement is hereby deleted in its entirety
and replaced with the following definition:
Funded Debt to EBITDA Ratio means the ratio of (i) the sum of
Realty's and Marketing's combined total funded indebtedness for
borrowed money (including obligations with respect to leases which
would be capitalized) as carried on the respective balance sheets of
Realty and Marketing in accordance with generally accepted
accounting principles, other than trade debt or similar obligations
incurred in the ordinary course of business, on the last day of each
fiscal quarter to (ii) the combined amount of Realty's and
Marketing's Earnings Before Interest, Taxes, Depreciation and
Amortization, for the period of four consecutive fiscal quarters,
ending on the last day of the fiscal quarter referred to in clause
(i) above.
Section 2.7. The reference to "Section 2.11" in the definition of
Operating Account set forth in Section 1 of the Loan Agreement is hereby
changed to "Section 2.12".
Section 2.8. Section 2.3(b) of the Loan Agreement is hereby amended
by deleting the table set forth therein in its entirety and replacing it
with the following new table:
Funded Debt to EBITDA Ratio Interest Rate
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.50x or less to 1 LIBOR Rate + 1.125%
.51x - .75x to 1 LIBOR Rate + 1.25%
.76x - 1.00x to 1 LIBOR Rate + 1.375%
1.01x - 1.24x to 1 LIBOR Rate + 1.50%
1.25x - 1.49x to 1 LIBOR Rate + 1.625%
1.50x - 1.74x to 1 LIBOR Rate + 1.75%
1.75x - 1.99x to 1 LIBOR Rate + 1.875%
2.00x - or greater to 1 LIBOR Rate + 2.00%
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Section 2.9. Section 2.13 of the Loan Agreement is hereby deleted in
its entirety.
Section 2.10. In line 3 of Section 3.25 of the Loan Agreement, the
word "Marketing," is hereby inserted after the word "PTI,".
Section 2.11. In line 3 of Section 5.8 of the Loan Agreement, the
word "Marketing," is hereby inserted after the word "Borrower,".
Section 2.12. In line 3 of Section 5.8(a) of the Loan Agreement, the
words ", of Marketing" are hereby inserted after the word "Getty".
Section 2.13. In lines 4 and 6 of Section 5.8(a) of the Loan
Agreement, the word ", Marketing" is hereby inserted after the word
"Getty".
Section 2.14. In lines 3, 5 and 12 of Section 5.8(c) of the Loan
Agreement, the word ", Marketing" is hereby inserted after the word
"Getty".
Section 2.15. In lines 2 and 4 of Section 5.8(g) of the Loan
Agreement, the word "Marketing" is hereby inserted after the word
"Getty,".
Section 2.16. In line 3 of Section 5.8(h) of the Loan Agreement, the
word "Marketing," is hereby inserted after the word "Getty,".
Section 2.17. In lines 2, 5 and 8 of Section 5.8(i) of the Loan
Agreement, the words "and Marketing" are hereby inserted after the word
"Getty".
Section 2.18. In line 2 of Section 5.8(k) of the Loan Agreement the
word "Marketing, " is hereby inserted after the word "Getty,".
Section 2.19. In Section 2.8 and Section 1 (ii) of the Loan
Agreement, the address "75 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000" is
hereby deleted and the address "One Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000" is substituted in place thereof.
Section 2.20. Exhibit F to the Loan Agreement is hereby amended by
adding thereto the Master Lease Agreement between Realty and Marketing
attached hereto as Exhibit F.
Section 3. Affirmation of Borrower. The Borrower hereby affirms its
absolute and unconditional promise to pay to the Bank the Loan and all other
amounts due under the Notes and the Loan Agreement, as amended hereby, at the
times and in the amounts provided for therein. The Borrower confirms and agrees
that the obligations of the Borrower to the Bank under the Loan Agreement, as
amended hereby, remain secured by
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and entitled to the benefits of the Loan Documents as amended and in effect from
time to time.
Section 4. Representations and Warranties. The Borrower hereby represents
and warrants to the Bank that the representations and warranties of the Borrower
set forth in the Loan Agreement were true and correct when made with respect to
the Loan Agreement as in effect as of such time and continue to be true and
correct on and as of the date hereof as if made on the date hereof.
Section 5. Conditions to Effectiveness. The effectiveness of this
Amendment shall be subject to the delivery to the Bank by (or on behalf of) the
Borrower, contemporaneously with the execution hereof, of the following, in form
and substance satisfactory to the Bank:
(a) This Amendment executed and delivered by the Borrower and the Bank;
(b) An amendment fee in an amount equal to .125% of the outstanding amount
of the Loan;
(c) An Affirmation and Acknowledgment of Amended and Restated Hazardous
Waste and PMPA Indemnification Agreement executed by Realty;
(d) An Affirmation and Acknowledgment of Three Party Lease Agreement
executed by Realty;
(e) A favorable opinion from Xxxxxx X. Xxxxx, Esq., counsel to the
Borrower, Realty and Marketing, addressed to the Bank and dated the date of the
execution and delivery of this Amendment, in form, scope and substance
satisfactory to the Bank;
(f) Certified copies of all documents relating to the authorization and
execution of the Amendment and the documents contemplated hereby and related
authority and organizational documents of the Borrower, Realty and Marketing as
the Bank may request; and
(g) Any other document or instrument the Bank may reasonably request.
Section 6. Miscellaneous Provisions.
(a) Except as otherwise expressly provided by this Amendment, all of the
terms, conditions and provisions of the Loan Agreement shall remain the same. It
is declared and agreed by each of the parties hereto
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that the Loan Agreement, as amended hereby, shall continue in full force and
effect, and that this Amendment and the Loan Agreement shall be read and
construed as one instrument.
(b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER SEAL
AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS.
(c) This Amendment may be executed in any number of counterparts, and all
such counterparts shall together constitute but one instrument. In making proof
of this Amendment it shall not be necessary to produce or account for more than
one counterpart signed by each party hereto by and against which enforcement
hereof is sought.
(d) Headings or captions used in this Amendment are for convenience of
reference only and shall not define or limit the provisions hereof.
(e) The Borrower hereby agrees to pay to the Bank, on demand by the Bank,
all out-of-pocket costs and expenses incurred or sustained by any Person in
connection with the preparation of this Amendment (including legal fees).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
made by their duly authorized officers as a sealed instrument as of the date
first set forth at the beginning of this Amendment.
POWER TEST REALTY COMPANY
LIMITED PARTNERSHIP
By: CLS General Partnership Corp.,
its General Partner
By: /s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
President
FLEET NATIONAL BANK, successor in
interest to Fleet Bank of Massachusetts,
N.A.
By:
----------------------------
Name:
----------------------------
Vice President
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
made by their duly authorized officers as a sealed instrument as of the date
first set forth at the beginning of this Amendment.
POWER TEST REALTY COMPANY
LIMITED PARTNERSHIP
By: CLS General Partnership Corp.,
its General Partner
By:
----------------------------
Xxx Xxxxxxxxx
President
FLEET NATIONAL BANK, successor in
interest to Fleet Bank of Massachusetts,
N.A.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------
Vice President
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EXHIBIT F
Master Lease
