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EXHIBIT 10.9
SECOND AFFIRMATION AND ACKNOWLEDGMENT OF
AMENDED AND RESTATED HAZARDOUS WASTE AND PMPA
INDEMNIFICATION AGREEMENT
This SECOND AFFIRMATION AND ACKNOWLEDGMENT OF AMENDED AND RESTATED
HAZARDOUS WASTE AND PMPA INDEMNIFICATION AGREEMENT (this "Second Affirmation")
is made as of this 30th day of January, 1998 by Getty Properties Corp., a
Delaware corporation ("Properties"), successor by merger and name change to
Getty Realty Corp. ("Realty"), which was successor by merger and name change to
Getty Petroleum Corp. ("Getty").
WITNESSETH:
WHEREAS, Getty duly authorized, executed and delivered that certain
Amended and Restated Hazardous Waste and PMPA Indemnification Agreement dated as
of October 31, 1995 by and among Getty, Fleet Bank of Massachusetts, N.A.,
predecessor in interest to Fleet National Bank (the "Bank"), and Power Test
Realty Company Limited Partnership (the "Borrower") (the "Indemnification
Agreement");
WHEREAS, a subsidiary of Realty merged with and into Getty and Getty
changed its name to "Getty Realty Corp." effective as of March 31, 1997;
WHEREAS, Realty affirmed its obligations under the Indemnification
Agreement pursuant to an Affirmation and Acknowledgment of Amended and Restated
Hazardous Waste and PMPA Indemnification Agreement dated as of April 18, 1997
(the "Affirmation");
WHEREAS, Getty Merger Sub, Inc. merged with and into Realty and Realty
changed its name to "Getty Properties Corp." effective as of January 30, 1998;
WHEREAS, the execution and delivery of this Second Affirmation is a
condition precedent to the Bank's and the Borrower's agreement to enter into
that certain Second Amendment to Amended and Restated Loan Agreement of even
date herewith (the "Second Amendment");
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NOW, THEREFORE, for good and valuable consideration paid and in
consideration of the promises herein, the receipt and sufficiency of which are
hereby acknowledged, Properties agrees as follows:
1. All references in the Indemnification Agreement, as amended by the
Affirmation, to "Realty" shall be changed to be references to "Properties".
2. Properties hereby affirms and acknowledges (i) the continued validity
of the Indemnification Agreement, as amended by the Affirmation and (ii) that
the Indemnification Agreement, as amended by the Affirmation, except as
expressly amended hereby, remains in full force and effect. Properties agrees
that the obligations of Properties to the Bank under the Indemnification
Agreement, as amended by the Affirmation, and the terms and provisions of the
Indemnification Agreement, as amended by the Affirmation and hereby, are hereby
ratified, affirmed and incorporated herein by reference, with the same force and
effect as if set forth herein in their entirety. Properties consents to the
amendments set forth in the Second Amendment.
3. This Second Affirmation shall be construed according to and governed by
the laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, Properties has caused this Second Affirmation to be
made by its duly authorized officer as a sealed instrument as of the date first
set forth above.
GETTY PROPERTIES CORP.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President,
Treasurer and Chief
Financial Officer
Agreed and Accepted:
FLEET NATIONAL BANK
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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IN WITNESS WHEREOF, Properties has caused this Second Affirmation to be
made by its duly authorized officer as a sealed instrument as of the date first
set forth above.
GETTY PROPERTIES CORP.
By:
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Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President,
Treasurer and Chief
Financial Officer
Agreed and Accepted:
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
