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EXHIBIT 4.3
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 LEEMILT'S PETROLEUM,
INC., a New York corporation 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 27, 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"), the
parent corporation of the Borrower and the guarantor of the Loans (as defined in
the Loan Agreement), 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, merged with and into Getty and Getty in turn 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:
Lease means the Lease Agreement dated as of February 1, 1985,
covering the Stations, between the Borrower and Realty, as amended
and in effect on the date hereof, and as amended, modified or
supplemented from time to time in accordance with the terms hereof
and thereof.
Marketing means Getty Petroleum Marketing Inc., a Maryland
corporation.
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Master Lease means the Master Lease Agreement dated as
February 1, 1997 between Realty (f/k/a Getty Petroleum Corp.) and
Marketing.
Realty means Getty Realty Corp., a Delaware corporation,
successor by name change to Getty Petroleum Corp.
Three Party Lease Agreement means the Three Party Lease
Agreement of even date herewith by and among Realty, the Borrower
and the Bank relating to the Stations.
Section 2.3. All references in the Loan Agreement to "Getty" shall
be deemed to be references to "Realty".
Section 2.4. 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 2.5. In line 3 of the definition of Earnings Before
Interest, Taxes, Depreciation and Amortization in Section 1 of the Loan
Agreement, the words "Getty and its Subsidiaries" are hereby deleted and
the words "Realty and Marketing and their Subsidiaries" are substituted in
place thereof.
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
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quarters, ending on the last day of the fiscal quarter referred to
in clause (i) above.
Section 2.7. Section 2.4.1(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 + 1.00%
.51x - .75x to 1 LIBOR Rate + 1.125%
.76x - 1.00x to 1 LIBOR Rate + 1.25%
1.01x - 1.24x to 1 LIBOR Rate + 1.375%
1.25x - 1.49x to 1 LIBOR Rate + 1.50%
1.50x - 1.74x to 1 LIBOR Rate + 1.625%
1.75x - 1.99x to 1 LIBOR Rate + 1.75%
2.00x - or greater to 1 LIBOR Rate + 1.875%
Section 2.8 Section 2.15 of the Loan Agreement is hereby deleted in
its entirety.
Section 2.9 Section 3.7 and 3.8 of the Loan Agreement are hereby
deleted in their entirety and are replaced with the following:
Section 3.7. Financial Statements. The Borrower has furnished to the
Bank the unaudited financial statements of the Borrower as at
January 31, 1997. 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
Borrower as at the date thereof and its results of operations for
the periods covered thereby.
Section 3.8. No Material Changes. Since January 31, 1997, there has
been no material adverse change in the assets, liabilities,
condition (financial or otherwise), operations, properties
(including intangible properties) or business of the Borrower except
for the conveyance of certain underground storage tanks and other
personal property of the Borrower to Marketing as disclosed in that
certain pro forma balance sheet as of January 31, 1997 and statement
of income for the fiscal year ended on such date, which pro forma is
attached hereto as Schedule 3.8.
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Section 2.10. In line 2 of Section 3.18 of the Loan Agreement, the
words ", including the Lease," are hereby inserted after the word
"Station".
Section 2.11. A new Section 3.23 is hereby added to the Loan
Agreement:
Section 3.23. Leases.
(a) The Lease has been duly authorized and validly executed
and is a legal, valid and binding instrument enforceable against
Realty in accordance with its terms without any defense,
counterclaim or setoff, and the Lease is presently in full force and
effect and has not been assigned by Realty, modified, supplemented
or amended in any way. The Lease, together with the Three Party
Lease Agreement, represents the entire agreement between the
Borrower and Realty with respect to the Stations, and taken as a
whole, the Lease, together with the Three Party Lease Agreement,
represents all the agreements between the Borrower and Getty 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 Lease have been paid or performed.
(c) There does not presently exist any event of default under
the Lease or the Master Lease or any event which, with the giving of
notice or the passage of time or both, would result in a default
under the Lease or the Master Lease.
(d) The interest of the Borrower in the Lease is free and
clear from all Liens of whatever kind or nature whatsoever.
(e) Realty is not in default under any obligation to the
Borrower under the Lease and there are no disputes between Realty
and the Borrower existing as of the date hereof which affect the
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 copy of
the Lease in effect on the date hereof.
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(g) Any sublease, including the Master Lease, of any kind with
respect to any station is and will be subject and subordinate to the
Mortgage relating to such Stations, and is and will be substantially
in the form of one or more of the attachments included in Exhibit D
annexed hereto, except for leases for uses other than as gasoline
service stations, as indicated on Exhibit D-1.
(h) There are no judicial proceedings pending or, to the best
knowledge of the Borrower, threatened against the Borrower or Realty
which would materially impair the rights of the Borrower under the
Lease or the ability of Realty to perform the covenants and
obligations required to be performed under the Lease.
(i) Realty is not the subject of any bankruptcy or insolvency
proceeding nor has Realty made an assignment for the benefit of its
creditors and there has been no material adverse change in the
financial condition of Realty which would materially impair the
capacity of Realty to respond to its obligations under the Lease.
Section 2.12. In line 3 of Section 5.8(c) of the Loan Agreement, the
words ", or Marketing" are hereby inserted after the word "Getty".
Section 2.13. In lines 2, 3, 5 and 8 of Section 5.8(d) of the Loan
Agreement, the words "and Marketing" are hereby inserted after the word
"Getty".
Section 2.14. A new section Section 5.19 is hereby added to the Loan
Agreement:
Section 5.19. Minimum Ownership. Xxx Xxxxxxxxx, during his
lifetime, shall at all times own, directly or indirectly, not less
than 1.8 million shares of the issued and outstanding stock of
Realty having ordinary voting power (other than stock having such
voting power only by reason of the happening of a contingency)
("Voting Stock"). For purposes hereof, the term "own, directly or
indirectly" shall be deemed to include all Voting Stock owned by Xxx
Xxxxxxxxx or by any member of his immediate family or by any trust
for the benefit of Xxx Xxxxxxxxx or any member of his immediate
family (a "Member"), which Voting Stock is held by a Member during
the lifetime of Xxx Xxxxxxxxx.
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Section 2.15. A new Section 6.5 is hereby added to the Loan
Agreement:
Section 6.5. Modifications to Lease. The Borrower will not,
without the prior written consent of the Bank, make any waivers or
agreements respecting, or enter into any amendments, modifications
or alterations relating to any provision of the Lease, nor will it
declare the Lease in default, exercise any of the rights or remedies
of lessor under the Lease, settle or compromise any claims relating
to the Lease, or exercise or grant any approval under the Lease,
whether verbal or in writing.
Section 2.16. In line 3 of Section 7(h) of the Loan Agreement, the
words ", or the Lease," shall be shall be inserted after the words "Power
Test". In line 8 of Section 7(h) of the Loan Agreement, the words "the
Lease or in" are hereby inserted after the words "contained in".
Section 2.17. In Section 2.10 and Section 10(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 2.18. Exhibit D to the Loan Agreement is hereby amended by
adding thereto the Master Lease Agreement between Realty and Marketing
attached hereto as Exhibit D.
Section 3. Affirmation of Borrower. The Borrower hereby affirms its
absolute and unconditional promise to pay to the Bank the Loans 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 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, as such representations and
warranties are amended herein, continue to be true and correct on and as of the
date hereof as if made on the date hereof.
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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 Loans;
(c) An Affirmation and Acknowledgment of Amended and Restated Hazardous
Waste Indemnification Agreement executed by Realty;
(d) An Affirmation and Acknowledgment of Guaranty Agreement executed by
Realty;
(e) The Three Party Lease Agreement executed by the Borrower and Realty;
(f) 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;
(g) 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
(h) 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 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
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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.
LEEMILT'S PETROLEUM, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Senior Vice President
FLEET NATIONAL BANK,
successor in interest to Fleet Bank of
Massachusetts, N.A.
By:
-----------------------------------
Name:
---------------------------------
Title: 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.
LEEMILT'S PETROLEUM, INC.
By:
-----------------------------------
Xxxx X. Xxxxxxxx
Senior Vice President
FLEET NATIONAL BANK,
successor in interest to Fleet Bank of
Massachusetts, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
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SCHEDULE 3.8
Pro Forma Balance Sheet and Statement of Income
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LEEMILT'S PETROLEUM. INC.
CONSOLIDATED BALANCE SHEET
JANUARY 31, 1997
(IN THOUSANDS)
(UNAUDITED)
PRIOR TO
ASSETS SPIN-OFF ADJUSTMENTS ADJUSTED
Current Assets:
Cash and cash equivalents $6 $6
Current portion of loan receivable
from Getty Petroleum Corp. 2,617 2,617
Receivables 243 243
Prepaid expenses and other
current assets 276 (168)(A) 108
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Total current assets 3,142 (168) 2,974
Loan receivable from Getty Realty Corp. 10,844 10,844
Property, plant and equipment, net 78,379 (15,269)(B) 63,110
Other assets 3,672 (631)(C) 3,041
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Total assets $96,037 ($16,068) $79,969
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LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of:
Long-term debt 3,614 $3,614
Accounts payable and accrued expenses 1,169 1,169
Income taxes payable 2,404 2,404
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Total current liabilities 7,187 0 7,187
Long-term debt 14,315 14,315
Intercompany loans and advances, net 17,221 17,221
Deferred income taxes 9,068 (8,140)(D) 928
Other liabilities 160 160
Stockholders' equity 48,086 (7,928)(E) 40,158
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Total liabilities and
stockholders' equity $96,037 ($16,068) $79,969
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(A) Represents goodwill of $20 and prepaid real estate taxes of $148 which
will be transferred to Getty Marketing.
(B) Equipment, including underground storage tanks, which will be transferred
to Getty Marketing.
(C) Amount represents goodwill of $631 which will be transferred as Getty
Marketing.
(D) Impact on transfer of property, plant and equipment.
(E) Adjusted to give effect of transfers to Getty Marketing.
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LEEMILT'S PETROLEUM, INC
PROFORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED JANUARY 31, 1997
Revenues: HISTORICAL ADJUSTMENTS PRO FORMA
Rental income $18,430 $150(A) $18,580
Other income 2,029 2,029
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20,459 150 20,609
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Costs and expenses:
Repairs and Maintenance 265 (265)(B) 0
Rent 1,846 1,846
Real Estate Taxes 4,163 (3,500)(C) 663
Other Operating Expenses 26 26
Interest expense 1,400 1,400
Depreciation and amortization 6,677 (3,000)(D) 3,677
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14,377 (6,765) 7,612
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Income before provision for
income taxes 6,082 6,915 12,997
Provision for income taxes 2,490 2,831 5,321
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Net income $3,592 $4,084 $7,676
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(A) Adjusted go give effect to rentals under she Lease Agreement with Getty
Marketing.
(B) Repairs and maintenance charged to Marketing.
(C) Real estate taxes are the responsibility of Getty Marketing except for
non-leased locations.
(D) Equipment, including underground storage tanks, were transferred to Getty
Marketing.
