UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark one)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended SEPTEMBER 30, 2003
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from __________ to __________
Commission file number 001-13777
GETTY REALTY CORP.
------------------
(Exact name of registrant as specified in its charter)
MARYLAND 11-3412575
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
125 JERICHO TURNPIKE, SUITE 103
JERICHO, NEW YORK 11753
-----------------------
(Address of principal executive offices)
(Zip Code)
(516) 478 - 5400
----------------
(Registrant's telephone number, including area code)
---------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act).
Yes [X] No [ ]
Registrant had outstanding 24,655,375 shares of Common Stock, par value $.01 per
share, as of September 30, 2003.
GETTY REALTY CORP.
INDEX
Page Number
-----------
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets as of September 30, 2003 and
December 31, 2002 1
Consolidated Statements of Operations for the three
and nine months ended September 30, 2003 and 2002 2
Consolidated Statements of Cash Flows for the
nine months ended September 30, 2003 and 2002 3
Notes to Consolidated Financial Statements 4 - 10
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 11 - 18
Item 3. Quantitative and Qualitative Disclosures About Market Risk 18
Item 4. Controls and Procedures 18 - 19
Part II. OTHER INFORMATION
Item 1. Legal Proceedings 20
Item 6. Exhibits and Reports on Form 8-K 21
Signatures 22
GETTY REALTY CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
(unaudited)
September 30, December 31,
2003 2002
-------------- --------------
Assets:
Real Estate:
Land $ 143,865 $ 135,372
Buildings and improvements 176,591 172,682
------------- -------------
320,456 308,054
Less - accumulated depreciation (99,497) (93,986)
------------- -------------
Real estate, net 220,959 214,068
Cash and equivalents 21,310 33,726
Deferred rent receivable 19,341 15,116
Recoveries from state underground storage tank funds, net 10,613 13,396
Mortgages and accounts receivable, net 3,446 5,193
Prepaid expenses and other assets 703 992
------------- -------------
Total assets $ 276,372 $ 282,491
============= =============
Liabilities and Shareholders' Equity:
Environmental remediation costs $ 26,795 $ 27,924
Dividends payable 10,479 10,379
Accounts payable and accrued expenses 9,080 9,839
Mortgages payable 865 923
------------- -------------
Total liabilities 47,219 49,065
------------- -------------
Commitments and contingencies (Notes 6 and 7)
Shareholders' equity:
Preferred stock, par value $.01 per share; authorized 20,000,000
shares for issuance in series of which 3,000,000 shares are
classified as Series A Participating Convertible Redeemable
Preferred; issued 2,865,768 at December 31, 2002 - 71,644
Common stock, par value $.01 per share; authorized
50,000,000 shares; issued 24,655,375 at September 30, 2003
and 21,442,299 at December 31, 2002 247 214
Paid-in capital 257,282 186,664
Dividends paid in excess of earnings (28,376) (25,096)
------------- -------------
Total shareholders' equity 229,153 233,426
------------- -------------
Total liabilities and shareholders' equity $ 276,372 $ 282,491
============= =============
The accompanying notes are an integral part of these financial statements.
1
GETTY REALTY CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)
(unaudited)
Three months ended September 30, Nine months ended September 30,
-------------------------------- -------------------------------
2003 2002 2003 2002
-------- -------- -------- --------
Revenues:
Revenues from rental properties $ 16,676 $ 16,746 $ 50,025 $ 50,425
Other income, net 475 637 1,238 1,989
-------- -------- -------- --------
Total revenues 17,151 17,383 51,263 52,414
-------- -------- -------- --------
Expenses:
Rental property expenses 2,573 2,885 8,157 9,051
Environmental expenses, net 1,868 2,351 5,581 5,657
General and administrative expenses 1,128 965 3,028 3,254
Depreciation expense 2,083 2,174 6,394 6,815
Interest expense 32 35 98 100
-------- -------- -------- --------
Total expenses 7,684 8,410 23,258 24,877
-------- -------- -------- --------
Net earnings before cumulative effect of
accounting change 9,467 8,973 28,005 27,537
Cumulative effect of accounting change - - (550) -
-------- -------- -------- --------
Net earnings 9,467 8,973 27,455 27,537
Preferred stock dividends 13 1,272 2,538 3,816
-------- -------- -------- --------
Net earnings applicable to common
shareholders $ 9,454 $ 7,701 $ 24,917 $ 23,721
======== ======== ======== ========
Net earnings per common share:
Basic $ .38 $ .36 $ 1.11 $ 1.11
Diluted $ .38 $ .36 $ 1.11 $ 1.11
Weighted average common shares outstanding:
Basic 24,703 21,441 22,530 21,433
Diluted 24,726 21,450 22,546 21,443
Dividends declared per share:
Preferred $ .27118 $ .44375 $1.15868 $1.33125
Common $ .42500 $ .41250 $1.25000 $1.23750
The accompanying notes are an integral part of these financial statements.
2
GETTY REALTY CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
Nine months ended September 30,
-------------------------------
2003 2002
-------- --------
Cash flows from operating activities:
Net earnings $ 27,455 $ 27,537
Adjustments to reconcile net earnings to
net cash provided by operating activities:
Depreciation expense 6,394 6,815
Deferred rental revenue (4,225) (5,053)
Gain on dispositions of real estate (625) (1,178)
Accretion expense 743 -
Cumulative effect of accounting change 550 -
Changes in assets and liabilities:
Recoveries from state underground storage tank funds, net 4,516 (1,255)
Mortgages and accounts receivable, net 440 (1,364)
Prepaid expenses and other assets 289 (321)
Environmental remediation costs (4,155) 2,969
Accounts payable and accrued expenses (759) (1,429)
-------- --------
Net cash provided by operating activities 30,623 26,721
-------- --------
Cash flows from investing activities:
Collections of mortgages receivable, net 1,307 406
Property acquisitions and capital expenditures (13,786) (1,856)
Proceeds from dispositions of real estate 1,126 2,940
-------- --------
Net cash provided by (used in) investing activities (11,353) 1,490
-------- --------
Cash flows from financing activities:
Cash dividends paid (30,635) (30,334)
Repayment of mortgages payable (58) (54)
Stock options, common and treasury stock, net 231 210
Preferred stock redemption and conversion (1,224) -
-------- --------
Net cash used in financing activities (31,686) (30,178)
-------- --------
Net decrease in cash and equivalents (12,416) (1,967)
Cash and equivalents at beginning of period 33,726 37,523
-------- --------
Cash and equivalents at end of period $ 21,310 $ 35,556
======== ========
Supplemental disclosures of cash flow information
Cash paid (refunded) during the period for:
Interest $ 98 $ 100
Income taxes, net 811 1,200
Recoveries from state underground storage tank funds (1,583) (2,618)
Environmental remediation costs 4,467 5,551
The accompanying notes are an integral part of these financial statements.
3
GETTY REALTY CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. General:
The accompanying consolidated financial statements have been prepared
in conformity with accounting principles generally accepted in the United States
of America ("GAAP"). The consolidated financial statements include the accounts
of Getty Realty Corp. and its wholly-owned subsidiaries (the "Company"). The
Company is a real estate investment trust ("REIT") specializing in the ownership
and leasing of retail motor fuel and convenience store properties as well as
petroleum distribution terminals. The Company manages and evaluates its
operations as a single segment. All significant intercompany accounts and
transactions have been eliminated.
The financial statements have been prepared in conformity with GAAP,
which requires management to make its best estimates, judgments and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
revenues and expenses during the period reported. While all available
information has been considered, actual results could differ from those
estimates, judgments and assumptions. Estimates, judgments and assumptions
underlying the accompanying consolidated financial statements include, but are
not limited to, deferred rent receivable, recoveries from state underground
storage tank funds, net, environmental remediation costs, depreciation,
impairment of long-lived assets, litigation, accrued expenses and income taxes.
The consolidated financial statements are unaudited but, in the opinion
of management, reflect all adjustments (consisting of normal recurring accruals)
necessary for a fair presentation. These statements should be read in
conjunction with the consolidated financial statements and related notes, which
appear in the Company's Annual Report on Form 10-K for the year ended December
31, 2002.
2. Earnings Per Common Share:
Basic earnings per common share is computed by dividing net earnings
less preferred dividends by the weighted average number of common shares
outstanding during the period. The weighted average number of shares outstanding
for the three months ended September 30, 2003 gives effect to conversion of
Series A Participating Convertible Redeemable Preferred stock into 3,186,000
shares of common stock as if the conversion had occurred at the beginning of the
period (see Note 5). For the nine months ended September 30, 2003 and the three
and nine months ended September 30, 2002, conversion of the preferred shares
utilizing the two class method would have been antidilutive and therefore
conversion was not assumed for purposes of computing either basic or diluted
earnings per common share. Diluted earnings per common share gives effect to the
potential dilution from the exercise of stock options in the amount of 23,000
and 16,000 shares for the three and nine months ended September 30, 2003,
respectively, and 9,000 and 10,000 shares, respectively for the comparable prior
year periods.
3. Stock-Based Compensation:
In December 2002, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standards No. ("SFAS") 148, "Accounting
for Stock-Based Compensation--Transition and Disclosure--an amendment of SFAS
123." The Company voluntarily changed to the
4
fair value basis of accounting for stock-based employee compensation for options
granted subsequent to January 1, 2003 under its stock option plan. The Company
will continue to account for options granted under its stock option plan prior
to January 1, 2003 using the intrinsic value method. Had compensation cost for
the Company's stock option plan been accounted for using the fair value method
for all grants, the Company's total stock-based employee compensation expense
using the fair value method, pro-forma net earnings and pro-forma net earnings
per share on a basic and diluted basis would have been as follows (in thousands,
except per share amounts):
Three months ended September 30, Nine months ended September 30,
-------------------------------- -------------------------------
2003 2002 2003 2002
------- ------- ------- --------
Net earnings, as reported $ 9,467 $ 8,973 $27,455 $ 27,537
Add: Stock-based employee
compensation expense included in
reported net earnings -(*) - -(*) -
Deduct: Total stock-based employee
compensation expense using the
fair value method 33 31 99 92
------- ------- ------- --------
Pro-forma net earnings $ 9,434 $ 8,942 $27,356 $ 27,445
======= ======= ======= ========
Net earnings per common share:
As reported $ .38 $ .36 $ 1.11 $ 1.11
Pro-forma $ .38 $ .36 $ 1.11 $ 1.11
(*) There were no stock options granted during the three and nine months ended
September 30, 2003.
4. Cumulative Effect of Accounting Change:
In September 2001, the FASB issued SFAS 143, "Accounting for Asset
Retirement Obligations." SFAS 143 requires that obligations associated with the
retirement of tangible long-lived assets be recognized at their fair value in
the period when incurred if the asset retirement obligation results from the
normal operation of those assets and a reasonable estimate of fair value can be
made. Due to the adoption of SFAS 143 effective January 1, 2003, accrued
environmental remediation costs and recoveries from state underground storage
tank funds were adjusted to their estimated fair value resulting in a one-time
cumulative effect of change in accounting charge of $550,000. Environmental
liabilities and related assets are currently measured based on their expected
future cash flows which have been adjusted for inflation and discounted to
present value. Prior to the adoption of SFAS 143 generally accepted accounting
principles required that if the best estimate of cost for a component of the
liability could only be identified as a range, and no amount within the range
was a better estimate than any other amount, the minimum of the range was
accrued for that cost component. Historically, such accruals were not adjusted
for inflation or discounted to present value.
5
5. Shareholders' Equity:
A summary of the changes in shareholders' equity for the nine months
ended September 30, 2003 is as follows (in thousands, except per share amounts):
Dividends
Preferred Stock Common Stock Paid In
------------------------------------ Paid-in Excess Of
Shares Amount Shares Amount Capital Earnings Total
------ ------- ------- ------ -------- --------- -------
Balance, December 31, 2002 2,866 $71,644 21,442 $ 214 $186,664 $ (25,096) $233,426
Net earnings 27,455 27,455
Cash dividends declared:
Common-$1.25 per share (28,197) (28,197)
Preferred -$1.15868 per share (2,538) (2,538)
Preferred stock redemption
and conversion (2,866) (71,644) 3,186 32 70,388 (1,224)
Stock options 27 1 230 231
------ ------- ------- ------ -------- --------- -------
Balance, September 30, 2003 - $ - $24,655 $ 247 $257,282 $ (28,376) $229,153
====== ======= ======= ====== ======== ========= ========
In August 2003, The Company notified holders of the Series A
Participating Convertible Redeemable Preferred Stock that the Preferred Stock
would be redeemed on September 24, 2003 for $25.00 per share plus a mandatory
redemption dividend of $0.27118 per share. Prior to the redemption date,
shareholders of 98% of the Preferred Stock exercised their right to convert
2,816,919 shares of Preferred Stock into 3,186,355 shares of Common Stock at the
conversion rate of 1.1312 shares of Common Stock for each share of Preferred
Stock so converted, and received cash in lieu of fractional shares of Common
Stock. The remaining 48,849 shares of the outstanding Preferred Stock were
redeemed for an aggregate amount, including accrued dividends through the call
date, of approximately $1,234,000. The Preferred Stock has ceased accruing
dividends and trading on the NYSE.
6. Commitments and Contingencies
In order to qualify as a REIT, among other items, the Company paid a
$64,162,000 special one-time "earnings and profits" (as defined in the Internal
Revenue Code) cash distribution to shareholders in August 2001. Determination of
accumulated earnings and profits for federal income tax purposes is extremely
complex. Should the Internal Revenue Service successfully assert that the
Company's accumulated earnings and profits were greater than the amount
distributed, the Company may fail to qualify as a REIT; however, the Company may
avoid losing its REIT status by paying a deficiency dividend to eliminate any
remaining accumulated earnings and profits. The Company may have to borrow money
or sell assets to pay such a deficiency dividend.
In order to minimize the Company's exposure to credit risk associated
with financial instruments, the Company places its temporary cash investments
with high credit quality institutions. Temporary cash investments are held in an
institutional money market fund and federal agency discount notes.
The Company leases 969 of its 1,042 properties on a long-term net basis
to Getty Petroleum Marketing Inc. ("Marketing") under the master lease entered
into on February 1, 1997 and amended
6
and restated effective December 9, 2000 (the "Master Lease"). Marketing operated
substantially all of the Company's petroleum marketing businesses when it was
spun-off to the Company's shareholders as a separate publicly held company in
March 1997. In December 2000, Marketing was acquired by a subsidiary of OAO
Lukoil, one of Russia's largest integrated oil companies. The Company's
financial results depend largely on rental income from Marketing, and to a
lesser extent on rental income from other tenants, and are therefore materially
dependent upon the ability of Marketing to meet its obligations under the Master
Lease. Marketing's financial results depend largely on retail petroleum
marketing margins and rental income from its dealers. The petroleum marketing
industry has been and continues to be volatile and highly competitive. Marketing
has made all required monthly rental payments under the Master Lease when due.
The Master Lease is a "triple-net" lease, with Marketing responsible
for the payment of all taxes, maintenance, repair, insurance and other operating
expenses. In general, Marketing remains responsible for any violations of
non-environmental laws. The Company had agreed to indemnify Marketing for
certain of these violations. This indemnification obligation expired in December
2002. The Company has had ongoing discussions with Marketing regarding the
allocation of responsibility for certain capital and other one-time expenditures
related to specific properties, the resolution of which is not expected to have
a material adverse effect on the Company's financial condition or results of
operations.
Under the Master Lease, the Company continues to have additional
ongoing environmental remediation obligations for 292 scheduled properties as of
September 30, 2003 (see Note 7). The Company has also agreed to indemnify
Marketing for certain pre-existing environmental conditions at nine terminals
which are owned by the Company. Under the agreement, Marketing will pay the
first $1.5 million of costs and expenses incurred in connection with remediating
any such pre-existing condition, Marketing and the Company will share equally
the next $8.5 million of those costs and expenses and Marketing will pay all
additional costs and expenses in excess of $10.0 million. The Company's
indemnification responsibility for certain pre-existing environmental conditions
at the nine terminals is capped at $4.25 million and expires in December 2010.
The Company has not accrued a liability in connection with this indemnification
agreement since it is uncertain that any significant amounts will be required to
be paid under the agreement.
The Company is subject to various legal proceedings and claims which
arises in the ordinary course of its business, including environmental matters.
In addition, the Company has retained responsibility for all pre-spin-off legal
proceedings and claims relating to the petroleum marketing business. These
matters are not expected to have a material adverse effect on the Company's
financial condition or results of operations.
In September 2003, the Company was notified by the State of New Jersey
Department of Environmental Protection that it is one of approximately 60
potentially responsible parties for natural resources damages resulting from
discharges of hazardous substances into the Lower Passaic River. The definitive
list of potentially responsible parties and their actual responsibility for the
alleged damages, the aggregate cost to remediate the Lower Passaic River, the
amount of natural resource damages and the method of allocating such amounts
among the potentially responsible parties have not been determined. Accordingly,
7
the ultimate legal and financial liability of the Company, if any, cannot be
estimated with any certainty at this time.
In October 2003, the Company was notified that it was made party to
various cases in New York and Connecticut brought by local water providers or
agencies. These cases allege various theories of liability due to contamination
of groundwater with MTBE as the basis for claims seeking compensatory and
punitive damages. Each case names approximately 50 petroleum refiners,
manufacturers, distributors and retailers of MTBE, or gasoline containing MTBE,
as defendants. The accuracy of the allegations as to the Company, the Company's
defenses to such claims, the aggregate amount of damages, the definitive list of
defendants and the method of allocating such amounts among the defendants have
not been determined. Accordingly, the ultimate legal and financial liability of
the Company, if any, cannot be estimated with any certainty at this time.
Prior to the spin-off, the Company was self-insured for workers'
compensation, general liability and vehicle liability up to predetermined
amounts above which third-party insurance applies. As of September 30, 2003 and
December 31, 2002, the Company's consolidated balance sheets included, in
accounts payable and accrued expenses, $839,000 and $1,602,000, respectively,
relating to insurance obligations that may be deemed to have arisen prior to the
spin-off of the Marketing business. The Company's consolidated statements of
operations for the three and nine months ended September 30, 2003 include, in
general and administrative expenses, charges (credits) of $147,000 and
$(105,000), respectively, and $144,000 and $426,000, respectively, for the
comparable prior year periods. Since the spin-off, the Company has maintained
insurance coverage subject to certain deductibles.
7. Environmental Remediation Costs:
The Company is subject to numerous existing federal, state and local
laws and regulations, including matters relating to the protection of the
environment. Currently, environmental expenses are principally attributable to
remediation, monitoring, and governmental agency reporting incurred in
connection with contaminated properties. In prior periods a larger portion of
the expenses also included soil disposal and the replacement or upgrading of
underground storage tanks ("USTs") to meet federal, state and local
environmental standards, as well as routine monitoring and tank testing. For the
three and nine months ended September 30, 2003, net environmental expenses
included in the Company's consolidated statements of operations were $1,868,000
and $5,581,000, respectively, and $2,351,000 and $5,657,000, respectively, for
the comparable prior year periods, which amounts were net of estimated net
recoveries from state UST remediation funds.
Under the Master Lease with Marketing, and in accordance with its
leases with its other tenants, the Company agreed to bring the leased properties
with known environmental contamination to regulatory or contractual closure
("Closure") in an economical manner, and thereafter transfer all future
environmental risks to its tenants. Generally, upon achieving Closure at each
individual property, the Company's environmental liability under its lease for
that property will be satisfied and future remediation obligations will be the
tenant's responsibility. The Company has agreed to pay all costs relating to,
and to indemnify Marketing for, environmental liabilities and obligations
scheduled in the Master Lease. The Company will continue to seek reimbursement
from state UST remediation funds related to these environmental expenditures
where available.
8
The estimated future costs for known environmental remediation
requirements are accrued when it is probable that a liability has been incurred
and a reasonable estimate of fair value can be made. The environmental
remediation liability is estimated based on the level and impact of
contamination for each property. The accrued liability is the aggregate of the
best estimate of the fair value of cost for each component of the liability.
Recoveries of environmental costs from state UST remediation funds, with respect
to both past and future environmental spending, are accrued at fair value as
income, net of allowance for collection risk, based on estimated recovery rates
when such recoveries are considered probable. Prior to the adoption of SFAS 143,
effective January 1, 2003, if the best estimate of cost for a component of the
liability could only be identified as a range, and no amount within the range
was a better estimate than any other amount, the minimum of the range had been
accrued for that cost component rather than the estimated fair value currently
required under SFAS 143.
Environmental exposures are difficult to assess and estimate for
numerous reasons, including the extent of contamination, alternative treatment
methods that may be applied, location of the property which subjects it to
differing local laws and regulations and their interpretations, as well as the
time it takes to remediate contamination. In developing the Company's liability
for probable and reasonably estimable environmental remediation costs, on a
property by property basis, the Company considers among other things, enacted
laws and regulations, assessments of contamination including the potential
impact of the contamination and the surrounding geology, the quality of
information available, currently available technologies for treatment,
alternative methods of remediation and prior experience. These accrual estimates
are subject to significant change, and are adjusted as the remediation treatment
progresses, as circumstances change and as these contingencies become more
clearly defined and reasonably estimable. As of September 30, 2003, the Company
has remediation action plans in place for 345 (89%) of the 386 properties for
which it retained environmental responsibility. Forty-one properties (11%)
remain in the assessment phase, which when completed will likely result in a
change in estimate for those properties.
As of September 30, 2003 and January 1, 2003, the Company had accrued
$26,795,000 and $29,426,000, respectively, as management's best estimate of the
fair value of reasonably estimable environmental remediation costs. As of
September 30, 2003 and January 1, 2003, the Company had also recorded
$10,613,000 and $14,348,000, respectively, as management's best estimate for
recoveries from state UST remediation funds, net of allowance, related to
environmental obligations and liabilities. The net environmental liability of
$15,078,000 as of January 1, 2003 was subsequently accreted for the change in
present value due to the passage of time and, accordingly, $247,000 and $743,000
of accretion expense is included in environmental expenses for the quarter and
nine months ended September 30, 2003, respectively. Environmental expenditures
were $4,467,000 and recoveries from underground storage tank funds were
$1,583,000 for the nine months ended September 30, 2003.
In view of the uncertainties associated with environmental
expenditures, however, the Company believes it is possible that the fair value
of future actual net expenditures could be substantially higher than these
estimates. Adjustments to accrued liabilities for environmental remediation
costs will be reflected in the Company's financial statements as they become
probable and a reasonable estimate of fair value can be made. Although future
environmental expenses may have a significant impact on results of operations
for any single fiscal year or interim period, the Company currently believes
9
that such costs will not have a material adverse effect on the Company's
long-term financial position.
8. Property Acquisitions:
On May 1, 2003, the Company completed the acquisition of 41 retail
service station and convenience store properties that it had been leasing for
the past twelve years. The aggregate purchase price for these properties was
approximately $13.0 million, excluding transaction costs. Forty of the locations
are subleased to Marketing under the Master Lease through at least 2015. Annual
rent expense of approximately $1.3 million, and future rent escalations
scheduled through 2056, will be eliminated as a result of the acquisition. Since
the seller has agreed to indemnify the Company for historical environmental
costs, and the seller's indemnity is supported by a $1,915,000 escrow fund
established solely for that purpose, the Company's exposure to environmental
remediation expenses should not change because of the acquisition.
10
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
General
We are a real estate investment trust specializing in the ownership and
leasing of retail motor fuel, convenience store properties and petroleum
distribution terminals. We lease 969 of our 1,042 properties on a long-term net
basis to Getty Petroleum Marketing Inc. ("Marketing"), which was spun-off to our
stockholders as a separate publicly held company in March 1997. In December
2000, Marketing was acquired by a subsidiary of OAO Lukoil ("Lukoil"), one of
Russia's largest integrated oil companies.
Our financial results largely depend on rental income from Marketing,
and to a lesser extent on rental income from other tenants, and are therefore
materially dependent upon the ability of Marketing to meet its obligations under
the master lease entered into in February 1, 1997 and amended and restated
effective December 9, 2000 (the "Master Lease"). Marketing has made all required
monthly rental payments under the Master Lease when due.
Results of Operations - Quarter ended September 30, 2003 compared with the
quarter ended September 30, 2002
Net earnings for the three months ended September 30, 2003 were $9.5
million as compared with $9.0 million for the comparable prior year period.
Diluted earnings per common share for the three months ended September 30, 2003
were $0.38, as compared with $0.36 for the comparable prior year period.
Revenues from rental properties for the three months ended September
30, 2003 and 2002 were $16.7 million. Approximately $14.7 million and $14.5
million of these rentals received in the three months ended September 30, 2003
and 2002, respectively, were from properties leased to Marketing under the
Master Lease. In addition, revenues from rental properties include $1.4 million
and $1.7 million of deferred rental revenue recognized in the three months ended
September 30, 2003 and 2002, respectively, as required by generally accepted
accounting principles ("GAAP"), related to the 2% future annual rent increases
due from Marketing under the terms of the Master Lease. The aggregate minimum
rent due over the initial 15-year term of the Master Lease is recognized on a
straight-line basis rather than when due.
Other income was $0.5 million for the three months ended September 30,
2003 and was comparable to $0.6 million for the three months ended September 30,
2002.
Rental property expenses, which are principally comprised of rent
expense and real estate and other state and local taxes, were $2.6 million for
the three months ended September 2003, a decrease of $0.3 million from the three
months ended September 30, 2002. The decrease was primarily due to a reduction
in rent expense as a result of the exercise of lease purchase options, including
the purchase of 41 properties in May 2003.
Environmental expenses for the three months ended September 30, 2003
were $1.9 million a decrease of $0.5 million from the three months ended
September 30, 2002. Environmental expenses
11
for the quarter ended September 30, 2003 include $1.2 million for the net change
in estimated environmental costs, a $0.6 million decrease from the prior period.
The net change in estimated environmental costs for 2003 is due primarily to
reductions in recoveries from state underground storage tank remediation funds.
The decrease in the change in estimated environmental costs was partially offset
by accretion expense of $0.2 million recorded in the current quarter due to the
increase in present value, resulting from the passage of time, of the net
environmental liability recorded as of January 1, 2003.
General and administrative expenses for the three months ended
September 30, 2003 were $1.1 million and were comparable to $1.0 million for the
three months ended September 30, 2002.
Depreciation and amortization for the three months ended September 30,
2003 was $2.1 million and was comparable to $2.2 million for the three months
ended September 30, 2002.
Results of Operations - Nine Months Ended September 30, 2003 compared with the
nine months ended September 30, 2002
Net earnings before cumulative effect of accounting change for the nine
months ended September 30, 2003 and 2002 were $27.5 million. Diluted earnings
per common share for the nine months ended September 30, 2003 and 2002 were
$1.11.
Revenues from rental properties for the nine months ended September 30,
2003 and 2002 were $50.0 million and $50.4 million, respectively. Approximately
$44.0 million and $43.6 million of these rentals received in the nine months
September 30, 2003 and 2002, respectively, were from properties leased to
Marketing under the Master Lease. In addition, revenues from rental properties
include $4.2 million and $5.1 million of deferred rental revenue recognized in
the nine months ended September 30, 2003 and 2002, respectively.
Other income was $1.2 million for the nine months ended September 30,
2003 as compared with $2.0 million for the nine months ended September 30, 2002.
The $0.8 million decrease was primarily due to reduced gains on the dispositions
of properties recorded in the current period.
Rental property expenses, which are principally comprised of rent
expense and real estate and other state and local taxes, were $8.2 million for
the nine months ended September 2003, a decrease of $0.9 million from the nine
months ended September 30, 2002. The decrease was primarily due to a reduction
in rent expense as a result of exercise of lease purchase options, including the
purchase of 41 properties in May 2003.
Environmental expenses for the nine months ended September 30, 2003
were $5.6 million and were comparable to $5.7 million for the nine months ended
September 30, 2002. Environmental expenses for the nine months ended September
30, 2003 include $3.2 million for the net change in estimated environmental
costs, a $1.4 million decrease from the prior period. The net change in
estimated environmental costs for 2003 is due primarily to reductions in
recoveries from state underground storage tank remediation funds. The decrease
in the change in estimated environmental costs was partially offset by accretion
expense of $0.7 million recorded in the current period. In addition, the
increase in environmental expenses resulted from approximately $0.6 million of
higher legal fees and environmental litigation expenses.
General and administrative expenses for the nine months ended September
30, 2003 were $3.0 million, a decrease of $0.2 million from the nine months
ended September 30, 2002. The decrease was
12
primarily due to a $0.5 million reduction in insurance loss reserves that were
established under the Company's self-funded insurance program that was
terminated in 1997.
Depreciation and amortization for the nine months ended September 30,
2003 was $6.4 million, a decrease of $0.4 million from the nine months ended
September 30, 2002, as a result of certain assets becoming fully depreciated and
dispositions of properties partially offset by acquisitions of properties.
The cumulative effect of accounting change recorded for the nine months
ended September 30, 2003 is due to the adoption of Statement of Financial
Accounting Standards No. ("SFAS") 143 effective January 1, 2003. Accrued
environmental remediation costs and the related recoveries from state
underground storage tank funds were adjusted to their estimated fair value
resulting in a one-time cumulative effect of change in accounting charge of $0.6
million. (see "Environmental Matters" below).
Liquidity and Capital Resources
Our principal sources of liquidity are available cash and equivalents,
the cash flows from our business and our short-term uncommitted line of credit
with a bank. Management believes that dividend payments and cash requirements
for our business, including environmental remediation expenditures, capital
expenditures and debt service, can be met by cash flows from operations,
available cash and equivalents and the credit line. As of September 30, 2003, we
had a line of credit amounting to $25.0 million, of which $0.3 million was
utilized in connection with outstanding letters of credit. Borrowings under the
lines of credit are unsecured and bear interest at the prime rate or, at our
option, LIBOR plus 1.25%. The line of credit is subject to annual renewal in
June 2004 at the discretion of the bank.
In August 2003, we notified holders of Series A Participating
Convertible Redeemable Preferred stock that the Preferred Stock would be
redeemed on September 24, 2003 for $25.00 per share plus a mandatory redemption
dividend of $0.27118 per share. Prior to the redemption date, shareholders of
98% of the Preferred Stock exercised their right to convert 2,816,919 shares of
Preferred Stock into 3,186,355 shares of Common Stock at the conversion rate of
1.1312 shares of Common Stock for each share of Preferred Stock so converted,
and received cash in lieu of fractional shares of Common Stock. The remaining
48,849 shares of the outstanding Preferred Stock were redeemed for an aggregate
amount, including accrued dividends through the call date, of approximately
$1,234,000. The Preferred Stock has ceased accruing dividends and trading on the
NYSE.
We elected to be taxed as a REIT under the federal income tax laws with
the year beginning January 1, 2001. As a REIT, we are required, among other
things, to distribute at least 90% of our taxable income to shareholders each
year. We presently intend to pay common stock dividends of $0.4250 per quarter
($1.70 per share on an annual basis), and commenced doing so with the quarterly
dividend declared in the quarter ended September 30, 2003. Payment of dividends
is subject to market conditions, our financial condition and other factors, and
therefore cannot be assured. We declared quarterly cash common stock dividends
of $0.4125 per share for each of the first two quarters of 2003 and the first
three quarters of 2002. In addition to the mandatory redemption dividend of
$0.27118 per share of preferred stock redeemed and not converted, we declared
quarterly cash preferred stock dividends of $0.44375 for each of the first two
quarters of 2003 and the first three quarters of 2002. These dividends
aggregated $30.7 million and $30.3 million for the nine months ended September
30, 2003 and 2002.
13
In order to initially qualify for REIT status, we were required to make
a distribution to shareholders in an amount at least equal to our accumulated
earnings and profits from the years we operated as a taxable corporation.
Determination of accumulated earnings and profits for federal income tax
purposes is extremely complex. Should the Internal Revenue Service successfully
assert that the Company's accumulated earnings and profits were greater than the
amount distributed in 2001, the Company may fail to qualify as a REIT; however,
the Company may avoid losing its REIT status by paying a deficiency dividend to
eliminate any remaining accumulated earnings and profits. The Company may have
to borrow money or sell assets to pay such a deficiency dividend.
Property acquisitions and capital expenditures were $13.8 million for
the nine months ended September 30, 2003.
On May 1, 2003, we completed the acquisition of 41 retail service
station and convenience store properties that we had been leasing for the past
twelve years. The aggregate purchase price for these properties was
approximately $13.0 million, excluding transaction costs. Forty of the locations
are subleased to Marketing under the Master Lease through at least 2015. Annual
rent expense of approximately $1.3 million, and future rent escalations
scheduled through 2056, will be eliminated as a result of the acquisition. Since
the seller has agreed to indemnify us for historical environmental costs, and
the seller's indemnity is supported by a $1.9 million escrow fund established
solely for that purpose, our exposure to environmental remediation expenses
should not change because of the acquisition.
Critical Accounting Policies
Our accompanying consolidated financial statements include the accounts
of Getty Realty Corp. and our wholly-owned subsidiaries. The preparation of
financial statements in accordance with GAAP requires management to make
estimates, judgments and assumptions that affect amounts reported in its
financial statements. We have made our best estimates, judgments and assumptions
relating to certain amounts that are included in our financial statements,
giving due consideration to the accounting policies selected and materiality. We
do not believe that there is a great likelihood that materially different
amounts would be reported related to the application of the accounting policies
described below. Application of these accounting policies, however, involves the
exercise of judgment and use of assumptions as to future uncertainties and, as a
result, actual results could differ from these estimates, judgments and
assumptions. Our accounting policies are described in Note 1 to the consolidated
financial statements which appear in our Annual Report on Form 10-K for the year
ended December 31, 2002. We believe the more critical of our accounting policies
are as follows:
Revenue recognition--we earn revenue primarily from operating leases
with Marketing and other tenants. We recognize income under the Master Lease
with Marketing on the straight-line method, which effectively recognizes
contractual lease payments evenly over the initial fifteen-year term of the
lease. A critical assumption in applying this accounting method is that the
tenant will make all contractual lease payments during the initial lease term
and that the deferred rent receivable of $19.3 million recorded as of September
30, 2003 will be collected when due, in accordance with the 2% annual rent
escalations provided for in the Master Lease. Accordingly, we may be required to
reverse a portion of the recorded deferred rent receivable if it becomes
apparent that a property will be disposed of before the end of the initial lease
term or if Marketing fails to make its contractual lease payments.
14
Impairment of long-lived assets--real estate assets represent
"long-lived" assets for accounting purposes. We review the recorded value of
long-lived assets for impairment in value whenever any events or changes in
circumstances indicate that the carrying amount of the assets may not be
recoverable. We may become aware of indicators of potentially impaired assets
upon tenant or landlord lease renewals, upon receipt of notices of potential
governmental takings and zoning issues, or upon other events that occur in the
normal course of business that would cause us to review the operating results of
the property. We believe our real estate assets are not carried at amounts in
excess of their estimated net realizable fair value amounts.
Income taxes--our financial results generally will not reflect
provisions for current or deferred federal income taxes since we elected to be
taxed as a REIT effective January 1, 2001. Our intention is to operate in a
manner that will allow us to continue to be taxed as a REIT and, as a result, we
do not expect to pay substantial corporate-level federal income taxes. Many of
the REIT requirements, however, are highly technical and complex. If we were to
fail to meet the requirements, we may be subject to federal income tax. Certain
states do not follow the federal REIT rules and we have included provisions for
these taxes in rental property expenses.
Environmental costs and recoveries from state underground storage tank
funds--we provide for the estimated fair value of future environmental
remediation costs when it is probable that a liability has been incurred and a
reasonable estimate of fair value can be made (see "Environmental Matters"
below). Since environmental exposures are difficult to assess and estimate and
knowledge about these liabilities is not known upon the occurrence of a single
event, but rather is gained over a continuum of events, we believe that it is
appropriate that our accrual estimates are adjusted as the remediation treatment
progresses, as circumstances change and as environmental contingencies become
more clearly defined and reasonably estimable. Recoveries of environmental costs
from state underground storage tank remediation funds, with respect to past and
future spending, are accrued as income, net of allowance for collection risk,
based on estimated recovery rates when such recoveries are considered probable.
A critical assumption in accruing for these recoveries is that the state
underground storage tank fund programs will be administered and funded in the
future in a manner that is consistent with past practices and that future
environmental spending will be eligible for reimbursement under these programs.
Effective January 1, 2003, environmental liabilities and related assets are
measured based on their expected future cash flows which have been adjusted for
inflation and discounted to present value.
Environmental Matters
We are subject to numerous existing federal, state and local laws and
regulations, including matters relating to the protection of the environment.
Currently, environmental expenses are principally attributable to remediation,
monitoring and governmental agency reporting incurred in connection with
contaminated properties. In prior periods, a larger portion of the expenses also
included soil disposal and the replacement or upgrading of underground storage
tanks ("USTs") to meet federal, state and local environmental standards, as well
as routine monitoring and tank testing. For the nine months ended September 30,
2003 and September 30, 2002, net environmental expenses included in our
consolidated statements of operations amounted to $5.6 million and $5.7 million,
respectively, which amounts were net of estimated net recoveries from state UST
remediation funds.
Under the Master Lease with Marketing, and in accordance with leases
with other tenants, we agreed to bring the leased properties with known
environmental contamination to regulatory or
15
contractual closure ("Closure") in an economical manner and, thereafter,
transfer all future environmental risks to our tenants. Generally, upon
achieving Closure at an individual property, our environmental liability under
the lease for that property will be satisfied and future remediation obligations
will be the responsibility of our tenant. We have agreed to pay all costs
relating to, and to indemnify Marketing for, environmental liabilities and
obligations scheduled in the Master Lease. We will continue to seek
reimbursement recoveries from certain state UST remediation funds related to
these environmental expenditures where available.
We have also agreed to provide limited environmental indemnification to
Marketing for pre-existing environmental conditions at nine terminals owned by
us. Under the indemnification agreement, Marketing will pay the first $1.5
million of costs and expenses incurred in connection with remediating any such
pre-existing conditions, Marketing will share equally with us the next $8.5
million of those costs and expenses and Marketing will pay all additional costs
and expenses in excess of $10.0 million. Our indemnification responsibility
under this agreement is capped at $4.25 million and expires in December 2010. We
have not accrued a liability in connection with this indemnification agreement
since it is uncertain that any significant amounts will be required to be paid
under the agreement.
The estimated future costs for known environmental remediation
requirements are accrued when it is probable that a liability has been incurred
and a reasonable estimate of fair value can be made. The environmental
remediation liability is estimated based on the level and impact of
contamination for each property. Recoveries of environmental costs from state
underground storage tank remediation funds, with respect to both past and future
environmental spending, are accrued at fair value as income, net of allowance
for collection risk, based on estimated recovery rates when such recoveries are
considered probable. The accrued liability is the aggregate of the best estimate
of the fair value of cost for each component of the liability. Prior to the
adoption of SFAS 143 effective January 1, 2003, if the best estimate of cost for
a component of the liability could only be identified as a range, and no amount
within the range was a better estimate than any other amount, the minimum of the
range was accrued for that cost component rather than the estimated fair value
currently required under SFAS 143.
Environmental exposures are difficult to assess and estimate for
numerous reasons, including the extent of contamination, alternative treatment
methods that may be applied, location of the property which subjects it to
differing local laws and regulations and their interpretations, as well as the
time it takes to remediate contamination. In developing our liability for
probable and reasonably estimable environmental remediation costs, on a property
by property basis, we consider among other things, enacted laws and regulations,
assessments of contamination including the potential impact of the contamination
and the surrounding geology, the quality of information available, currently
available technologies for treatment, alternative methods of remediation and
prior experience. These accrual estimates are subject to significant change, and
are adjusted as the remediation treatment progresses, as circumstances change
and as these contingencies become more clearly defined and reasonably estimable.
As of September 30, 2003, we have remediation action plans in place for 345
(89%) of the 386 properties for which we retained environmental responsibility.
Forty-one properties (11%) remain in the assessment phase, which when completed
will likely result in a change in estimate for those properties.
As of September 30, 2003 and January 1, 2003, we had accrued $26.8
million and $29.4 million, respectively, as management's best estimate of the
fair value of reasonably estimable environmental
16
remediation costs. As of September 30, 2003 and January 1, 2003, we had also
recorded $10.6 million and $14.3 million, respectively, as management's best
estimate for net recoveries from state UST remediation funds, net of allowance,
related to environmental obligations and liabilities. The net environmental
liability of $15.1 million as of January 1, 2003 was subsequently accreted for
the change in present value due to the passage of time and, accordingly, $0.7
million of accretion expense is included in environmental expenses for the nine
months ended September 30, 2003. Environmental expenditures and recoveries from
underground storage tank funds were $4.5 million and $1.6 million, respectively,
for the nine months ended September 30, 2003. During 2003, we estimate that our
net environmental remediation spending will be approximately $4.1 million and
our business plan for 2003 reflects a net change in estimated remediation costs
of approximately $5.0 million.
In view of the uncertainties associated with environmental
expenditures, however, we believe it is possible that the fair value of future
actual net expenditures could be substantially higher than these estimates.
Adjustments to accrued liabilities for environmental remediation costs will be
reflected in our financial statements as they become probable and a reasonable
estimate of fair value can be made. Although future environmental costs may have
a significant impact on results of operations for any single fiscal year or
interim period, we believe that such costs will not have a material adverse
effect on our long-term financial position.
We cannot predict what environmental legislation or regulations may be
enacted in the future or how existing laws or regulations will be administered
or interpreted with respect to products or activities to which they have not
previously been applied. We cannot predict if state underground storage tank
fund programs will be administered and funded in the future in a manner that is
consistent with past practices and if future environmental spending will
continue to be eligible for reimbursement under these programs. Compliance with
more stringent laws or regulations, as well as more vigorous enforcement
policies of the regulatory agencies or stricter interpretation of existing laws
which may develop in the future, could have an adverse effect on our financial
position, or that of our tenants, and could require substantial additional
expenditures for future remediation.
In September 2003, we were notified by the State of New Jersey
Department of Environmental Protection that we are one of approximately 60
potentially responsible parties for natural resources damages resulting from
discharges of hazardous substances into the Lower Passaic River. The definitive
list of potentially responsible parties and their actual responsibility for the
alleged damages, the aggregate cost to remediate the Lower Passaic River, the
amount of natural resource damages and the method of allocating such amounts
among the potentially responsible parties have not been determined. Accordingly,
our ultimate legal and financial liability, if any, cannot be estimated with any
certainty at this time.
17
In October 2003, we were notified that we were made party to various
cases in New York and Connecticut brought by local water providers or agencies.
These cases allege various theories of liability due to contamination of
groundwater with MTBE as the basis for claims seeking compensatory and punitive
damages. Each case names approximately 50 petroleum refiners, manufacturers,
distributors and retailers of MTBE, or gasoline containing MTBE, as defendants.
The accuracy of the allegations as they relate to us, our defenses to such
claims, the aggregate amount of damages, the definitive list of defendants and
the method of allocating such amounts among the defendants have not been
determined. Accordingly, our ultimate legal and financial liability, if any,
cannot be estimated with any certainty at this time.
Forward Looking Statements
Certain statements in this Quarterly Report may constitute
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. When we use the words "believes", "expects",
"plans", "projects", "estimates" and similar expressions, we intend to identify
forward-looking statements. These forward-looking statements involve known and
unknown risks, uncertainties and other factors which may cause our actual
results, performance and achievements of to be materially different from any
future results, performance or achievements expressed or implied by these
forward-looking statements. These factors are more fully detailed in our Annual
Report on Form 10-K for the year ended December 31, 2002 and include, but are
not limited to: risks associated with owning and leasing real estate generally;
dependence on Marketing as a tenant and on rentals from companies engaged in the
petroleum marketing and convenience store businesses; competition for properties
and tenants; risk of tenant non-renewal; the effects of regulation; our
expectations as to the cost of completing environmental remediation; and the
impact of our electing to be taxed as a REIT, including subsequent failure to
qualify as a REIT and future dependence on external sources of capital.
As a result of these and other factors, we may experience material
fluctuations in future operating results on a quarterly or annual basis, which
could materially and adversely affect our business, financial condition,
operating results and stock price. An investment in our stock involves various
risks, including those mentioned above and elsewhere in this report and those
which are detailed from time to time in our other filings with the Securities
and Exchange Commission.
You should not place undue reliance on forward-looking statements,
which reflect our view only as of the date hereof. We undertake no obligation to
publicly release revisions to these forward-looking statements that reflect
future events or circumstances or reflect the occurrence of unanticipated
events.
Item 3. Quantitative and qualitative disclosures about market risk
Information in response to this item is incorporated by reference from
Note 6 of the Notes to Consolidated Financial Statements in this Form 10-Q.
Item 4. Controls and procedures
The Company maintains disclosure controls and procedures that are
designed to ensure that information required to be disclosed in the Company's
Exchange Act reports is recorded, processed, summarized and reported within the
18
time periods specified in the Commission's rules and forms, and that such
information is accumulated and communicated to the Company's management,
including its Chief Executive Officer and Chief Financial Officer, as
appropriate, to allow timely decisions regarding required disclosure. In
designing and evaluating the disclosure controls and procedures, management
recognized that any controls and procedures, no matter how well designed and
operated, can provide only reasonable assurance of achieving the desired control
objectives, and management necessarily was required to apply its judgment in
evaluating the cost-benefit relationship of possible controls and procedures.
As required by SEC Rule 13a-15(b), the Company carried out an
evaluation, under the supervision and with the participation of the Company's
management, including the Company's Chief Executive Officer and the Company's
Chief Financial Officer, of the effectiveness of the design and operation of the
Company's disclosure controls and procedures as of the end of the quarter
covered by this report. Based on the foregoing, the Company's Chief Executive
Officer and Chief Financial Officer concluded that the Company's disclosure
controls and procedures were effective at the reasonable assurance level.
There has been no change in the Company's internal controls over
financial reporting during the Company's most recent fiscal quarter that has
materially affected, or is reasonably likely to materially affect, the Company's
internal controls over financial reporting.
19
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
In April 2003, the State of Maine Department of Environmental
Protection made a demand on us to reimburse the State approximately $672,660 for
costs expended to remediate a gasoline discharge that occurred at a service
station in 1988. In July 2003, we wrote to the State stating that we do not
believe that we are the party responsible for the discharge. The matter was
referred to the Office of the Attorney General for enforcement and in October
2003 we met with the State and the Office of the Attorney General to discuss the
State's basis for its reimbursement claim and our defense to such claim. To
date, the Office of the Attorney General has not commenced any action to enforce
the State's claim for reimbursement.
In July 2003, the State of Maine Department of Environmental Protection
made a demand on us to reimburse the State approximately $203,300 for costs
expended to remediate a gasoline discharge that occurred at a service station in
the late 1980s. We reviewed the State's file in September 2003 and, at this
time, we are uncertain as to our responsibility for the discharge and
reimbursement claimed by the State. To date, we have not received any notice of
any referral of the claim to the Office of the Attorney General for enforcement.
In September 2003, the State of New Jersey Department of Environmental
Protection, served us, along with approximately 60 other companies, with a
Directive and Notice to Insurers, to assess natural resource damages resulting
from discharges of hazardous substances into the Lower Passaic River, provide
interim compensatory restoration and to provide assurance that the cleanup and
removal of the discharges will be performed in a timely and proper fashion. The
definitive list of potentially responsible parties and their actual
responsibility for the alleged damages, the aggregate cost to remediate the
Lower Passaic River, the amount of natural resource damages and the method of
allocating such amounts among the potentially responsible parties have not been
determined. This proceeding is in its initial stages and we are evaluating our
options with respect to this matter.
In October 2003, we were made a party to several lawsuits brought by
water suppliers in Nassau County, NY and East Hampton, CT. These cases allege
various theories of liability due to contamination of groundwater with MTBE as
the basis for claims seeking compensatory and punitive damages. Each case names
approximately 50 petroleum refiners, manufacturers, distributors and retailers
of MTBE, or gasoline containing MTBE, as defendants. The accuracy of the
allegations as to us, our defenses to such claims, the aggregate amount of
damages, the definitive list of defendants and the method of allocating such
amounts among the defendants have not been determined. We will vigorously defend
these matters.
20
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
Designation of Exhibit
in this Quarterly Report
on Form 10-Q Description of Exhibit
------------ ----------------------
31 Certifications of Chief Executive Officer and Chief
Financial Officer pursuant to Section 302 of Sarbanes-
Oxley Act of 2002
32 Certifications of Chief Executive Officer and Chief
Financial Officer pursuant to 18 U.S.C. Section 1350 (*)
(*) These certifications are being furnished solely to accompany the
Report pursuant to 18 U.S.C. Section 1350, and are not being filed for
purposes of Section 18 of the Securities Exchange Act of 1934, as
amended, and are not to be incorporated by reference into any filing of
the Company, whether made before or after the date hereof, regardless
of any general incorporation language in such filing.
(b) Reports filed on Form 8-K:
On August 11, 2003, the Company announced that its Board of Directors
approved the redemption of all outstanding shares of Preferred Stock
and declared certain dividends. The press release related thereto was
filed under Item 5 "Other Events" on Form 8-K.
On September 26, 2003, the Company announced the results of the
redemption of its Series A Participating Convertible Redeemable
Preferred Stock. The press release related thereto was filed under Item
5 "Other Events" on Form 8-K.
On November 3, 2003, the Company announced its earnings for the quarter
and nine months ended September 30, 2003, which was furnished under
Item 12 "Results of Operations and Financial Condition" on Form 8-K.
21
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GETTY REALTY CORP.
------------------
(Registrant)
Dated: November 4, 2003 BY: /s/ Thomas J. Stirnweis
-----------------------
(Signature)
THOMAS J. STIRNWEIS
Vice President, Treasurer and
Chief Financial Officer
Dated: November 4, 2003 BY: /s/ Leo Liebowitz
-----------------
(Signature)
LEO LIEBOWITZ
President and Chief Executive
Officer
22