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SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2003
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
COMMISSION FILE NUMBER 001-13777
GETTY REALTY CORP.
------------------
(Exact name of registrant as specified in its charter)
Maryland 11-3412575
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(State or other jurisdiction of incorporation or organization) (I.R.S. employer identification no.)
125 Jericho Turnpike, Suite 103, Jericho, New York 11753
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (516) 478-5400
Securities registered pursuant to Section 12(b) of the Act:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
- -------------------- -----------------------------------------
Common Stock, $0.01 par value New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Indicate by check mark whether 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 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 if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Exchange Act Rule 12b-2). Yes [X] No [ ]
The aggregate market value of the voting stock held by nonaffiliates (15,726,356
shares of common stock) of the Company was $351,012,266 as of June 30, 2003.
The registrant had outstanding 24,664,384 shares of common stock as of March 1,
2004.
DOCUMENTS INCORPORATED BY REFERENCE
DOCUMENT PART OF FORM 10-K
- ----------------------------------------------------------------------- -----------------
Annual Report to Shareholders for the year ended December 31, 2003 (the II
"Annual Report") (pages 6 through 15 and 17 through 32)
Definitive Proxy Statement for the 2004 Annual Meeting of Stockholders III
(the "Proxy Statement") which will be filed by the registrant on or
prior to 120 days following the end of the registrant's year ended
December 31, 2003 pursuant to Regulation 14A.
PART I
Item 1. Business
General
Getty Realty Corp. is one of the largest real estate investment trusts
("REIT") in the United States specializing in the ownership and leasing of
retail motor fuel and convenience store properties and petroleum distribution
terminals. As of December 31, 2003, we owned 772 properties and leased 256
additional properties in thirteen states located principally in the northeastern
United States. Nine hundred fifty-eight of our properties are leased on a
long-term basis to Getty Petroleum Marketing Inc. ("Marketing"), a wholly owned
subsidiary of OAO LUKoil, one of Russia's largest integrated oil companies.
Marketing is responsible for the cost of all taxes, maintenance, repair,
insurance and other operating expenses and for managing the actual operations
conducted at these properties.
We are self-administered and self-managed through our experienced
management, which has owned, leased and managed gasoline stations and
convenience store properties for more than forty-eight years. Our executive
officers are exclusively engaged in the day-to-day management of our real
estate. We administer nearly all management functions for our properties,
including leasing, legal, data processing, finance and accounting. We intend to
invest in real estate and real estate related investments when such
opportunities arise consistent with our current investment portfolio.
Our founders started the business in 1955 with the ownership of one
gasoline service station in New York City. As our business grew, we combined
real estate ownership, leasing and management with actual service station
operation. We held our initial public offering in 1971 under the name Power Test
Corp. In 1985, we acquired from Texaco the petroleum distribution and marketing
assets of Getty Oil Company in the northeastern United States and assumed the
Getty name. In addition, we acquired the Getty(R) trademarks for use in real
estate and petroleum marketing operations in the United States. We became one of
the largest independent owner/operators of petroleum marketing assets in the
country, serving retail and wholesale customers through a distribution and
marketing network of Getty and other branded retail motor fuel and convenience
store properties.
In 1997, we completed the spin-off of our petroleum marketing business
to our shareholders, who received a tax-free dividend of one share of common
stock of Marketing for each share of our common stock. Following the spin-off,
Marketing held the assets and liabilities of our petroleum marketing operations
and a portion of our home heating oil business. In 1998, we acquired Power Test
Investors Limited Partnership (the "Partnership"), thereby acquiring fee title
to 295 properties we had previously leased from the Partnership and which the
Partnership had acquired in 1985 from Texaco. We later sold the remaining
portion of our home heating oil business. As a result, we are now exclusively
engaged in the ownership, leasing and management of real estate assets,
principally used in the petroleum marketing industry.
In December 2000, Marketing was acquired by a U.S. subsidiary of OAO
LUKoil. In connection with Lukoil's acquisition of Marketing, we renegotiated
our long-term master lease and other arrangements with Marketing. Under the
master lease, as of December 31, 2003, Marketing leases 949 retail motor fuel
and convenience store properties and nine petroleum distribution terminals
from us. The master lease has an initial term expiring in December 2015, and
generally provides Marketing with three renewal options of ten years each and a
final renewal option of three years and ten months extending to 2049. Each of
the renewal options may be exercised only on an "all or nothing" basis. We
expect to receive $59.0 million in lease rental payments from Marketing in 2004,
with annual two percent rental increases in subsequent years. The master lease
is a "triple-net" lease, under which Marketing is responsible for the cost of
all taxes, maintenance, repair, insurance and other operating expenses. We own
the Getty(R) trademarks for use in real estate and petroleum marketing
operations in the United States, which we have licensed to Marketing on an
exclusive basis in its current northeastern U.S. marketing territory. We have
also licensed the trademarks to Marketing on a non-exclusive basis outside that
territory, subject to a gallonage-based royalty.
In August 2001, we closed a public offering of 8,855,000 shares of our
common stock. We used $64.1 million of the $131.5 million net proceeds of the
offering to pay a special one-time "earnings and profits" (as defined by the
Internal Revenue Code) cash distribution to preferred and common shareholders
and $37.4 million to repay substantially all our debt, leaving $30.0 million in
cash for general corporate purposes, including the acquisition of
-2-
additional properties. In addition, our shareholders approved a charter
amendment to include typical REIT provisions.
Accordingly, we elected to be taxed as a REIT beginning January 1,
2001. A REIT is a corporation, or a business trust that would otherwise be taxed
as a corporation, which meets the requirements of the Internal Revenue Code. The
Internal Revenue Code permits a qualifying REIT to deduct dividends paid,
thereby effectively eliminating corporate level federal income tax and making
the REIT a pass-through vehicle for federal income tax purposes. To meet the
requirements of the Internal Revenue Code, a REIT must, among other things,
invest substantially all of its assets in interests in real estate (including
mortgages and other REITs) or cash and government securities, derive most of its
income from rents from real property or interest on loans secured by mortgages
on real property, and distribute to shareholders annually a substantial portion
of its otherwise taxable income. As a REIT, we are required to distribute at
least ninety percent of our taxable income to our shareholders each year and
would be subject to corporate level federal income taxes on any taxable income
that is not distributed.
Access to our filings with the Securities and Exchange Commission and corporate
governance documents
Our website address is www.gettyrealty.com. Our address, phone number
and a list of our officers is available on our website. Our website contains a
hyperlink to the SEC's EDGAR database where you can access, free-of-charge, our
annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on
Form 8-K, and all amendments to these reports as soon as reasonably practicable
after such reports are filed. Our website also contains our business conduct
guidelines, corporate governance guidelines and the charters of the
Compensation, Nominating and Audit Committees of our Board of Directors. We also
will provide copies of these reports and corporate governance documents
free-of-charge upon request, addressed to Getty Realty Corp., 125 Jericho
Turnpike, Suite 103, Jericho, NY 11753, Attn: Investor Relations.
Real Estate Business
Nine hundred fifty-eight of our properties are leased to Marketing. The
operators of the properties leased to Marketing and our other tenants primarily
consist of retailers engaged in the sale of gasoline and other motor fuel
products, convenience products and automotive repair services. Over the past
decade, these lines of business have matured into a single industry as operators
increased their emphasis on co-branded locations with multiple uses. The
combination of petroleum product sales with other offerings, particularly
convenience products, has helped provide one-stop shopping for consumers and
represents a driving force behind the industry's growth in recent years.
Revenues from rental properties for the year ended December 31, 2003
were $66.6 million. We received lease payments from Marketing aggregating
approximately $58.7 million (or 96% of the $61.1 million total lease payments we
received from all our rental properties). In addition, we recognized an
additional $5.5 million of deferred rental income due to the straight-line
method of accounting for the lease with Marketing. We are materially dependent
upon the ability of Marketing to meet its obligations under the master lease.
Marketing's financial results depend largely on retail 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.
As of December 31, 2003, we owned fee title to 766 retail motor fuel
and convenience store properties and six petroleum distribution terminals. We
also leased 256 retail motor fuel and convenience store properties and three
bulk plants. In addition, we lease 4,100 square feet of office space at 125
Jericho Turnpike, Jericho, New York, which is used for our corporate
headquarters. We believe our network of retail motor fuel and convenience store
properties and terminal properties across the northeastern United States is
unique and comparable networks of properties are not readily available for
purchase or lease from other owners or landlords. Many of our properties are
located at highly trafficked urban intersections or conveniently close to
highway on- and off-ramps. Furthermore, obtaining the permits necessary to
operate a network of petroleum marketing properties such as ours would be a
difficult, time consuming and costly process for any potential competitor. Our
typical property used as a retail motor fuel and convenience store is located on
between 1/2 and 3/4 acres of land in metropolitan areas in the northeastern
United States. Approximately two-thirds of our retail motor fuel properties have
repair bays (typically two or three bays per station) and nearly half have
convenience stores, canopies or both. The title to substantially all of our
owned properties is in the names of Leemilt's Petroleum, Inc. and Power Test
Realty Company Limited Partnership, each of which is our wholly owned
subsidiary. Leemilt's
-3-
Petroleum Inc. and Getty Properties Corp., also our wholly owned subsidiary, are
the lessees of substantially all of the properties we lease from third parties.
Regulation
We are subject to numerous federal, state and local laws and
regulations. The costs related to compliance with those laws and regulations
have not had, and are not expected to have, a material adverse effect on our
long-term financial position, although these costs may have a significant impact
on our results of operations or liquidity for any single fiscal year or interim
period.
Petroleum properties are governed by numerous federal, state and local
environmental laws and regulations. These laws have included (i) requirements to
report to governmental authorities discharges of petroleum products into the
environment and, under certain circumstances, to remediate the soil and/or
groundwater contamination pursuant to governmental order and directive, (ii)
requirements to remove and replace underground storage tanks that have exceeded
governmental-mandated age limitations and (iii) the requirement to provide a
certificate of financial responsibility with respect to claims relating to
underground storage tank failures.
In recent years, environmental expenses have been attributable to
remediation, monitoring, and governmental agency reporting incurred in
connection with contaminated sites. In prior periods, a larger portion of the
expenses also included soil disposal and the replacement or upgrading of
underground storage tank systems ("USTs") to meet federal, state and local
environmental standards. 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 within applicable standards
and to regulatory or contractual closure ("Closure") in an efficient and
economical manner. 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 from state UST remediation funds related to these
environmental expenditures where available. As of December 31, 2003, we have
regulatory approved remediation action plans in place for 346 (91%) of the 380
properties for which we retain remediation responsibility and the remaining 34
properties (9%) were in the assessment phase.
We believe that we are in substantial compliance with federal, state
and local provisions enacted or adopted pertaining to environmental matters.
Although we are unable to predict what legislation or regulations may be adopted
in the future with respect to environmental protection and waste disposal,
existing legislation and regulations have had no material adverse effect on our
competitive position. See "Item 3. Legal Proceedings."
Personnel
As of December 31, 2003, we had sixteen employees.
Special Factors Regarding Forward-Looking Statements
Certain statements in this Annual Report on Form 10-K 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 to be materially different from any future
results, performance or achievements expressed or implied by these
forward-looking statements.
These factors associated with Getty include, but are not limited to:
We are subject to risk inherent in owning and leasing real estate.
We are subject to varying degrees of risk generally related to leasing
and owning real estate. In addition to general risks related to owning
properties used in the petroleum marketing industry, risks include, among
others, liability for long-term lease obligations, changes in regional and local
economic conditions, local real estate market
-4-
conditions, changes in interest rates and in the availability, cost and terms of
financing, the potential for uninsured casualty and other losses, the impact of
present or future environmental legislation and compliance with environmental
laws (as discussed below), and adverse changes in zoning laws and other
regulations, many of which are beyond our control. Moreover, real estate
investments are relatively illiquid, which means that our ability to vary our
portfolio of properties in response to changes in economic and other conditions
may be limited.
Our revenues are primarily dependent on the performance of Getty Petroleum
Marketing Inc. and our other tenants in the petroleum marketing industry.
We rely on leasing retail motor fuel and convenience store properties,
primarily to Marketing, for substantially all of our rental revenues (96.1% for
the year ended December 31, 2003). Accordingly, our rental revenues will be
dependent to a large degree on the economic performance of Marketing and of the
petroleum marketing industry, and any factor that adversely affects Marketing or
other lessees may have a material adverse effect on us. Marketing is wholly
owned by a subsidiary of Lukoil. Lukoil has a limited history of operating in
the United States. In the event that Marketing was unable to perform its
obligations under its master lease with us, our financial results would be
materially adversely affected. Although Marketing is a wholly owned subsidiary
of Lukoil, no assurance can be given that Lukoil will cause Marketing to fulfill
all of its obligations under the master lease.
Marketing's earnings and cash flow from operations depend upon rental
income from its tenants and the sale of refined petroleum products at margins in
excess of fixed and variable expenses. A large, rapid increase in petroleum
prices would adversely affect Marketing's profitability and cash flow if the
increased cost of petroleum products could not be passed on to Marketing's
customers or if automobile consumption of gasoline were to significantly
decline. Petroleum products are commodities whose prices depend on numerous
factors that affect the supply of and demand for petroleum products. The prices
paid by Marketing and other petroleum marketers for products are affected by
global, national and regional factors. We cannot be certain how these factors
will affect petroleum product prices or supply in the future, or how in
particular they will affect Marketing or our other tenants. We believe that
Marketing currently relies on various suppliers for the purchase of refined
petroleum products.
Compliance with environmental regulations may be costly.
The real estate business and the petroleum products industry are
subject to numerous federal, state and local laws and regulations, including
matters relating to the protection of the environment. Under certain
environmental laws, a current or previous owner or operator of real estate may
be liable for contamination resulting from the presence or discharge of
hazardous or toxic substances or petroleum products at, on or under such
property, and may be required to investigate and clean-up such contamination.
Such laws typically impose liability and clean-up responsibility without regard
to whether the owner or operator knew of or caused the presence of the
contaminants, and the liability under such laws has been interpreted to be joint
and several unless the harm is divisible and there is a reasonable basis for
allocation of responsibility. For example, liability may arise as a result of
the historical use of a property or from the migration of contamination from
adjacent or nearby properties. Any such contamination or liability may also
reduce the value of the property. In addition, the owner or operator of a
property may be subject to claims by third parties based on injury, damage
and/or costs, including investigation and clean-up costs, resulting from
environmental contamination present at or emanating from a property. The
properties owned or controlled by us are leased primarily as retail motor fuel
and convenience store properties, and therefore may contain, or may have
contained, underground storage tanks for the storage of petroleum products and
other hazardous or toxic substances, which creates a potential for the release
of such products or substances. Some of the properties may be adjacent to or
near properties that have contained or currently contain underground storage
tanks used to store petroleum products or other hazardous or toxic substances.
In addition, certain of the properties are on, adjacent to or near properties
upon which others have engaged or may in the future engage in activities that
may release petroleum products or other hazardous or toxic substances.
We have agreed to provide limited environmental indemnification, capped
at $4.25 million and expiring in 2010, to Marketing for certain pre-existing
conditions at the six terminals we own. 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 over $10.0 million. 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.
-5-
As of December 31, 2003 and January 1, 2003, we had accrued $23.6
million and $29.4 million, respectively, as management's best estimate of the
fair value of reasonably estimable environmental remediation costs. As of
December 31, 2003 and January 1, 2003, we had also recorded $7.5 million and
$14.3 million, 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 $15.1 million
recorded as of January 1, 2003 was subsequently accreted for the change in
present value due to the passage of time and accordingly, $1.3 million of
accretion expense is included in environmental expenses for the year ended
December 31, 2003. Environmental expenditures and recoveries from underground
storage tank funds were $6.6 million and $2.1 million, respectively for the year
ended December 31, 2003. During 2004, we estimate that our net environmental
spending will be approximately $6.0 million and our business plan for 2004
reflects a net change in estimated remediation costs and accretion expense 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.
Additional information with respect to environmental remediation costs
and estimates is set forth on pages 13 and 14, and in note 7 to the financial
statements on page 26, of our Annual Report to Shareholders filed as Exhibit 13
to this annual report and incorporated by reference herein.
We are defending pending lawsuits and claims and are subject to material losses.
We are subject to various lawsuits and claims, including litigation
related to environmental matters, damages resulting from leaking UST and toxic
tort claims. The ultimate resolution of certain matters cannot be predicted
because considerable uncertainty exists both in terms of the probability of loss
and the estimate of such loss. Our ultimate liabilities resulting from such
lawsuits and claims, if any, may be material to our results of operations in the
period in which they are recognized.
Our properties are concentrated in the northeastern United States, and adverse
conditions in that region, in particular, could negatively impact our
operations.
A significant portion of the properties we own and lease are located in
the northeastern United States. Because of the concentration of our properties
in that region, in the event of adverse economic conditions in that region, we
would likely experience higher risk of default on payment of rent payable to us
(including under the master lease) than if our properties were more
geographically diversified. Additionally, the rents on our properties may be
subject to a greater risk of default than other properties in the event of
adverse economic, political, or business developments or natural hazards that
may affect the northeastern United States and the ability of our lessees to make
rent payments. In the event of any natural disaster, our ability to pay
dividends could be adversely affected.
We are in a competitive business.
The real estate industry is highly competitive. Where we own
properties, we compete for tenants with a large number of real estate property
owners and other companies that sublet properties. Our principal means of
competition are rents charged in relation to the income producing potential of
the location. In addition, we expect
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other major real estate investors with significant capital will compete with us
for attractive investment opportunities. These competitors include petroleum
manufacturing, distributing and marketing companies, other REITs, investment
banking firms and private institutional investors. This competition has
increased prices for commercial properties and may impair our ability to make
suitable property acquisitions on favorable terms in the future.
Our future cash flow is dependent on renewal of leases and reletting of our
space.
We are subject to risks that leases may not be renewed, locations may
not be relet or the terms of renewal or reletting (including the cost of
required renovations) may be less favorable than current lease terms. In
addition, numerous properties compete with our properties in attracting tenants
to lease space. The number of competitive properties in a particular area could
have a material adverse effect on our ability to lease our properties or newly
acquired properties and on the rents charged. If we were unable to promptly
relet or renew the leases for all or a substantial portion of these locations,
or if the rental rates upon such renewal or reletting were significantly lower
than expected, our cash flow could be adversely affected. The master lease has
an initial term expiring in December 2015, and generally provides Marketing with
three renewal options of ten years each and a final renewal option of three
years and ten months extending to 2049. Each of the renewal options may be
exercised only on an "all or nothing" basis.
We may acquire or develop new properties, and this may create risks.
We may acquire or develop properties or acquire other real estate
companies when we believe that an acquisition or development matches our
business strategies. We might not succeed in consummating desired acquisitions
or in completing developments on time or within our budget. We also might not
succeed in leasing newly developed or acquired properties at rents sufficient to
cover their costs of acquisition or development and operations.
We are subject to losses that may not be covered by insurance.
Marketing, and other tenants, as the lessee of our properties, are
required to provide insurance for such properties, including casualty,
liability, fire and extended coverage in amounts and on other terms as set forth
in our master leases. There are certain types of losses (such as certain
environmental liabilities, earthquakes, hurricanes, floods and civil disorders)
which are either uninsurable or not economically insurable in our judgment. The
destruction of, or significant damage to, or significant liabilities arising out
of conditions at our properties due to an uninsured cause would result in an
economic loss and could result in us losing both our investment in, and
anticipated profits from, such properties. When a loss is insured, the coverage
may be insufficient in amount or duration, or a lessee's customers may be lost,
such that the lessee cannot resume its business after the loss at prior levels
or at all, resulting in reduced rent or a default under its lease. Any such loss
relating to a large number of properties could have a material adverse effect on
our financial condition. We carry insurance against certain risks and in such
amounts as we believe are customary for businesses of our kind. However, as the
costs and availability of insurance change, we may decide not to be covered
against certain losses where, in the judgment of management, the insurance is
not warranted due to cost or availability of coverage or the remoteness of
perceived risk. There is no assurance that our insurance against loss will be
sufficient.
Failure to qualify as a REIT would have adverse consequences to our
shareholders.
We have elected to be taxed as a REIT beginning January 1, 2001. We
cannot, however, guarantee that we will continue to qualify in the future as a
REIT. In order to initially qualify for REIT status, we were required, among
other items, to make a distribution to shareholders in an amount at least equal
to our accumulated "earnings and profits" (as defined by the Internal Revenue
Code from the years we operated as a taxable corporation. On August 1, 2001, we
paid the earnings and profits distribution to our shareholders in an amount that
we estimated was required in order for us to qualify as a REIT. Determination of
accumulated earnings and profits for federal income tax purposes is extremely
complex. Should the Internal Revenue Service successfully assert that our
accumulated earnings and profits were greater than the amount distributed, we
may fail to qualify as a REIT; however, we may avoid losing our REIT status by
paying a deficiency dividend to eliminate any remaining accumulated earnings and
profits. We may have to borrow money or sell assets to pay such a deficiency
dividend. We cannot give any assurance that new legislation, regulations,
administrative interpretations or court decisions will not significantly change
the requirements relating to our qualification. If we fail to qualify as a REIT,
we will again be subject to
-7-
federal income tax at regular corporate rates, we would be required to pay
significant income taxes and would have less money available for our operations
and distributions to shareholders. This would likely have a significant adverse
effect on the value of our securities.
As a REIT, we are dependent on external sources of capital.
To maintain our status as a REIT, we must distribute to our
shareholders each year at least ninety percent of our net taxable income,
excluding any net capital gain. Because of these distribution requirements, it
is not likely that we will be able to fund all future capital needs, including
acquisitions, from income from operations. Therefore, we will have to rely on
third party sources of capital, which may or may not be available on favorable
terms or at all. Our access to third party sources of capital depends upon a
number of factors, including general market conditions, the market's perception
of our growth potential, our current and potential future earnings and cash
distributions and the market price of our common stock. Moreover, additional
equity offerings may result in substantial dilution of shareholders' interests,
and additional debt financing may substantially increase our leverage.
We may be unable to pay dividends and our equity may not appreciate.
Under applicable Maryland law, our ability to pay dividends would be
restricted if, after payment of the dividend, (1) we would not be able to pay
indebtedness as it becomes due in the usual course of business or (2) our total
assets would be less than the sum of our liabilities. No assurance can be given
that our financial performance in the future will permit our payment of any
dividends. As a result of the factors described above, we may experience
material fluctuations in future operating results on a quarterly or annual
basis, which could materially and adversely affect our business, stock price and
ability to pay dividends.
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 the occurrence of unanticipated events.
Item 2. Properties
The following table summarizes the geographic distribution of our
properties at December 31, 2003. The table also identifies the number and
location of properties we lease from third-parties and which Marketing leases
from us under the master lease.
OWNED BY GETTY REALTY LEASED BY GETTY REALTY
--------------------- ---------------------- TOTAL PERCENT
MARKETING OTHER MARKETING OTHER PROPERTIES OF TOTAL
AS TENANT PROPERTIES AS TENANT PROPERTIES BY STATE PROPERTIES
--------- ---------- --------- --------- ---------- ----------
New York 229 15 96 4 344 33.5%
New Jersey 110 10 45 2 167 16.2
Massachusetts 130 2 27 1 160 15.6
Pennsylvania 108 15 22 3 148 14.4
Connecticut 58 3 22 -- 83 8.1
New Hampshire 28 -- 3 -- 31 3.0
Virginia 3 2 21 -- 26 2.5
Maine 17 1 3 1 22 2.1
Rhode Island 15 -- 4 -- 19 1.8
Delaware 10 3 1 -- 14 1.4
Maryland 4 2 1 -- 7 0.7
Florida -- 6 -- -- 6 0.6
Vermont 1 -- -- -- 1 0.1
--- -- --- -- ----- -----
Total 713(1) 59 245(2) 11 1,028 100.0%
=== == === == ===== =====
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(1) Includes six terminal properties owned in New York, New Jersey, Connecticut
and Rhode Island.
(2) Includes three terminals/bulk plants related to Marketing's residential
fuels business based in the New York Mid-Hudson Vally.
-8-
The leased properties have a remaining lease term, including renewal
option terms, averaging over thirteen years. The following table sets forth
information regarding lease expirations, including renewal and extension option
terms, for properties that we lease from third parties:
NUMBER OF
LEASES PERCENT
CALENDAR YEAR EXPIRING OF TOTAL
- ------------- --------- --------
2004 9 3.5
2005 6 2.3
2006 15 5.9
2007 17 6.7
2008 10 3.9
--- -----
Subtotal 57 22.3
--- -----
Thereafter 199 77.7
--- -----
Total 256 100.0%
=== =====
We have rights-of-first refusal to purchase or lease 204 of our leased
properties. Although there can be no assurance regarding any particular
property, historically we generally have been successful in renewing or entering
into new leases when any lease term expires. Approximately sixty-eight percent
of our leased properties are subject to automatic renewal or extension options.
In the opinion of our management, our relationships with our landlords
are good and all of our properties (including those that are fee owned) are
adequately covered by casualty and liability insurance. In addition, we require
our tenants to provide insurance for all properties they lease from us,
including casualty, liability, fire and extended coverage in amounts and on
other terms satisfactory to us. Currently, we have no plans for material
improvements to any of our properties. However, our tenants frequently make
improvements to the properties leased from us at their expense.
Four of our owned retail motor fuel and convenience store properties
with a net book value of approximately $1.1 million are secured by mortgages
with an aggregate principal balance of approximately $0.8 million at a weighted
average interest rate of 7.41% per annum. No other material mortgages, liens or
encumbrances exist on our properties.
We are a party to a master lease agreement with Marketing with respect
to 949 retail motor fuel and convenience store properties and our nine petroleum
distribution terminals and bulk plants. The master lease is a unitary lease and
has an initial term expiring in 2015, and generally provides Marketing with
three renewal options of ten years each and a final renewal option of three
years and ten months extending to 2049. Each of the renewal options may be
exercised only on an "all or nothing" basis. The master lease is a "triple-net"
lease, under which Marketing is responsible for the cost of all taxes,
maintenance, repair, insurance and other operating expenses.
If Marketing fails to pay rent, taxes or insurance premiums when due
under the master lease, and the failure is not cured by Marketing within a
specified time after receipt of notice, we have the right to terminate the
master lease and to exercise other customary remedies against Marketing. If
Marketing fails to comply with any other obligation under the master lease after
notice and opportunity to cure, we do not have the right to terminate the master
lease. Alternatively, our available remedies under the master lease are to
obtain an injunction or other equitable relief requiring Marketing to comply
with its obligations under the master lease and to recover damages from
Marketing resulting from the failure.
If any lease we have with a third party landlord is terminated as a
result of our default and the default is not caused by Marketing, we have agreed
to indemnify Marketing for its losses with respect to the termination. Where we
lease a property from a third party landlord under a lease which is about to
expire and does not contain options to renew we and Marketing each have a
non-exclusive right to negotiate with that third party landlord, except at
eighteen identified locations where Marketing has the exclusive right to
negotiate with the third party landlord until six months before the lease
expires. We have also agreed that if we decide to sell any property leased to
Marketing
-9-
under the master lease, we will first offer to sell that property to Marketing
pursuant to procedures set forth in the master lease.
We have also agreed to provide limited environmental indemnification,
capped at $4.25 million and expiring in 2010, to Marketing for certain
pre-existing conditions at the six terminals we own. Under the agreement,
Marketing will pay the first $1.5 million of costs and expenses incurred in
connection with remediating any pre-existing terminal condition, 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 over $10.0 million. 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. Under the master lease, we continue to have additional ongoing
environmental remediation obligations for 288 scheduled sites, Marketing
otherwise remains liable for all environmental matters.
Item 3. Legal Proceedings
(a) Information in response to this item is incorporated herein by
reference from note 5 of the Notes to Consolidated Financial Statements set
forth on page 25 of the Annual Report.
In 1988 and 1989, we were named as defendants in three separate
lawsuits having common allegations that a leak of an underground gasoline
storage tank occurred in November 1985, at one of our retail motor fuel
properties. Although the first action was dismissed in January 1992 and the
second action was dismissed in 1995, there is a possibility that the remaining
defendants in this action, in the future, may assert claims against us for
contribution or indemnity. We are not aware that any such claims have been
asserted. The third action is still pending in New York Supreme Court, Suffolk
County, remains in the pleadings stage and has remained dormant for more than
ten years. We have been advised that these plaintiffs no longer will assert
claims for personal injuries, and that the property has been sold. If this
litigation resumes, we will assert third-party claims against the party we
believe is responsible for the contamination.
In 1991, the State of New York brought an action in the New York State
Supreme Court in Albany against our former heating oil subsidiary seeking
reimbursement for cleanup costs claimed to have been incurred at a retail motor
fuel property in connection with a gasoline release. The State also is seeking
penalties plus interest. Although there has been no activity in this proceeding
in the past several years, in January 2002, we received a letter from the
State's attorney indicating that the State intends to continue prosecuting the
action. To date, we are not aware that the State has continued prosecuting the
action.
In 1995, Pennsauken Solid Waste Management Authority, its
successor-in-interest, the Pollution Control Financing Authority of Camden
County and the Township of Pennsauken, New Jersey commenced an action for
unspecified amounts against certain defendants for all costs and damages claimed
to have been incurred for the remediation of the Pennsauken Sanitary Landfill.
The claims against us were settled in November 2003, in exchange for a payment
of $5,000, which is expected to be paid in the first quarter of 2004.
In 1997, the State of Rhode Island commenced an action against us to
recover damages resulting from an accident that occurred in March 1994,
regarding an oil tanker truck which tipped over and exploded in Providence, RI.
The State has alleged damages to the highway area as well as the surrounding
area and nearby overpass. There has been extensive discovery to date and the
case is pending in the Rhode Island Superior Court.
In 1997, an action was commenced in New York Supreme Court in
Schenectady, naming us as defendants, and seeking to recover for personal
injuries allegedly suffered from the release of petroleum and vapors from one of
our retail motor fuel properties. This action has not been pursued by the
Plaintiff for more than five years.
In June 1998, we were sued as a third-party defendant in the Superfund
case of U.S. v. Champion Chemical Co. and Imperial Oil Co., pending in the U.S.
District Court for New Jersey. Our defense is being conducted by Texaco Inc.,
which has agreed to fully indemnify us. In August 1998, we were sued as a
third-party defendant in the Superfund case of U.S. v. Manzo, pending in the U.
S. District Court for New Jersey. Our defense is also being conducted by Texaco
Inc., which has agreed to fully indemnify us. Both matters involve periods prior
to 1985, the year we purchased the properties from Texaco Inc. pursuant to an
agreement under which Texaco is obligated to indemnify us for environmental
matters of this kind.
-10-
In December 1998, the New York State Department of Environmental
Conservation filed an administrative complaint against us for civil penalties
for alleged groundwater contamination and gasoline migration into a building
basement in April 1997. This action has been dormant for more than one year
during which time we have been actively remediating the contamination. In
January 1999, an action was commenced in United States District Court (SDNY) by
the owner of the property, seeking compensatory and punitive damages. We are
vigorously defending the claims of liability and, notwithstanding extensive
discovery in the matter; we do not believe that the plaintiff has presented any
evidence of damage.
In June 1999, a case was commenced in New York Supreme Court in Nassau
County against Marketing. The plaintiff alleges that he contracted acute
myelogenous leukemia (AML) as a result of exposure to benzene-containing
gasoline, between 1992 and 1998, when he worked periodically at an independently
owned and operated retail motor fuel property we supplied with gasoline. The
plaintiff brought another case against Mobil Oil Corporation ("Mobil") and
Island Transportation Corp. ("Island Transportation") alleging that he worked at
another retail motor fuel property at which Mobil gasoline was sold and that his
AML was caused by his exposure to that gasoline as well. The cases have been
consolidated. We are not named in the cases. However, we are indemnifying
Marketing pursuant to written agreements.
In September 1999, we brought a case against one of our tenants in the
United States District Court, District of New Jersey, seeking the return of the
property we leased to them and the cleanup of all contamination caused by them.
Our tenant filed a counterclaim alleging that all or part of the contamination
was attributable to contamination from underground storage tanks for which we
were responsible. A trial is expected to be scheduled in the first half of 2004.
In July 1999, the New Jersey Department of Environmental Protection
("NJDEP") issued a Spill Act Directive and Notice to Insurers to us and several
other parties regarding environmental contamination at a property located in New
Jersey. In December 2003, we signed an Administrative Consent Order and
settlement agreement with our insurers that calls for the insurers paying the
State, under a reservation of rights, for past costs and taking over
responsibility for the completion of the remediation. The settlement agreement
calls for us to pay $70,000 to the State and $15,000 toward the settlement that
the insurers reach with the State regarding natural resource damages. We expect
these payments to be made in the first quarter of 2004.
In July 2000, we were sued in Vermont Superior Court, along with
several oil suppliers, refiners and manufacturers, by the surviving family of a
person who died from leukemia, claiming that his exposure to benzene contained
in the petroleum products caused him to develop the disease. In May 2003, we
settled the matter for a payment by us of $35,000.
In August 2000, the State of New York commenced an action against us in
the New York State Supreme Court in Albany County, seeking reimbursement of
costs claimed to have been incurred to clean up a gasoline release that occurred
in 1987. The trial is scheduled to begin June 1, 2004.
In February 2002, the owner of a retail motor fuel property in Wareham,
Massachusetts commenced an action in the Plymouth Superior Court against us and
a former tenant at the property to recover cleanup costs and other incidental
damages. We are defending the claim of liability and the case is in the early
stages of discovery.
In July 2002, we were brought into a pending case in New York in
Supreme Court in Albany County. The State of New York sought reimbursement from
the named defendant for costs claimed to have been incurred in connection with a
gasoline release at one of our former retail motor fuel properties that was sold
to the named defendant. The claims against us were settled in July 2003, in
consideration for a payment to us of $275,000, and our release of three
mortgages against properties of the named defendant, then having an aggregate
principal balance of approximately $309,720.
In September 2002, a suit was brought in the United States District
Court for the Eastern District of New York to recover legal fees incurred in
connection with a pending Rhode Island litigation, based on a Guarantee and
Indemnity Agreement. In January, 2002, we filed a counterclaim against the
plaintiff in that earlier suit for recovery of our legal fees pursuant to a 1985
Settlement Agreement. This matter is scheduled for a pre-trial conference in
February of 2004. It is anticipated that there will be additional discovery
regarding the claims asserted.
-11-
In December 2002, the State of New York commenced an action in New
York Supreme Court in Albany County against us and Marketing to recover costs
claimed to have been expended by the State to investigate and remediate a
petroleum release into the Ossining River commencing approximately in 1996. We
are indemnifying Marketing and have filed a claim against a potentially
responsible party who is upstream.
In January 2003, a claim was brought against us in New York Supreme
Court in Westchester County, alleging that we owe the Plaintiff rent in
consideration for access to his property to continue on-going remediation of
contamination allegedly due to spills at the property, formerly supplied by us
with gasoline. The case is in its very early stages.
In February 2003, a case was filed against us, Marketing and others by
the owners of an adjacent property in the Pennsylvania Court of Common Pleas in
Lancaster County, asserting claims relating to a discharge of gasoline allegedly
emanating from our property. The complaint states that the plaintiffs first
became aware of a problem upon detecting gasoline vapors in their basement in
1996, yet did not file suit until February 28, 2003. The case is in its early
stages.
In April 2003, we were named in a class action, filed in New York
Supreme Court in Dutchess County, NY, arising out of alleged MTBE contamination
of ground water. We served an answer that denied liability and asserted numerous
affirmative defenses. The plaintiffs have not responded to our demands and there
has not been any activity in the case for a considerable period.
In April 2003, we received a Request for Reimbursement from the State
of Maine Department of Environmental Protection seeking reimbursement of costs
claimed to have been incurred by them in connection with the remediation of
contamination claimed to have originated at a property formerly supplied by us
with gasoline in 1988. We have discovered evidence that indicates that the
contamination may not have originated from that property and have submitted a
written response to the Request, denying liability for the claim.
In July 2003, we were notified by the State of Rhode Island Department
of Environmental Management of their Notice to Enforce compliance with a Letter
of Responsibility issued by the Department in connection with a suspected
petroleum release at a property that abuts property owned by us and leased to
Marketing. We responded to the State's Notice in August 2003. Marketing is
obligated to defend the matter and indemnify us pursuant to the master lease.
In July 2003, we received a Request for Reimbursement from the State of
Maine Department of Environmental Protection seeking reimbursement of costs
claimed to have been incurred by them in connection with the remediation of
contamination found at a retail motor fuel property, purportedly linked to
numerous gasoline spills in the late 1980's. We have discovered substantial
evidence that links the contamination to gasoline releases of another company
who has operated at the property since we discontinued our operations at the
property and are in the process of finalizing our response to the Request for
Reimbursement that will deny liability for the claim.
In September 2003, we were notified by the State of New Jersey
Department of Environmental Protection that we are one of approximately sixty
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.
Additionally, we believe that ChevronTexaco is obligated to indemnify us for
most of the conditions at the property identified by the New Jersey Department
of Environmental Protection. Accordingly, our ultimate legal and financial
liability, if any, cannot be estimated with any certainty at this time.
In September 2003, we were notified by the State of New Jersey
Department of Environmental Protection that we may be responsible for damages to
natural resources ("NRD") by reason of a petroleum release, more than fifteen
years ago, at a retail motor fuel property formerly operated by us in Egg
Harbor, NJ. We have been actively remediating the resulting contamination at the
property in accordance with a plan approved by the State. In addition, we have
responded to the notice and met with the Department to determine whether, and to
what extent, we may be responsible for NRD regarding this property and our other
properties formerly supplied by us with
-12-
gasoline in New Jersey. The State's right to pursue NRD, the viability of
defenses to NRD, generally, and the State's method for calculating NRD are
subject to ongoing litigation in the State. We are not a party to such
litigation. However, the outcome of that litigation likely will affect the
State's claim against us for NRD with regard to this property and, generally,
our other properties in New Jersey.
In October 2003, an action was commenced in New York Supreme Court in
Nassau County seeking money damages against us arising out of a petroleum
release that occurred prior to 1985, at a property in Valley Stream, NY, which
was later supplied by us with gasoline. We have denied responsibility and are
defending this matter. The case is in its initial stages.
From October 2003 through February 2004, we were made a party to
thirty-six cases in Connecticut, Florida, Massachusetts, New Hampshire, New
Jersey, New York, Vermont, Virginia, and West Virginia, brought by local water
providers or governmental 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 as defendants
approximately fifty petroleum refiners, manufacturers, distributors and
retailers of MTBE, or gasoline containing MTBE. 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.
In November 2003, we received a demand from the State of New York for
reimbursement of cleanup and removal costs claimed to have been incurred by the
New York Environmental Protection and Spill Compensation Fund regarding
contamination it alleges emanated from one of our retail motor fuel properties
in 1997. We have responded to the State's demand and have denied responsibility
for reimbursement of such costs, as being attributable to contamination that
emanated from other properties owned and operated by others.
In November 2003, an action was commenced in New York Supreme Court in
Westchester County seeking money damages against us arising out of a petroleum
release in 1996 at a former retail motor fuel property of ours. Our defense is
being conducted by the company that sold us the property, and they have agreed
to fully indemnify us pursuant to the purchase agreement, which calls for
indemnification for environmental matters of this kind.
Item 4. Submission of a Vote of Security Holders
No matter was submitted to a vote of security holders during the three
months ended December 31, 2003.
-13-
PART II
Item 5. Market for Registrant's Common Equity and Related Shareholder Matters
Information in response to this item is incorporated herein by
reference from material under the heading "Capital Stock" on page 32 of the
Annual Report.
Item 6. Selected Financial Data
Information in response to this item is incorporated herein by
reference from material under the heading "Selected Financial Data" on page 6 of
the Annual Report.
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Information in response to this item is incorporated herein by
reference from material under the heading "Management's Discussion and Analysis
of Financial Condition and Results of Operations" on pages 7 through 15 of the
Annual Report.
Item 7A. Market Risk
Information in response to this item is incorporated herein by
reference from note 5 of the Notes to Consolidated Financial Statements on
page 25 of the Annual Report.
Item 8. Financial Statements and Supplementary Data
Information in response to this item is incorporated herein by
reference from the financial information on pages 17 through 31 of the
Annual Report.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
Item 9A. 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
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 fourth quarter
covered by this annual 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 have been no significant changes in the Company's internal
controls or in other factors that could significantly affect the internal
controls during the latest fiscal quarter.
-14-
PART III
Item 10. Directors and Executive Officers of the Registrant
Information with respect to directors in response to this item is
incorporated herein by reference from material under the headings "Election of
Directors" and "Compliance with Section 16(a) of the Securities Exchange Act of
1934" on pages 2 and 19, respectively, of the Proxy Statement. The following
table lists our executive officers, their respective ages, and the offices and
positions held.
NAME AGE POSITION OFFICER SINCE
- ------------------- --- ------------------------------------------------------- -------------
Leo Liebowitz 76 President and Chief Executive Officer 1971
Kevin C. Shea 44 Vice President 2001
Andrew M. Smith 51 Vice President, General Counsel and Corporate Secretary 2003
Thomas J. Stirnweis 45 Vice President, Treasurer and Chief Financial Officer 2001
Mr. Shea has been with Getty since 1984 and has served as Vice
President since January 1, 2001. Prior thereto, he was Director of National Real
Estate Development.
Mr. Smith joined the Company as General Counsel and Corporate Secretary
in May 2003 and has served as Vice President, General Counsel and Corporate
Secretary since December 2003. Prior to joining Getty, he was in private law
practice from 1999 to 2003. From 1997 to 1999 he served as the Vice President of
Real Estate, General Counsel and Secretary of Discovery Zone, Inc., an
international site-based children's entertainment company that commenced a
Chapter 11 proceeding in April 1999. From 1986 to 1994, Mr. Smith was a partner
in the real estate practice of Weil, Gotshal & Manges LLP, an international law
firm.
Mr. Stirnweis joined Getty on January 1, 2001 as Corporate Controller
and Treasurer and has served as Vice President, Treasurer and Chief Financial
Officer since May 2003. Prior to joining Getty, he was Manager of Financial
Reporting and Analysis of Getty Petroleum Marketing Inc., where he provided
services to Getty under a services agreement since the spin-off of Marketing in
March 1997. Prior thereto, he held the same position at Getty since 1988.
Management is not aware of any family relationships between any of its
directors or executive officers.
We have adopted a revised Getty Realty Corp. Business Conduct
Guidelines ("Code of Ethics"), which is available on our website at
www.gettyrealty.com and is filed as an exhibit hereto.
Item 11. Executive Compensation
Information in response to this item is incorporated herein by
reference from material under the headings "Directors' Meetings, Committees and
Executive Officers", "Compensation" through "Report of the Compensation
Committee" and "Stock Performance Graph" on pages 5-13 and 15, respectively, of
the Proxy Statement.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Information in response to this item is incorporated herein by
reference from material under the heading "Beneficial Ownership of Capital
Stock" and "Equity Compensation Plan Information" on pages 3 - 4 and 10 - 11,
respectively, of the Proxy Statement.
Item 13. Certain Relationships and Related Transactions
None.
-15-
Item 14. Principal Accountant Fees and Services
Information in response to this item is incorporated herein by
reference from material under the heading "Ratification of Appointment of
Independent Auditors" on page 18 of the Proxy Statement.
Item 15. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) 1. Financial Statements
The financial statements listed in the Index to Financial
Statements and Financial Statement Schedules on page 17 are
filed as part of this annual report.
2. Financial Statement Schedule
The financial statement schedule listed in the Index to
Financial Statements and Financial Statement Schedule on page
17 is filed as part of this annual report.
3. Exhibits
The exhibits listed in the Exhibit Index on pages 20 through 22 are
filed as part of this annual report.
(b) Reports 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.
-16-
GETTY REALTY CORP. INDEX TO FINANCIAL STATEMENTS AND
FINANCIAL STATEMENT SCHEDULES COVERED BY REPORT OF
INDEPENDENT ACCOUNTANTS
Items 15(a) 1 & 2
REFERENCE
--------------------------------
2003
FORM 10-K ANNUAL REPORT
(PAGES) (PAGES)
--------- -------------
Data incorporated by reference from attached 2003 Annual Report to Shareholders
of Getty Realty Corp.
Report of Independent Auditors 31
Consolidated Statements of Operations for the years ended December 31, 2003, 17
2002 and 2001
Consolidated Balance Sheets as of December 31, 2003 and 2002 18
Consolidated Statements of Cash Flows for the years ended December 31, 2003, 19
2002 and 2001
Notes to Consolidated Financial Statements 20 - 30
Report of Independent Auditors-Financial Statement Schedule 18
Schedule II - Valuation and Qualifying Accounts and Reserves for the years 19
ended December 31, 2003, 2002 and 2001
All other schedules are omitted for the reason that they are either not
required, not applicable, not material or the information is included in the
consolidated financial statements or notes thereto.
The financial statements listed in the above index which are included
in the 2003 Annual Report to Shareholders are hereby incorporated by reference.
With the exception of the pages listed in the above index and the information
incorporated by reference included in Part II, Items 5, 6, 7, 7A and 8, the 2003
Annual Report to Shareholders is not deemed filed as part of this report.
-17-
REPORT OF INDEPENDENT AUDITORS
ON FINANCIAL STATEMENT SCHEDULE
To the Board of Directors and Shareholders of Getty Realty Corp.:
Our audits of the consolidated financial statements referred to in our report
dated February 25, 2004 appearing in the 2003 Annual Report to Shareholders of
Getty Realty Corp. (which report and consolidated financial statements are
incorporated by reference in this Annual Report on Form 10-K) also included an
audit of the financial statement schedule listed in Item 15(a)(2) of this Form
10-K. In our opinion, this financial statement schedule presents fairly, in all
material respects, the information set forth therein when read in conjunction
with the related consolidated financial statements.
/s/ PricewaterhouseCoopers LLP
New York, New York
February 25, 2004
-18-
GETTY REALTY CORP. and SUBSIDIARIES
SCHEDULE II -- VALUATION and QUALIFYING ACCOUNTS and RESERVES
for the years ended December 31, 2003, 2002 and 2001
(in thousands)
BALANCE AT BALANCE
BEGINNING AT END
OF PERIOD ADDITIONS DEDUCTIONS OF PERIOD
----------- ----------- ---------- ---------
December 31, 2003:
Allowance for mortgages and
accounts receivable $ 278 $ 116 $ 39 $ 355
Allowance for recoveries from
state underground storage
tank funds $ 500 $ 80 $ -- $ 580
December 31, 2002:
Allowance for mortgages and
accounts receivable $ 115 $ 227 $ 64 $ 278
Allowance for recoveries from
state underground storage
tank funds $ -- $ 500 $ -- $ 500
December 31, 2001:
Allowance for mortgages and
accounts receivable $ 102 $ 13 $ -- $ 115
-19-
EXHIBIT INDEX
GETTY REALTY CORP.
Annual Report on Form 10-K
for the year ended December 31, 2003
EXHIBIT
NO. DESCRIPTION
- ------- ------------------------------------------
1.1 Agreement and Plan of Reorganization and Filed as Exhibit 2.1 to Company's
Merger, dated as of December 16, 1997 Registration Statement on Form S-4,
(the "Merger Agreement") by and among filed on January 12, 1998 (File No.
Getty Realty Corp., Power Test Investors 333-44065), included as Appendix A To
Limited Partnership and CLS General the Joint Proxy Statement/Prospectus
Partnership Corp. that is a part thereof, and incorporated
herein by reference.
3.1 Articles of Incorporation of Getty Filed as Exhibit 3.1 to Company's
Realty Holding Corp. ("Holdings"), now Registration Statement on Form S-4,
known as Getty Realty Corp., filed filed on January 12, 1998 (File No.
December 23, 1997. 333-44065), included as Appendix D. to
the Joint Proxy/Prospectus that is a
part thereof, and incorporated herein by
reference.
3.2 Articles Supplementary to Articles of Filed as Exhibit 3.2 to Company's Annual
Incorporation of Holdings, filed January Report on Form 10-K for the fiscal year
21, 1998. ended January 31, 1998 (File No.
001-13777) and incorporated herein by
reference.
3.3 By-Laws of Getty Realty Corp. Filed as Exhibit 3.3 to Company's Annual
Report On Form 10-K for the year ended
December 31, 2002 (File No. 001-13777)
and incorporated herein by reference.
3.4 Articles of Amendment of Holdings, Filed as Exhibit 3.4 to Company's Annual
changing its name to Getty Realty Corp., Report on Form 10-K for the fiscal year
filed January 30, 1998. ended January 31, 1998 (File No.
001-13777) and incorporated herein by
reference.
3.5 Amendment to Articles of Amendment, Filed as Exhibit 99.2 to Company's
dated August 1, 2001. Current Report on Form 8-K dated August
1, 2001(File No. 001-13777) and
incorporated herein by reference.
10.1 Retirement and Profit Sharing Plan Filed as Exhibit 10.2(b) to Company's
(amended and restated as of September Annual Report on Form 10-K for the fiscal
19, 1996), adopted by the Company on year ended January 31, 1997. (File No.
December 16, 1997. 1-8059) and incorporated herein by
reference.
10.1(a) Retirement and Profit Sharing (amended Filed as Exhibit 10.1(a) to Company's
and restated as of January 1, 2002), Annual Report on Form 10-K for the year
adopted by the Company on September 3, ended December 31, 2002 (File No.
2002. 001-13777) and incorporated herein by
reference.
10.2 1998 Stock Option Plan, effective as of Filed as Exhibit 10.1 to Company's
January 30, 1998. Registration Statement on Form S-4,
filed on January 12, 1998 (File No.
333-44065), included as Appendix H to
the Joint Proxy Statement/Prospectus
that is a part thereof, and incorporated
herein by reference.
10.3 Asset Purchase Agreement among Power Filed as Exhibit 2(a) to the Current
Test Corp. (now known as Getty Report on Form 8-K of Power Test Corp.,
Properties Corp.), Texaco Inc., Getty filed February 19, 1985 (File No.
Oil Company and Getty Refining and 1-8059) and incorporated herein by
Marketing Company, dated as of December reference.
21, 1984.
-20-
EXHIBIT
NO. DESCRIPTION
- ------- ------------------------------------------
10.4 Trademark License Agreement among Power Filed as Exhibit 2(b) to the Current
Test Corp., Texaco Inc., Getty Oil Report on Form 8-K of Power Test Corp.,
Company and Getty Refining and Marketing filed February 19, 1985 (File No.
Company, dated as of February 1, 1985. 1-8059) and incorporated herein by
reference.
10.5 Form of Indemnification Agreement Filed as Exhibit 10.15 to Company's
between the Company and its directors. Annual Report on Form 10-K for the fiscal
year ended January 31, 1998 (File No.
001-13777) and incorporated herein by
reference.
10.6 Supplemental Retirement Plan for Filed as Exhibit 10.22 to the Annual
Executives of the Company (then known as Report on Form 10-K for the fiscal year
Getty Petroleum Corp.) and Participating ended January 31, 1990 (File No. 1-8059)
Subsidiaries (adopted by the Company on of Getty Petroleum Corp. and
December 16, 1997). incorporated herein by reference.
10.7 Form of Agreement dated December 9, 1994 Filed as Exhibit 10.23 to the Annual
between Getty Petroleum Corp. and its Report on Form 10-K for the fiscal year
non-director officers and certain key ended January 31, 1995 (File No. 1-8059)
employees regarding compensation upon of Getty Petroleum Corp. and
change in control. incorporated herein by reference.
10.8 Form of Agreement dated as of March 7, Filed as Exhibit 10.27 to the Annual
1996 amending Agreement dated as of Report on Form 10-K for the fiscal year
December 9, 1994 between Getty Petroleum ended January 31, 1996 (File No. 1-8059)
Corp. (now known as Getty Properties of Getty Petroleum Corp. and
Corp.) and its non-director officers and incorporated herein by reference.
certain key employees regarding
compensation upon change in control (See
Exhibit 10.11).
10.9 Form of letter from Getty Petroleum Filed as Exhibit 10.19 to Company's
Corp. dated April 8, 1997, confirming Annual Report on Form 10-K for the fiscal
that a change of control event had year ended January 31, 1998 (File No.
occurred pursuant to the change of 001-13777) and incorporated herein by
control agreements. (See Exhibits 10.7 reference.
and 10.8).
10.10 Form of Agreement dated March 9, 1998, Filed as Exhibit 10.20 to Company's
from the Company to certain officers and Annual Report on Form 10-K for the fiscal
key employees, adopting the prior change year ended January 31, 1998 (File No.
of control agreements, as amended, and 001-13777) and incorporated and
further amending those agreements. (See incorporated herein by reference.
Exhibits 10.7, 10.8 and 10.9).
10.11 Form of Reorganization and Distribution Filed as Exhibit 10.29 to the Annual
Agreement between Getty Petroleum Corp. Report on Form 10-K for the fiscal year
(now known as Getty Properties Corp.) ended January 31, 1997 (File No. 1-8059)
and Getty Petroleum Marketing Inc. dated of Getty Petroleum Corp. and
as of February 1, 1997. incorporated herein by reference
10.12 Form of Tax Sharing Agreement between Filed as Exhibit 10.32 to the Annual
Getty Petroleum Corp (now known as Report on Form 10-K for the fiscal year
Getty. Properties Corp.) and Getty ended January 31, 1997 (File No. 1-8059)
Petroleum Marketing Inc. of Getty Petroleum Corp. and
incorporated herein by reference.
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EXHIBIT
NO. DESCRIPTION
- ------- ------------------------------------------
10.13 Form of Stock Option Reformation Filed as Exhibit 10.33 to the Annual
Agreement made and entered into as of Report on Form 10-K for the fiscal year
March 21, 1997 by and between Getty ended January 31, 1997 (File No. 1-8059)
Petroleum Corp. (now known as Getty of Getty Petroleum Corp. and
Properties Corp.) and Getty Petroleum incorporated herein by reference.
Marketing Inc.
10.14 Consolidated, Amended and Restated Filed as Exhibit 10.21(a) to Company's
Master Lease Agreement dated November 2, Quarterly Report on Form 10-Q dated
2000 between Getty Properties Corp. and December 15, 2000 (File No. 001-13777)
Getty Petroleum Marketing Inc. and incorporated herein by reference.
10.15 Environmental Indemnity Agreement dated Filed as Exhibit 10.30 to Company's
November 2, 2000 between Getty Quarterly Report on Form 10-Q dated
Properties Corp. and Getty Petroleum December 15, 2000 (File No. 001-13777)
Marketing Inc. and incorporated herein by reference.
10.17 Amended and Restated Trademark License Filed as Exhibit 10.23(a) to Company's
Agreement, dated November 2, 2000, Quarterly Report on Form 10-Q dated
between Getty Properties Corp. and Getty December 15, 2000 (File No. 001-13777)
Petroleum Marketing Inc. and incorporated herein by reference.
10.18 Trademark License Agreement, dated Filed as Exhibit 10.23(b) to Company's
November 2, 2000, between Getty (TM) Quarterly Report on Form 10-Q dated
Corp. and Getty Petroleum Marketing Inc. December 15, 2000 (File No. 001-13777)
and incorporated herein by reference.
10.19 Asset Purchase Agreement by and between Filed as Exhibit 10.19 to Company's
Jems of New England, Inc., Charlex, Annual Report on Form 10-K for the year
Inc., Jems Enterprises, Inc., and ended December 31, 2002 (File No.
Robbins Realty Corp., and Getty 001-13777) and incorporated herein by
Properties Corp. reference.
13 Annual Report to Shareholders for the (a)
fiscal year ended December 31, 2003.
14 The Getty Realty Corp. Business Conduct (a)
Guidelines (Code of Ethics).
21 Subsidiaries of the Company. (a)
23 Consent of Independent Accountants. (a)
31 Certification of Chief Executive Officer (a)
and Chief Financial Officer pursuant to
Section 302 of Sarbanes-Oxley Act of
2002.
32 Certification of Chief Financial Officer (a)
and Chief Financial Executive pursuant to
18 U.S.C. Section 1350(b).
- -----------------------------------------------------
(a) Filed herewith
(b) 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.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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)
By: /s/ Thomas J. Stirnweis
-------------------------------------
Thomas J. Stirnweis,
Vice President, Treasurer and
Chief Financial Officer
March 12, 2004
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
By: /s/ Leo Liebowitz By: /s/ Thomas J. Stirnweis
----------------------------- -----------------------------------------
Leo Liebowitz Thomas J. Stirnweis
President, Chief Executive Vice President, Treasurer and
Officer and Director Chief Financial Officer
March 12, 2004 (Principal Financial and
Accounting Officer)
March 12, 2004
By: /s/ Milton Cooper By: /s/ Philip E. Coviello
----------------------------- ------------------------------------
Milton Cooper Philip E. Coviello
Director Director
March 12, 2004 March 12, 2004
By: /s/ Howard Safenowitz By: /s/ Warren G. Wintrub
----------------------------- ------------------------------------
Howard Safenowitz Warren G. Wintrub
Director Director
March 12, 2004 March 12, 2004
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