UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 19, 2011
GETTY REALTY CORP.
(Exact name of registrant as specified in its charter)
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Maryland
(State or other jurisdiction
of incorporation)
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001-13777
(Commission
File Number)
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11-3412575
(IRS Employer
Identification No.) |
125 Jericho Turnpike, Suite 103, Jericho, New York, 11753
(Address of principal executive offices) (ZIP Code)
Registrant’s telephone number, including area code: (516) 478-5400
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Section 1 — Registrant’s Business and Operations
Item 1.01. Entry into a Material Definitive Agreement
On January 19, 2011, Getty Realty Corp. (the “Company”) entered into an Underwriting Agreement
(the “Underwriting Agreement”) with Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P.
Morgan Securities LLC, as representatives of the several underwriters listed on Schedule 1
thereto (the “Underwriters”), pursuant to which the Company agreed to offer and sell 3,000,000
shares of common stock, $0.01 par value per share, of the Company (the “Common Stock”). Pursuant to
the terms of the Underwriting Agreement, the Company granted the Underwriters a 30-day option to
purchase up to an additional 450,000 shares of Common Stock to cover over-allotments, if any. The
net proceeds of the offering to the Company, after deducting the underwriting discount and
estimated offering expenses, are expected to be approximately $79.7 million, exclusive of any
proceeds attributable to the underwriters’ possible exercise of their over-allotment option. The
Company expects to use the net proceeds of the offering for the repayment of outstanding
indebtedness under its credit agreement and general corporate purposes. The Company will re-borrow
amounts repaid under its credit agreement to fund future property acquisitions and for other
general corporate purposes. While the Company evaluates acquisition and investment opportunities
from time to time, it currently has no binding commitments or agreements relating to any such
acquisition or investment. The closing of this offering is expected to occur on or about January
24, 2011, subject to customary closing conditions.
The Company made certain customary representations, warranties and covenants concerning the
Company and the registration statement in the Underwriting Agreement and also agreed to indemnify
the Underwriters against certain liabilities, including liabilities under the Securities Act of
1933, as amended. A copy of the Underwriting Agreement is filed as Exhibit 1.1 to this Current
Report on Form 8-K and incorporated herein by reference. The descriptions of the material terms of
the Underwriting Agreement in this Item 1.01 are qualified in their entirety by reference to
Exhibit 1.1.
J.P.
Morgan Securities LLC (formerly known as J.P. Morgan Securities Inc.) acted as sole bookrunner and sole lead arranger in connection with
the Company’s $175.0 million amended and restated senior unsecured credit agreement (the “Credit
Agreement”). In addition, affiliates of the Underwriters are lenders under the Credit Agreement and
will receive a portion of the net proceeds from this offering.
This Current Report on Form 8-K contains forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of
1934, as amended. Forward-looking statements, which are based on certain assumptions and describe
future plans, strategies and expectations of the Company, are generally identifiable by use of the
words “believes,” “expects,” “plans,” “projects,” “estimates,” “predicts” and similar expressions
or future or conditional verbs such as “will,” “should,” “would,” “may” and “could” are generally
forward-looking in nature and are not historical facts and include our statements relating to our
intended use of proceeds for the offering. The forward-looking statements contained in this Current
Report on Form 8-K, including with respect to the Company’s planned issuance of the shares of
Common Stock (including the over-allotment option) are subject to various risks and uncertainties.
Although the Company believes the expectations reflected in such forward-looking statements are
based on reasonable assumptions, there can be no assurance that its expectations will be achieved.
Certain factors that could cause actual results to differ materially from the Company’s
expectations include market conditions and the ability to complete the proposed offering; owning
and leasing real estate generally; material dependence on Getty Petroleum Marketing Inc.
(“Marketing”) as a tenant; the impact of Marketing’s announced restructuring of its business; our
inability to provide access to financial information about Marketing; the modification or
termination of our nine properties leased under supplemental lease with Marketing (the “Marketing
Leases”); Marketing paying its environmental obligations or changes in our assumptions for
environmental liabilities related to the Marketing Leases; adverse developments in general
business, economic or political conditions; competition for properties and tenants; performance of
our tenants of their lease obligations; tenant non-renewal and our ability to re-let or sell vacant
properties; the effects of taxation and change to other applicable standards or regulations;
potential exposure related to pending lawsuits and claims; costs of completing environmental
remediation and of compliance with environmental legislation and regulations; our exposure to
counterparty risk and our ability to effectively manage or mitigate this risk; the loss of a member
or members of our management team; the impact of our electing to be treated as a real estate
investment trust (“REIT”) under the federal income tax laws, including subsequent failure to
qualify as a REIT; owning real estate primarily concentrated in the Northeast and Mid-Atlantic
regions of the
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United States; substantially all of our tenants depending on the same industry for their
revenues; potential future acquisitions; losses not covered by insurance; our dependence on
external sources of capital; generalized credit market dislocations and contraction of available
credit; our business operations generating sufficient cash for distributions or debt service;
changes in interest rates and our ability to manage or mitigate this risk effectively; our
potential inability to pay dividends; changes to our dividend policy; changes in market conditions;
adverse effect of inflation; the uncertainty of our estimates, judgments and assumptions associated
with our accounting policies and methods; terrorist attacks and other acts of violence and war;
and other risks detailed in the Company’s Annual Report on Form 10-K and described from time to
time in the Company’s filings with the Securities and Exchange Commission. Many of these factors
are beyond the Company’s ability to control or predict. Forward-looking statements are not
guarantees of performance. Except for our ongoing obligations to disclose material information
under the federal securities laws, we undertake no obligation to release publicly any revisions to
any forward-looking statements, to report events or to report the occurrence of unanticipated
events unless required by law. For any forward-looking statements contained in any document, we
claim the protection of the safe harbor for forward-looking statements contained in the Private
Securities Litigation Reform Act of 1995.
Section 9 — Financial Statements and Exhibits
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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1.1 |
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Underwriting Agreement, dated January 19, 2011, between the Company, and Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan
Securities LLC, as representatives of the several underwriters listed on Schedule
1 thereto. |
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5.1 |
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Opinion of DLA Piper LLP (US) regarding the legality of the Common Stock. |
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8.1 |
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Opinion of DLA Piper LLP (US) regarding certain tax matters. |
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99.1 |
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Press release announcing the pricing of the underwritten offering dated January 19, 2011. |
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