a6489210.htm
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, 2010

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 incorporation or
organization)
(I.R.S. Employer
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 has submitted electronically and posted on its corporate Web site, if any, every interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Yes [   ]  No [   ]

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer or a non-accelerated filer. See the definitions of “larger accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large Accelerated Filer [   ]    Accelerated Filer [X]    Non-Accelerated Filer [   ]    Smaller Reporting Company [   ]

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes [   ]  No [X]

Registrant had outstanding 29,941,576 shares of Common Stock, par value $.01 per share, as of November 1, 2010.
 
 
 
 

 

GETTY REALTY CORP.

INDEX


Page Number
     
 
     
 
1
 
   
 
2
     
 
3
     
 
4
     
5
     
 
27
     
49
     
51
     
 
     
52
     
Item 1a. Risk Factors 53
   
56
     
57
     
 
58

 
 
 
 

 

 
Part I.  FINANCIAL INFORMATION

Item 1. Financial Statements

GETTY REALTY CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
(unaudited)

   
September 30,
   
December 31,
 
 
 
2010
   
2009
 
ASSETS:
           
Real Estate:
           
Land
  $ 253,429     $ 252,083  
Buildings and improvements
    251,349       251,791  
      504,778       503,874  
Less — accumulated depreciation and amortization
    (142,103 )     (136,669 )
Real estate, net
    362,675       367,205  
Net investment in direct financing lease
    20,464       19,156  
Deferred rent receivable (net of allowance of $8,461 at September 30, 2010 and $9,389 at December 31, 2009)
    27,679       27,481  
Cash and cash equivalents
    3,587       3,050  
Recoveries from state underground storage tank funds, net
    4,136       3,882  
Mortgages and accounts receivable, net
    2,111       2,402  
Prepaid expenses and other assets
    7,456       9,696  
Total assets
  $ 428,108     $ 432,872  
 
 
LIABILITIES AND SHAREHOLDERS’ EQUITY:
               
Borrowings under credit line
  $ 38,700     $ 151,200  
Term loan
    23,785       24,370  
Environmental remediation costs
    16,953       16,527  
Dividends payable
    14,429       11,805  
Accounts payable and accrued expenses
    18,065       21,301  
Total liabilities
    111,932       225,203  
Commitments and contingencies (notes 2, 3, 5 and 6)
               
Shareholders’ equity:
               
Common stock, par value $.01 per share; authorized 50,000,000 shares; issued 29,941,576 at September 30, 2010 and 24,766,376 at December 31, 2009
    299       248  
Paid-in capital
    367,965       259,459  
Dividends paid in excess of earnings
    (50,357 )     (49,045 )
Accumulated other comprehensive loss
    (1,731 )     (2,993 )
Total shareholders’ equity
    316,176       207,669  
Total liabilities and shareholders’ equity
  $ 428,108     $ 432,872  


The accompanying notes are an integral part of these consolidated 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,
 
   
2010
   
2009
   
2010
   
2009
 
                         
Revenues from rental properties
  $ 21,981     $ 20,755     $ 66,164     $ 61,908  
                                 
Operating expenses:
                               
Rental property expenses
    2,164       2,623       7,702       8,163  
Impairment charges
    -       -       -       1,069  
Environmental expenses, net
    993       2,044       3,880       5,671  
General and administrative expenses
    1,806       1,748       5,964       5,102  
Depreciation and amortization expense
    2,406       2,634       7,203       7,863  
Total operating expenses
    7,369       9,049       24,749       27,868  
 
Operating income
    14,612       11,706       41,415       34,040  
                                 
Other income, net
    35       157       209       406  
Interest expense
    (1,116 )     (1,195 )     (3,932 )     (3,632 )
Earnings from continuing operations
    13,531       10,668       37,692       30,814  
                                 
Discontinued operations:
                               
Earnings (loss) from operating activities
    (195 )     (11 )     (130 )     81  
Gains on dispositions of real estate
    15       1,528       1,653       4,823  
Earnings (loss) from discontinued operations
    (180 )     1,517       1,523       4,904  
Net earnings
  $ 13,351     $ 12,185     $ 39,215     $ 35,718  
                                 
                                 
Basic and diluted earnings (loss) per common share:
                               
Earnings from continuing operations
  $ 0.45     $ 0.43     $ 1.38     $ 1.24  
Earnings (loss) from discontinued operations
  $ (.01 )   $ 0.06     $ 0.06     $ 0.20  
Net earnings
  $ 0.45     $ 0.49     $ 1.44     $ 1.44  
                                 
Weighted-average shares outstanding:
                               
Basic
    29,942       24,766       27,286       24,766  
Stock options and restricted stock units
    2       1       2       -  
Diluted
    29,944       24,767       27,288       24,766  
                                 

The accompanying notes are an integral part of these consolidated financial statements.
 
 
 
 
- 2 -

 
 
 
 
GETTY REALTY CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(in thousands)
(unaudited)

   
Three months ended September 30,
   
Nine months ended September 30,
 
 
 
2010
   
2009
   
2010
   
2009
 
                         
Net earnings
  $ 13,351     $ 12,185     $ 39,215     $ 35,718  
Other comprehensive income:
                               
Unrealized gain on interest rate swap
    414       36       1,262       871  
Comprehensive income
  $ 13,765     $ 12,221     $ 40,477     $ 36,589  


The accompanying notes are an integral part of these consolidated financial statements.
 
 
 
 
- 3 -

 
 

 
GETTY REALTY CORP. AND SUBSIDIARIES
 
CONSOLIDATED STATEMENTS OF CASH FLOWS
 
(in thousands)
 
(unaudited)
 
       
   
Nine months ended September 30,
 
   
2010
   
2009
 
Cash flows from operating activities:
           
Net earnings
  $ 39,215     $ 35,718  
Adjustments to reconcile net earnings to
               
  net cash flow provided by operating activities:
               
Depreciation and amortization expense
    7,210       8,049  
Impairment charges
    -       1,069  
Gains from dispositions of real estate
    (1,653 )     (4,863 )
Deferred rental revenue, net of allowance
    (198 )     (440 )
Amortization of above-market and below-market leases
    (506 )     (570 )
Amortization of investment in direct financing lease
    (248 )     -  
Accretion expense
    559       631  
Stock-based employee compensation expense
    352       293  
Changes in assets and liabilities:
               
Recoveries from state underground storage tank funds, net
    6       398  
Accounts receivable
    179       (938 )
Prepaid expenses and other assets
    (267 )     45  
Environmental remediation costs
    (393 )     109  
Accounts payable and accrued expenses
    (1,351 )     32  
Net cash flow provided by operating activities
    42,905       39,533  
                 
Cash flows from investing activities:
               
Property acquisitions and capital expenditures
    (4,669 )     (54,034 )
Proceeds from dispositions of real estate
    2,789       5,881  
Decrease (increase) in cash held for property acquisitions
    2,183       (1,765 )
Collection of mortgages receivable
    112       120  
Net cash flow provided by (used in) investing activities
    415       (49,798 )
                 
Cash flows from financing activities:
               
(Repayments) borrowings under credit agreement, net
    (112,500 )     24,550  
(Repayments) borrowings under term loan agreement
    (585 )     24,500  
Cash dividends paid
    (37,903 )     (35,029 )
Net proceeds from issuance of common stock
    108,205       -  
Net cash flow (used in) provided by financing activities
    (42,783 )     14,021  
                 
Net increase in cash and cash equivalents
    537       3,756  
Cash and cash equivalents at beginning of period
    3,050       2,178  
                 
Cash and cash equivalents at end of period
  $ 3,587     $ 5,934  
                 
Supplemental disclosures of cash flow information
               
Cash paid (refunded) during the period for:
               
Interest
  $ 3,784     $ 3,748  
Income taxes, net
    281       457  
Recoveries from state underground storage tank funds
    (967 )     (1,127 )
Environmental remediation costs
    3,443       3,410  
                 
The accompanying notes are an integral part of these consolidated financial statements.
 
 
 
 
 
- 4 -

 
 
GETTY REALTY CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)

1.
GENERAL

Basis of Presentation: 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 and petroleum distribution terminals. The Company manages and evaluates its operations as a single segment. All significant intercompany accounts and transactions have been eliminated.

Use of Estimates, Judgments and Assumptions: The financial statements have been prepared in conformity with GAAP, which requires the Company’s management to make 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, net investment in direct financing lease, recoveries from state underground storage tank (“UST” or ‘USTs”) funds, environmental remediation costs, real estate, depreciation and amortization, impairment of long-lived assets, litigation, accrued expenses, income taxes and the allocation of the purchase price of properties acquired to the assets acquired and liabilities assumed.

Discontinued Operations: The operating results and gains from certain dispositions of real estate sold in 2010 and 2009 are reclassified as discontinued operations. The operating results of such properties for the three and nine months ended September 30, 2009 has also been reclassified to discontinued operations to conform to the 2010 presentation. Discontinued operations for the three and nine months ended September 30, 2010 and 2009 are primarily comprised of gains or losses from property dispositions. Revenue from rental properties and expenses related to these properties are insignificant for the three and nine months ended September 30, 2010 and 2009.

Unaudited, Interim Financial Statements: The consolidated financial statements are unaudited but, in the Company’s opinion, reflect all adjustments (consisting of normal recurring accruals) necessary for a fair statement of the results for the periods presented. 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, 2009.

Earnings per Common Share: Earnings per Common Share: Basic earnings per common share gives effect, utilizing the two-class method, to the potential dilution from the issuance of common shares in settlement of restricted stock units (“RSUs” or “RSU”) which provide for non-forfeitable dividend equivalents equal to the dividends declared per common share. Basic earnings per common share is computed by dividing net earnings less dividend equivalents attributable to RSUs by the weighted-average number of common shares outstanding during the period. Diluted earnings per common share also gives effect to the potential dilution from the exercise of stock options utilizing the treasury stock method. For the nine months ended September 30, 2009, the assumed exercise of stock options utilizing the treasury stock method would have been anti-dilutive and therefore was not assumed for purposes of computing diluted earnings per common share.
 
 
 
- 5 -

 

   
Three months ended
September 30,
   
Nine months ended
September 30,
 
(in thousands)
 
2010
   
2009
   
2010
   
2009
 
Earnings from continuing operations
  $ 13,531     $ 10,668     $ 37,692     $ 30,814  
Less dividend equivalents attributable to restricted stock units outstanding
    (57 )     (41 )     (169 )     (122 )
Earnings from continuing operations attributable to common shareholders used for basic earnings per share calculation
    13,474       10,627       37,523       30,692  
Discontinued operations
    (180 )     1,517       1,523       4,904  
Net earnings attributable to common shareholders used for basic earnings per share calculation
  $ 13,294     $ 12,144     $ 39,046     $ 35,596  
                                 
Weighted-average number of common shares outstanding:
                               
Basic
    29,942       24,766       27,286       24,766  
Stock options
    2       1       2       -  
Diluted
    29,944       24,767       27,288       24,766  
                                 
Restricted stock units outstanding at the end of the period
    118       86       118       86  

 
2.
LEASES

The Company leases or sublets its properties primarily to distributors and retailers engaged in the sale of gasoline and other motor fuel products, convenience store products and automotive repair services who are responsible for managing the operations conducted at these properties and for the payment of taxes, maintenance, repair, insurance and other operating expenses related to these properties. In those instances where the Company determines that the best use for a property is no longer as a retail motor fuel outlet, the Company will seek an alternative tenant or buyer for the property. The Company leases or subleases approximately twenty of its properties for uses such as fast food restaurants, automobile sales and other retail purposes. The Company’s properties are primarily located in the Northeast and Mid-Atlantic regions of the United States. The Company owns or leases properties in New York, Connecticut, Massachusetts, New Jersey, Delaware, Maine, Maryland, New Hampshire, Pennsylvania, Rhode Island, Virginia, Vermont, Texas, North Carolina, Hawaii, California, Florida, Ohio, Arkansas, Illinois, and North Dakota.

As of September 30, 2010, Getty Petroleum Marketing Inc. (“Marketing”) leased from the Company, eight hundred twenty-one properties. Eight hundred twelve of the properties are leased to Marketing under a unitary master lease (the “Master Lease”) and nine properties are leased under supplemental leases (collectively with the Master Lease, the “Marketing Leases”). The Master Lease has an initial term of fifteen years commencing December 9, 2000, and generally provides Marketing with options for three renewal terms of ten years each and a final renewal option of three years and ten months extending to 2049 (or such shorter initial or renewal term as the underlying lease may provide). The Marketing Leases include provisions for 2% annual rent escalations. The Master Lease is a unitary lease and, therefore, Marketing’s exercise of any renewal option can only be on an “all or nothing” basis. The supplemental leases have initial terms of varying expiration dates. (See note 8 for additional information regarding the portion of the Company’s financial results that are attributable to Marketing. See note 3 for additional information regarding contingencies related to Marketing and the Marketing Leases).
 
 
 
- 6 -

 

 
Revenues from rental properties included in continuing operations for the quarter and nine months ended September 30, 2010 were $21,981,000, and $66,164,000, respectively, of which $15,005,000 and $45,278,000, respectively, were received from Marketing under the Marketing Leases and $6,692,000 and $19,965,000, respectively, were received from other tenants. In accordance with GAAP, the Company recognizes rental revenue in amounts which vary from the amount of rent contractually due or received during the periods presented. As a result, revenues from rental properties include non-cash adjustments recorded for deferred rental revenue due to the recognition of rental income on a straight-line (or an average) basis over the current lease term, net amortization of above-market and below-market leases and recognition of rental income recorded under a direct financing lease using the effective interest method which produces a constant periodic rate of return on the net investment in the leased property (the “Revenue Recognition Adjustments”). Revenues from rental properties included in continuing operations include Revenue Recognition Adjustments which increased rental revenue by $284,000 and $921,000 for the quarter and nine months ended September 30, 2010, and increased rental revenue by $451,000 and $979,000 for the quarter and nine months ended September 30, 2009.

The components of the $20,464,000 net investment in direct financing lease as of September 30, 2010 are minimum lease payments receivable of $78,792,000 plus unguaranteed estimated residual value of $2,013,000 less unearned income of $60,341,000.

3.
COMMITMENTS AND CONTINGENCIES

In order to minimize the Company’s exposure to credit risk associated with financial instruments, the Company places its temporary cash investments, if any, with high credit quality institutions. Temporary cash investments, if any, are currently held in an overnight bank time deposit with JPMorgan Chase Bank, N.A.

As of September 30, 2010, the Company leased eight hundred twenty-one, or 78% of its one thousand fifty-six properties, on a long-term triple-net basis to Marketing, a wholly-owned subsidiary of OAO LUKoil (“Lukoil”), one of the largest integrated Russian oil companies (see note 2 for additional information).

The Company’s financial results are materially dependent upon the ability of Marketing to meet its rental and environmental obligations under the Marketing Leases. Marketing’s financial results depend on retail petroleum marketing margins from the sale of refined petroleum products and rental income from its subtenants. Marketing’s subtenants either operate their gas stations, convenience stores, automotive repair services or other businesses at the Company’s properties or are petroleum distributors who may operate the Company’s properties directly and/or sublet the Company’s properties to the operators. Since a substantial portion of the Company’s revenues (67% for the nine months ended September 30, 2010), are derived from the Marketing Leases, any factor that adversely affects Marketing’s ability to meet its obligations under the Marketing Leases may have a material adverse effect on the Company’s business, financial condition, revenues, operating expenses, results of operations, liquidity, ability to pay dividends or stock price. (See note 8 for additional information regarding the portion of the Company’s financial results that are attributable to Marketing). Marketing has made all required monthly rental payments under the Marketing Leases when due through October 2010, although there can be no assurance that it will continue to do so.
 
 
 
 
- 7 -

 

 
For the year ended December 31, 2009, Marketing reported a significant loss, continuing a trend of reporting large losses in recent years. As a result of Marketing’s significant annual losses and the cumulative impact of those losses on Marketing’s financial position as of December 31, 2009, the Company previously concluded that Marketing likely does not have the ability to generate cash flows from its business sufficient to meet its obligations as they come due in the ordinary course through the term of the Marketing Leases unless Marketing shows significant improvement in its financial results, generates sufficient liquidity through the sale of assets or otherwise, or receives financial support from Lukoil, its parent company.

In the fourth quarter of 2009, Marketing announced a restructuring of its business. Marketing disclosed that the restructuring included the sale of all assets unrelated to the properties it leases from the Company, the elimination of parent-guaranteed debt, and steps to reduce operating costs. Although Marketing’s press release stated that its restructuring included the sale of all assets unrelated to the properties it leases from the Company, the Company has concluded, based on the press releases related to the Marketing/Bionol contract dispute described below, that Marketing’s restructuring did not include the sale of all assets unrelated to the properties it leases from the Company. Marketing sold certain assets unrelated to the properties it leases from the Company to its affiliates, LUKOIL Pan Americas LLC and LUKOIL North America LLC. The Company believes that Marketing retained other assets, liabilities and business matters unrelated to the properties it leases from the Company. As part of the restructuring, Marketing paid off debt which had been guaranteed by Lukoil with proceeds from the sale of assets to Lukoil affiliates and with financial support from Lukoil. Marketing also announced additional steps to reduce its costs including closing two marketing regions, eliminating jobs and exiting the direct-supplied retail gasoline business. Marketing’s announcement also indicated that LUKOIL North America LLC is the vehicle through which Lukoil expects to concentrate its future growth in the United States.

In June 2010, Marketing and Bionol Clearfield LLC (“Bionol”) each issued press releases regarding a contractual dispute between them. Bionol owns and operates an ethanol plant in Pennsylvania. Bionol and Marketing entered into a five-year contract under which Marketing agreed to purchase substantially all of the ethanol production from the Bionol plant, at formula-based prices. Bionol stated that Marketing breached the contract by not paying the agreed-upon price for the ethanol. According to Bionol’s press release, the cumulative gross purchase commitment under the contract could be on the order of one billion dollars. Marketing stated in its press release that it continues to pay Bionol millions of dollars each month for the ethanol, withholding only the amount of the purchase price in dispute and that it has filed for arbitration to resolve the dispute. Among other things related to this matter, the Company does not know: (i) the accuracy of the statements made by Marketing and Bionol; (ii) the cumulative or projected amount of the purchase price in dispute and how Marketing has accounted for the ethanol contract in its financial statements; or (iii) how the formula-based price compares to the market price of ethanol. The Company cannot predict with any certainty how the ultimate resolution of this matter may impact Marketing’s long-term financial performance and its ability to meet its obligations to the Company as they become due through the terms of the Marketing Leases.

The Company believes that Marketing has partially exited the direct-supplied retail gasoline business by entering into subleases with petroleum distributors who supply their own petroleum products to the Company’s properties. As of September 30, 2010, approximately two hundred forty-five of the Company’s retail properties, comprising substantially all of the properties in New England that the Company leases to Marketing, were subleased by Marketing to a single distributor. Substantially all of these properties have been rebranded BP stations and are being supplied petroleum products under a supply contract with BP. As of September 30, 2010, approximately seventy of the Company’s retail properties in New Jersey have been subleased by Marketing to a single distributor. It is possible that Marketing may be seeking subtenants for other significant portions of the portfolio of properties it leases from the Company.
 
 
 
 
- 8 -

 

 
In connection with its restructuring, Marketing eliminated all of the debt which had been guaranteed by Lukoil with proceeds from the sale of assets to Lukoil affiliates and with financial support from Lukoil, which the Company believes increased Marketing’s liquidity and improved its balance sheet. However, the Company cannot accurately predict whether the restructuring announced by Marketing will stem Marketing’s history of significant annual operating losses, and whether Marketing will continue to be dependent on financial support from Lukoil to meet its obligations as they become due and through the terms of the Marketing Leases. The Company continues to believe that to the extent Marketing requires continued financial support from Lukoil, it is probable that Lukoil will continue to provide such financial support. Lukoil is not, however, a guarantor of the Marketing Leases. Even though Marketing is a wholly-owned subsidiary of Lukoil, and Lukoil has provided capital to Marketing in the past, there can be no assurance that Lukoil will provide financial support or additional capital to Marketing in the future. It is reasonably possible that the Company’s belief regarding the likelihood of Lukoil providing continuing financial support to Marketing could prove to be incorrect or will change as circumstances change. Furthermore, Lukoil has the right to sell its ownership interest in Marketing without the Company’s consent, and there can be no assurance that if Marketing were sold by Lukoil that the acquiror would provide financial support to Marketing. If Marketing should fail to meet its financial obligations to the Company, including payment of rent, such default could lead to a protracted and expensive process for retaking control of the Company’s properties. In addition to the risk of disruption in rent receipts, the Company is subject to the risk of incurring real estate taxes, maintenance, environmental and other expenses at properties subject to the Marketing Leases.

From time to time the Company has had discussions with representatives of Marketing regarding potential modifications to the Marketing Leases. These intermittent discussions have not resulted in a common understanding with Marketing that would form a basis for modification of the Marketing Leases. From time to time, however, the Company has been able to agree with Marketing on terms to allow for removal of individual properties from the Marketing Leases as mutually beneficial opportunities arise. The Company intends to continue to pursue the removal of individual properties from the Marketing Leases, and it remains open to removal of groups of properties; however, there is no fixed agreement in place providing for removal of properties from the Marketing Leases. Accordingly, the removal of properties from the Marketing Leases is subject to negotiation on a case-by-case basis. If Marketing ultimately determines that its business strategy is to exit all or a portion of the properties it leases from the Company, it is the Company’s intention to cooperate with Marketing in accomplishing those objectives if the Company determines that it is prudent for it to do so. Any modification of the Marketing Leases that removes a significant number of properties from the Marketing Leases would likely significantly reduce the amount of rent the Company receives from Marketing and increase the Company’s operating expenses. The Company cannot accurately predict if, or when, the Marketing Leases will be modified; what composition of properties, if any, may be removed from the Marketing Leases as part of any such modification; or what the terms of any agreement for modification of the Marketing Leases may be. The Company also cannot accurately predict what actions Marketing and Lukoil may take, and what the Company’s recourse may be, whether the Marketing Leases are modified or not.
 
 
 
- 9 -

 

 
The Company intends either to re-let or sell any properties removed from the Marketing Leases whether such removal arises consensually by negotiation or as a result of default by Marketing, and reinvest any realized sales proceeds in new properties. The Company intends to offer any properties removed from the Marketing Leases to replacement tenants or buyers individually, or in groups of properties, or by seeking a single tenant for the entire portfolio of properties subject to the Marketing Leases. Although the Company is the fee or leasehold owner of the properties subject to the Marketing Leases and the owner of the Getty® brand and has prior experience with tenants who operate their convenience stores, automotive repair services or other businesses at its properties; in the event that properties are removed from the Marketing Leases, the Company cannot accurately predict if, when, or on what terms, such properties could be re-let or sold.

As permitted under the terms of the Marketing Leases, Marketing generally can, subject to any contrary terms under applicable third party leases, use each property for any lawful purpose, or for no purpose whatsoever. The Company believes that as of September 30, 2010, Marketing had removed, or has scheduled removal of, underground gasoline storage tanks and related equipment at approximately one hundred fifty, of the Company’s properties and the Company also believes that most of these properties are either vacant or provide negative or marginal contribution to Marketing’s results. In the third quarter of 2009 Marketing agreed to permit the Company to list with brokers and to show to prospective purchasers and lessees seventy-five of the properties where Marketing has removed, or has scheduled to remove, underground gasoline storage tanks and related equipment; however, the agreement expired in September 2010 and the Company is no longer actively pursuing marketing such properties for sale or lease. In those instances where the Company determines that the best use for a property is no longer as a retail motor fuel outlet, at the appropriate time the Company will seek an alternative tenant or buyer for such property. With respect to properties that are vacant or have had underground gasoline storage tanks and related equipment removed, it may be more difficult or costly to re-let or sell such properties as gas stations because of capital costs or possible zoning or permitting rights that are required and that may have lapsed during the period since gasoline was last sold at the property. Conversely, it may be easier to re-let or sell properties where underground gasoline storage tanks and related equipment have been removed if the property will not be used as a retail motor fuel outlet or if environmental contamination has been remediated.

Based in part on the Company’s decision to remain open to negotiate with Marketing for a modification of the Marketing Leases, and its belief that the Marketing Leases will be modified prior to the expiration of the current lease term, the Company believes that it is probable that it will not collect all of the rent due related to properties the Company identified as being the most likely to be removed from the Marketing Leases. As of September 30, 2010 and December 31, 2009, the net carrying value of the deferred rent receivable attributable to the Marketing leases was $21,720,000 and $22,801,000, respectively, which was comprised of a gross deferred rent receivable of $30,181,000 and $32,190,000, respectively, partially offset by a valuation reserve of $8,461,000 and $9,389,000, respectively. The valuation reserves were estimated based on the deferred rent receivable attributable to properties identified by the Company as being the most likely to be removed from the Marketing Leases. The Company has not provided deferred rent receivable reserves related to the remaining properties subject to the Marketing Leases since, based on its assessments and assumptions, the Company continues to believe that it is probable that it will collect the deferred rent receivable related to those remaining properties and that Lukoil will not allow Marketing to fail to perform its rental, environmental and other obligations under the Marketing Leases.
 
 
 
- 10 -

 

 
Marketing is directly responsible to pay for (i) remediation of environmental contamination it causes and compliance with various environmental laws and regulations as the operator of the Company’s properties, and (ii) known and unknown environmental liabilities allocated to Marketing under the terms of the Marketing Leases and various other agreements with the Company relating to Marketing’s business and the properties it leases from the Company (collectively the “Marketing Environmental Liabilities”). However, the Company continues to have ongoing environmental remediation obligations at one hundred eighty-two retail sites and for certain pre-existing conditions at six of the terminals the Company leases to Marketing. If Marketing fails to pay the Marketing Environmental Liabilities, the Company may ultimately be responsible to pay directly for Marketing Environmental Liabilities as the property owner. The Company does not maintain pollution legal liability insurance to protect it from potential future claims for Marketing Environmental Liabilities. The Company will be required to accrue for Marketing Environmental Liabilities if the Company determines that it is probable that Marketing will not meet its obligations and the Company can reasonably estimate the amount of the Marketing Environmental Liabilities for which it will be directly responsible to pay, or if the Company’s assumptions regarding the ultimate allocation methods or share of responsibility that it used to allocate environmental liabilities changes. However, the Company continues to believe that it is not probable that Marketing will not pay for substantially all of the Marketing Environmental Liabilities since the Company believes that Lukoil will not allow Marketing to fail to perform its rental, environmental and other obligations under the Marketing Leases. Accordingly, the Company did not accrue for the Marketing Environmental Liabilities as of September 30, 2010. Nonetheless, the Company has determined that the aggregate amount of the Marketing Environmental Liabilities (as estimated by the Company) could be material to the Company if it was required to accrue for all of the Marketing Environmental Liabilities in the future since the Company believes that it is reasonably possible that as a result of any such accrual, the Company may not be in compliance with the existing financial covenants in its Credit Agreement and its Term Loan Agreement. Such non-compliance could result in an event of default pursuant to each agreement which, if not cured or waived, could result in the acceleration of the Company’s indebtedness under the Credit Agreement and the Term Loan Agreement.

Should the Company’s assessments, assumptions and beliefs prove to be incorrect, including, in particular, the Company’s belief that Lukoil will continue to provide financial support to Marketing, or if circumstances change, the conclusions reached by the Company may change relating to (i) whether any or what combination of the properties subject to the Marketing Leases are likely to be removed from the Marketing Leases; (ii) recoverability of the deferred rent receivable for some or all of the properties subject to the Marketing Leases; (iii) potential impairment of the properties subject to the Marketing Leases and; (iv) Marketing’s ability to pay the Marketing Environmental Liabilities. The Company intends to regularly review its assumptions that affect the accounting for deferred rent receivable; long-lived assets; environmental litigation accruals; environmental remediation liabilities; and related recoveries from state underground storage tank funds. Accordingly, the Company may be required to (i) increase or decrease the deferred rent receivable reserve related to the properties subject to the Marketing Leases, (ii) record an additional impairment charge related to the properties subject to the Marketing Leases, or (iii) accrue for Marketing Environmental Liabilities that the Company believes are allocable to Marketing under the Marketing Leases and various other agreements as a result of the potential or actual modification of the Marketing Leases or other factors, which may result in material adjustments to the amounts recorded for these assets and liabilities, and as a result of which, the Company may not be in compliance with the financial covenants in its Credit Agreement and its Term Loan Agreement.
 
 
 
 
- 11 -

 

 
Although Marketing has made all required monthly rental payments under the Marketing Leases when due through October 2010, the Company cannot provide any assurance that Marketing will continue to meet its rental, environmental or other obligations under the Marketing Leases. In the event that Marketing does not perform its rental, environmental or other obligations under the Marketing Leases; if the Marketing Leases are modified significantly or terminated; if the Company determines that it is probable that Marketing will not meet its rental, environmental or other obligations and the Company accrues for certain of such liabilities; if the Company is unable to promptly re-let or sell the properties upon recapture from the Marketing Leases; or, if the Company changes its assumptions that affect the accounting for rental revenue or Marketing Environmental Liabilities related to the Marketing Leases and various other agreements; the Company’s business, financial condition, revenues, operating expenses, results of operations, liquidity, ability to pay dividends or stock price may be materially adversely affected.

The Company has also agreed to provide limited environmental indemnification to Marketing, capped at $4,250,000, for certain pre-existing conditions at six of the terminals which are owned by the Company and leased to Marketing. Under the agreement, Marketing is required to pay (and has paid) the first $1,500,000 of costs and expenses incurred in connection with remediating any such pre-existing conditions, Marketing and the Company share equally the next $8,500,000 of those costs and expenses and Marketing is obligated to pay all additional costs and expenses over $10,000,000. The Company has accrued $300,000 as of September 30, 2010 and December 31, 2009 in connection with this indemnification agreement.

The Company is subject to various legal proceedings and claims which arise in the ordinary course of its business. In addition, the Company has retained responsibility for certain legal proceedings and claims relating to the petroleum marketing business that were identified at the time the Company’s petroleum marketing business was spun-off to our shareholders in March 1997 (the “Spin-Off”). As of September 30, 2010 and December 31, 2009, the Company had accrued $2,548,000 and $3,790,000, respectively, for certain of these matters which it believes were appropriate based on information then currently available. It is possible that the Company’s assumptions regarding, among other items, the ultimate resolution of and/or the Company’s ultimate share of responsibility for these matters may change, which may result in the Company providing or adjusting its accruals for these matters.

In September 2003, the Company received a directive (the “Directive”) from the State of New Jersey Department of Environmental Protection (the “NJDEP”) notifying the Company that it is one of approximately sixty-six potentially responsible parties for natural resource damages resulting from discharges of hazardous substances into the Lower Passaic River. The Directive calls for an assessment of the natural resources that have been injured by the discharges into the Lower Passaic River and interim compensatory restoration for the injured natural resources. There has been no material activity with respect to the NJDEP Directive since early after its issuance. The 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. The Company is a member of a Cooperating Parties Group which has agreed to take over from the United States Environmental Protection Agency (“EPA”) performance of a remedial investigation and feasibility study intended to evaluate alternative remedial actions with respect to alleged damages to the Lower Passaic River. The remedial investigation and feasibility study does not resolve liability issues for remedial work or restoration of, or compensation for, natural resource damages to the Lower Passaic River, which are not known at this time.
 
 
 
 
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In a related action, in December 2005, the State of New Jersey brought suit against certain companies which the State alleges are responsible for pollution of the Passaic River. In February 2009, certain of these defendants filed third-party complaints against approximately three hundred additional parties, including the Company, seeking contribution for a pro-rata share of response costs, cleanup, and other damages. A Special Master has been appointed by the court to try and design an alternative dispute resolution process for achieving a global resolution of this litigation. The Company believes that ChevronTexaco is contractually obligated to indemnify the Company, pursuant to an indemnification agreement, for most if not all of the conditions at the property identified by the NJDEP and the EPA. Accordingly, the ultimate legal and financial liability of the Company, if any, cannot be estimated with any certainty at this time.

As of September 30, 2010, the Company is defending against twenty-six lawsuits brought by or on behalf of private and public water providers and governmental agencies. These cases allege various theories of liability due to contamination of groundwater with methyl tertiary butyl ether (a fuel derived from methanol, commonly referred to as “MTBE”) as the basis for claims seeking compensatory and punitive damages, and name as defendant approximately fifty petroleum refiners, manufacturers, distributors and retailers of MTBE, or gasoline containing MTBE. During the quarter ended March 31, 2010, the Company reached agreements to settle two plaintiff classes covering fifty-two cases. A settlement payment for $1,250,000 was made during the third quarter of 2010 covering twenty-seven cases and the Company expects that settlement of twenty-five cases will be finalized during the first quarter of 2011. The Company remains a defendant in a final MTBE case involving multiple locations throughout the State of New Jersey brought by the NJDEP and related instrumentalities.

In 2009 and 2010, the Company provided litigation reserves relating to the MTBE cases. However, the Company is still unable to estimate with certainty its liability for the case involving the State of New Jersey as there remains uncertainty as to the accuracy of the allegations in this case as they relate to it, the Company’s defenses to the claims, its rights to indemnification or contribution from Marketing, and the aggregate possible amount of damages for which the Company may be held liable.

The ultimate resolution of the matters related to the Lower Passaic River and the MTBE litigation discussed above could cause a material adverse effect on the Company’s business, financial condition, results of operations, liquidity, ability to pay dividends or stock price.

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, 2010 and December 31, 2009, the Company’s Consolidated Balance Sheets included, in accounts payable and accrued expenses, $279,000 and $292,000, respectively, relating to self-insurance obligations. The Company estimates its loss reserves for claims, including claims incurred but not reported, by utilizing actuarial valuations provided annually by its insurance carriers. The Company is required to deposit funds for substantially all of these loss reserves with its insurance carriers, and may be entitled to refunds of amounts previously funded, as the claims are evaluated on an annual basis. The Company’s Consolidated Statements of Operations for the nine months ended September 30, 2009 include, in general and administrative expenses, a charge of $25,000 for self-insurance loss reserve adjustments. Since the Spin-Off, the Company has maintained insurance coverage subject to certain deductibles.
 
 
 
 
- 13 -

 

 
In order to qualify as a REIT, among other items, the Company must distribute at least ninety percent of its “earnings and profits” (as defined in the Internal Revenue Code) to shareholders each year. Should the Internal Revenue Service successfully assert that the Company’s earnings and profits were greater than the amounts 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 earnings and profits. The Company may have to borrow money or sell assets to pay such a deficiency dividend.

4.
CREDIT, TERM LOAN AND INTEREST RATE SWAP AGREEMENTS

The Company is a party to a $175,000,000 amended and restated senior unsecured revolving credit agreement (the “Credit Agreement”) with a group of domestic commercial banks led by JPMorgan Chase Bank, N.A. (the “Bank Syndicate”) which expires in March 2011. As of September 30, 2010, borrowings under the Credit Agreement were $38,700,000, bearing interest at a rate of 1.56% per annum. The Company had $136,300,000 available under the terms of the Credit Agreement as of September 30, 2010. The Credit Agreement does not provide for scheduled reductions in the principal balance prior to its maturity. The Credit Agreement permits borrowings at an interest rate equal to the sum of a base rate plus a margin of 0.0% or 0.25% or a LIBOR rate plus a margin of 1.0%, 1.25% or 1.5%. The applicable margin is based on the Company’s leverage ratio at the end of the prior calendar quarter, as defined in the Credit Agreement, and is adjusted effective mid-quarter when the Company’s quarterly financial results are reported to the Bank Syndicate. Based on the Company’s leverage ratio as of September 30, 2010, the applicable margin will remain at 0.0% for base rate borrowings and 1.00% for LIBOR rate borrowings.

Subject to the terms of the Credit Agreement and continued compliance with the covenants therein, the Company has the option to extend the term of the credit agreement for one additional year to March 2012 and/or, subject to approval by the Bank Syndicate, increase the amount of the credit facility available pursuant to the Credit Agreement by $125,000,000 to $300,000,000. The Company does not expect to exercise its option to increase the amount of the Credit Agreement at this time. In addition, the Company believes that it would need to renegotiate certain terms in the Credit Agreement in order to obtain approval from the Bank Syndicate to increase the amount of the credit facility at this time. No assurance can be given that such approval from the Bank Syndicate will be obtained on terms acceptable to the Company, if at all. The annual commitment fee on the unused Credit Agreement ranges from 0.10% to 0.20% based on the amount of borrowings. The Credit Agreement contains customary terms and conditions, including financial covenants such as those requiring the Company to maintain minimum tangible net worth, leverage ratios and coverage ratios and other covenants which may limit the Company’s ability to incur debt or pay dividends. The Credit Agreement contains customary events of default, including change of control, failure to maintain REIT status or a material adverse effect on the Company’s business, assets, prospects or condition. Any event of default, if not cured or waived, could result in the acceleration of the Company’s indebtedness under the Credit Agreement and could also give rise to an event of default and consequent acceleration of the Company’s indebtedness under its Term Loan Agreement described below.
 
 
 
 
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On September 25, 2009, the Company entered into a $25,000,000 three-year Term Loan Agreement with TD Bank (the “Term Loan Agreement”) which expires in September 2012. As of September 30, 2010, borrowings under the Term Loan Agreement were $23,785,000 bearing interest at a rate of 3.5% per annum. The Term Loan Agreement provides for annual reductions of $780,000 in the principal balance with a $22,160,000 balloon payment due at maturity. The Term Loan Agreement bears interest at a rate equal to a thirty day LIBOR rate (subject to a floor of 0.4%) plus a margin of 3.1%. The Term Loan Agreement contains customary terms and conditions, including financial covenants such as those requiring the Company to maintain minimum tangible net worth, leverage ratios and coverage ratios and other covenants which may limit the Company’s ability to incur debt or pay dividends. The Term Loan Agreement contains customary events of default, including change of control, failure to maintain REIT status or a material adverse effect on the Company’s business, assets, prospects or condition. Any event of default, if not cured or waived, could result in the acceleration of the Company’s indebtedness under the Term Loan Agreement.

The Company is a party to a $45,000,000 LIBOR based interest rate swap, effective through June 30, 2011 (the “Swap Agreement”). The Swap Agreement is intended to effectively fix, at 5.44%, the LIBOR component of the interest rate determined under the Company’s LIBOR based loan agreements. The Company entered into the Swap Agreement with JPMorgan Chase Bank, N.A., designated and qualifying as a cash flow hedge, to reduce its exposure to the variability in future cash flows attributable to changes in the LIBOR rate. The Company’s primary objective when undertaking the hedging transaction and derivative position was to reduce its variable interest rate risk by effectively fixing a portion of the interest rate for existing debt and anticipated refinancing transactions. The Company determined, as of the Swap Agreement’s inception and as of September 30, 2010 and December 31, 2009, that the derivative used in the hedging transaction is highly effective in offsetting changes in cash flows associated with the hedged item and that no gain or loss was required to be recognized in earnings during the nine months ended September 30, 2010 or 2009 representing the hedge’s ineffectiveness. At September 30, 2010 and December 31, 2009, the Company’s Consolidated Balance Sheets include, in accounts payable and accrued expenses, an obligation for the fair value of the Swap Agreement of $1,731,000 and $2,993,000, respectively. For the nine months ended September 30, 2010 and 2009, the Company has recorded, in accumulated other comprehensive loss in the Company’s Consolidated Balance Sheets, a gain of $1,262,000 and $871,000, respectively, from the change in the fair value of the Swap Agreement related to the effective portion of the interest rate contract. The accumulated comprehensive loss of $1,731,000 recorded as of September 30, 2010 will be recognized as an increase in interest expense as quarterly payments are made to the counter-party over the remaining term of the Swap Agreement since it is expected that the Credit Agreement will be refinanced with variable interest rate debt at its maturity.

The fair value of the Swap Agreement was $1,731,000 as of September 30, 2010, determined using (i) a discounted cash flow analysis on the expected cash flows of the Swap Agreement, which is based on market data obtained from sources independent of the Company consisting of interest rates and yield curves that are observable at commonly quoted intervals and are defined by GAAP as “Level 2” inputs in the “Fair Value Hierarchy”, and (ii) credit valuation adjustments, which are based on unobservable “Level 3” inputs. The fair value of the borrowings outstanding under the Credit Agreement was $37,600,000, as of September 30, 2010. The fair value of the borrowings outstanding under the Term Loan Agreement was $23,800,000 as of September 30, 2010. The fair value of the projected average borrowings outstanding under the Credit Agreement and the borrowings outstanding under the Term Loan Agreement were determined using a discounted cash flow technique that incorporates a market interest yield curve, “Level 2 inputs”, with adjustments for duration, optionality, risk profile and projected average borrowings outstanding or borrowings outstanding, which are based on unobservable “Level 3 inputs”. As of September 30, 2010, accordingly, the Company classified its valuation of the Swap Agreement in its entirety within Level 2 of the Fair Value Hierarchy since the credit valuation adjustments are not significant to the overall valuation of the Swap.
 
 
 
 
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5.
ENVIRONMENTAL EXPENSES

The Company is subject to numerous existing federal, state and local laws and regulations, including matters relating to the protection of the environment such as the remediation of known contamination and the retirement and decommissioning or removal of long-lived assets including buildings containing hazardous materials, USTs and other equipment. Environmental expenses are principally attributable to remediation costs which include installing, operating, maintaining and decommissioning remediation systems, monitoring contamination, and governmental agency reporting incurred in connection with contaminated properties. The Company seeks reimbursement from state UST remediation funds related to these environmental expenses where available.

The Company enters into leases and various other agreements which allocate responsibility for known and unknown environmental liabilities by establishing the percentage and method of allocating responsibility between the parties. In accordance with the leases with certain tenants, the Company has agreed to bring the leased properties with known environmental contamination to within applicable standards, and to either regulatory or contractual closure (“Closure”). Generally, upon achieving Closure at each individual property, the Company’s environmental liability under the lease for that property will be satisfied and future remediation obligations will be the responsibility of the Company’s tenant. Generally the liability for the retirement and decommissioning or removal of USTs and other equipment is the responsibility of the Company’s tenants. The Company is contingently liable for these obligations in the event that the tenants do not satisfy their responsibilities. A liability has not been accrued for obligations that are the responsibility of the Company’s tenants based on the tenants’ history of paying such obligations and/or the Company’s assessment of their financial ability to pay their share of such costs. However, there can be no assurance that the Company’s assessments are correct or that the Company’s tenants who have paid their obligations in the past will continue to do so.

Of the eight hundred twenty-one properties leased to Marketing as of September 30, 2010, the Company has agreed to pay all costs relating to, and to indemnify Marketing for, certain environmental liabilities and obligations at one hundred eighty-two retail properties that have not achieved Closure and are scheduled in the Master Lease. The Company will continue to seek reimbursement from state UST remediation funds related to these environmental expenditures where available.

It is possible that the Company’s assumptions regarding the ultimate allocation method and share of responsibility that it used to allocate environmental liabilities may change, which may result in material adjustments to the amounts recorded for environmental litigation accruals, environmental remediation liabilities and related assets. The Company is required to accrue for environmental liabilities that the Company believes are allocable to others under various other agreements if the Company determines that it is probable that the counter-party will not meet its environmental obligations. The ultimate resolution of these matters could cause a material adverse effect on the Company’s business, financial condition, results of operations, liquidity, ability to pay dividends or stock price. (See note 3 for contingencies related to Marketing and the Marketing Leases for additional information.)
 
 
 
 
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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 at 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 an offset to environmental expense, net of allowance for collection risk, based on estimated recovery rates developed from prior experience with the funds when such recoveries are considered probable.

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 and surrounding geology, quality of information available, currently available technologies for treatment, alternative methods of remediation and prior experience. Environmental accruals are based on estimates which are subject to significant change, and are adjusted as the remediation treatment progresses, as circumstances change and as environmental contingencies become more clearly defined and reasonably estimable. As of September 30, 2010, the Company had regulatory approval for remediation action plans in place for two hundred thirty-one (94%) of the two hundred forty-seven properties for which it continues to retain environmental responsibility and the remaining sixteen properties (6%) remain in the assessment phase. In addition, the Company has nominal post-closure compliance obligations at thirty-two properties where it has received “no further action” letters.

Environmental remediation liabilities and related assets are measured at fair value based on their expected future cash flows which have been adjusted for inflation and discounted to present value. The estimated environmental remediation cost and accretion expense included in environmental expenses in the Company’s consolidated statements of operations aggregated $2,442,000 and $3,395,000 for the nine months ended September 30, 2010 and 2009, respectively, which amounts were net of changes in estimated recoveries from state UST remediation funds. In addition to estimated environmental remediation costs, environmental expenses also include project management fees, legal fees and provisions for environmental litigation loss reserves.

As of September 30, 2010 and December 31, 2009, and 2008, the Company had accrued $16,953,000, $16,527,000 and $17,660,000, respectively, as management’s best estimate of the fair value of reasonably estimable environmental remediation costs. As of September 30, 2010 and December 31, 2009 and 2008, the Company had also recorded $4,136,000, $3,882,000 and $4,223,000, 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 liabilities of $12,645,000 and $13,437,000 as of December 31, 2009 and 2008, respectively, were subsequently accreted for the change in present value due to the passage of time and, accordingly, $559,000, and $631,000 of net accretion expense was recorded for the nine months ended September 30, 2010 and 2009, respectively, substantially all of which is included in environmental expenses.
 
 
 
 
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In view of the uncertainties associated with environmental expenditures, contingencies related to Marketing and the Marketing Leases and contingencies related to other parties, however, the Company believes it is possible that the fair value of future actual net expenditures could be substantially higher than amounts currently recorded by the Company. (See note 3 for contingencies related to Marketing and the Marketing Leases for additional information.) 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. Future environmental expenses could cause a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends or stock price.

6.
SHAREHOLDERS’ EQUITY

A summary of the changes in shareholders' equity for the nine months ended September 30, 2010 is as follows (in thousands, except share amounts):
 
 
               
DIVIDENDS
   
ACCUMULATED
       
               
PAID
   
OTHER
       
   
COMMON STOCK
   
PAID-IN
   
IN EXCESS
   
COMPREHENSIVE
       
   
SHARES
   
AMOUNT
   
CAPITAL
   
OF EARNINGS
   
LOSS
   
TOTAL
 
Balance, December 31, 2009
    24,766,376     $ 248     $ 259,459     $ (49,045 )   $ (2,993 )   $ 207,669  
                                                 
Net earnings
                            39,215               39,215  
                                                 
Dividends
                            (40,527 )             (40,527 )
Stock-based employee
  compensation expense
    200               352                       352  
                                                 
Issuance of common stock
    5,175,000       51       108,154                       108,205  
Net unrealized gain on
  interest rate swap
                                    1,262       1,262  
                                                 
Balance, September 30, 2010
    29,941,576     $ 299     $ 367,965     $ (50,357 )   $ (1,731 )   $ 316,176  
 
 
The Company is authorized to issue 20,000,000 shares of preferred stock, par value $.01 per share, of which none were issued as of September 30, 2010 or December 31, 2009.

During the second quarter of 2010, the Company completed a public stock offering of 5,175,000 shares of the Company’s common stock. The $108,205,000 net proceeds from the issuance of common stock (after related transaction costs of $522,000) was used in part to repay a portion of the outstanding balance under the Company’s Credit Agreement and the remainder is available for general corporate purposes.

7. 
ACQUISITION

On September 25, 2009 the Company acquired the real estate assets of thirty-six gasoline station and convenience store properties located primarily in Prince George’s County, Maryland, for $49,000,000 in a sale/leaseback transaction with White Oak Petroleum LLC (“White Oak”). The Company financed this transaction with $24,500,000 of borrowings under the Company’s existing Credit Agreement and $24,500,000 of indebtedness under the Term Loan Agreement entered into on that date.
 
 
 
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The real estate assets were acquired in a simultaneous transaction among ExxonMobil, White Oak, and the Company, whereby White Oak acquired the properties and related businesses from ExxonMobil and simultaneously completed a sale/leaseback of the real estate of all thirty-six properties with the Company. The unitary triple-net lease for the properties between White Oak and the Company has an initial term of twenty years and provides White Oak with options for three renewal terms of ten years each extending to 2059. The unitary triple-net lease provides for 2½% annual rent escalations. White Oak is responsible for all existing and future environmental conditions at the properties. White Oak is an affiliate of DAG Enterprises, Inc.

The selected unaudited financial data of White Oak, LLC as of September 30, 2010 and for the quarter and nine months then ended, which has been prepared by White Oak’s management, is provided below.
 
(in thousands)
   
Operating Data (for the quarter ended September 30, 2010):
 
Gross sales
  $ 42,903  
Gross profit
    1,538  
Net income
    21  
Operating Data (for the nine months ended September 30, 2010):
 
Gross sales
  $ 124,991  
Gross profit
    4,476  
Net (loss)
    (204 )
         
Balance Sheet Data (at September 30, 2010):
       
Current assets
  $ 1,679  
Noncurrent assets
    57,893  
Current liabilities
    5,361  
Noncurrent liabilities
    54,734  

8.   SUPPLEMENTAL CONDENSED COMBINING FINANCIAL INFORMATION

Condensed combining financial information as of September 30, 2010 and December 31, 2009 and for the three and nine months ended September 30, 2010 and September 30, 2009 has been derived from the Company’s books and records and is provided below to illustrate, for informational purposes only, the net contribution to the Company’s financial results that are realized from the leasing operations of properties leased to Marketing (which represents approximately 78% of the Company’s properties as of September 30, 2010) and from properties leased to other tenants. The condensed combining financial information set forth below presents the results of operations, net assets, and cash flows of the Company, related to Marketing, the Company’s other tenants, and the Company’s corporate functions necessary to arrive at the information for the Company on a combined basis. The assets, liabilities, lease agreements and other leasing operations attributable to the Marketing Leases and other tenant leases are not segregated in legal entities. However, the Company generally maintains its books and records in site specific detail and has classified the operating results which are clearly applicable to each owned or leased property as attributable to Marketing or to the Company’s other tenants or to non-operating corporate functions. The condensed combining financial information has been prepared by the Company using certain assumptions, judgments and allocations. Each of the Company’s properties were classified as attributable to Marketing, other tenants or corporate for all periods presented based on the property’s use as of September 30, 2010 or the property’s use immediately prior to its disposition or third party lease expiration.
 
 
 
- 19 -

 

 
Environmental remediation expenses have been attributed to Marketing or other tenants on a site specific basis and environmental related litigation expenses and professional fees have been attributed to Marketing or other tenants based on the pro rata share of specifically identifiable environmental expenses for the period from January 1, 2007 through September 30, 2010. The Company enters into leases and various other agreements which allocate responsibility for known and unknown environmental liabilities by establishing the percentage and method of allocating responsibility between the parties. In accordance with the leases with certain tenants, the Company has agreed to bring the leased properties with known environmental contamination to within applicable standards, and to either regulatory or contractual closure (“Closure”). Generally, upon achieving Closure at each individual property, the Company’s environmental liability under the lease for that property will be satisfied and future remediation obligations will be the responsibility of the Company’s tenant. Of the eight hundred twenty-one properties leased to Marketing as of September 30, 2010, the Company has agreed to pay all costs relating to, and to indemnify Marketing for, certain environmental liabilities and obligations at one hundred eighty-two retail properties that have not achieved Closure and are scheduled in the Master Lease. (See note 5 for additional information.)

The heading “Corporate” in the statements below includes assets, liabilities, income and expenses attributed to general and administrative functions, financing activities and parent or subsidiary level income taxes, capital taxes or franchise taxes which were not incurred on behalf of the Company’s leasing operations and are not reasonably allocable to Marketing or other tenants. With respect to general and administrative expenses, the Company has attributed those expenses clearly applicable to Marketing and other tenants. The Company considered various methods of allocating to Marketing and other tenants amounts included under the heading “Corporate” and determined that none of the methods resulted in a reasonable allocation of such amounts or an allocation of such amounts that more clearly summarizes the net contribution to the Company’s financial results realized from the leasing operations of properties leased to Marketing and of properties leased to other tenants. Moreover, the Company determined that each of the allocation methods it considered resulted in a presentation of these amounts that would make it more difficult to understand the clearly identifiable results from its leasing operations attributable to Marketing and other tenants. The Company believes that the segregated presentation of assets, liabilities, income and expenses attributed to general and administrative functions, financing activities and parent or subsidiary level income taxes, capital taxes or franchise taxes provides the most meaningful presentation of these amounts since changes in these amounts are not fully correlated to changes in the Company’s leasing activities.

While the Company believes these assumptions, judgments and allocations are reasonable, the condensed combining financial information is not intended to reflect what the net results would have been had assets, liabilities, lease agreements and other operations attributable to Marketing or its other tenants had been conducted through stand-alone entities during any of the periods presented.
 
 
 
- 20 -

 
 
The condensed combining balance sheet of Getty Realty Corp. as of September 30, 2010 is as follows (in thousands):


   
Getty
                   
   
Petroleum
   
Other
             
   
Marketing
   
Tenants
   
Corporate
   
Consolidated
 
ASSETS:
                       
Real Estate:
                       
Land
  $ 137,151     $ 116,278     $     $ 253,429  
Buildings and improvements
    152,739       98,292       318       251,349  
      289,890       214,570       318       504,778  
Less — accumulated depreciation and amortization
    (117,886 )     (24,036 )     (181 )     (142,103 )
Real estate, net
    172,004       190,534       137       362,675  
Net investment in direct financing lease
          20,464             20,464  
Deferred rent receivable, net
    21,720       5,959             27,679  
Cash and cash equivalents
                3,587       3,587  
Recoveries from state underground storage tank funds, net
    4,049       87             4,136  
Mortgages and accounts receivable, net
    25       766       1,320       2,111  
Prepaid expenses and other assets
          3,839       3,617       7,456  
Total assets
    197,798       221,649       8,661       428,108  
 
LIABILITIES:
                               
Borrowings under credit line
                38,700       38,700  
Term loan
                23,785       23,785  
Environmental remediation costs
    16,531       422             16,953  
Dividends payable
                14,429       14,429  
Accounts payable and accrued expenses
    1,044       7,672       9,349       18,065  
Total liabilities
    17,575       8,094       86,263       111,932  
                                 
Net assets (liabilities)
  $ 180,223     $ 213,555     $ (77,602 )   $ 316,176  

 
 
 
- 21 -

 

 

The condensed combining balance sheet of Getty Realty Corp. as of December 31, 2009 is as follows (in thousands):

   
Getty
                   
   
Petroleum
   
Other
             
   
Marketing
   
Tenants
   
Corporate
   
Consolidated
 
ASSETS:
                       
Real Estate:
                       
Land
  $ 137,887     $ 114,196     $     $ 252,083  
Buildings and improvements
    154,345       97,171       275       251,791  
      292,232       211,367       275       503,874  
Less — accumulated depreciation and amortization
    (116,128 )     (20,386 )     (155 )     (136,669 )
Real estate, net
    176,104       190,981       120       367,205  
Net investment in direct financing lease
          19,156             19,156  
Deferred rent receivable, net
    22,801       4,680             27,481  
Cash and cash equivalents
                3,050       3,050  
Recoveries from state underground storage tank funds, net
    3,784       98             3,882  
Mortgages and accounts receivable, net
          970       1,432       2,402  
Prepaid expenses and other assets
          4,052       5,644       9,696  
Total assets
    202,689       219,937       10,246       432,872  
 
LIABILITIES:
                               
Borrowings under credit line
                151,200       151,200  
Term loan
                24,370       24,370  
Environmental remediation costs
    16,055       472             16,527  
Dividends payable
                11,805       11,805  
Accounts payable and accrued expenses
    920       8,643       11,738       21,301  
Total liabilities
    16,975       9,115       199,113       225,203  
                                 
Net assets (liabilities)
  $ 185,714     $ 210,822     $ (188,867 )   $ 207,669  

 
 
 
 
- 22 -

 

 


The condensed combining statement of operations of Getty Realty Corp. for the three months ended September 30, 2010 is as follows (in thousands):

 
                       
   
Getty
                   
   
Petroleum
   
Other
             
   
Marketing
   
Tenants
   
Corporate
   
Consolidated
 
Revenues from rental properties
  $ 14,535     $ 7,446     $     $ 21,981  
Operating expenses:
                               
Rental property expenses
    1,473       833       (142 )     2,164  
Environmental expenses, net
    965       28             993  
General and administrative expenses
    19       45       1,742       1,806  
Depreciation and amortization expense
    1,049       1,348       9       2,406  
Total operating expenses
    3,506       2,254       1,609       7,369  
Operating income (loss)
    11,029       5,192       (1,609 )     14,612  
Other income, net
                35       35  
Interest expense
                (1,116 )     (1,116 )
Earnings (loss) from continuing operations
    11,029       5,192       (2,690 )     13,531  
Discontinued operations:
                               
Loss from operating activities
    (194 )     (1 )           (195 )
Gains on dispositions of real estate
    15                   15  
Loss from discontinued operations
    (179 )     (1 )           (180 )
Net earnings (loss)
  $ 10,850     $ 5,191     $ (2,690 )   $ 13,351  



The condensed combining statement of operations of Getty Realty Corp. for the three months ended September 30, 2009 is as follows (in thousands):

 
                       
   
Getty
                   
   
Petroleum
   
Other
             
   
Marketing
   
Tenants
   
Corporate
   
Consolidated
 
Revenues from rental properties
  $ 15,205     $ 5,550     $     $ 20,755  
Operating expenses:
                               
Rental property expenses
    1,770       743       110       2,623  
Environmental expenses, net
    1,997       47             2,044  
General and administrative expenses
    36       32       1,680       1,748  
Depreciation and amortization expense
    1,365       1,251       18       2,634  
Total operating expenses
    5,168       2,073       1,808       9,049  
Operating income (loss)
    10,037       3,477       (1,808 )     11,706  
Other income (expense), net
    (13 )           170       157  
Interest expense
                (1,195 )     (1,195 )
Earnings (loss) from continuing operations
    10,024       3,477       (2,833 )     10,668  
Discontinued operations:
                               
Earnings (loss) from operating activities
    36       (47 )           (11 )
Gains on dispositions of real estate
    1,528                   1,528  
Earnings (loss) from discontinued operations
    1,564       (47 )           1,517  
Net earnings (loss)
  $ 11,588     $ 3,430     $ (2,833 )   $ 12,185  
 
 
 
 
- 23 -

 

 

The condensed combining statement of operations of Getty Realty Corp. for the nine months ended September 30, 2010 is as follows (in thousands):

 
                       
   
Getty
                   
   
Petroleum
   
Other
             
   
Marketing
   
Tenants
   
Corporate
   
Consolidated
 
Revenues from rental properties
  $ 44,166     $ 21,998     $     $ 66,164  
Operating expenses:
                               
Rental property expenses
    4,907       2,529       266       7,702  
Environmental expenses, net
    3,786       94             3,880  
General and administrative expenses
    111       103       5,750       5,964  
Depreciation and amortization expense
    3,154       4,023       26       7,203  
Total operating expenses
    11,958       6,749       6,042       24,749  
Operating income (loss)
    32,208       15,249       (6,042 )     41,415  
Other income, net
                209       209  
Interest expense
                (3,932 )     (3,932 )
Earnings (loss) from continuing operations
    32,208       15,249       (9,765 )     37,692  
Discontinued operations:
                               
Earnings (loss) from operating activities
    (155 )     25             (130 )
Gains on dispositions of real estate
    1,624       29             1,653  
Earnings from discontinued operations
    1,469       54             1,523  
Net earnings (loss)
  $ 33,677     $ 15,303     $ (9,765 )   $ 39,215  



The condensed combining statement of operations of Getty Realty Corp. for the nine months ended September 30, 2009 is as follows (in thousands):

 
                       
   
Getty
                   
   
Petroleum
   
Other
             
   
Marketing
   
Tenants
   
Corporate
   
Consolidated
 
Revenues from rental properties
  $ 45,469     $ 16,439     $     $ 61,908  
Operating expenses:
                               
Rental property expenses
    4,597       3,176       390       8,163  
Impairment charges
    1,069                   1,069  
Environmental expenses, net
    5,540       131             5,671  
General and administrative expenses
    141       184       4,777       5,102  
Depreciation and amortization expense
    4,074       3,737       52       7,863  
Total operating expenses
    15,421       7,228       5,219       27,868  
Operating income (loss)
    30,048       9,211       (5,219 )     34,040  
Other income, net
    38       2       366       406  
Interest expense
                (3,632 )     (3,632 )
Earnings (loss) from continuing operations
    30,086       9,213       (8,485 )     30,814  
Discontinued operations:
                               
Earnings (loss) from operating activities
    193       (112 )           81  
Gains on dispositions of real estate
    4,606       217             4,823  
Earnings from discontinued operations
    4,799       105             4,904  
Net earnings (loss)
  $ 34,885     $ 9,318     $ (8,485 )   $ 35,718  

 
 
 
- 24 -

 
 

 

The condensed combining statement of cash flows of Getty Realty Corp. for the nine months ended September 30, 2010 is as follows (in thousands):

 
                       
   
Getty
                   
   
Petroleum
   
Other
             
   
Marketing
   
Tenants
   
Corporate
   
Consolidated
 
CASH FLOWS FROM OPERATING ACTIVITIES:
                       
Net earnings (loss)
  $ 33,677     $ 15,303     $ (9,765 )   $ 39,215  
Adjustments to reconcile net earnings to net cash flow provided by operating activities:
                               
Depreciation and amortization expense
    3,160       4,024       26       7,210  
Gain from dispositions of real estate
    (1,624 )     (29 )           (1,653 )
Deferred rental revenue
    1,081       (1,279 )           (198 )
Amortization of above-market and below-market leases
          (506 )           (506 )
Amortization of investment in direct financing lease
          (248 )           (248 )
Accretion expense
    546       13             559  
Stock-based employee compensation expense
                352       352  
Changes in assets and liabilities:
                               
Recoveries from state underground storage tank funds, net
    (11 )     17             6  
Mortgages and accounts receivable, net
    (25 )     204             179  
Prepaid expenses and other assets
          (111 )     (156 )     (267 )
Environmental remediation costs
    (324 )     (69           (393 )
Accounts payable and accrued expenses
    124       (348 )     (1,127 )     (1,351 )
Net cash flow provided by (used in) operating activities
    36,604       16,971       (10,670 )     42,905  
 
CASH FLOWS FROM INVESTING ACTIVITIES:
                               
Property acquisitions and capital expenditures
          (4,627 )     (42 )     (4,669 )
Proceeds from dispositions of real estate
    2,564       225             2,789  
Decrease in cash held for property acquisitions
                2,183       2,183  
Collection of mortgages receivable, net
                112       112  
Net cash flow provided by (used in) investing activities
    2,564       (4,402 )     2,253       415  
 
CASH FLOWS FROM FINANCING ACTIVITIES:
                               
Repayments under credit agreement, net
                (112,500 )     (112,500 )
Repayments under term loan agreement
                (585 )     (585 )
Cash dividends paid
                (37,903 )     (37,903 )
Net proceeds from issuance of common stock
                108,205       108,205  
Cash consolidation – Corporate
    (39,168 )     (12,569 )     51,737        
Net cash flow (used in) provided by financing activities
    (39,168 )     (12,569 )     8,954       (42,783 )
                                 
Net increase in cash and cash equivalents
                537       537  
Cash and cash equivalents at beginning of period
                3,050       3,050  
Cash and cash equivalents at end of year
  $     $     $ 3,587     $ 3,587  
 
 
 
 
- 25 -

 

 
The condensed combining statement of cash flows of Getty Realty Corp. for the nine months ended September 30, 2009 is as follows (in thousands):

 
                       
   
Getty
                   
   
Petroleum
   
Other
             
   
Marketing
   
Tenants
   
Corporate
   
Consolidated
 
CASH FLOWS FROM OPERATING ACTIVITIES:
                       
Net earnings (loss)
  $ 34,885     $ 9,318     $ (8,485 )   $ 35,718  
Adjustments to reconcile net earnings to net cash flow provided by operating activities:
                               
Depreciation and amortization expense
    4,112       3,885       52       8,049  
Impairment charges
    1,069                   1,069  
Gain from dispositions of real estate
    (4,644 )     (219 )           (4,863 )
Deferred rental revenue
    51       (491 )           (440 )
Amortization of above-market and below-market leases
          (570 )           (570 )
Accretion expense
    616       15             631  
Stock-based employee compensation expense
                293       293  
Changes in assets and liabilities:
                               
Recoveries from state underground storage tank funds, net
    350       48