Getty Realty Corp 8-K, filed Feb 16, 2024
Getty Realty Corp (GTY)
About this 8-K
Getty Realty Corp filed this 8-K on February 16, 2024.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of Registrant as Specified in Its Charter)
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(Commission File Number) |
(IRS Employer Identification No.) |
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| (Address of Principal Executive Offices) | (Zip Code) |
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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 (see General Instructions A.2. below):
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| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 8.01. | Other Events. |
On February 16, 2024, Getty Realty Corp. (the “Company”) entered into an Amendment No. 1 (the “Amendment”) to the Distribution Agreement, dated as of February 24, 2023 (the “Distribution Agreement”) with each of J.P. Morgan Securities LLC, BofA Securities, Inc., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc., Robert W. Baird & Co. Incorporated, BTIG, LLC, Nomura Securities International, Inc., Capital One Securities, Inc., Citizens JMP Securities, LLC and TD Securities (USA) LLC, acting in their capacity as Agents (as described below) and/or Forward Sellers (as described below), and each of JPMorgan Chase Bank, National Association, Bank of America, N.A., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc., The Toronto-Dominion Bank, Robert W. Baird & Co. Incorporated, Citizens JMP Securities, LLC and Nomura Global Financial Products, Inc., acting in their capacity as Forward Purchasers (as described below), relating to the offer and sale of shares of the Company’s common stock, par value $0.01 per share, having an aggregate offering price of up to $350,000,000 (the “Shares”). The Company refers to these entities, when acting in their capacity as sales agents, individually as an “Agent” and collectively as “Agents.” The Company refers to these entities, when acting as agents for the Forward Purchasers, individually as a “Forward Seller” and collectively as “Forward Sellers.”
The Distribution Agreement provides that, in addition to the issuance and sale of the Shares to or through the Agents, the Company may also enter into forward sale agreements under the separate master forward confirmations and related supplemental confirmations between the Company and a Forward Seller or its affiliate. The Company refers to these entities, when acting in this capacity, individually as a “Forward Purchaser” and collectively as “Forward Purchasers.” In connection with any forward sale agreement, the relevant Forward Purchaser (or its affiliate) will attempt to borrow from third parties and, through its affiliated Forward Seller, sell a number of shares of common stock equal to the number of shares of common stock underlying the particular forward sale agreement.
The purpose of the Amendment was to: (i) add Robert W. Baird & Co. Incorporated, Citizens JMP Securities, LLC and Nomura Securities International, Inc. each as a Forward Seller, (ii) add Robert W. Baird & Co. Incorporated, Citizens JMP Securities, LLC and Nomura Global Financial Products, Inc. each as a Forward Purchaser, and (iii) set the aggregate offering price of the Shares of up to $350,000,000 as of February 16, 2024.
The Shares will be issued pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-276399), which became effective upon filing with the Securities and Exchange Commission (“SEC”) on January 5, 2024, and a prospectus supplement, dated February 16, 2024, as the same may be amended or supplemented. This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any of the Shares.
The foregoing description of the Amendment and the master forward confirmations (and related supplemental confirmations) does not purport to be complete and is qualified in its entirety by the full text of the Amendment and the form of master forward confirmation, which are attached as Exhibits 1.2 and 1.3 hereto and are incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits: |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| GETTY REALTY CORP. | ||||||
| Date: February 16, 2024 | By: | /s/ Brian R. Dickman | ||||
| Brian R. Dickman | ||||||
| Chief Financial Officer and Treasurer | ||||||
Exhibit 1.2
Getty Realty Corp.
$350,000,000
Shares of Common Stock
($0.01 par value)
Amendment No. 1 to the Distribution Agreement
February 16, 2024
| J.P. Morgan Securities LLC 383 Madison Avenue, 6th Floor New York, New York 10179
Goldman Sachs & Co. LLC 200 West Street New York, New York 10282
Robert W. Baird & Co. Incorporated 777 E. Wisconsin Avenue Milwaukee, Wisconsin 53202
Capital One Securities, Inc. 299 Park Avenue, 29 & 31 Floor New York, New York 10167
TD Securities (USA) LLC 1 Vanderbilt Avenue New York, NY 10017 |
BofA Securities, Inc. One Bryant Park New York, New York 10036
KeyBanc Capital Markets Inc. 127 Public Square, 7th Floor Cleveland, Ohio 44114
BTIG, LLC 65 East 55th Street New York, New York 10022
Citizens JMP Securities, LLC 600 Montgomery Street, Suite 1100 San Francisco, California 94111 | |
| As Agents | ||
| JPMorgan Chase Bank, National Association 383 Madison Avenue, 6th Floor New York, NY 10179
Goldman Sachs & Co. LLC 200 West Street New York, NY 10282
The Toronto-Dominion Bank c/o TD Securities (USA) LLC, as agent 1 Vanderbilt Avenue New York, NY 10017 |
Bank of America, N.A. One Bryant Park New York, NY 10036
KeyBanc Capital Markets Inc. 127 Public Square, 7th Floor Cleveland, Ohio 44114 | |
| As Initial Forward Purchasers | ||
| J.P. Morgan Securities LLC 383 Madison Avenue, 6th Floor New York, New York 10179
Goldman Sachs & Co. LLC 200 West Street New York, NY 10282
TD Securities (USA) LLC 1 Vanderbilt Avenue New York, NY 10017 |
BofA Securities, Inc. One Bryant Park New York, NY 10036
KeyBanc Capital Markets Inc. 127 Public Square, 7th Floor Cleveland, Ohio 44114 | |
| As Initial Forward Sellers | ||
| Robert W. Baird & Co. Incorporated 777 E. Wisconsin Avenue Milwaukee, Wisconsin 53202
Nomura Global Financial Products, Inc. 309 West 49th Street New York, NY 10019 |
Citizens JMP Securities, LLC 450 Park Avenue, 5th Floor New York, NY 10022 | |
| As Additional Forward Purchasers | ||
| Robert W. Baird & Co. Incorporated 777 E. Wisconsin Avenue Milwaukee, Wisconsin 53202
Nomura Securities International, Inc. 309 West 49th Street New York, NY 10019 |
Citizens JMP Securities, LLC 450 Park Avenue, 5th Floor New York, NY 10022 | |
| As Additional Forward Sellers | ||
AMENDMENT NO. 1 TO THE DISTRIBUTION AGREEMENT, dated as of February 16, 2024 (this “Amendment”), by and between Getty Realty Corp., a corporation organized under the laws of Maryland (the “Company”), J.P. Morgan Securities LLC, BofA Securities, Inc., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc., Robert W. Baird & Co. Incorporated, BTIG, LLC, Capital One Securities, Inc., Citizens JMP Securities, LLC and TD Securities (USA) LLC (each, in its capacity as sales agent and/or in its capacity as principal, an “Agent” or collectively, the “Agents”), JPMorgan Chase Bank, National Association, Bank of America, N.A., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc. and The Toronto-Dominion Bank (each, in its capacity as purchaser under any Forward Contract (as defined in the Distribution Agreement), an “Initial
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Forward Purchaser” or collectively, the “Initial Forward Purchasers”), J.P. Morgan Securities LLC, BofA Securities, Inc., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc. and TD Securities (USA) LLC (each, in its capacity as agent for its affiliated Initial Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares (as defined in the Distribution Agreement), an “Initial Forward Seller” or collectively, the “Initial Forward Sellers”), Robert W. Baird & Co. Incorporated, Citizens JMP Securities, LLC and Nomura Global Financial Products, Inc. (each, in its capacity as purchaser under any Forward Contract (as defined in the Distribution Agreement), an “Additional Forward Purchaser” or collectively, the “Additional Forward Purchasers”, and together with the Initial Forward Purchasers, the “Forward Purchasers” and each a “Forward Purchaser”) and Robert W. Baird & Co. Incorporated, Citizens JMP Securities, LLC and Nomura Securities International, Inc. (acting through BTIG, LLC, as agent) (each, in its capacity as agent for its affiliated Additional Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares, an “Additional Forward Seller” or collectively, the “Additional Forward Sellers” and together with the Initial Forward Sellers, the “Forward Sellers” and each a “Forward Seller”).
W I T N E S S E T H
WHEREAS, the Company, the Agents, the Initial Forward Purchasers and the Initial Forward Sellers are parties to that certain Distribution Agreement, dated as of February 24, 2023 (the “Distribution Agreement”); and
WHEREAS, the Company, the Agents, the Initial Forward Purchasers and the Initial Forward Sellers have agreed to amend the Distribution Agreement solely to add the Additional Forward Purchasers and the Additional Forward Seller as Forward Purchasers and Forward Sellers, respectively, under the Distribution Agreement.
NOW, THEREFORE, in consideration of the premises herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
| 1. | Effective as of February 16, 2024: |
| (a) | The introductory paragraph of the Distribution Agreement, shall be, and it hereby is, amended and restated in its entirety as follows: |
Getty Realty Corp., a Maryland corporation (the “Company”), confirms its agreement with each of J.P. Morgan Securities LLC, BofA Securities, Inc., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc., Robert W. Baird & Co. Incorporated, BTIG, LLC, Capital One Securities, Inc., Citizens JMP Securities, LLC and TD Securities (USA) LLC (each, in its capacity as sales agent in connection with the offering and sale of Issuance Shares (as defined below) hereunder, and/or in its capacity as principal under any Terms Agreement (as defined in Section 1(a) below), an “Agent” or collectively, the “Agents”), JPMorgan Chase Bank, National Association, Bank of America, N.A., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc., The Toronto-Dominion Bank, Robert W. Baird & Co. Incorporated, Citizens JMP Securities, LLC and Nomura Global Financial Products, Inc. (each, in its capacity as purchaser under any Forward Contract
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(as defined in Section below), a “Forward Purchaser” or collectively, the “Forward Purchasers”) and J.P. Morgan Securities LLC, BofA Securities, Inc., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc., TD Securities (USA) LLC, Robert W. Baird & Co. Incorporated, Citizens JMP Securities, LLC and Nomura Securities International, Inc. (acting through BTIG, LLC, as agent) (each, in its capacity as agent for its affiliated Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares (as defined below), a “Forward Seller” or collectively, the “Forward Sellers”), with respect to the offering and/or issuance and sale from time to time, in the manner and subject to the terms and conditions described below in this Distribution Agreement (this “Agreement”), of shares of common stock, $0.01 par value per share (the “Common Stock”), of the Company having an aggregate actual gross sales price (the “Gross Sales Price”) of up to $350,000,000 (the “Maximum Amount”) on the terms set forth in Section 1 of this Agreement. The Issuance Shares (as defined below) and the Forward Hedge Shares (as defined below) offered and sold pursuant to this Agreement shall be referred to herein as the “Shares”.
| (b) | Section 10. Notices of the Distribution Agreement, shall be, and it hereby is, amended and restated in its entirety as follows: |
All notices and other communications under this Agreement and any Terms Agreement shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of communication, and, if to the Agents, Forward Purchasers or Forward Sellers shall be sufficient in all respects if delivered or sent to (i) J.P. Morgan Securities LLC at 383 Madison Avenue, 6th Floor, New York, New York 10179, Attn: Special Equities Group, Sanjeet Dewal (email: Sanjeet.s.dewal@jpmorgan.com); (ii) BofA Securities, Inc. at One Bryant Park, New York, New York 10036, Attn: ATM Execution (email: dg.atm_execution@bofa.com), with a copy to ECM Legal (Fax: (212) 230-8730); (iii) Goldman Sachs & Co. LLC at 200 West Street, New York, New York 10282, Attn: Michael Voris and Ryan Cunn, Equity Capital Markets (emails: michael.voris@gs.com; ryan.cunn@gs.com); (iv) KeyBanc Capital Markets Inc. at 127 Public Square, 7th Floor, Cleveland, Ohio 44114, Attn: Jaryd Banach (email: Jaryd.Banach@key.com), John Horrigan (email: jhorrigan@key.com), Michael Jones (email:michael.c.jones@key.com), and John Salisbury (email: john.salisbury@key.com); (v) Robert W. Baird & Co. Incorporated at 777 E. Wisconsin Avenue, Milwaukee, Wisconsin 53202, Attn: Syndicate Department (facsimile: (414) 298-7474), with a copy to the Legal Department; (vi) BTIG, LLC at 65 East 55th Street, New York, New York 10022, Attn: Equity Capital Markets (email:BTIGUSATMTrading@btig.com) with a copy (which shall not constitute notice) to: 600 Montgomery Street, San Francisco, CA 94111, Attn: General Counsel and Chief Compliance Officer (emails: BTIGcompliance@btig.com and IBLegal@btig.com); (vii) Capital One Securities Inc. at 201 St. Charles Street, Suite 1830, New Orleans, Louisiana 70170, Attention Gabrielle Halprin (email:
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gabrielle.halprin@capitalone.com); (viii) Citizens JMP Securities, LLC at 600 Montgomery Street, Suite 1100, San Francisco, California 94111, Attn: Equity Syndicate (email: syndicate@jmpsecurities.com), (ix) TD Securities (USA) LLC at 1 Vanderbilt Avenue, New York, NY 10017 Attn: Equity Capital Markets (email: TDS_ATM@tdsecurities.com); (x) Nomura Securities International, Inc. at 309 West 49th Street, New York, NY 10019, Attention: Structured Equity Solutions (email: atmexecution@nomura.com) with a copy (which shall not constitute notice) to: 309 West 49th Street, New York, NY 10019, Attention: Equities Legal (email: Dan.Rosenbaum@nomura.com) and to BTIG, LLC at the address provided for BTIG, LLC above; (xi) Nomura Global Financial Products, Inc. at 309 West 49th Street, New York, NY 10019, Attention: Structured Equity Solutions (email: cedamericas@nomura.com) with a copy (which shall not constitute notice) to: 309 West 49th Street, New York, NY 10019, Attention: Equities Legal (email: nyequitieslegal@nomura.com) and to BTIG, LLC as its executing agent at the address provided for BTIG, LLC above; and, if to the Company, shall be sufficient in all respects if delivered or sent to it at Getty Realty Corp., Two Jericho Plaza, Suite 110, Jericho, New York 11753, Attn: Joshua Dicker, General Counsel (email: jdicker@gettyrealty.com).
Notwithstanding the foregoing, Transaction Proposals shall be delivered by the Company to the Agents either by telephone (confirmed promptly by email) or email to the applicable Agent as follows: (i) if to J.P. Morgan Securities LLC, then to: Sanjeet Dewal (telephone number: (212) 622-8783; email: Sanjeet.s.dewal@jpmorgan.com); Ara Movesian (telephone number: (212) 622-2619; email: ara.movesian@jpmorgan.com); Jemil Salih (telephone number: (212) 622-2723; email: jemil.d.salih@jpmorgan.com); (ii) if to BofA Securities, Inc., then to: Christine Roemer (telephone number: (646) 855-8901; email: Christine.roemer@bofa.com); Rohan Handa (telephone number: (646) 855-8654; email: rohan.handa@bofa.com); (iii) if to Goldman Sachs & Co. LLC, then to: Michael Voris (telephone: (212) 902-4895, facsimile: (212) 291-5027, email: michael.voris@gs.com), Ryan Cunn (telephone: (212) 902-4895, facsimile: (212) 291-5027, email: ryan.cunn@gs.com), Equity Capital Markets (telephone: (212) 902-4895, facsimile: (212) 291-5027, email: eq-derivs-notifications@ny.ibd.gs.com, gs-reecm@ny.email.gs.com) and Registration Department (email: registration-syndops@ny.email.gs.com); (iv) if to KeyBanc Capital Markets Inc., then to: Jaryd Banach (telephone number: 212-297-2724, email: Jaryd.Banach@key.com), John Horrigan (telephone number: 216-689-4615, email: jhorrigan@key.com), John Salisbury (telephone number: 216-689-3910, email: john.salisbury@key.com); and Michael Jones (telephone number: (216) 689-3910; email: Michael.c.jones@key.com); (v) if to Robert W. Baird & Co. Incorporated, then to: Sandy Walter (telephone number: (414) 559-3516; email: swalter@rwbaird.com); Matt Gailey (telephone number: (847) 951-5526; email: mgailey@rwbaird.com); Barbara Nelson
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(telephone number: (414) 765-3787; email: banelson@rwbaird.com); (vi) if to BTIG, LLC, then to: Anthony Wayne (telephone number: (415) 248-5401; email: awayne@btig.com), Michael Passaro (telephone number: (212) 882-2311; email: mpassaro@btig.com), BTIG US ATM TRADING (email: BTIGUSATMTrading@btig.com) BTIG Compliance (email: BTIGcompliance@btig.com) and Carrie Taylor (email: ctaylor@btig.com); (vii) if to Capital One Securities, Inc., then to: Gabrielle Halprin (telephone number: (504) 528-9174; email: gabrielle.halprin@capitalone.com); (viii) if to Citizens JMP Securities, LLC, then to: Aidan Whitehead (telephone number: (415) 263-1676; email: awhitehead@jmpsecurities.com), Eric Clark (telephone number: (415) 835-3941; email: eclark@jmpsecurities.com), and Gianpaolo Arpaia (telephone number: (212) 906-3533, email: garpaia@jmpsecurities.com); (ix) if to TD Securities (USA) LLC, then to: Global Equity Derivatives (telephone number: (212) 827-7306, email: TDUSA-GEDUSInvestorSolutionsSales@tdsecurities.com), and ATM Execution (email: TDS_ATM@tdsecurities.com); (x) if to Nomura Securities International, Inc. and Nomura Global Financial Products, Inc., (each to be provided notice only in the event of a Forward Placement Notice), then to Nomura Securities International, Inc., Attention: Structured Equity Solutions (email: cedamericas@nomura.com) and Nomura Global Financial Products, Inc., Attention: Structured Equity Solutions (email: cedamericas@nomura.com), with a copy to BTIG, LLC at the notice addresses for Transaction Proposals contained above in this paragraph; and Transaction Acceptances shall be delivered by the Agents, Forward Purchasers or Forward Sellers to the Company either by telephone (confirmed promptly by email) or email to Brian Dickman (telephone number: (646) 349-0452; email: bdickman@gettyrealty.com) and Joshua Dicker (telephone number: (646) 349-0749; email: jdicker@gettyrealty.com).
| (c) | The following provision shall be added to Section 2(h) of the Distribution Agreement: |
Any Forward Placement Notice (or amendment thereto) delivered to Nomura Global Financial Products Inc. as Forward Purchaser and Nomura Securities International, Inc. (acting through BTIG, LLC as agent) as Forward Seller shall not be deemed accepted or agreed to until accepted or agreed to by each of Nomura Global Financial Products Inc., Nomura Securities International, Inc. and BTIG, LLC, and such Forward Placement Notice (or such amendment) shall not be effective against Nomura Global Financial Products Inc. and Nomura Securities International, Inc. until accepted by each of Nomura Global Financial Products Inc., Nomura Securities International, Inc. and BTIG, LLC. For the avoidance of doubt, each of Nomura Global Financial Products Inc., Nomura Securities International, Inc. and BTIG, LLC may, in its sole discretion, accept, agree to or reject any Forward Placement Notice (or amendment thereto).
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Except as expressly provided hereby, the parties further agree that all of the terms and provisions of the Distribution Agreement are and shall remain in full force and effect.
This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all such counterparts shall together constitute one and the same instrument.
This Amendment shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
Capitalized terms used herein and not defined herein shall have the same meanings as in the Distribution Agreement.
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If the foregoing is in accordance with your understanding of our agreement, please so indicate in the space provided below for that purpose, whereupon this Amendment and your acceptance shall represent a binding agreement among the Company, the Agents, the Forward Sellers and the Forward Purchasers.
| Very truly yours, | ||
| GETTY REALTY CORP. | ||
| By: | /s/ Brian Dickman | |
| Name: | Brian Dickman | |
| Title: | Chief Financial Officer | |
| The foregoing Amendment is hereby confirmed and accepted as of the date first written above. | ||
| As Agents, | ||
| J.P. MORGAN SECURITIES LLC | ||
| By: | /s/ Sanjeet Dewal | |
| Name: | Sanjeet Dewal | |
| Title: | Managing Director | |
| BOFA SECURITIES, INC. | ||
| By: | /s/ Tim Olsen | |
| Name: | Tim Olsen | |
| Title: | Managing Director | |
| GOLDMAN SACHS & CO. LLC | ||
| By: | /s/ Ryan Cunn | |
| Name: | Ryan Cunn | |
| Title: | Managing Director | |
| KEYBANC CAPITAL MARKETS INC. | ||
| By: | /s/ Jaryd Banach | |
| Name: | Jaryd Banach | |
| Title: | Managing Director, Equity Capital Markets | |
| ROBERT W. BAIRD & CO. INCORPORATED | ||
| By: | /s/ Christopher Walter | |
| Name: | Chistopher Walter | |
| Title: | Managing Director | |
| BTIG, LLC | ||
| By: | /s/ Anthony Wayne | |
| Name: | Anthony Wayne | |
| Title: | Managing Director, Head of Real Estate Investment Banking | |
| CAPITAL ONE SECURITIES, INC. | ||
| By: | /s/ Phil Winiecki | |
| Name: | Phil Winiecki | |
| Title: | Managing Director | |
| CITIZENS JMP SECURITIES, LLC | ||
| By: | /s/ Eric Clark | |
| Name: | Eric Clark | |
| Title: | Managing Director | |
| TD SECURITIES (USA) LLC | ||
| By: | /s/ Brad Limpert | |
| Name: | Brad Limpert | |
| Title: | Managing Director | |
| As Forward Purchasers, | ||
| JPMORGAN CHASE BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Sanjeet Dewal | |
| Name: | Sanjeet Dewal | |
| Title: | Managing Director | |
| BANK OF AMERICA, N.A. | ||
| By: | /s/ Rohan Handa | |
| Name: | Rohan Handa | |
| Title: | Managing Director | |
| GOLDMAN SACHS & CO. LLC | ||
| By: | /s/ Ryan Cunn | |
| Name: | Ryan Cunn | |
| Title: | Managing Director | |
| KEYBANC CAPITAL MARKETS INC. | ||
| By: | /s/ Jaryd Banach | |
| Name: | Jaryd Banach | |
| Title: | Managing Director, Equity Capital Markets | |
| THE TORONTO-DOMINION BANK | ||
| By: | /s/ Vanessa Simonetti | |
| Name: | Vanessa Simonetti | |
| Title: | Managing Director | |
| NOMURA GLOBAL FINANCIAL PRODUCTS, INC. | ||
| By: | /s/ Jeffrey Petillo | |
| Name: | Jeffrey Petillo | |
| Title: | Authorized Representative | |
| ROBERT W. BAIRD & CO. INCORPORATED | ||
| By: | /s/ Christopher Walter | |
| Name: | Christopher Walter | |
| Title: | Managing Director | |
| CITIZENS JMP SECURITIES, LLC | ||
| By: | /s/ Eric Clark | |
| Name: | Eric Clark | |
| Title: | Managing Director | |
| As Forward Sellers, | ||
| J.P. MORGAN SECURITIES LLC | ||
| By: | /s/ Sanjeet Dewal | |
| Name: | Sanjeet Dewal | |
| Title: | Managing Director | |
| BOFA SECURITIES, INC. | ||
| By: | /s/ Tim Olsen | |
| Name: | Tim Olsen | |
| Title: | Managing Director | |
| GOLDMAN SACHS & CO. LLC | ||
| By: | /s/ Ryan Cunn | |
| Name: | Ryan Cunn | |
| Title: | Managing Director | |
| KEYBANC CAPITAL MARKETS INC. | ||
| By: | /s/ Jaryd Banach | |
| Name: | Jaryd Banach | |
| Title: | Managing Director, Equity Capital Markets | |
| TD SECURITIES (USA) LLC | ||
| By: | /s/ Brad Limpert | |
| Name: | Brad Limpert | |
| Title: | Managing Director | |
| NOMURA SECURITIES INTERNATIONAL, INC. | ||
| By: | /s/ Jason Eisenhauer | |
| Name: | Jason Eisenhauer | |
| Title: | Managing Director | |
| ROBERT W. BAIRD & CO. INCORPORATED | ||
| By: | /s/ Christopher Walter | |
| Name: | Christopher Walter | |
| Title: | Managing Director | |
| CITIZENS JMP SECURITIES, LLC | ||
| By: | /s/ Eric Clark | |
| Name: | Eric Clark | |
| Title: | Managing Director | |
Exhibit 5.1
|
DLA Piper LLP (US) 650 South Exeter Street Suite 1100 Baltimore, MD 21202-4576 www.dlapiper.com
T 410.580.3000 F 410.580.3001 |
February 16, 2024
Getty Realty Corp.
Two Jericho Plaza, Suite 110
Jericho, New York 11753
| Re: | Issuance of Up to $350,000,000 of Shares of Common Stock |
Ladies and Gentlemen:
We have served as counsel to Getty Realty Corp., a Maryland corporation (the “Company”), in connection with (a) the sale from time to time of up to $350,000,000 of shares (the “Shares”) of common stock, par value $0.01 per share, of the Company (the “Common Stock”) pursuant to the terms of the Distribution Agreement, dated as of February 24, 2023 as amended by Amendment No. 1 to the Distribution Agreement, dated February 16, 2024 (collectively, and as may be further amended from time to time, the “Distribution Agreement”), by and among the Company and each of J.P. Morgan Securities LLC, JPMorgan Chase Bank, National Association, BofA Securities, Inc., Bank of America, N.A., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc., Robert W. Baird & Co. Incorporated, BTIG, LLC, Nomura Global Financial Products, Inc., Nomura Securities International, Inc., Capital One Securities, Inc., Citizens JMP Securities, LLC, TD Securities (USA) LLC and The Toronto-Dominion Bank, and (b) the separate Master Forward Confirmations, dated as of February 24, 2023 (the “Initial Master Forward Confirmations”), by and among the Company and each of JPMorgan Chase Bank, National Association, Bank of America, N.A., Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc., and The Toronto-Dominion Bank and the separate Master Forward Confirmations, dated as of February 16, 2024, by and among the Company and each of Robert W. Baird & Co. Incorporated, Citizens JMP Securities, LLC and Nomura Global Financial Products, Inc. (and together with the Initial Master Forward Confirmations, the “Master Forward Confirmations”).
The Shares have been registered on a Registration Statement on Form S-3 (Registration No. 333-276399), which became effective upon filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on January 5, 2024 (the “Registration Statement”).
In connection with our representation of the Company, and as a basis for the opinion expressed herein, we have reviewed originals or copies, certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):
| (a) | the Registration Statement; |
| (b) | the prospectus supplement, dated February 16, 2024, filed with the Commission pursuant to Rule 424(b) under the Securities Act, together with the base prospectus, dated January 5, 2024 (collectively, the “Prospectus”); |
Getty Realty Corp.
February 16, 2024
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| (c) | executed copies of the Distribution Agreement and the Master Forward Confirmations; |
| (d) | the Articles of Incorporation of the Company, together with all amendments and supplements thereto filed through the date hereof (the “Charter”), as certified as of a recent date by the State Department of Assessments and Taxation of the State of Maryland (the “SDAT”), and by the Secretary of the Company to be in effect on the date hereof; |
| (e) | the Bylaws of the Company, as amended and restated to the date hereof (the “Bylaws”), as certified by the Secretary of the Company to be in effect on the date hereof; |
| (f) | resolutions adopted by the Board of Directors of the Company (the “Board”) on December 22, 2023, relating to the filing of the Registration Statement, and February 21, 2023 and February 13, 2024, relating to, among other matters, (i) the offering and sale of the Shares, (ii) the authorization of the execution, delivery and performance by the Company of the Distribution Agreement, and (iii) the delegation to certain officers of the Company (the “Authorized Officers”) of the power to determine, subject to certain parameters, the number of Shares and the offering price of each Share to be sold from time to time pursuant to the Distribution Agreement, as certified by the Secretary of the Company to be in effect on the date hereof (collectively, the “Resolutions”) |
| (g) | a good standing certificate for the Company, dated as of February 14, 2023, issued by the SDAT (the “Good Standing Certificate”); and |
| (h) | an executed copy of the certificate of the Secretary of the Company (the “Certificate”), dated as of the date hereof, as to certain factual matters therein; and |
| (i) | such other documents as we have deemed necessary or appropriate to enable us to express the opinions set forth below. |
In examining the Documents, we have assumed, without independent investigation, the genuineness and validity of all signatures, the legal capacity of all individuals who have executed any of the aforesaid documents, the authenticity of all documents submitted to us as originals, and the conformity with originals of all documents submitted to us as copies (and the authenticity of the originals of such copies), the absence of other agreements or understandings among the parties that would modify the terms of the proposed transactions or the respective rights or obligations of the parties thereunder and the accuracy and completeness of all public records reviewed by us. In making our examination of the Documents, we have assumed that such parties had the power and authority (corporate, trust, partnership or other) to enter into and perform all obligations thereunder, and we have also assumed the due authorization by all requisite action (corporate, trust, partnership or other) and the valid execution and delivery by such parties of such documents and the validity, binding effect and enforceability thereof with respect to such parties. As to any facts material to this opinion, we have relied solely upon the Certificate.
We further assume that:
| (a) | The Shares will not be issued or transferred in violation of the restrictions on transfer and ownership of shares of stock of the Company set forth in Article VI of the Charter. |
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February 16, 2024
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| (b) | The Company will not issue any shares of Common Stock other than the Shares. |
| (c) | The number of Shares, and the offering price of each Share, to be issued by the Company from time to time pursuant to the Distribution Agreement will be authorized and approved by the Board or the Authorized Officers in accordance with and not in violation of the Maryland General Corporation Law (the “MGCL”), the Charter, the Bylaws and the Resolutions (with such approvals referred to hereinafter as the “Corporate Proceedings”) prior to the issuance thereof and, upon issuance of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter. |
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
| (1) | The Company is a corporation validly existing under the laws of the State of Maryland and is in good standing with the SDAT. |
| (2) | The Shares have been duly authorized and, when and to the extent issued against payment therefor in accordance with the Corporate Proceedings and the terms of the Distribution Agreement, will be validly issued, fully paid and non-assessable. |
In addition to the qualifications set forth above, the foregoing opinion is further qualified as follows:
| (a) | The opinion in paragraph (1) with respect to the existence and good standing of the Company is based solely on the Good Standing Certificate. |
| (b) | The foregoing opinion is rendered as of the date hereof. We assume no obligation to update such opinion to reflect any facts or circumstances that may hereafter come to our attention or changes in the law which may hereafter occur. |
| (c) | We do not express any opinion herein concerning any law other than the MGCL (including the statutory provisions, all applicable provisions of the Maryland Constitution and the reported judicial decisions interpreting the foregoing). This opinion concerns only the effect of such laws (exclusive of the principles of conflict of laws) as currently in effect. As to matters of such laws, we have based our opinion solely upon our examination of such laws and the rules and regulations of the authorities administering such laws, all as reported in standard, unofficial compilations. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements. |
| (d) | This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated. |
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February 16, 2024
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This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Shares (the “Current Report”) and supplements our opinion dated January 5, 2024 previously filed as Exhibit 5.1 to the Registration Statement. We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Current Report on the date hereof and to the use of the name of our firm in the section entitled “Legal Matters” in the Prospectus. In giving our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ DLA Piper LLP (US) |
| DLA PIPER LLP (US) |