<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1997
REGISTRATION NO. 333-38843
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 2
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
G & L REALTY CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 95-449388
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NUMBER)
439 N. BEDFORD DRIVE
BEVERLY HILLS, CALIFORNIA 90210
(310) 273-9930
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
DANIEL M. GOTTLIEB
G & L REALTY CORP.
439 N. BEDFORD DRIVE
BEVERLY HILLS, CALIFORNIA 90210
(310) 273-9930
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
DHIYA EL-SADEN, ESQ. MICHAEL J. CONNELL, ESQ.
GIBSON, DUNN & CRUTCHER LLP MORRISON & FOERSTER LLP
333 SOUTH GRAND AVENUE 555 WEST FIFTH STREET
LOS ANGELES, CALIFORNIA 90071-3197 LOS ANGELES, CALIFORNIA 90013-1024
(213) 229-7000 (213) 892-5200
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement from the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES
AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE>
THIS AMENDMENT NO. 2 TO THE REGISTRATION STATEMENT ON FORM S-11 (THE
"REGISTRATION STATEMENT") OF G & L REALTY CORP., A MARYLAND CORPORATION (THE
"COMPANY"), IS BEING FILED SOLELY FOR THE PURPOSE OF FILING THE SEVERAL
EXHIBITS ATTACHED HERETO.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 30. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following expenses will be paid by the Company.
<TABLE>
<S> <C>
SEC Registration Fee............................................ $ 9,091
NYSE Listing Application Fee.................................... 20,500*
NASD Fee........................................................ 3,500*
Legal fees and expenses......................................... 200,000*
Accounting fees and expenses.................................... 65,000*
Transfer agent fees............................................. 5,000*
Blue sky fees and expenses...................................... 1,000*
Printing expenses............................................... 100,000*
Miscellaneous................................................... 45,909*
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Total......................................................... $450,000*
========
</TABLE>
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* Estimated
ITEM 31. SALES TO SPECIAL PARTIES
Not applicable.
ITEM 32. RECENT SALES OF UNREGISTERED SECURITIES
Prior to April, 1996, Messrs. Milner, Gottlieb and Lebowitz were beneficial
owners of 445 LLC, having equity interests of 59.0%, 24.6% and 16.4%,
respectively. 445 LLC's primary asset was an office building located at 445 N.
Bedford Drive, in Beverly Hills, California. On April 26, 1996, the Company
acquired Mr. Milner's interest in 445 LLC for $808,000. On June 14, 1996, 445
LLC completed a tax-deferred exchange transaction whereby it sold the office
building and acquired, along with the Operating Partnership as tenants-in-
common, the Tustin Properties. Subsequently, 445 LLC redeemed the Company's
interest in 445 LLC in exchange for a portion of 445 LLC's interest in the
Tustin Properties. On June 28, 1996, 445 LLC contributed its remaining
interest in the Tustin Properties to the Operating Partnership in exchange for
39,215 newly issued Units in the Operating Partnership. The new Units were
valued at a price of $14.00 per Unit, which reflected a premium of $1.00 over
the closing price of a share of the Company's common stock on the date the
Company's Board of Directors approved the exchange. The contributed interest
in the Tustin Properties was valued according to the price paid by the
purchaser of the office building at 445 N. Bedford in connection with the
exchange transaction involving the Tustin Properties. The Company believes
that the sale of Units to Messrs. Gottlieb and Lebowitz was exempt from
registration under the Securities Act pursuant to Section 4(2) and therefore
did not file a registration statement for the registration of these Units
under the Securities Act.
ITEM 33. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation and Bylaws require the Company to
indemnify its directors and officers to the fullest extent permitted from time
to time by Maryland law. The Articles of Incorporation also permit the Company
to indemnify employees, agents and other persons acting on behalf of or at the
request of the Company. The Maryland GCL permits a corporation to indemnify
its directors, officers and certain other parties against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by
them in connection with any proceeding to which they may be made a party by
reason of their service to or at the request of the corporation, unless it is
established that the act or omission of the indemnified party was material to
the matter giving rise to the proceeding and (i) was committed in bad faith or
was the result of active and deliberate dishonesty, (ii) the indemnified party
actually received an improper personal benefit, or (iii) in the case of any
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<PAGE>
criminal proceeding, the indemnified party had reasonable cause to believe
that the act or omission was unlawful. Indemnification may be made against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by the director or officer in connection with the proceeding;
provided, however, that if the proceeding is one by or in the right of the
corporation, indemnification may not be made with respect to any proceeding in
which the director or officer has been adjudged to be liable to the
corporation. In addition, a director or officer may not be indemnified with
respect to any proceeding charging improper personal benefit to the director
or officer in which the director or officer was adjudged to be liable on the
basis that personal benefit was improperly received. The termination of any
proceeding by conviction, or upon a plea of nolo contendere or its equivalent,
or an entry of any order of probation prior to judgment, creates a rebuttable
presumption that the director or officer did not meet the requisite standard
of conduct required for indemnification to be permitted. It is the position of
the Commission that indemnification of directors and officers for liabilities
arising under the Securities Act is against public policy and is unenforceable
pursuant to Section 14 of the Securities Act.
The Maryland GCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that
(i) it is proved that the person actually received an improper benefit or
profit in money, property or services, or (ii) a judgment or other final
adjudication is entered in a proceeding based on a finding that the person's
action, or failure to act, was the result of active and deliberate dishonesty
and was material to the cause of action adjudicated in the proceeding. The
Company's Articles of Incorporation contain a provision providing for
elimination of the liability of its directors or officers to the Company or
its stockholders for money damages to the maximum extent permitted by Maryland
law from time to time.
The Agreement of Limited Partnership of the Operating Partnership also
provides for indemnification of the Company, or any director or officer of the
Company, in its capacity as general partner of the Operating Partnership, from
and against all losses, claims, damages, liabilities, joint or several,
expenses (including legal fees), fines, settlements and other amounts incurred
in connection with any actions relating to the operations of the Operating
Partnership as set forth in the Operating Partnership Agreement.
The Company has entered into indemnification agreements with each of its
executive officers and directors. The indemnification agreements require,
among other things, that the Company indemnify its officers and directors to
the fullest extent permitted by the Maryland GCL, and advance to the officers
and directors all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. The Company
must also indemnify and advance all expenses incurred by officers and
directors seeking to enforce their rights under the indemnification
agreements, and cover officers and directors under the Company's directors and
officers' liability insurance. Although the form of indemnification agreement
offers substantially the same scope of coverage afforded by provisions in the
Articles of Incorporation and the Bylaws, it provides greater assurance to
directors and officers that indemnification will be available, because, as a
contract, it cannot be modified unilaterally in the future by the Board of
Directors or by the shareholders to eliminate the rights it provides.
ITEM 34. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED
Not applicable.
ITEM 35. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
See the information set forth on pages F-1 through F-67 in Part I of this
Registration Statement. All such information and financial statements are
included in the Prospectus.
(b) The following is a complete list of exhibits filed as part of the
Registration Statement. Exhibit numbers correspond to the numbers in the
Exhibit Table of Item 601 of Regulation S-K.
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
1 Form of Underwriting Agreement
3.1(1) Articles of Amendment and Restatement of the Charter of G&L Realty
Corp.
3.2(3) Amended and Restated Bylaws of G&L Realty Corp.
4.1(11) Form of Articles Supplementary relating to the Series A Preferred
Stock
4.2(11) Form of certificate of Series A Preferred Stock
4.3 Form of Articles Supplementary relating to the Series B Preferred
Stock
4.4 Form of certificate of Series B Preferred Stock
5.1 Opinion of Piper & Marbury L.L.P. as to the legality of the Offering.
8.1 Opinion of Gibson, Dunn & Crutcher LLP as to Federal income tax
consequences of the Offering.
10.1(2) Executive Employment Agreement between G&L Realty Corp. and Daniel M.
Gottlieb
10.2(2) Executive Employment Agreement between G&L Realty Corp. and Steven D.
Lebowitz
10.3(2) Agreement of Limited Partnership of G&L Realty Partnership, L.P.
10.4(1) 1993 Stock Incentive Plan
10.5(1) Form of Indemnity Agreement between G&L Realty Corp. and directors
and certain officers.
10.6(1) Option Agreement for Purchase and Sale of 4955 Van Nuys Boulevard
("Sherman Oaks Medical Plaza") by and between G&L Development and
Arthur Gilbert, as Trustee of the Arthur Gilbert and Rosalinde
Gilbert 1982 Trust, dated as of October 29, 1993
10.7(2) Option Notice with respect to Sherman Oaks Medical Plaza
10.8(1) Agreement for Purchase and Sale of Limited Partnership Interests (435
North Roxbury Drive, Ltd.) between the Selling Partner (as defined
therein) and G&L Development, dated as of October 29, 1993
10.9(1) Agreement for Transfer of Partnership Interests and Other Assets by
and between G&L Realty Corp. and Reese Milner, Helen Milner and
Milner Development Corp., dated as of October 29, 1993
10.10(1) Nomura Commitment Letter with respect to the Acquisition Facility
10.11(3) Amended and Restated Mortgage Loan Agreement dated as of January 11,
1995 among G&L Financing Partnership, L.P., Nomura Asset Capital
Corporation and Bankers Trust Company of New York
10.12(1) Office Building Lease I between 405 North Bedford Drive, Ltd. and
Saint John's Hospital and Health Center dated October 12, 1987
10.13(1) Office Building Lease II between 405 North Bedford Drive, Ltd. and
Saint John's Hospital and Health Center dated as of October 12, 1987
10.14(1) Office Building Lease III between 405 North Bedford Drive, Ltd. and
Saint John's Hospital and Health Center dated as of December 1, 1987
10.15(1) Investment Banking and Financial Advisory Agreement between G&L
Development and Gruntal & Co., Incorporated
10.16(1) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Milner Investment
Corporation
10.17(2) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Reese L. Milner II
10.18(2) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Reese L. Milner II
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.19(2) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Reese L. Milner II, Helen
Milner, and John Milner, as Trustees of the Milner Trust
10.20(2) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Reese L. Milner II
10.21(4) Amended and Restated Mortgage Loan Agreement by and between G&L
Realty Financing Partnership II, L.P., as Borrower, and Nomura Asset
Capital Corporation, as Lender, dated as of October 31, 1995
10.22(4) Revolving Loan Agreement by and between G&L Realty Partnership, L.P.
and Tokai Bank of California dated as of August 11, 1995
10.23(4) Property Management Agreement between G&L Realty Financing
Partnership II, L.P., as owner, and G&L Realty Partnership, L.P., as
agent, made August 10, 1995
10.24(5) Commitment Letter between G&L Realty Partnership, L. P. and Nomura
Asset Capital Corporation, dated as of September 29, 1995
10.25(5) Loan and Security Agreement between G&L Realty Partnership, L. P. and
GMAC Commercial Mortgage Corporation, dated as of December 5, 1995
10.26(5) Note in the amount of $14,000,000 executed by G&L Realty Partnership,
L. P. in favor of GMAC Commercial Mortgage Corporation, dated as of
December 5, 1995
10.27(5) Notification and Consent Agreement among G&L Realty Partnership,
L.P., GMAC Commercial Mortgage Corporation, and Nomura International
Trust Company, dated as of December 5, 1995
10.28(5) Assignment of Bond executed by G&L Realty Partnership, L. P., in
favor of GMAC Commercial Mortgage Corporation
10.27(6) Agreement of Purchase and Sale of Membership Interest dated April 26,
1996, between Milner Investment Corporation and G&L Realty
Partnership, L.P.
10.28(7) Agreement for Deed in Lieu of Foreclosure by and among G&L Realty
Partnership, L.P., a Delaware Limited Partnership, and Loan Asset
Structured Trust I, a Delaware trust, dated as of May 24, 1996
10.29(7) Property Management Agreement by and between Loan Asset Structured
Trust I, a Delaware trust, and G&L Realty Partnership, L.P., a
Delaware Limited Partnership, dated as of May 24, 1996
10.30(8) Mortgage Loan Agreement dated as of May 24, 1996 by and between G&L
Medical Partnership, L.P. as Borrower and Nomura Asset Capital
Corporation as Lender
10.31(8) Agreement of Purchase and Sale of Membership Interest dated April 26,
1996 by and between Milner Investment Corporation as Seller and G&L
Realty Partnership, L.P. as Buyer
10.32(8) Letter of Agreement regarding purchase of Tustin Hospital to 445
North Bedford Drive, LLC from G&L Realty Partnership, L.P., dated
June 12, 1996
10.33(8) Redemption Agreement by and between G&L Realty Partnership, L.P. and
445 Bedford, LLC, dated as of June 27, 1996
10.34(8) Property Contribution Agreement by and between G&L Realty
Partnership, L.P. as Purchaser and 445 Bedford, LLC as Seller, dated
as of June 28, 1996
10.35(8) Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing between 445 Bedford, LLC and G&L Realty Partnership, L.P. as
tenants in common ("Trustor"), Chicago Title Company ("Trustee"), and
Tokai Bank of California ("Beneficiary"), made to be effective on
June 12, 1996
10.36(9) Agreement of Purchase and Sale by and between Loan Asset Structured
Trust I, a Delaware trust ("Seller") and G&L Medical Partnership,
L.P., a Delaware limited partnership ("Buyer"), dated August 29, 1996
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.37(9) Grant Deed in which Loan Asset Structured Trust I, a Delaware trust
("Grantor"), grants certain real property to G&L Medical
Partnership, L.P., a Delaware limited partnership ("Grantee"),
recorded August 30, 1996
10.38(10) Limited Liability Company Agreement by and between G&L Realty
Partnership, L.P., a Delaware limited partnership, and Property
Acquisition Trust I, a Delaware business trust, for the purpose of
creating a limited liability company to be named GLN Capital Co.,
LLC, dated as of November 25, 1996
10.39(10) Limited Liability Company Agreement by and between G&L Realty
Partnership, L.P., a Delaware limited partnership, and PHP
Healthcare Corporation, a Delaware corporation, for the purpose of
creating a limited liability company to be named GL/PHP, LLC, dated
as of February 26, 1997
10.40(10) First Amendment To Limited Liability Company Agreement entered into
as of March 31, 1997 by and between G&L Realty Partnership, L.P., a
Delaware limited partnership, and Property Acquisition Trust I, a
Delaware business trust, for the purpose of amending that certain
Limited Liability Company Agreement of GLN Capital Co., LLC dated as
of November 25, 1996
10.41(10) Bond Purchase Agreement dated as of March 31, 1997 by and between
GLN Capital Co., LLC (as Buyer) and G&L Realty Partnership, L.P. (as
Seller)
10.42(11) Option Agreement, dated February 28, 1997, by and among G&L Realty
Partnership, L.P., GLN Capital Co., LLC and PHP Healthcare
Corporation
10.43(12) First Amendment To Revolving Loan Agreement by and between G&L
Realty Partnership, L.P., a Delaware limited partnership
("Borrower") and Tokai Bank of California, a California banking
corporation ("Lender"), dated as of May 7, 1997.
10.44(13) Loan and Security Agreement by GLN Capital Co., LLC, a Delaware
limited liability company, and G&L Realty Partnership, L.P., a
Delaware limited partnership, dated as of June 1, 1997.
10.45(14) First Amendment to GL/PHP, LLC Limited Liability Company Agreement
by and among G&L Realty Partnership, L.P., a Delaware limited
partnership (the "Retiring Manager"), G&L Realty Partnership, L.P.,
a Delaware limited partnership ("G&L Member"), and G&L Management
Delaware Corp., a Delaware corporation ("Manager Member"), made as
of August 15, 1997.
10.46(14) Lease Agreement between GL/PHP, a Delaware limited liability company
(the "Landlord") and Pinnacle Health Enterprises, LLC, a Delaware
limited liability company wholly owned by PHP Healthcare
Corporation, a Delaware corporation (the "Tenant"), dated August 15,
1997.
10.47(14) Guaranty of Lease by PHP Healthcare Corporation, a Delaware
corporation (the "Guarantor"), dated February 15, 1997.
10.48(14) Non-Negotiable 8.5% Note Due July 31, 2007 in which G&L Realty
Partnership, L.P., a Delaware limited partnership (the "Maker"),
promises to pay to PHP Healthcare Corporation (the "Payee") the
principal sum of $2,000,000.00, dated August 15, 1997.
10.49(14) Mortgage Note in which GL/PHP, LLC a Delaware limited liablity
company (the "Maker") promises to pay to the order of Nomura Asset
Capital Corporation, a Delaware corporation, the principal sum of
$16,000,000.00, dated August 15, 1997.
10.50(14) Mortgage, Assignment of Leases and Rents and Security Agreement by
GL/PHP, LLC a Delaware limited liability company (the "Mortgagor")
to Nomura Asset Capital Corporation, a Delaware corporation (the
"Mortgagee"), dated August 15, 1997.
10.51(14) Assignment of Leases and Rents by GL/PHP, LLC a Delaware limited
liability company (the "Assignor") to Nomura Asset Capital
Corporation, a Delaware corporation (the "Assignee"), dated August
15, 1997.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.52(14) Environmental and Hazardous Substance Indemnification Agreement by
GL/PHP, LLC a Delaware limited liability company (the "Borrower") to
Nomura Asset Capital Corporation, a Delaware corporation (the
"Lender"), dated August 15, 1997.
10.53(16) Purchase and Sale Agreement, dated October 1, 1997, by and between
Hampden Nursing Homes, Inc. and G&L Senior Care, LLC.
10.54(16) Lease and Agreement, dated October 1, 1997, by and between G&L
Hampden, LLC and Hampden Holding Group, Inc.
10.55(16) Loan Commitment, dated October 23, 1997, by and between G&L Realty
Partnership, L.P. and Iatros Health Network, Inc.
10.56(16) Lease and Agreement, dated October 1, 1997, by and between G&L
Hampden, LLC and Hampden Nursing Homes, Inc.
10.57(16) Guaranty of Lease, dated October 1, 1997, by Iatros Health Network,
Inc.
10.58(16) Limited Liability Company Agreement of G&L Hampden, LLC.
10.59(16) Loan Agreement by and between Nomura Asset Capital Corporation and
G&L Hampden, LLC.
10.60(16) Promissory Note in the amount of $6,000,000.00 given by G&L Hampden,
LLC in favor of Nomura Asset Capital Corporation.
10.61(16) Form of Mortgage, Assignment of Rents, Security Agreement and
Fixture Filing for each of the 3 Hampden Properties.
10.62(17) Operating Agreement of AV Medical Associates, LLC, dated as of
September 25, 1997.
10.63(17) Real Estate Lease by and between AV Medical Associates, LLC and Hoag
Memorial Hospital Presbyterian.
10.64(17) Assignment of Purchase Agreement and Development Management
Agreement by and between G&L Realty Partnership, L.P., Centrium
Associates LLC and M&Z Aliso Associates, LLC.
10.65(17) Amended and Restated Promissory Note in the Amount of $1,934,325.00
given by Hearthside Skilled Nursing Facility, LLC in favor of G&L
Realty Partnership, L.P.
10.66(17) Amended and Restated Deed of Trust, Security Agreement, Fixture
Filing with Assignment of Rents and Agreements, dated as of
September 29, 1997, by and between Hearthside Skilled Nursing
Facility, LLC and G&L Realty Partnership, L.P.
10.67(17) Amended and Restated Assignment of Leases and Rents, dated as of
September 29, 1997, by and between Hearthside Skilled Nursing
Facility, LLC and G&L Realty Partnership, L.P.
10.68(17) Promissory Note in the Amount of $2,799,490.00 given by Valley
Convalescent, LLC in favor of G&L Realty Partnership, L.P.
10.69(17) Deed of Trust, Security Agreement, Fixture Filing with Assignment of
Rents and Agreements, dated as of August 29, 1997, by and between
Valley Convalescent, LLC and G&L Realty Partnership, L.P.
10.70(17) Assignment of Leases and Rents, dated as of August 29, 1997, by and
between Valley Convalescent, LLC and G&L Realty Partnership, L.P.
10.71(17) Promissory Note in the amount of $870,000.00 given by Burley Skilled
Nursing Facility, LLC in favor of G&L Realty Partnership, L.P.
10.72(17) Deed of Trust, Security Agreement, Fixture Filing with Assignment of
Rents and Agreements, dated as of September 29, 1997, by and between
Burley Skilled Nursing Facility, LLC and G&L Realty Partnership,
L.P.
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.73(17) Assignment of Leases and Rents, dated as of September 29, 1997, by
and between Burley Skilled Nursing Facility, LLC and G&L Realty
Partnership, L.P.
10.74(17) Promissory Note in the amount of $115,272.00 given by Valley Living
Center, LLC in favor of G&L Realty Partnership, L.P.
10.75(17) Deed of Trust, Security Agreement, Fixture Filing with Assignment of
Rents and Agreements, dated as of September 29, 1997, by and between
Valley Living Center, LLC and G&L Realty Partnership, L.P.
10.76(17) Assignment of Leases and Rents, dated as of September 29, 1997, by
and between Valley Living Center, LLC and G&L Realty Partnership,
L.P.
12 Computation of ratio of earnings to fixed charges
21(5) List of subsidiaries
23.1 Consent of Piper & Marbury L.L.P. (included in their opinion filed
as Exhibit 5.1)
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in their opinion
filed as Exhibit 8.1)
23.3 Consent of Deloitte & Touche LLP, independent public accountants of
the Company
23.4 Consent of Asher & Co. Ltd., independent public accountants of
Iatros
24 Power of Attorney (included on pages II-7 and II-8 on the Company's
Registration Statement
on Form S-11, filed October 27, 1997)
27(15) Financial Data Schedule
</TABLE>
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(1) Filed as an exhibit to the Company's Registration Statement on Form S-11
and amendments thereto (File No. 33-68984) and incorporated herein by
reference.
(2) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1993 and incorporated herein by reference.
(3) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1994 and incorporated herein by reference.
(4) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1995 and incorporated herein by
reference.
(5) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995 and incorporated herein by reference.
(6) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996 and incorporated herein by reference.
(7) Filed as an exhibit to the Company's Form 8-K dated May 24, 1996 and
incorporated herein by reference.
(8) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1996 and incorporated herein by reference.
(9) Filed as an exhibit to the Company's Form 8-K dated August 30, 1996 and
incorporated herein by reference.
(10) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 and incorporated herein by reference.
(11) Filed as an exhibit to the Company's Registration Statement on Form S-11
and amendments thereto (File No. 333-24911) and incorporated herein by
reference.
(12) Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997 and incorporated herein by reference.
(13) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1997 and incorporated herein by reference.
(14) Filed as an exhibit to the Company's Current Report on Form 8-K (filed as
of August 15, 1997) and incorporated herein by reference.
(15) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q/A
(filed as of October 14, 1997) for the quarter ended June 30, 1997 and
incorporated herein by reference.
(16) Filed as an exhibit to the Company's Current Report on Form 8-K (filed as
of October 28, 1997) and incorporated herein by reference.
(17) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q (filed
as of November 5, 1997) for the quarter ended September 30, 1997 and
incorporated herein by reference.
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<PAGE>
ITEM 36. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matters have been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1993, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-11 and has duly caused this
Amendment No. 2 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Beverly Hills, State of
California, on this 11th day of November, 1997.
G & L REALTY CORP.
By: /s/ Steven D. Lebowitz
-----------------------------------
Steven D. Lebowitz
President, Co-Chairman of the
Board and Director
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
* Chief Executive Officer, November 11, 1997
_________________________________ Co-Chairman of the
DANIEL M. GOTTLIEB Board and Director
(Principal Executive
Officer)
/s/ Steven D. Lebowitz President, Co-Chairman November 11, 1997
_________________________________ of the Board and
STEVEN D. LEBOWITZ Director
* Chief Accounting November 11, 1997
_________________________________ Officer, Treasurer and
QUENTIN THOMPSON Secretary (Principal
Financial and
Accounting Officer)
* Director November 11, 1997
_________________________________
RICHARD L. LESHER
</TABLE>
II-9
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
* Director November 11, 1997
_________________________________
LESLIE D. MICHELSON
* Director November 11, 1997
_________________________________
REESE L. MILNER
* Director November 11, 1997
_________________________________
CHARLES P. REILLY
*By: /s/ Steven D. Lebowitz Director November 11, 1997
_________________________________
STEVEN D. LEBOWITZ AS
ATTORNEY-IN-FACT
</TABLE>
II-10
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1 Form of Underwriting Agreement
3.1(1) Articles of Amendment and Restatement of the Charter of G&L Realty
Corp.
3.2(3) Amended and Restated Bylaws of G&L Realty Corp.
4.1(11) Form of Articles Supplementary relating to the Series A Preferred
Stock
4.2(11) Form of certificate of Series A Preferred Stock
4.3 Form of Articles Supplementary relating to the Series B Preferred
Stock
4.4 Form of certificate of Series B Preferred Stock
5.1 Opinion of Piper & Marbury L.L.P. as to the legality of the Offering.
8.1 Opinion of Gibson, Dunn & Crutcher LLP as to Federal income tax
consequences of the Offering
10.1(2) Executive Employment Agreement between G&L Realty Corp. and Daniel M.
Gottlieb
10.2(2) Executive Employment Agreement between G&L Realty Corp. and Steven D.
Lebowitz
10.3(2) Agreement of Limited Partnership of G&L Realty Partnership, L.P.
10.4(1) 1993 Stock Incentive Plan
10.5(1) Form of Indemnity Agreement between G&L Realty Corp. and directors
and certain officers
10.6(1) Option Agreement for Purchase and Sale of 4955 Van Nuys Boulevard
("Sherman Oaks Medical Plaza") by and between G&L Development and
Arthur Gilbert, as Trustee of the Arthur Gilbert and Rosalinde
Gilbert 1982 Trust, dated as of October 29, 1993
10.7(2) Option Notice with respect to Sherman Oaks Medical Plaza
10.8(1) Agreement for Purchase and Sale of Limited Partnership Interests (435
North Roxbury Drive, Ltd.) between the Selling Partner (as defined
therein) and G&L Development, dated as of October 29, 1993
10.9(1) Agreement for Transfer of Partnership Interests and Other Assets by
and between G&L Realty Corp. and Reese Milner, Helen Milner and
Milner Development Corp., dated as of October 29, 1993
10.10(1) Nomura Commitment Letter with respect to the Acquisition Facility
10.11(3) Amended and Restated Mortgage Loan Agreement dated as of January 11,
1995 among G&L Financing Partnership, L.P., Nomura Asset Capital
Corporation and Bankers Trust Company of New York
10.12(1) Office Building Lease I between 405 North Bedford Drive, Ltd. and
Saint John's Hospital and Health Center dated October 12, 1987
10.13(1) Office Building Lease II between 405 North Bedford Drive, Ltd. and
Saint John's Hospital and Health Center dated as of October 12, 1987
10.14(1) Office Building Lease III between 405 North Bedford Drive, Ltd. and
Saint John's Hospital and Health Center dated as of December 1, 1987
10.15(1) Investment Banking and Financial Advisory Agreement between G&L
Development and Gruntal & Co., Incorporated
10.16(1) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Milner Investment
Corporation
10.17(2) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Reese L. Milner II
10.18(2) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Reese L. Milner II
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.19(2) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Reese L. Milner II, Helen
Milner, and John Milner, as Trustees of the Milner Trust
10.20(2) Security Agreement dated as of December 16, 1993 by and between
Daniel M. Gottlieb, Steven D. Lebowitz and Reese L. Milner II
10.21(4) Amended and Restated Mortgage Loan Agreement by and between G&L
Realty Financing Partnership II, L.P., as Borrower, and Nomura Asset
Capital Corporation, as Lender, dated as of October 31, 1995
10.22(4) Revolving Loan Agreement by and between G&L Realty Partnership, L.P.
and Tokai Bank of California dated as of August 11, 1995
10.23(4) Property Management Agreement between G&L Realty Financing
Partnership II, L.P., as owner, and G&L Realty Partnership, L.P., as
agent, made August 10, 1995
10.24(5) Commitment Letter between G&L Realty Partnership, L.P. and Nomura
Asset Capital Corporation, dated as of September 29, 1995
10.25(5) Loan and Security Agreement between G&L Realty Partnership, L.P. and
GMAC Commercial Mortgage Corporation, dated as of December 5, 1995
10.26(5) Note in the amount of $14,000,000 executed by G&L Realty Partnership,
L.P. in favor of GMAC Commercial Mortgage Corporation, dated as of
December 5, 1995
10.27(5) Notification and Consent Agreement among G&L Realty Partnership,
L.P., GMAC Commercial Mortgage Corporation, and Nomura International
Trust Company, dated as of December 5, 1995
10.28(5) Assignment of Bond executed by G&L Realty Partnership, L.P., in favor
of GMAC Commercial Mortgage Corporation
10.27(6) Agreement of Purchase and Sale of Membership Interest dated April 26,
1996, between Milner Investment Corporation and G&L Realty
Partnership, L.P.
10.28(7) Agreement for Deed in Lieu of Foreclosure by and among G&L Realty
Partnership, L.P., a Delaware Limited Partnership, and Loan Asset
Structured Trust I, a Delaware trust, dated as of May 24, 1996
10.29(7) Property Management Agreement by and between Loan Asset Structured
Trust I, a Delaware trust, and G&L Realty Partnership, L.P., a
Delaware Limited Partnership, dated as of May 24, 1996
10.30(8) Mortgage Loan Agreement dated as of May 24, 1996 by and between G&L
Medical Partnership, L.P. as Borrower and Nomura Asset Capital
Corporation as Lender
10.31(8) Agreement of Purchase and Sale of Membership Interest dated April 26,
1996 by and between Milner Investment Corporation as Seller and G&L
Realty Partnership, L.P. as Buyer
10.32(8) Letter of Agreement regarding purchase of Tustin Hospital to 445
North Bedford Drive, LLC from G&L Realty Partnership, L.P., dated
June 12, 1996
10.33(8) Redemption Agreement by and between G&L Realty Partnership, L.P. and
445 Bedford, LLC, dated as of June 27, 1996
10.34(8) Property Contribution Agreement by and between G&L Realty
Partnership, L.P. as Purchaser and 445 Bedford, LLC as Seller, dated
as of June 28, 1996
10.35(8) Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing between 445 Bedford, LLC and G&L Realty Partnership, L.P. as
tenants in common ("Trustor"), Chicago Title Company ("Trustee"), and
Tokai Bank of California ("Beneficiary"), made to be effective on
June 12, 1996
10.36(9) Agreement of Purchase and Sale by and between Loan Asset Structured
Trust I, a Delaware trust ("Seller") and G&L Medical Partnership,
L.P., a Delaware limited partnership ("Buyer"), dated August 29, 1996
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.37(9) Grant Deed in which Loan Asset Structured Trust I, a Delaware trust
("Grantor"), grants certain real property to G&L Medical
Partnership, L.P., a Delaware limited partnership ("Grantee"),
recorded August 30, 1996
10.38(10) Limited Liability Company Agreement by and between G&L Realty
Partnership, L.P., a Delaware limited partnership, and Property
Acquisition Trust I, a Delaware business trust, for the purpose of
creating a limited liability company to be named GLN Capital Co.,
LLC, dated as of November 25, 1996
10.39(10) Limited Liability Company Agreement by and between G&L Realty
Partnership, L.P., a Delaware limited partnership, and PHP
Healthcare Corporation, a Delaware corporation, for the purpose of
creating a limited liability company to be named GL/PHP, LLC, dated
as of February 26, 1997
10.40(10) First Amendment To Limited Liability Company Agreement entered into
as of March 31, 1997 by and between G&L Realty Partnership, L.P., a
Delaware limited partnership, and Property Acquisition Trust I, a
Delaware business trust, for the purpose of amending that certain
Limited Liability Company Agreement of GLN Capital Co., LLC dated as
of November 25, 1996
10.41(10) Bond Purchase Agreement dated as of March 31, 1997 by and between
GLN Capital Co., LLC (as Buyer) and G&L Realty Partnership, L.P. (as
Seller)
10.42(11) Option Agreement, dated as of February 28, 1997, by and among G&L
Realty Partnership, L.P., GLN Capital Co., LLC and PHP Healthcare
Corporation
10.43(12) First Amendment To Revolving Loan Agreement by and between G&L
Realty Partnership, L.P., a Delaware limited partnership
("Borrower") and Tokai Bank of California, a California banking
corporation ("Lender"), dated as of May 7, 1997.
10.44(13) Loan and Security Agreement by GLN Capital Co., LLC, a Delaware
limited liability company, and G&L Realty Partnership, L.P., a
Delaware limited partnership, dated as of June 1, 1997.
10.45(14) First Amendment to GL/PHP, LLC Limited Liability Company Agreement
by and among G&L Realty Partnership, L.P., a Delaware limited
partnership (the "Retiring Manager"), G&L Realty Partnership, L.P.,
a Delaware limited partnership ("G&L Member"), and G&L Management
Delaware Corp., a Delaware corporation ("Manager Member"), made as
of August 15, 1997.
10.46(14) Lease Agreement between GL/PHP, a Delaware limited liability company
(the "Landlord") and Pinnacle Health Enterprises, LLC, a Delaware
limited liability company wholly owned by PHP Healthcare
Corporation, a Delaware corporation (the "Tenant"), dated August 15,
1997.
10.47(14) Guaranty of Lease by PHP Healthcare Corporation, a Delaware
corporation (the "Guarantor"), dated February 15, 1997.
10.48(14) Non-Negotiable 8.5% Note Due July 31, 2007 in which G&L Realty
Partnership, L.P., a Delaware limited partnership (the "Maker"),
promises to pay to PHP Healthcare Corporation (the "Payee") the
principal sum of $2,000,000.00, dated August 15, 1997.
10.49(14) Mortgage Note in which GL/PHP, LLC a Delaware limited liability
company (the "Maker") promises to pay to the order of Nomura Asset
Capital Corporation, a Delaware corporation, the principal sum of
$16,000,000.00, dated August 15, 1997.
10.50(14) Mortgage, Assignment of Leases and Rents and Security Agreement by
GL/PHP, LLC a Delaware limited liability company (the "Mortgagor")
to Nomura Asset Capital Corporation, a Delaware corporation (the
"Mortgagee"), dated August 15, 1997.
10.51(14) Assignment of Leases and Rents by GL/PHP, LLC a Delaware limited
liability company (the "Assignor") to Nomura Asset Capital
Corporation, a Delaware corporation (the "Assignee"), dated August
15, 1997.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.52(14) Environmental and Hazardous Substance Indemnification Agreement by
GL/PHP, LLC a Delaware limited liability company (the "Borrower") to
Nomura Asset Capital Corporation, a Delaware corporation (the
"Lender"), dated August 15, 1997.
10.53(16) Purchase and Sale Agreement, dated October 1, 1997, by and between
Hampden Nursing Homes, Inc. and G&L Senior Care, LLC.
10.54(16) Lease and Agreement, dated October 1, 1997, by and between G&L
Hampden, LLC and Hampden Holding Group, Inc.
10.55(16) Loan Commitment, dated October 23, 1997, by and between G&L Realty
Partnership, L.P. and Iatros Health Network, Inc.
10.56(16) Lease and Agreement, dated October 1, 1997, by and between G&L
Hampden, LLC and Hampden Nursing Homes, Inc.
10.57(16) Guaranty of Lease, dated October 1, 1997, by Iatros Health Network,
Inc.
10.58(16) Limited Liability Company Agreement of G&L Hampden, LLC.
10.59(16) Loan Agreement by and between Nomura Asset Capital Corporation and
G&L Hampden, LLC.
10.60(16) Promissory Note in the amount of $6,000,000.00 given by G&L Hampden,
LLC in favor of Nomura Asset Capital Corporation.
10.61(16) Form of Mortgage, Assignment of Rents, Security Agreement and
Fixture Filing for each of the 3 Hampden Properties.
10.62(17) Operating Agreement of AV Medical Associates, LLC, dated as of
September 25, 1997.
10.63(17) Real Estate Lease by and between AV Medical Associates, LLC and Hoag
Memorial Hospital Presbyterian.
10.64(17) Assignment of Purchase Agreement and Development Management
Agreement by and between G&L Realty Partnership, L.P., Centrium
Associates LLC and M&Z Aliso Associates, LLC.
10.65(17) Amended and Restated Promissory Note in the Amount of $1,934,325.00
given by Hearthside Skilled Nursing Facility, LLC in favor of G&L
Realty Partnership, L.P.
10.66(17) Amended and Restated Deed of Trust, Security Agreement, Fixture
Filing with Assignment of Rents and Agreements, dated as of
September 29, 1997, by and between Hearthside Skilled Nursing
Facility, LLC and G&L Realty Partnership, L.P.
10.67(17) Amended and Restated Assignment of Leases and Rents, dated as of
September 29, 1997, by and between Hearthside Skilled Nursing
Facility, LLC and G&L Realty Partnership, L.P.
10.68(17) Promissory Note in the Amount of $2,799,490.00 given by Valley
Convalescent, LLC in favor of G&L Realty Partnership, L.P.
10.69(17) Deed of Trust, Security Agreement, Fixture Filing with Assignment of
Rents and Agreements, dated as of August 29, 1997, by and between
Valley Convalescent, LLC and G&L Realty Partnership, L.P.
10.70(17) Assignment of Leases and Rents, dated as of August 29, 1997, by and
between Valley Convalescent, LLC and G&L Realty Partnership, L.P.
10.71(17) Promissory Note in the amount of $870,000.00 given by Burley Skilled
Nursing Facility, LLC in favor of G&L Realty Partnership, L.P.
10.72(17) Deed of Trust, Security Agreement, Fixture Filing with Assignment of
Rents and Agreements, dated as of September 29, 1997, by and between
Burley Skilled Nursing Facility, LLC and G&L Realty Partnership,
L.P.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.73(17) Assignment of Leases and Rents, dated as of September 29, 1997, by
and between Burley Skilled Nursing Facility, LLC and G&L Realty
Partnership, L.P.
10.74(17) Promissory Note in the amount of $115,272.00 given by Valley Living
Center, LLC in favor of G&L Realty Partnership, L.P.
10.75(17) Deed of Trust, Security Agreement, Fixture Filing with Assignment of
Rents and Agreements, dated as of September 29, 1997, by and between
Valley Living Center, LLC and G&L Realty Partnership, L.P.
10.76(17) Assignment of Leases and Rents, dated as of September 29, 1997, by
and between Valley Living Center, LLC and G&L Realty Partnership,
L.P.
12 Computation of ratio of earnings to fixed charges
21(5) List of subsidiaries
23.1 Consent of Piper & Marbury L.L.P. (included in their opinion filed
as Exhibit 5.1)
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in their opinion
filed as Exhibit 8.1)
23.3 Consent of Deloitte & Touche LLP, independent public accountants to
the Company
23.4 Consent of Asher & Co. Ltd., independent public accountants of
Iatros
24 Power of Attorney (included on pages II-7 and II-8 on the Company's
Registration Statement
on Form S-11, filed October 27, 1997)
27(13) Financial Data Schedule
</TABLE>
- --------
(1) Filed as an exhibit to the Company's Registration Statement on Form S-11
and amendments thereto (File No. 33-68984) and incorporated herein by
reference.
(2) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1993 and incorporated herein by reference.
(3) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1994 and incorporated herein by reference.
(4) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1995 and incorporated herein by
reference.
(5) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995 and incorporated herein by reference.
(6) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996 and incorporated herein by reference.
(7) Filed as an exhibit to the Company's Form 8-K dated May 24, 1996 and
incorporated herein by reference.
(8) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1996 and incorporated herein by reference.
(9) Filed as an exhibit to the Company's Form 8-K dated August 30, 1996 and
incorporated herein by reference.
(10) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 and incorporated herein by reference.
(11) Filed as an exhibit to the Company's Registration Statement on Form S-11
and amendments thereto (File No. 333-24911) and incorporated herein by
reference.
(12) Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997 and incorporated herein by reference.
(13) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1997 and incorporated herein by reference.
(14) Filed as an exhibit to the Company's Current Report on Form 8-K (filed as
of August 15, 1997) and incorporated herein by reference.
(15) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q/A
(filed as of October 14, 1997) for the quarter ended June 30, 1997 and
incorporated herein by reference.
(16) Filed as an exhibit to the Company's Current Report on Form 8-K (filed as
of October 28, 1997) and incorporated herein by reference.
(17) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q (filed
as of November 5, 1997) for the quarter ended September 30, 1997 and
incorporated herein by reference.
<PAGE>
Exhibit 1
FORM OF UNDERWRITING AGREEMENT
1,200,000 SHARES
G & L REALTY CORP.
____ % SERIES B CUMULATIVE PREFERRED STOCK
(Par Value $ 0.01 Per Share)
UNDERWRITING AGREEMENT
----------------------
November __, 1997
Sutro & Co. Incorporated
McDonald & Company Securities, Inc.
Tucker Anthony Incorporated
c/o Sutro & Co. Incorporated
201 California Street
Attention: Equity Syndication Department
San Francisco, California 94111
Dear Sirs:
1. INTRODUCTION. G & L Realty Corp., a Maryland corporation (the
"Company"), proposes to issue and sell to Sutro & Co. Incorporated, McDonald &
Company Securities, Inc. and Tucker Anthony Incorporated (the "Underwriters") an
aggregate of 1,200,000 shares of the Company's ____ % Series B Cumulative
Preferred Stock, par value $0.01 per share (the "Preferred Stock"). The
1,200,000 shares of Preferred Stock to be sold by the Company are referred to
herein as the "Firm Shares." The Company also proposes to issue and sell to the
Underwriters an aggregate of not more than 180,000 additional shares of
Preferred Stock (the "Additional Shares"), if requested by the Underwriters in
accordance with Section 9 hereof. The Firm Shares and the Additional Shares are
collectively referred to herein as the "Shares." The words "you" and "your"
refer to the Underwriters.
The Company hereby agrees with the Underwriters as follows:
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents, warrants and agrees with each of the
Underwriters that:
(i) A registration statement on Form S-11 (File No. 333-38843)
under the Securities Act of 1933, as amended (the "Act"), with respect to
the Shares, including a form of prospectus subject to completion, has been
prepared by the Company in conformity with the requirements of the Act and
the rules and regulations of the Securities and Exchange Commission (the
"Commission") thereunder (the "Rules and Regulations"). Such registration
statement has been filed with the Commission under the Act, and one or more
amendments to such registration
<PAGE>
statement may also have been so filed. After the execution of this
Agreement, the Company shall file with the Commission either (A) if such
registration statement, as it may have been amended, has been declared by
the Commission to be effective under the Act, a prospectus in the form most
recently included in an amendment to such registration statement filed with
the Commission (or, if no such amendment shall have been filed, in such
registration statement), with such insertions and changes as are required
by Rule 430A under the Act or permitted by Rule 424(b) under the Act as
shall have been provided to and approved by the Underwriters prior to the
filing thereof, or (B) if such registration statement, as it may have been
amended, has not been declared by the Commission to be effective under the
Act, an amendment to such registration statement, including a form of
prospectus, a copy of which amendment has been furnished to and approved by
the Underwriters prior to the filing thereof. As used in this Agreement,
the term "Registration Statement" means such registration statement, as
amended at the time when it was or is declared effective, including all
financial schedules and exhibits thereto; the Registration Statement shall
be deemed to include any information omitted therefrom pursuant to Rule
430A under the Act and included in the Prospectus (as hereinafter defined);
the term "Rule 462(b) Registration Statement" means any registration
statement or post-effective amendment filed under the Act pursuant to Rule
462(b) of the Rules and Regulations, and after such filing the term
"Registration Statement" shall include the 462(b) Registration Statement;
the term "Preliminary Prospectus" means each prospectus subject to
completion contained in such registration statement or any amendment
thereto (including the prospectus subject to completion, if any, included
in the Registration Statement or any amendment thereto or filed pursuant to
Rule 424(a) under the Act at the time it was or is declared effective); and
the term "Prospectus" means the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Act or, if no prospectus is required to
be filed pursuant to said Rule 424(b), such term means the prospectus
included in the Registration Statement.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus and has not instituted or
threatened to institute any proceedings with respect to such an order.
When any Preliminary Prospectus was filed with the Commission it (A)
contained all statements required to be stated therein in accordance with,
and complied in all material respects with the requirements of, the Act and
the Rules and Regulations and (B) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. When the Registration Statement or any amendment
thereto was or is declared effective, it (A) contained or will contain all
statements required to be stated therein in accordance with, and complied
or will comply in all material respects with the requirements of, the Act
and the Rules and Regulations and (B) did not or will not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the
Prospectus and when any amendment or supplement thereto is filed with the
Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment
or supplement is not required to be so filed, when the Registration
Statement and when any amendment thereto containing such amendment or
supplement to the Prospectus was or is declared effective) and at all times
subsequent thereto up to and including the Closing Date (as defined in
Section 3 hereof) and the Option Closing Date (as defined in Section 9
hereof), the Prospectus, as amended or supplemented at any such time, (A)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with
the requirements of, the Act and the Rules and Regulations and (B) did not
or will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances
2
<PAGE>
under which they were made, not misleading. The foregoing provisions of
this paragraph (ii) shall not apply to statements or omissions made in any
Preliminary Prospectus, the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto in reliance upon,
and in conformity with, information contained in the last paragraph of the
outside front cover page, the last paragraph of the inside front cover page
and the section under the heading "Underwriting," all of which was
furnished in writing to the Company by or on behalf of the Underwriters
through the Underwriters expressly for use therein.
(iii) Each of the Company and its Subsidiaries (as hereinafter
defined) (A) is duly organized and validly existing in good standing under
the laws of its jurisdiction of organization, with full power and authority
(corporate and other) to own or lease its properties and to conduct its
business as described in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus); and (B) is duly qualified to do business as a foreign
corporation or partnership and is in good standing in each jurisdiction (x)
in which the conduct of its respective business requires such qualification
(except for those jurisdictions in which the failure so to qualify has not
had and will not have a Material Adverse Effect (as hereinafter defined))
and (y) in which the Company or respective Subsidiaries owns or leases
property. "Material Adverse Effect" means, when used in connection with
the Company or its Subsidiaries, any development, change or effect that is
materially adverse to the business, properties, assets, net worth,
condition (financial or other), results of operations or prospects of the
Company and its Subsidiaries taken as a whole. "Subsidiaries" means the
entities listed on Schedule II hereto, and except as set forth on Schedule
II hereto the Company has no other subsidiaries, whether corporate or
partnership or otherwise, and no interest in any other entity.
(iv) The Company has the duly authorized and validly outstanding
capitalization set forth under the caption "Capitalization" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and will have the adjusted capitalization set forth
therein on the Closing Date and on the Option Closing Date, based on the
assumptions set forth therein. The securities of the Company conform to
the descriptions thereof contained in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus). The
outstanding shares of the Company's Common Stock, par value $.01 per share
(the "Common Stock"), have been duly authorized and validly issued by the
Company and are fully paid and nonassessable. The outstanding shares of
the Company's 10.25% Series B Cumulative Preferred Stock, par value $0.01
per share, have been duly authorized and validly issued by the Company and
are fully paid and nonassessable. Except as created hereby or referred to
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), or granted pursuant to the Company's 1993
Stock Incentive Plan, there are no outstanding options, warrants, rights or
other arrangements requiring the Company or any Subsidiary at any time to
issue any capital stock. No holders of outstanding shares of capital stock
of the Company are entitled as such to any preemptive or other rights to
subscribe for any of the Shares and neither the filing of the registration
statement nor the offering or sale of the Shares as contemplated by this
Agreement gives rise to any rights, other than those which have been waived
or satisfied, for or relating to, the registration of any securities of the
Company. The Shares have been duly authorized; on the Closing Date or the
Option Closing Date (as the case may be), after payment therefor in
accordance with the terms of this Agreement, (A) the Firm Shares and the
Additional Shares to be sold by the Company hereunder will be validly
issued, fully paid and nonassessable, and (B) good and marketable title to
the Shares will pass to the Underwriters on the Closing Date or the Option
Closing Date (as the case may be) free and clear
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of any lien, encumbrance, security interest, claim or other restriction
whatsoever. All the outstanding shares of capital stock of each Subsidiary
organized as a corporation have been duly authorized and validly issued,
and all of the outstanding partnership units of each Subsidiary organized
as a Partnership have been duly created, validly issued and are enforceable
in accordance with their terms. The Company has received, subject to notice
of issuance, approval to have the Shares listed on The New York Stock
Exchange and the Company knows of no reason or set of facts which is likely
to adversely affect such approval.
(v) The consolidated financial statements and the related notes
and schedules thereto included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the consolidated financial
condition, results of operations, stockholders' equity and cash flows of
the Company and its consolidated Subsidiaries at the dates and for the
periods specified therein. Such financial statements and the related notes
and schedules thereto have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein) and such financial statements
as are audited have been examined by Deloitte & Touche LLP, who are
independent public accountants within the meaning of the Act and the Rules
and Regulations, as indicated in their reports filed therewith. The
selected financial information and statistical data set forth under the
captions "Summary Consolidated Financial Data" and "Selected Consolidated
Financial and Operating Data" in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) have been
prepared on a basis consistent with the financial statements of the Company
and its consolidated Subsidiaries. The pro forma financial data set forth
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), under the captions "Summary Consolidated
Financial Data" and "Selected Consolidated Financial and Operating Data"
have been prepared in conformity with the requirements of the Act and the
Rules and Regulations.
(vi) Statistical data that appears in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
under the heading "Business and Properties" concerning the operation of the
Company's properties have been prepared based upon the Company's books and
records, all of which were prepared in the ordinary course of business, and
the tabular or other presentations of the statistical data have been made
in conformity with the requirements of the Act and the Rules and
Regulations and present fairly the information shown therein, and these
presentations do not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(vii) The Company (i) has filed when due all material federal,
state and local returns for "Taxes" (as hereinafter defined) that are
required to be filed by it for all taxable periods through and including
December 31, 1996; all such returns were prepared in the manner required by
applicable law and were true, correct and complete in all material
respects; and the Company has paid all Taxes reported as due in such
returns, and has paid any other material taxes for which it may be liable;
and (ii) is not in material default in respect of the payment of Taxes
levied or assessed against it or any of its assets for all taxable periods
through the date hereof, and there are no material liens or claims for
Taxes outstanding upon or against or threatened upon or against it or any
of its assets (other than liens for Taxes which are not yet due and
payable). No audit, inquiry, investigation or similar proceeding with
respect to Taxes is currently pending or threatened against the Company or
any of its assets with respect to which it
4
<PAGE>
may be liable for the payment of Taxes, an adverse outcome of which would
have a Material Adverse Effect. As used in the above paragraph, the term
"Tax" or "Taxes" shall include all United States federal, state, local and
foreign taxes, assessments or other governmental charges (whether imposed
directly or through withholding), including any interest, penalties and
additions to taxes applicable thereto.
(viii) The Company and each of its Subsidiaries maintain
insurance with insurance companies that the Company has no reason to
believe are not financially sound and reputable, of the types and in
amounts which they reasonably believe to be adequate for their business in
such amounts and with such deductibles as is customary for companies in the
same or similar business, all of which insurance is in full force and
effect.
(ix) Except as disclosed in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), there is no
pending action, suit, proceeding or investigation or, to the knowledge of
the Company, any threatened action, suit, proceeding or investigation
before or by any court, regulatory body or administrative agency or any
other governmental agency or body, domestic or foreign, which (A) questions
the validity of the capital stock of the Company or this Agreement or of
any action taken or to be taken by the Company pursuant to or in connection
with this Agreement, (B) is required to be disclosed in the Registration
Statement which is not so disclosed (and such proceedings, if any, as are
summarized in the Registration Statement have been properly described as
required by the Act and the Rules and Regulations in all material
respects), or (C) may have a Material Adverse Effect.
(x) The Company has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided for
herein. This Agreement has been duly authorized, executed and delivered by
the Company and, assuming it is a binding agreement of yours, constitutes a
legal, valid and binding agreement of the Company enforceable against the
Company in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application relating to or affecting the enforcement
of creditors' rights and the application of equitable principles relating
to the availability of remedies and except as rights to indemnity or
contribution may be limited by federal or state securities laws and the
public policy underlying such laws), and none of the Company's execution or
delivery of this Agreement, its performance hereunder, its consummation of
the transactions contemplated herein, its application of the net proceeds
of the offering of the Firm Shares in the manner set forth under the
caption "Use of Proceeds" or the conduct of its business as described in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), conflicts or will conflict with or results or will
result in any breach or violation of any of the terms or provisions of, or
constitutes or will constitute a default under, causes or will cause (or
permits or will permit) the maturation or acceleration of any liability or
obligation or the termination of any right under, or result in the creation
or imposition of any lien, charge, or encumbrance upon, any property or
assets of the Company or any of its Subsidiaries pursuant to the terms of
(A) the certificate of incorporation or by-laws of the Company or any of
its Subsidiaries, (B) any indenture, mortgage, deed of trust, voting trust
agreement, stockholders' agreement, note agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them are or may be bound or to which any of their respective
property is or may be subject or (C) any statute, judgment, decree, order,
rule or regulation applicable to the Company or any of its Subsidiaries of
any government, arbitrator, court, regulatory body or administrative agency
or
5
<PAGE>
other governmental agency or body, domestic or foreign, having jurisdiction
over the Company, any of its Subsidiaries or any of their respective
activities or properties.
(xi) All executed agreements or copies of executed agreements
filed or incorporated by reference as exhibits to the Registration
Statement to which the Company or any of its Subsidiaries is a party or by
which any of them are or may be bound or to which any of their assets,
properties or businesses is or may be subject have been duly and validly
authorized, executed and delivered by the Company or such Subsidiaries, as
the case may be, and constitute the legal, valid and binding agreements of
the Company or such Subsidiaries, as the case may be, enforceable against
each of them in accordance with their respective material terms (except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to enforcement of creditors'
rights generally, and general equitable principles relating to the
availability of remedies, and except as rights to indemnity or contribution
may be limited by federal or state securities laws and the public policy
underlying such laws). The descriptions in the Registration Statement of
contracts and other documents are accurate and fairly present the
information required to be shown with respect thereto by the Act and the
Rules and Regulations, and there are no contracts or other documents which
are required by the Act or the Rules and Regulations to be described in the
Registration Statement or filed as exhibits to the Registration Statement
which are not described or filed as required or incorporated therein by
reference, and the exhibits which have been filed are complete and correct
copies of the documents of which they purport to be copies.
(xii) Subsequent to the most recent respective dates as of which
information is given in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and except as expressly
contemplated therein, neither the Company nor any of its Subsidiaries has
incurred, other than in the ordinary course of its business, any material
liabilities or obligations, direct or contingent, purchased any of its
outstanding capital stock, paid or declared any dividends or other
distributions on its capital stock or entered into any material
transactions not in the ordinary course of business, and there has been no
material change in capital stock or debt or a change that has resulted in a
Material Adverse Effect. Neither the Company nor any of its Subsidiaries
(or the manner in which any of them conducts its business) is in breach or
violation of, or in default under, any term or provision of (A) its
certificate of incorporation or bylaws, (B) any indenture, mortgage, deed
of trust, voting trust agreement, stockholders' agreement, note agreement
or other agreement or instrument to which it is a party or by which it is
or may be bound or to which any of its property is or may be subject, or
any indebtedness, the effect of which breach or default singly or in the
aggregate may have a Material Adverse Effect, or (C) any statute, judgment,
decree, order, rule or regulation applicable to the Company or any of its
Subsidiaries or of any arbitrator, court, regulatory body, administrative
agency or any other governmental agency or body, domestic or foreign,
having jurisdiction over the Company or any of its Subsidiaries or any of
their respective activities or properties and the effect of which breach or
default singly or in the aggregate may have a Material Adverse Effect.
(xiii) No labor disturbance by the employees of the Company or
any of its Subsidiaries exists or, to the Company's knowledge, is imminent
which may have a Material Adverse Effect.
(xiv) Since its inception, the Company has not incurred any
material liability arising under or as a result of the application of the
provisions of the Act.
6
<PAGE>
(xv) No consent, approval, authorization or order of or filing
with any court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, is required for the
performance of this Agreement or the consummation of the transactions
contemplated hereby, except such as have been or may be obtained under the
Act, such additional steps as may be required by the Commission, the
National Association of Securities Dealers, Inc. or the New York Stock
Exchange, or that may be required under state securities or Blue Sky laws
in connection with the Underwriters' purchase and distribution of the
Shares.
(xvi) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities under the
Registration Statement (other than those that have been disclosed in the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), that have not been waived with respect to the
Registration Statement.
(xvii) Neither the Company nor any of its officers, directors or
affiliates (within the meaning of the Rules and Regulations) has taken,
directly or indirectly, any action designed to stabilize or manipulate the
price of any security of the Company, or which has constituted or which
might in the future reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company,
to facilitate the sale or resale of the Shares or otherwise.
(xviii) Each of the Company and its Subsidiaries has good and
marketable title to, or valid and enforceable leasehold interests in, all
properties and assets owned or leased by it, free and clear of all liens,
encumbrances, security interests, claims, restrictions, equities, claims
and defects, except (A) such as are described in the Registration Statement
and Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), or such as do not materially adversely affect the
value of any of such properties or assets taken as a whole and do not
materially interfere with the use made and proposed to be made of any of
such properties or assets, and (B) liens for taxes not yet due and payable
as to which appropriate reserves have been established and reflected in the
financial statements included in the Registration Statement. The
properties and business of the Company and its Subsidiaries conform in all
material respects to the descriptions thereof contained in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus). Except for leases disclosed on
the rent rolls maintained by the Company in the ordinary course of
business, there are no leases from the Company or any of its Subsidiaries
affecting any the Company or its Subsidiaries property. The aggregate
amount of rents collected more than one month in advance by the Company and
by each of its Subsidiaries under any lease has not exceeded a total of
$50,000. All rent due to date under each such lease has been collected in
the ordinary course of business and no concession has been granted to any
lessee in the form of a waiver, release, reduction, discount or other
alteration of rent due or to become due, other than in the ordinary course
of business. Except as described in the Registration Statement and
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) the interest of the lessee under each such lease is
as lessee only, with no options to purchase or rights of first refusal. No
condemnation proceeding involving any property owned or leased by the
Company or its Subsidiaries or any portion thereof or parking facility used
in connection therewith has been commenced or, to the knowledge of the
Company, is contemplated by any governmental
7
<PAGE>
authority, nor has any portion of any property or any parking facility used
in connection therewith been materially damaged due to fire or other
casualty which would materially impair the use of the property. None of the
properties owned or leased by the Company or any of its Subsidiaries is
being operated in violation of any law, rule or regulation or determination
of any court or other governmental authority (a "Requirement of Law") or
any building permits, restrictions of record, or any agreement affecting
any such property or part thereof, or any judgment, decree or order
applicable to such property which would materially impair the use of the
property. All governmental permits (including, without limitation, building
permits and certificates of occupancy) necessary under applicable
Requirements of Law to lawfully construct, own, lease, occupy, use and
operate each property owned or leased by the Company or any of its
Subsidiaries and the improvements thereon, including, but not limited to,
all applicable zoning laws, ordinances and regulations, have been obtained.
Each property owned or leased by the Company or any of its Subsidiaries has
adequate water, gas, telephone, electrical supply, storm and sanitary
sewerage facilities and means of access to and from public streets or
highways for the purposes for which it is intended to be used.
(xix) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) (i)
the operations and properties of the Company and its Subsidiaries comply in
all respects with all Environmental Laws (as defined below), except for
such non-compliance as would not (if enforced in accordance with
Environmental Laws) result in liability that would have a Material Adverse
Effect, (ii) the Company and its Subsidiaries have obtained and maintained
all licenses, permits, authorizations and registrations required under any
Environmental Law ("Environmental Permits") and all such Environmental
Permits are in good standing, and each of the Company and its Subsidiaries
is in compliance with all terms and conditions thereof, except to the
extent that any failure to obtain, maintain or comply with Environmental
Permits would not result in a liability that would have a Material Adverse
Effect, (iii) there are no outstanding written orders from or agreements
with any governmental authority nor any judicial or docketed administrative
proceedings respecting any Environmental Law, Environmental Claim (as
defined below) or Hazardous Material (as defined below) to which the
Company or any Subsidiary or any of such person's properties or operations,
is subject, and (iv) there are no Hazardous Materials or other conditions
or circumstances existing with respect to any Property (as such term is
defined in the Prospectus) that would reasonably be expected to give rise
to material Environmental Claims for any such condition, circumstance or
property. In addition, (A) there are not located on the any of properties
owned or leased by the Company or its Subsidiaries underground storage
tanks (x) that are not properly registered or permitted under applicable
Environmental Laws, or (y) that are leaking or emitting Hazardous Materials
whether on- or off-site, and (B) the Company and each Subsidiary have
notified all of their employees of the existence of material health
hazards, if any, arising from the conditions of their employment to the
extent required under any Environmental Laws and have met all material
notification requirements under Title III of CERCLA and all other
Environmental Laws. "Environmental Laws" means all federal, state or local
------------------
laws, statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, administrative or
regulatory requirements, licenses, authorizations and permits of, and
agreements with, any governmental authorities, in each case relating to
environmental, health, safety and land use matters. "Environmental Claims"
--------------------
means all claims, however asserted, by any governmental authority or other
person alleging potential liability or responsibility for violation of any
Environmental Law or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or death),
property damage, natural resources damage, or otherwise alleging liability
or responsibility for damages (punitive or otherwise),
8
<PAGE>
cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting
from or based upon (a) the presence, placement, discharge, emission or
release (including intentional and unintentional, negligent and non-
negligent, sudden or non-sudden, accidental or non-accidental placement,
spills, leaks, discharges, emissions or releases) of any Hazardous Material
at, in, or from property, whether or not owned by the Company, or (b) any
other circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law. "Hazardous Materials" means (i) all
-------------------
those substances which are regulated by, or which may form the basis of
liability under, any Environmental Law, including all substances identified
under any Environmental Law as a pollutant, contaminant, hazardous waste,
hazardous constituent, special waste, hazardous substance, hazardous
material, toxic substance, or petroleum or petroleum-derived substance or
waste, (ii) any other materials or pollutants that (a) pose a hazard to any
property of the Company or any Subsidiary or to persons on or about such
property or (b) cause such property to be in violation of any Environmental
Laws, (iii) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, electrical equipment which contains any oil
or dielectric fluid containing levels of polychlorinated biphenyls in
excess of fifty parts per million, and (iv) any other chemical, material,
substance, or waste, exposure to which is prohibited, limited, or regulated
by any governmental authority or may or could pose a hazard to the health
and safety of the owners, occupants, or any persons surrounding the
relevant property.
(xx) Neither the Company nor any Subsidiary has violated any
applicable safety, health or similar law applicable to the business of the
Company, nor any federal or state law relating to discrimination in the
hiring, promotion, or pay of employees, nor any applicable federal or state
wages and hours law, nor any provisions of the Employee Retirement Income
Security Act of 1974 ("ERISA") or the rules and regulations promulgated
thereunder, the consequences of which violation may have a Material Adverse
Effect.
(xxi) Each of the Company and its Subsidiaries holds all
franchises, licenses, permits, approvals, certificates and other
authorizations from federal, state and other governmental or regulatory
authorities necessary to the ownership, leasing and operation of its
properties or required for the present conduct of its business, and such
franchises, licenses, permits, approvals, certificates and other
governmental authorizations are in full force and effect and the Company
and its Subsidiaries are in compliance therewith in all material respects
except where the failure so to obtain, maintain or comply with would not
have a Material Adverse Effect.
(xxii) No Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such Subsidiaries' capital stock, from
repaying to the Company any loans or advances to such Subsidiaries from the
Company or from transferring any of such Subsidiary's property or assets to
the Company or any other Subsidiaries of the Company, except as described
in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xxiii) The Company has been organized and operated in
conformity with the requirements for qualification as a real estate
investment trust (a "REIT") under the Internal Revenue Code of 1986, as
amended (the "Code"), for its taxable years ended December 31, 1994,
December 31, 1995 and December 31, 1996, and the Company's present and
proposed
9
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method of operation will enable it to continue to meet the requirements for
qualification as a REIT under the Code.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, (A) the Company agrees to
sell to each Underwriter and each Underwriter, severally but not jointly, agrees
to purchase from the Company at a purchase price of $24 per Share, the number of
Firm Shares set forth opposite the name of such Underwriter in Column (1) of
Schedule I hereto.
Delivery of certificates, and payment of the purchase price, for the Firm
Shares shall be made at the offices of Gibson, Dunn & Crutcher LLP, Los Angeles,
California, or such other location as shall be agreed upon by the Company and
the Underwriters. Such delivery and payment shall be made at 8:00 a.m., Pacific
Daylight Time, on November __,, 1997 or at such other time and date not more
than ten business days thereafter as shall be agreed upon by the Underwriters
and the Company. Payment for the Firm Shares shall be made to the Company by
same-day wire transfer in immediately available United States funds payable to
the order of the Company. The time and date of such delivery and payment are
herein called the "Closing Date." Delivery of the certificates for the Firm
Shares shall be made to the Underwriters for the respective accounts of the
Underwriters against payment by the Underwriters through the Underwriters of the
purchase price for the Firm Shares. The certificates for the Shares to be so
delivered will be in definitive, fully registered form, will bear no restrictive
legends and will be in such denominations and registered in such names as the
Underwriters shall request, not less than two full business days prior to the
Closing Date, provided, however, that in the event the Company is unable to
-----------------
deliver definitive certificates at such time, the Company may deliver temporary
certificates in lieu thereof, which shall be replaced with definitive
certificates as soon as reasonably practicable thereafter. The certificates for
the Firm Shares will be made available to the Underwriters at such office or
such other place as the Underwriters may designate for inspection, checking and
packaging not later than 9:30 a.m. Pacific Daylight Time on the business day
prior to the Closing Date.
4. PUBLIC OFFERING OF THE SHARES. It is understood that the Underwriters
propose to make a public offering of the Shares at the price and upon the other
terms set forth in the Prospectus.
5. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
practicable. If required, the Company will file the Prospectus and any
amendment or supplement thereto with the Commission in the manner and
within the time period required by Rule 424(b) under the Act. During any
time when a prospectus relating to the Shares is required to be delivered
under the Act, the Company (A) will comply with all requirements imposed
upon it by the Act and the Rules and Regulations to the extent necessary to
permit the continuance of sales of or dealings in the Shares in accordance
with the provisions hereof and of the Prospectus, as then amended or
supplemented, and (B) will not file with the Commission the prospectus or
the amendment referred to in the third sentence of Section 2 (a) (i)
hereof, any amendment or supplement to such prospectus or any amendment to
the Registration Statement of which the Underwriters shall not previously
have been advised and furnished with a copy a reasonable period of time
prior to the proposed filing and as to which filing the Underwriters shall
not have given their consent.
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(ii) As soon as the Company is advised or obtains knowledge
thereof, the Company will advise the Underwriters (A) when the Registration
Statement, as amended, has become effective; if the provisions of Rule 430A
promulgated under the Act will be relied upon, when the Prospectus has been
filed in accordance with said Rule 430A and when any post-effective
amendment to the Registration Statement becomes effective; (B) of any
request made by the Commission for amending the Registration Statement, for
supplementing any Preliminary Prospectus or the Prospectus or for
additional information, or (C) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or the institution or threat of any investigation or
proceeding for that purpose, and will use its best efforts to prevent the
issuance of any such order and, if issued, to obtain the lifting thereof as
soon as possible.
(iii) The Company will (A) use its best efforts to arrange for
the qualification of the Shares for offer and sale under the state
securities or blue sky laws of such jurisdictions as the Underwriters may
designate, (B) continue such qualifications in effect for as long as may be
necessary to complete the distribution of the Shares, and (C) make such
applications, file such documents and furnish such information as may be
required for the purposes set forth in clauses (A) and (B); provided,
--------
however, that the Company shall not be required to qualify as a foreign
-------
corporation or file a general or unlimited consent to service of process in
any such jurisdiction.
(iv) The Company consents to the use of the Prospectus (and any
amendment or supplement thereto) by the Underwriters and all dealers to
whom the Shares may be sold, in connection with the offering or sale of the
Shares and for such period of time thereafter as the Prospectus is required
by law to be delivered in connection therewith. If, at any time when a
prospectus relating to the Shares is required to be delivered under the
Act, any event occurs as a result of which the Prospectus, as then amended
or supplemented, would include any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein not
misleading, or if it becomes necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the
Company promptly will so notify the Underwriters and, subject to section 5
(a) (i) hereof, will prepare and file with the Commission an amendment to
the Registration Statement or an amendment or supplement to the Prospectus
which will correct such statement or omission or effect such compliance,
each such amendment or supplement to be reasonably satisfactory to counsel
to the Underwriters.
(v) As soon as practicable, but in any event not later than 45
days after the end of the 12-month period beginning on the day after the
end of the fiscal quarter of the Company during which the effective date of
the Registration Statement occurs (90 days in the event that the end of
such fiscal quarter is the end of the Company's fiscal year), the Company
will make generally available to its security holders, in the manner
specified in Rule 158(b) of the Rules and Regulations, and to the
Underwriters, an earnings statement which will be in the detail required
by, and will otherwise comply with, the provisions of Section 11(a) of the
Act and Rule 158(a) of the Rules and Regulations, which statement need not
be audited unless required by the Act or the Rules and Regulations,
covering a period of at least 12 consecutive months after the effective
date of the Registration Statement.
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(vi) During a period of five years after the date hereof, the
Company will furnish to its stockholders, as soon as practicable, annual
reports (including financial statements audited by independent public
accountants) and unaudited quarterly reports of earnings, and will deliver
to the Underwriters:
(A) concurrently with furnishing such quarterly reports to its
stockholders, statements of income of the Company for each quarter in the
form furnished to the Company's stockholders and certified by the
Company's principal financial or accounting officer;
(B) concurrently with furnishing such annual reports to its
stockholders, a balance sheet of the Company as at the end of the
preceding fiscal year, together with statements of operations,
stockholders' equity, and cash flows of the Company for such fiscal year,
accompanied by a copy of the report thereon of independent public
accountants;
(C) as soon as they are available, copies of all information
(financial or other) mailed to stockholders;
(D) as soon as they are available, copies of all reports and
financial statements furnished to or filed with the Commission or any
securities exchange;
(E) every press release and every material news item or article
of interest to the financial community in respect of the Company or its
affairs which was released or prepared by the Company; and
(F) any additional information of a public nature concerning the
Company or its business which the Underwriters may reasonably request.
During such five-year period, if the Company has active
subsidiaries (whether corporate or partnership or otherwise), the foregoing
financial statements will be on a consolidated basis to the extent that the
accounts of the Company and such subsidiaries (corporate or partnership or
otherwise) are consolidated, and will be accompanied by similar financial
statements for any significant subsidiary (corporate or partnership or
otherwise) which is not so consolidated.
(vii) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar (which may be the same entity as the transfer agent) for its
Preferred Stock.
(viii) The Company will furnish, without charge, to the
Underwriters or on the Underwriters' order, at such place as the
Underwriters may designate, copies of the Preliminary Prospectus, the
Registration Statement and any pre-effective or post-effective amendments
thereto (two copies of which will be signed and will include all financial
statements and exhibits) and the Prospectus, and all amendments and
supplements thereto, in each case as soon as available and in such
quantities as the Underwriters may reasonably request.
(ix) The Company will not, directly or indirectly, without the
prior written consent of the Underwriters, issue, offer, sell, grant any
option to purchase or otherwise dispose
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(or announce any issuance, offer, sale, grant of any option to purchase or
other disposition) of any shares of Preferred Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Preferred
Stock for a period of 180 days after the date hereof, except pursuant to
this Agreement and except as contemplated by the Prospectus.
(x) The Company will use its best efforts to cause the Shares to
be duly authorized for listing on The New York Stock Exchange prior to the
Closing Date.
(xi) Neither the Company nor any of its officers or directors,
nor affiliates of any of them (within the meaning of the Rules and
Regulations) will take, directly or indirectly, any action designed to, or
which might in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any securities of the
Company.
(xii) The Company will apply the net proceeds of the offering
received by it in the manner set forth under the caption "Use of Proceeds"
in the Prospectus.
(xiii) The Company will timely file all such reports, forms or
other documents as may be required from time to time, under the Act, the
Rules and Regulations, the Exchange Act, and the rules and regulations
thereunder, and all such reports, forms and documents filed will comply as
to form and substance with the applicable requirements under the Act, the
Rules and Regulations, the Exchange Act and the rules and regulations
thereunder.
(xiv) The Company, so long as consistent with the best interests
of its shareholders, will use its best efforts to continue to meet the
requirements to qualify as a REIT under the Code.
6. EXPENSES.
(a) Regardless of whether the transactions contemplated in this
Agreement are consummated, and regardless of whether for any reason this
Agreement is terminated, the Company will pay, and hereby agrees to indemnify,
each Underwriter against all fees and expenses incident to the performance of
the obligations of the Company under this Agreement, including, but not limited
to, (i) fees and expenses of accountants and counsel for the Company, (ii) all
costs and expenses incurred by the Company in connection with the preparation,
duplication, printing, filing, delivery and shipping of copies of the
Registration Statement and any pre-effective or post-effective amendments
thereto, any Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto (including postage costs related to the delivery by the
Underwriters of any Preliminary Prospectus or Prospectus, or any amendment or
supplement thereto), this Agreement, the Agreement Among Underwriters, any
Selected Dealer Agreement, Underwriters' Questionnaire, Underwriters' Power of
Attorney, and all other documents in connection with the transactions
contemplated herein, including the cost of all copies thereof, (iii) fees and
expenses relating to qualification of the Shares under state securities or blue
sky laws, including the cost of preparing and mailing the preliminary and final
blue sky memoranda and filing fees and disbursements and fees of counsel and
other related expenses, if any, in connection therewith, (iv) filing fees of the
Commission and the NASD relating to the Shares, (v) any fees and expenses in
connection with the listing of the Shares on the New York Stock Exchange, and
(vi) costs and expenses incident to the preparation, issuance and delivery to
the Underwriters of any certificates evidencing the Shares, including transfer
agent's and registrar's fees and any applicable transfer taxes incurred in
connection with the delivery to the Underwriters of the Shares to be sold by the
Company pursuant to this Agreement, (vii) costs and expenses incident to any
meetings with prospective investors in the Shares
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(other than as shall have been specifically approved by the Underwriters) and
(viii) costs and expenses of advertising relating to the offering of the Shares
(other than as shall have been specifically approved by the Underwriters).
(b) If the purchase of the Shares as herein contemplated is not
consummated for any reason other than the Underwriters' default under this
Agreement or other than by reason of Sections 11(a), (b)(iii), (b)(iv) and
(b)(v)(A), the Company shall reimburse the Underwriters for their out-of-pocket
expenses (including reasonable counsel fees and disbursements) in connection
with any investigation made by them, and any preparation made by them in respect
of marketing of the Shares or in contemplation of the performance by them of
their obligations hereunder, but the Company shall not in any event be liable to
any of the Underwriters for damages on account of loss of anticipated profits
from the sale by them of the Shares.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation of each
Underwriter to purchase and pay for the Shares set forth opposite the name of
such Underwriter in Schedule I is subject to the continuing accuracy in all
material respects of the representations and warranties of the Company herein as
of the date hereof and as of the Closing Date as if they had been made on and as
of the Closing Date; the accuracy on and as of the Closing Date of the
statements of officers of the Company made pursuant to the provisions hereof;
the performance by the Company on and as of the Closing Date of its covenants
and agreements hereunder; and the following additional conditions:
(a) If the Company has elected to rely on Rule 430A under the Act, the
Registration Statement shall have been declared effective, and the Prospectus
(containing the information omitted pursuant to Rule 430A) shall have been filed
with the Commission not later than the Commission's close of business on the
second business day following the date hereof or such later time and date to
which the Underwriters shall have consented; if the Company does not elect to
rely on Rule 430A, the Registration Statement shall have been declared effective
not later than 11:00 a.m., New York time, on the date hereof or such later time
and date to which the Underwriters shall have consented; if required, in the
case of any changes in or amendments or supplements to the Prospectus in
addition to those contemplated above, the Company shall have filed such
Prospectus as amended or supplemented with the Commission in the manner and
within the time period required by Rule 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Underwriters, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(b) The Underwriters, in the reasonable exercise of their judgment,
shall not have advised the Company that the Registration Statement, or any
amendment thereto, contains an untrue statement of fact which, in the
Underwriters' reasonable opinion, is material, or omits to state a fact which,
in the Underwriters' reasonable opinion, is material and is required to be
stated therein or is necessary to make the statements therein not misleading, or
that the Prospectus, or any supplement thereto, contains an untrue statement of
fact which, in the Underwriters' reasonable opinion, is material, or omits to
state a fact which, in the Underwriters' reasonable opinion, is material and is
required to be stated therein or is necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Underwriters shall have
received from counsel to the Underwriters, such opinion or opinions with respect
to the issuance and sale of the Firm
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Shares, the Registration Statement and the Prospectus and such other related
matters as the Underwriters reasonably may request and such counsel shall have
received such documents and other information as they request to enable them to
pass upon such matters. In rendering such opinion, such counsel may rely as to
all matters of Maryland law upon the opinion of Piper & Marbury L.L.P.
(d) If the issuance and sale of the Firm Shares to Underwriters will
result in the Underwriters individually or in the aggregate exceeding the
Ownership Limit (as defined in the Prospectus) with respect to the Company's
capital stock, then, on or prior to the Closing Date, the Underwriters shall
have received from the Company's Board of Directors a resolution determining
that the Underwriters are exempt from the Ownership Limit set forth in
subsection 7 of Article IV of the Articles of Amendment and Restatement of the
Charter with respect to the issuance and sale of the Firm Shares, in form and
substance reasonably satisfactory to the Underwriters.
(e) On the Closing Date the Underwriters shall have received the
opinion, dated the Closing Date, of Gibson, Dunn & Crutcher LLP, counsel to the
Company ("Company Counsel"), to the effect set forth below:
(i) Each of the Company's Subsidiaries (provided, however, that
the term "Subsidiaries," for purposes of this Section 7(e), shall not
include GLN Capital Co., LLC, a Delaware limited liability company) is a
duly incorporated and validly existing corporation or partnership in good
standing under the laws of its jurisdiction of incorporation with full
power and authority (corporate and other) to own or lease its properties
and to conduct its business as described in the Prospectus. Each of the
Company and its Subsidiaries is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
conduct of its business requires such qualification (except for those
jurisdictions in which the failure so to qualify can be cured without
having a Material Adverse Effect).
(ii) The Shares have been duly authorized for listing, subject to
official notice of issuance, on The New York Stock Exchange;
(iii) The ____ % Series B Cumulative Preferred Units to be
issued by G & L Realty Partnership, L.P. (the "Operating Partnership") to
the Company under the terms of the Second Addendum to Agreement of Limited
Partnership of the Operating Partnership (the "Addendum") have been duly
authorized, executed and delivered and are enforceable according to their
terms and binding upon the Operating Partnership, establish the priority of
interest relative to the Partnership Units of the Operating Partnership
that the Addendum purports to establish, and establish the parity of
interest with the 10.25% Series A Cumulative Preferred Units of the
Operating Partnership that the Addendum purports to establish.
(iv) The Registration Statement has been declared effective under
the Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b);
and to such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement or any amendment thereto has been issued and,
to the knowledge of such counsel, no proceedings for that purpose have been
instituted or are pending or are threatened or contemplated under the Act;
the registration statement originally filed with respect to the Shares and
each amendment thereto and the Prospectus and, if any, each amendment and
supplement thereto (except for the financial statements, schedules and
other statistics and financial data included therein, as to which such
counsel need not express any opinion), complied as to form in all material
respects with the
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<PAGE>
requirements of the Act and the Rules and Regulations; to the knowledge of
such counsel, there are no contracts or documents which are required by the
Act to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which are not described
or filed as required by the Act and the Rules and Regulations; to the
knowledge of such counsel, there is not pending or threatened against the
Company any action, suit, proceeding or investigation before or by any
court, regulatory body, or administrative agency or any other governmental
agency or body, domestic or foreign, of a character required to be
disclosed in the Registration Statement or the Prospectus which is not so
disclosed therein; and the statements set forth under the headings "The
Company -- Legal Proceedings," "Business and Properties -- Government
Regulation," "The Company -- Tax Status" and "Federal Income Tax
Considerations" in the Prospectus, insofar as such statements constitute a
summary of the law or documents referred to therein, provide an accurate
summary of such law or documents.
(v) This Agreement has been duly authorized, executed and
delivered by the Company. None of the Company's execution or delivery of
this Agreement, its performance hereof, its consummation of the
transactions contemplated herein or its application of the net proceeds of
the offering in the manner set forth in the Prospectus under the caption
"Use of Proceeds" materially conflicts or will materially conflict with or
results or will result in any material breach or violation of any of the
terms or provisions of, or constitute a material default under, or result
in the creation or imposition of any material lien, charge or encumbrance
upon any property or assets of the Company or any of its Subsidiaries
pursuant to the terms of the certificate of incorporation, by-laws or other
organizational documents of the Company's Subsidiaries; the terms of any
agreement or instrument listed as an exhibit in the Registration Statement;
any statute, rule or regulation of any regulatory body or administrative
agency or other governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of its Subsidiaries or any of their
respective activities or properties; or any judgment, decree or order,
known to such counsel, of any government, arbitrator, court, regulatory
body or administrative agency or other governmental agency or body,
domestic or foreign, having such jurisdiction; and no consent, approval,
authorization or order of any court, regulatory body or administrative
agency or other governmental agency or body, domestic or foreign, has been
or is required for the Company's performance of this Agreement or the
consummation of the transactions contemplated hereby, except such as have
been obtained under the Act or may be required under state securities or
blue sky laws in connection with the purchase and distribution by the
Underwriters of the Shares;
(vi) To such counsel's knowledge, the conduct of the businesses
of the Company and its Subsidiaries is not in violation of any federal,
state or local statute, administrative regulation or other law, which
violation is likely to have a Material Adverse Effect; and, to such
counsel's knowledge, each of the Company and its Subsidiaries has obtained
all licenses, permits, franchises, certificates and other authorizations
from state, federal and other regulatory authorities as are necessary or
required for the ownership, leasing and operation of its properties and the
conduct of its business as currently conducted and as contemplated in the
Prospectus, except for licenses, permits, franchises, certificates and
other authorizations the failure of which to obtain would not have a
Material Adverse Effect; and
(vii) The issued shares of capital stock or partnership
interests of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and, except and as otherwise set
forth in the Prospectus, are owned by the Company or the Operating
Partnership free and clear of any perfected security interests or, to the
knowledge of such
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counsel, any other liens, encumbrances, claims or security interests; to
such counsel's knowledge no Subsidiary of the Company is currently
prohibited, directly or indirectly, by any material agreement listed in the
Registration Statement or by its certificate of organization, bylaws or
organizational documents, from paying any dividends to the Company, from
making any other distribution on such Subsidiaries' capital stock, from
repaying to the Company any loans or advances to such Subsidiaries from the
Company or from transferring any of such Subsidiaries' property or assets
to the Company or any other Subsidiaries of the Company, except as
described in the Prospectus.
In addition, such counsel shall state that in the course of the
preparation of the Registration Statement and the Prospectus, such counsel
has participated in conferences with officers and representatives of the
Company and with the Company's independent public accountants, at which
conferences such counsel made inquiries of such officers, representatives
and accountants and discussed the contents of the Registration Statement
and the Prospectus and (without taking any further action to verify
independently the statements made in the Registration Statement and the
Prospectus and, except as stated in the foregoing opinion, without assuming
responsibility for the accuracy, completeness or fairness of such
statements) nothing has come to such counsel's attention that causes such
counsel to believe that either the Registration Statement as of the date it
is declared effective and as of the Closing Date or the Prospectus as of
the date thereof and as of the Closing Date contained or contains any
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading (it being understood that such counsel need not
express any opinion with respect to the financial statements and notes
thereto, schedules and other financial or statistical data included in the
Registration Statement or the Prospectus).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (d) shall include any amendment or supplement thereto at the date
of such opinion.
(f) On the Closing Date the Underwriters shall have received the
opinion, dated the Closing Date, of Piper & Marbury L.L.P., counsel to the
Company ("Maryland Company Counsel"), to the effect set forth below:
(i) The Company is a duly incorporated and validly existing
corporation in good standing under the laws of Maryland with full corporate
power and authority to own or lease its properties and to conduct its
business as described in the Prospectus;
(ii) The Company has authorized capital stock as set forth in the
Prospectus; the securities of the Company conform in all material respects
to the description thereof contained in the Prospectus; the outstanding
shares of Common Stock have been duly authorized and validly issued by the
Company, are fully paid and nonassessable, and are free of any preemptive
or other rights to subscribe for any of the Shares; the outstanding shares
of the Company's 10.25% Series B Cumulative Preferred Stock, par value
$0.01 per share, have been duly authorized and validly issued by the
Company and are fully paid and nonassessable; the Company has duly
authorized the issuance and sale of the Shares to be sold by it hereunder;
such Shares, when issued by the Company and paid for in accordance with the
terms hereof, will be
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validly issued, fully paid and nonassessable and will conform in all
material respects to the description thereof contained in the Prospectus
and will not be subject to any preemptive, subscription or other similar
rights;
(iii) The Company has full legal right, power, and authority to
enter into this Agreement and to consummate the transactions provided for
herein, and this Agreement has been duly authorized, executed and delivered
by the Company; and
(iv) None of the Company's execution or delivery of this
Agreement, its performance hereof, its consummation of the transactions
contemplated herein or its application of the net proceeds of the offering
in the manner set forth under the caption "Use of Proceeds" materially
conflicts or will materially conflict with or results or will result in any
material breach or violation of any of the terms or provisions of, or
constitute a material default under, or result in the creation or
imposition of any material lien, charge or encumbrance upon, any property
or assets of the Company or any of its subsidiaries pursuant to the terms
of the certificate of incorporation, by-laws or other organizational
documents of the Company.
References to the Registration Statement and Prospectus in this
paragraph (e) shall include any amendment or supplement thereto at the date
of such opinion.
(g) On or prior to the Closing Date, counsel to the Underwriters shall
have been furnished such documents, certificates and opinions as they may
reasonably require in order to evidence the accuracy, completeness or
satisfaction of any of the representations or warranties of the Company, or
conditions herein contained.
(h) At the time that this Agreement is executed by the Company, the
Underwriters shall have received from Deloitte & Touche LLP a "comfort" letter
as of the date this Agreement is executed by the Company in form and substance
satisfactory to you (the "Original Letter"), and on the Closing Date the
Underwriters shall have received from such firm a letter dated the Closing Date
stating that, as of a specified date not earlier than five (5) days prior to the
Closing Date, nothing has come to the attention of such firm to suggest that the
statements made in the Original Letter are not true and correct.
(i) On the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect that each
of such persons has carefully examined the Registration Statement and the
Prospectus and any amendments or supplements thereto and this Agreement, and
that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects, as if made on and
as of the Closing Date, and the Company has complied with all agreements
and covenants and satisfied all conditions contained in this Agreement on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that purpose
have been instituted or are pending or, to the best knowledge of each of
such persons are contemplated or threatened under the Act and any and all
filings required by Rule 424 and Rule 430A have been timely made;
(iii) The Registration Statement and Prospectus and, if any,
each amendment and each supplement thereto, contain all statements and
information required to be included
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therein, and neither the Registration Statement nor any amendment thereto
includes any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and neither the Prospectus (or any
supplement thereto) or any Preliminary Prospectus includes or included any
untrue statement of a material fact or omits or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and
(iv) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus up to and
including the Closing Date, neither the Company nor any of the Subsidiaries
has incurred, other than in the ordinary course of its business, any
material liabilities or obligations, direct or contingent; neither the
Company nor any of the Subsidiaries has purchased any of its outstanding
capital stock or paid or declared any dividends or other distributions on
its capital stock; neither the Company nor any of the Subsidiaries has
entered into any transactions not in the ordinary course of business; and
there has not been any change in the capital stock or debt or a change that
has resulted in a Material Adverse Effect; nor has any portion of any
property of the Company or of any of the Subsidiaries or any parking
facility used in connection therewith been materially damaged due to fire
or other casualty which would materially impair the use of the property;
there is no litigation which is pending or threatened against the Company
or any of its Subsidiaries which is required under the Act or the Rules and
Regulations to be set forth in an amended or supplemented Prospectus which
has not been set forth; and there has not occurred any event required to be
set forth in an amended or supplemented Prospectus which has not been set
forth.
References to the Registration Statement and the Prospectus in this
paragraph (h) are to such documents as amended and supplemented at the date
of the certificate.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus up to and including the
Closing Date there has not been (i) any change or decrease specified in the
letter or letters referred to in paragraph (g) of this Section 7 or (ii) any
change, or any development involving a prospective change, in the business or
properties of the Company or its Subsidiaries which change or decrease in the
case of clause (i) makes it impractical or inadvisable in the Underwriters'
reasonable judgment to proceed with the public offering or the delivery of the
Shares as contemplated by the Prospectus.
(k) No order suspending the sale of the Shares in any jurisdiction
designated by you pursuant to Section 5(a)(iii)(A) hereof has been issued on or
prior to the Closing Date and no proceedings for that purpose have been
instituted or, to your knowledge or that of the Company, have been or are
contemplated.
(l) The Underwriters shall have received from Messrs. Daniel M.
Gottlieb and Steven D. Lebowitz an agreement to the effect that each of them
will not, directly or indirectly, without the prior written consent of the
Underwriters, offer, sell, grant any option to purchase or otherwise dispose (or
announce any offer, sale, grant of an option to purchase or other disposition)
of any shares of Common Stock or any securities convertible into, or
exchangeable or exercisable for, shares of Common Stock for a period of 180 days
after the date of this Agreement.
(m) The Company shall have furnished the Underwriters with such
further opinions, letters, certificates or documents as you or counsel for the
Underwriters may reasonably request. All
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opinions, certificates, letters and documents to be furnished by the Company
will comply with the provisions hereof only if they are reasonably satisfactory
in all material respects to the Underwriters and to counsel for the
Underwriters. The Company shall furnish the Underwriters with conformed copies
of such opinions, certificates, letters and documents in such quantities as you
reasonably request. The certificates delivered under this Section 7 shall
constitute representations, warranties and agreements of the Company, as to all
matters set forth therein as fully and effectively as if such matters had been
set forth in Section 2 of this Agreement.
(n) The Shares shall have been duly authorized for listing, subject to
official notice of issuance, on The New York Stock Exchange.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any and all
losses, claims, damages or liabilities, joint or several (and actions in respect
thereof), to which such Underwriter or such controlling person may become
subject, under the Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or the
Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto, or any blue sky application or other document executed by the Company
specifically for the purpose of qualifying, or based upon written information
furnished by the Company filed in any state or other jurisdiction in order to
qualify, any or all of the Shares under the securities or blue sky laws thereof
(any such application, document or information being hereinafter called a "Blue
Sky Application"), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and will reimburse, as incurred, such
Underwriter or such controlling persons for any legal or other expenses incurred
by such Underwriter or such controlling persons in connection with
investigating, defending or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action; provided, however, that
-------- -------
the Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in any of such documents in reliance upon and in conformity with
information contained in the last paragraph of the outside front cover page, the
last paragraph of the inside front cover page and the section under the heading
"Underwriting," all of which was furnished in writing to the Company on behalf
of such Underwriter through the Underwriters expressly for use therein, and
provided, further, that such indemnity with respect to any Preliminary
- -------- -------
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage, liability or action purchased Shares which are the
subject thereof to the extent that any such loss, claim, damage, liability or
action (i) results from the fact that such Underwriter failed to send or give a
copy of the Prospectus (as amended or supplemented) to such person at or prior
to the confirmation of the sale of such Shares to such person in any case where
such delivery is required by the Act and (ii) arises out of or is based upon an
untrue statement or omission of a material fact contained in such Preliminary
Prospectus that was corrected in the Prospectus (as amended and supplemented),
unless such failure resulted from non-compliance by the Company with Section 5
(a) (viii) hereof.
The indemnity agreement in this paragraph 8(a) shall be in addition to any
liability which the Company may otherwise have.
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(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any and all losses, claims, damages or liabilities
(and actions in respect thereof) to which the Company, or any director, officer,
or controlling person may become subject, under the Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or the Prospectus or any Preliminary Prospectus,
or any amendment or supplement thereto or in any Blue Sky Application, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with information furnished in writing by
that Underwriter through the Underwriters to the Company expressly for use
therein; and will reimburse, as incurred, all legal or other expenses reasonably
incurred by the Company or any director, officer, or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action. The Company acknowledges that the statements with respect
to the public offering of the Shares set forth under the heading "Underwriting"
and the stabilization legend and the last paragraph of the outside front cover
page in the Prospectus have been furnished by the Underwriters to the Company
expressly for use therein and constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in the Prospectus.
The indemnity agreement contained in this subsection (b) shall be in addition to
any liability which the Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against one or more indemnifying parties
under this Section 8, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) of this Section 8 or to the extent
that the indemnifying party was not adversely affected by such omission. In
case any such action is brought against an indemnified party and it notifies an
indemnifying party or parties of the commencement thereof, the indemnifying
party or parties against which a claim is to be made will be entitled to
participate therein and, to the extent that it or they may wish, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided however, that if the defendants in any such action include both the
- -------- -------
indemnified party and the indemnifying party, and the indemnified party has
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which conflict with those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
(other than the reasonable costs of investigation) subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party has employed such counsel in connection with the assumption of
such conflicting legal defenses in accordance with the proviso to the
immediately preceding sentence, (ii) the indemnifying party has not employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, or (iii) the indemnifying party has authorized in writing the employment
of counsel for the indemnified party at the expense of the indemnifying party.
21
<PAGE>
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) (i) in such proportion as is appropriate to reflect
the relative benefits received by each of the contributing parties, on the one
hand, and the party to be indemnified, on the other hand, from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of each of the contributing parties, on the one hand, and the party to be
indemnified, on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand, and the Underwriters, on the other, shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Shares (before deducting expenses) bear to the total underwriting discounts
received by the Underwriters hereunder, in each case as set forth in the table
on the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this paragraph
(d) shall be deemed to include any legal or other expenses reasonable incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this paragraph (d), the
Underwriters shall not be required to contribute any amount in excess of the
underwriting discount applicable to the Shares purchased by the Underwriters
hereunder. The Underwriters' obligations to contribute pursuant to this
paragraph (d) are several in proportion to their respective underwriting
obligations, and not joint. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), (i) each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter and (ii) each director of the Company, each officer of the
Company who has signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Company,
subject in each case to this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect to which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission so to
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation (x) it or they may have
hereunder or otherwise than under this paragraph (d) or (y) to the extent that
such party or parties were not adversely affected by such omission. The
contribution agreement set forth above shall be in addition to any liabilities
which any indemnifying party may otherwise have.
9. ADDITIONAL SHARES. At any time during a period of 30 days from
the date of the Prospectus, the Underwriters, by no less than two business days'
prior notice to the Company, may designate a closing (which may be concurrent
with, and part of, the closing on the Closing Date with respect to the Firm
Shares or may be a second closing held on a date subsequent to the Closing Date,
in either case such date shall be referred to herein as the "Option Closing
Date") at which the Underwriters
22
<PAGE>
may purchase all or less than all of the Additional Shares in accordance with
the provisions of this Section 9 at the purchase price per share to be paid for
the Firm Shares. In no event shall the Option Closing Date be later than 10
business days after written notice of election to purchase Additional Shares is
given.
The Company agrees to sell to the Underwriters on the Option Closing
Date the number of Additional Shares specified in such notice and the
Underwriters agree severally but not jointly, to purchase such Additional Shares
on the Option Closing Date. Such Additional Shares shall be purchased for the
account of each Underwriter in the same proportion as the number of Firm Shares
set forth opposite the name of such Underwriter in Column (3) of Schedule I
bears to the total number of Firm Shares (subject to adjustment by you to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Shares.
No Additional Shares shall be sold or delivered unless the Firm Shares
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Additional Shares or any portion thereof may be surrendered and
terminated at any time upon notice by you to the Company.
Except to the extent modified by this Section 9, all provisions of
this Agreement relating to the transactions contemplated to occur on the Closing
Date for the sale of the Firm Shares shall apply, mutatis mutandis, to the
Option Closing Date for the sale of the Additional Shares.
10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY.. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers, and the Underwriters,
respectively, set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriters, and will survive delivery of and payment for the Shares. Any
successors to the Underwriters shall be entitled to the indemnity, contribution
and reimbursement agreements contained in this Agreement.
11. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at 11:00 a.m., New York time
on the first business day following the date hereof, or at such earlier time
after the Registration Statement becomes effective as the Underwriters, in their
sole discretion, shall release the Shares for the sale to the public unless
prior to such time the Underwriters shall have received written notice from the
Company that it elects that this Agreement shall not become effective, or the
Underwriters on behalf of the Underwriters elect that this Agreement shall not
become effective; provided, however, that the provisions of this Section and of
-------- -------
Section 5 and Section 8 hereof shall at all times be effective. For purposes of
this Section 11(a), the Shares to be purchased hereunder shall be deemed to have
been so released upon the earlier of notification by the Underwriters to
securities dealers releasing such Shares for offering or the release by the
Underwriters for publication of the first newspaper advertisement which is
subsequently published relating to the Shares.
(b) This Agreement (except for the provisions of Sections 5 and 8
hereof) may be terminated by the Underwriters by notice to the Company in the
event that the Company has failed to comply in any material respect with any of
the provisions of this Agreement required on its part to be performed at or
prior to the Closing Date or the Option Closing Date, or if any of the
representations or warranties of the Company is not accurate in any material
respect or if the covenants, agreements or conditions of, or applicable to the
Company herein contained have not been complied with in any
23
<PAGE>
material respect or satisfied within the time specified on the Closing Date or
the Option Closing Date, respectively, or if prior to the Closing Date or the
Option Closing Date:
(i) the Company or any of its Subsidiaries shall have sustained a
loss by strike, fire, flood, accident or other calamity of such a character
as to interfere materially with the conduct of the business and operations
of the Company and its Subsidiaries taken as a whole regardless of whether
or not such loss was insured;
(ii) trading in the Preferred Stock or Common Stock shall have
been suspended by the Commission or The New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been
suspended or a material limitation on such trading shall have been imposed
or minimum or maximum prices shall have been established on any such
exchange;
(iii) a banking moratorium shall have been declared by New York
or United States authorities;
(iv) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an outbreak
or escalation of any other insurrection or armed conflict involving the
United States; or
(v) there shall have been (A) a material adverse change in
general economic, political or financial conditions, or (B) a Material
Adverse Effect on the present or prospective business or condition
(financial or other) of the Company and its Subsidiaries taken as a whole,
that, in each case, in the Underwriters' reasonable judgment makes it
impracticable or inadvisable to make or consummate the public offering,
sale or delivery of the Company's Shares on the terms and in the manner
contemplated in the Prospectus and the Registration Statement.
(c) Termination of this Agreement under this Section 11 or Section 12
after the Firm Shares have been purchased by the Underwriters hereunder shall be
applicable only to the Additional Shares. Termination of this Agreement shall
be without liability of any party to any other party other than as provided in
Sections 5 and 8 hereof.
12. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail or refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7 or 11 hereof) to
purchase and pay for (a) in the case of the Closing Date, the number of Firm
Shares agreed to be purchased by such Underwriter or Underwriters upon tender to
you of such Firm Shares in accordance with the terms hereof or (b) in the case
of the Option Closing Date, the number of Additional Shares agreed to be
purchased by such Underwriter or Underwriters upon tender to you of such
Additional Shares in accordance with the terms hereof, and the number of such
Shares shall not exceed 10% of the Firm Shares or Additional Shares required to
be purchased on the Closing Date or the Option Closing Date, as the case may be,
then each of the non-defaulting Underwriters shall purchase and pay for (in
addition to the number of such Shares which it has severally agreed to purchase
hereunder) that proportion of the number of Shares which the defaulting
Underwriter or Underwriters shall have so failed or refused to purchase on such
Closing Date or Option Closing Date, as the case may be, which the number of
Shares agreed to be purchased by such non-defaulting Underwriter bears to the
aggregate number of Shares so agreed to be purchased by all such non-defaulting
Underwriters on such Closing Date or Option Closing Date, as the case may be.
In such case, you shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, to a date not exceeding seven full
business
24
<PAGE>
days after the date originally fixed as such Closing Date or the Option Closing
Date, as the case may be, pursuant to the terms hereof in order that any
necessary changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be made.
If one or more of the Underwriters shall fail or refuse (otherwise than for
a reason sufficient to justify the termination of this Agreement under the
provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the case of
the Closing Date, the number of Firm Shares agreed to be purchased by such
Underwriter or Underwriters upon tender to you of such Firm Shares in accordance
with the terms hereof or (b) in the case of the Option Closing Date, the number
of Additional Shares agreed to be purchased by such Underwriter or Underwriters
upon tender to you of such Additional Shares in accordance with the terms
hereof, and the number of such Shares shall exceed 10% of the Firm Shares or
Additional Shares required to be purchased by all the Underwriters on the
Closing Date or the Option Closing Date, as the case may be, then (unless within
48 hours after such default arrangements to your satisfaction shall have been
made for the purchase of the defaulted Shares by an Underwriter or Underwriters)
and subject to the provisions of Section 11(b) hereof, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or on
the part of the Company except as otherwise provided in Sections 5 and 8 hereof.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this paragraph. Nothing in this Section
12, and no action taken hereunder, shall relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
13. NOTICES. All communications hereunder shall be in writing and if sent
to the Underwriters shall be mailed or delivered or telegraphed and confirmed by
letter or telecopied and confirmed by letter to c/o Sutro & Co. Incorporated,
11150 Santa Monica Boulevard, Suite 800, Los Angeles, California 90025,
Attention: Syndicate Department or, if sent to the Company, shall be mailed or
delivered or telegraphed and confirmed by letter or telecopied and confirmed by
letter to G & L Realty Corp., 439 N. Bedford Drive, Beverly Hills, California
90210, Attention: Daniel M. Gottlieb.
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the Company, and, to the extent so provided, any person controlling
the Company or any of the Underwriters, the directors of the Company and its
officers who signed the Registration Statement, each Underwriter, and each of
their respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that the
representations, warranties, indemnities and contribution agreements of the
Company contained in this Agreement shall also be for the benefit of any person
or persons, if any, who control any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, and except that the Underwriters'
indemnity and contribution agreements shall also be for the benefit of the
directors of the Company, the officers of the Company who have signed the
Registration Statement, and any person or persons, if any, who control the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Shares from the Underwriters will be deemed a
successor because of such purchase.
15. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to the choice of law or conflict of law principles thereof. Each party
hereto consents to the jurisdiction of each court in which any action
25
<PAGE>
is commenced seeking indemnity or contribution pursuant to Section 8 above and
agrees to accept, either directly or through an agent, service of process of
each such court.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
26
<PAGE>
If the foregoing correctly sets forth our understanding, please indicate
the Underwriters' acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
G & L REALTY CORP.
By: ________________________________
Daniel M. Gottlieb
Chief Executive Officer,
Co-Chairman of the Board and Director
Accepted as of the date first above written:
SUTRO & CO. INCORPORATED
By: _______________________________
Thomas R. Weinberger
Executive Vice President
MCDONALD & COMPANY SECURITIES, INC.
By: _______________________________
Thomas W. Moir, Jr.
Senior Vice President
TUCKER ANTHONY INCORPORATED
By: _______________________________
Kevin J. Dunn.
Executive Vice President
27
<PAGE>
SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated November __, 1997
<TABLE>
<CAPTION>
Number of
Firm Shares Option Amount
----------- -------------
<S> <C> <C>
Name and Address
- ----------------
Sutro & Co. Incorporated.........................540,000..............81,000
201 California Street
Attention: Equity Syndication Department
San Francisco, California 94111
McDonald & Company Securities, Inc...............480,000..............72,000
McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
Tucker Anthony Incorporated......................180,000..............27,000
One Beacon Street
Boston, Massachusetts 02108
--------- -------
Total..........................................1,200,000.............180,000
</TABLE>
28
<PAGE>
SCHEDULE II
AV Medical Associates, LLC, a California limited liability company
G & L Hampden, LLC, a Delaware limited liability company
G & L Realty Partnership, L.P., a Delaware limited partnership
G & L Realty Financing II, Inc., a Delaware corporation
G & L Realty Financing Partnership II, L.P., a Delaware limited partnership
G & L Medical, Inc., a Delaware corporation
G & L Gardens, LLC, an Arizona limited liability company
G & L Management Delaware Corp., a Delaware corporation
G & L Senior Care, Inc. a Delaware corporation
G & L Medical Partnership, L.P., a Delaware limited partnership
GLN Capital Co., LLC, a Delaware limited liability company
GL/PHP, LLC a Delaware limited liability company
Valley Convalescent, LLC, a California limited liability company
435 N. Roxbury Drive, Ltd., a California limited partnership
29
<PAGE>
EXHIBIT 4.3
G & L REALTY CORP.
ARTICLES SUPPLEMENTARY CLASSIFYING
_________ SHARES OF
____% SERIES B CUMULATIVE PREFERRED STOCK
Pursuant to Section 2-105 of the Maryland General Corporation Law (the
"MGCL"), G & L Realty Corp., a corporation organized and existing under the MGCL
(the "Company"), and having its principal office in the State of Maryland at c/o
CSC-Lawyers Incorporating Service Company, 11 East Chase Street, Suite 9E,
Baltimore, Maryland 21202, does hereby certify to the Maryland State Department
of Assessments and Taxation (the "Department") that:
FIRST: Pursuant to the authority granted to and vested in the Board of
Directors of the Company by Article IV of the Company's Articles of Amendment
and Restatement of the Charter filed with the Department on October 29, 1993
(the "Charter") and Section 2-105 of the MGCL, the Board of Directors has, at a
meeting duly called and noticed at which a quorum of directors was present and
acting throughout, adopted resolutions classifying and designating a separate
series of authorized but unissued Preferred Stock of the Company as "____%
Series B Cumulative Preferred Stock, par value $.01 per share" (the "Series B
Preferred Stock") and setting the preferences, conversion and other rights,
voting powers, restrictions and limitations as to dividends, qualifications and
terms and conditions of redemption of such ____% Series B Cumulative Preferred
Stock and authorizing the issuance of up to _________ shares of ____% Series B
Cumulative Preferred Stock.
SECOND: The series of Preferred Stock of the Company created by the
resolutions duly adopted by the Board of Directors of the Company referred to in
Article I of these Articles Supplementary shall have the following designation,
number of shares, preferences, conversion and other rights, voting powers,
restrictions and limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions.
1. Designation and Number. A series of Preferred Stock, designated the
----------------------
"____% Series B Cumulative Preferred Stock", is hereby established. The number
of shares of the Series B Preferred Stock shall be _________.
2. Maturity. The Series B Preferred Stock has no stated maturity and will
--------
not be subject to any sinking fund or mandatory redemption.
3. Rank. The Series B Preferred Stock will, with respect to dividend
----
rights and rights upon liquidation, dissolution or winding up of the Company,
rank (i) senior to all classes or series of Common Stock of the Company, and to
all equity securities issued by the Company the terms of which specifically
provide that such equity securities rank junior to the Series B Preferred Stock
with respect to dividend rights or rights upon liquidation, dissolution or
winding up of the Company; (ii) on a parity with the 10.25% Series A Cumulative
Preferred Stock of the Company, par value $.01 per share (the "Series A
Preferred Stock") with respect to the payment of
<PAGE>
dividends and amounts due upon liquidation; (iii) on a parity with all equity
securities issued by the Company the terms of which specifically provide that
such equity securities rank on a parity with the Series B Preferred Stock with
respect to dividend rights or rights upon liquidation, dissolution or winding up
of the Company; and (iv) junior to all existing and future indebtedness of the
Company. The term "equity securities" does not include convertible debt
securities, which will rank senior to the Series B Preferred Stock prior to
conversion.
4. Dividend Rights.
---------------
(a) Holders of shares of the Series B Preferred Stock are entitled to
receive, when and as declared by the Board of Directors, out of funds legally
available for the payment of dividends, preferential cumulative cash dividends
at the rate of ____% per annum of the Liquidation Preference (as defined below)
per share (equivalent to a fixed annual amount of $_____ per share). Dividends
on the Series B Preferred Stock shall be cumulative from the date of original
issue and shall be payable monthly in arrears on or before the 15th day of each
month, or, if not a business day, the next succeeding business day (each, a
"Dividend Payment Date"), commencing on January 15, 1998. Such dividend and all
subsequent dividends payable on the Series B Preferred Stock will be computed on
the basis of a 360-day year consisting of twelve 30-day months. Dividends will
be payable to holders of record as they appear in the stock records of the
Company at the close of business on the applicable record date, which shall be
the first day of the calendar month in which the applicable Dividend Payment
Date falls or on such other date designated by the Board of Directors of the
Company for the payment of dividends that is not more than 30 nor less than 10
days prior to such Dividend Payment Date (each, a "Dividend Record Date").
(b) No dividends on shares of Series B Preferred Stock shall be
declared by the Board of Directors or paid or set apart for payment by the
Company at such time as the terms and provisions of any agreement of the
Company, including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series B Preferred
Stock will accrue whether or not the Company has earnings, whether or not there
are funds legally available for the payment of such dividends and whether or not
such dividends are declared. Accrued but unpaid dividends on the Series B
Preferred Stock will not bear interest and holders of the Series B Preferred
Stock will not be entitled to any distributions in excess of full cumulative
distributions described above. Except as set forth in the next sentence, no
dividends will be declared or paid or set apart for payment on any capital stock
of the Company or any other series of Preferred Stock ranking, as to dividends,
on a parity with or junior to the Series B Preferred Stock (other than a
dividend in shares of the Company's Common Stock or in shares of any other class
of stock ranking junior to the Series B Preferred Stock as to dividends and upon
liquidation) for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for such payment on the Series B Preferred Stock
for all past dividend periods and the then current dividend period. When
dividends are not paid in full (or a sum sufficient for such full payment is not
so set apart) upon
2
<PAGE>
the Series B Preferred Stock and the shares of any other series of Preferred
Stock ranking on a parity as to dividends with the Series B Preferred Stock, all
dividends declared upon the Series B Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with the Series B Preferred
Stock shall be declared pro rata so that the amount of dividends declared per
share of Series B Preferred Stock and such other series of Preferred Stock shall
in all cases bear to each other the same ratio that accrued dividends per share
on the Series B Preferred Stock and such other series of Preferred Stock (which
shall not include any accrual in respect of unpaid dividends for prior dividend
periods if such Preferred Stock does not have a cumulative dividend) bear to
each other.
(d) Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Series B Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of Common Stock
or other shares of capital stock ranking junior to the Series B Preferred Stock
as to dividends and upon liquidation) shall be declared or paid or set aside for
payment nor shall any other distribution be declared or made upon the Common
Stock, or any other capital stock of the Company ranking junior to or on a
parity with the Series B Preferred Stock as to dividends or upon liquidation,
nor shall any shares of Common Stock, or any other shares of capital stock of
the Company ranking junior to or on a parity with the Series B Preferred Stock
as to dividends or upon liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares) by the Company (except by conversion
into or exchange for other capital stock of the Company ranking junior to the
Series B Preferred Stock as to dividends and upon liquidation or redemptions for
the purpose of preserving the Company's qualification as a real estate
investment trust ("REIT")). Holders of shares of the Series B Preferred Stock
shall not be entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends on the Series B Preferred Stock as
provided above. Any dividend payment made on shares of the Series B Preferred
Stock shall first be credited against the earliest accrued but unpaid dividend
due with respect to such shares which remains payable.
5. Liquidation Preference. Upon any voluntary or involuntary liquidation,
----------------------
dissolution or winding up of the affairs of the Company, the holders of shares
of Series B Preferred Stock are entitled to be paid out of the assets of the
Company legally available for distribution to its shareholders a liquidation
preference of $25 per share (the "Liquidation Preference"), plus an amount equal
to any accrued and unpaid dividends to the date of payment, but without
interest, before any distribution of assets is made to holders of Common Stock
or any other class or series of capital stock of the Company that ranks junior
to the Series B Preferred Stock as to liquidation rights. The Company will
promptly provide to the holders of Series B Preferred Stock written notice of
any event triggering the right to receive such Liquidation Preference. After
payment of the full amount of the Liquidation Preference, plus any accrued and
unpaid dividends to which they are entitled, the holders of Series B Preferred
Stock will have no right or claim to any of the remaining assets of the Company.
The consolidation or merger of the Company with or into any other corporation,
trust or entity or of any other corporation with or into the Company, or the
sale, lease or conveyance of all or substantially all of the property or
business of the Company, shall not be deemed to constitute a liquidation,
dissolution or winding up of the Company.
3
<PAGE>
In determining whether a distribution (other than upon voluntary or
involuntary liquidation) by dividend, redemption or other acquisition of shares
of stock of the Company or otherwise is permitted under the Maryland General
Corporation Law, as amended (the "MGCL"), and if permitted by the MGCL, no
effect shall be given to amounts that would be needed, if the Company were to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon distribution of holders of shares of stock of the Company whose
preferential rights upon distribution are superior to those receiving the
distribution.
6. Redemption.
----------
(a) The Series B Preferred Stock is not redeemable prior to January 1,
2001. On and after January 1, 2001, the Company, at its option upon not less
than 30 nor more than 60 days' written notice, may redeem shares of the Series B
Preferred Stock, in whole or in part, at any time or from time to time, for cash
at a redemption price of $25 per share, plus all accrued and unpaid dividends
thereon to the date fixed for redemption (except with respect to Excess Stock
(as defined in the Charter) previously exchanged for Series B Preferred Stock
pursuant to the Charter), without interest. Holders of Series B Preferred Stock
to be redeemed shall surrender such Series B Preferred Stock at the place
designated in such notice and shall be entitled to the redemption price and any
accrued and unpaid dividends payable upon such redemption following such
surrender. If notice of redemption of any shares of Series B Preferred Stock
has been given and if the funds necessary for such redemption have been set
aside by the Company in trust for the benefit of the holders of any shares of
Series B Preferred Stock so called for redemption, then from and after the
redemption date dividends will cease to accrue on such shares of Series B
Preferred Stock, such shares of Series B Preferred Stock shall no longer be
deemed outstanding and all rights of the holders of such shares will terminate,
except the right to receive the redemption price. If less than all of the
outstanding Series B Preferred Stock is to be redeemed, the Series B Preferred
Stock to be redeemed shall be selected pro rata (as nearly as may be practicable
without creating fractional shares).
(b) Unless full cumulative dividends on all shares of Series B
Preferred Stock shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment for
all past dividend periods and the then current dividend period, no shares of
Series B Preferred Stock shall be redeemed by the Company unless all outstanding
shares of Series B Preferred Stock are simultaneously redeemed (except by
exchange for capital stock of the Company ranking junior to the Series B
Preferred Stock as to dividends and upon liquidation); provided, however, that
-------- -------
the foregoing shall not prevent the purchase by the Company of Excess Stock
previously exchanged for Series B Preferred Stock pursuant to the Charter in
order to ensure that the Company continues to meet the requirements for
qualification as a REIT, or the purchase or acquisition of shares of Series B
Preferred Stock pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding shares of Series B Preferred Stock. So long as no
dividends are in arrears, the Company shall be entitled at any time and from
time to time to repurchase shares of Series B Preferred Stock in open-market
transactions duly authorized by the Board of Directors and effected in
compliance with applicable laws.
4
<PAGE>
(c) Notice of redemption will be given by publication in a newspaper
of general circulation in the City of New York, such publication to be made once
a week for two successive weeks commencing not less than 30 nor more than 60
days prior to the redemption date. A similar notice will be mailed by the
Company, postage prepaid, not less than 30 nor more than 60 days prior to the
redemption date, addressed to the respective holders of record of the Series B
Preferred Stock to be redeemed at their respective addresses as they appear on
the stock transfer records of the Company. No failure to give such notice or
any defect therein or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any shares of Series B Preferred Stock except
as to the holder to whom notice was defective or not given. Each notice shall
state: (i) the redemption date; (ii) the redemption price; (iii) the number of
shares of Series B Preferred Stock to be redeemed; (iv) the place or places
where the Series B Preferred Stock is to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed will cease
to accrue on such redemption date. If less than all of the Series B Preferred
Stock held by any holder is to be redeemed, the notice mailed to such holder
shall also specify the number of shares of Series B Preferred Stock held by such
holder to be redeemed.
(d) Immediately prior to any redemption of Series B Preferred Stock,
the Company shall pay, in cash, any accumulated and unpaid dividends through the
redemption date, unless a redemption date falls after a Dividend Record Date and
prior to the corresponding Dividend Payment Date, in which case each holder of
Series B Preferred Stock at the close of business on such Dividend Record Date
shall be entitled to the dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the redemption of such shares before such
Dividend Payment Date.
(e) Excess Stock previously exchanged for Series B Preferred Stock
pursuant to the Charter may be redeemed, in whole or in part, at any time when
outstanding shares of Series B Preferred Stock are being redeemed, for cash at a
redemption price of $25 per share, but excluding accrued and unpaid dividends on
such Excess Stock, without interest. Such Excess Stock shall be redeemed in
such proportion and in accordance with such procedures as shares of Series B
Preferred Stock are being redeemed.
7. Voting Rights.
-------------
(a) Holders of the Series B Preferred Stock will not have any voting
rights, except as set forth below.
(b) Whenever dividends on any shares of Series B Preferred Stock shall
be in arrears for eighteen or more months (a "Preferred Dividend Default"), the
number of directors then constituting the Board of Directors shall automatically
be increased in accordance with the Bylaws of the Company by two (if not already
increased by reason of a similar arrearage with respect to any Parity Preferred
(as hereinafter defined)). The holders of such shares of Series B Preferred
Stock (voting separately as a class with all other series of Preferred Stock
ranking on a parity with the Series B Preferred Stock as to dividends or upon
liquidation ("Parity Preferred") upon which like voting rights have been
conferred and are exercisable) will be entitled to vote separately as a class,
in order to fill the vacancies thereby created, for the election of two
directors
5
<PAGE>
of the Company (the "Preferred Stock Directors") at a special meeting called by
the holders of record of at least 20% of the Series B Preferred Stock or the
holders of record of at least 20% of any series of Parity Preferred so in
arrears (unless such request is received less than 90 days before the date fixed
for the next annual or special meeting of the shareholders) or at the next
annual meeting of shareholders, and at each subsequent annual meeting until all
dividends accumulated on such shares of Series B Preferred Stock for the past
dividend periods and the dividend for the then current dividend period shall
have been fully paid or declared and a sum sufficient for the payment thereof
set aside for payment. In the event the directors of the Company are divided
into classes, each such vacancy shall be apportioned among the classes of
directors to prevent stacking in any one class and to insure that the number of
directors in each of the classes of directors, are as equal as possible. Each
Preferred Stock Director, as a qualification for election as such (and
regardless of how elected) shall submit to the Board of Directors of the Company
a duly executed, valid, binding and enforceable letter of resignation from the
Board of Directors, to be effective upon the date upon which all dividends
accumulated on such shares of Series B Preferred Stock and Parity Preferred for
the past dividend periods and the dividend for the then current dividend period
shall have been fully paid or declared and a sum sufficient for the payment
thereof set aside for payment, whereupon the terms of office of all persons
elected as Preferred Stock Directors by the holders of the Series B Preferred
Stock and any Parity Preferred shall, upon the effectiveness of their respective
letters of resignation, forthwith terminate, and the number of directors then
constituting the Board of Directors shall be reduced accordingly. A quorum for
any such meeting shall exist if at least a majority of the outstanding shares of
Series B Preferred Stock and shares of Parity Preferred upon which like voting
rights have been conferred and are exercisable are represented in person or by
proxy at such meeting. Such Preferred Stock Directors shall be elected upon the
affirmative vote of a plurality of the shares of Series B Preferred Stock and
such Parity Preferred present and voting in person or by proxy at a duly called
and held meeting at which a quorum is present. If and when all accumulated
dividends and the dividend for the then current dividend period on the Series B
Preferred Stock shall have been paid in full or declared and set aside for
payment in full, the holders thereof shall be divested of the foregoing voting
rights (subject to revesting in the event of each and every Preferred Dividend
Default) and, if all accumulated dividends and the dividend for the then current
dividend period have been paid in full or declared and set aside for payment in
full on all series of Parity Preferred upon which like voting rights have been
conferred and are exercisable, the term of office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by, and shall not be removed otherwise than
by, the vote of the holders of record of a majority of the outstanding shares of
the Series B Preferred Stock when they have the voting rights described above
(voting separately as a class with all series of Parity Preferred upon which
like voting rights have been conferred and are exercisable). So long as a
Preferred Dividend Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the Preferred Stock
Director remaining in office, or if none remains in office, by a vote of the
holders of record of a majority of the outstanding shares of Series B Preferred
Stock when they have the voting rights described above (voting separately as a
class with all series of Parity Preferred upon which like voting rights have
been conferred and are exercisable). The Preferred Stock Directors shall each be
entitled to one vote per director on any matter.
6
<PAGE>
(c) So long as any shares of Series B Preferred Stock remain
outstanding, the Company will not, without the affirmative vote or consent of
the holders of at least two-thirds of the shares of the Series B Preferred Stock
outstanding at the time, given in person or by proxy, either in writing or at a
meeting (voting separately as a class), amend, alter or repeal the provisions of
the Charter or the Articles Supplementary, whether by merger, consolidation or
otherwise (an "Event"), so as to materially and adversely affect any right,
preference, privilege or voting power of the Series B Preferred Stock or the
holders thereof; provided, however, that with respect to the occurrence of any
-------- -------
Event set forth above, so long as the Series B Preferred Stock (or any
equivalent class or series of stock issued by the surviving corporation in any
merger or consolidation to which the Company became a party) remains outstanding
with the terms thereof materially unchanged, the occurrence of any such Event
shall not be deemed to materially and adversely affect such rights, preferences,
privileges or voting power of holders of the Series B Preferred Stock and
provided, further, that (i) any increase in the amount of the authorized
Preferred Stock or the creation or issuance of any other series of Preferred
Stock, or (ii) any increase in the amount of authorized shares of such series,
in each case ranking on a parity with or junior to the Series B Preferred Stock
with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
(d) The foregoing voting provisions will not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series B Preferred Stock
shall have been redeemed or called for redemption upon proper notice and
sufficient funds shall have been deposited in trust to effect such redemption.
(e) Except as expressly stated in these Articles Supplementary, the
Series B Preferred Stock shall not have any relative, participating, optional or
other special voting rights and powers and the consent of the holders thereof
shall not be required for the taking of any corporate action, including but not
limited to, any merger or consolidation involving the Company or a sale of all
or substantially all of the assets of the Company, irrespective of the effect
that such merger, consolidation or sale may have upon the rights, preferences or
voting power of the holders of the Series B Preferred Stock.
8. Conversion. The Series B Preferred Stock is not convertible into or
----------
exchangeable for any other property or securities of the Company.
9. Restrictions of Transfer. The shares of Series B Preferred Stock shall
------------------------
be subject to the limitations on ownership and transfer set forth in Article IV
of the Charter of the Company.
THIRD: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FOURTH: The undersigned President of the Company acknowledges these
Articles Supplementary to be the corporate act of the Company and, as to all
matters or facts required to be verified under oath, the undersigned President
of the Company acknowledges that to the best
7
<PAGE>
of his knowledge, information and belief, these matters and facts are true in
all material respects and that this statement is made under the penalties for
perjury.
8
<PAGE>
IN WITNESS WHEREOF, G & L REALTY CORP. has caused these Articles
Supplementary to be executed under seal in its name and on its behalf by its
President and attested to by its Secretary on this __th day of October, 1997.
G & L REALTY CORP.
By:
____________________________________________
Steven D. Lebowitz
President
THE UNDERSIGNED, Chief Accounting Officer, Treasurer and Secretary of G & L
Realty Corp., who executed on behalf of said corporation the foregoing Articles
Supplementary, of which this certificate is made a part, hereby acknowledges, in
the name and on behalf of said corporation, the foregoing Articles Supplementary
to be the corporate act of said corporation and further certify that, to the
best of his knowledge, information and belief, the matters and facts set forth
therein with respect to the approval thereof or otherwise required to be
verified under oath are true in all material respects, under the penalties of
perjury.
By:_________________________
Quentin Thompson
Chief Accounting Officer, Treasurer
and Secretary
9
<PAGE>
EXHIBIT 4.4
[FORM OF PREFERRED STOCK CERTIFICATE]
[FRONT OF CERTIFICATE]
<TABLE>
<CAPTION>
_____% SERIES B _____% SERIES B
CUMULATIVE PREFERRED STOCK CUMULATIVE PREFERRED
LIQUIDATION PREFERENCE STOCK
$25 PER SHARE LIQUIDATION PREFERENCE
$25 PER SHARE
Number Shares
------ ------
<C> <S>
The shares evidenced hereby are subject
to restrictions on ownership and
transfer as more fully described on the
reverse side hereof.
[LOGO] This Certificate is transferrable in
----------------------- Los Angeles, California or New York,
Incorporated Under the New York
Laws of the State of Maryland
</TABLE>
CUSIP
See reverse for certain definitions
G&L REALTY CORP
This is to certify that ________________________________ is the owner of
___________ fully paid and non-assessable shares of the ______% Series B
Cumulative Preferred Stock Liquidation Preference $25 per share of G&L REALTY
CORP. (the "Corporation") transferrable on the books of the Corporation in
person or by duly authorized attorney upon surrender of this Certificate
properly endorsed. This Certificate and the shares represented hereby are issued
and shall be held subject to all of the provisions of the Articles of Amendment
and Restatement (the "Charter") of the Corporation and its Bylaws, as amended,
to all of which the holder, by acceptance hereof, assents. This Certificate is
not valid unless countersigned and registered by the Transfer Agent and
Registrar. Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
<TABLE>
<CAPTION>
<S> <C>
Countersigned and registered: [Facsimile Signature]
CHASE MELLON SHAREHOLDER SERVICES ------------------------
Chief Executive Officer
Transfer Agent and Registrar
By:
-------------------------
Authorized Signature
[Facsimile Signature]
------------------------
Chief Accounting Officer,
Treasurer and Secretary
</TABLE>
<PAGE>
[REVERSE OF CERTIFICATE]
G&L REALTY CORP.
CLASSES OF STOCK
The Corporation is authorized to issue more than one class of capital stock
consisting of Common Stock, Excess Stock and one or more series of Preferred
Stock. The Board of Directors of the Corporation is authorized to determine the
designations and any preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, terms and conditions of redemption of
any class or series of Preferred Stock before the issuance of such class or
series. The Corporation will furnish, without charge, to any shareholder making
a written request therefore, a written statement of the designations and any
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption of each class or series of stock which the Corporation is authorized
to issue. Requests for such written statements may be directed to the secretary
of the Corporation at the principal office of the Corporation.
RESTRICTIONS ON OWNERSHIP AND TRANSFER
The shares represented by this certificate are subject to restrictions on
ownership and transfer for the purpose of the Corporation's maintenance of its
status as a "real estate investment trust" under the Internal Revenue Code of
1986, as amended. Except as otherwise provided pursuant to the Charter of the
Corporation, no person may beneficially own or constructively own in excess of
9.8% of the number or value (whichever is more restrictive) of the then-
outstanding shares of capital stock of the Corporation, with certain further
restrictions and exceptions set forth in the Corporation's Charter. Transfer or
ownership of shares in violation of the foregoing restrictions causes such
shares to be automatically converted into Excess Stock. Shares of Excess Stock
have limited economic rights and no voting rights, and the Corporation has an
option to redeem Excess Stock under certain circumstances. In addition,
notwithstanding any other provision of the Charter of the Corporation to the
contrary, any purported acquisition of shares of stock of the Corporation that
would result in the disqualification of the Corporation as a real estate
investment trust shall be null and void ab initio. All capitalized terms in this
legend have the meanings ascribed to them in the Charter of the Corporation, a
copy of which, including the restrictions on transfer and ownership, will be
furnished, without charge, to each holder of shares of stock of the Corporation
who directs a request therefore to the secretary of the Corporation at the
principal office of the Corporation.
The following abbreviations, when used in the inscription of the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws and regulations:
<TABLE>
<S> <C>
TEN COMM -- as tenants in common UNIF GIFT MIN ACT ______ (Cust) Custodian_______
TEN ENT -- as tenants by the entireties (Minor) under Uniform Gifts to
JT TEN -- as joint tenants with Minors Act _________ (State)
rights of survivorship
and not as tenants in UNIF TRF MIN ACT ______ (Cust) Custodian (until age ___)
common _____________(Minor) under Uniform
Transfers to Minors Act _____________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _____________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER
<PAGE>
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
shares represented by this Certificate, and do hereby irrevocably
- -------------
constitute and appoint attorney to transfer the said
-----------------------------
shares on the books of the Corporation with full power in substitution in the
premises.
Date: X
---------------------------- -----------------------------------
X
-----------------------------------
NOTICE: The signature(s) to this assignment
must correspond with the name(s) as
written upon the face of the
certificate in every particular,
without alteration or enlargement or
any change whatever.
Signature(s) Guaranteed
By
--------------------------------------------------
The signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings
and loan associations and credit unions with membership
in an approved signature guarantee medallion program),
pursuant to S.E.C. Rule 17Ad-15.
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF PIPER & MARBURY]
November 11, 1997
G & L Realty Corp.
439 North Bedford Drive
Beverly Hills, California 90210
Ladies and Gentlemen:
We have acted as special Maryland counsel to G & L Realty Corp., a
Maryland corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended (the "Act"), pursuant to a Registration
Statement on Form S-11 of the Company (No. 333-38843), as amended to date (the
"Registration Statement"), initially filed with the Securities and Exchange
Commission on October 27, 1997 (the "Commission"), of up to 1,380,000 shares
(the "Shares") of the Company's Series B Cumulative Preferred Stock, par value
$0.01 (the "Preferred Stock"), pursuant to an Underwriting Agreement to be
entered into (the "Underwriting Agreement") between the Company, Sutro & Co.
Incorporated, McDonald & Company Securities, Inc. and Tucker Anthony
Incorporated (collectively, the "Underwriters").
In our capacity as special Maryland counsel, we have reviewed originals or
copies, certified or otherwise identified to our satisfaction, of (i) Amendment
No. 1 to the Registration Statement and the Preliminary Prospectus dated
November 6, 1997 contained therein (the "Prospectus"); (ii) a draft of an
Underwriting Agreement by and among the Company and the Underwriters (the
"Underwriters"); (iii) the Articles of Amendment and Restatement of the Charter
of the Company and the Articles Supplementary relating to the Preferred Stock
(the "Articles"); (iv) the Amended and Restated By-Laws of the Company (the "By-
Laws"); (v) a good standing certificate of the Company, dated a recent date,
issued by the Maryland State Department of Assessments and Taxation; (vi)
resolutions of the Company's Board of Directors authorizing the issuance of its
outstanding capital stock and authorizing the transactions contemplated by the
Underwriting Agreement (including the issuance of the Shares); (vii)
certificates of officers of the Company as to certain factual matters; and
(viii) such other documents, corporate records, certificates of public officials
and other instruments as we have
<PAGE>
[LETTERHEAD OF PIPER & MARBURY LLP]
G & L Realty Corp.
November 11, 1997
Page 2
deemed necessary for the purpose of rendering the opinions expressed below. In
such examination, we have assumed, without independent investigation, the
genuineness 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), that there has been no substantial change in the final documents from
documents submitted to us as drafts and that all public records reviewed are
accurate and complete. As to factual matters, we have relied upon the
above-referenced certificates of officers of the Company and have not
independently verified the matters stated therein. This opinion is also based
upon the assumption that the Registration Statement has become effective under
the Act, and that the Prospectus was filed with the Commission pursuant to Rule
424(b) under the Securities Act.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, and limited in all respects to applicable
Maryland law we are of the opinion and so advise you that upon the payment for,
and the issuance and delivery of, the Shares in accordance with the terms set
forth in the Registration Statement and the Underwriting Agreement, and when the
certificate or certificates representing the Shares are countersigned by a duly
authorized officer of the registrar for the Preferred Stock, the Shares will
have been duly and validly authorized and will be validly issued, fully-paid and
non-assessable.
The opinions expressed herein: (i) are limited to the matters set forth
herein, and no other opinion should be inferred beyond the matters expressly
stated; (ii) are subject to the qualification that we express no opinion as to
the laws of any jurisdiction other than the laws of the State of Maryland,
exclusive of the securities or "blue sky" laws of the State of Maryland; and
(iii) concern only the effect of the laws (excluding the principles of conflict
of laws) of the State of Maryland as currently in effect. We assume no
obligation to supplement this opinion if any applicable laws change after the
date hereof or if we become aware of any facts that might change the opinion
expressed herein after the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Piper & Marbury
<PAGE>
EXHIBIT 8.1
November 12, 1997
(213) 229-7000 C 22241-00028
G&L Realty Corp.
439 N. Bedford Drive
Beverly Hills, California 90210
Re: Registration Statement on Form S-11, File No. 333-38843
Gentlemen:
- ----------
We have acted as counsel to G&L Realty Corp., a Maryland corporation (the
"Company"), in connection with the Registration Statement filed on Form S-11, as
amended through the date hereof, with the Securities and Exchange Commission
(File No. 333-38843) (the "Registration Statement") and the Prospectus forming a
part thereof (the "Prospectus") regarding the proposed offering of Series B
Cumulative Preferred Stock of the Company, par value $.01 per share (the
"Securities").
You have requested our opinion concerning certain of the federal income tax
considerations described in the Prospectus. This opinion is based on various
assumptions, and is conditioned upon the accuracy of certain oral and written
representations made by the Company and G&L Realty Partnership, L.P. (the
"Operating Partnership") as to certain relevant factual matters. In addition,
this opinion is based upon the factual representations of the Company concerning
its business and properties as set forth in the Registration Statement and the
Prospectus. We have made such legal and factual examinations and inquiries,
including an examination of originals or copies certified or otherwise
identified to our satisfaction of such documents, of corporate records and other
instruments, and have interviewed Company and Operating Partnership personnel,
as we have deemed necessary or appropriate for purposes of this opinion.
<PAGE>
G&L Realty Corp.
November 12, 1997
Page 2
We are opining herein only as to the effect of the federal income tax laws
of the United States and we express no opinion with respect to the applicability
or effect of other federal laws, the laws of any other jurisdiction or as to any
matters of municipal law or the laws of any other local agencies within any
state.
In light of the foregoing, it is our opinion that:
(1) Based on the facts, assumptions and representations of the Company
referred to above, commencing with the Company's taxable year ending December
31, 1993, the Company has been organized in conformity with the requirements for
qualification as a real estate investment trust, and its proposed method of
operation will enable it to meet the requirements for continued qualification
and taxation as a real estate investment trust, under the Internal Revenue Code
of 1986, as amended (the "Code").
(2) Based on the facts, assumptions and representations of the Company
referred to above, the information in the Prospectus under the caption "Federal
Income Tax Considerations," to the extent that it constitutes matters of law,
summaries of legal matters or legal conclusions, has been reviewed by us and is
accurate in all material respects.
This opinion is based on various statutory provisions, regulations
promulgated thereunder, and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all as of the date
hereof. We caution that such authorities are subject to change and that any
such change may be applied retroactively. Also, any variation or difference in
the facts from those set forth in the Company's oral or written representations
may affect the conclusions stated herein. Moreover, the Company's qualification
and taxation as a real estate investment trust depends upon the Company having
met and continuing to meet, on a continuing basis, distribution levels,
diversity of stock ownership and the various qualification tests imposed under
the Code. Compliance with these requirements is not entirely within the control
of the Company due to the Company's direct or indirect participation in entities
that it does not control or manage, market conditions and other reasons.
Gibson, Dunn & Crutcher LLP will not review the Company's compliance with these
requirements on a continuing basis. Accordingly, no assurance can be given that
the actual results of the Company's operations, distributions or diversity of
stock ownership for any one taxable year have satisfied or will satisfy such
requirements.
We hereby consent to the reference to this firm under the heading "Federal
Income Tax Considerations" in the Prospectus.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
<PAGE>
EXHIBIT 12
G&L REALTY CORP.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(ALL DOLLAR AMOUNTS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
------------------ --------------------------------------
1997 1996 1996 1995 1994 1993(1) 1992(1)
-------- -------- ------ ------ ----- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Income from continuing
operations before
minority interest in
Operating Partnership.. 4,780 (882) 455 4,152 3,546
Add:
Interest expense...... 6,749 6,573 8,819 6,372 3,625
Amortization of
deferred financing
costs................ 442 395 503 614 797
Nonrecurring loss on
disposition of real
estate assets........ -- 4,874 4,874 -- --
Adjustment of interest
costs related to
minority interest in
consolidated
affiliates(2)........ (307) (178) (238) (264) (205)
-------- -------- ------ ------ -----
Earnings available for
combined fixed charges
and preferred stock
dividends.............. 11,664 10,782 14,413 10,874 7,764
Fixed charges:
Interest expense...... 6,749 6,573 8,819 6,372 3,625
Capitalized interest.. -- -- -- 44 15
Amortization of
deferred financing
costs................ 442 395 503 614 797
Adjustment of interest
costs related to
minority interest in
consolidated
affiliates(2)........ (307) (178) (238) (264) (205)
Preferred stock
dividends............ 1,150 -- -- -- --
-------- -------- ------ ------ -----
Combined fixed charges.. 8,034 6,790 9,084 6,766 4,232
Ratio of earnings to
fixed charges.......... 1.45x 1.59x 1.59x 1.61x 1.83x
</TABLE>
- --------
(1) The amounts for 1992 and 1993 have been omitted as they relate to periods
prior to the Company's IPO. The operations and capital structure of G&L
Development, the Company's predecessor, is not comparable to the Company's
operations and capital structure, and therefore, would not provide
relevant information.
(2) Adjustment eliminates interest expense and amortization of deferred
financing costs associated with the 435 North Roxbury Drive, Ltd.
partnership in which the Company has a 61.75% partnership interest and
with GL/PHP, LLC in which the Company previously held a 80.5% membership
interest.
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the use in this Registration Statement of G & L Realty Corp.
on Form S-11 of our report dated February 10, 1997, appearing in the
Prospectus, which is part of this Registration Statement.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Deloitte & Touche LLP
Los Angeles, California
November 11, 1997
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EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report, dated April 2, 1997, accompanying the
consolidated financial statements of Iatros Health Network, Inc. and
Subsidiaries contained in the Registration Statement and Prospectus. We
consent to the use of the aforementioned report in the Registration Statement
and Prospectus, and to the use of our name as it appears under the caption
"Experts".
/s/ Asher & Company, Ltd.
ASHER & COMPANY, Ltd.
Philadelphia, Pennsylvania
November 11, 1997
