EXHIBIT 1
FORM OF UNDERWRITING AGREEMENT
1,300,000 SHARES
G & L REALTY CORP.
___% SERIES A CUMULATIVE PREFERRED STOCK
(Par Value $ 0.01 Per Share)
UNDERWRITING AGREEMENT
----------------------
[Effective Date]
Sutro & Co. Incorporated
XxXxxxxx & Company Securities, Inc.
c/o Sutro & Co. Incorporated
000 Xxxxxxxxxx Xxxxxx
Attention: Equity Syndication Department
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
1. INTRODUCTION. G & L Realty Corp., a Maryland corporation (the
"Company"), proposes to issue and sell to Sutro & Co. incorporated and XxXxxxxx
& Company Securities, Inc. (the "Underwriters") an aggregate of 1,300,000 shares
of the Company's ___% Series A Cumulative Preferred Stock, par value $0.01 per
share (the "Preferred Stock"). The 1,300,000 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 195,000 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. 333-24911)
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
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such registration 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
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material fact necessary in order to make the statements therein, in the
light of the circumstances 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. 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 of any lien, encumbrance,
security interest, claim or other restriction whatsoever. All the
outstanding shares of capital stock of each
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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 may be liable for the payment of
Taxes, an adverse outcome of which would have a Material
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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
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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.
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(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
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commenced or, to the knowledge of the Company, is contemplated by any
governmental 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
8
damage, natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), 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
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and December 31, 1995, and the Company's present and proposed 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 $______ 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 Xxxxxxxx & Xxxxxxxx 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 May 14, 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.
10
(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.
11
(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
12
(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
13
in the Shares (other than as shall have been specifically approved by the
Representative to be paid for 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 Representative to be paid for 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
14
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) On the Closing Date the Underwriters shall have received the opinion,
dated the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx 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(d), shall not
include GL/PHP, LLC, a Delaware limited liability company, or 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 A Cumulative Preferred Units to be issued by
G&L Realty Partnership, L.P. (the "Operating Partnership") to the Company
under the terms of the 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 and establish the priority of interest relative
to the Partnership 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 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
15
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 or proceedings
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 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 presently 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;
(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
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.
16
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 Underwriters of the Company
and with the Company's independent public accountants, at which conferences
such counsel made inquiries of such officers, Underwriters 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.
(e) 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 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 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;
17
(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;
(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.
(f) 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.
(g) 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.
(h) 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 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
18
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.
(i) 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.
(j) 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.
(k) The Underwriters shall have received from Messrs. Xxxxxx X. Xxxxxxxx
and Xxxxxx Xxxxxxxx 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.
(l) 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 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
19
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.
(m) 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.
(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
20
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
(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 may purchase all or less than all of the Additional
Shares in accordance with the provisions of this
22
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 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:
23
(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 days after the date originally fixed as such Closing Date or the Option
Closing Date, as the
24
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,
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
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., 000 X. Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxxxx.
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
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.
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:________________________________
Name:
Title:
26
Accepted as the date first above written:
SUTRO & CO. INCORPORATED
By: _____________________________
Title: _____________________________
XXXXXXXX & COMPANY SECURITIES, INC.
By: _____________________________
Title: _____________________________
27
SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated ________________, 1997
Number of
Firm Shares Option Amount
------------ -------------
Name and Address
----------------
Sutro & Co. Incorporated..................... 650,000 97,500
000 Xxxxxxxxxx Xxxxxx
Attention: Equity Syndication Department
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
XxXxxxxx & Company Securities, Inc........... 650,000 97,500
XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
--------- -------
Total........................................ 1,300,000 195,000
28
SCHEDULE II
G&L Realty Financing II, Inc. a Delaware corporation
G&L Medical, Inc., a Delaware corporation
G&L Realty Partnership, L.P., a Delaware limited partnership
G&L Realty Financing Partnership II, L.P., a Delaware limited partnership
G&L Medical Partnership, L.P., a Delaware limited partnership
GL/PHP, LLC, a Delaware limited liability company
GLN Capital Co., LLC, a Delaware limited liability company
29
