EXHIBIT 1.1
Weeks Corporation
Common Stock
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Underwriting Agreement
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May 7, 1997
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described.
Ladies and Gentlemen:
From time to time, Weeks Corporation, a Georgia corporation (the "Company")
and the owner of 100% of the shares of both Weeks GP Holdings, Inc. ("Weeks GP")
and Weeks LP Holdings, Inc. ("Weeks LP"), the general partner and a limited
partner, respectively, of Weeks Realty, L.P., a Georgia limited partnership (the
"Operating Partnership"), proposes to enter into one or more Pricing Agreements
(each a "Pricing Agreement") in the form of Annex I hereto, with such additions
and deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) shares of its common stock, par value $.01 per share ("Common
Stock") (the "Shares") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Shares"). If specified in such
Pricing Agreement, the Company may grant to the Underwriters the right to
purchase at their election an additional number of shares, specified in such
Pricing Agreement as provided in Section 3 hereof (the "Optional Shares"). The
Firm Shares and the Optional Shares, if any, which the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"Designated Shares".
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Shares or as an obligation of
any of the Underwriters to purchase any of the Shares. The obligation of the
Company to issue and sell any of the Shares and the obligation
of any of the Underwriters to purchase any of the Shares shall be evidenced by
the Pricing Agreement with respect to the Designated Shares specified therein.
Each Pricing Agreement shall specify the aggregate number of the Firm Shares,
the maximum number of Optional Shares, if any, the initial public offering price
of such Firm and Optional Shares or the manner of determining such price, the
purchase price to the Underwriters of such Designated Shares, the names of the
Underwriters of such Designated Shares, the names of the Representatives of such
Underwriters, the number of such Designated Shares to be purchased by each
Underwriter and the commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such Firm
and Optional Shares, if any, and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Shares. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-18307) in
respect of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any post-
effective amendment thereto, each in the form heretofore delivered or to
be delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus included therein, to the Representatives for
each of the other Underwriters have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed, or transmitted for filing, with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended
(the "Act") each in the form heretofore delivered to the Representatives);
and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective, each as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Shares, in the form in which it
has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, is hereinafter
called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable
form under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case
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may be, under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Shares in the form in
which it is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated Shares
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Shares;
(d) None of the Company, the Operating Partnership or any of their
subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated
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in the Prospectus which loss or interference would have a material adverse
effect on the consolidated financial position or results of operations of the
Company, the Operating Partnership and their subsidiaries taken as a whole; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company, the capital of
the Operating Partnership or the capital stock or equity capital of any of the
Company's or the Operating Partnership's subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position, shareholders'
equity (including, with respect to the Operating Partnership or other
partnership subsidiaries, partnership capital) or results of operations of the
Company, the Operating Partnership and their subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company, the Operating Partnership and their subsidiaries have good
and marketable title in fee simple to all real property and own all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company, the Operating
Partnership and their subsidiaries; and any real property and buildings held
under lease by the Company, the Operating Partnership and their subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company, the Operating Partnership
and their subsidiaries, in each case except as set forth in the Prospectus;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia, has the
corporate power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified or
be in good standing in any such jurisdiction; the Operating Partnership and each
other partnership subsidiary of the Company or the Operating Partnership, as the
case may be, has been duly organized and is validly existing as a partnership in
good standing under the laws of its jurisdiction of organization, has the
partnership power and authority to own its properties and conduct its business
as described in the Prospectus, and has been duly qualified as a foreign
partnership or otherwise for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
or be in good standing in any such jurisdiction; and each corporate subsidiary
of the Company or the Operating Partnership, as the case may be, has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, has the corporate power and authority
to own its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation or otherwise for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
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business, so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified or be in
good standing in any such jurisdiction;
(g) The authorized capitalization of the Company and its consolidated
subsidiaries is as set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; the Second Amended and Restated Agreement
of Limited Partnership of Weeks Realty, L.P., as amended (the "Operating
Partnership Agreement") and the partnership agreement of each other partnership
subsidiary of the Company or the Operating Partnership, as the case may be, has
been duly authorized, executed and delivered by each partner thereof and is
valid, legally binding and enforceable in accordance with its terms; and all of
the partnership interests in the Operating Partnership and each other
partnership subsidiary of the Company or the Operating Partnership, as the case
may be, and all of the issued shares of capital stock of each corporate
subsidiary of the Company or the Operating Partnership, as the case may be, have
been duly and validly authorized and issued, are fully paid and, in the case of
corporate subsidiaries, are non-assessable, and (except as described in the
Prospectus) are owned directly or indirectly by the Company or the Operating
Partnership, free and clear of all liens, encumbrances, equities or claims;
(h) The Shares have been duly and validly authorized, and, when any Firm
Shares are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Shares and, in the case of any
Optional Shares, pursuant to Over-allotment Options (as defined in Section 3
hereof) with respect to such Shares, such Designated Shares will be duly and
validly issued and fully paid and non-assessable; the Shares conform to the
description thereof contained in the Registration Statement and the Designated
Shares will conform to the description thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Shares;
(i) The issue and sale of the Shares by the Company and the compliance by
the Company with all of the provisions of this Agreement, any Pricing Agreement
and each Overallotment Option, if any, and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company, the Operating Partnership or any of their
subsidiaries is a party or by which the Company, the Operating Partnership or
any of their subsidiaries is bound or to which any of the property or assets of
the Company, the Operating Partnership or any of their subsidiaries is subject,
nor will such action result in any violation of the provisions of the Amended
and Restated Articles of Incorporation or By-laws of the Company, the Operating
Partnership Agreement, the organizational documents of any of their subsidiaries
or any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, the Operating Partnership
or any of their subsidiaries or any of their properties, except for such
conflict, breach, violation or default as would not individually or in the
aggregate have a material adverse effect on the consolidated financial position
or results of operations of the Company, the Operating Partnership and their
subsidiaries taken as a whole; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the
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Shares or the consummation by the Company of the transactions contemplated by
this Agreement or any Pricing Agreement or any Overallotment Option, except such
as have been, or will have been prior to each Time of Delivery (as defined in
Section 4 hereof), obtained under the Act, such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws or New York State real estate syndication laws in
connection with the purchase and distribution of the Shares by the Underwriters,
or such consents, approvals, authorizations, registrations or qualifications the
failure to obtain which would not individually or in the aggregate result in a
material adverse effect on the consolidated financial position or results of
operations of the Company, the Operating Partnership and their subsidiaries
taken as a whole;
(j) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, the Operating Partnership
or any of their subsidiaries is a party or of which any property of the Company,
the Operating Partnership or any of their subsidiaries is the subject which, if
determined adversely to the Company, the Operating Partnership or any of their
subsidiaries, would individually or in the aggregate have a material adverse
effect on the consolidated financial position, shareholders' equity (including,
with respect to the Operating Partnership and other partnership subsidiaries,
partnership capital) or results of operations of the Company, the Operating
Partnership and their subsidiaries taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(k) Except as set forth in the Registration Rights Agreements copies of
which are filed as an exhibit to the Company's Annual Report on Form 10-K most
recently filed with the Commission, no holders of any securities of the Company
or the Operating Partnership have any rights to require the Company or the
Operating Partnership to register any such securities under the Act;
(l) None of the Company, the Operating Partnership or any of their
subsidiaries is (i) in violation of its Articles of Incorporation or By-laws or
other organizational documents or (ii) in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except for such defaults as would not individually
or in the aggregate have a material adverse effect on the consolidated financial
position or results of operations of the Company, the Operating Partnership and
their subsidiaries taken as a whole;
(m) The statements set forth in the Prospectus under the captions
"Description of Capital Stock" and "Description of Common Stock Warrants",
insofar as they purport to constitute a summary of the terms of the Shares, and
under the captions "Federal Income Tax Considerations" and "Plan of
Distribution", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate in all material respects;
(n) None of the Company, the Operating Partnership or any of their
subsidiaries is, or will be, after giving effect to the issuance and sale of the
Shares by the Company, an "investment company" or a company "controlled" by an
"investment company" within the
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meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(o) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes; and
(p) Xxxxxx Xxxxxxxx LLP, who have certified certain financial statements
of the Company, the Operating Partnership and their subsidiaries, and Ernst
& Young, who have certified certain financial statements in connection with
certain acquisitions by the Company, are each independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Shares and authorization by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Overallotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, on the terms set forth in
the paragraph above, for the sole purpose of covering over-allotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by the Representatives but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless the Representatives and the Company otherwise agree in writing, earlier
than or later than the respective number of business days after the date of such
notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares to be
purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. Certificates for the Firm Shares and the Optional Shares to be purchased
by each Underwriter pursuant to the Pricing Agreement relating thereto, in the
form specified in such Pricing Agreement and in such authorized denominations
and registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor
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by certified or official bank check or checks, payable to the order of the
Company in the funds specified in such Pricing Agreement, (i) with respect to
the Firm Shares, all in the manner and at the place and time and date specified
in such Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Shares, if any, in the manner and at the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Second Time
of Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Shares or, if applicable,
such earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus
as amended or supplemented after the date of the Pricing Agreement
relating to such Shares and prior to any Time of Delivery for such Shares
which shall be disapproved by the Representatives for such Shares
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after any Time of Delivery
for such Shares and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with the
offering or sale of such Shares, and during such same period to advise
the Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Shares
or suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of such Shares,
provided that in connection
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therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day
next succeeding the date of the Pricing Agreement relating to such Designated
Shares and from time to time, to furnish the Underwriters with copies of the
Prospectus as amended or supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Shares and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an 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 when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange Act,
to notify the Representatives and upon their request to file such document and
to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) To use its best efforts to meet the requirements to qualify, for each
taxable year ended December 31, as a real estate investment trust ("REIT") under
the Internal Revenue Code of 1986, as amended (the "Code");
(f) Not to invest, reinvest or otherwise use the proceeds received by the
Company in such a manner, or take any action, or omit to take any action, that
would cause the Company to become an "investment company" as that term is
defined in the Investment Company Act; and to use the proceeds from the sale of
the Shares for the purposes described in the Prospectus under the caption "Use
of Proceeds";
(g) To use its reasonable best efforts to list, subject to official notice
of issuance, the Shares on the New York Stock Exchange including, in the case of
Warrants, the shares of Common Stock to be received upon exercise of Warrants;
and
(h) During the period beginning from the date of the Pricing Agreement for
such Designated Shares and continuing to and including the later of (i) the
termination of trading restrictions for such Designated Shares, as notified to
the Company by the Representatives and (ii) the last Time of Delivery for such
Designated Shares, not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any securities of the Company that are
substantially similar to the Designated Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the
right to receive,
9
Stock or any such substantially similar securities (other than pursuant to
employee stock option plans existing on, or upon the conversion of
convertible or exchangeable securities outstanding as of, the date of the
Pricing Agreement for such Designated Shares) without the prior written
consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters of any
Designated Shares that the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Blue Sky Memorandum, closing documents (including compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey(s); (iv) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
reviews by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Shares; (v) the cost of preparing certificates for the Shares;
(vi) the cost and charges of any transfer agent or registrar or dividend
disbursing agent; and (vii) all other costs and expenses incident to the
performance of its obligations hereunder and under any Over-allotment Options
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Shares by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company and the Operating Partnership in
or incorporated by reference in the Pricing Agreement relating to such
Designated Shares are, at and as of each Time of Delivery for such Designated
Shares, true and correct, the condition that the Company and the Operating
Partnership shall have performed all of their obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Shares shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated each Time of Delivery for
such Designated Shares, with respect
10
to the incorporation of the Company, the organization of the Operating
Partnership, the validity of the Shares being delivered at such Time of
Delivery, the Registration Statement and the Prospectus as well as such other
related matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) Counsel for the Company and the Operating Partnership satisfactory to
the Representatives shall have furnished to the Representatives their written
opinions (a draft of each such opinion is attached as Annex II hereto), dated
each Time of Delivery for such Designated Shares, respectively, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Georgia,
and has the corporate power and authority to own its properties and conduct
its business as described in the Prospectus as amended or supplemented;
(ii) The authorized capital stock of the Company is as set forth in
the Prospectus as amended or supplemented, and all of the issued capital
stock of the Company (including the Designated Shares being delivered at
such Time of Delivery), have been duly and validly authorized and issued
and are fully paid and non-assessable; and the Designated Shares conform to
the description thereof in the Prospectus as amended or supplemented;
(iii) Each of the Company, the Operating Partnership and their
subsidiaries is duly qualified as a foreign corporation, partnership or
otherwise for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except where
the failure to be so qualified or in good standing would not have a
material adverse effect on the Company, the Operating Partnership and their
subsidiaries taken as a whole (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you and
they are justified in relying upon such opinions);
(iv) Each corporate subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; all of the issued
shares of capital stock of each such corporate subsidiary have been duly
and validly authorized and issued and are fully paid and non-assessable and
(except for directors' qualifying shares and except as otherwise set forth
in the Prospectus as amended or supplemented) based upon a review of the
stock books and records of each corporate subsidiary are owned directly or
indirectly by the Company, the Operating Partnership, A. Xxx Xxxxx, Xx.,
Xxxxxx X. Xxxxxxxx or Xxxxxxx X. Xxxxxxxx, as the case may be, free and
clear of all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such opinions);
11
(v) Each of the Operating Partnership and each other direct or indirect
partnership subsidiary of the Company has been duly organized and is validly
existing as a partnership in good standing under the laws of its jurisdiction of
organization; each of the Operating Partnership Agreement and the partnership
agreement of each such other direct or indirect partnership subsidiary of the
Company has been duly authorized, executed and delivered by the Company, the
Operating Partnership or any of their subsidiaries, as the case may be, and
constitutes the valid and legally binding obligation of the Company, the
Operating Partnership or such subsidiaries, as the case may be, and, assuming
the due authorization, execution and delivery by each other party thereto,
constitutes the valid and legally binding obligation of each such party, and is
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to the effect of
general principles of equity; and except as described in the Prospectus as
amended or supplemented, based upon a review of the books and records of the
Operating Partnership and each partnership subsidiary, all of the general
partnership interests in the Operating Partnership and all of the partnership
interests in each other partnership subsidiary of the Company are owned directly
or indirectly by the Company, with respect to the Operating Partnership, and by
the Company, the Operating Partnership or one or more of their subsidiaries,
with respect to each other partnership subsidiary, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or the
subsidiaries, provided that such counsel shall state that they believe that both
you and they are justified in relying upon such opinions);
(vi) To the best of such counsel's knowledge and other than as set forth
in the Prospectus as amended or supplemented, there are no legal or governmental
proceedings pending to which the Company, the Operating Partnership or any of
their subsidiaries is a party or of which any of the Properties (as defined in
the Prospectus as amended or supplemented) or any other property of the Company,
the Operating Partnership or any of their subsidiaries is the subject which is
reasonably likely to have individually or in the aggregate a material adverse
effect on the consolidated financial position, shareholders' equity (including,
with respect to the Operating Partnership or other partnership subsidiaries,
partnership capital) or results of operations of the Company, the Operating
Partnership and their subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vii) This Agreement and the Pricing Agreement with respect to the
Designated Shares have been duly authorized, executed and delivered by the
Company and the Operating Partnership;
(viii) The issue and sale of the Designated Shares being delivered at such
Time of Delivery by the Company, the compliance by the Company and the Operating
Partnership with all of the provisions of this Agreement and the Pricing
Agreement with respect to the Designated Shares and the consummation of the
transactions
12
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the Company, the
Operating Partnership or any of their subsidiaries is a party or by which the
Company, the Operating Partnership or any of their subsidiaries is bound or to
which any of the property or assets of the Company, the Operating Partnership or
any of their subsidiaries is subject, except for any conflicts, breaches,
violations or defaults in the case of such other material agreements or
instruments which would not have a material adverse effect on the consolidated
financial position or results of operations of the Company, the Operating
Partnership and their subsidiaries taken as a whole, nor will such action result
in any violation of the provisions of the Amended and Restated Articles of
Incorporation or By-laws of the Company, the Operating Partnership Agreement,
the organizational documents of any of their subsidiaries or any statute or any
order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company, the Operating Partnership
or any of their subsidiaries or any of their properties;
(ix) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issue and sale of the Designated Shares being delivered at such Time of
Delivery or the consummation by the Company or the Operating Partnership of the
transactions contemplated by this Agreement or such Pricing Agreement, except
such as have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws or New York State real estate syndication laws in
connection with the purchase and distribution of the Designated Shares by the
Underwriters;
(x) The statements made under the captions "Description of Capital
Stock", "Description of Common Stock Warrants" and "Federal Income Tax
Considerations" in the Prospectus, to the extent they constitute matters of law
or legal conclusions, or constitute summaries of documents described therein,
are true and accurate in all material respects, and fairly present the
information called for by the Act and the rules and regulations thereunder with
respect to the matters set forth therein;
(xi) The Company is not an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment Company
Act;
(xii) Each of the Company's partnership subsidiaries, including, without
limitation, the Operating Partnership, is properly treated as a partnership for
federal income tax purposes and not as a "publicly traded partnership";
(xiii) Commencing with the Company's taxable year ending December 31, 1994,
the Company has been constituted in conformity with the requirements for
qualification as a real estate investment trust under the Code and the Company's
historic and proposed methods of operation have enabled and will enable the
Company to meet the requirements for qualification and taxation as a real estate
investment trust under the Code; and
13
(xiv) The Prospectus as amended or supplemented and the documents
incorporated by reference in the Prospectus as amended or supplemented (other
than the financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company and
representatives of the Underwriters and their counsel during which the contents
of the Registration Statement and Prospectus as amended or supplemented and
related matters were discussed and reviewed, and, although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus as amended or supplemented, except as set forth in
clause (x) above and except for the statements concerning such firm appearing
under the caption "Legal Matters" therein, on the basis of the information that
was developed in the course of the performance of the service referred to above,
nothing has come to their attention that caused them to believe that (i) the
Registration Statement or any amendment thereto made prior to such Time of
Delivery (other than the financial statements and schedules and the other
financial data therein, as to which such counsel need express no belief), at the
time such Registration Statement or amendment became effective, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Prospectus as amended or supplemented and any further
amendment or supplement thereto made prior to such Time of Delivery (other than
the financial statements and schedules and the other financial data therein, as
to which such counsel need express no belief), on the date of such Prospectus,
amendment or supplement or as of such Time of Delivery, contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading or (iii) any documents incorporated by reference
in the Prospectus as amended or supplemented (other than the financial
statements and schedules and the other financial data therein, as to which such
counsel need express no belief), when they became effective or were filed with
the Commission, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or, in the case of
other documents which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were so filed,
not misleading. Such counsel shall also state that they do not know of any
amendment to the Registration Statement required to be filed or of any contracts
or other documents of a character required to be filed
14
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required.
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the laws of the State of Georgia
and the federal laws of the United States.
(d) On the date of the Pricing Agreement for such Designated Shares
and at each Time of Delivery for such Designated Shares, the independent
accountants of the Company who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the date
of the most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement, if
the date of such report is later than such effective date, and a letter
dated such Time of Delivery, respectively, to the effect set forth in Annex
III hereto, and with respect to such letter dated such Time of Delivery, as
to such other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(e) (i) None of the Company, the Operating Partnership, any of their
subsidiaries or the Properties (as such term is defined in the Prospectus
as amended or supplemented) shall have sustained since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Shares any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Shares, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Shares there shall not have
been any material change in the capital stock, short-term debt or long-term
debt of the Company, the capital of the Operating Partnership or the
capital stock or equity capital of any of the Company's or the Operating
Partnership's subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity (including, with respect to the
Operating Partnership or other partnership subsidiaries, partnership
capital) or results of operations of the Company, the Operating Partnership
and their subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Shares, the effect of which, in any such case described
in Clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Shares on the
terms and in the manner contemplated in the Prospectus as amended relating
to the Designated Shares;
(f) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with
15
possible negative implications, its rating of any of the Company's debt
securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this Clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Firm Shares or Optional Shares
or both on the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Shares;
(h) The Shares at each Time of Delivery shall have been duly listed,
subject to notice of issuance, on the New York Stock Exchange;
(i) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of the Pricing Agreement relating to such
Designated Shares; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Shares certificates
of officers of the Company satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Company and the Operating
Partnership herein at and as of such Time of Delivery, as to the performance by
the Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a) and (e) of
this Section, as to the due authorization and issuance of Common Stock issued by
the Company prior to such Time of Delivery and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company and the Operating Partnership, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, or any amendment or supplement thereto, 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
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Company nor the Operating
Partnership shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and
16
any other prospectus relating to the Shares, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Shares.
(b) Each Underwriter will indemnify and hold harmless the Company and the
Operating Partnership against any losses, claims, damages or liabilities to
which the Company or the Operating Partnership may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any amendment or supplement thereto, 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 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 any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and the Operating Partnership for any legal or other
expenses reasonably incurred by the Company or the Operating Partnership in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing 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 such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include
17
any statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages 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)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Operating Partnership on the one hand and the
Underwriters of the Designated Shares on the other from the offering of the
Designated Shares to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the
Operating Partnership on the one hand and the Underwriters of the Designated
Shares on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Operating Partnership on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company or the Operating Partnership bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault of the Company and the Operating Partnership on the one hand and
the Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Operating Partnership on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). 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 subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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
18
misrepresentation. The obligations of the Underwriters of Designated Shares in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Shares and not joint.
(e) The obligations of the Company and the Operating Partnership under
this Section 8 shall be in addition to any liability which the Company and the
Operating Partnership may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company or the Operating Partnership within the meaning of the Act.
9.(a) If any Underwriter shall default in its obligation to purchase the
Firm Shares or Optional Shares which it has agreed to purchase under the Pricing
Agreement relating to such Shares, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase such Shares
on the terms contained herein. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such Firm
Shares or Optional Shares, as the case may be, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase such
Shares on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Shares, or the Company notifies the Representatives that it
has so arranged for the purchase of such Shares, the Representatives or the
Company shall have the right to postpone a Time of Delivery for such Shares for
a period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate number of such Shares which remains unpurchased does
not exceed one-eleventh of the aggregate number of the Firm Shares or Optional
Shares, as the case may be, to be purchased at the respective Time of Delivery,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Firm Shares or Optional Shares, as the case may be,
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Shares and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm Shares
or Optional Shares, as the case may be, which such Underwriter agreed to
purchase under such Pricing Agreement) of the Firm Shares or Optional Shares, as
the case may be, of such defaulting
19
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of Firm Shares or
Optional Shares, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate number of the Firm Shares or Optional
Shares, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Company shall
not exercise the right described in subsection (b) above to require non-
defaulting Underwriters to purchase Firm Shares or Optional Shares, as the
case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Shares or the Over-allotment Option
relating to such Optional Shares, as the case may be, shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Operating Partnership, except for the
expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section
8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Operating Partnership and
the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or the Operating Partnership, or any officer or
director or controlling person of the Company or the Operating Partnership, and
shall survive delivery of and payment for the Shares.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Company nor the Operating
Partnership be under any liability to any Underwriter with respect to the Firm
Shares or Optional Shares with respect to which such Pricing Agreement shall
have been terminated except as provided in Sections 6 and 8 hereof; but, if for
any other reason, Designated Shares are not delivered by or on behalf of the
Company as provided herein, the Company and the Operating Partnership will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Shares, but
the Company and the Operating Partnership shall then be under no further
liability to any Underwriter with respect to such Designated Shares except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Shares shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or the Operating Partnership shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
20
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company, the Operating
Partnership and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Company and each person who controls the Company,
the Operating Partnership or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Shares from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business and the term "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
WEEKS CORPORATION
By:
-----------------------------------
Name:
Title:
WEEKS REALTY, L.P.
By: WEEKS GP HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
21
Pricing Agreement
-----------------
________ _, 199_
Ladies and Gentlemen:
Weeks Corporation, a Georgia corporation (the "Company") and the owner of
100% of the shares of both Weeks GP Holdings, Inc. and Weeks LP Holdings, Inc.,
the general partner and a limited partner, respectively, of Weeks Realty, L.P.,
a Georgia limited partnership (the "Operating Partnership"), proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated May 7, 1997 (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Shares
specified in Schedule II hereto (the "Designated Shares" consisting of Firm
Shares and any Optional Shares the Underwriters may elect to purchase). Each of
the provisions of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Shares which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of each of the Underwriters of the Designated Shares pursuant to
Section 12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, (a) the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule
1
I hereto and, (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares, as provided below, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at
the purchase price to the Underwriters set forth in Schedule II hereto that
portion of the number of Optional Shares as to which such election shall have
been exercised.
The Company hereby grants to each of the Underwriters the right to purchase
at their election up to the number of Optional Shares set forth opposite the
name of such Underwriter in Schedule I hereto on the terms referred to in the
paragraph above for the sole purpose of covering overallotments in the sale of
the Firm Shares. Any such election to purchase Optional Shares may be exercised
by written notice from the Representatives to the Company given within a period
of 30 calendar days after the date of this Pricing Agreement, setting forth the
aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by the Representatives, but
in no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, no earlier than two
or later than ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company, one for the Operating Partnership and one for
each of the Representatives plus one for each counsel counterparts hereof, and
upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters, the Company and the Operating Partnership. It
is understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
WEEKS CORPORATION
By:
--------------------
Name:
Title:
WEEKS REALTY, L.P.
By: WEEKS GP HOLDINGS, INC., its General
Partner
By:
--------------------
Name:
Title:
3
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
X.X. XXXXXXX & SONS, INC.
XXXXXX XXXXXXX & CO. INCORPORATED
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
By:
---------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
4
SCHEDULE I
Maximum Number
Number of of Optional
Firm Shares Shares Which
Underwriter to be Purchased May be Purchased
----------- --------------- ----------------
TOTAL
5
SCHEDULE II
Title of Designated Shares:
Common Stock, par value $.01 per share ("Common Stock").
Number of Designated Shares:
Number of Firm Shares:
Maximum Number of Optional Shares:
Initial Offering Price to Public:
$__ per Share.
Purchase Price by Underwriters:
$__ per Share.
Form of Designated Shares:
[Definitive form, to be made available for checking at least twenty-four hours
prior to the Time of Delivery at the office of The Depository Trust Company or
its designated custodian.]
Specified Funds for Payment of Purchase Price:
Federal (same day) funds.
6
Blackout Provisions:
Beginning from the date of this Pricing Agreement and continuing to and
including the date 90 days after the date of this Pricing Agreement, the Company
agrees with each of the Underwriters not to offer, sell, contract to sell or
otherwise dispose of any securities of the Company (other than pursuant to
employee stock option plans existing on, restricted stock awards to employees
granted prior to, or upon the conversion of convertible or exchangeable
securities outstanding as of, the date of this Pricing Agreement) that are
substantially similar to the shares of Common Stock or which are convertible or
exchangeable into securities which are substantially similar to the shares of
Common Stock, without the prior written consent of the Designated
Representatives.
Time of Delivery:
9:30 a.m. (New York City time), ________ __, 199_.
Closing Location:
__________________________________________________.
Names and Addresses of Representatives:
Designated Representatives:
7
ANNEX III
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data,
pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus
and/or included in the Company's quarterly reports on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated
financial statements for such five fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form 10-K for such
fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
in the Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material modifications should be
made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
in the Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding amounts in
the audited consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
2
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus and referred to in Clause
(B) were not determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of consolidated
net income or other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as compared with
the comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with
3
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives which
are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares for purposes
of the letter delivered at the Time of Delivery for such Designated Shares.
4
