Exhibit 1.1
468,750 SHARES
WEEKS CORPORATION
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
March 24, 1998
Wheat First Securities, Inc.
Riverfront Plaza
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
The undersigned, Weeks Corporation, a Georgia corporation (the "Company"),
and the owner of 100% of the outstanding Capital Stock of both Weeks GP
Holdings, Inc., a Georgia corporation ("Weeks GP"), and Weeks LP Holdings, Inc.,
a Georgia corporation ("Weeks LP"), the sole general partner and a limited
partner, respectively, of Weeks Realty, L.P., a Georgia limited partnership (the
"Operating Partnership"), hereby confirms their agreement with you (the
"Underwriter") as follows:
1. Description of Shares. The Company proposes to issue and sell to you
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468,750 shares of its Common Stock, par value $.01 per share (the "Shares").
The Shares are more fully described in the Prospectus hereinafter defined.
2. Purchase, Sale and Delivery of Shares. On the basis of the
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representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to you, and
you agree to purchase from the Company at a purchase price of $30.40 per share,
the 468,750 Shares.
The Company will deliver definitive certificates for the Shares at the
office of Wheat First Securities, Inc., Riverfront Plaza, 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("Wheat First's Office"), or such other place as you
and the Company may mutually agree upon (the "Place of Closing"), for your
account against payment to the Company of the purchase price for the Shares sold
to you by wire transfer of immediately available funds, at 10:00 a.m., Richmond
time, on March 27, 1998, or at such other time and date not later than three
full business days thereafter as you and the Company may agree, such time and
date of payment and delivery being herein called the "Closing Date."
The certificates for the Shares so to be delivered will be made available
to you for inspection at Wheat First's Office (or such other place as you and
the Company may mutually agree upon) at least one full business day prior to the
Closing Date and will be in such names and denominations as you may request at
least one full business day prior to the Closing Date.
3. Representations, Warranties and Agreements of the Company and the
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Operating Partnership. The Company and the Operating Partnership, jointly and
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severally, represent and warrant to and agree with you that:
(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"); a registration
statement (Registration No. 333-32755) on Form S-3, including a
prospectus relating to the registration of the Shares and such other
securities which may be offered from time to time in accordance with
Rule 415 under the Act, and such amendments to such registration
statement as may have been required to the date of this Agreement, has
been prepared by the Company pursuant to and in conformity with the
requirements of the Act, and the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, was filed with the Commission under the Act
and was declared effective on October 1, 1997. Copies of such
registration statement, including any amendments thereto, each related
preliminary prospectus contained therein, the exhibits, financial
statements and schedules have heretofore been delivered by the Company
to you. A prospectus supplement (the "Prospectus Supplement") setting
forth the terms of the offering, sale and plan of distribution of the
Shares and additional information concerning the Company and its
business has been or will be so prepared and will be filed pursuant to
Rule 424(b) of the Rules and Regulations on or before the second
business day after the date hereof (or such earlier time as may be
required by the Rules and Regulations). The term "Registration
Statement" as used herein means the registration statement as amended
at the time it or any amendment thereto became effective under the Act
or any Annual Report on Form 10-K is filed by the Company with the
Commission (the "Effective Date"), including financial statements and
all exhibits and all documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act. Any document filed by
the Company under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") after the effective date of the Registration Statement
or the date of the Prospectus Supplement and incorporated by reference
in the Prospectus shall be deemed to be included in the Registration
Statement and the Prospectus as of the date of such filing. The term
"Prospectus" as used herein means the Prospectus Supplement as first
filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations (including, the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act). The term
"Preliminary Prospectus" as used herein shall mean a preliminary
prospectus included at any time in the Registration Statement.
(ii) The Commission has not issued, and is not to the knowledge
of the Company threatening to issue, an order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus nor instituted
proceedings for that purpose. Each Preliminary Prospectus at its date
of issue, the Registration Statement at the Effective Date, and the
Prospectus at its date of issue and any amendments or supplements
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thereto contains or will contain, as the case may be, all statements
which are required to be stated therein by, and in all material
respects conform or will conform, as the case may be, to the
requirements of, the Act and the Rules and Regulations. Neither the
Registration Statement nor any amendment thereto, as of the applicable
Effective Date, and neither the Prospectus nor any supplement thereto,
as of its applicable issue date or the Closing Date, contains or will
contain, as the case may be, any untrue statement of a material fact
or omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or
warranty as to information contained in or omitted from the
Registration Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conforming with, written
information furnished to the Company by you specifically for use in
the preparation thereof.
(iii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Exchange Act, and the rules and regulations
adopted by the Commission thereunder (the "1934 Act Rules and
Regulations"), and, when read together and with the other information
in the Prospectus, at the time the Registration Statement became
effective and at the Closing Date, did not or will not, as the case
may be, 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
the Company makes no representation or warranty as to information
contained in or omitted from such documents in reliance upon, and in
conforming with, written information furnished to the Company by you
specifically for use in the preparation thereof.
(iv) The filing of the Registration Statement and the execution
and delivery of this Agreement have been duly authorized by the Board
of Directors of the Company and Weeks GP; this Agreement constitutes a
valid and legally binding obligation of the Company and the Operating
Partnership enforceable in accordance with its terms (except to the
extent the enforceability of the indemnification and contribution
provisions of Section 6 hereof may be limited by public policy
considerations as expressed in the Act as construed by courts of
competent jurisdiction, and except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors' rights generally and by general principles of
equity); the issue and sale of the Shares by the Company and the
performance by the Company and the Operating Partnership of this
Agreement and the consummation of the transactions herein contemplated
will not result in a violation of the Company's articles of
incorporation or bylaws, the Second Amended and Restated Agreement of
Limited Partnership of Weeks Realty, L.P., as amended
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(the "Operating Partnership Agreement"), the organizational documents
of any of their subsidiaries or result in a breach or violation of any
of the terms and provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company, the
Operating Partnership or their subsidiaries under any statute, or
under any indenture, mortgage, deed of trust, note, loan agreement,
sale and leaseback arrangement or other agreement or instrument to
which the Company, the Operating Partnership or any of their
subsidiaries is a party or by which they are bound or to which any of
the properties or assets of the Company, the Operating Partnership, or
their subsidiaries is subject, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, the Operating Partnership or their subsidiaries or their
properties, except to such extent as does not materially adversely
affect the business 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
court or governmental agency or body is required for the consummation
of the transactions herein contemplated, except such as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD") or under the Act or Rules and Regulations or any state
securities laws, except to such extent as does not materially
adversely affect the business of the Company, the Operating
Partnership and their subsidiaries taken as a whole.
(v) Except as described in the Prospectus, 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 material 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. Except as
described in the Prospectus, subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, the Company, the Operating Partnership and their
subsidiaries taken as a whole have not incurred any material
liabilities or material obligations, direct or contingent, other than
in the ordinary course of business, or entered into any material
transactions not in the ordinary course of business, and there has not
been any material change in the capital stock or long-term debt of the
Company, the Operating Partnership and their subsidiaries taken as a
whole or any material adverse change in the condition (financial or
other), net worth, business, affairs, management, or results of
operations of the Company, the Operating Partnership and their
subsidiaries taken as a whole.
(vi) Except as described in the Prospectus, there is not now
pending or, to the knowledge of the Company or the Operating
Partnership, threatened or contemplated, any action, suit or
proceeding to which the Company, the Operating Partnership or their
subsidiaries is a party before or by any court or public, regulatory
or governmental agency or body which might be expected to result
(individually or
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in the aggregate) in any material adverse change in the condition
(financial or other) or business of the Company, the Operating
Partnership and their subsidiaries taken as a whole, or might be
expected to materially and adversely affect (individually or in the
aggregate) the properties or assets thereof, and there are no
contracts or documents of the Company, the Operating Partnership or
their subsidiaries which would be required to be filed as exhibits to
the Registration Statement by the Act or by the Rules and Regulations
in order to be in material compliance with the Act and the Rules and
Regulations which have not been filed as exhibits to the Registration
Statement or incorporated by reference therein, except for such
contracts or documents which the failure to so file would not
materially adversely affect the business of the Company, the Operating
Partnership and their subsidiaries, taken as a whole.
(vii) The Company has duly and validly authorized capital stock
as described in the Prospectus; all outstanding shares of Common Stock
of the Company and the Shares conform, or when issued will conform, to
the description thereof in the Prospectus and have been, or, when
issued and paid for will be, duly authorized, validly issued, fully
paid and nonassessable; and the issuance of the Shares to be purchased
from the Company hereunder is not subject to preemptive rights.
(viii) Each of the Company, the Operating Partnership and their
subsidiaries have been duly incorporated or formed, as the case may
be, and is a validly existing corporation, general or limited
partnership, or other legal entity, as the case may be, in good
standing (if applicable) under the laws of the state or other
jurisdiction in which it is incorporated or formed, as the case may
be. The Company, the Operating Partnership and their subsidiaries
have full power and authority (corporate and other) to own, lease and
operate their properties and conduct their businesses as described in
the Prospectus; each of the Company, the Operating Partnership and
their subsidiaries is duly qualified or registered to do business and
is in good standing in each state or other jurisdiction in which its
ownership or leasing of property or conduct of business legally
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business of
the Company, the Operating Partnership and their subsidiaries taken as
a whole; and the outstanding shares of capital stock or ownership
interests of the Company's and the Operating Partnership's
subsidiaries have been duly authorized and validly issued, are fully
paid and, in the case of corporate subsidiaries, nonassessable and are
owned by the Company or the Operating Partnership (or their respective
subsidiaries) free and clear of any mortgage, pledge, lien,
encumbrance, charge or adverse claim.
(ix) Xxxxxx Xxxxxxxx LLP, the accounting firm which has certified
certain of the financial statements filed with or incorporated by
reference in and as a part of
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the Registration Statement, is an independent public accounting firm
within the meaning of the Act and the Rules and Regulations.
(x) The consolidated financial statements of the Company together
with the related schedules and notes thereto, set forth or included or
incorporated by reference in the Registration Statement and Prospectus
fairly present the financial condition of the Company, the Operating
Partnership and their consolidated subsidiaries as of the dates
indicated and the results of operations, changes in financial
position, shareholders' equity and cash flows for the periods therein
specified, in conformity with generally accepted accounting principles
(except as otherwise stated therein). The summary and selected
financial and statistical data included or incorporated by reference
in the Registration Statement and the Prospectus present fairly the
information shown therein and, to the extent based upon or derived
from the financial statements, have been compiled on a basis
consistent with the financial statements presented therein. In
addition, the pro forma financial statements of the Company, and the
related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the basis described
therein, and, to the Company's knowledge, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein. Furthermore, all financial statements required
by Rule 3-14 of Regulation S-X ("Rule 3-14") have been included or
incorporated by reference in the Registration Statement and the
Prospectus and any such financial statements comply in all material
respects with the requirements of Rule 3-14. No other financial
statements are required to be set forth or to be incorporated by
reference in the Registration Statement or the Prospectus under the
Act or the Rules and Regulations thereunder.
(xi) None of the Company, the Operating Partnership or any
subsidiary is in default with respect to any contract or agreement to
which it is a party; provided that this representation shall not apply
to defaults which in the aggregate are not materially adverse to the
condition, financial or other, or the business or prospects of the
Company, the Operating Partnership and their subsidiaries taken as a
whole.
(xii) None of the Company, the Operating Partnership or any
subsidiary is in violation of any other laws, ordinances or
governmental rules or regulations to which it is subject, including,
without limitation, Section 13 of the Exchange Act, and none of the
Company, the Operating Partnership or any subsidiary has failed to
obtain any license, permit, franchise, easement, consent, or other
governmental authorization necessary to the ownership, leasing and
operation of its properties or to the conduct of its business, which
violation or failure would materially adversely
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affect the business, operations, affairs, properties, profits or
condition (financial or other) of the Company, the Operating
Partnership and their subsidiaries taken as a whole.
(xiii) There are no holders of securities of the Company having
rights to registration thereof or preemptive rights to purchase Common
Stock of the Company except as disclosed in the Prospectus.
(xiv) The Company, the Operating Partnership and each of their
subsidiaries has good and marketable title to all properties and
assets described in the Prospectus as owned by it, free and clear of
all liens, charges, encumbrances or restrictions, except such as (i)
are described in the Prospectus or (ii) are not material to the
business of the Company, the Operating Partnership or their
subsidiaries, taken as a whole. The Company, the Operating
Partnership and each of their subsidiaries has valid, subsisting and
enforceable leases for the real property and buildings described in
the Prospectus as leased by it, with such exceptions as are not
material and do not materially interfere with the use made and
proposed to be made of such properties by the Company, the Operating
Partnership and such subsidiaries.
(xv) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Common Stock, and the Company is not aware of any such
action taken or to be taken by affiliates of the Company.
(xvi) None of the Company, the Operating Partnership or any of
their subsidiaries are an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xvii) 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 Internal Revenue Code of 1986, as amended ( the "Code"), and
the Company's historic and proposed methods of operation have enabled
the Company to meet the requirements for qualification and taxation as
a real estate investment trust under the Code.
(xviii) Any certificate signed by any officer of the Company or
the Operating Partnership, as the case may be, and delivered to you or
to your counsel shall be deemed a representation and warranty by the
Company or the Operating Partnership to you as to the matters covered
thereby.
(xix) A registration statement relating to the Common Stock of
the Company has been declared effective by the Commission pursuant to
the Exchange
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Act and the Common Stock of the Company is duly registered thereunder.
The Shares have been listed on the New York Stock Exchange, Inc.,
subject to notice of issuance or sale of the Shares, as the case may
be.
4. Additional Covenants. The Company and the Operating Partnership each
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covenant and agree with you that:
(a) The Company will (i) prepare a Prospectus Supplement setting forth
the number of Shares covered thereby and their terms not otherwise specified in
the Prospectus pursuant to which the Shares are being issued, the name of the
Underwriter and the number of Shares which the Underwriter has agreed to
purchase, the price at which the Shares are to be purchased by the Underwriter
from the Company and such other information as the Underwriter and the Company
deem appropriate in connection with the offering of the Shares, and file the
Prospectus in a form approved by you pursuant to Rule 424(b) under the Act no
later than the Commission's close of business on the second business day
following the date of the determination of the offering price of the Shares;
(ii) not file any amendment to the Registration Statement or supplement to the
Prospectus of which you shall not previously have been advised and furnished
with a copy or to which you shall have reasonably objected in writing or which
is not in compliance with the Rules and Regulations; and (iii) promptly notify
you after it shall have received notice thereof of the time when any amendment
to the Registration Statement becomes effective or when any supplement to the
Prospectus has been filed.
(b) The Company will advise you promptly, after it shall receive
notice or obtain knowledge thereof, of any request of the Commission for
amendment of the Registration Statement or for supplement to the Prospectus or
for any additional information, or of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the use of
the Prospectus or of the institution or threatening of any proceedings for that
purpose, and the Company will use its best efforts to prevent the issuance of
any such stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with you and your counsel in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as they may have designated and will make such applications, file
such documents, and furnish such information as may be necessary for that
purpose, provided 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 where it is not now so qualified or required to file such a consent
or to subject itself to taxation as doing business in any jurisdiction where it
is not now so taxed. The Company will, from time to time, file such statements,
reports, and other documents, as are or may be required to continue such
qualifications in effect for so long a period as you may reasonably request.
(d) The Company will deliver to you, without charge, as many copies of
the Prospectus (including all documents incorporated by reference therein), or
as it thereafter may be amended or supplemented, as you may from time to time
reasonably request.
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The Company consents to the use of such Prospectus by you, both in connection
with the offering or sale of the Shares and for such other purposes and for such
period of time thereafter as the Prospectus is required by law to be delivered
in connection with the offering or sale of the Shares, subject to your
obligation to discontinue such use upon notice from the Company until an
amendment to the registration statement or supplement to the prospectus has been
filed as contemplated under Section 4(e).
(e) If, during the period in which a prospectus is required by law to
be delivered by an underwriter or dealer, any event shall occur as a result of
which, in the judgment of the Company or in your judgment or in the opinion of
your counsel, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, not misleading, or, if it
is necessary at any time to amend or supplement the Prospectus to comply with
any law, the Company promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with law.
(f) The Company will make generally available to its shareholders and
will file as an exhibit in a report pursuant to the Exchange Act, as soon as it
is practicable to do so, but in any event not later than 18 months after the
effective date of the Registration Statement, an earnings statement of the
Company and its subsidiaries (which need be audited) to comply with Section
11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) The Company will apply the proceeds from the sale of the Shares as
set forth in the description under "Use of Proceeds" in the Prospectus, which
description complies in all material respects with the requirements of Item 504
of Regulation S-K.
(h) The Company will supply you with copies of all correspondence to
and from, and all documents issued to and by, the Commission in connection with
the registration of the Shares under the Act.
(i) Prior to the Closing Date, the Company will furnish to you, as
soon as they have been prepared, copies of any unaudited interim consolidated
financial statements of the Company, the Operating Partnership and their
subsidiaries for any periods subsequent to the periods covered by the financial
statements appearing in the Registration Statement and the Prospectus.
(j) Prior to the Closing Date, the Company will not issue any press
releases or other communications directly or indirectly and will hold no press
conference, with respect to the offering of the Shares, without your prior
written consent.
(k) The Company will use its best efforts to obtain approval for, and
maintain the listing of the Shares on, the New York Stock Exchange, Inc.
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(l) During any period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will promptly file all
documents required to be filed with the Commission pursuant to Sections 13, 14
or 15(d) of the Exchange Act.
(m) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
5. Conditions of Underwriter's Obligation. Your obligations, as
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Underwriter to purchase and pay for the Shares, as provided herein, shall be
subject to the accuracy in all material respects, as of the date hereof and as
of the Closing Date, of the representations and warranties of the Company and
the Operating Partnership contained herein, to the performance in all material
respects by the Company and the Operating Partnership of their covenants and
obligations hereunder, and to the following additional conditions:
(a) All filings required by Rule 424 of the Rules and Regulations
shall have been made. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceeding for that purpose shall have been initiated or, to your knowledge
or the knowledge of the Company, threatened or contemplated by the Commission,
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
complied with to your reasonable satisfaction.
(b) You shall not have disclosed in writing to the Company on or prior
to the Closing Date, that the Registration Statement or Prospectus or any
amendment or supplement thereto contains an untrue statement of fact which, in
the opinion of your counsel, is material, or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(c) On the Closing Date, you shall have received the opinion of King &
Spalding, counsel for the Company, addressed to you and dated the Closing Date,
as to the matters set forth in Schedule I attached hereto.
(d) You shall have received on the Closing Date, from Hunton &
Xxxxxxxx, your counsel, such opinion or opinions, dated the Closing Date with
respect to the incorporation of the Company, the validity of the Shares, the
Registration Statement, the Prospectus and other related matters as you may
reasonably require; the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass on
such matters.
(e) [INTENTIONALLY OMITTED]
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(f) On the date of this Agreement and on the Closing Date, you shall
have received from Xxxxxx Xxxxxxxx LLP, a letter or letters, dated the date of
this Agreement and the Closing Date, respectively, in form and substance
satisfactory to you, confirming that they are independent public accountants
with respect to the Company within the meaning of the Act and the published
Rules and Regulations, and stating to the effect set forth in Schedule II
hereto.
(g) Except as contemplated in the Prospectus, (i) none of the Company,
the Operating Partnership or any of their subsidiaries shall have 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; and (ii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, none of the Company,
the Operating Partnership or any of their subsidiaries shall have incurred any
liability or obligation, direct or contingent, or entered into transactions, and
there shall not have been any change in the capital stock or long-term debt of
the Company, the Operating Partnership and their subsidiaries or any change in
the condition (financial or other), net worth, business, affairs, management,
prospects or results of operations of the Company, the Operating Partnership or
their subsidiaries, the effect of which, in any such case described in clause
(i) or (ii), is in your judgment so material or adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered on the Closing Date on the terms and in the manner
contemplated in the Prospectus.
(h) 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, Inc. or the establishing on such exchange by the Commission
or by such exchanges of minimum or maximum prices which are not in force and
effect on the date hereof; (ii) a general moratorium on commercial banking
activities declared by either federal or state authorities; (iii) 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 (iii) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares in
the manner contemplated in the Prospectus; (iv) any calamity or crisis, change
in national, international or world affairs, act of God, change in the
international or domestic markets, or change in the existing financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in this clause (iv) makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares in
the manner contemplated in the Prospectus; or (v) the enactment, publication,
decree, or other promulgation of any federal or state statute, regulation, rule,
or order of any court or other governmental authority, or the taking of any
action by any federal, state or local government or agency in respect of fiscal
or monetary affairs, if the effect of any such event specified in this clause
(v) in your judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares in the manner contemplated in the
Prospectus.
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(i) You shall have received certificates, dated the Closing Date and
signed by the Chief Financial Officer of the Company stating that (i) he has
carefully examined the Registration Statement and the Prospectus as amended or
supplemented and all documents incorporated by reference therein and nothing has
come to their attention that would lead them to believe that either the
Registration Statement or the Prospectus, or any amendment or supplement thereto
or any documents incorporated by reference therein as of their respective
effective, issue or filing dates, contained, and the Prospectus as amended or
supplemented and all documents incorporated by reference therein and when read
together with the documents incorporated by reference therein, at the Closing
Date, contains any untrue statement of a material fact, or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (ii) all representations and warranties made herein by the
Company are true and correct in all material respects at the Closing Date, with
the same effect as if made on and as of the Closing Date, and all agreements
herein to be performed by the Company on or prior to the Closing Date have been
duly performed in all material respects.
(j) The Company and the Operating Partnership shall not have failed,
refused, or been unable, at or prior to the Closing Date to have performed in
all material respects any agreement on their part to be performed or any of the
conditions herein contained and required to be performed or satisfied by them at
or prior to the Closing Date.
(k) The Company and the Operating Partnership shall have furnished to
you at the Closing Date such other certificates as you may have reasonably
requested as to the accuracy, on and as of the Closing Date, of the
representations and warranties of the Company and the Operating Partnership
herein and as to the performance by the Company and the Operating Partnership of
their obligations hereunder.
(l) The Shares shall have been approved for trading upon official
notice of issuance on the New York Stock Exchange, Inc.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Hunton & Xxxxxxxx, your counsel. The Company and the Operating
Partnership will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you may request. If any of the
conditions specified above in this Section 5 shall not have been satisfied at or
prior to the Closing Date or waived by you in writing, this Agreement may be
terminated by you on notice to the Company.
6. Indemnification.
---------------
(a) The Company and the Operating Partnership, jointly and severally,
will indemnify and hold you harmless and each person, if any, who controls you
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which you or such controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
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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 the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or in any blue sky
application or other document executed by the Company or the Operating
Partnership or based on any information furnished in writing by the Company or
the Operating Partnership, filed in any jurisdiction in order to qualify any or
all of the Shares under the securities laws thereof ("Blue Sky Application"), or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and will reimburse you and each such controlling person for any
legal or other expenses reasonably incurred by you or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Operating
Partnership shall not 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
the Registration Statement, such Preliminary Prospectus or the Prospectus, or
such amendment or supplement, or any Blue Sky Application in reliance upon and
in conformity with written information furnished to the Company by you,
specifically for use in the preparation thereof; and provided, further, that if
any Preliminary Prospectus or the Prospectus contained any alleged untrue
statement or allegedly omitted to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and
such statement or omission shall have been corrected in a revised Preliminary
Prospectus or in the Prospectus or in an amended or supplemented Prospectus, the
Company and the Operating Partnership shall not be liable to you or controlling
persons under this subsection (a) with respect to such alleged untrue statement
or alleged omission to the extent that any such loss, claim, damage or liability
of such person results from the fact that you sold Shares to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, such revised Preliminary Prospectus or Prospectus or amended or
supplemented Prospectus. In addition to their other obligations under this
Section 6(a), the Company and the Operating Partnership agree that, as an
interim measure during the pendency of any claim, action, investigation, inquiry
or other proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission, described in this Section 6(a), they will
reimburse you on a monthly basis for all reasonable legal and other expenses
incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company's
or the Operating Partnership's obligation to reimburse you for such expenses and
the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. This indemnity agreement shall be in
addition to any liabilities which the Company and the Operating Partnership may
otherwise have.
(b) You will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement, the
Operating Partnership and each person, if any, who controls the Company or the
Operating Partnership within the meaning of the Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, the Operating
Partnership or any such director, officer or controlling person may become
subject, under
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the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, any amendment or
supplement thereto, or any Blue Sky Application or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, 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 the
Registration Statement, such Preliminary Prospectus or the Prospectus, such
amendment or supplement, or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by you specifically
for use in the preparation thereof; and will reimburse any legal or other
expenses reasonably incurred by the Company, the Operating Partnership or any
such director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. In addition to your
other obligations under this Section 6(b), you agree that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 6(b), you will
reimburse the Company and the Operating Partnership on a monthly basis for all
reasonable legal and other expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of your obligation to reimburse the Company and the Operating
Partnership for such expenses and the possibility that such payments might later
be held to have been improper by a court of competent jurisdiction. This
indemnity agreement shall be in addition to any liabilities which you may
otherwise have.
(c) Any party which proposes to assert the right to be indemnified
under this Section 6 shall, within ten days after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim is to be made against an indemnifying party under this Section 6,
notify each such indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the omission so to notify
such indemnifying party of any such action, suit or proceeding shall not relieve
such indemnifying party from any liability which it may have to any indemnified
party otherwise than under this Section 6. In case any such action, suit or
proceeding 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 in, and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified 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 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party at the expense of
the indemnifying party has been authorized
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by the indemnifying party, (ii) the indemnified party shall have been advised by
such counsel in a written opinion that there may be a conflict of interest
between the indemnifying party and the indemnified party in the conduct of the
defense, or certain aspects of the defense, of such action (in which case the
indemnifying party shall not have the right to direct the defense of such action
with respect to those matters or aspects of the defense on which a conflict
exists or may exist on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have employed counsel to assume the defense
of such action, in any of which events such fees and expenses to the extent
applicable shall be borne by the indemnifying party. An indemnifying party shall
not be liable for any settlement of any action or claim effected without its
consent. Each indemnified party, as a condition of such indemnity, shall
cooperate in good faith with the indemnifying party in the defense of any such
action or claim.
(d) If the indemnification provided for in this Section 6 is for any
reason, other than pursuant to the terms thereof, judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right to appeal) to be
unavailable to an indemnified party under subsections (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, in lieu of
indemnifying such indemnified party, 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 you on the other from the offering of the
Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, 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, as applicable, of the Company and the Operating Partnership
on one hand and you 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 other relevant equitable considerations. The
relative benefits received by, as applicable, the Company and the Operating
Partnership on one hand and you on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company or the Operating Partnership bear to the total
underwriting discounts and commissions received by you, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the Operating
Partnership or you 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 you agree that it would not be just
and equitable if contributions pursuant to this subsection (d) were determined
by pro rata allocation 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.
-15-
Notwithstanding the provisions of this subsection (d), you shall not be required
to contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by you. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
7. Representations and Agreements to Survive Delivery. All
--------------------------------------------------
representations, warranties, and agreements of the Company and the Operating
Partnership contained herein or in certificates delivered pursuant hereto, and
your agreements contained in Section 6 hereof, shall remain operative and in
full force and effect regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of you or any controlling
person, the Operating Partnership, the Company or any of its officers, directors
or any controlling persons, and shall survive delivery of the Shares to you
hereunder.
8. Effective Date and Termination.
------------------------------
(a) This Agreement shall become effective upon execution.
(b) This Agreement may be terminated by you at any time at or prior to
the Closing Date by notice to the Company if any condition specified in Section
5 hereof shall not have been satisfied on or prior to the Closing Date. Any
such termination shall be without liability of any party to any other party
except as provided in Sections 6 and 9 hereof.
If you terminate this Agreement as provided in Sections 8(b), you shall notify
the Company by telephone or telegram, confirmed by letter.
9. Cost and Expenses. The Company and the Operating Partnership, jointly
-----------------
and severally, will bear and pay the costs and expenses incident to the
registration of the Shares and public offering thereof, including, without
limitation, (a) the fees and expenses of the Company's and the Operating
Partnership's accountants and the fees and expenses of counsel for the Company
and the Operating Partnership, (b) the preparation, printing, filing, delivery
and shipping of the Registration Statement, each Preliminary Prospectus, the
Prospectus, and any amendments or supplements thereto, (c) the furnishing of
copies of such documents to you, (d) the registration or qualification of the
Shares for offering and sale under the securities laws of the various states,
including the reasonable fees and disbursements of your counsel relating to such
registration or qualification, (e) the fees payable to the NASD (if any) and the
Commission in connection with their review of the proposed offering of the
Shares, (f) all printing and engraving costs related to preparation of the
certificates for the Shares, including transfer agent and registrar fees, (g)
all initial transfer taxes, if any, (h) all fees and expenses relating to the
authorization of the Shares for trading on New York Stock Exchange, Inc., (i)
all travel expenses, including air fare and accommodation expenses, of
representatives of the Company in connection with the offering of the Shares and
(j) all of the other costs and expenses incident to the performance by the
Company of the registration and offering of the Shares; provided, however, that
you will bear and pay the fees and expenses of
-16-
your counsel (other than fees and disbursements relating to the registration or
qualification of the Shares for offering and sale under the securities laws of
the various states), your out-of-pocket expenses, and any advertising costs and
expenses incurred by you incident to the public offering of the Shares.
10. Notices. All notices or communications hereunder, except as herein
-------
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
to Wheat First Securities, Inc., Attention: Syndicate Department, Riverfront
Plaza, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, facsimile number (804)
782-3440, or if sent to the Company shall be mailed, delivered, sent by
facsimile transmission, or telegraphed and confirmed to the Company at 0000 Xxxx
Xxxxx, Xxxxxxxx, Xxxxxxx 00000, facsimile number (770) 717 -3310.
11. Parties. This Agreement shall inure to the benefit of and be binding
-------
upon you, the Company, the Operating Partnership and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, corporation or other entity, other than
the parties hereto and their respective successors and assigns and the
controlling persons, officers and directors referred to in Section 6, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto and their respective successors and assigns and said controlling
persons and said officers and directors, and for the benefit of no other person,
corporation or other entity. No purchaser of any of the Shares from you shall
be construed a successor or assign by reason merely of such purchase.
12. Counterparts. This Agreement may be executed by any one or more of
------------
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
13. Pronouns. Whenever a pronoun of any gender or number is used herein,
--------
it shall, where appropriate, be deemed to include any other gender and number.
14. Applicable Law. This Agreement shall be governed by, and construed in
--------------
accordance with, the laws of the State of New York.
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If the foregoing is in accordance with your understanding, please so indicate in
the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement between the Company, the Operating Partnership
and you.
WEEKS CORPORATION
By:/s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc., Its
General Partner
By:/s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
Accepted in Richmond, Virginia
as of the date first above written.
WHEAT FIRST SECURITIES, INC.
By:/s/ Xxxx X. Xxxxxx, III
-----------------------
Name: Xxxx X. Xxxxxx, III
Title: Vice President
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