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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 7, 1997
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Weeks Corporation
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(Exact name of registrant as specified in its charter)
Georgia 011-13254 58-1525322
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
4497 Park Drive, Norcross, Georgia 30093
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 923-4076
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Item 5. Other Events
Weeks Corporation (the "Registrant") is filing this Current Report on
Form 8-K so as to file with the Securities and Exchange Commission certain items
that are to be incorporated by reference into certain Registration Statements of
the Registrant filed under the Securities Act of 1933, as amended.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1.1 Underwriting Agreement among the Registrant, Weeks
Realty, L.P. and the Underwriters named therein
dated as of October 7, 1997
1.2 Pricing Agreement among the Registrant, Weeks
Realty, L.P. and the Underwriters named therein
dated as of October 7, 1997
3.1 Form of Articles of Amendment of Restated Articles
of Incorporation of the Registrant
4.1 Form of Certificate of the Registrant' s 8.00%
Series A Cumulative Redeemable Preferred Stock
5.1 Opinion of King & Spalding regarding legality of
issuance of 6,000,000 Shares of Preferred Stock
10.1 Form of Fifth Amendment to the Second Amended and
Restated Agreement of Limited Partnership of Weeks
Realty, L.P.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of King & Spalding (included as part of
Exhibit 5.1 hereto)
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WEEKS CORPORATION
(Registrant)
Date: October 9, 1997 By:/s/ David P. Stockert
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David P. Stockert
Senior Vice President and
Chief Financial Officer
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EXHIBIT INDEX
1.1 Underwriting Agreement among the Registrant, Weeks Realty, L.P. and
the Underwriters named therein dated as of October 7, 1997
1.2 Pricing Agreement among the Registrant, Weeks Realty, L.P. and the
Underwriters named therein dated as of October 7, 1997
3.1 Form of Articles of Amendment of Restated Articles of Incorporation of
the Registrant
4.1 Form of Certificate of the Registrant' s 8.00% Series A Cumulative
Redeemable Preferred Stock
5.1 Opinion of King & Spalding regarding legality of issuance of 6,000,000
Shares of Preferred Stock
10.1 Form of Fifth Amendment to the Second Amended and Restated Agreement
of Limited Partnership of Weeks Realty, L.P.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of King & Spalding (included as part of Exhibit 5.1 hereto)
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EXHIBIT 1.1
Weeks Corporation
Common Stock, Preferred Stock and Common Stock Warrants
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Underwriting Agreement
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October 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"), shares of its preferred stock, par value $.01 per share ("Preferred
Stock") and/or warrants to purchase shares of Common Stock ("Common Stock
Warrants") (collectively, 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 of Common
Stock, Preferred Stock and/or Common Stock Warrants, 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
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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. 333-32755) in respect
of the Shares and in respect of debt securities of the Operating
Partnership 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 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
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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 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
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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 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
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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 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;
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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 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) Arthur Andersen 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
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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 (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
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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 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
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(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, 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;
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(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 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. Ray Weeks, Jr., Thomas D. Senkbeil or Forrest W.
Robinson, 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);
(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
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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 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
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<PAGE>
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
(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
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<PAGE>
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 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
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<PAGE>
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 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
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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 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
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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 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
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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 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
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<PAGE>
Optional Shares, as the case may be, of such defaulting 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 shall 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
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
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<PAGE>
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.
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<PAGE>
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: /s/ David P. Stockert
------------------------------------
Name: David P. Stockert
Title: Chief Financial Officer
WEEKS REALTY, L.P.
By: WEEKS GP HOLDINGS, INC., its
General Partner
By: /s/ David P. Stockert
------------------------------------
Name: David P. Stockert
Title: Chief Financial Officer
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<PAGE>
EXHIBIT 1.2
PRICING AGREEMENT
-----------------
October 7, 1997
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 October 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 I
hereto and, (b) in the event and to the extent that the Underwriters
<PAGE>
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.
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<PAGE>
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: /s/ David P. Stockert
-----------------------------------
Name: David P. Stockert
Title: Chief Financial Officer
WEEKS REALTY, L.P.
By: WEEKS GP HOLDINGS, INC., its
General Partner
By: /s/ David P. Stockert
----------------------------------
Name: David P. Stockert
Title: Chief Financial Officer
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<PAGE>
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
A.G. EDWARDS & SONS, INC.
MORGAN STANLEY & CO., INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, LLC
By: Goldman, Sachs & Co.
/s/ Goldman, Sachs & Co.
-----------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
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<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF
FIRM SHARES OPTIONAL SHARES
UNDERWRITER TO BE PURCHASED TO BE PURCHASED
- ----------- --------------- ---------------
<S> <C> <C>
Goldman, Sachs & Co. 1,260,000 0
A.G. Edwards & Sons, Inc. 1,250,000 0
Morgan Stanley & Co. Incorporated 1,250,000 0
The Robinson-Humphrey Company, LLC 1,250,000 0
Bear, Stearns & Co. Inc. 60,000 0
BT Alex. Brown Incorporated 60,000 0
Everen Securities, Inc. 60,000 0
Legg Mason Wood Walker Incorporated 60,000 0
Lehman Brothers Inc. 60,000 0
NationsBanc Montgomery Securities, Inc. 60,000 0
Oppenheimer & Co., Inc. 60,000 0
Prudential Securities Incorporated 60,000 0
Robertson, Stephens & Company, LLC 60,000 0
Wheat First Butcher Singer 60,000 0
Advest, Inc. 30,000 0
Fahnestock & Co. Inc. 30,000 0
Interstate/Johnson Lane Corporation 30,000 0
Janney Montgomery Scott Inc. 30,000 0
McDonald & Company Securities, Inc. 30,000 0
McGinn, Smith & Co., Inc. 30,000 0
Morgan Keegan & Company, Inc. 30,000 0
Piper Jaffray Inc. 30,000 0
Principal Financial Securities, Inc. 30,000 0
Rauscher Pierce Refsnes, Inc. 30,000 0
Raymond James & Associates, Inc. 30,000 0
Tucker Anthony Incorporated 30,000 0
U.S. Clearing Corp. 30,000 0
--------- -----
TOTAL 6,000,000 0
</TABLE>
-5-
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SHARES:
8% Series A Cumulative Redeemable Preferred Stock, par value $.01 per share,
liquidation preference $25.00 per share ("Preferred Stock").
TERMS OF PREFERRED STOCK:
As set forth in the Articles of Amendment to the Company's Articles of
Incorporation, a copy of which is attached hereto as Exhibit A.
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares: 6,000,000
Number of Optional Shares: 0
INITIAL OFFERING PRICE TO PUBLIC:
$25 per Share.
PURCHASE PRICE BY UNDERWRITERS:
$24.2125 per Share.
-6-
<PAGE>
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.
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 Preferred Stock or which are convertible
or exchangeable into securities which are substantially similar to the shares of
Preferred Stock, without the prior written consent of the Designated
Representatives.
TIME OF DELIVERY:
9:30 a.m. (New York City time), October 10, 1997.
CLOSING LOCATION:
The offices of Sullivan & Cromwell,
125 Broad Street, New York, New York 10004.
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<PAGE>
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Goldman, Sachs & Co.
A.G. Edwards & Sons, Inc.
Morgan Stanley & Co. Incorporated
The Robinson-Humphrey Company, LLC
Address for Notices:
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
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<PAGE>
Exhibit 3.1
FORM OF
ARTICLES OF AMENDMENT
OF
RESTATED ARTICLES OF INCORPORATION
OF
WEEKS CORPORATION
I.
The name of the corporation is Weeks Corporation (the "Corporation").
II.
The amendment (the "Amendment") is to add the following as a new Section
2.2.1 of the Corporation's Restated Articles of Incorporation, as amended (the
"Articles of Incorporation"), to determine the terms of a series of the
Preferred Stock. All capitalized terms used herein shall have the meanings
ascribed to them in the Articles of Incorporation.
"Section 2.2.1 8.00% Series A Cumulative Redeemable Preferred Stock.
-------------
(i) TITLE. The series of Preferred Stock is hereby designated as the
"8.00% Series A Cumulative Redeemable Preferred Stock" (the "Series A Preferred
Stock").
(ii) NUMBER. The maximum number of authorized shares of the Series A
Preferred Stock shall be 6,000,000.
(iii) RELATIVE SENIORITY. In respect of rights to receive dividends and
to participate in distributions of payments in the event of any liquidation,
dissolution or winding up of the Corporation, the Series A Preferred Stock shall
rank (a) senior to any class or series of Equity Stock of the Corporation
ranking, as to the payment of dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, junior to the Series A Preferred Stock
(collectively, "Junior Stock"), (b) senior to any class or series of Equity
Stock of the Corporation ranking, as to the payment of dividends and as to the
distribution of assets upon liquidation, dissolution or winding up, junior to
the Series A Preferred Stock (collectively, "Fully Junior Stock"), and (c) on a
parity with any class or series of Equity Stock of the Corporation ranking, as
to the payment of dividends and as to the distribution of assets upon
liquidation, dissolution or winding up, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per share thereof are
<PAGE>
different from those of the Series A Preferred Stock, if the holders of such
class or series of Equity Stock and the Series A Preferred Stock shall be
entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding up in proportion to their respective amounts
of accrued and unpaid dividends per share or liquidation preferences, without
preference or priority one over the other (collectively, "Parity Stock").
(iv) DIVIDENDS.
(A) The holders of the then outstanding Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available therefor, cumulative dividends at the rate of $2.00 per
share per year, payable in equal amounts of $0.50 per share quarterly in cash on
the last day of each January, April, July and October or, if not a Business Day
(as hereinafter defined), the next succeeding Business Day. Dividends shall
begin to accrue and shall be fully cumulative from the first date on which the
pertinent shares of the Series A Preferred Stock are issued and sold and shall
first be payable on October 31, 1997 (each such payment date being hereafter
called a "Quarterly Dividend Date" and each period ending on a Quarterly
Dividend Date being hereinafter called a "Dividend Period"). Dividends shall be
payable to holders of record as they appear in the share records of the
Corporation at the close of business on the applicable record date (the "Record
Date"), which shall be the 15th day of the calendar month in which the
applicable Quarterly Dividend Date falls on or such other date designated by the
Board of Directors of the Corporation for the payment of dividends that is not
more than 50 nor less than 10 days prior to such Quarterly Dividend Date. The
amount of any dividend payable for any Dividend Period shorter than a full
Dividend Period shall be prorated and computed on the basis of the actual number
of days in such period. Dividends paid on the Series A Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a per share basis among
all such shares at the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in New York City
are authorized or required by law, regulation or executive order to close.
(B) The amount of any dividends accrued on any Series A Preferred Stock
at any Quarterly Dividend Date shall be the amount of any unpaid dividends
accumulated thereon, to and including such Quarterly Dividend Date, whether or
not earned or declared, and the amount of dividends accrued on any shares of
Series A Preferred Stock at any date other than a Quarterly Dividend Date shall
be equal to the sum of the amount of any unpaid dividends accumulated thereon,
to and including the last preceding Quarterly Dividend Date, whether or not
earned or declared, plus an amount calculated on the basis of the annual
dividend rate of $2.00 per share for the period after such last preceding
Quarterly Dividend Date to and including the date as of which the calculation is
made based on the actual number of days in such period.
(C) Except as provided in this Section 2.2.1, the Series A Preferred
Stock will not be entitled to any dividends in excess of full cumulative
dividends as described above and shall not be
-2-
<PAGE>
entitled to participate in the earnings or assets of the Corporation, and no
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series A Preferred Stock which may be in
arrears.
(D) Any dividend payment made on the Series A Preferred Stock shall first
be credited against the earliest accrued but unpaid dividend due with respect to
such shares which remains payable.
(E) If, for any taxable year, the Corporation elects to designate as
"capital gain dividends" (as defined in Section 857 of the Code), any portion
(the "Capital Gains Amount") of the dividends paid or made available for the
year to holders of all classes of shares (the "Total Dividends"), then the
portion of the Capital Gains Amount that shall be allocated to the holders of
the Series A Preferred Stock shall equal (i) the Capital Gains Amount multiplied
by (ii) a fraction that is equal to (a) the total dividends paid or made
available to the holders of the Series A Preferred Stock for the year over (b)
the Total Dividends.
(F) No dividends on the Series A Preferred Stock shall be authorized by the
Board of Directors or be paid or set apart for payment by the Corporation at
such time as the terms and provisions of any agreement of the Corporation,
including any agreement relating to its indebtedness, prohibit such
authorization, payment or setting apart for payment or provide that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law. Notwithstanding the foregoing, dividends on
the Series A Preferred Stock will accrue whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment of
such dividends and whether or not such dividends are authorized.
(G) So long as any Series A Preferred Stock remain outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment on any class or series of Parity Stock
for any period unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Series A Preferred Stock for all Dividend
Periods terminating on or prior to the dividend payment date for such class or
series of Parity Stock. When dividends are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, all dividends declared upon
Series A Preferred Stock and all dividends declared upon any other class or
series of Parity Stock shall be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Series A Preferred Stock and
accumulated and unpaid on such Parity Stock.
(H) So long as any shares of Series A Preferred Stock remain outstanding,
no dividends (other than dividends or distributions paid solely in shares of, or
options, warrants or rights to subscribe for or purchase shares of, Fully Junior
Stock) shall be declared or paid or set apart for payment or other distribution
declared or made upon Junior Stock or Fully Junior Stock, nor shall any Junior
Stock or Fully Junior Stock be redeemed, purchased or otherwise acquired (other
than a redemption, purchase or other acquisition of shares of Common Stock made
for purposes of any
-3-
<PAGE>
employee incentive or benefit plan of the Corporation or any subsidiary) for any
consideration (or any monies be paid to or made available for a sinking fund for
the redemption of any such shares) by the Corporation, directly or indirectly
(except by conversion into or exchange for shares of Fully Junior Stock), unless
in each case (i) the full cumulative dividends on all outstanding shares of
Series A Preferred Stock and any other Parity Stock of the Corporation shall
have been or contemporaneously are declared and paid or declared and set apart
for payment for all past Dividend Periods with respect to the Series A Preferred
Stock and all past dividend periods with respect to such Parity Stock and (ii)
sufficient funds shall have been or contemporaneously are declared and paid or
declared and set apart for the payment of the dividend for the current Dividend
Period with respect to the Series A Preferred Stock and the current dividend
period with respect to such Parity Stock.
(v) LIQUIDATION RIGHTS.
(A) Upon the voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, the holders of the Series A Preferred Stock then
outstanding shall be entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its shareholders, before any payment
or distribution shall be made on any Junior Stock, the amount of $25.00 per
share, plus accrued and unpaid dividends thereon.
(B) After the payment to the holders of the Series A Preferred Stock of
the full preferential amounts provided for in this Section 2.2.1, any other
series or class of Junior Stock or Fully Junior Stock shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid, and the holders of the Series A
Preferred Stock, as such, shall have no right or claim to any of the remaining
assets of the Corporation.
(C) If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributable among the holders of the Series A Preferred Stock shall
be insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Parity Stock, then such
assets, or the proceeds thereof, shall be distributed among the holders of the
Series A Preferred Stock and any such other Parity Stock ratably in accordance
with the respective amounts that would be payable on such Series A Preferred
Stock and any such other Parity Stock if all amounts payable thereon were paid
in full.
(D) Neither a consolidation nor a merger of any other entity into or with
the Corporation, a statutory share exchange by the Corporation or a sale, lease,
transfer or conveyance of all or substantially all of the property or business
of the Corporation, shall be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Section 2.2.1.
(vi) REDEMPTION.
(A) OPTIONAL REDEMPTION. On and after October 10, 2002, the Corporation
may, at its option, redeem at any time all or, from time to time, any part of
the Series A Preferred Stock
-4-
<PAGE>
at a price per share (the "Redemption Price"), payable in cash, of $25.00,
together with all accrued and unpaid dividends to and including the date fixed
for redemption (the "Redemption Date"), without interest, to the full extent the
Company has funds legally available therefor. The Series A Preferred Stock shall
have no stated maturity and will not be subject to any sinking fund or mandatory
redemption provisions.
(B) PROCEDURES OF REDEMPTION.
(1) Notice of redemption will be given by publication in a
newspaper of general circulation in the City of New York, such publication
to be made once a week for two successive weeks commencing not less than 30
nor more than 90 days prior to the Redemption Date. Notice of any
redemption will also be mailed by the registrar, postage prepaid, not less
than 30 nor more than 90 days prior to the Redemption Date, addressed to
each holder of record of the Series A Preferred Stock to be redeemed at the
address set forth in the share transfer records of the registrar. Any
notice mailed in the manner provided herein shall be conclusively presumed
to have been given on the date mailed whether or not the holder received
the notice. No failure to give such notice or any defect therein or in the
mailing thereof shall affect the validity of the proceedings for the
redemption of any Series A Preferred Stock except as to the holder to whom
the Corporation has failed to give notice or except as to the holder to
whom notice was defective. In addition to any information required by law
or by the applicable rules of any exchange upon which Series A Preferred
Stock may be listed or admitted to trading, such notice shall state: (a)
the Redemption Date; (b) the Redemption Price; (c) the number of shares of
Series A Preferred Stock to be redeemed; (d) the place or places where
certificates for such shares are to be surrendered for payment of the
Redemption Price; and (e) that dividends on the shares to be redeemed will
cease to accumulate on the Redemption Date. If fewer than all of the shares
of Series A Preferred Stock held by any holder are to be redeemed, the
notice mailed to such holder shall also specify the number of shares of
Series A Preferred Stock to be redeemed from such holder.
(2) If notice has been mailed in accordance with subparagraph
(vi)(B)(1) above and provided that on or before the Redemption Date
specified in such notice all funds necessary for such redemption shall have
been irrevocably set aside by the Corporation, separate and apart from its
other funds in trust for the pro rata benefit of the holders of the Series
A Preferred Stock so called for redemption, so as to be, and to continue to
be available therefor, then, from and after the Redemption Date, dividends
on the Series A Preferred Stock so called for redemption shall cease to
accumulate, and said shares shall no longer be deemed to be outstanding and
shall not have the status of Series A Preferred Stock and all rights of the
holders thereof as shareholders of the Corporation (except the right to
receive the Redemption Price) shall cease. Upon surrender, in accordance
with such notice, of the certificates for any shares of Series A Preferred
Stock so redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state), such shares of
Series A Preferred Stock shall be redeemed by the Corporation at the
Redemption
-5-
<PAGE>
Price. In case fewer than all the shares of Series A Preferred Stock
represented by any such certificate are redeemed, a new certificate or
certificates shall be issued presenting the unredeemed shares of Series A
Preferred Stock without cost to the holder thereof.
(3) Any funds deposited with a bank or trust company for the
purpose of redeeming shares of Series A Preferred Stock shall be
irrevocably deposited except that:
(a) the Corporation shall be entitled to receive from such bank
or trust company the interest or other earnings, if any, earned on
any money so deposited in trust, and the holders of any shares
redeemed shall have no claim to such interest or other earnings; and
(b) any balance of monies so deposited by the Corporation and
unclaimed by the holders of the Series A Preferred Stock entitled
thereto at the expiration of two years from the applicable Redemption
Date shall be repaid, together with any interest or other earnings
earned thereon, to the Corporation, and after any such repayment, the
holders of the shares entitled to the funds so repaid to the
Corporation shall look only to the Corporation for payment without
interest or other earnings.
(4) No Series A Preferred Stock may be redeemed except from
proceeds from the sale of other capital stock of the Corporation, including
but not limited to common stock, preferred stock, depositary shares,
interests, participations or other ownership interests (however designated)
and any rights (other than debt securities convertible into or exchangeable
for equity securities) or options to purchase any of the foregoing.
(5) Unless full accumulated dividends on all Series A Preferred
Stock and any other class or series of Parity Stock shall have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for payment for all past Dividend Periods
and the then current Dividend Period, no Series A Preferred Stock or Parity
Stock shall be redeemed or purchased or otherwise acquired directly or
indirectly; provided, however, that the foregoing shall not prevent the
redemption of Series A Preferred Stock or Parity Stock to preserve the
Corporation's REIT status or the purchase or acquisition of Series A
Preferred Stock or Parity Stock pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of Series A
Preferred Stock or Parity Stock, as the case may be.
(6) If the Redemption Date is after a Record Date and before the
related Quarterly Dividend Date, the dividend payable on such Quarterly
Dividend Date shall be paid to the holder in whose name the shares of
Series A Preferred Stock to be redeemed are registered at the close of
business on such Record Date notwithstanding the redemption thereof between
such Record Date and the related Quarterly Dividend Date or the
Corporation's default in the payment of the dividend due. Except as
provided above, the Company will make no payment
-6-
<PAGE>
or allowance for unpaid dividends, whether or not in arrears, on Series A
Preferred Stock to be redeemed.
(7) In case of redemption of less than all of the Series A
Preferred Stock at the time outstanding, the shares of Series A Preferred
Stock to be redeemed shall be selected by the Corporation by lot or pro
rata from the holders of record of such shares in proportion to the number
of shares of Series A Preferred Stock held by such holders (with
adjustments to avoid redemption of fractional shares) or by any other
equitable method determined by the Corporation in its sole and absolute
discretion.
(vii) VOTING RIGHTS. Except as required by law, and as set forth below,
the holders of the Series A Preferred Stock shall not be entitled to vote at any
meeting of the shareholders of the Corporation for election of Directors or for
any other purpose or otherwise to participate in any action taken by the
Corporation or the shareholders thereof, or to receive notice of any meeting of
shareholders and the consent of the holders of the Series A Preferred Stock
shall not be required for the taking of any corporate action.
(A) If and whenever dividends payable on the Series A Preferred Stock or
any series or class of Parity Stock shall be in arrears for six consecutive
Dividend Periods, whether or not declared, the number of directors then
constituting the Board of Directors shall be increased by two, and the holders
of such Series A Preferred Stock, together with the holders of shares of every
other series of Parity Stock, voting together as a single class regardless of
series, shall be entitled to vote for the election of two additional directors
of the Corporation at any annual meeting of shareholders or special meeting held
in place thereof, or at a special meeting of the holders of the Series A
Preferred Stock and the Parity Stock called as hereinafter provided. Whenever
all arrears in dividends on the Series A Preferred Stock and the Parity Stock
then outstanding shall have been paid and dividends thereon for the current
Dividend Period shall have been paid or declared and set apart for payment, then
the right of the holders of the Series A Preferred Stock and the Parity Stock to
elect such additional two directors shall immediately cease (but subject always
to the same provision for the vesting of such voting rights in the case of any
similar future arrearages in six consecutive Dividend Periods), and the terms of
office of all persons elected as directors by the holders of the Series A
Preferred Stock and the Parity Stock shall immediately terminate and the number
of the Board of Directors shall be reduced accordingly.
(B) At any time after such voting rights shall have been so vested in
the holders of the Series A Preferred Stock and the Parity Stock, the secretary
of the Corporation may, and upon the written request of holders of record of at
least ten percent (10%) of the Series A Preferred Stock then outstanding
(addressed to the secretary at the principal office of the Corporation) shall,
call a special meeting of the holders of the Series A Preferred Stock and of the
Parity Stock for the election of the two directors to be elected by them as
herein provided, such call to be made by notice similar to that provided in the
Bylaws of the Corporation for a special meeting of the shareholders or as
required by law. If any such special meeting required to be called as provided
above shall not be called by the secretary within 20 days after receipt of any
such request, then any holder of Series A Preferred Stock
-7-
<PAGE>
may call such meeting, upon the notice provided above, and for that purpose
shall have access to the stock records of the Corporation. The directors elected
at any such special meeting shall hold office until the next annual meeting of
the shareholders or special meeting held in lieu thereof if such office shall
not have previously terminated as provided above. If any vacancy shall occur
among the directors elected by the holders of the Series A Preferred Stock and
the Parity Stock, a successor shall be elected by the Board of Directors, upon
the nomination of the then-remaining director elected by the holders of the
Series A Preferred Stock and the Parity Stock or the successor of such remaining
director, to serve until the next annual meeting of the shareholders or special
meeting held in place thereof if such office shall not have previously
terminated as provided above.
(C) So long as any shares of Series A Preferred Stock remain outstanding,
the Corporation will not, without the affirmative vote or consent of the holders
of at least two-thirds of the Series A Preferred Stock and the Parity Stock
outstanding at the time, acting as a single class regardless of series, given in
person or by proxy, either in writing or at a meeting,
(1) authorize or create, or increase the authorized or issued amount
of, any class or series of Equity Securities ranking prior to the Series A
Preferred Stock with respect to the payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up or
reclassify any authorized shares of the Corporation into such shares, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares; or
(2) amend, alter or repeal the provisions of the Articles of
Incorporation, including this Amendment, so as to materially and adversely
affect any right, preference, privilege or voting power of the Series A
Preferred Stock, the Parity Stock or the holders thereof; provided,
however, that the amendment of the provisions of the Articles of
Incorporation so as to authorize or create or to increase the authorized
amount of shares of any class of any Fully Junior Stock or Junior Stock
that are not senior in any respect to the Series A Preferred Stock, or any
shares of any class ranking on a parity with the Series A Preferred Stock
or the Parity Stock, shall not be deemed to adversely affect the rights,
preferences, privileges or voting power of the Series A Preferred Stock;
and provided further, however, that if any such amendment, alteration or
repeal would materially and adversely affect any right, preference,
privilege or voting power of the Series A Preferred Stock or another series
of Parity Stock that is not enjoyed by some or all of the other series
otherwise entitled to vote in accordance herewith, the affirmative vote of
at least two thirds of the votes entitled to be cast by the holders of all
series similarly affected, similarly given, shall be required in lieu of
the affirmative vote of at least two thirds of the votes entitled to be
cast by the holders of the Series A Preferred Stock and the Parity Stock
otherwise entitled to vote in accordance herewith; or
(3) effect or validate a share exchange that affects the Series A
Preferred Stock, a consolidation with or merger of the Corporation into
another entity, or a consolidation with or merger of another entity into
the Corporation, unless in each such case each share of Series
-8-
<PAGE>
A Preferred Stock (x) shall remain outstanding without a material and
adverse change to its terms and rights or (y) shall be converted into or
exchanged for preferred stock of the surviving entity having preferences,
voting powers, restrictions, limitations as to dividends, qualifications
and terms or conditions of redemption thereof identical to that of a share
of Series A Preferred Stock (except for changes that do not materially and
adversely affect the holders of the Series A Preferred Stock).
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of Series A Preferred Stock shall have been
redeemed or called for redemption and sufficient funds shall have been deposited
in trust to effect such redemption.
(D) On each matter submitted to a vote of the holders of Series A
Preferred Stock in accordance with this Section 2.2.1, or as otherwise required
by law, each share of Series A Preferred Stock shall be entitled to one vote.
With respect to each share of Series A Preferred Stock, the holder thereof may
designate a proxy, with each such proxy having the right to vote on behalf of
the holder.
(viii) RETIREMENT. Except as otherwise provided in the Articles of
Incorporation, all shares of Series A Preferred Stock which shall have been
issued and reacquired in any manner by the Corporation shall be restored to the
status of authorized but unissued shares of Preferred Stock, without designation
as to class or series.
(ix) CONVERSION. The shares of Series A Preferred Stock are not
convertible into or exchangeable for any other property or securities of the
Corporation.
(x) RECORD HOLDERS. The Corporation and the Corporation's transfer
agent may deem and treat the record holder of any shares of Series A Preferred
Stock as the true and lawful owner thereof for all purposes, and neither the
Corporation nor its transfer agent shall be affected by any notice to the
contrary.
III.
This Amendment was adopted by the Board of Directors on October 6, 1997.
IV.
This Amendment was duly adopted by the Board of Directors without
shareholder approval, as such approval was not required.
-9-
<PAGE>
IN WITNESS WHEREOF, Weeks Corporation has caused these Articles of
Amendment to be executed and sealed by its duly authorized officers this 7th day
of October, 1997.
WEEKS CORPORATION
By:
----------------------------------------
A. R. Weeks, Jr.
Chairman and Chief Executive Officer
[CORPORATE SEAL]
Attest:
By:
----------------------------------
Name: Elizabeth C. Belden
Title: Vice President and Secretary
-10-
<PAGE>
Exhibit 4.1
TEMPORARY CERTIFICATE--EXCHANGEABLE FOR DEFINITIVE ENGRAVED CERTIFICATE WHEN
READY FOR DELIVERY
- --------------------------------------------------------------------------------
NUMBER SHARES
WCA [LOGO OF WEEKS CORPORATION APPEARS HERE]
INCORPORATED UNDER THE LAWS OF THE STATE OF GEORGIA
8.00% SERIES A CUMULATIVE SEE REVERSE SIDE
REDEEMABLE PREFERRED STOCK CERTAIN RESTRICTIONS
ON TRANSFER
THIS CERTIFICATE IS TRANSFERABLE
IN THE CITIES OF NEW YORK, NY CUSIP 94856P 20 1
OR WINSTON-SALEM, NC
THIS IS TO CERTIFY THAT
is the
owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE 8.00% SERIES A CUMULATIVE REDEEMABLE
PREFERRED STOCK OF
Weeks Corporation transferable on the books of said Company in person
or by Attorney on the surrender of this certificate properly endorsed.
This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
Witness the seal of said Company and the signatures of its duly
authorized Officers.
Dated
/s/ [SIGNATURE APPEARS HERE] /s/ [SIGNATURE APPEARS HERE]
SECRETARY CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
COUNTERSIGNED AND REGISTERED:
WACHOVIA BANK, N.A.
(WINSTON-SALEM, NC) TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED SIGNATURE
- --------------------------------------------------------------------------------
<PAGE>
WEEKS CORPORATION
The Corporation's Articles of Amendment on file in the office of the Secretary
of State of Georgia set forth a full statement of the designations, preferences,
and other rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption, and other relative rights
of the shares of Preferred Stock represented by this certificate. The shares of
Preferred Stock represented by this certificate are subject to restrictions on
transfer for the purpose of the Corporation's maintenance of its status as a
real estate investment trust (a "REIT") under the Internal Revenue Code of 1986,
as amended (the "Code"). No Person (other than A.R. Weeks, Jr., entities
controlled by him, and certain members of his family not including his siblings)
may at any time (1) Beneficially Own shares of any class of Equity Stock in
excess of 7.5% (or such other percentage as may be determined by the Board of
Directors of the Corporation) of the total number of shares of such class of
Equity Stock outstanding as of such time; or (2) Beneficially Own Equity Stock
that would result in the Corporation being "closely held" under Section 856(h)
of the Code or otherwise failing to qualify as a REIT. In addition, the siblings
of A.R. Weeks, Jr. and certain members of their respective families (but not
including A.R. Weeks, Jr.) may not at any time Beneficially Own shares of any
class of Equity Stock in excess of 10% (or such other percentage as may be
determined by the Board of Directors of the Corporation with the consent of such
siblings) of the total number of shares of such class of Equity Stock
outstanding as of such time. In addition, A.R. Weeks, Jr., his siblings, and
certain members of their respective families may not at any time Beneficially
Own shares of any class of Equity Stock in excess of 19% (or such other
percentage as may be determined by the Board of Directors of the Corporation
with the consent of A.R. Weeks, Jr. and his siblings) of the total number of
shares of such class of Equity Stock outstanding as of such time. Any Person who
attempts to Beneficially Own shares of Equity Stock in excess of the above
limitations must immediately notify the Corporation in writing. If the
restrictions above are violated, the shares of Equity Stock represented will be
transferred automatically and by operation of law to a Trust and shall be
designated Shares-in-Trust. All capitalized terms in this legend have the
meanings defined in the Corporation's Amended and Restated Articles of
Incorporation, as the same may be further amended from time to time, a copy of
which, including the Articles of Amendment and the restrictions on transfer,
will be sent without charge to each shareholder who so requests.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- ____ Custodian ____
(Cust) (Minor)
TEN ENT -- as tenants by the entireties under Uniform Gifts to Minors
Act __________
JT TEN -- as joint tenants with right of (State)
survivorship and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
For value received, ____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------------
-------------------------------------------
------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
----------------------------------------------------------------------- shares
of the preferred stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
---------------------------------------------------------------------
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
----------------------
Signature(s) Guaranteed
----------------------------------------
Signature(s)
- ------------------------------------- ----------------------------------------
THE SIGNATURE(S) SHOULD BE NOTICE: THE SIGNATURE(S) ON THIS
GUARANTEED BY AN ELIGIBLE GUARANTOR ASSIGNMENT MUST CORRESPOND WITH THE
INSTITUTION, AS DEFINED IN RULE 17Ad- NAME(S) AS WRITTEN UPON THE FACE OF THE
15 UNDER THE SECURITIES AND EXCHANGE CERTIFICATE, IN EVERY PARTICULAR,
ACT OF 1934, AS AMENDED. WITHOUT ALTERATION OR ENLARGEMENT, OR
ANY CHANGE WHATEVER.
<PAGE>
EXHIBIT 5.1
October 9, 1997
Weeks Corporation
4497 Park Drive
Atlanta, Georgia 30093
Re: Weeks Corporation -- Registration Statement on Form S-3
Relating to 6,000,000 Shares of Preferred Stock
Ladies and Gentlemen:
We have acted as counsel for Weeks Corporation, a Georgia corporation (the
"Company"), in connection with the preparation of the Registration Statement on
Form S-3, File No. 333-32755 (the "Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to 6,000,000 shares of the Company's 8.00% Series A Cumulative
Redeemable Preferred Stock, par value $.01 per share (the "Shares"), to be sold
to the underwriters named in an Underwriting Agreement, the form of which has
been filed as an exhibit to the Registration Statement (the "Underwriting
Agreement").
In connection with this opinion, we have examined and relied upon such
records, documents, certificates and other instruments as in our judgment are
necessary or appropriate to form the basis for the opinions hereinafter set
forth. In all such examinations, we have assumed the genuineness of signatures
on original documents and the conformity to such original documents of all
copies submitted to us as certified, conformed or photographic copies, and as to
certificates of public officials, we have assumed the same to have been properly
given and to be accurate. As to matters of fact material to this opinion, we
have relied upon statements and representations of representatives of the
Company and of public officials.
The opinions expressed herein are limited in all respects to the federal
laws of the United States of America and the laws of the State of Georgia, and
no opinion is expressed with respect to the laws of any other jurisdiction or
any effect that such laws may have on the opinions expressed herein. This
opinion is limited to the matters stated herein, and no opinion is implied or
may be inferred beyond the matters expressly stated herein.
1
<PAGE>
Based upon and subject to the foregoing, we are of the opinion that:
(i) The Shares are duly authorized; and
(ii) Upon the issuance of the Shares against payment therefor as provided
in the Underwriting Agreement, the Shares will be validly issued, fully paid and
nonassessable.
This opinion is given as of the date hereof, and we assume no obligation to
advise you after the date hereof of facts or circumstances that come to our
attention or changes in law that occur which could affect the opinions contained
herein. This letter is being rendered solely for the benefit of the Company in
connection with the matters addressed herein. This opinion may not be furnished
to or relied upon by any person or entity for any purpose without our prior
written consent.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the references to us under the caption "Legal Matters" in the
Prospectus, which is a part of the Registration Statement, and under the caption
"Validity of Securities" in the Prospectus Supplement to the Prospectus.
Very truly yours,
2
<PAGE>
Exhibit 10.1
FORM 0F
-------
FIFTH AMENDMENT TO THE
----------------------
SECOND AMENDED AND RESTATED
---------------------------
AGREEMENT OF LIMITED PARTNERSHIP
--------------------------------
OF
--
WEEKS REALTY, L.P.
------------------
This Fifth Amendment to the Second Amended and Restated Agreement of
Limited Partnership of Weeks Realty, L.P. (this "Amendment") is entered into as
of October 7, 1997, by and between Weeks GP Holdings, Inc. (the "General
Partner") and Weeks LP Holdings, Inc. ("Weeks LP Holdings"). All capitalized
terms used herein shall have the meanings given to them in the Second Amended
and Restated Agreement of Limited Partnership of Weeks Realty, L.P., dated
October 30, 1996 (the "Partnership Agreement"), as amended by the First
Amendment to the Partnership Agreement dated November 1, 1996, the Second
Amendment to the Partnership Agreement dated December 31, 1996, the Third
Amendment to the Partnership Agreement dated January 31, 1997, and the Fourth
Amendment to the Partnership Agreement dated August 1, 1997.
WHEREAS, Weeks Corporation ("Weeks"), on even date herewith, has issued
6,000,000 shares of its 8.00% Series A Cumulative Redeemable Preferred Stock,
par value $0.01 per share, having a liquidation preference equivalent to $25.00
per share (the "Series A Preferred Stock"), and has sold such Series A Preferred
Stock in a public offering;
WHEREAS, Weeks has contributed to the capital of Weeks LP Holdings, Inc.
the proceeds received by Weeks from the issuance of the Series A Preferred
Stock;
WHEREAS, Weeks LP Holdings desires to contribute the net proceeds of the
sale of the Series A Preferred Stock to the Partnership in exchange for
partnership interests in the Partnership as set forth herein; and
WHEREAS, as provided in Section 9.3 of the Partnership Agreement, the
General Partner is authorized to cause the Partnership to issue additional
interests in the Partnership to Weeks LP Holdings in exchange for such
contribution.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
<PAGE>
Section 1. Contribution.
------------
Weeks LP Holdings hereby contributes to the Partnership the entire net
proceeds received from Weeks as a contribution to the capital of Weeks LP
Holdings in connection with the issuance of the Series A Preferred Stock. As
provided in Section 4.1 of the Partnership Agreement, Weeks LP Holdings shall be
deemed to have made a Capital Contribution to the Partnership in the amount of
the gross proceeds of such issuance, which is $150,000,000, and Weeks LP
Holdings shall be deemed simultaneously to have reimbursed Weeks, and the
Partnership shall be deemed simultaneously to have reimbursed Weeks LP Holdings
for the amount of the underwriter's discount and other costs incurred by Weeks
in connection with such issuance.
Section 2. Issuance of Series A Preferred Partnership Units.
------------------------------------------------
In consideration of the contribution to the Partnership made by Weeks LP
Holdings pursuant to Section 1 hereof, the Partnership hereby issues to Weeks LP
Holdings 8.00% Series A Preferred Partnership Units (as defined herein).
Section 3. Definitions.
-----------
In addition to those terms defined in the Partnership Agreement, the
following definitions shall be for all purposes, unless otherwise clearly
indicated to the contrary, inserted into the Partnership Agreement and applied
to the terms used in the Partnership Agreement and in this Amendment:
"Adjusted Capital Account Deficit" shall mean, with respect to any
--------------------------------
Partner, the deficit balance, if any, in such Partner's Capital Account as
of the end of any relevant fiscal year and after giving effect to the
following adjustments:
(a) credit to such Capital Account an amounts that such Partner
is obligated to restore with respect to any deficit balance in such
Capital Account pursuant to Section 8.7 hereof or is deemed to be
obligated to restore with respect to any deficit balance pursuant to
the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5)
of the Regulations; and
(b) debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
- - - -
"Common Partnership Unit" means a Partnership Unit that is not a
-----------------------
Preferred Partnership Unit.
"Liquidation Preference Amount" means, with respect to any Preferred
-----------------------------
Partnership Unit, the amount payable with respect to such Preferred
Partnership Unit (as established by the instrument designating such
Preferred Partnership Units) upon the voluntary or involuntary dissolution,
liquidation or winding up of the Partnership,
-2-
<PAGE>
or upon the earlier redemption of such Preferred Partnership Units, as the
case may be.
"Partner Nonrecourse Debt" shall have the meaning set forth in
------------------------
Regulations Section 1.704-2(b)(4).
"Partnership Year" means the fiscal year of the Partnership, which
----------------
shall be the calendar year.
"Preferred Partnership Unit" means any Partnership Unit issued from
--------------------------
time to time pursuant to Section 9.3 hereof that is designated by the
General Partner at the time of its issuance as a Preferred Partnership
Unit. Each Preferred Partnership Unit shall have such designation,
preferences and relative, participating, optional or other special rights,
powers and duties, including rights, powers and duties senior to the
Partnership Interests of the Limited Partners and Common Partnership Units,
all as shall be determined by the General Partner subject to the
requirements of Section 9.3 hereof.
"Series A Preferred Partnership Unit" means a Partnership Unit issued
-----------------------------------
by the Partnership to Weeks LP Holdings in consideration of the
contribution by Weeks LP Holdings to the Partnership of the entire net
proceeds received by Weeks LP Holdings as a contribution to the capital of
Weeks LP Holdings by Weeks of the proceeds from the issuance of the Series
A Preferred Stock by Weeks. The Series A Preferred Partnership Units shall
constitute Preferred Partnership Units. The Series A Preferred Partnership
Units shall have the voting powers, designation, preferences and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions as are set forth in Exhibit R, attached hereto.
---------
It is the intention of the General Partner, in establishing the Series A
Preferred Partnership Units, that each Series A Preferred Partnership Unit
shall be substantially the economic equivalent of a share of Series A
Preferred Stock.
"Series A Preferred Stock" means the 8.00% Series A Cumulative
------------------------
Redeemable Preferred Stock, par value $0.01 per share, having a liquidation
preference equivalent to $25.00 per share, issued by Weeks.
In addition, the definitions of "Majority Interest of the Limited Partners,"
"Partnership Unit," and "Partnership Interest" appearing in Article 1 of the
Partnership Agreement are hereby deleted in their entirety and the following
definitions are inserted in their place:
" Majority-In-Interest of the Limited Partners" shall mean Limited
---------------------------------------------
Partner(s) (other than Weeks LP Holdings and other than the General Partner
in its capacity, if any, as a Limited Partner) who hold in the aggregate
more than fifty percent (50%) of the Percentage Interests of the Common
Partnership Units then allocable to and
-3-
<PAGE>
held by the Limited Partners (other than Weeks LP Holdings and other than
the General Partner in its capacity, if any, as a Limited Partner), as a
class.
"Partnership Unit" shall mean a share of the Partnership Interests of
----------------
all Partners. The allocation of Partnership Units to each Partner, after
giving effect to (a) Weeks' holding part of its Partnership Units as the
general partner of the Partnership and part of its Partnership Units as a
Limited Partner, and (b) the transfer by Weeks of all of its Partnership
Units to the General Partner and to Weeks LP Holdings as contemplated
hereby (collectively, the "Reorganization"), and the total number of Units
--------------
allocated to all of the Partners, are as set forth on the attached Exhibit
-------
A-1. The ownership of Partnership Units may be evidenced by such form of
---
certificate as the General Partner approves from time to time, and any such
certificate shall bear a legend that shall state that the Partnership Units
represented thereby are subject to the provisions hereof, shall refer
specifically to the transfer restrictions contained herein and (if the
holder thereof is a Manager) to the provision of Article XII hereof, and
shall otherwise have such form and content as the General Partner shall
determine. Without limitation of the authority of the General Partner as
set forth in Section 9.3 hereof, the General Partner may designate any
Partnership Units, when issued, as Common Partnership Units or as Preferred
Partnership Units, may establish any other class of Partnership Units, and
may designate one or more series of any class of Partnership Units. [At the
date hereof, each Partnership Unit represents a ._________% Percentage
Interest.]
"Percentage Interest" means, as to a Partner, with respect to any
-------------------
class of Partnership Units held by such Partner, its interest in such class
of Partnership Units as determined by dividing the number of Partnership
Units in such class owned by such Partner by the total number of
Partnership Units in such class then outstanding.
Section 4. Allocations and Other Tax and Accounting Matters.
------------------------------------------------
(a) Exhibit F to the Partnership Agreement is hereby deleted in its
---------
entirety and Exhibit F attached hereto is hereby inserted in its place.
---------
(b) Section 6.2 of the Partnership Agreement is hereby deleted in its
entirety and the following new Section 6.2 is inserted in its place:
"6.2 Distributions. The General Partner shall cause the Partnership
-------------
to distribute all or a portion of Net Operating Cash Flow to the Partners
from time to time as determined by the General Partner, but in any event
not less frequently than quarterly, in the following order of priority:
(i) First, to the holders of the Preferred Partnership Units in such
amount as is required for the Partnership to pay all distributions
with respect to such Preferred Partnership
-4-
<PAGE>
Units due or payable in accordance with the instruments designating
such Preferred Partnership Units through the last day of such quarter;
such distributions shall be made to such Partners in such order of
priority and with such preferences as have been established with
respect to such Preferred Partnership Units as of the last day of such
calendar quarter; and then
(ii) To the Partners in proportion to their respective Percentage Interests
in Common Partnership Units on such Partnership Record Date;
provided, however, that all such distributions shall be made pro rata in
--- ----
accordance with the then outstanding Percentage Interests of each class of
Partnership Units to those Partners who are Partners as of the Partnership
Record Date for the quarter or other fiscal period with respect to which
such distribution is made. Notwithstanding the foregoing, the General
Partner shall cause the Partnership to distribute sufficient amounts to
enable the General Partner and Weeks LP Holdings to distribute to Weeks
sufficient amounts to enable Weeks to pay shareholder dividends that will
(a) satisfy the requirements for qualifying as a REIT under the Code and
Regulations ("REIT Requirements"), and (b) avoid any federal income or
excise tax liability of Weeks; provided, however, that the General Partner
may in its sole discretion from time to time elect not to cause the
Partnership to distribute sufficient amounts to enable Weeks to pay
shareholder dividends that will avoid any federal income or excise tax
liability of Weeks so long as to do so would not be disadvantageous to the
Limited Partners. Except as set forth in the immediately preceding
sentence, nothing contained herein shall require the General Partner to
cause the Partnership to distribute any particular portion of Net Operating
Cash Flow. The Partners acknowledge that the Partnership expects in the
future to undertake the construction and development of Properties, to
acquire additional Properties and interests in Investment Entities through
purchase for cash, debt and equity securities, issuance of indebtedness,
merger or other means, to make other investments utilizing, inter alia, the
----- ----
Receipts of the Partnership, and to establish reserves for the purpose of
making such future expenditures, thereby reducing the amounts of Net
Operating Cash Flow that otherwise would be available for distribution to
the Partners.
Notwithstanding anything to the contrary herein, in no event shall any
Partner receive a distribution of Net Operating Cash Flow with respect to
any Common Partnership Unit with respect to any quarter until such time as
the Partnership has distributed to the holders of the Preferred Partnership
Units an amount sufficient to pay all distributions payable with respect to
such Preferred Partnership Units through the last day of such quarter, in
accordance with the instruments designating such Preferred Partnership
Units."
Section 5. Exhibits to Partnership Agreement.
---------------------------------
The General Partner shall maintain the information set forth in Exhibit A
---------
to the Partnership Agreement, as such information shall change from time to
time, in such form as the General Partner deems appropriate for the conduct of
the Partnership affairs, and Exhibit A shall be deemed amended
---------
-5-
<PAGE>
from time to time to reflect the information so maintained by the General
Partner, whether or not a formal amendment to the Partnership Agreement has been
executed amending such Exhibit A. In addition to the issuance of Series A
---------
Preferred Partnership Units to Weeks LP Holdings pursuant to this Amendment,
such information shall reflect (and Exhibit A shall be deemed amended from time
---------
to time to reflect) the issuance of any additional Partnership Units to Weeks LP
Holdings or any other Person, the transfer of Partnership Units and the
redemption of any Partnership Units, all as contemplated herein.
-6-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed the Amendment under
seal as of the date first written above.
GENERAL PARTNER:
WEEKS GP HOLDINGS, INC.,
a Georgia corporation
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
LIMITED PARTNER:
WEEKS LP HOLDINGS, INC.,
a Georgia corporation
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
-7-
<PAGE>
EXHIBIT F
---------
WEEKS REALTY, L.P.
ALLOCATIONS
Section 1. Allocation of Net Income and Net Loss.
-------------------------------------
(a) Net Income. After giving effect to the special allocations set
----------
forth in Section 2 hereof, Net Income for any fiscal year or other
applicable period shall be allocated in the following manner and order of
priority:
(1) To the General Partner until the cumulative allocations of Net
Income under this Section 1(a)(1) equal the cumulative Net Losses
allocated to the General Partner under Section 1(b)(5) hereof.
(2) To those Partners who have received allocations of Net Loss
under Section 1(b)(4) hereof until the cumulative allocations of
Net Income under this Section 1(a)(2) equal such cumulative
allocations of Net Loss (such allocation of Net Income to be in
proportion to the cumulative allocations of Net Loss under such
section to each such Partner).
(3) To the General Partner until the cumulative allocations of Net
Income under this Section 1(a)(3) equal the cumulative allocations
of Net Loss to the General Partner under Section 1(b)(3) hereof.
(4) To those Partners who have received allocations of Net Loss
under Section 1(b)(2) hereof until the cumulative allocations of
Net Income under this Section 1(a)(4) equal such cumulative
allocations of Net Loss (such allocation of Net Income to be in
proportion to the cumulative allocations of Net Loss under such
section to each such Partner).
(5) To the Partners until the cumulative allocations of Net Income
under this Section 1(a)(5) equal the cumulative allocations of Net
Loss to such Partners under Section 1(b)(1) hereof (such allocation
of Net Income to be in proportion to the cumulative allocations of
Net Loss under such section to each such Partner).
(6) Any remaining Net Income shall be allocated to the Partners who
hold Common Partnership Units in proportion to their respective
Percentage Interests as holders of Common Partnership Units.
F-1
<PAGE>
(b) Net Losses. After giving effect to the special allocations set
-----------
forth in Section 2 hereof, Net Losses shall be allocated to the Partners as
follows:
(1) To the Partners who hold Common Partnership Units in accordance
with their respective Percentage Interests as holders of Common
Partnership Units, except as otherwise provided in this Section
1(b).
(2) To the extent that an allocation of Net Loss under Section
1(b)(1) would cause a Partner to have an Adjusted Capital Account
Deficit at the end of such taxable year (or increase any existing
Adjusted Capital Account Deficit of such Partner), such Net Loss
shall instead be allocated to those Partners, if any, for whom such
allocation of Net Loss would not cause or increase an Adjusted
Capital Account Deficit. Solely for purposes of this Section
1(b)(2), the Adjusted Capital Account Deficit, in the case of Weeks
LP Holdings, shall be determined without regard to the amount
credited to Weeks LP Holdings' Capital Account for the aggregate
Liquidation Preference Amount attributable to Weeks LP Holdings'
Preferred Partnership Units, and in the case of a Principal or a
Principal-Controlled Partnership, shall be determined without
regard to such Partner's deficit Capital Account restoration
obligation under Section 8.7(b) of the Partnership Agreement. The
Net Loss allocated under this Section 1(b)(2) shall be allocated
among the Partners who may receive such allocation in proportion to
their respective Percentage Interests in Common Partnership Units.
(3) Any remaining Net Loss shall be allocated to the General
Partner to the extent that such allocation of Net Loss would not
cause or increase an Adjusted Capital Account Deficit of the
General Partner.
(4) Any remaining Net Loss shall be allocated to the Principals and
the Principal-Controlled Partnerships in accordance with their
respective Percentage Interests in Common Partnership Units;
provided that if, after the death of a Principal, the estate of
-------------
such Principal or any Principal-Controlled Partnership with respect
to such Principal elects pursuant to Section 8.7(c) of the
Partnership Agreement to eliminate or reduce its deficit Capital
Account restoration obligation under Section 8.7(b) of the
Partnership Agreement, Net Losses shall not be allocated to such
Partner to the extent that such allocation would cause such Partner
to have an Adjusted Capital Account Deficit (or would increase any
existing Adjusted Capital Account Deficit of such Partner) as of
the end of such taxable year, and instead shall be allocated to
those Principals and Principal-Controlled Partnerships as to whom
the foregoing limitation does not apply.
(5) Any remaining Net Loss shall be allocated to the General
Partner.
Section 2. Special Allocations. Notwithstanding any provisions of paragraph 1
-------------------
of this Exhibit F, the following special allocations shall be made in the
following order:
F-2
<PAGE>
(a) Minimum Gain Chargeback (Nonrecourse Liabilities). If there is a net
-------------------------------------------------
decrease in Partnership Minimum Gain for any Partnership fiscal year (except as
a result of certain conversions or refinancings of Partnership indebtedness,
certain capital contributions, or certain revaluations of Property as further
outlined in Regulation Sections 1.704-2(d)(4), (f)(2) or (f)(3)), each Partner
shall be specially allocated items of Partnership income and gain for such year
(and, if necessary, subsequent years) in an amount equal to that Partner's share
of the net decrease in Partnership Minimum Gain. The items to be so allocated
shall be determined in accordance with Regulation Section 1.704-2(f). This
paragraph (a) is intended to comply with the minimum gain chargeback requirement
in said section of the Regulations and shall be interpreted consistently
therewith. Allocations pursuant to this paragraph (a) shall be made in
proportion to the respective amounts required to be allocated to each Partner
pursuant hereto.
(b) Minimum Gain Attributable to Partner Nonrecourse Debt. If there is a
-----------------------------------------------------
net decrease in Minimum Gain Attributable to Partner Nonrecourse Debt during any
fiscal year (other than due to the conversion, refinancing or other change in
the debt instrument causing it to become partially or wholly nonrecourse,
certain capital contributions, or certain revaluations of Property as further
outlined in Regulation Section 1.704-2(i)(4)), each Partner shall be specially
allocated items of Partnership income and gain for such year (and, if necessary,
subsequent years) in an amount equal to that Partner's share of the net decrease
in the Minimum Gain Attributable to Partner Nonrecourse Debt. The items to be
so allocated shall be determined in accordance with Regulation Sections 1.704-
2(i)(4) and (j)(2). This paragraph (b) is intended to comply with the minimum
gain chargeback requirement with respect to Partner Nonrecourse Debt contained
in said sections of the Regulations and shall be interpreted consistently
therewith. Allocations pursuant to this paragraph (b) shall be made in
proportion to the respective amounts required to be allocated to each Partner
pursuant hereto.
(c) Qualified Income Offset. In the event any Partner unexpectedly
-----------------------
receives any adjustments, allocations or distributions described in Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), and such Partner has an Adjusted
- - - -
Capital Account Deficit, items of Partnership income and gain shall be specially
allocated to such Partner in an amount and manner sufficient to eliminate the
Adjusted Capital Account Deficit as quickly as possible. This paragraph (c) is
intended to constitute a "qualified income offset" under Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
-
(d) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or
----------------------
other applicable period shall be allocated to the Partners in accordance with
their respective Percentage Interests in Common Partnership Units.
(e) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any
------------------------------
fiscal year or other applicable period shall be specially allocated to the
Partner that bears the economic risk of loss for the debt in respect of which
such Partner Nonrecourse Deductions are attributable (as determined under
Regulation Section 1.704-2(b)(4) and (i)(1)).
F-3
<PAGE>
(f) Curative Allocations. The Regulatory Allocations (as hereinafter
--------------------
defined) shall be taken into account in allocating other items of income, gain,
loss, and deduction among the Partners so that, to the extent possible, the
cumulative net amount of allocations of Partnership items under paragraphs 1 and
2 of this Exhibit F shall be equal to the net amount that would have been
allocated to each Partner if the Regulatory Allocations had not occurred. This
paragraph (f) is intended to minimize to the extent possible and to the extent
necessary any economic distortions which may result from application of the
Regulatory Allocations and shall be interpreted in a manner consistent
therewith. For purposes hereof, "Regulatory Allocations" shall mean all the
allocations provided under this paragraph 2 other than this paragraph (f).
(g) Priority Allocation With Respect To Preferred Partnership Units. All
---------------------------------------------------------------
or a portion of the remaining items of Partnership gross income or gain for the
Partnership Year, if any, shall be specifically allocated to Weeks LP Holdings
in an amount equal to the excess, if any, of the cumulative distributions
received by Weeks LP Holdings pursuant to Section 6.2(i) of the Partnership
Agreement, as amended, for the current Partnership Year and all prior
Partnership Years (other than any distributions that are treated as being in
satisfaction of the Liquidation Preference Amount for any Preferred Partnership
Units) over the cumulative allocations of Partnership gross income and gain to
Weeks LP Holdings under this Section 2(g) for all prior Partnership Years.
Section 3. Tax Allocations.
----------------
(a) Generally. Subject to paragraphs (b) and (c) hereof, items of income,
---------
gain, loss, deduction and credit to be allocated for income tax purposes
(collectively, "Tax Items") shall be allocated among the Partners on the same
basis as their respective book items.
(b) Sections 1245/1250 Recapture. If any portion of gain from the sale of
----------------------------
property is treated as gain which is ordinary income by virtue of the
application of Code Sections 1245 or 1250 ("Affected Gain"), then (A) such
Affected Gain shall be allocated among the Partners in the same proportion that
the depreciation and amortization deductions giving rise to the Affected Gain
were allocated and (B) other Tax Items of gain of the same character that would
have been recognized, but for the application of Code Sections 1245 and/or 1250,
shall be allocated away from those Partners who are allocated Affected Gain
pursuant to Clause (A) so that, to the extent possible, the other Partners are
allocated the same amount, and type, of capital gain that would have been
allocated to them had Code Sections 1245 and/or 1250 not applied. For purposes
hereof, in order to determine the proportionate allocations of depreciation and
amortization deductions for each fiscal year or other applicable period, such
deductions shall be deemed allocated on the same basis as Net Income and Net
Loss for such respective period.
(c) Allocations Respecting Section 704(c) and Revaluations.
------------------------------------------------------
Notwithstanding paragraph (b) hereof, Tax Items with respect to Property that is
subject to Code Section 704(c) and/or Regulation Section 1.704-1(b)(2)(iv)(f)
-
(collectively "Section 704(c) Tax Items") shall be allocated in accordance with
said Code section and/or Regulation Section 1.704-1(b)(4)(i), as the case may
be. Specifically, the allocation of all Section 704(c) Tax Items shall be made
in accordance with the
F-4
<PAGE>
"traditional method" set forth in Regulation Section 1.704-3(b)(1) and thus
shall be subject to the ceiling rule stated in said section of the Regulations.
F-5
<PAGE>
EXHIBIT R
---------
WEEKS REALTY, L.P.
DESIGNATION OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS AND QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS
The following are the terms of the Series A Preferred Partnership Units
established pursuant to this Amendment:
1. NUMBER. The maximum number of authorized units of the Series A
Preferred Partnership Units shall be 6,000,000.
2. RELATIVE SENIORITY. In respect of rights to receive quarterly
distributions and to participate in distributions of payments in the event of
any liquidation, dissolution or winding up of the Partnership, the Series A
Preferred Partnership Units shall rank (a) senior to any class or series of
Partnership Units of the Partnership ranking, as to the payment of quarterly
distributions or as to the distribution of assets upon liquidation, dissolution
or winding up, junior to the Series A Preferred Partnership Units (collectively,
"Junior Partnership Units"), (b) senior to any class or series of Partnership
Units of the Partnership ranking, as to the payment of quarterly distributions
and as to the distribution of assets upon liquidation, dissolution or winding
up, junior to the Series A Preferred Partnership Units (collectively, "Fully
Junior Partnership Units"), and (c) on a parity with any class or series of
Partnership Units of the Partnership ranking, as to the payment of quarterly
distributions and as to the distribution of assets upon liquidation, dissolution
or winding up, whether or not the quarterly distribution rates, quarterly
distribution payment dates or redemption or liquidation prices per unit thereof
are different from those of the Series A Preferred Partnership Units, if the
holders of such class or series of Partnership Units and the Series A Preferred
Partnership Units shall be entitled to the receipt of quarterly distributions
and of amounts distributable upon liquidation, dissolution or winding up in
proportion to their respective amounts of accrued and unpaid quarterly
distributions per unit or liquidation preferences, without preference or
priority one over the other (collectively, "Parity Partnership Units").
3. QUARTERLY DISTRIBUTIONS.
a. The holders of the then outstanding Series A Preferred Partnership
Units shall be entitled to receive, when, as and if declared by the General
Partner out of funds legally available therefor, cumulative quarterly
distributions at the rate of $2.00 per unit per year, payable in equal
amounts of $0.50 per unit quarterly in cash on the last day of each
January, April, July and October or, if not a Business Day (as hereinafter
defined), the next succeeding Business Day. Quarterly distributions shall
begin to accrue and shall be fully cumulative from the first date on which
the pertinent units of the Series A Preferred Partnership Units are
R-1
<PAGE>
issued and sold and shall first be payable on October 31, 1997 (each such
payment date being hereafter called a "Quarterly Distribution Date" and each
period ending on a Quarterly Distribution Date being hereinafter called a
"Quarterly Distribution Period"). Quarterly distributions shall be payable to
holders of record as they appear in the records of the Partnership at the close
of business on the applicable record date (the "Record Date"), which shall be
the 15th day of the calendar month in which the applicable Quarterly
Distribution Date falls on or such other date designated by the General Partner
for the payment of quarterly distributions that is not more than 50 nor less
than 10 days prior to such Quarterly Distribution Date. The amount of any
quarterly distribution payable for any Quarterly Distribution Period shorter
than a full Quarterly Distribution Period shall be prorated and computed on the
basis of the actual number of days in such period. Quarterly distributions paid
on the Series A Preferred Partnership Units in an amount less than the total
amount of such quarterly distributions at the time accrued and payable on such
units shall be allocated pro rata on a per unit basis among all such units at
the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
b. The amount of any quarterly distributions accrued on any Series A
Preferred Partnership Units at any Quarterly Distribution Date shall be the
amount of any unpaid quarterly distributions accumulated thereon, to and
including such Quarterly Distribution Date, whether or not earned or declared,
and the amount of quarterly distributions accrued on any Series A Preferred
Partnership Units at any date other than a Quarterly Distribution Date shall be
equal to the sum of the amount of any unpaid quarterly distributions accumulated
thereon, to and including the last preceding Quarterly Distribution Date,
whether or not earned or declared, plus an amount calculated on the basis of the
annual quarterly distribution rate of $2.00 per unit for the period after such
last preceding Quarterly Distribution Date to and including the date as of which
the calculation is made based on the actual number of days in such period.
c. Except as provided herein, the Series A Preferred Partnership Units
will not be entitled to any quarterly distributions in excess of full cumulative
quarterly distributions as described above and shall not be entitled to
participate in the earnings or assets of the Partnership, and no interest, or
sum of money in lieu of interest, shall be payable in respect of any quarterly
distribution payment or payments on the Series A Preferred Partnership Units
which may be in arrears.
d. Any quarterly distribution payment made on the Series A Preferred
Partnership Units shall first be credited against the earliest accrued but
unpaid quarterly distribution due with respect to such units which remains
payable.
R-2
<PAGE>
e. No quarterly distributions on the Series A Preferred Partnership
Units shall be authorized by the General Partner or be paid or set apart for
payment by the Partnership at such time as the terms and provisions of any
agreement of the Partnership, including any agreement relating to its
indebtedness, prohibit such authorization, payment or setting apart for payment
or provide that such authorization, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such authorization or
payment shall be restricted or prohibited by law. Notwithstanding the
foregoing, quarterly distributions on the Series A Preferred Partnership Units
will accrue whether or not the Partnership has earnings, whether or not there
are funds legally available for the payment of such quarterly distributions and
whether or not such quarterly distributions are authorized.
f. So long as any Series A Preferred Partnership Units remain
outstanding, no quarterly distributions, except as described in the immediately
following sentence, shall be declared or paid or set apart for payment on any
class or series of Parity Units for any period unless full cumulative quarterly
distributions have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on the
Series A Preferred Partnership Units for all Quarterly Distribution Periods
terminating on or prior to the quarterly distribution payment date for such
class or series of Parity Units. When quarterly distributions are not paid in
full or a sum sufficient for such payment is not set apart, as aforesaid, all
quarterly distributions declared upon Series A Preferred Partnership Units and
all quarterly distributions declared upon any other class or series of Parity
Units shall be declared ratably in proportion to the respective amounts of
quarterly distributions accumulated and unpaid on the Series A Preferred
Partnership Units and accumulated and unpaid on such Parity Units.
g. So long as any Series A Preferred Partnership Units remain
outstanding, no quarterly distributions (other than quarterly distributions or
distributions paid solely in units of, or options, warrants or rights to
subscribe for or purchase, Fully Junior Units) shall be declared or paid or set
apart for payment or other distribution declared or made upon Junior Units or
Fully Junior Units, nor shall any Junior Units or Fully Junior Units be
redeemed, purchased or otherwise acquired (other than a redemption, purchase or
other acquisition of Common Units made for purposes of any employee incentive or
benefit plan of the Partnership or any subsidiary) for any consideration (or any
monies be paid to or made available for a sinking fund for the redemption of any
such units) by the Partnership, directly or indirectly (except by conversion
into or exchange for Fully Junior Units), unless in each case (i) the full
cumulative quarterly distributions on all outstanding Series A Preferred
Partnership Units and any other Parity Units of the Partnership shall have been
or contemporaneously are declared and paid or declared and set apart for payment
for all past Quarterly Distribution Periods with respect to the Series A
Preferred Partnership Units and all past quarterly distribution periods with
respect to such Parity Units and (ii) sufficient funds shall have been or
contemporaneously are declared and paid or declared and set apart for the
payment of the quarterly distribution for the current Quarterly Distribution
Period with
R-3
<PAGE>
respect to the Series A Preferred Partnership Units and the current quarterly
distribution period with respect to such Parity Units.
4. LIQUIDATION RIGHTS.
a. Upon the voluntary or involuntary liquidation, dissolution or winding
up of the Partnership, the holders of the Series A Preferred Partnership Units
then outstanding shall be entitled to receive and to be paid out of the assets
of the Partnership available for distribution to its Partners, before any
payment or distribution shall be made on any Junior Units, the amount of $25.00
per unit, plus accrued and unpaid quarterly distributions thereon.
b. After the payment to the holders of the Series A Preferred Partnership
Units of the full preferential amounts provided for herein, any other series or
class of Junior Units or Fully Junior Units shall, subject to the respective
terms and provisions (if any) applying thereto, be entitled to receive any and
all assets remaining to be paid, and the holders of the Series A Preferred
Partnership Units, as such, shall have no right or claim to any of the remaining
assets of the Partnership.
c. If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Partnership, the assets of the Partnership, or proceeds
thereof, distributable among the holders of the Series A Preferred Partnership
Units shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other units of any class or series of Parity Units,
then such assets, or the proceeds thereof, shall be distributed among the
holders of the Series A Preferred Partnership Units and any such other Parity
Units ratably in accordance with the respective amounts that would be payable on
such Series A Preferred Partnership Units and any such other Parity Units if all
amounts payable thereon were paid in full.
d. Neither a consolidation nor a merger of any other entity into or with
the Partnership or a sale, lease, transfer or conveyance of all or substantially
all of the property or business of the Partnership, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes hereof.
5. REDEMPTION.
a. OPTIONAL REDEMPTION. On and after October 10, 2002, the Partnership
may, at its option, redeem at any time all or, from time to time, any part of
the Series A Preferred Partnership Units at a price per unit, payable in cash,
of $25.00, together with all accrued and unpaid quarterly distributions to and
including the date fixed for redemption, without interest, to the full extent
the Company has funds legally available therefor. The Series A Preferred
Partnership Units shall have no stated maturity and will not be subject to any
sinking fund or mandatory redemption provisions.
R-4
<PAGE>
b. PROCEDURES OF REDEMPTION.
(1) At any time that Weeks exercises its right to redeem all or any of
the shares of Series A Preferred Stock, the General Partner shall exercise
its right to cause the Partnership to redeem an equal number of Series A
Preferred Partnership Units in the manner set forth herein.
(2) No Series A Preferred Partnership Units may be redeemed except
from proceeds from the sale of capital stock of Weeks, including but not
limited to common stock, preferred stock, depositary shares, interests,
participations or other ownership interests (however designated) and any
rights (other than debt securities convertible into or exchangeable for
equity securities) or options to purchase any of the foregoing. The
proceeds from such sale of such equity securities shall be contributed to
the General Partner or Weeks LP Holdings (as determined by the General
Partner in its sole discretion, and the General Partner and/or Weeks LP
Holdings (as applicable) shall contribute to the capital of the Partnership
the proceeds of the sale of such equity securities pursuant to the
requirements of Section 4.3(b) of the Partnership Agreement.
6. VOTING RIGHTS. Except as required by law, Weeks LP Holdings, in its
capacity as the holder of Series A Preferred Partnership Units, shall not be
entitled to vote at any meeting of the Partners or for any other purpose or
otherwise to participate in any action taken by the Partnership or the Partners,
or to receive notice of any meeting of the Partners.
7. CONVERSION. The Series A Preferred Partnership Units are not
convertible into or exchangeable for any other property or securities of the
Partnership.
8. RESTRICTIONS ON OWNERSHIP. The Series A Preferred Partnership Units
shall be owned and held solely by Weeks LP Holdings.
9. GENERAL. The rights of Weeks LP Holdings, in its capacity as holder of
the Series A Preferred Partnership Units, are in addition to and not in
limitation on any other rights or authority of Weeks LP Holdings, in any other
capacity, under the Partnership Agreement. In addition, nothing contained herein
shall be deemed to limit or otherwise restrict any rights or authority of Weeks
LP Holdings under the Partnership Agreement, other than in its capacity as the
holder of the Series A Preferred Partnership Units.
R-5
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports dated September 8, 1997 and to all references to our
Firm, included in Weeks Realty, L.P.'s Current Report on Form 8-K dated October
3, 1997, and filed on October 7, 1997, into the Operating Partnership's
previously filed Registration Statement on Form S-3 (File No. 333-32755).
/s/ Arthur Andersen LLP
Atlanta, Georgia
October 7, 1997
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports dated September 8, 1997 and to all references to our
Firm, included in Weeks Corporation's Current Report on Form 8-K dated October
3, 1997, and filed on October 6, 1997, into the Company's previously filed
Registration Statements on Form S-3 (File No. 33-96534), Form S-3 (File No.
333-1106), Form S-3 (File No. 333-32755), Form S-8 (File No. 333-1108) and Form
S-8 (File No. 333-18305).
/s/ Arthur Andersen LLP
Atlanta, Georgia
October 7, 1997
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports dated February 21, 1997 included in Weeks Corporation's
Annual Report on Form 10-K for the year ended December 31, 1996, as amended by
Form 10-K/A-2, our reports dated February 21, 1997 included in Weeks Realty,
L.P.'s Registration Statement on Form 10 dated August 1, 1997 and filed on
August 4, 1997, as amended by Pre-Effective Amendment No. 3, our report dated
September 24, 1996 included in the Company's Current Report on Form 8-K dated
November 5, 1996 and filed on November 6, 1996, and to all references to our
firm included in Weeks Corporation's registration statement on Form S-3 (File
No. 333-32755).
/s/ Arthur Andersen LLP
Atlanta, Georgia
October 7, 1997
