<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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): January 9, 1998
WEEKS REALTY, L.P.
(Exact name of registrant as specified in its charter)
Georgia 000-22933 58-2121388
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(State of (Commission File (IRS Employer
Incorporation) Number) Identification No.)
4497 Park Drive, Norcross, Georgia 30093
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(Address of principal executive offices, including zip code)
(770)923-4076
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(Registrant's telephone number, including area code)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On January 9, 1998, Weeks Realty, L.P., (the "Operating Partnership"), a
majority owned subsidiary of Weeks Corporation (the "Company"), closed an
acquisition of approximately 2.3 million square feet of office, industrial and
retail properties and 4.77 acres of land subject to four ground leases located
in Miami, Florida (referred to herein as the "Beacon Centre Acquisition
Properties"). The acquisition was consummated pursuant to the Contribution
Agreement dated January 2, 1998 by and among the Company and the Operating
Partnership and Armando Codina, Codina Family Investments, Ltd., Codina West
Dade Development Corporation, The Benenson Capital Company, Raha Associates,
Inc., Laurence Tisch, Preston Tisch, Raha Associates II, Inc., and Codina West
Dade Development Corporation No.5 (the "Contributors"). As part of the
transaction, Armando Codina will join the Company's Board of Directors.
Total acquisition consideration was approximately $175 million, including
closing costs and acquisition expenses, and consisted of 928,570 units of
limited partnership interest in Weeks Realty, L.P. ("Units") having an aggregate
value of approximately $28.3 million based on the $30.4875 average share trading
price of the Company's common stock for the 20 trading days immediately
preceding the date on which the parties agreed to the letter of intent relating
to the acquisition (November 21, 1997); the assumption of mortgage indebtedness
of approximately $78.2 million with an interest rate of 8.59%, maturing in the
year 2010; the assumption of certain other liabilities in excess of other assets
of approximately $4.2 million; and cash of approximately $64.3 million. The
final acquisition price is subject to adjustment based upon an audit of the
other assets and other liabilities included in the transaction. The cash
portion of the acquisition price was financed through borrowings under the
Operating Partnership's line of credit facility with Wachovia Bank, N.A., as
agent. The 272,566 Units issued to Armando Codina and affiliated entities are
subject to a registration rights and lock-up agreement which restricts the
conversion of the Units into shares of Company common stock and resale of such
shares until the earlier of the date on which Armando Codina's term as a
Director expires if he is not re-elected to the Board of Directors of the
Company or January 9, 2001. The Company has agreed, upon expiration of the
lock-up, to file a shelf registration statement under the federal securities
laws to register the resale of the shares of Company common stock issuable upon
conversion of these Units. The 656,004 Units issued to the remaining
Contributors are not subject to a lock-up agreement and the resale of the
shares of Company common stock issuable upon conversion of these Units will be
registered under the federal securities laws pursuant to a shelf registration
statement.
The Beacon Centre Acquisition Properties consist of 24 business distribution,
business service, office and retail buildings totaling 2,268,346 square feet of
leasable space and four ground leases. The land and buildings are located on
contiguous sites approximately two miles west of the Miami International Airport
in the Airport West industrial submarket of Dade County, Florida. The buildings
were constructed between 1989 and 1997. The land and buildings are leased to a
number of tenants and the buildings were approximately 99% occupied at December
31, 1997. The Operating Partnership expects to continue to operate the
properties as business distribution, business service, office and retail
buildings held for lease to tenants and the buildings
<PAGE>
will be managed on behalf of the Operating Partnership by Codina Group, Inc., a
Miami, Florida based real estate services company wholly owned by Armando
Codina. As previously announced, the Operating Partnership, through an
affiliated third-party service corporation, and St. Joe Corporation each has
agreed to acquire a one-third interest in Codina Group, Inc.
In addition, the Operating Partnership is obligated to acquire one additional
building under construction at Beacon Centre totaling 90,000 square feet on the
earlier of the building's stabilization date, as defined, or March 31, 1999, at
an acquisition price equal to the greater of $4.8 million or net operating
income, as defined, divided by a capitalization rate of 8.7%. Additionally, the
Contributors have an option to put to the Operating Partnership 8.4 acres of
undeveloped land at Beacon Centre during a 180 day period beginning 18 months
from January 9, 1998 for aggregate consideration of $4 million.
<PAGE>
The following table sets forth certain information concerning the Beacon Centre
Acquisition Properties:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
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Property Square 12/31/97 Year
Property Type(1) Feet Occupancy Constructed
- -------------------------------------------------------------------------------
Buildings
2001-2023 NW 84th Avenue D 104,188 100.0% 1992
1701-1729 NW 84th Avenue D 114,682 100.0% 1992
1601-1629 NW 84th Avenue D 114,032 100.0% 1993
1401-1419 NW 84th Avenue D 86,677 100.0% 1995
2000 NW 84th Avenue D 118,897 100.0% 1989
1850 NW 84th Avenue D 97,830 100.0% 1989
8401 NW 17th Street D 37,116 100.0% 1993
8400-8416 NW 17th Street D 75,430 100.0% 1991
1600-1616 NW 84th Avenue D 75,430 100.0% 1992
1900-1924 NW 84th Avenue S 35,226 100.0% 1990
8491 NW 17th Street S 35,170 100.0% 1990
2101-2119 NW 84th Avenue D 78,673 100.0% 1989
2200 NW 84th Avenue S 30,381 100.0% 1990
2250 NW 84th Avenue S 35,584 100.0% 1994
8530 NW 23rd Street D 93,152 100.0% 1994
2105-2153 NW 86th Avenue D 91,406 100.0% 1993
8501 NW 17th Street D 214,644 100.0% 1995
8500 NW 17th Street D 78,671 100.0% 1995
8550 NW 17th Street D 74,842 100.0% 1995
8400 NW 25th Street D 178,709 91.4% 1996
1701-2085 NW 87th Avenue D 226,734 100.0% 1995
8600 NW 17th Street O 63,240 100.0% 1997
8575 NW 13th Terrace R 87,005 100.0% 1993
8323 NW 12th Street O/R 120,627 97.8% 1991
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2,268,346 99.2%
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</TABLE>
Ground Leases
1695 NW 87th Avenue GL
8696 NW 13th Terrace GL
8695 NW 13th Terrace GL
8695 NW 12th Street GL
(1) D = business distribution; S = business service; O = suburban office; R =
retail; GL = ground lease.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business Acquired.
The audited historical financial statements of the Beacon Centre
Acquisition Properties required by this Item 7(a)(3) are not currently
available. Such financial statements will be filed as soon as practicable
and in no event later than 60 days after the date this Current Report is
required to be filed.
(b) Pro Forma Financial Information.
The pro forma financial information required by this Item 7(b) is not
currently available. Such pro forma financial information will be filed as
soon as practicable and in no event later than 60 days after the date this
Current Report is required to be filed.
(c) Exhibits.
Exhibit # Description
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2.1 Beacon Centre Contribution Agreement dated January 2, 1998 by and
between Armando Codina, Codina West Dade Development Corporation,
Codina Family Investments, Ltd., The Benenson Capital Company,
Raha Associates, Inc., Laurence Tisch, Preston Tisch, Raha
Associates II, Inc., Codina West Dade Development Corporation
No. 5, and Weeks Realty, L.P., and Weeks Corporation.
10.1 Eighth Amendment to the Second Amended and Restated Agreement of
Limited Partnership of Weeks Realty, L.P. dated January 9, 1998.
10.2 Registration Rights Agreement dated January 9, 1998 by and among
Weeks Corporation and The Benenson Capital Company, Raha
Associates, Inc., Laurence Tisch and Preston Tisch.
10.3 Registration Rights and Lock-up Agreement dated January 9, 1998
by and among Weeks Corporation and Armando Codina, Codina Family
Investments, Ltd., and Codina West Dade Development Corporation.
<PAGE>
SIGNATURES
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 hereunto duly authorized.
WEEKS CORPORATION
Registrant
Date: January 23, 1998 /s/David P. Stockert
------------------------------
David P. Stockert
Senior Vice President and
Chief Financial Officer
<PAGE>
Exhibit Index
Exhibit Description
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2.1 Beacon Centre Contribution Agreement dated January 2, 1998 by
and between Armando Codina, Codina West Dade Development
Corporation, Codina Family Investments, Ltd., The Benenson
Capital Company, Raha Associates, Inc., Laurence Tisch, Preston
Tisch, Raha Associates II, Inc., Codina West Dade Development
Corporation No. 5, and Weeks Realty, L.P., and Weeks
Corporation.
10.1 Eighth Amendment to the Second Amended and Restated Agreement of
Limited Partnership of Weeks Realty, L.P. dated January 9, 1998.
10.2 Registration Rights Agreement dated January 9, 1998 by and among
Weeks Corporation and The Benenson Capital Company, Raha
Associates, Inc., Laurence Tisch and Preston Tisch.
10.3 Registration Rights and Lock-up Agreement dated January 9, 1998
by and among Weeks Corporation and Armando Codina, Codina Family
Investments, Ltd., and Codina West Dade Development Corporation.
<PAGE>
EXHIBIT 2.1
THIS BEACON CENTRE CONTRIBUTION AGREEMENT ("Agreement") is made as of this 2nd
day of January, 1998, by and between Armando Codina, Codina West Dade
Development Corporation, a Florida Corporation (together, "Codina"), Codina
Family Investments, Ltd., a Florida limited partnership ("CFI"), The Benenson
Capital Company, a New York general partnership, Raha Associates, Inc., a
Florida corporation (together, "Benenson"), Laurence Tisch, Preston Tisch
(together, "Tisch" and with Codina, CFI and Benenson, "Contributors" and each, a
"Contributor"), Raha Associates II, Inc., a Florida corporation (the "Raha II
Corporation"), Codina West Dade Development Corporation No. 5, a Florida
corporation (the "Codina No. 5 Corporation"), Weeks Realty, L.P., a Georgia
limited partnership ("Acquirer") and Weeks Corporation, a Georgia corporation
(for the purpose set forth below).
WITNESSETH:
In consideration of TEN DOLLARS and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and the mutual
covenants and agreements set forth herein, the parties hereto do hereby agree as
follows:
1. Contribution.
------------
1.1. Contribution of Partnership Interests. Codina agrees to contribute
-------------------------------------
and assign to Acquirer and Acquirer agrees to acquire and accept
subject to and in accordance with the terms and conditions stated
herein, all of Codina's right, title and interest in and to
Codina/Tradewind, Ltd. a Florida limited partnership (the "CT
Partnership Interest"). Codina and CFI agree to contribute and assign
to Acquirer and Acquirer agrees to acquire and accept subject to and
in accordance with the terms and conditions stated herein all of their
rights, title and interests in Codina/Tradewind No. 4 Ltd., a Florida
limited partnership (the "CT No. 4 Partnership Interest" and together
with the CT Partnership Interest, the "Codina Partnership Interests").
Benenson and Tisch agree to contribute and assign to Acquirer and
Acquirer agrees to acquire and accept subject to and in accordance
with the terms and conditions stated herein, all of their rights,
title and interests in and to Raha Associates, Ltd. a Florida limited
partnership (the "Raha Partnership Interests" and, together with the
Codina Partnership Interests, the "Partnership Interests").
1.2. Weeks Affiliates. Acquirer may designate an affiliate to acquire any
----------------
portion of the Partnership Interests, provided that Acquirer shall
remain liable for all of its obligations under this Agreement.
2. Consideration.
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<PAGE>
2.1. Total Consideration. The total consideration from Acquirer in
-------------------
respect of the contribution of the Partnership Interests is the sum of
ONE HUNDRED SEVENTY THREE MILLION, SEVEN HUNDRED THOUSAND AND NO/100
DOLLARS ($173,700,000) (the "Acquisition Consideration"). The
Acquisition Consideration shall be paid in the manner set forth below
in this Section 2.
2.2. Assumption and Repayment of Loans. Acquirer shall assume (subject to
---------------------------------
the existing exculpatory provisions) or take subject to, as New York
Life Insurance Company agrees, the existing first mortgage loans with
New York Life Insurance Company and will at Closing (as defined in
Section 8.1 hereof) repay at par the existing construction and partner
loans (which amounts and obligors are set forth in Schedule A hereto).
The aggregate amount of the principal and accrued interest of the
loans as set forth on Schedule A hereto shall be paid by Acquirer at
Closing and credited against the Acquisition Consideration and
Contributors shall be entitled to the release of, or credit for, any
escrows in respect of such loans to the extent such escrows are not
included in Current Assets pursuant to the balance sheet adjustment to
be made pursuant to Section 2.4 hereof. Acquirer hereby indemnifies
Contributors against any and all claims, losses and liabilities under
the assumed, or taken subject to, New York Life Insurance Company
loans, arising on or after the Closing date.
2.3. Net Equity. The remaining balance of the Acquisition Consideration,
----------
after the assumption (or taking subject to) or repayment of debt,
shall be paid, on the date of Closing, in the combination of cash and
common units of limited partnership interest of Acquirer having the
terms described in Section 3 hereof ("Common Units") as set forth in
Schedule B hereto provided, however, that there will be no fractional
Common Units, and any fractions will be paid in cash. This amount
shall be increased or decreased, as appropriate, by the consideration
adjustment which shall be calculated pursuant to and in the manner set
forth in Section 2.4 hereof.
2.4. Acquisition Consideration Adjustment. The Acquisition Consideration
------------------------------------
shall be (i) increased by the amount by which the combined Current
Assets of New World Partners Joint Venture, New World Partners Joint
Venture Number Two, New World Partners Joint Venture Number Three and
New World Partners Joint Venture Number Four (such partnerships
collectively, the "New World Partnerships") exceed the combined
Current Liabilities of the New World Partnerships at the date of
Closing or (ii) decreased by the amount by which the combined Current
Liabilities of the New World Partnerships exceed the combined Current
Assets of the New World Partnerships at the date of Closing. The
Current Assets and Current Liabilities shall be determined in
accordance with generally accepted
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<PAGE>
accounting principles with the following modifications: (i) the
current portion of any liability, and any accrued interest on any
liability, which is paid or assumed pursuant to Section 2.2 hereof
shall not be included in Current Liabilities, (ii) a current liability
shall be accrued for any assessment liens which are certified, or the
work for which has been substantially completed, as of the date of
Closing, (iii) a liability shall be accrued for leasing commissions
and unfunded tenant improvements (including the completion of building
#38 - the Office Max building) which will become payable under an
existing lease of a portion of the Property (however, a liability
shall not be accrued for leasing commissions which may become payable
in the event a lease is renewed, extended or expanded, or some other
option under a lease is exercised, in the future), (iv) no liability
shall be accrued, and Contributors shall be reimbursed for any amounts
expended which do not constitute Current Assets, for obligations or
payments to tenants or to others arising from leases executed after
November 17, 1997, provided, however, that Acquirer shall have
approved any such leases, (v) liability for the sales tax assessment
proposed by the Florida Department of Revenue shall not be accrued nor
shall escrows in respect thereof be included in Current Assets, and
(vi) any liability directly attributable to the Properties which would
have been assumed and not prorated or adjusted if Acquirer had
purchased the Properties directly and not through a contribution of
partnership interests shall not be accrued. The adjustment provided
for in this Section shall be made at Closing based upon the December
31, 1997, consolidated Balance Sheet of the New World Partnerships,
provided that if a consolidated Balance Sheet for the New World
Partnerships with a date closer to the date of the Closing can be
produced, such consolidated Balance Sheet shall be utilized. Within 30
days after the final audit, but in no event later than 12 months after
the date of the Closing, the adjustment provided for in this Section
shall be brought forward to the date of the Closing with such final
adjustments as can be made with information available during this
period. If the parties are unable to agree upon the final adjustment,
the matter shall be submitted to a nationally recognized firm of
certified public accountants reasonably acceptable to the parties and
such firm's determination shall be final and binding on the parties.
The terms "Property" and "Properties" as used in this Agreement shall
refer to the real property owned by the New World Partnerships as set
forth in Schedule I hereto.
3. Common Units.
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<PAGE>
3.1. Common Unit Value. Common Unit value, computed as the average
-----------------
closing price for Weeks' common stock for the 20 trading days
immediately preceding the signing of the Term Sheet, November 21,
1997, is $30.4875. The Common Units will rank pari passu with and be
entitled to the same rights (including, the right to distributions) as
all of the units held by the general partner and its affiliates (other
than the Preferred Partnership Units), as set forth in the amendment
to Acquirer's partnership agreement in the form attached hereto as
Exhibit B. Contributors shall have the right to convert each Unit
into one share of Weeks Corporation Common Stock subject to the terms
of the anti dilution provisions, including the anti dilution
Conversion Factor, of the rights terms (the "Rights Terms") attached
as Exhibit A hereto, and subject to Acquirer's right to instead pay
the cash equivalent thereof.
3.2. Amendment to Partnership Agreement. Acquirer shall amend its
----------------------------------
partnership agreement to admit Contributors as limited partners
pursuant to an amendment in the form attached hereto as Exhibit B.
3.3. Restrictions on Common Units Issued to Codina and CFI. Common Units
-----------------------------------------------------
issued to Codina and CFI will be transferrable subject to the
restrictions on transfer contained in the last two sentences of
Section 9.2 and Section 9.4 of Acquirer's partnership agreement, and,
notwithstanding the foregoing, such Common Units will be restricted
from sale, conversion or transfer until the earlier to occur of (i)
three months from the date of Closing if Codina has not been appointed
to Weeks Corporation's Board of Directors within such three month
period, (ii) if Codina is appointed to the Weeks Corporation Board of
Directors, the date that his term as a Director expires if he is not
re-elected to the Board of Directors, (iii) the death of Codina or
(iv) three years from the date of Closing (such date, the "Expiration
Date"), except for transfers to Codina family members and trusts for
the benefit of Codina family members and to entities entirely owned by
any combination of the foregoing. Such Common Units will be
convertible from time to time in accordance with the Rights Terms at
the holders' option from and after the Expiration Date into common
stock of Weeks Corporation, which may be sold pursuant to a resale
shelf registration statement, or, at the election of Acquirer (after a
holder exercises its conversion option), into the cash equivalent of
such stock.
3.4. Restrictions on Common Units Issued to Tisch and Benenson. Common
---------------------------------------------------------
Units issued to Tisch and Benenson will be transferrable subject to
the restrictions on transfer contained in the last two sentences of
section 9.2 and Section 9.4 of Acquirer's partnership agreement, and
will be convertible from time to time in accordance with the Rights
Terms at the holders' option exercisable at any time into common stock
of Weeks Corporation
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<PAGE>
which may be sold pursuant to a resale shelf registration statement,
or, at the election of Acquirer (after the holder exercises its
conversion option), into the cash equivalent of such stock.
3.5. Registration of Shares. Pursuant to, and as more particularly set
----------------------
forth in, the Registration Rights Agreement attached hereto as Exhibit
C, Weeks Corporation shall file a shelf registration statement with
the SEC for the shares into which such Common Units are convertible
within 10 business days after the date of Closing for Tisch and
Benenson and within 10 business days after the Expiration Date for
Codina and CFI. Weeks Corporation shall at its sole cost and expense
(i) use its best efforts to have each such shelf registration declared
effective as soon as possible, (ii) notify the respective Contributors
immediately upon receiving notice that each such shelf has been
declared effective, (iii) use its best efforts to keep each such shelf
effective for so long as is necessary to permit resales by Tisch,
Benenson, CFI and Codina, as appropriate, and (iv) take any and all
actions reasonably necessary and appropriate to enable Tisch,
Benenson, CFI and Codina to resell such shares pursuant to the
appropriate shelf registration statements.
4. Covenants.
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4.1. Lock-Up of Properties. Acquirer shall not sell or in any way
---------------------
transfer (as distinguished from any financing thereof, which is
expressly hereby permitted) any of the partnership interests or
properties owned directly or indirectly by the partnerships whose
interests are being contributed in a manner that would cause a gain to
be recognized to any Contributor for U.S. federal income tax purposes
for a period of 60 months from the date of Closing. The foregoing
notwithstanding, neither the involuntary foreclosure or any conveyance
in lieu thereof of the New York Life Insurance Company loans nor the
sale of the Properties as part of a sale of all or substantially all
of Acquirer's assets shall constitute a violation of this covenant.
4.2. Capital Account Revaluation and Gain Allocation. Acquirer shall, in
-----------------------------------------------
connection with the contribution of the contributed interests
hereunder, revalue its property and increase or decrease the capital
accounts of its preexisting partners to reflect such revaluation in
accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f) and
Acquirer shall comply with the requirements of Treasury Regulation
Section 1.704-1(b)(2)(iv)(f)(1)-(5). Acquirer agrees to use the
"traditional" method described in Treasury Regulation Section 1.704-
3(b) in allocating income, gain, loss or deduction with respect to the
contributed interests pursuant to Section 704(c) of the Internal
Revenue Code.
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<PAGE>
4.3. Final Tax Returns. Contributors shall at their sole expense cause
-----------------
1997 and 1998 (through the Closing) federal and state, if applicable,
tax returns to be filed for the New World Partnerships,
Codina/Tradewind, Ltd., Codina/Tradewind No. 4, Ltd. and Raha
Associates, Ltd., and Contributors shall at their sole expense cause
all federal and state, if applicable, tax returns to be filed for New
World Partners Joint Venture Number Five, Raha Associates II, Ltd. and
Codina/Tradewind No. 5, Ltd. through the closing of that contribution
pursuant to Section 5.1 hereof.
4.4. Continued Operation of the Properties. From the date hereof until
-------------------------------------
the date of Closing, Contributors shall continue to operate the
Properties in the ordinary course of their business and consistent
with their current business practices and policies, and Contributors
shall not sign any new leases or material agreements without the prior
consent of Acquirer, which consent shall not be unreasonably withheld
or delayed.
4.5. Exclusive Dealing. From the date hereof until the date of Closing,
-----------------
Contributors shall not market, encumber, convey, negotiate to convey
or commit to convey all or any portion of the Properties to any third
party.
4.6. Administrative Proceeding in respect of the Pre Closing Period.
--------------------------------------------------------------
Contributors shall be entitled to any refund received from the
government and any payments made by the tenants, including release of
the tenant escrows, with regard to the sales and use tax deficiency
asserted against New World Partners Joint Venture, New World Partners
Joint Venture Number Two and New World Partners Joint Venture Number
Three by the Florida Department of Revenue which is currently the
subject matter of that certain administrative proceeding pending
before the State of Florida Division of Administrative Hearings (and
will return such tenant escrows to the tenants as appropriate), and
Contributors shall have sole control of, (and Acquirer may at its own
cost participate as an observer in), (i) the proceeding and (ii) any
settlement or disposition of the government's claim; provided,
Contributors shall have no authority to settle such claim in any
manner that subjects Acquirer or any of the New World Partnerships to
such liability in respect of the pre Closing period unless
Contributors indemnify Acquirer for such liability. The foregoing
notwithstanding, Acquirer shall employ all reasonable good faith
efforts to collect such liability from the tenants, provided that it
shall not be obligated to unreasonably jeopardize its tenant
relations. Contributors shall severally and not jointly indemnify
Acquirer for any liability arising from such sales tax liability
related to the subject matter of the proceeding, to the extent such
liability is attributable to payments during the period
-6-
<PAGE>
prior to the date of Closing and not funded through reimbursements
received from the tenants.
5. Other Transactions Involving the Parties.
----------------------------------------
5.1. Building #13. Contributors, the Raha II Corporation and the Codina
------------
No. 5 Corporation shall have the obligation on the Building No. 13
Valuation Date (as defined in Schedule C hereto) to sell, and Acquirer
shall have the obligation to acquire, the partnership interests of
Raha Associates II, Ltd. and Codina/Tradewind No. 5, Ltd., which own
New World Partners Joint Venture Number Five, which owns the real
estate set forth in Schedule D hereto (building #13, which shall have
been constructed and completed substantially in accordance with the
plans and specifications set forth in Schedule E hereto), to Acquirer
for a minimum consideration of $4.8 million. The actual consideration
(which will be paid in cash) will be calculated based on a
capitalization rate of 8.7% on the Net Operating Income (as defined in
Schedule C hereto). Notwithstanding the foregoing, in no event shall
the consideration required to be paid by Acquirer be less than $4.8
million, provided that the consideration shall be adjusted if
necessary pursuant to Section 2.4 hereof (other than clauses (iii),
(iv) and (v)), calculated effective as of the Building No. 13
Valuation Date and, with respect to the second clause (i) of Section
2.4, calculated with respect to the debt relating to building #13.
Such consideration shall be allocated among Contributors in the manner
set forth in Schedule F hereto. All of the covenants set forth in
Section 4 hereof (other than Sections 4.1, 4.2, 4.4 and 4.6), the
representations, warranties and indemnities set forth in Section 6
hereof, the closing ("closing" in this context refers to the closing
of the sale contemplated in this Section 5.1) conditions set forth in
Section 7 hereof (other than Sections 7.2.3 and 7.3), the closing
costs set forth in Section 8.3 (other than Section 8.3.2), the closing
documents set forth in Sections 8.4.1 and 8.4.5 and the additional
miscellaneous covenants set forth in Section 10 hereof shall apply,
mutatis mutandis, to such contribution.
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5.2. Plots #31, #32 and #42. Tisch and Benenson shall have the right
----------------------
exercisable for a period of 180 days after the date which is 18 months
from the Closing date, to contribute by limited warranty deed good and
marketable fee simple title to plots #31, #32 and #42, the legal
description of which are described in Schedule K hereto, to Acquirer,
subject only to the Permitted Exceptions set forth on Schedule L
hereto and such other matters affecting title occurring after December
1, 1997 as shall reasonably be approved by Acquirer, for a total
consideration value of $4 million, with $550,000 of such amount
allocated to plot #42 and the
-7-
<PAGE>
remaining $3.45 million allocated to plots #31 and #32, provided that
in each case the vested development rights described in Schedule G
hereto are in force and Tisch and Benenson shall not have applied for
any zoning changes without Acquirer's prior consent, which consent
shall not be unreasonably withheld. Such consideration shall be paid
in any combination of cash and/or Common Units, as specified by Tisch
and/or Benenson on the date of the put. For the purposes of this
section, Unit value will be computed as the average closing price for
Weeks' common stock for the 20 trading days immediately preceding the
exercise of the put (as to all other terms, the Common Units will be
identical to those described in Section 3 hereof). If a portion of
plots #31 and #32 is sold, then the price to be paid by Acquirer upon
exercise of the put by Tisch and Benenson shall be reduced using the
per square foot values included in the conceptual site plan attached
as Exhibit D, provided that the remaining land that is to be put to
Acquirer is reasonably commercially developable and is a separate
subdivision or subdivisions. If any dispute arises over whether such
remaining land is commercially developable, the parties agree to
negotiate in good faith to resolve such dispute, and if the parties
are unable to resolve the dispute on their own, each party agrees to
submit such dispute to expedited binding arbitration in accordance
with the rules of the American Arbitration Association. All of the
representations, warranties and indemnities set forth in Section 6
hereof, the closing ("closing" in this context refers to the land
transaction contemplated in this Section 5.2) conditions set forth in
Section 7 hereof (other than Sections 7.2.3 and 7.3), the closing
costs set forth in Section 8.3 hereof (other than Section 8.3.2) and
the additional miscellaneous covenants set forth in Section 10 hereof
shall apply, mutatis mutandis, to such contribution. Ad valorem
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property taxes and other revenues and expenses of, and impounds,
repayments, or other deposits affecting or related to, plots
#31, #32 and #42 (excluding insurance costs and premiums) will be
prorated as of 12:00 a.m. on the closing date. Special assessment
liens certified, or for which the work has been substantially
completed, as of the closing date will be paid by Tisch and Benenson.
Tisch and Benenson will pay the cost of documentary tax stamps and
documentary surtax stamps required to be affixed to the deed of
conveyance. At the closing of the sale of any, all or portions of
plots #31, #32 and #42, Tisch and Benenson shall deliver such
affidavit(s) or certification(s) as reasonably may be required to
induce the title agent and/or underwriter to issue the owner's title
insurance policy insuring such plots.
5.3. Building #7. If building #7 is sold to the tenant, pursuant to its
-----------
exercise prior to the date hereof of its existing option to purchase,
before March 2, 1998, an adjustment will be made to reflect the
amount, if any, by which
-8-
<PAGE>
$4 million exceeds the net sale proceeds derived from the sale to such
tenant after deduction for brokerage commission, if any, incurred by
Acquirer in connection with such sale, provided, however, that such
adjustment shall not exceed $500,000. Such adjustment shall be
credited against the anticipated consideration from Acquirer in
respect of the contribution of the partnership interests of Raha
Associates II, Ltd. and Codina/Tradewind No. 5, Ltd. pursuant to
Section 5.1 hereof.
5.4. Building #15. If building #15 is sold to the tenant, pursuant to its
------------
exercise prior to the date hereof of its existing option to purchase,
before November 1, 1998, an adjustment will be made to reflect the
amount, if any, by which $2,700,000 exceeds the net sale proceeds
derived from the sale to such tenant after deduction for brokerage
commission, if any, incurred by Acquirer in connection with such sale,
provided, however, that such adjustment shall not exceed $193,431. If
such sale occurs prior to the contribution of the partnership
interests of Raha Associates II, Ltd. and Codina/Tradewind No. 5, Ltd.
pursuant to Section 5.1 hereof, such adjustment shall be credited
against the anticipated consideration from Acquirer in respect of such
contribution, otherwise Contributors shall severally indemnify
Acquirer for this adjustment.
5.5. Master Leases. The existing arrangements on the space vacated early
-------------
by Emery Worldwide, Inc., in building #1, with Beacon Industrial Park
Joint Venture, and on the space to be vacated early by Ingram Micro,
Inc., in building #18, with Beacon at 97th Joint Venture, will remain
in effect.
6. Representations, Warranties and Indemnities.
-------------------------------------------
6.1. Acquirer. Acquirer represents and warrants to Contributors, as of
--------
the date of this Agreement and as of the Closing, that:
6.1.1. Acquirer is a duly organized validly existing limited
partnership, is properly treated as a partnership for tax
purposes, and has full power and authority to enter into this
Agreement with Contributors and to perform all of Acquirer's
obligations hereunder and no additional consents or approvals
are required for the consummation of the transactions
contemplated hereunder, other than the registration of the
shares into which the Common Units are convertible, which
Weeks Corporation shall use its best efforts to accomplish
pursuant to Section 3.5 hereof.
6.1.2. The Common Units which Contributors will receive at Closing
will, at Closing, be validly and duly issued, fully paid, non-
-9-
<PAGE>
assessable and free of all liens and encumbrances and this
Agreement, the Second Amended and Restated Agreement of
Limited Partnership of Weeks Realty, L.P. as amended, and the
option to convert the Common Units into validly issued, fully
paid, non-assessable and unencumbered shares of Weeks
Corporation or cash will at Closing be enforceable in
accordance with their terms.
6.1.3. SEC Documents. Acquirer and Weeks Corporation have filed all
-------------
material reports, schedules, forms, statements and other
documents required to be filed by them with the Securities and
Exchange Commission ("SEC") (the "SEC Documents"). Acquirer
and Weeks Corporation have caused to be delivered to
Contributors true, correct and complete copies of the Second
Amended and Restated Agreement of Limited Partnership of Weeks
Realty, L.P., as amended, and will cause to be delivered to
Contributors copies of any documents as may be filed by
Acquirer and/or Weeks Corporation pursuant to the Securities
Act of 1933 and the Securities and Exchange Act of 1934 (the
"1933 Act" and the "1934 Act", respectively) from the date
hereof to the Closing date. The SEC Documents were, and all
additional documents filed in the future with the SEC will be,
prepared and filed in compliance with the 1933 Act and the
1934 Act and the rules and regulations promulgated by the SEC,
and do not and will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein in order to make the statements contained
therein, in light of the circumstances under which they were
made or will be made, not misleading.
6.1.4. Completion of Due Diligence. Acquirer acknowledges that it
---------------------------
has been given the opportunity to examine, inspect, study and
investigate, and has already completed such examination,
inspection, studies and investigations of, the properties and
information regarding the properties, including economic,
financial, physical and environmental due diligence and review
of title and survey, and Acquirer is fully satisfied with the
results. Acquirer is not relying on any representations and
warranties of Contributors other than as expressly and to the
extent set forth herein and in the other Agreements in this
transaction.
6.2. Contributors. Contributors severally and not jointly represent and
------------
warrant to Acquirer, as of the date of this Agreement and as of the
Closing, that:
-10-
<PAGE>
6.2.1. Contributors have full power and authority to enter into this
Agreement with Acquirer and to perform all of Contributors'
obligations hereunder and no additional consents or approvals
are required for the consummation of the transactions
contemplated hereunder, and this Agreement is enforceable
against Contributors in accordance with its terms. This
representation shall survive for a period of 18 months from
the date of Closing.
6.2.2. None of the partnerships whose interests are being contributed
or the New World Partnerships have any undisclosed liabilities
unrelated to the property or business of the partnerships, and
the development, ownership and operation of Beacon Centre and
matters relating thereto is and has been the only business of
the partnerships. Contributors hereby severally (and not
jointly) indemnify Acquirer against damages arising from
undisclosed liabilities for which Acquirer would not have been
subject to had it bought all of the properties directly and
not through a contribution of partnership interests (which
shall be deemed to include, without limitation, any liability
which may arise as a result of the accidental death of Robert
Scott Frederick on parcel 53 of the Property, with respect to
which Acquirer shall be deemed to have given Contributors
notice thereof within the meaning of clause (i) below);
provided that (i) Acquirer shall notify Contributors
immediately upon receiving notice of the existence of such a
liability and (ii) Contributors shall have sole control of any
proceeding relating to or arising from such a liability and
Contributors shall have sole control of any settlement or
disposition of any such claims (except that such settlement or
disposition shall not shift the liability to Acquirer). This
indemnity shall survive for a period of 18 months from the
date of Closing.
6.2.3. Contributors have good title to the partnership interests
being contributed free of any undisclosed liens or
encumbrances, and such partnerships have good title to their
interests in the New World Partnerships free of any
undisclosed liens or encumbrances. This representation shall
survive for a period of 18 months from the date of Closing.
6.2.4. Contributors are contributing to Acquirer 100% of all of the
partnership interests in Raha Associates, Ltd.,
Codina/Tradewind, Ltd. and Codina/Tradewind No. 4, Ltd. Such
partnerships own 100% of all of the partnership interests in
the New World Partnerships. Contributors, the Raha II
Corporation and the
-11-
<PAGE>
Codina No. 5 Corporation are contributing
100% of all of the partnership interests in Raha Associates
II, Ltd. and Codina/Tradewind No. 5, Ltd. Such partnerships
own 100% of all of the partnership interests in New World
Partners Joint Venture Number 5. This representation shall
survive for a period of 18 months from the date of Closing.
6.2.5. Contributors have provided Acquirer with true and correct
copies of the partnership agreements and any amendments
thereto for the partnerships whose interests are being
contributed and for the New World Partnerships This
representation shall survive for a period of 18 months from
the date of Closing.
6.2.6. With regard to the Common Units issued and to be issued
pursuant hereto:
a. Contributors that are acquiring Common Units are so
acquiring them for their own accounts and not with a view
to, or for sale in connection with, the "distribution",
as such term is used in Section 2(11) of 1933 Act, as
amended, of any of Common Units in violation of the 1933
Act.
b. Each Contributor acquiring Common Units is an "accredited
investor", as that term is defined in Rule 501(a) of
Regulation D promulgated under the 1933 Act.
c. Each Contributor acquiring Common Units understands that
the Common Units have not been registered under the 1933
Act by reason of a specific exemption from the
registration provisions of the 1933 Act that depends
upon, among other things, the nature of the investment
intent and the accuracy of such Contributor's
representations as expressed herein.
d. No such Contributor has relied on Acquirer or Weeks
Corporation or any person or entity affiliated with
Acquirer or Weeks Corporation for business, legal or tax
advice in connection with the transactions contemplated
hereby, and each such Contributor has looked solely to
its own advisors on such matters.
e. Each such Contributor has such knowledge and experience
in financial and business matters that such Contributor
is
-12-
<PAGE>
capable of evaluating the merits and risks of the
purchase of the Common Units pursuant to this Agreement
and of protecting such Contributor's interests in
connection herewith.
6.3. Prior Knowledge of Problem. In no event shall Contributors be liable
--------------------------
after the Closing date for a misrepresentation or breach of warranty
hereunder, if such misrepresentation or breach was disclosed in
writing to Acquirer (or its counsel) on or prior to the Closing date
(provided that disclosure to Acquirer of the Robert Scott Frederick
matter to which reference is made in Section 6.2.2 hereof shall not be
deemed to disqualify Acquirer from the benefit to Contributors'
indemnity against damages relating thereto as provided in said Section
6.2.2).
6.4. Transfer Taxes. Contributors hereby indemnify Acquirer severally and
--------------
not jointly for any transfer taxes incurred as a result of the
contribution of the Partnership Interests. This indemnity shall
survive for a period of 18 months from the date of Closing.
6.5. Liabilities of the Partnerships. Acquirer hereby indemnifies
-------------------------------
Contributors against any and all claims and liabilities arising, from
the partnerships whose interests are being contributed, on or after
the date of Closing based on facts and circumstances first existing on
or after the date of Closing.
7. Conditions to Closing.
---------------------
7.1. Conditions to Contributors' Obligations. The obligation of
---------------------------------------
Contributors to complete the contributions described herein on the
Closing date under this Agreement is subject to the fulfillment on or
prior to the Closing date of the following conditions, any one or more
of which may be waived by Contributors in advance of Closing in
writing, or by Closing notwithstanding the non-satisfaction of such
condition:
7.1.1. Payment of the Acquisition Consideration. Contributors shall
----------------------------------------
have received the Acquisition Consideration as provided
herein.
7.1.2. Acquirer's Representations and Warranties. All
-----------------------------------------
representations and warranties of Acquirer contained herein
shall be true and correct in all material respects on the date
of this Agreement and on the Closing date.
7.1.3. Execution and Delivery of the Closing Documents. Acquirer
-----------------------------------------------
shall have executed and delivered each of the documents,
agreements
-13-
<PAGE>
and other instruments to be executed and delivered
by Acquirer hereunder at or before the Closing.
7.1.4. Other Conditions. Any other matter expressly set forth herein
----------------
as a condition to Contributors' obligation to close or as a
matter to be completed or effected prior to Closing.
7.2. Conditions to Acquirer's Obligation. The obligation of Acquirer to
-----------------------------------
complete the contributions described herein on the Closing date under
this Agreement is subject to the fulfillment on or prior to the
Closing date of the following conditions, any one or more of which may
be waived by Acquirer in advance of Closing in writing, or by Closing
notwithstanding the non-satisfaction of such condition:
7.2.1. Contributors' Representations and Warranties. All
--------------------------------------------
representations and warranties of Contributors contained
herein shall be true and correct in all material respects on
the date of this Agreement and on the Closing date.
7.2.2. Execution and Delivery of the Closing Documents. Contributors
-----------------------------------------------
shall have executed and delivered each of the documents,
agreements and other instruments to be executed and delivered
by Contributors hereunder at or before the Closing.
7.2.3. Receipt of Estoppels. Acquirer shall have received tenant
--------------------
estoppels in the form attached hereto as Exhibit E and
consistent with the Rent Roll attached hereto as Exhibit F
from 80% of those tenants who lease over 20,000 square feet
and from 70% of the balance. Notwithstanding that the
foregoing expresses a condition of Acquirer's obligation to
close, Contributors shall not be in default hereunder solely
by reason of the fact that the required amount of tenants have
not responded to Acquirer's request for estoppels.
7.2.4. The Assets of the Partnerships. On the date of Closing, the
------------------------------
partnerships whose interests are being contributed will own
the partnership interests listed in Schedule H hereto, and the
New World Partnerships will own the Properties listed in
Schedule I hereto upon which no material adverse encumbrance
or lien shall have been recorded or allowed to attach after
December 1, 1997. All cash and assets, (other than such
-----
partnership interests, real property and any personal property
owned by the New World Partnerships and located on and used in
the operation of such
-14-
<PAGE>
Properties as set forth in Schedule J hereto and any
intangible personal property owned by the New World
Partnerships in connection with the Properties, including
warranties from contractors on the improvements, roof
warranties, equipment warranties, and rights under leases and
service contracts), shall either be distributed out of the
partnerships to Contributors immediately prior to Closing
and/or retained in the partnerships and will be applied to the
Acquisition Consideration Adjustment pursuant to Section 2.4
hereof.
7.2.5. No Material Adverse Effect on the Aggregate Value of the
--------------------------------------------------------
Assets. From the date hereof until the date of Closing, there
------
shall have been no material casualty or condemnation of any of
the Properties, no material adverse change to the
environmental or physical condition of the Properties, no
material default by a tenant leasing over 20,000 square feet
of the Properties and no default under the New York Life
Insurance Company loans, which in any case has resulted in a
material adverse effect on the aggregate value of all of the
assets being contributed. If Acquirer waives this condition or
if such casualty or condemnation has not resulted in a
material adverse effect on the aggregate value of all of the
assets being contributed, then Acquirer shall be entitled to
an assignment of Contributors' rights in all insurance
proceeds or condemnation award or settlements in connection
with such casualty or condemnation, less amounts used by
Contributors to repair the casualty damage.
7.2.6. Consent of New York Life Insurance Company. New York Life
------------------------------------------
Insurance Company shall have consented to the assumption of
its loans, and shall have agreed to modify its loan agreements
to exclude the issuance and transfer of securities of Weeks
Corporation and of Acquirer from its "due on sale" provisions.
7.2.7. No Dissolution of the Partnerships. Contributors shall have
----------------------------------
amended the limited partnership agreements of
Codina/Tradewind, Ltd., Codina/Tradewind No. 4, Ltd.,
Codina/Tradewind No. 5, Ltd., Raha Associates, Ltd. and Raha
Associates II, Ltd., to the extent necessary, to provide that
a transfer of any partnership interest of each such
partnership as contemplated herein will not result in a
dissolution of such partnership.
-15-
<PAGE>
7.2.8. Other Conditions. Any other matter expressly set forth herein
----------------
as a condition to Acquirer's obligation to close or as a
matter to be completed or effected prior to Closing.
7.3. Condition to Both Parties' Obligations. If the New York Life
--------------------------------------
Insurance Company loan assumption fee exceeds 1% of the assumed loan
balance, the Parties shall have mutually agreed how such excess shall
be paid.
8. Closing. Acquirer and Contributors hereby agree that the acquisition and
-------
contribution contemplated hereby (the or this "Transaction") shall be
consummated as follows:
8.1. Closing Date. The Transaction shall close ("Closing") as soon as
------------
practicable, but no later than January 9, 1998 unless all of the
parties consent to a later date. Time shall be of the essence in
respect of such Closing. The Closing shall take place in the offices
of White & Case, 200 South Biscayne Blvd., Suite 4900, Miami, Florida
or at such other location as Acquirer and Contributors shall mutually
determine, and the Acquisition Consideration shall be received by
Contributors no later than 12:00 p.m. Eastern Standard Time on the
Closing date.
8.2. Title Transfer and Payment of Acquisition Consideration.
-------------------------------------------------------
Contributors agree to assign Contributors' title to the Partnership
Interests to Acquirer by an assignment of partnership interests in
the form attached hereto as Exhibit G (the "Assignment and
Assumption"), concurrently with payment of the Acquisition
Consideration by Acquirer as set forth below. Acquirer agrees to
deliver the cash portion of the Acquisition Price specified in
Section 2 hereof (and Schedule B hereto) on the Closing date in
accordance with the time requirements set forth in Section 7.1
hereof, to such accounts as Contributors shall designate.
8.3. Closing Costs. Each party shall pay its own legal and accounting
-------------
fees. All other closing costs shall be allocated among the parties as
follows:
8.3.1. Due Diligence Costs. Acquirer shall pay all of its due
-------------------
diligence costs, including the costs and expenses arising in
connection with environmental, survey, title insurance and
building inspection.
8.3.2. Loan Assumption Costs. Acquirer shall pay all of the costs
---------------------
related to the assumption of the New York Life Insurance
Company mortgage loans, including all transfer and documentary
taxes, lender's counsel fees and any loan assumption fee
charged by New York Life Insurance Company up to a maximum of
1% of the
-16-
<PAGE>
assumed loan balance. The foregoing notwithstanding,
if New York Life Insurance Company charges a higher fee,
neither Acquirer nor Contributors shall be obligated to pay
such excess.
8.3.3. Brokerage Commissions. Each Contributor represents that it
---------------------
has not dealt with any brokers other than Goldman, Sachs &
Co. and Archon Management Services, LP, regarding the
transaction described herein. Acquirer represents that there
are no, and hereby indemnifies Contributors from and against
any, brokerage commissions or finders' fees resulting from
any action taken by it or any person acting or purporting to
act on its behalf. Contributors will pay the amounts due
Goldman, Sachs and/or Archon. Contributors' liability
hereunder shall survive for a period of 18 months from the
date of Closing.
8.4. Closing Documents. At the Closing, the parties shall execute and
-----------------
deliver or cause to be delivered the following documents, in addition
to such other documents as are delivered at the Closing in accordance
with the other provisions of this Agreement:
8.4.1. Assignment. Acquirer and Contributors shall execute and
----------
deliver the Assignment and Assumption in the form attached
hereto as Exhibit G.
8.4.2. Amendment to Acquirer's Partnership Agreement. Acquirer and
---------------------------------------------
Contributors shall execute and deliver an amendment to the
Second Amended and Restated Agreement of Limited Partnership
of Weeks Realty, L.P. in the form attached hereto as Exhibit
B.
8.4.3. Registration Rights Agreement. Weeks Corporation, Acquirer
-----------------------------
and Contributors shall execute and deliver the Registration
Rights Agreement in the form attached hereto as Exhibit C.
8.4.4. Management and Leasing Agreements. At the Closing, the
---------------------------------
existing management and leasing agreements shall be canceled.
8.4.5. Partnership Certificates. Acquirer will promptly file new
------------------------
partnership certificates for Codina/Tradewind, Ltd.,
Codina/Tradewind No. 4, Ltd. and Raha Associates, Ltd.
reflecting the withdrawal of Contributors and the admission of
Acquirer and Acquirer's designated affiliate. Upon the closing
of the sale described in Section 5.1 hereof, Acquirer will
file new partnership certificates for Codina/Tradewind No. 5,
Ltd. and Raha Associates
-17-
<PAGE>
II, Ltd. reflecting the withdrawal of Contributors, the Raha
II Corporation and the Codina No. 5 Corporation and the
admission of Acquirer and Acquirer's designated affiliate.
9. Default and Remedies; Termination.
---------------------------------
9.1. Acquirer. If Contributors default in the performance of any of
--------
Contributors' material obligations or agreements contained herein and
required to be performed prior to the Closing, and if Acquirer is not
then in default of any of its obligations and agreements contained
herein, then Acquirer may elect one of the following as Acquirer's
sole and exclusive remedy: either (i) terminate this Agreement by
giving written notice of termination and the reasons therefor to
Contributors, and thereafter neither Contributors nor Acquirer shall
have any further obligations or liabilities one to the other
hereunder; or, (ii) bring an equitable action of specific performance
--
by Contributors of the terms of this Agreement (by which Acquirer
shall be deemed to have waived all actions, rights or claims for
damages with respect to such default).
9.2. Contributors. If Acquirer defaults in the performance of any of
------------
Acquirer's material obligations or agreements contained herein and
required to be performed prior to Closing, and Contributors are not
then in default of any of their material obligations or agreements
contained herein, then Contributors may elect (as their sole and
exclusive remedy) to either (i) terminate this Agreement by giving
written notice of termination and the reasons therefor to Acquirer in
which event neither Contributors nor Acquirer shall have any further
obligations or liabilities one to the other hereunder; or, (ii) bring
--
an equitable action of specific performance by Acquirer of the terms
of this Agreement (by which Contributors shall be deemed to have
waived all actions, rights or claims for damages with respect to such
default).
10. Additional Miscellaneous Covenants.
----------------------------------
10.1. Notices. Any notice, request, demand, instruction or other
-------
communication to be given to either party hereunder (except those
required to be delivered at Closing) shall be in writing, and shall be
deemed to be delivered upon the earlier to occur of (i) actual receipt
if delivered by hand or by commercial courier to the address indicated
or (ii) the third (3rd) Business Day after deposit in registered or
certified United States Postal Service mail, return receipt requested,
postage prepaid, addressed as follows:
-18-
<PAGE>
IF TO ACQUIRER:
---------------
Weeks Corporation
4497 Park Drive
Norcross, GA 30093
Attention: Thomas D. Senkbeil, Vice Chairman and CIO
David Stockert, Sr. Vice President and CFO
COPIES TO:
----------
King & Spalding
191 Peachtree Street
Atlanta, GA 30303
Attention: William B. Fryer, Esq.
William J. Armstrong, Esq.
IF TO CONTRIBUTORS:
-------------------
Tisch Family Interests
667 Madison Avenue
8th Floor
New York, NY 10021
Attention: Thomas Steinberg, President
The Benenson Capital Company
708 Third Avenue
28th Floor
New York, NY 10017
Attention: Richard Kessler, Managing Director
Codina Group, Inc.
2 Alhambra Plaza
Penthouse II
Coral Gables, FL 33134
Attention: Henry Befeler, CFO
COPIES TO:
---------
Sullivan & Cromwell
125 Broad Street
New York, NY 10004
Attention: Joseph Shenker, Esq.
-19-
<PAGE>
White & Case
200 South Biscayne Blvd.
Suite 4900
Miami, FL 33131
Attention: K. Laurence Gragg, Esq.
The addresses and addressees for the purpose of this Paragraph may be
changed (and the number of addressees, up to a maximum of four (4) in
the aggregate per party, may be increased) by either party by giving
written notice of such change to the other party in the manner
provided herein.
10.2. Limited and Several Liability of Contributors. Acquirer agrees that
---------------------------------------------
any recourse for payment or damages it may have against Contributors
under this Agreement, including damages for a misrepresentation,
breach of warranty or indemnity obligation hereunder shall be several
and not joint (so that any such liability shall be paid 50% by Codina
and CFI and 25% by each of Benenson and Tisch) and shall be limited
solely and exclusively to the cash sale proceeds and Common Units (and
to the extent they have been sold, the net proceeds from such sale)
received by such liable Contributor as set forth in Schedule B hereto.
In no event whatsoever shall any recourse be to any other assets owned
by any Contributor and no Contributor shall have any personal
liability hereunder.
10.3. Attorneys' Fees. In the event it becomes necessary for either
---------------
Acquirer or Contributors to file a suit to enforce this Agreement or
any provisions contained herein, the prevailing party in such suit
shall be entitled to recover, in addition to all other remedies or
damages, reasonable attorneys' fees and costs of court incurred in
connection with such suit.
10.4. Severability. If any provision hereof shall be held to be invalid,
------------
illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions, or parts thereof, shall not in any way be
affected or impaired thereby.
10.5. Counterparts. This Agreement may be executed in any number of
------------
identical counterparts, all of which shall together constitute one and
the same instrument.
10.6. Entire Agreement and Modification. This Agreement constitutes the
---------------------------------
entire agreement between Acquirer and Contributors with respect to the
subject matter hereof and supersedes all prior agreements and
understandings (if any) relating to the subject matter hereof. This
Agreement cannot be
-20-
<PAGE>
amended, modified or altered, or any provision waived, except by an
agreement in writing executed by both Acquirer and Contributors.
10.7. Binding Effect. This Agreement shall be binding upon the parties
--------------
and their respective successors and assigns and shall inure to the
benefit of the parties hereto and their respective permitted assigns.
10.8. No Third Part Beneficiaries. This Agreement does not create, and
---------------------------
shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
10.9. Headings. Paragraph headings are for convenience of reference only
--------
and shall in no way affect the interpretation of this Agreement.
10.10. Governing Law. THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK SHALL
-------------
GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF
THIS AGREEMENT.
10.11. Full Execution. This Agreement shall be deemed fully executed and
--------------
binding upon Acquirer and Contributors if, as and when both Acquirer
and Contributors have executed this Agreement as set forth below.
10.12. Confidentiality. Neither party hereto shall issue any press
---------------
release or make any other public announcement relating to the
transactions contemplated by this Agreement without the prior consent
of the other party hereto (which consent shall not be unreasonably
withheld).
10.13. Radon Gas. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
---------
WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY
PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME.
LEVELS OF RADON THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN
FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL INFORMATION REGARDING RADON
AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY HEALTH UNIT.
10.14. Business Day. As used herein, "Business Day" shall mean any day
------------
other than (i) Saturday and Sunday or (ii) a day on which the banks in
New York State, Georgia or Florida are permitted or required to close.
10.15. Including: Herein, Hereof etc. As used herein: the term
------------------------------
"including" or "include" shall be deemed to be followed by the phrase
"without limitation", and, unless the context shall otherwise require,
the terms
-21-
<PAGE>
"herein", "hereunder" and "hereof" shall each refer to this Agreement as a whole
and not to the particular paragraph or provision in which such term is used.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
in multiple counterparts and is effective as of the date first above stated.
CONTRIBUTORS:
/s/ Armando Codina
------------------
ARMANDO CODINA
CODINA WEST DADE DEVELOPMENT CORPORATION
By: /s/ Armando Codina
-------------------------------
CODINA FAMILY INVESTMENTS, LTD.
By: /s/ Armando Codina
-------------------------------
THE BENENSON CAPITAL COMPANY
By: /s/ Charles B. Benenson
-------------------------------
RAHA ASSOCIATES, INC.
By: /s/ Charles B. Benenson
-------------------------------
/s/ Laurence Tisch
-----------------------
LAURENCE TISCH
/s/ Preston Tisch
-----------------------
PRESTON TISCH
-22-
<PAGE>
RAHA ASSOCIATES II, INC.
By: /s/ Charles B. Benenson
-----------------------------
CODINA WEST DADE DEVELOPMENT CORPORATION NO. 5
By: /s/ Armando Codina
-----------------------------
/s/ Charles B. Benenson
--------------------------
CHARLES B. BENENSON (for the purpose of Section 5.2)
ACQUIRER: WEEKS REALTY, L.P.
By: WEEKS GP HOLDINGS, INC., general partner
By: /s/ A. R. Weeks, Jr.
--------------------------
WEEKS CORPORATION (for the purpose of Sections 3.5, 6.1.3 and
8.4.3)
By: /s/ A. R. Weeks, Jr.
--------------------------
-23-
<PAGE>
EXHIBIT 10.1
EIGHTH AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS EIGHTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. (the "Amendment") is entered into as
of the 9th day of January, 1998, by and among WEEKS GP HOLDINGS, INC., a Georgia
corporation (the "General Partner"), WEEKS CORPORATION, a Georgia corporation
(the "Company"), ARMANDO CODINA, an individual resident of the State of Florida
("Codina"), CODINA FAMILY INVESTMENTS, LTD., a Florida limited partnership
("CFI"), CODINA WEST DADE DEVELOPMENT CORPORATION, a Florida corporation ("West
Dade"), THE BENENSON CAPITAL COMPANY, a New York general partnership
("Benenson"), RAHA ASSOCIATES, INC., a Florida corporation ("RAHA"), LAURENCE
TISCH, an individual resident of the State of New York ("L. Tisch"), and PRESTON
TISCH, an individual resident of the State of New York ("P. Tisch") (Codina,
CFI, West Dade, Benenson, RAHA, L. Tisch and P. Tisch are collectively referred
to hereafter as the "Contributors" and "Contributor" shall hereafter mean any
one of the Contributors).
RECITALS
--------
Weeks Realty, L.P. (the "Partnership") is a Georgia limited partnership.
The General Partner is the sole general partner of the Partnership and is a
wholly owned subsidiary of the Company. The partnership agreement of the
Partnership is that certain Second Amended and Restated Agreement of Limited
Partnership of Weeks Realty, L.P., dated as of October 30, 1996, as amended by
the First Amendment to the Partnership Agreement dated November 1, 1996, the
<PAGE>
Second Amendment to the Partnership Agreement dated December 31, 1996, the Third
Amendment to the Partnership Agreement dated January 31, 1997, the Fourth
Amendment to the Partnership Agreement dated August 1, 1997, the Fifth Amendment
to the Partnership Agreement dated October 7, 1997, the Sixth Amendment to the
Partnership Agreement dated October 27, 1997, and the Seventh Amendment to the
Partnership Amendment dated December 30, 1997 (the "Partnership Agreement").
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Partnership Agreement.
Pursuant to the agreements and instruments listed or referred to on Exhibit
A hereto (the ("Transaction Documents"), and the transactions effected by the
Transaction Documents, effective as of the date hereof the Contributors have
contributed, directly or indirectly, certain properties to the capital of the
Partnership.
Pursuant to the Partnership Agreement (including, without limitation,
Section 9.3 and Section 15.7(b)(ii) thereof), the General Partner is authorized
(without the consent of any Limited Partner) to admit additional Limited
Partners to the Partnership for such Capital Contributions as are determined by
the General Partner to be appropriate, and to amend the Partnership Agreement to
reflect such admissions.
The General Partner wishes to amend the Partnership Agreement as set forth
herein to reflect the admission of the Contributors as Limited Partners of the
Partnership, and the Contributors wish to enter into this Amendment to
memorialize their agreement as to certain matters relating to their becoming
Limited Partners of the Partnership.
AGREEMENT
---------
In consideration of the circumstances referred to in the Recitals, the
consummation of the transactions effected pursuant to the Transaction Documents,
the mutual covenants and agreements contained herein, and other good and
valuable consideration, the receipt, adequacy
-2-
<PAGE>
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Admission. The Contributors are hereby admitted to the Partnership as
---------
Limited Partners, effective as of the date hereof, and each of the Contributors
hereby agrees to be bound by the Partnership Agreement, including, but not
limited to, the transfer restrictions contained in Article IX thereof.
2. Capital Contributions. The Contributors are agreed to have made, as of
---------------------
the date hereof, the Capital Contributions set forth on Exhibit B hereto. The
agreed to gross fair market values of any property other than money contributed
by each of the Contributors, which shall be such property's initial Gross Asset
Value, are shown on Exhibit B.
3. Initial Partnership Units; Rights.
---------------------------------
(a) The Partnership Units attributable to the Partnership Interests of
the Contributors, effective upon their admission as Limited Partners at the
date hereof, are as set forth on Exhibit B hereto, and the Partnership
Agreement is hereby amended to reflect the Contributors' having such
Partnership Units.
(b) The Partnership does hereby grant to each of the Contributors, and
each of them does hereby accept, the right, but not the obligation (herein
such rights being sometimes referred to as the "Rights"), to require the
Partnership to redeem all or a portion of the Partnership Units issued to
them pursuant to the Transaction Documents, on the terms and subject to the
conditions and restrictions contained in Exhibit D hereto. The Rights are
governed solely by this Amendment and Exhibit D hereto, and none of the
Contributors shall have any rights with respect to the "Rights" provided
for in Section 11.1 and Exhibit B-1 to the Partnership Agreement. The
Rights granted hereunder may be exercised by any one or more of the
Contributors, on the terms and subject to the
-3-
<PAGE>
conditions and restrictions contained in Exhibit D hereto, upon delivery to
the Partnership of a Conversion Exercise Notice, in the form of Schedule 1
attached to Exhibit D, which notice shall specify the Partnership Units
with respect to which the Rights are being exercised. Once delivered, the
Conversion Exercise Notice shall be irrevocable, subject to compliance by
the General Partner and the Partnership with the terms of the Rights.
4. Restated Percentage Interests. After giving effect to the admission of
-----------------------------
the Contributors as Limited Partners at the date hereof, the Percentage
Interests of all of the Partners have been revised and are as reflected on
Exhibit C hereto, and the Partnership Agreement is hereby amended accordingly.
5. Future Contributions. The parties acknowledge that, pursuant to and
--------------------
subject to the terms and conditions of the Transaction Documents, the
Contributors may make additional Capital Contributions. Concurrently with any
such additional Capital Contribution, the General Partner shall supplement this
Amendment by executing and attaching hereto supplements to Exhibits B and C
(which shall be captioned "Exhibit B-1," "Exhibit B-2," "Exhibit C-1," "Exhibit
C-2," and so on and shall identify the Capital Contribution to which each
relates) that will, respectively, reflect (to the extent determinable at such
time) the Capital Contribution made by the Contributors at that time, the
initial Gross Asset Value of any property other than money included in such
Capital Contribution, the additional Partnership Units attributable to the
Partnership Interest associated with such Capital Contribution, and the
resulting restated Percentage Interests of all of the Partners. Such
supplements shall be in accordance with the terms of the Transaction Documents.
The Partnership Agreement shall be deemed to be amended as reflected in each
such supplement to this Amendment.
6. Adjustments to Partnership Units. The parties acknowledge that the
--------------------------------
Transaction Documents provide for adjustments to the Partnership Units of the
Contributors in certain circumstances, and further provide that the
Contributors' Partnership Interests and Partnership Units, and the resulting
restated Percentage Interests of all of the Partners, may not be capable of
-4-
<PAGE>
determination at the time a Capital Contribution is made after the date hereof.
At the times of adjustment and final determination provided for in the
Transaction Documents, the General Partner shall supplement this Amendment by
executing and attaching hereto either additional supplements to Exhibits B and C
(in the form described above), or amended and restated versions of prior
supplements to Exhibits B and C, as applicable. Such supplements shall be in
accordance with the terms of the Transaction Documents. The Partnership
Agreement shall be deemed to be amended as reflected in each such supplement to
this Amendment.
7. Proration of Distributions. Notwithstanding any contrary provision of
--------------------------
the Partnership Agreement, including, without limitation, Section 6.2 thereof,
the Contributors agree that the distribution of Net Operating Cash Flow made for
the calendar quarter in which the Partnership Units are issued, by reason of
each Capital Contribution made pursuant to the Transaction Documents, shall be
equal to the amount of Net Operating Cash Flow otherwise distributable with
respect to such Partnership Units under the terms of the Partnership Agreement,
multiplied by a fraction, the numerator of which is the number of calendar days
beginning on the date of issuance of the Partnership Units and ending on the
last day of such calendar quarter and the denominator of which is the total
number of days in the calendar quarter in which the Partnership Units are
issued.
8. Capital Account Revaluation and Gain Allocation. In connection with
-----------------------------------------------
the Capital Contributions, the Partnership shall revalue its property and
increase or decrease the capital accounts of its Partners to reflect such
revaluation in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f),
and the Partnership shall comply with the requirements of Treasury Regulation
Section 1.704-1(b)(2)(iv)(f)(1)-(5). The Partnership hereby agrees to use the
"traditional" method described in Treasury Regulation Section 1.704-3(b) in
allocating income, gain, loss or deduction to the contributed interests pursuant
to Section 704(c) of the Internal Revenue Code of 1986, as amended.
-5-
<PAGE>
9. Miscellaneous. This Amendment shall be governed by and construed in
-------------
conformity with the laws of the State of Georgia. For the purposes of the
notice provisions of the Partnership Agreement, the address of each of the
Contributor is as set forth in the Contribution Agreement. Except as expressly
amended hereby, the Partnership Agreement shall remain in full force and effect.
This Amendment and all the terms and provisions hereof shall be binding upon and
shall inure to the benefit of the parties, and their legal representatives,
heirs, successors and permitted assigns.
-6-
<PAGE>
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first above written.
WEEKS GP HOLDINGS, INC.
By:/s/ Thomas D. Senkbeil
---------------------------------
Name:
Title:
CONTRIBUTORS:
/s/ Armando Codina
------------------------------------
ARMANDO CODINA
CODINA FAMILY INVESTMENTS, LTD.
By: Codina Investments, Inc.
By: /s/ Armando Codina
-----------------------------
Name:
Title:
CODINA WEST DADE DEVELOPMENT CORPORATION
By:/s/ Armando Codina
---------------------------------
Name:
Title:
-7-
<PAGE>
THE BENENSON CAPITAL COMPANY
By:/s/ Charles B. Benenson
-----------------------------------
Name:
Title:
RAHA ASSOCIATES, INC.
By:/s/ Charles B. Benenson
-----------------------------------
Name:
Title:
/s/ Laurence Tisch
--------------------------------------
LAURENCE TISCH
/s/ Preston Tisch
--------------------------------------
PRESTON TISCH
Solely to evidence its agreement to its undertakings
in Exhibit D hereto:
WEEKS CORPORATION
By: /s/ Thomas D. Senkbeil
----------------------------------
Name:
Title:
-8-
<PAGE>
EXHIBIT 10.2
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of January 9, 1998
by and among
WEEKS CORPORATION
and
THE BENENSON CAPITAL COMPANY,
RAHA ASSOCIATES, INC.,
LAURENCE TISCH, PRESTON TISCH,
================================================================================
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of January 9, 1998 by and among WEEKS CORPORATION, a Georgia corporation
(the "Company"), THE BENENSON CAPITAL COMPANY, a New York general partnership
("Benenson"), RAHA ASSOCIATES, INC., a Florida corporation ("RAHA"), LAURENCE
TISCH, an individual resident of the State of New York ("L. Tisch"), PRESTON
TISCH, an individual resident of the State of New York ("P. Tisch")
(collectively, Benenson, RAHA, L. Tisch and P. Tisch are referred to hereafter
as the "Holders").
WHEREAS, this Agreement is made pursuant to the Beacon Centre Contribution
Agreement by and among Weeks Realty, L.P., a Georgia limited partnership (the
"Operating Partnership"), and the Contributors (as therein defined) dated as of
January 2, 1998 (the "Contribution Agreement");
WHEREAS, the Holders will become the owners of Units (as defined below) in
the Operating Partnership, in connection with the transactions described in the
Contribution Agreement; and
WHEREAS, in order to induce the Holders to enter into the transactions
described in the Contribution Agreement, the Company has agreed, with respect to
the Units issued pursuant to the Contribution Agreement to provide the Holders
with the registration rights set forth in Section 2 hereof;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
-----------
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Common Stock" shall mean the Common Stock, par value $.01 per share, of
------------
the Company.
"Company" shall have the meaning set forth in the Preamble and also shall
-------
include the Company's successors.
"Contribution Agreement" shall have the meaning set forth in the Preamble.
----------------------
<PAGE>
"Control" shall mean the ability, whether by the direct or indirect
-------
ownership of shares or other equity interests, by contract or otherwise, to
select a majority of the directors of a corporation, to select the managing
partner of a partnership, to select the manager of a limited liability company
or otherwise to select, or have the power to remove and then select, a majority
of those persons exercising governing authority over an Entity. In the case of
a limited partnership, the sole general partner, each of the general partners
that has equal management control and authority, or the designated managing
general partner or managing general partners thereof shall be deemed to have
control of such partnership. In the case of a trust, any trustee thereof or any
Person having the right to select any such trustee shall be deemed to have
control of such trust.
"Entity" shall mean any general partnership, limited partnership,
------
corporation, limited liability company, joint venture, trust, business trust,
cooperative or association.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
------------
from time to time.
"Holders" shall have the meaning set forth in the Preamble. Holder shall
-------
mean each individual Holder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
----
"Operating Partnership" shall have the meaning set forth in the Preamble
---------------------
and also shall include the Operating Partnership's successors and assigns.
"Partnership Agreement" shall mean the Second Amended and Restated
---------------------
Agreement of Limited Partnership of the Operating Partnership, as amended.
"Person" shall mean any individual or Entity.
------
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities Act" shall mean the Securities Act of 1933, as amended from
--------------
time to time.
"Selling Expenses" shall mean all underwriting discounts and selling
----------------
commissions and transfer taxes applicable to the sale of Shelf Registrable
Securities and disbursements of underwriters.
"Shares" shall mean any Common Stock issued or issuable to Holders upon
------
redemption of Units.
"Shelf Prospectus" shall mean the prospectus included in the Shelf
----------------
Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, including any supplement relating to the terms of the
offering of any portion of the Shelf Registrable Securities
-2-
<PAGE>
covered by the Shelf Registration Statement, and in each case including all
material incorporated by reference therein.
"Shelf Registration" shall mean a registration required to be effected
------------------
pursuant to Section 2 hereof.
"Shelf Registrable Securities" shall mean the Shares held by the Holders,
----------------------------
excluding (i) Shares that have been registered under any other effective
registration statement, (ii) Shares sold or otherwise transferred pursuant to
Rule 144 under the Securities Act, and (iii) Shares held by the Holders if all
of such Shares are eligible for sale pursuant to Rule 144 under the Securities
Act and could be sold in one transaction in accordance with the volume
limitations contained in Rule 144(e)(1)(i) under the Securities Act.
"Shelf Registration Expenses" shall mean any and all expenses incident to
---------------------------
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange and NASD registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with qualification of any of the Shelf Registrable Securities under
any state securities or blue sky laws and the preparation of a blue sky
memorandum) and compliance with the rules of the NASD, (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing the Shelf Registration Statement, any Shelf Prospectus,
certificates and other documents relating to the performance of and compliance
with this Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Shelf Registrable Securities on any securities
exchange or exchanges pursuant to Section 4(l) hereof, (v) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, and (vi) all other costs and expenses normally associated with the
issuance and sale of newly issued public securities other than Selling Expenses.
"Shelf Registration Notice" shall have the meaning set forth in Section
-------------------------
3(b) hereof.
"Shelf Registration Statement" shall mean a registration statement of the
----------------------------
Company (and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act) that
covers all of the Shelf Registrable Securities to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments (including post-
effective amendments) to such registration statement, and all exhibits thereto
and materials incorporated by reference therein.
"Units" shall mean the limited partnership interests of the Operating
-----
Partnership issued or issuable to Holders pursuant to the Contribution
Agreement, which interests are redeemable for Common Stock, or at the Operating
Partnership's option, cash.
-3-
<PAGE>
2. Shelf Registration Under the Securities Act for the Benefit of the
------------------------------------------------------------------
Holders.
-------
(a) Filing of Shelf Registration Statement. The Company shall cause to
--------------------------------------
be filed within 10 business days after the date hereof, a Shelf Registration
Statement providing for the sale by the Holders of all Shelf Registrable
Securities, not theretofore registered, in accordance with the terms hereof and
will use its reasonable best efforts to cause such Shelf Registration Statement
to be declared effective by the SEC as soon as practicable thereafter. The
Company agrees to use its reasonable best efforts to keep the Shelf Registration
Statement with respect to the Shelf Registrable Securities continuously
effective so long as the Holders hold such Shelf Registrable Securities.
Subject to Section 3(b) and Section 3(i), the Company further agrees to amend
the Shelf Registration Statement if and as required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or any rules and
regulations thereunder; provided, however, that the Company shall not be deemed
-------- -------
to have used its reasonable and diligent efforts to keep the Shelf Registration
Statement effective during the applicable period if it voluntarily takes any
action that would result in the Holders not being able to sell Shelf Registrable
Securities covered thereby during that period, unless such action is required
under applicable law or the Company has filed a post-effective amendment (other
than one which removes Shelf Registrable Securities from effective registration
under the Securities Act) to the Shelf Registration Statement and the SEC has
not declared it effective or except as otherwise permitted by the last three
sentences of Section 3(b). Notwithstanding anything in Section 3(b) or Section
4 to the contrary, the Holders will not be precluded from making offers or sales
under the Shelf Registration Statement for more than an aggregate of one hundred
thirty two (132) days during any twelve-month period.
(b) Expenses. The Company shall pay all Shelf Registration Expenses in
--------
connection with each registration pursuant to Section 2(a). Each Holder shall
pay all Selling Expenses and the fees and disbursements of counsel representing
such Holder, if any, relating to the sale or disposition of such Shelf
Registrable Securities pursuant to the Shelf Registration Statement.
(c) Inclusion in Shelf Registration Statement. If any Holder does not
-----------------------------------------
provide the information reasonably requested by the Company in connection with
the Shelf Registration Statement as promptly as practicable after receipt of
such request, but in no event later than ten (10) days thereafter, it shall not
be entitled to have its Shelf Registrable Securities included in the Shelf
Registration Statement.
3. Shelf Registration Procedures.
-----------------------------
In connection with the obligations of the Company with respect to each
Shelf Registration Statement contemplated by Section 2 hereof, the Company
shall:
(a) prepare and file with the SEC, within the time period set forth
in Section 2 hereof, the Shelf Registration Statement, which Shelf
Registration Statement (i) shall be
-4-
<PAGE>
available for the sale of the Shelf Registrable Securities in accordance
with the intended method or methods of distribution by the Holders covered
thereby and (ii) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith;
(b) subject to the last three sentences of this Section 3(b) and
Section 3(i) hereof, (i) prepare and file with the SEC such amendments to
such Shelf Registration Statement as may be necessary to keep such Shelf
Registration Statement effective for the applicable period; (ii) cause the
Shelf Prospectus to be amended or supplemented as required and to be filed
as required by Rule 424 or any similar rule that may be adopted under the
Securities Act; (iii) respond as promptly as practicable to any comments
received from the SEC with respect to the Shelf Registration Statement or
any amendment thereto; and (iv) comply with the provisions of the
Securities Act with respect to the disposition of all securities covered
by such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
Holders covered thereby. Notwithstanding anything to the contrary
contained herein, the Company shall not be required to take any of the
actions described in clauses (i), (ii) or (iii) in this Section 3(b),
Section 3(d) or Section 3(i) with respect to the Shelf Registrable
Securities (x) to the extent that the Company is in possession of material
non-public information that it deems advisable not to disclose or is
engaged in active negotiations or planning for a merger or acquisition or
disposition transaction and it delivers written notice to the Holders to
the effect that the Holders may not make offers or sales under the Shelf
Registration Statement for a period not to exceed sixty (60) days from the
date of such notice; provided, however, that the Company may deliver only
-------- -------
two such notices within any twelve-month period, and (y) unless and until
the Company has received a written notice (a "Shelf Registration Notice")
from the Holders that they intend to make offers or sales under the Shelf
Registration Statement as specified in such Shelf Registration Notice;
provided, however, that the Company shall have ten (10) business days to
-------- -------
prepare and file any such amendment or supplement after receipt of the
Shelf Registration Notice. Once the Holders have delivered a Shelf
Registration Notice to the Company, each Holder covered thereby shall
promptly provide to the Company such information as the Company reasonably
requests in order to identify the method of distribution in a post-
effective amendment to the Shelf Registration Statement or a supplement to
the Shelf Prospectus. Such Holders also shall notify the Company in
writing upon completion of such offer or sale or at such time as such
Holders no longer intend to make offers or sales under the Shelf
Registration Statement;
(c) after the Holders have delivered a Shelf Registration Notice to
the Company, furnish each Holder covered thereby, without charge, as many
copies of each Shelf Prospectus and any amendment or supplement thereto in
order to facilitate the public sale or other disposition of the Shelf
Registrable Securities; the Company consents to the use of the Shelf
Prospectus and any amendment or supplement thereto by the Holders of Shelf
-5-
<PAGE>
Registrable Securities in connection with the offering and sale of the
Shelf Registrable Securities covered by the Shelf Prospectus or amendment
or supplement thereto;
(d) use its reasonable best efforts to register or qualify the Shelf
Registrable Securities by the time the Shelf Registration Statement is
declared effective by the SEC under all applicable state securities or
blue sky laws of such jurisdictions in the United States and its
territories and possessions as the Holders shall reasonably request in
writing, keep each such registration or qualification effective during the
period such Shelf Registration Statement is required to be kept effective
or during the period offers or sales are being made by the Holders after
they have delivered a Shelf Registration Notice to the Company, whichever
is shorter; provided, however, that in connection therewith, the Company
-------- -------
shall not be required to (i) qualify as a foreign corporation to do
business or to register as a broker or dealer in any such jurisdiction
where it would not otherwise be required to qualify or register but for
this Section 3(d), (ii) subject itself to taxation in any such
jurisdiction where is not otherwise subject to taxation, or (iii) file a
general consent to service of process in any such jurisdiction;
(e) notify the Holders promptly and confirm in writing, (i) when the
Shelf Registration Statement and any post-effective amendments thereto
have become effective, (ii) when any amendment or supplement to the Shelf
Prospectus has been filed with the SEC, (iii) of the issuance by the SEC
or any state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or any part thereof or
the initiation of any proceedings for that purpose, (iv) if the Company
receives any notification with respect to the suspension of the
qualification of the Shelf Registrable Securities for offer or sale in any
jurisdiction or the initiation of any proceeding for such purpose, and (v)
of the happening of any event during the period the Shelf Registration
Statement is effective as a result of which (A) such Shelf Registration
Statement contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading or (B) the Shelf Prospectus as then
amended or supplemented contains any untrue statement of a material fact
or omits 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;
(f) make every reasonable best effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement or
any part thereof as promptly as possible;
(g) after the Holders have delivered a Shelf Registration Notice to
the Company, furnish to each Holder covered thereby, without charge, at
least one conformed copy of the Shelf Registration Statement and any post-
effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
-6-
<PAGE>
(h) cooperate with each selling Holder to facilitate the timely
preparation and delivery of certificates representing Shelf Registrable
Securities to be sold and not bearing any Securities Act legend; and
enable certificates for such Shelf Registrable Securities to be issued for
such numbers of shares as each Holder may reasonably request at least two
business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 3(b) hereof, upon
the occurrence of any event contemplated by clause (x) of Section 3(b) or
clause (v) of Section 3(e) hereof, use its reasonable and diligent efforts
promptly to prepare and file an amendment or a supplement to the Shelf
Prospectus or any document incorporated therein by reference or prepare,
file and obtain effectiveness of a post-effective amendment to the Shelf
Registration Statement, or file any other required document, in any such
case to the extent necessary so that, as thereafter delivered to the
purchasers of the Shelf Registrable Securities, such Shelf Prospectus as
then amended or supplemented will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they are made, not misleading;
(j) after the Holders have provided a Shelf Registration Notice to
the Company, make available for inspection by each Holder covered thereby
and any counsel, accountants or other representatives retained by such
Holder all financial and other records, pertinent corporate documents and
properties of the Company and cause the officers, directors and employees
of the Company to supply all such records, documents or information
reasonably requested by such Holder, counsel, accountants or
representatives in connection with the Shelf Registration Statement;
provided, however, that such records, documents or information which the
-------- -------
Company determines in good faith to be confidential and notifies such
Holder, counsel, accountants or representatives in writing that such
records, documents or information are confidential shall not be disclosed
by such Holder, counsel, accountants or representatives unless (i) such
disclosure is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or governmental agency, or (ii) such records,
documents or information become generally available to the public other
than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration
Statement or any amendment thereto, or any Shelf Prospectus or any
amendment or supplement thereto, provide copies of such document (not
including any documents incorporated by reference therein unless
requested) to each Holder covered thereby after the Holders have provided
a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf
Registrable Securities to be listed on any securities exchange on which
similar securities issued by the Company are then listed;
-7-
<PAGE>
(m) provide a CUSIP number for all Shelf Registrable Securities, not
later than the effective date of a Shelf Registration Statement; and
(n) use its reasonable efforts to make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
at least 12 months which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder or any similar rule as may be
adopted by the SEC.
The Company may require each Holder to furnish to the Company in writing
such information regarding the proposed distribution by such Holder as the
Company may from time to time reasonably request in writing.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Section 2 hereof and
this Section 3, each Holder covenants and agrees that (i) it will not offer or
sell any Shelf Registrable Securities under the Shelf Registration Statement
until it has provided a Shelf Registration Notice pursuant to Section 3(b) and
has received copies of the Shelf Prospectus as then amended or supplemented as
contemplated by Section 3(c) and notice from the Company that the Shelf
Registration Statement and any post-effective amendments thereto have become
effective as contemplated by Section 3(e); (ii) upon receipt of any notice from
the Company contemplated by Section 3(b) or Section 3(e) (in respect of the
occurrence of an event contemplated by clause (v) of Section 3(e)), such Holder
shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf
Registration Statement until such Holder receives copies of the supplemented or
amended Shelf Prospectus contemplated by Section 3(i) hereof and receives notice
that any post-effective amendment has become effective, and, if so directed by
the Company, such Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Shelf Prospectus as amended or supplemented at
the time of receipt of such notice; (iii) all offers and sales by such Holder
under the Shelf Registration Statement shall be completed within sixty (60) days
after the first date on which offers or sales can be made pursuant to clause (i)
above, and upon expiration of such sixty (60) day period, such Holder will not
offer or sell any Shelf Registrable Securities under the Shelf Registration
Statement until it has again complied with the provisions of clause (i) above;
(iv) such Holder and any of its beneficial owners, officers, directors or
affiliates, if any, will comply with the provisions of Regulation M promulgated
by the SEC as applicable to them in connection with sales of Shelf Registrable
Securities pursuant to the Shelf Registration Statement; (v) such Holder and any
of its beneficial owners, officers, directors or affiliates, if any, will comply
with the prospectus delivery requirements of the Securities Act as applicable to
them in connection with sales of Shelf Registrable Securities pursuant to the
Shelf Registration Statement; and (vi) such Holder and any of its beneficial
owners, officers, directors or affiliates, if any, will enter into such written
agreements as the Company shall reasonably request to ensure compliance with
clause (iv) and (v) above.
-8-
<PAGE>
4. Holdback Agreement. Subject to the provisions of Section 2(a), each
------------------
Holder agrees not to effect any public sale or distribution (including sales
pursuant to Rule 144) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
7 days prior to (provided that such Holder receives a notice from the Company of
the commencement of such 7-day period) and the 45-day period beginning on the
effective date of any underwritten offering of securities by the Company (except
as part of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
5. Indemnification; Contribution.
-----------------------------
(a) Indemnification by the Company. The Company agrees to indemnify and
------------------------------
hold harmless each Holder and the beneficial owners, officers and directors and
each Person, if any, who controls each Holder within the meaning of Section 15
of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to which each Holder, or any beneficial owner,
officer, director or controlling Person may become subject under the
Securities Act or otherwise (A) that arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Shelf Registration Statement or any amendment thereto, or 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 or (B) that arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Shelf
Prospectus or any amendment or supplement thereto, or the omission or
alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or alleged untrue
statement or any omission or alleged omission, if such settlement is
effected with the written consent of the Company; and
(iii) subject to the limitations set forth in Section 5(c),
against any and all expense whatsoever, as incurred (including reasonable
fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, in
each case whether or not a party, or any claim whatsoever based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
-9-
<PAGE>
provided, however, that the indemnity provided pursuant to this Section 5(a)
- -------- -------
shall not apply with respect to any loss, liability, claim, damage or expense
that arise out of or are based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by any Holder (i)
expressly for use in the Shelf Registration Statement or any amendment thereto,
or the Shelf Prospectus or any amendment or supplement thereto or (ii) pursuant
to any representation, warranty or other statement contained in the Contribution
Agreement or any admission amendment to the Partnership Agreement.
(b) Indemnification by the Holders. Each Holder severally agrees to
------------------------------
indemnify and hold harmless the Company, and each of its respective directors
and officers (including each director and officer of the Company who signed the
Shelf Registration Statement), and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, to the same extent as
the indemnity contained in Section 5(a) hereof, but only insofar as such loss,
liability, claim, damage or expense arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Shelf Registration Statement or any amendment thereto, or the Shelf
Prospectus or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use therein. In no event, however shall the liability of a Holder
exceed the cumulative net proceeds received by such Holder from any offering
made in connection with a Shelf Registration Statement.
(c) Conduct of Indemnification Proceedings. Each indemnified party shall
--------------------------------------
give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity agreement provided
in Section 5(a) or (b) above, unless and to the extent it did not otherwise
learn of such action and the lack of notice by the indemnified party materially
prejudices the indemnifying party or results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided under Section 5(a) or
(b) above. After receipt of such notice, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, jointly with any
other indemnifying party so notified, to assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by such
indemnifying party and approved by the indemnified party, which approval shall
not be unreasonably withheld; provided, however, that, if the defendants in any
-------- -------
such action or proceeding include both the indemnified party and the
indemnifying party and the indemnified party reasonably determines, upon advice
of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, then the indemnified
party shall be entitled to separate counsel (which shall be limited to a single
law firm), the reasonable fees and expenses of which shall be paid by the
indemnifying party. If the indemnifying party does not assume the defense of
any such action or proceeding, after having received the notice referred to in
the first sentence of this paragraph, the indemnifying party will pay the
reasonable fees and expenses of counsel (which shall be limited to a single law
firm) for the
-10-
<PAGE>
indemnified party. In such event, however, the indemnifying party will not be
liable for any settlement effected without the written consent of such
indemnifying party. If the indemnifying party assumes the defense of any such
action or proceeding in accordance with this paragraph, such indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
party incurred thereafter in connection with such action or proceeding, except
as set forth in the proviso in the second sentence of this Section 5(c).
(d) Contribution. In order to provide for just and equitable contribution
------------
in circumstances in which the indemnity agreement provided for in this Section 5
is for any reason held to be unenforceable although applicable in accordance
with its terms, the Company and the selling Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the selling
Holders, in such proportion as is appropriate to reflect the relative fault of
and benefits to the Company on the one hand and the selling Holders on the other
(in such proportion that the selling Holders are severally, not jointly,
responsible for the balance), in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits to the
indemnifying party and indemnified parties shall be determined by reference to,
among other things, the total proceeds received by the indemnified party and
indemnified parties in connection with the offering to which such losses,
claims, damages, liabilities or expenses relate. The relative fault of the
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether the action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or the indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), a Holder shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shelf Registrable Securities of such Holder were offered to
the public exceeds the amount of any damages which such Holder would otherwise
have been required to pay by reason of such untrue statement or omission.
Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 5(d), each Person,
if any, who controls any Holder within the meaning of Section 15 of the
Securities Act and beneficial owners, directors and officers of any Holder shall
have the same rights to contribution as any member of the Holders, and each
director of the Company, each officer of the Company who signed the Shelf
Registration Statement, and each Person, if any, who controls the Company within
-11-
<PAGE>
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company.
(e) In the event any sale pursuant to a Shelf Registration is an
underwritten offering, then the Company agrees to indemnify and hold harmless
each underwriter of Shelf Registrable Securities to the same extent and on
substantially similar terms as the Company's indemnification of the members of
the Holders as set forth in Section 5(a) above.
6. Rule 144 Sales.
--------------
(a) Compliance. The Company covenants that, so long as it is subject to
----------
the reporting requirements of the Exchange Act, it will file the reports
required to be filed by it under the Exchange Act so as to enable Holders to
sell Shelf Registrable Securities pursuant to Rule 144 under the Securities Act.
(b) Cooperation with the Holders. In connection with any sale, transfer
----------------------------
or other disposition by a Holder of any Shelf Registrable Securities pursuant to
Rule 144 under the Securities Act, the Company shall cooperate with such Holder
to facilitate the timely preparation and delivery of certificates representing
Shelf Registrable Securities to be sold and not bearing any Securities Act
legend, and enable certificates for such Shelf Registrable Securities to be for
such number of shares as such Holder may reasonably request at least two
business days prior to any sale of Shelf Registrable Securities.
7. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Agreement, including
----------------------
the provisions of this sentence, may not be amended, modified, supplemented or
waived, nor may consent to departures therefrom be given, without the written
consent of the Company and the Holders.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery,
(i) if to the Holders, at the respective addresses set forth in the Contribution
Agreement or (ii) if to the Company, at 4497 Park Drive, Norcross, Georgia
30093, Attention: A. R. Weeks, Jr.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; or at
the time delivered if delivered by an air courier guaranteeing overnight
delivery.
(c) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors, permitted assigns and permitted transferees
of each of the parties. If any
-12-
<PAGE>
successor, permitted assignee or permitted transferee of any Holder shall
acquire Shelf Registrable Securities, in any manner, whether by operation of law
or otherwise, such Shelf Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Shelf Registrable
Securities such Person shall be entitled to receive the benefits hereof and
shall be conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
(d) Third Party Beneficiaries. There shall be no third party
-------------------------
beneficiaries or intended beneficiaries of this Agreement
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Georgia without giving effect to the
conflicts of law provisions thereof.
(h) Specific Performance. The parties hereto acknowledge that there would
--------------------
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction.
(i) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
-13-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above
WEEKS CORPORATION
By: /s/ Thomas D. Senkbeil
--------------------------------------------
Name:
Title:
THE BENENSON CAPITAL COMPANY
By: /s/ Charles B. Benenson
--------------------------------------------
Name:
Title:
RAHA ASSOCIATES, INC.
By: /s/ Charles B. Benenson
--------------------------------------------
Name:
Title:
/s/ Laurence Tisch
------------------------------------------------
LAURENCE TISCH
/s/ Preston Tisch
------------------------------------------------
PRESTON TISCH
-14-
<PAGE>
EXHIBIT 10.3
================================================================================
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Dated as of January 9, 1998
by and among
WEEKS CORPORATION
and
ARMANDO CODINA, CODINA
FAMILY INVESTMENTS, LTD., and
CODINA WEST DADE DEVELOPMENT CORPORATION
================================================================================
<PAGE>
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement") is made
and entered into as of January 9, 1998 by and among WEEKS CORPORATION, a Georgia
corporation (the "Company"), ARMANDO CODINA, an individual resident of the State
of Florida ("Codina"), CODINA FAMILY INVESTMENTS, LTD., a Florida limited
partnership ("CFI"), CODINA WEST DADE DEVELOPMENT CORPORATION, a Florida
corporation ("West Dade") (collectively, Codina, CFI and West Dade are referred
to hereafter as the "Holders").
WHEREAS, this Agreement is made pursuant to the Beacon Centre Contribution
Agreement by and among Weeks Realty, L.P., a Georgia limited partnership (the
"Operating Partnership"), and the Contributors (as therein defined) dated as of
January 2, 1998 (the "Contribution Agreement");
WHEREAS, the Holders will become the owners of Units (as defined below) in
the Operating Partnership, in connection with the transactions described in the
Contribution Agreement;
WHEREAS, in order to induce the Operating Partnership to enter into the
transactions described in the Contribution Agreement, each of the Holders has
agreed to the Holders Lock-up (as defined below) set forth in Section 2 hereof;
and
WHEREAS, in order to induce the Holders to enter into the transactions
described in the Contribution Agreement, the Company has agreed, with respect to
the Units issued pursuant to the Contribution Agreement to provide the Holders
with the registration rights set forth in Section 3 hereof;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
-----------
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Common Stock" shall mean the Common Stock, par value $.01 per share, of
------------
the Company.
"Company" shall have the meaning set forth in the Preamble and also shall
-------
include the Company's successors.
"Contribution Agreement" shall have the meaning set forth in the Preamble.
----------------------
<PAGE>
"Control" shall mean the ability, whether by the direct or indirect
-------
ownership of shares or other equity interests, by contract or otherwise, to
select a majority of the directors of a corporation, to select the managing
partner of a partnership, to select the manager of a limited liability company
or otherwise to select, or have the power to remove and then select, a majority
of those persons exercising governing authority over an Entity. In the case of
a limited partnership, the sole general partner, each of the general partners
that has equal management control and authority, or the designated managing
general partner or managing general partners thereof shall be deemed to have
control of such partnership. In the case of a trust, any trustee thereof or any
Person having the right to select any such trustee shall be deemed to have
control of such trust.
"Dispose of" shall have the meaning set forth in Section 2 hereof.
----------
"Entity" shall mean any general partnership, limited partnership,
------
corporation, limited liability company, joint venture, trust, business trust,
cooperative or association.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
------------
from time to time.
"Holders" shall have the meaning set forth in the Preamble. Holder shall
-------
mean each individual Holder.
"Holders Lock-up" shall have the meaning set forth in Section 2 hereof.
---------------
"Holders Lock-up Period" shall have the meaning set forth in Section 2
----------------------
hereof.
"Immediate Family Member" shall mean any child, stepchild, grandchild,
-----------------------
parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law of Codina (and
shall include adoptive relationships).
"NASD" shall mean the National Association of Securities Dealers, Inc.
----
"Operating Partnership" shall have the meaning set forth in the Preamble
---------------------
and also shall include the Operating Partnership's successors and assigns.
"Partnership Agreement" shall mean the Second Amended and Restated
---------------------
Agreement of Limited Partnership of the Operating Partnership, as amended.
"Person" shall mean any individual or Entity.
------
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities Act" shall mean the Securities Act of 1933, as amended from
--------------
time to time.
-2-
<PAGE>
"Selling Expenses" shall mean all underwriting discounts and selling
----------------
commissions and transfer taxes applicable to the sale of Shelf Registrable
Securities and disbursements of underwriters.
"Shares" shall mean any Common Stock issued or issuable to Holders upon
------
redemption of Units.
"Shelf Prospectus" shall mean the prospectus included in the Shelf
----------------
Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, including any supplement relating to the terms of the
offering of any portion of the Shelf Registrable Securities covered by the Shelf
Registration Statement, and in each case including all material incorporated by
reference therein.
"Shelf Registration" shall mean a registration required to be effected
------------------
pursuant to Section 3 hereof.
"Shelf Registrable Securities" shall mean the Shares held by the Holders,
----------------------------
excluding (i) Shares that have been registered under any other effective
registration statement, (ii) Shares sold or otherwise transferred pursuant to
Rule 144 under the Securities Act, and (iii) Shares held by the Holders if all
of such Shares are eligible for sale pursuant to Rule 144 under the Securities
Act and could be sold in one transaction in accordance with the volume
limitations contained in Rule 144(e)(1)(i) under the Securities Act.
"Shelf Registration Expenses" shall mean any and all expenses incident to
---------------------------
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange and NASD registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with qualification of any of the Shelf Registrable Securities under
any state securities or blue sky laws and the preparation of a blue sky
memorandum) and compliance with the rules of the NASD, (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing the Shelf Registration Statement, any Shelf Prospectus,
certificates and other documents relating to the performance of and compliance
with this Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Shelf Registrable Securities on any securities
exchange or exchanges pursuant to Section 4(l) hereof, (v) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, and (vi) all other costs and expenses normally associated with the
issuance and sale of newly issued public securities other than Selling Expenses.
"Shelf Registration Notice" shall have the meaning set forth in Section
-------------------------
4(b) hereof.
-3-
<PAGE>
"Shelf Registration Statement" shall mean a registration statement of the
----------------------------
Company (and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act) that
covers all of the Shelf Registrable Securities to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments (including post-
effective amendments) to such registration statement, and all exhibits thereto
and materials incorporated by reference therein.
"Units" shall mean the limited partnership interests of the Operating
-----
Partnership issued or issuable to Holders pursuant to the Contribution
Agreement, which interests are redeemable for Common Stock, or at the Operating
Partnership's option, cash.
2. Lock-Up Agreement.
-----------------
(a) Lock-Up for the Holders. Each Holder hereby agrees that with respect
-----------------------
to all Units issued pursuant to the Contribution Agreement from the date of
issuance of each Unit until the earlier of (i) the third anniversary of the date
hereof, (ii) the date which is three months after the date hereof if Codina has
not been appointed as a member of the Board of Directors of the Company, (iii)
the date on which Codina ceases to serve as a member of the Board of Directors
of the Company (other than pursuant to a voluntary resignation), and (iv) the
death of Codina, such Holder will not offer, sell, contract to sell, distribute,
redeem, convert or otherwise dispose of (collectively, "Dispose of"), directly
or indirectly, to any Person any such Units (collectively, the lock-ups are
referred to as the "Holders Lock-up" and the lock-up periods are referred to as
the "Holders Lock-up Period"); provided, however, that subject to the
limitations contained in the Contribution Agreement and the Partnership
Agreement (including, without limitation, the right of the Operating Partnership
and its affiliates to pay cash for the Units to be exchanged), each Holder may
exchange its Units for shares of Common Stock, upon the prior written consent of
the Company, which consent shall not be unreasonably withheld, provided that
such Holder shall agree that each of the provisions of this Section 2 will be
applicable to the shares of Common Stock so issued.
(b) Lock-up of the Beneficial Interest Held by Codina in CFI and West
-----------------------------------------------------------------
Dade. Codina hereby agrees that until the expiration of the Holders Lock-up
- ----
Period, without the prior written consent of the Company, the owners of the
beneficial interests in CFI and West Dade will not Dispose of, directly or
indirectly, any beneficial ownership interest that such individual holds in CFI
or West Dade.
(c) Exceptions. The following transfers of Units shall not be subject to
----------
the Holders Lock-up set forth in Section 2(a) or the restrictions imposed on the
owners of the beneficial interests in CFI and West Dade as provided for in
Section 2(b):
(i) subject to applicable restrictions contained in the Partnership
Agreement, a Holder may Dispose of its Units to an Immediate Family Member
and to entities entirely owned, directly or indirectly, by or for the
benefit of Codina and Immediate Family Members; and
-4-
<PAGE>
(ii) subject to applicable restrictions contained in the Partnership
Agreement, a Holder may Dispose of its Units pursuant to a pledge, grant
of security interest or other encumbrance effected in a bona fide
transaction with an unrelated and unaffiliated pledgee;
provided, however, that the transferee or transferees shall each be an
- -------- -------
"accredited investor" within the meaning of Rule 501(a) of Regulation D under
the Securities Act.
In the event a Holder Disposes of Units pursuant to this Section 2(c), (i) such
Units shall remain subject to this Agreement and, as a condition of the validity
of such disposition, the transferee shall be required to execute and deliver a
counterpart of this Agreement; and (ii) if the transferee is an entity in which
the transferring Holder owns an interest, then the interest of such Holder in
such transferee shall be subject to the Holders Lock-up. Thereafter, such
transferee shall be deemed to be a Holder for purposes of this Agreement.
3. Shelf Registration Under the Securities Act for the Benefit of the
------------------------------------------------------------------
Holders.
-------
(a) Filing of Shelf Registration Statement. The Company shall cause to
--------------------------------------
be filed within 10 business days after the expiration of the Holders Lock-up
Period, a Shelf Registration Statement providing for the sale by the Holders of
all Shelf Registrable Securities, not theretofore registered, in accordance with
the terms hereof and will use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as soon as
practicable thereafter. The Company agrees to use its reasonable best efforts
to keep the Shelf Registration Statement with respect to the Shelf Registrable
Securities continuously effective so long as the Holders hold such Shelf
Registrable Securities. Subject to Section 4(b) and Section 4(i), the Company
further agrees to amend the Shelf Registration Statement if and as required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the Securities Act or
any rules and regulations thereunder; provided, however, that the Company shall
-------- -------
not be deemed to have used its reasonable and diligent efforts to keep the Shelf
Registration Statement effective during the applicable period if it voluntarily
takes any action that would result in the Holders not being able to sell Shelf
Registrable Securities covered thereby during that period, unless such action is
required under applicable law or the Company has filed a post-effective
amendment (other than one which removes Shelf Registrable Securities from
effective registration under the Securities Act) to the Shelf Registration
Statement and the SEC has not declared it effective or except as otherwise
permitted by the last three sentences of Section 4(b). Notwithstanding anything
in Section 4(b) or Section 5 to the contrary, the Holders will not be precluded
from making offers or sales under the Shelf Registration Statement for more than
an aggregate of one hundred thirty two (132) days during any twelve-month
period.
(b) Expenses. The Company shall pay all Shelf Registration Expenses in
--------
connection with each registration pursuant to Section 3(a). Each Holder shall
pay all Selling Expenses and the fees and disbursements of counsel representing
such Holder, if any, relating to the sale or disposition of such Shelf
Registrable Securities pursuant to the Shelf Registration Statement.
-5-
<PAGE>
(c) Inclusion in Shelf Registration Statement. If any Holder does not
-----------------------------------------
provide the information reasonably requested by the Company in connection with
the Shelf Registration Statement as promptly as practicable after receipt of
such request, but in no event later than ten (10) days thereafter, it shall not
be entitled to have its Shelf Registrable Securities included in the Shelf
Registration Statement.
4. Shelf Registration Procedures.
-----------------------------
In connection with the obligations of the Company with respect to each
Shelf Registration Statement contemplated by Section 3 hereof, the Company
shall:
(a) prepare and file with the SEC, within the time period set forth
in Section 3 hereof, the Shelf Registration Statement, which Shelf
Registration Statement (i) shall be available for the sale of the Shelf
Registrable Securities in accordance with the intended method or methods
of distribution by the Holders covered thereby and (ii) shall comply as to
form in all material respects with the requirements of the applicable form
and include all financial statements required by the SEC to be filed
therewith;
(b) subject to the last three sentences of this Section 4(b) and
Section 4(i) hereof, (i) prepare and file with the SEC such amendments to
such Shelf Registration Statement as may be necessary to keep such Shelf
Registration Statement effective for the applicable period; (ii) cause the
Shelf Prospectus to be amended or supplemented as required and to be filed
as required by Rule 424 or any similar rule that may be adopted under the
Securities Act; (iii) respond as promptly as practicable to any comments
received from the SEC with respect to the Shelf Registration Statement or
any amendment thereto; and (iv) comply with the provisions of the
Securities Act with respect to the disposition of all securities covered
by such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
Holders covered thereby. Notwithstanding anything to the contrary
contained herein, the Company shall not be required to take any of the
actions described in clauses (i), (ii) or (iii) in this Section 4(b),
Section 4(d) or Section 4(i) with respect to the Shelf Registrable
Securities (x) to the extent that the Company is in possession of material
non-public information that it deems advisable not to disclose or is
engaged in active negotiations or planning for a merger or acquisition or
disposition transaction and it delivers written notice to the Holders to
the effect that the Holders may not make offers or sales under the Shelf
Registration Statement for a period not to exceed sixty (60) days from the
date of such notice; provided, however, that the Company may deliver only
-------- -------
two such notices within any twelve-month period, and (y) unless and until
the Company has received a written notice (a "Shelf Registration Notice")
from the Holders that they intend to make offers or sales under the Shelf
Registration Statement as specified in such Shelf Registration Notice;
provided, however, that the Company shall have ten (10) business days to
-------- -------
prepare and file any such amendment or supplement after receipt of the
Shelf Registration Notice. Once the Holders have delivered a Shelf
Registration Notice to the Company, each Holder covered thereby shall
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<PAGE>
promptly provide to the Company such information as the Company reasonably
requests in order to identify the method of distribution in a post-
effective amendment to the Shelf Registration Statement or a supplement to
the Shelf Prospectus. Such Holders also shall notify the Company in
writing upon completion of such offer or sale or at such time as such
Holders no longer intend to make offers or sales under the Shelf
Registration Statement;
(c) after the Holders have delivered a Shelf Registration Notice to
the Company, furnish each Holder covered thereby, without charge, as many
copies of each Shelf Prospectus and any amendment or supplement thereto in
order to facilitate the public sale or other disposition of the Shelf
Registrable Securities; the Company consents to the use of the Shelf
Prospectus and any amendment or supplement thereto by the Holders of Shelf
Registrable Securities in connection with the offering and sale of the
Shelf Registrable Securities covered by the Shelf Prospectus or amendment
or supplement thereto;
(d) use its reasonable best efforts to register or qualify the Shelf
Registrable Securities by the time the Shelf Registration Statement is
declared effective by the SEC under all applicable state securities or
blue sky laws of such jurisdictions in the United States and its
territories and possessions as the Holders shall reasonably request in
writing, keep each such registration or qualification effective during the
period such Shelf Registration Statement is required to be kept effective
or during the period offers or sales are being made by the Holders after
they have delivered a Shelf Registration Notice to the Company, whichever
is shorter; provided, however, that in connection therewith, the Company
-------- -------
shall not be required to (i) qualify as a foreign corporation to do
business or to register as a broker or dealer in any such jurisdiction
where it would not otherwise be required to qualify or register but for
this Section 4(d), (ii) subject itself to taxation in any such
jurisdiction where is not otherwise subject to taxation, or (iii) file a
general consent to service of process in any such jurisdiction;
(e) notify the Holders promptly and confirm in writing, (i) when the
Shelf Registration Statement and any post-effective amendments thereto
have become effective, (ii) when any amendment or supplement to the Shelf
Prospectus has been filed with the SEC, (iii) of the issuance by the SEC
or any state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or any part thereof or
the initiation of any proceedings for that purpose, (iv) if the Company
receives any notification with respect to the suspension of the
qualification of the Shelf Registrable Securities for offer or sale in any
jurisdiction or the initiation of any proceeding for such purpose, and (v)
of the happening of any event during the period the Shelf Registration
Statement is effective as a result of which (A) such Shelf Registration
Statement contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading or (B) the Shelf Prospectus as then
amended or supplemented contains any untrue statement of a material fact
or omits
-7-
<PAGE>
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;
(f) make every reasonable best effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement or
any part thereof as promptly as possible;
(g) after the Holders have delivered a Shelf Registration Notice to
the Company, furnish to each Holder covered thereby, without charge, at
least one conformed copy of the Shelf Registration Statement and any post-
effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) cooperate with each selling Holder to facilitate the timely
preparation and delivery of certificates representing Shelf Registrable
Securities to be sold and not bearing any Securities Act legend; and
enable certificates for such Shelf Registrable Securities to be issued for
such numbers of shares as each Holder may reasonably request at least two
business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon
the occurrence of any event contemplated by clause (x) of Section 4(b) or
clause (v) of Section 4(e) hereof, use its reasonable and diligent efforts
promptly to prepare and file an amendment or a supplement to the Shelf
Prospectus or any document incorporated therein by reference or prepare,
file and obtain effectiveness of a post-effective amendment to the Shelf
Registration Statement, or file any other required document, in any such
case to the extent necessary so that, as thereafter delivered to the
purchasers of the Shelf Registrable Securities, such Shelf Prospectus as
then amended or supplemented will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they are made, not misleading;
(j) after the Holders have provided a Shelf Registration Notice to
the Company, make available for inspection by each Holder covered thereby
and any counsel, accountants or other representatives retained by such
Holder all financial and other records, pertinent corporate documents and
properties of the Company and cause the officers, directors and employees
of the Company to supply all such records, documents or information
reasonably requested by such Holder, counsel, accountants or
representatives in connection with the Shelf Registration Statement;
provided, however, that such records, documents or information which the
-------- -------
Company determines in good faith to be confidential and notifies such
Holder, counsel, accountants or representatives in writing that such
records, documents or information are confidential shall not be disclosed
by such Holder, counsel, accountants or representatives unless (i) such
disclosure is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or governmental agency, or (ii) such
-8-
<PAGE>
records, documents or information become generally available to the public
other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration
Statement or any amendment thereto, or any Shelf Prospectus or any
amendment or supplement thereto, provide copies of such document (not
including any documents incorporated by reference therein unless
requested) to each Holder covered thereby after the Holders have provided
a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf
Registrable Securities to be listed on any securities exchange on which
similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not
later than the effective date of a Shelf Registration Statement; and
(n) use its reasonable efforts to make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
at least 12 months which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder or any similar rule as may be
adopted by the SEC.
The Company may require each Holder to furnish to the Company in writing
such information regarding the proposed distribution by such Holder as the
Company may from time to time reasonably request in writing.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Section 3 hereof and
this Section 4, each Holder covenants and agrees that (i) it will not offer or
sell any Shelf Registrable Securities under the Shelf Registration Statement
until it has provided a Shelf Registration Notice pursuant to Section 4(b) and
has received copies of the Shelf Prospectus as then amended or supplemented as
contemplated by Section 4(c) and notice from the Company that the Shelf
Registration Statement and any post-effective amendments thereto have become
effective as contemplated by Section 4(e); (ii) upon receipt of any notice from
the Company contemplated by Section 4(b) or Section 4(e) (in respect of the
occurrence of an event contemplated by clause (v) of Section 4(e)), such Holder
shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf
Registration Statement until such Holder receives copies of the supplemented or
amended Shelf Prospectus contemplated by Section 4(i) hereof and receives notice
that any post-effective amendment has become effective, and, if so directed by
the Company, such Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Shelf Prospectus as amended or supplemented at
the time of receipt of such notice; (iii) all offers and sales by such Holder
under the Shelf Registration Statement shall be completed within sixty (60) days
after the first date on which offers or sales can be made pursuant to clause (i)
above, and upon
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<PAGE>
expiration of such sixty (60) day period, such Holder will not offer or sell any
Shelf Registrable Securities under the Shelf Registration Statement until it has
again complied with the provisions of clause (i) above; (iv) such Holder and any
of its beneficial owners, officers, directors or affiliates, if any, will comply
with the provisions of Regulation M promulgated by the SEC as applicable to them
in connection with sales of Shelf Registrable Securities pursuant to the Shelf
Registration Statement; (v) such Holder and any of its beneficial owners,
officers, directors or affiliates, if any, will comply with the prospectus
delivery requirements of the Securities Act as applicable to them in connection
with sales of Shelf Registrable Securities pursuant to the Shelf Registration
Statement; and (vi) such Holder and any of its beneficial owners, officers,
directors or affiliates, if any, will enter into such written agreements as the
Company shall reasonably request to ensure compliance with clause (iv) and (v)
above.
5. Holdback Agreement. Subject to the provisions of Section 3(a), each
------------------
Holder agrees not to effect any public sale or distribution (including sales
pursuant to Rule 144) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
7 days prior to (provided that such Holder receives a notice from the Company of
the commencement of such 7-day period) and the 45-day period beginning on the
effective date of any underwritten offering of securities by the Company (except
as part of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
6. Indemnification; Contribution.
-----------------------------
(a) Indemnification by the Company. The Company agrees to indemnify and
------------------------------
hold harmless each Holder and the beneficial owners, officers and directors and
each Person, if any, who controls each Holder within the meaning of Section 15
of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to which each Holder, or any beneficial owner,
officer, director or controlling Person may become subject under the
Securities Act or otherwise (A) that arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Shelf Registration Statement or any amendment thereto, or 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 or (B) that arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Shelf
Prospectus or any amendment or supplement thereto, or the omission or
alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or alleged
-10-
<PAGE>
untrue statement or any omission or alleged omission, if such settlement
is effected with the written consent of the Company; and
(iii) subject to the limitations set forth in Section 6(c),
against any and all expense whatsoever, as incurred (including reasonable
fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, in
each case whether or not a party, or any claim whatsoever based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 6(a)
- -------- -------
shall not apply with respect to any loss, liability, claim, damage or expense
that arise out of or are based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by any Holder (i)
expressly for use in the Shelf Registration Statement or any amendment thereto,
or the Shelf Prospectus or any amendment or supplement thereto or (ii) pursuant
to any representation, warranty or other statement contained in the Contribution
Agreement or any admission amendment to the Partnership Agreement.
(b) Indemnification by the Holders. Each Holder severally agrees to
------------------------------
indemnify and hold harmless the Company, and each of its respective directors
and officers (including each director and officer of the Company who signed the
Shelf Registration Statement), and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, to the same extent as
the indemnity contained in Section 6(a) hereof, but only insofar as such loss,
liability, claim, damage or expense arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Shelf Registration Statement or any amendment thereto, or the Shelf
Prospectus or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use therein. In no event, however shall the liability of a Holder
exceed the cumulative net proceeds received by such Holder from any offering
made in connection with a Shelf Registration Statement.
(c) Conduct of Indemnification Proceedings. Each indemnified party shall
--------------------------------------
give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity agreement provided
in Section 6(a) or (b) above, unless and to the extent it did not otherwise
learn of such action and the lack of notice by the indemnified party materially
prejudices the indemnifying party or results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided under Section 6(a) or
(b) above. After receipt of such notice, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, jointly
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<PAGE>
with any other indemnifying party so notified, to assume the defense of such
action or proceeding at such indemnifying party's own expense with counsel
chosen by such indemnifying party and approved by the indemnified party, which
approval shall not be unreasonably withheld; provided, however, that, if the
-------- -------
defendants in any such action or proceeding include both the indemnified party
and the indemnifying party and the indemnified party reasonably determines, upon
advice of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, then the indemnified
party shall be entitled to separate counsel (which shall be limited to a single
law firm), the reasonable fees and expenses of which shall be paid by the
indemnifying party. If the indemnifying party does not assume the defense of any
such action or proceeding, after having received the notice referred to in the
first sentence of this paragraph, the indemnifying party will pay the reasonable
fees and expenses of counsel (which shall be limited to a single law firm) for
the indemnified party. In such event, however, the indemnifying party will not
be liable for any settlement effected without the written consent of such
indemnifying party. If the indemnifying party assumes the defense of any such
action or proceeding in accordance with this paragraph, such indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
party incurred thereafter in connection with such action or proceeding, except
as set forth in the proviso in the second sentence of this Section 6(c).
(d) Contribution. In order to provide for just and equitable contribution
------------
in circumstances in which the indemnity agreement provided for in this Section 6
is for any reason held to be unenforceable although applicable in accordance
with its terms, the Company and the selling Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the selling
Holders, in such proportion as is appropriate to reflect the relative fault of
and benefits to the Company on the one hand and the selling Holders on the other
(in such proportion that the selling Holders are severally, not jointly,
responsible for the balance), in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits to the
indemnifying party and indemnified parties shall be determined by reference to,
among other things, the total proceeds received by the indemnified party and
indemnified parties in connection with the offering to which such losses,
claims, damages, liabilities or expenses relate. The relative fault of the
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether the action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or the indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), a Holder shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shelf Registrable Securities
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<PAGE>
of such Holder were offered to the public exceeds the amount of any damages
which such Holder would otherwise have been required to pay by reason of such
untrue statement or omission.
Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6(d), each Person,
if any, who controls any Holder within the meaning of Section 15 of the
Securities Act and beneficial owners, directors and officers of any Holder shall
have the same rights to contribution as any member of the Holders, and each
director of the Company, each officer of the Company who signed the Shelf
Registration Statement, and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company.
(e) In the event any sale pursuant to a Shelf Registration is an
underwritten offering, then the Company agrees to indemnify and hold harmless
each underwriter of Shelf Registrable Securities to the same extent and on
substantially similar terms as the Company's indemnification of the members of
the Holders as set forth in Section 6(a) above.
7. Rule 144 Sales.
--------------
(a) Compliance. The Company covenants that, so long as it is subject to
----------
the reporting requirements of the Exchange Act, it will file the reports
required to be filed by it under the Exchange Act so as to enable Holders to
sell Shelf Registrable Securities pursuant to Rule 144 under the Securities Act.
(b) Cooperation with the Holders. In connection with any sale, transfer
----------------------------
or other disposition by a Holder of any Shelf Registrable Securities pursuant to
Rule 144 under the Securities Act, the Company shall cooperate with such Holder
to facilitate the timely preparation and delivery of certificates representing
Shelf Registrable Securities to be sold and not bearing any Securities Act
legend, and enable certificates for such Shelf Registrable Securities to be for
such number of shares as such Holder may reasonably request at least two
business days prior to any sale of Shelf Registrable Securities.
8. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Agreement, including
----------------------
the provisions of this sentence, may not be amended, modified, supplemented or
waived, nor may consent to departures therefrom be given, without the written
consent of the Company and the Holders.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier
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<PAGE>
guaranteeing overnight delivery, (i) if to the Holders, at the respective
addresses set forth in the Contribution Agreement or (ii) if to the Company, at
4497 Park Drive, Norcross, Georgia 30093, Attention: A. R. Weeks, Jr.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; or at
the time delivered if delivered by an air courier guaranteeing overnight
delivery.
(c) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors, permitted assigns and permitted transferees
of each of the parties. If any successor, permitted assignee or permitted
transferee of any Holder shall acquire Shelf Registrable Securities, in any
manner, whether by operation of law or otherwise, such Shelf Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Shelf Registrable Securities such Person shall be
entitled to receive the benefits hereof and shall be conclusively deemed to have
agreed to be bound by all of the terms and provisions hereof.
(d) Third Party Beneficiaries. There shall be no third party
-------------------------
beneficiaries or intended beneficiaries of this Agreement
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Georgia without giving effect to the
conflicts of law provisions thereof.
(h) Specific Performance. The parties hereto acknowledge that there would
--------------------
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction.
(i) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above
WEEKS CORPORATION
By: /s/ Thomas D. Senkbeil
--------------------------------------------
Name:
Title:
CODINA FAMILY INVESTMENTS, LTD.
By: Codina Investments, Inc.
By: /s/ Armando Codina
----------------------------------------
Name:
Title:
/s/ Armando Codina
-----------------------------------------------
ARMANDO CODINA
CODINA WEST DADE DEVELOPMENT CORPORATION
By: /s/ Armando Codina
--------------------------------------------
Name:
Title:
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