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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) March 17, 1998
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Weeks Realty, L.P.
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(Exact name of registrant as specified in its charter)
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Georgia 000-22933 58-2121388
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
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4497 Park Drive, Norcross, Georgia 30093
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 923-4076
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Item 5. Other Events
Weeks Realty, L.P. is filing this Current Report on Form 8-K so as to file
with the Securities and Exchange Commission certain items that are to be
incorporated by reference into that certain Registration Statement, File No.
333-32755, filed under the Securities Act of 1933, as amended.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits
1.1 Underwriting Agreement among Weeks Corporation, Weeks
Realty, L.P. and the Underwriters named therein dated
as of March 17, 1998
1.2 Pricing Agreement among Weeks Corporation, Weeks Realty, L.P.
and the Underwriters named therein dated as of March 17, 1998
4.1 Indenture among Weeks Realty, L.P. and State Street Bank and
Trust Company, as Trustee (Incorporated by reference to
Exhibit 2 to the Registrant's Registration Statement on
Form 8-A dated March 17, 1998 filed with the Commission on
March 18, 1998)
4.2 Specimen 6-7/8% Note due March 15, 2005 (Incorporated by reference to
Exhibit 1 to the Registrant's Registration Statement on
Form 8-A dated March 17, 1998 filed with the Commission on
March 18, 1998)
5.1 Opinion of King & Spalding regarding legality of issuance of
6-7/8% Notes due March 15, 2005
10.1 Securities Purchase Agreement among Codina Group, Inc.,
Armando Codina, St. Joe Corporation and Weeks Realty Services,
Inc. dated as of February __, 1997
10.2 Shareholders' Agreement among Codina Group, Inc.,
Armando Codina, St. Joe Corporation and Weeks Realty Services,
Inc. dated as of February __, 1997
12.1 Statement regarding Computation of Ratio of Earnings to
Fixed Charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of King & Spalding (included as part of Exhibit 5.1
hereto)
99.1 Press Release of Weeks Corporation, dated March 18, 1998
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
WEEKS REALTY, L.P.
(Registrant)
Date: March __, 1998 By: Weeks GP Holdings, Inc.,
as General Partner
By:
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David P. Stockert
Senior Vice President
and Chief Financial
Officer
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EXHIBIT INDEX
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1.1 Underwriting Agreement among Weeks Corporation, Weeks
Realty, L.P. and the Underwriters named therein dated
as of March 17, 1998
1.2 Pricing Agreement among Weeks Corporation, Weeks Realty, L.P.
and the Underwriters named therein dated as of March 17, 1998
4.1 Indenture among Weeks Realty, L.P. and State Street Bank and
Trust Company, as Trustee (Incorporated by reference to
Exhibit 2 to the Registrant's Registration Statement on
Form 8-A dated March 17, 1998 filed with the Commission on
March 18, 1998)
4.2 Specimen 6-7/8% Note due March 15, 2005 (Incorporated by
reference to Exhibit 1 to the Registrant's Registration Statement
on Form 8-A dated March 17, 1998 filed with the Commission on
March 18, 1998)
5.1 Opinion of King & Spalding regarding legality of issuance of
6-7/8% Notes due March 15, 2005
10.1 Securities Purchase Agreement among Codina Group, Inc.,
Armando Codina, St. Joe Corporation and Weeks Realty Services,
Inc. dated as of February __, 1997
10.2 Shareholders' Agreement among Codina Group, Inc.,
Armando Codina, St. Joe Corporation and Weeks Realty Services,
Inc. dated as of February __, 1997
12.1 Statement regarding Computation of Ratio of Earnings to
Fixed Charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of King & Spalding (included as part of Exhibit 5.1
hereto)
99.1 Press Release of Weeks Corporation, dated March 18, 1998
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EXHIBIT 1.1
WEEKS REALTY, L.P.
Debt Securities
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Underwriting Agreement
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March 17, 1998
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described.
Ladies and Gentlemen:
From time to time Weeks Realty, L.P., a Georgia limited partnership (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase any of the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
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Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-32755) in
respect of the Securities has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any post-
effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933
(the "Act"), which became effective upon filing, no other document with
respect to such registration statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission (other than prospectuses filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Act, each in the form
heretofore delivered to the Representatives); and no stop order suspending
the effectiveness of such registration statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule 424(a)
under the Act, is hereinafter called a "Preliminary Prospectus"); the
various parts of such registration statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective but excluding Form T-1, each as
amended at the time such part of the registration statement became
effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, are hereinafter collectively called
the "Registration Statement"; the prospectus relating to the Securities, in
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the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
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and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(d) None of Weeks Corporation ("Weeks"), a Georgia corporation, Weeks
GP Holdings, Inc., a Georgia corporation wholly owned by Weeks ("Weeks GP")
and the sole owner of an approximate 1% general partnership interest in
the Company, Weeks LP Holdings, Inc. ("Weeks LP"), a Georgia corporation
wholly owned by Weeks and a limited partner in the Company, the Company,
Weeks GP, Weeks Realty Services, Inc. ("Weeks Realty Services"), a Georgia
corporation and subsidiary of the Company, Weeks Construction Services,
Inc. ("Weeks Construction Services"), a Georgia corporation and subsidiary
of the Company, Weeks Financing Limited Partnership (the "Financing
Partnership"), a Georgia limited partnership of which 99% is owned by the
Company and 1% is owned by Weeks Realty Services, Weeks Development
Partnership ("Weeks Development"), a Georgia limited partnership owned 25%
by Weeks Realty Services and 75% by Weeks Construction Services, or any of
their respective subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus which loss or
interference would have a material adverse effect on the consolidated
financial position or results of operations of Weeks, the Company and their
subsidiaries taken as a whole (for purposes of this Underwriting Agreement,
the terms "subsidiary" and "subsidiaries" refer to any corporation,
partnership, limited liability company, trust or other organization or
association in which Weeks and/or the Company owns a direct or indirect
voting or economic interest of more than 50%); and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there has not been any material change in the partnership
capital of the Company or capital stock of Weeks, short-term debt or long-
term debt of the Company or Weeks or the capital stock or equity capital
or short-term debt or long-term debt of any of the Company's subsidiaries
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity, partnership capital or results of
operations, as applicable, of Weeks, the Company, or any of their
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented;
(e) The Company, Weeks and their subsidiaries have good and marketable
title in fee simple to all real property and own all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus as amended or
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supplemented or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company, Weeks and their subsidiaries; and any real
property and buildings held under lease by Weeks, the Company and their
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by
Weeks, the Company and their subsidiaries, in each case except as set forth
in the Prospectus;
(f) Each of the Company and each subsidiary that is a partnership has
been duly organized and is validly existing as a partnership in good
standing, if applicable, under the laws of its jurisdiction of
organization, has the partnership power and authority to own its properties
and conduct its business as described in the Prospectus, and has been duly
qualified as a foreign partnership or otherwise for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified or be in good
standing in any such jurisdiction; each of Weeks and each subsidiary that
is a corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia, has
the corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
or is subject to no material liability or disability by reason of the
failure to be so qualified or be in good standing in any such jurisdiction;
and each subsidiary that is a limited liability company has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of its jurisdiction of formation, has the limited
liability company power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign limited liability company for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is ubject to no material liability or disability by
reason of the failure to be so qualified or be in good standing in any such
jurisdiction;
(g) Weeks has no direct subsidiaries other than Weeks GP and Weeks LP;
and the Company has no material subsidiaries other than Weeks Construction
Services, Weeks Realty Services, Weeks Development, the Financing
Partnership, Weeks Special Purpose, LLC, a Georgia limited liability
company, Weeks SPV Financing, LLC, a Georgia limited liability company,
Weeks NC Financing Limited Partnership, a Georgia limited partnership,
Weeks Tradeport Limited Partnership, a Georgia limited partnership, Weeks
Highland Oaks Limited Partnership, a Georgia limited partnership,
Weeks/Skyland Joint Venture, L.P., a Georgia limited partnership, Sugar
Loaf Holdings One, LLC, a Georgia limited liability company, Weeks Beacon
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Centre LLC, a Georgia limited liability company, Codina/Tradewind, Ltd., a
Florida limited partnership, Codina/Tradewind No. 4, Ltd., a Florida
limited partnership, Raha Associates, Ltd., a Florida limited partnership,
New World Partners Joint Venture, a Florida general partnership, New World
Partners Joint Venture Number Two, a Florida general partnership, New World
Partners Joint Venture Number Three, a Florida general partnership, and New
World Partners Joint Venture Number Four, a Florida general partnership,
North Point Limited Partnership No. 1, a Florida limited partnership, Weeks
P-95, LLC, a Georgia limited liability company, North Point Limited
Partnership No. 2, a Florida limited partnership, P-95/Global Limited
Partnership, a Georgia limited partnership, and P-95/Fed Limited
Partnership, a Georgia limited partnership;
(h) The 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 Second Amended and Restated Agreement of Limited Partnership
of Weeks Realty, L.P., dated as of November 1, 1996, and the Second
Amendment to Second Amended and Restated Agreement of Limited Partnership
of Weeks Realty L.P., dated as of December 31, 1996, and the Third
Amendment to Second Amended and Restated Agreement of Limited Partnership
of Weeks Realty, L.P., dated as of January 31, 1997 and the Fourth
Amendment to Second Amended and Restated Agreement of Limited Partnership
of Weeks Realty, L.P., dated as of August 1, 1997 and the Fifth Amendment
to the Second Amended and Restated Agreement of Limited Partnership dated
as of October 7, 1997, and the Sixth Amendment to the Second Amended and
Restated Agreement of Limited Partnership dated as of October 27, 1997, and
the Seventh Amendment to the Second Amended and Restated Agreement of
Limited Partnership dated as of December 30, 1997, and the Eighth Amendment
to the Second Amended and Restated Agreement of Limited Partnership dated
as of January 9, 1998, and the Ninth Amendment to the Second Amended and
Restated Agreement of Limited Partnership dated as of January 20, 1998, as
affected by that certain Certificate Regarding Additional Contributions by
PCTC Associates, LLC to Weeks Realty, L.P., dated as of March 2, 1998 (the
"Operating Partnership Agreement"), and the partnership agreement or
limited liability company agreement of each partnership or limited
liability company subsidiary, as applicable, has been duly authorized,
executed and delivered by each partner or member thereof and is valid,
legally binding and enforceable in accordance with its terms; the Company
has a capitalization as set forth in the Prospectus as amended or
supplemented, and all of the partnership interests in the Company have been
duly and validly authorized and issued and are fully paid and conform to
the description thereof contained in the Prospectus; all of the partnership
interests in each of the partnership subsidiaries, all of the limited
liability company interests in each of the limited liability company
subsidiaries and all of the issued shares of capital stock of each of the
corporate subsidiaries have been duly and validly authorized and issued,
are fully paid and (in the case of corporate subsidiaries) are non-
assessable and (except as described in the Prospectus) all of such
interests and shares are owned directly or indirectly by the Company and/or
Weeks;
(i) Weeks GP is the sole general partner of the Company and Weeks LP
owns directly an approximately 73% limited partnership interest in the
Company;
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(j) The Securities have been duly authorized, and, when the Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
(k) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which Weeks, the
Company or any of their respective subsidiaries is a party or by which
Weeks, the Company or any of their respective subsidiaries is bound or to
which any of the property or assets of Weeks, the Company or any of their
respective subsidiaries is subject, nor will such action result in any
violation of the provisions of the certificate of incorporation or by-laws
of Weeks or any corporate subsidiary, the certificate of limited
partnership of the Company or any partnership subsidiary or the Operating
Partnership Agreement or the partnership agreement of any partnership
subsidiary or the certificate of formation or limited liability company
agreement of any limited liability company subsidiary, or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over Weeks, the Company or any of their respective
subsidiaries or any of their properties, except for such conflict, breach,
violation or default as would not individually or in the aggregate have a
material adverse effect on the consolidated financial position or results
of operations of the Company, Weeks and their subsidiaries taken as a
whole; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture, except such as have been, or will have
been prior to each Time of Delivery (s defined in Section 4 hereof),
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws or New York State real
estate syndication laws in connection with the purchase and distribution of
the Securities by the Underwriters, or such consents, approvals,
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authorizations, registrations or qualifications the failure to obtain which
would not individually or in the aggregate result in a material adverse
effect on the consolidated financial position or results of operations of
the Company, Weeks and their subsidiaries taken as a whole;;
(l) The statements set forth (i) in the Prospectus under the caption
"Description of Debt Securities" and in the Prospectus as amended or
supplemented under the caption "Description of Notes", insofar as they
purport to constitute a summary of the terms of the Securities, and (ii) in
the Prospectus under the captions "Plan of Distribution" and "Federal
Income Tax Considerations" and in the Prospectus as amended or supplemented
under the captions "Underwriting" and "Certain Federal Income Tax
Considerations", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate in all material
respects;
(m) Other than as set forth in the Prospectus as amended or
supplemented, there are no legal or governmental proceedings pending to
which Weeks, the Company or any of their respective subsidiaries is a party
or of which any property of Weeks, the Company or any of their respective
subsidiaries is the subject which, if determined adversely to Weeks, the
Company or any of their respective subsidiaries, would individually or in
the aggregate have a material adverse effect on the consolidated financial
position, shareholder's equity or partnership capital, as applicable, or
results of operations of Weeks, the Company or any of their respective
subsidiaries, in each case taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(n) None of Weeks, the Company or any of their subsidiaries is in
violation of its charter and by-laws (in the case of Weeks and any of the
subsidiaries that are corporations), its certificate of limited partnership
or partnership agreement (in the case of the Company and any of the
subsidiaries that are limited partnerships), its certificate of general
partnership or its partnership agreement (in the case of any of the
subsidiaries that are general partnerships), its certificate of formation
or limited liability company agreement (in the case of any subsidiaries
that are limited liability companies) or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except for such defaults as would not
individually or in the aggregate have a material adverse effect on the
consolidated financial position or results of operations of the Company,
Weeks and their subsidiaries taken as a whole;
(o) None of Weeks, the Company or their subsidiaries is, or will be,
after giving effect to the offering and sale of the Securities, an
"investment company" or an entity "controlled" by an "investment company",
as such terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
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(p) Commencing with Weeks' taxable year ending December 31, 1994,
Weeks has been constituted in conformity with the requirements for
qualification as a real estate investment trust under Internal Revenue Code
of 1986, as amended (the "Code"), and Weeks' historic and proposed methods
of operation have enabled and will enable Weeks to meet the requirements
for qualification and taxation as a real estate investment trust under the
Code;
(q) Neither Weeks nor the Company nor any of their affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes;
and
(r) Arthur Andersen LLP, and such other accountants acceptable to the
Representatives, if any, who have certified certain financial statements of
Weeks, the Company and its subsidiaries, and Ernst & Young LLP and Deloitte
& Touche LLP, and such other accountants acceptable to the Representatives,
if any, who have certified certain financial statements in connection with
certain acquisitions by the Company, are each independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
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amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, promptly to use its
best efforts toobtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign partnership or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of the Pricing Agreement relating to such
Securities and from time to time, to furnish the Underwriters with copies
of the Prospectus as amended or supplemented in New York City in such
quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
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as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the later of
(i) the termination of trading restrictions for such Designated Securities,
as notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company or Weeks
which mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives; provided, however, that this
restriction shall not operate to preclude Weeks' or the Company's
respective ability to draw on the Credit Facility (as defined in the
Prospectus);
(f) To use the proceeds received by the Company from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus as amended or supplemented under the caption "Use of Proceeds";
(g) Upon the request of the Representatives, to use its best efforts
to list, subject to notice of issuance, any Designated Securities on the
New York Stock Exchange;
(h) To use its best efforts to operate its business in such a manner
that Weeks will not fail, as a result of any action or omission to act by
the Company, to meet the requirements to qualify, for each taxable year
ended December 31, as a real estate investment trust under the code;
(i) Not to invest, reinvest, or otherwise use the proceeds received by
the Company from the sale of Securities pursuant to this Agreement in such
a manner, or take any action, or omit to take any action, that would cause
Weeks, the Company or any of their respective subsidiaries to become an
"investment company" as that term is defined in the Investment Company Act;
and
(j) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 a.m., Washington, D.C. time, on the date of the
Pricing Agreement relating to the applicable Designated Securities, and the
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Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any trustee and any agent of any trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; (viii) if applicable, all fees and expenses in connection with
the listing of the Securities on any national exchange; and (ix) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of theircounsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
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<PAGE>
by 10:00 a.m., Washington, D.C. time, on the date of the Pricing Agreement
relating to the applicable Designated Securities; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated each Time of Delivery for
such Designated Securities, with respect to the organization of the
Company, the validity of the Designated Securities being delivered at such
Time of Delivery, the Registration Statement and the Prospectus as amended
or supplemented as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Counsel for the Company satisfactory to the Representatives shall
have furnished to the Representatives their written opinions (a draft of
each such opinion is attached as Annex II hereto), dated each Time of
Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) Weeks has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Georgia,
and has the corporate power and authority to own its properties and
conduct its business as described in the Prospectus as amended or
supplemented;
(ii) The authorized partnership capital of the Company is as set
forth in the Prospectus as amended or supplemented, and all of the
issued partnership interests of the Company, have been duly and
validly authorized and issued and are fully paid;
(iii) Each of the Company, Weeks and their subsidiaries is duly
qualified as a foreign corporation, partnership, limited liability
company or otherwise for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, except where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company,
Weeks and their subsidiaries taken as a whole (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the general partner of the Company,
provided that such counsel shall state that they believe that both you
and they are justified in relying upon such opinions);
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(iv) Each corporate subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation; all of the issued shares of capital
stock of each such corporate subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and
(except for directors' qualifying shares and except as otherwise set
forth in the Prospectus as amended or supplemented) based upon a
review of the stock books and records of each corporate subsidiary are
owned directly or indirectly by the Company, Weeks, A. Ray Weeks, Jr.,
Thomas D. Senkbeil or Forrest W. Robinson, as the case may be, free
and clear of all liens, encumbrances, equities or claims (such counsel
being entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the general partner of the Company or its
subsidiaries, provided that such counsel shall state that they believe
that both you and they are justified in relying upon such opinions);
(v) Each of the Company and each partnership subsidiary has been
duly organized and is validly existing as a partnership in good
standing under the laws of its jurisdiction of organization; each of
the Operating Partnership Agreement and the partnership agreement of
each direct or indirect partnership subsidiary has been duly
authorized, executed and delivered by the Company, Weeks or any of
their subsidiaries, as the case may be, and constitutes the valid and
legally binding obligation of the Company, Weeks or such subsidiaries,
as the case may be, and, assuming the due authorization, execution and
delivery by each other party thereto, constitutes the valid and
legally binding obligation of each such party, and is enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to the effect of general principles of equity; and except as described
in the Prospectus as amended or supplemented, based upon a review of
the books and records of the Company and each partnership subsidiary,
all of the general partnership interests in the Company are owned by
Weeks GP, and all of the partnership interests in each partnership
subsidiary are owned directly or indirectly by the Company or one or
more of its subsidiaries except as specifically identified in such
opinion, in each case, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the
general partner of the Company or the subsidiaries, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions);
(vi) Each direct or indirect limited liability company subsidiary
has been duly organized and is validly existing as a limited liability
company in good standing under the laws of its jurisdiction of
organization; each limited liability company agreement of each direct
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or indirect limited liability company subsidiary has been duly
authorized, executed and delivered by the Company, Weeks or any of
their subsidiaries, as the case may be, and constitutes the valid and
legally binding obligation of the Company, Weeks or such subsidiaries,
as the case may be, and, assuming the due authorization, execution and
delivery by each other party thereto, constitutes the valid and
legally binding obligation of each such party, and is enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to the effect of general principles of equity; and except as described
in the Prospectus as amended or supplemented, based upon a review of
the books and records of the Company and each limited liability
company subsidiary, all of the limited liability company interests in
each limited liability company subsidiary are owned directly or
indirectly by the Company or one or more of its subsidiaries except as
specifically identified in such opinion, in each case, free and clear
of all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the general partner of the Company or the
subsidiaries, provided that such counsel shall state that they believe
that both you and they are justified in relying upon such opinions);
(vii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus as amended or supplemented, there are no
legal or governmental proceedings pending to which the Company, Weeks
or any of their subsidiaries is a party or of which any of the
Properties (as defined in the Prospectus as amended or supplemented)
or any other property of the Company, Weeks or any of their
subsidiaries is the subject which is reasonably likely to have
individually or in the aggregate a material adverse effect on the
consolidated financial position, shareholders' equity (including, with
respect to the Company or other partnership subsidiaries, partnership
capital) or results of operations of the Company, Weeks and their
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(viii) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(ix) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument known to such
counsel to which the Company, Weeks or any of their respective
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subsidiaries is a party or by which the Company, Weeks or any of their
respective subsidiaries is bound or to which any of the property or
assets of the Company, Weeks or any of their respective subsidiaries
is subject, except for any conflicts, breaches, violations or defaults
in the case of such other material agreements or instruments which
would not have a material adverse effect on the consolidated financial
position or results of operations of the Company, Weeks and their
subsidiaries taken as a whole, nor will such action result in any
violation of the provisions of the certificate of incorporation or by-
laws of Weeks or any corporate subsidiary, the certificate of limited
partnership of the Company or any limited partnership subsidiary or
the Operating Partnership Agreement or the partnership agreement of
any partnership subsidiary or the certificate of formation or limited
liability company agreement of any limited liability company
subsidiary, or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company, the Operating Partnership or any of
their subsidiaries or any of their properties;
(x) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except such as
have been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky
laws or New York State real estate syndication laws in connection with
the purchase and distribution of the Designated Securities by the
Underwriters;
(xi) The statements made under the captions "Description of Debt
Securities", "Federal Income Tax Considerations" in the Prospectus and
"Plan of Distribution" and in the Prospectus as supplemented or
amended under the captions "Description of Notes", "[Certain Federal
Income Tax Considerations]" and "Underwriting", to the extent they
constitute matters of law or legal conclusions, or constitute
summaries of documents described therein, are true and accurate in all
material respects, and fairly present the information called for by
the Act and the rules and regulations thereunder with respect to the
matters set forth therein;
(xii) Neither the Company nor Weeks is an "investment company"
or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act;
(xiii) The Company and each of the partnership or limited
liability company subsidiaries is properly treated as a partnership
for federal income tax purposes and not as a "publicly traded
partnership";
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(xiv) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Designated Securities and the
Indenture conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(xv) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the Trust
Indenture Act; and
(xiv) The Prospectus as amended or supplemented and the
documents incorporated by reference in the Prospectus as amended or
supplemented (other than the financial statements and related
schedules and other financial data therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company and
representatives of the Underwriters and their counsel during which the contents
of the Registration Statement and Prospectus as amended or supplemented and
related matters were discussed and reviewed, and, although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus as amended or supplemented, except as set forth in
clause (xi) and (xiv) above and except for the statements concerning such firm
appearing under the caption "Legal Matters" therein, on the basis of the
information that was developed in the course of the performance of the service
referred to above, nothing has come to their attention that caused them to
believe that (i) the Registration Statement or any amendment thereto made prior
to such Time of Delivery (other than the financial statements and schedules and
the other financial data therein, as to which such counsel need express no
belief), at the time such Registration Statement or amendment became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Prospectus as amended or supplemented and any
further amendment or supplement thereto made prior to such Time of Delivery
(other than the financial statements and schedules and the other financial data
therein, as to which such counsel need express no belief), on the date of such
Prospectus, amendment or supplement or as of such Time of Delivery, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (iii) any documents incorporated
by reference in the Prospectus as amended or supplemented (other than the
financial statements and schedules and the other financial data therein, as to
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which such counsel need express no belief), when they became effective or were
filed with the Commission, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,in the light of
the circumstances under which they were made when such documents were so filed,
not misleading. Such counsel shall also state that they do not know of any
amendment to the Registration Statement required to be filed or of any contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement
or the Prospectus which are not filed or described as required.
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the laws of the State of Georgia
and the federal laws of the United States.
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent report filed with
the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex III hereto, and with
respect to such letter dated such Time of Delivery, as to such other
matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(e) (i) None of Weeks, the Company or any of their respective
subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Securities any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities there shall not
have been any material change in the capital stock or partnership
interests, as applicable, long-term debt, obligations under capital leases
or short-term borrowings of Weeks, the Company or any of their respective
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
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position, shareholders' equity or partnership capital, as applicable, or
results of operations of Weeks, the Company or any of their respective
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented prior to the date of the Pricing Agreement
relating to the Designated Securities, the effect of which, in any such
case described in Clause (i) or (ii) above, is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's or Weeks' securities that are rated by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's or Weeks' securities that are rated by any such
organization;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's or Weeks's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(h) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the Pricing Agreement relating to
such Designated Securities; and
(i) If the Prospectus as amended or supplemented states that the
applicable Designated Securities will be listed, or that application has
been made to list such Designated Securities, on the New York Stock
Exchange, the Designated Securities at the applicable Time of Delivery
shall have been duly listed, subject to notice of issuance, on the New York
Stock Exchange.
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of Weeks GP satisfactory to the
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Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section and as to such other matters as
the Representatives may reasonably request. In addition, the Company shall
have furnished or caused to be furnished to the Representatives at the Time
of Delivery for the Designated Securities certificates of good standing or
valid existence issued by an appropriate official of each of the several
states in which Weeks or the Company or any of their subsidiaries has been
duly qualified as a foreign corporation, foreign partnership or foreign
limited liability company, as applicable, for the transaction of business
or in which either Weeks or the Company or any of their subsidiaries owns
or leases, or, at such Time of Delivery, proposes to own or lease,
properties.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
-20-
<PAGE>
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include any
statement as to or an admission of fault,culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
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<PAGE>
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault of the Company on the one hand and the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission t state a material fact relates to information supplied by the Company
on the one hand or such Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each partner of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
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<PAGE>
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
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<PAGE>
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business and "New York Business Day" shall mean
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<PAGE>
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
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<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us ten counterparts hereof.
Very truly yours,
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc.
General Partner
By:____________________________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
________________________________
(Goldman, Sachs & Co.)
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<PAGE>
ANNEX I
Pricing Agreement
-----------------
Goldman, Sachs & Co. As Representatives
of the several Underwriters named in
Schedule 1 hereto, 85 Broad Street, New
York, New York 10004.
[Date]
Ladies and Gentlemen:
Weeks Realty, L.P., a Georgia limited partnership (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated __________ ___, 1998 (the "Underwriting
Agreement"), between the Company and Goldman, Sachs & Co. to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE>
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [one for the Company and each of the Representatives plus one for
each counsel] counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
Weeks Realty, L.P.
By: Weeks GP Holdings, Inc.,
General Partner
By:____________________________________
Name:
Title:
Accepted as of the date hereof:
[Goldman, Sachs & Co.
[Name(s) of Co-Representative(s)]]
[By: ________________________________
(Goldman, Sachs & Co.)
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<PAGE>
[[Name(s) of Co-Representative Corporation(s)]
By: _________________________________
Name:
Title:
_________________________________
[(Name(s) of Co-Representative
Partnership(s))]]
On behalf of each of the Underwriters
-3-
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
----------
Underwriter
-----------
$
------------
Total $
------------
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and
accrued amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from
to [and accrued amortization[, if any,] from
to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
a.m. (New York City time), , 19
<PAGE>
INDENTURE:
Indenture dated ______________ __, 1998, between the Company and
[ ], as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 19..]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
Redemption
Year Price
---- -----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at
the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]]
<PAGE>
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$ ] principal amount of Designated Securities on
in each of the years through
at 100% of their principal amount plus accrued interest[, together with
[cumulative] [noncumulative] redemptions at the option of the Company to
retire an additional [$ ] principal amount of Designated Securities
in the years through at 100% of their principal amount
plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date
and years], at the option of the holder, at their principal amount with
accrued interest. The initial annual interest rate will be %, and
thereafter the annual interest rate will be adjusted on ,
and to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year maturities as
of the [insert date 15 days prior to maturity date] prior to such [insert
maturity date].]
[If Designated Securities are floating rate debt securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate for
-year [month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual interest rate
[thereafter] [from
through ] will be the interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury
bills plus % of Interest Differential (the excess, if any, of (i)
the then current weekly average per annum secondary market yield for
-month certificates of deposit over (ii) the then current interest yield
equivalent of the weekly average per annum market discount rate for
-month Treasury bills); [from and thereafter the rate will be the then
current interest yield equivalent plus % of Interest Differential].]
<PAGE>
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
Paragraph 7(g) of the Underwriting Agreement should be modified in the
event that the Securities are denominated in, indexed to, or principal or
interest are paid in, a currency other than the U.S. dollar, more than one
currency or in a composite currency. The country or countries issuing such
currency should be added to the banking moratorium and hostilities clauses
and the following additional clause should be added to the paragraph (the
entire paragraph should be restated, as amended):
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing such
currency, currencies or composite currency]".
NAMES AND ADDRESSES OF REPRESENTATIVES:
DESIGNATED REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
[OTHER TERMS]:
<PAGE>
ANNEX III
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) in their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) audited and/or examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if applicable, they
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as indicated
in their reports thereon, copies of which have been separately furnished to the
representative or representatives of the Underwriters (the "Representatives")
such term to include an Underwriter or Underwriters who act without any firm
being designated as its or their representatives;
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or included
in the Company's quarterly reports on Form 10-Q incorporated by reference into
the Prospectus as indicated in their reports thereon copies of which have been
separately furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that caused
them to believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
<PAGE>
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
or Item 2 of the Company's Registration Statement on Form 10, as applicable, for
the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for five such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years or in the
Company's Registration Statement on Form 10, as applicable;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of Weeks and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company, Weeks and their subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related published rules
and regulations, or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the Prospectus
or included in the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on
a basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year or the Company's Registration Statement on Form
10, as applicable;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement
<PAGE>
data and balance sheet items included in the Prospectus and referred to in
Clause (B) were not determined on a basis substantially consistent with the
basis for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year or the Company's Registration Statement on Form 10, as
applicable;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated partners'
capital of the Company (other partnership interests issued pursuant to
rights to acquire partnership interests which were outstanding on the date
of the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the
Company and Weeks and their subsidiaries, or any decreases in consolidated
net current assets or partners' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per unit amounts of
consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Company, Weeks and their subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), or in Part II
of, or in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
<PAGE>
percentages and financial information with the accounting records of the
Company, Weeks and their subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
<PAGE>
EXHIBIT 1.2
Pricing Agreement
-----------------
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
March 17, 1998
Ladies and Gentlemen:
Weeks Realty, L.P., a Georgia limited partnership (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated March 17, 1998 (the "Underwriting Agreement"),
between the Company and Goldman, Sachs & Co. to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the
<PAGE>
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
Goldman, Sachs & Co. as to the authority of the signers thereof.
Very truly yours,
Weeks Realty, L.P.
By: Weeks GP Holdings, Inc.,
General Partner
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
By: Goldman, Sachs & Co.
- --------------------------------
(Goldman, Sachs & Co.)
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
----------
Underwriter
-----------
Goldman, Sachs & Co. $ 70,000,000
Morgan Stanley & Co. Incorporated 30,000,000
------------
Total $100,000,000
------------
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
6.875% Notes due March 15, 2005
AGGREGATE PRINCIPAL AMOUNT:
$100,000,000
PRICE TO PUBLIC:
99.632% of the principal amount of the Designated Securities, plus accrued
interest, if any, from March 20, 1998
PURCHASE PRICE BY UNDERWRITERS:
99.007% of the principal amount of the Designated Securities, plus accrued
interest, if any, from March 20, 1998
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to
be made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.
<PAGE>
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), March 20, 1998
INDENTURE:
Indenture, dated March 20, 1998, between the Company and State Street Bank
and Trust Company, as Trustee
MATURITY:
March 15, 2005
INTEREST RATE:
6.875% per annum
INTEREST PAYMENT DATES:
March 15 and September 15 of each year, commencing on September 15, 1998
REDEMPTION PROVISIONS:
The Designated Securities may be redeemed, in whole or in part, at the
option of the Company, at any time, at a redemption price equal to the sum
of (i) the principal amount of the Notes being redeemed plus accrued
interest to the redemption date and (ii) the Make-Whole Amount (as defined
in the Prospectus Supplement, dated March 20, 1998 (the "Prospectus
Supplement")), if any.
REINVESTMENT RATE:
0.25%
SINKING FUND PROVISIONS:
The Designated Securities will not have the benefit of a sinking fund.
COVENANTS:
The Designated Securities will have the benefit of the covenants described
in the Prospectus Supplement.
<PAGE>
DEFEASANCE PROVISIONS:
The Designated Securities shall not be subject to defeasance or covenant
defeasance.
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
The offices of Sullivan & Cromwell, 125 Broad Street, New York, New York
10004
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Address for Notices, etc.: Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF KING & SPALDING APPEARS HERE]
March 17, 1998
Weeks Realty, L.P.
4497 Park Drive
Norcross, Georgia 30093
Re: Weeks Realty, L.P. -- $100,000,000 Aggregate Principal
Amount of 6-7/8% Notes due March 15, 2005
-----------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Weeks Realty, L.P., a Georgia limited
partnership (the "Operating Partnership"), in connection with the registration
under the Securities Act of 1933, as amended, of $100,000,000 aggregate
principal amount of 6-7/8% Notes due March 15, 2005 (the "Notes"), pursuant to a
Prospectus Supplement dated March 17, 1998 (the "Prospectus Supplement").
In connection with this opinion, we have examined and relied upon such
records, documents, certificates and other instruments as in our judgment are
necessary or appropriate to form the basis for the opinions hereinafter set
forth. In all such examinations, we have assumed the genuineness of signatures
on original documents and the conformity to such original documents of all
copies submitted to us as certified, conformed or photographic copies, and as to
certificates of public officials, we have assumed the same to have been properly
given and to be accurate. As to matters of fact material to this opinion, we
have relied upon statements and representations of representatives of the
Company and of public officials.
We have assumed that the execution and delivery of, and the performance of
all obligations under, an indenture (the "Indenture") dated as of March 20, 1998
between the Operating Partnership and State Street Bank and Trust Company, as
trustee (the "Trustee"), will be duly authorized by all requisite action by the
Trustee, and that the Indenture will be duly executed and delivered by, and will
be a valid and binding agreement of, the Trustee, enforceable against the
Trustee in accordance with its terms.
<PAGE>
Weeks Realty, L.P.
March 17, 1998
Page 2
This opinion is limited in all respects to the federal laws of the United
States of America and the laws of the State of Georgia and no opinion is
expressed with respect to the laws of any other jurisdiction or any effect which
such laws may have on the opinions expressed herein. This opinion is limited to
the matters stated herein, and no opinion is implied or may be inferred beyond
the matters expressly stated herein.
Based upon the foregoing, and the other limitations and qualifications set
forth herein, we are of the opinion that:
1. The Notes have been duly authorized; and
2. Upon the issuance and sale thereof as described in the Prospectus
Supplement and, when executed by the Operating Partnership and duly
authenticated by the Trustee in accordance with the terms of the Indenture, the
Notes will be (x) validly issued, (y) valid and binding obligations of the
Operating Partnership, enforceable against the Operating Partnership in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, and general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or law), and (z)
entitled to the benefits of the Indenture.
This opinion is given as of the date hereof, and we assume no obligation to
advise you after the date hereof of facts or circumstances that come to our
attention or changes in law that occur which could affect the opinions contained
herein. This letter is being rendered solely for the benefit of the Operating
Partnership in connection with the matters addressed herein. This opinion may
not be furnished to or relied upon by any person or entity for any purpose
without our prior written consent.
We consent to the filing of this Exhibit to the Registration Statement and
to the references to us under the caption "Legal Matters" in the Prospectus and
under the caption "Validity of Notes" in the Prospectus Supplement to the
Prospectus.
Very truly yours,
/s/ King & Spalding
<PAGE>
EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
by and among
ARMANDO CODINA
and
CODINA GROUP, INC.
and
ST. JOE CORPORATION
and
WEEKS REALTY SERVICES, INC.
DATED: February ___, 1998
<PAGE>
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I - DEFINITIONS
ARTICLE II - TRANSFER OF SHARES; CLOSING
<TABLE>
<CAPTION>
<S> <C> <C>
2.1 Shares.......................................... 10
2.2 Purchase Price.................................. 10
2.3 Closing Obligations............................. 11
</TABLE>
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF CODINA AND COMPANY
<TABLE>
<CAPTION>
<C> <S> <C>
3.1 Organization and Good Standing.................. 12
3.2 Authority....................................... 12
3.3 No Conflict..................................... 12
3.4 Capitalization of Company....................... 13
3.5 Capitalization of Subsidiaries.................. 14
3.6 Financial Statements............................ 15
3.7 Licensing of Company and Subsidiaries........... 15
3.8 Books and Records............................... 16
3.9 Title to Properties; Encumbrances............... 16
3.10 Condition and Sufficiency of Assets............. 17
3.11 Accounts Receivable............................. 17
3.12 No Undisclosed Liabilities...................... 18
3.13 Taxes........................................... 18
3.14 No Material Adverse Change...................... 19
3.15 Employee Benefits............................... 19
3.16 Compliance with Legal Requirements.............. 20
3.17 Governmental Authorizations..................... 20
3.18 Legal Proceedings............................... 21
3.19 Orders.......................................... 21
3.20 Absence of Certain Changes and Events........... 21
3.21 Contracts....................................... 22
3.22 No Defaults..................................... 23
3.23 Insurance....................................... 24
3.24 Environmental Matters........................... 25
3.25 Employees....................................... 26
3.26 Intellectual Property........................... 27
3.27 Certain Payments................................ 28
3.28 Disclosure...................................... 28
-i-
<PAGE>
3.29 Relationships with Related Persons.............. 28
3.30 Brokers or Finders.............................. 29
3.31 Bank Accounts; Directors & Offices.............. 29
</TABLE>
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF ST. JOE AND WEEKS
<TABLE>
<CAPTION>
<C> <S> <C>
4.1 Organization and Good Standing................... 29
4.2 Authority........................................ 29
4.3 No Conflict...................................... 29
4.4 Investment Intent................................ 30
4.5 Certain Proceedings.............................. 30
4.6 Brokers or Finders............................... 30
4.7 Organization and Good Standing................... 30
4.8 Authority........................................ 30
4.9 No Conflict...................................... 30
4.10 Investment Intent................................ 31
4.11 Certain Proceedings.............................. 31
4.12 Brokers or Finders............................... 31
</TABLE>
ARTICLE V. - INDEMNIFICATION; REMEDIES
<TABLE>
<CAPTION>
<S> <C> <C>
5.1 Survival; Right to Indemnification.............. 31
5.2 Indemnification and Payment of Damages by Codina. 31
5.3 Indemnification and Payment of Damages by St. Joe 32
5.4 Indemnification and Payment of Damages by Weeks.. 32
5.5 Assertion of Claims.............................. 32
5.6 Indemnity Limits................................. 33
</TABLE>
ARTICLE VI - GENERAL PROVISIONS
<TABLE>
<CAPTION>
<C> <S> <C>
6.1 Expenses.......................................... 34
6.2 Public Announcements.............................. 34
6.3 Confidentiality................................... 34
6.4 Enforcement Costs................................. 34
6.5 Equitable Remedies................................ 35
6.6 Notices........................................... 35
6.7 Jurisdiction; Service of Process.................. 36
6.8 Further Assurances................................ 36
6.9 Waiver............................................ 36
6.10 Entire Agreement and Amendment.................... 37
6.11 Assignment, Successors and No Third-Party Rights.. 37
6.12 Severability...................................... 37
6.13 Section Headings, Construction.................... 37
6.14 Time of Essence................................... 38
-ii-
<PAGE>
6.15 Governing Law..................................... 38
6.16 Counterparts...................................... 38
</TABLE>
-iii-
<PAGE>
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT is made as of February ___, 1998, by and
among ST. JOE CORPORATION, a Florida corporation ("St. Joe"), and WEEKS REALTY
SERVICES, INC., a Georgia corporation indirectly, majority-owned by Weeks
Corporation ("Weeks") (referred to sometimes together as the "Buyers"), and
ARMANDO CODINA, an individual resident of the State of Florida ("Codina"), and
CODINA GROUP, INC., a Florida corporation (the "Company") (referred to sometimes
together as "Sellers").
WHEREAS, the Company is a corporation organized and existing under the
laws of the State of Florida in the business of providing development,
management, construction, consulting, and leasing services for real properties
located in south Florida;
WHEREAS, St. Joe is a corporation organized and existing under the
laws of the State of Florida that is interested in providing development,
management, construction, consulting, and leasing services for real properties
located in south Florida;
WHEREAS, Weeks is a corporation organized and existing under the laws
of the State of Georgia that is interested in providing development, management,
construction, consulting, and leasing services for real properties located in
south Florida;
WHEREAS, the Company owns directly or indirectly all of the issued and
outstanding shares of stock of certain operating companies that perform
development, management and leasing services, such companies being Codina
Development Corporation, Codina Construction Corporation, Codina Bush Klein
Realty, Inc., Codina Real Estate Management, Inc., CR Consulting, Inc. and C & S
Real Estate Development Corp. (sometimes referred to herein together as the
"Subsidiaries" and individually as "Subsidiary");
WHEREAS, the Company and Codina have determined that it would be in
their respective best interests to sell a certain percentage of the Company's
issued and outstanding stock to Weeks and St. Joe;
WHEREAS, St. Joe and Weeks have determined that it would be in their
respective best interests to each acquire one-third of the capital stock of the
Company; and
WHEREAS, Sellers and Buyers wish to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
transaction contemplated hereby.
NOW, THEREFORE, in consideration of the premises and of the respective
covenants, representations, warranties and agreements herein contained, it is
<PAGE>
hereby covenanted and agreed by and among the parties hereto that they shall
carry out and consummate the following agreement ("Agreement"):
ARTICLE I. DEFINITIONS
------------------------
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Article 1:
"Applicable Contract" means any Contract (a) under which the Company
or any Subsidiary has or may acquire any rights, (b) under which the Company or
any Subsidiary has or may become subject to any obligation or liability, or (c)
by which the Company or any Subsidiary or any of the assets owned or used by any
of them is or may become bound.
"Best Efforts" means the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances to ensure that such result
is achieved as expeditiously as possible.
"Breach" means a Breach of a representation, warranty, covenant,
obligation or other provision of this Agreement or any instrument delivered
pursuant to this Agreement which will be deemed to have occurred if there is or
has been (a) any inaccuracy in or breach of, or any failure to perform or comply
with such representation, warranty, covenant, obligation or other provision, or
(b) any claim (by any Person) or other occurrence or circumstance that is or was
inconsistent with such representation, warranty, covenant, obligation or other
provision, and the term "Breach" means any such inaccuracy, breach, failure,
claim, occurrence or circumstance.
"Buyers" has the meaning as defined in the first paragraph of
this Agreement.
"Closing" means the date of this Agreement.
"Closing Date" means the date and time as of which the Closing
actually takes place.
"Closing Date Balance Sheet" has the meaning defined in Section 3.6.
"Collateral Documents" means those documents listed in Section 2.3.
"Company" has the meaning as defined in the first paragraph of this
Agreement.
"Consent" means any approval, consent, ratification, waiver or other
authorization (including any Governmental Authorization).
"Contemplated Transactions" means all of the transactions
contemplated by this Agreement, including:
-2-
<PAGE>
(a) the issuance or transfer of the St. Joe Shares and the Weeks
Shares by Sellers to Buyers for the Purchase Price and the cancellation and
reissuance of any and all certificates representing the Shares;
(b) the execution, delivery and performance of the Seller's Release;
(c) the performance by Buyer and Seller of their respective covenants
and obligations under this Agreement;
(d) the execution, delivery and performance of the Shareholders'
Agreement by Buyers and Sellers;
(e) the execution, delivery and performance of the License Agreement
by Codina; and
(f) Buyers' acquisition and ownership of the Shares.
"Contract" means any agreement, contract, obligation, promise or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
"Damages" has the meaning as defined in Section 5.2.
"Development Agreements" means any Applicable Contract under which the
Company or a Subsidiary is responsible for the development of real property as
more particularly described in Exhibit 3.21(i).
"EBITDA" shall mean for purposes of this Agreement, the net income
(determined in accordance with generally accepted accounting principles) of the
Corporation for the twelve month period ended December 31, 1997, before interest
expense and the provision for income taxes, adjusted by (i) adding thereto the
amount of all amortization of intangibles and depreciation that were deducted in
arriving at the Corporation's net income for such period, (ii) subtracting
therefrom the amount of all non-cash gains that were added in arriving at the
Corporation's net income for such period, (iii) excluding from such calculation
all extraordinary items (determined in accordance with generally accepted
accounting principles) and (iv) adding thereto the amount of all non-cash losses
that were deducted in arriving at the Corporation's net income for such period;
provided that in computing EBITDA for such period, no amount shall be deducted
for salaries, bonuses and any and all benefits paid or payable to Jeb Bush, any
extraordinary bonuses paid to Henry Befeler, Hank Klein, Ford Gibson, Jose
Hevia, Rafael Rodon, William Wassey and Armando Codina and the fee paid to
Arthur Andersen in connection with the Contemplated Transaction. For this
purpose an extraordinary bonus shall mean any payment in excess of such Person's
base salary, benefits and the incentive compensation described on the Exhibits
to the Employment Agreements between the Corporation and Messrs. Befeler,
Gibson, Klein, Wassey, Rodon and Hevia all dated as of January 1, 1998.
-3-
<PAGE>
"Encumbrance" means any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security interest, right of
first refusal or restriction of any kind, including any restriction on use,
voting, transfer, receipt of income or exercise of any other attribute of
ownership.
"Environment" means soil, land surface or subsurface strata, surface
waters (including navigable waters, ocean waters, streams, ponds, drainage
basins and wetlands) groundwaters, drinking water supply, stream sediments,
ambient air (including indoor air) plant and animal life and any other
environmental medium or natural resource.
"Environmental, Health and Safety Liabilities" means any cost,
damages, expense, liability, obligation or other responsibility arising from or
under Environmental Law or Occupational Safety and Health Law and consisting of
or relating to:
(a) any environmental, health or safety matters or conditions (including
on-site or off-site contamination, occupational safety and health and
regulation of chemical substances or products);
(b) fines, penalties, judgments, awards, settlements, legal or
administrative proceedings, damages, losses, claims, demands and response,
investigative, remedial or inspection costs and expenses arising under
Environmental Law or Occupational Safety and Health Law;
(c) financial responsibility under Environmental Law or Occupational
Safety and Health Law for cleanup costs or corrective action, including any
investigation, cleanup, removal, containment or other remediation or
response actions ("Cleanup") required by applicable Environmental Law or
Occupational Safety and Health Law (whether or not such Cleanup has been
required or requested by any Governmental Body or any other Person) and for
any natural resource damages; or
(d) any other compliance, corrective, investigative or remedial measures
required under Environmental Law or Occupational Safety and Health Law.
The terms "removal", "remedial" and "response action" include the types of
activities covered by the United States Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. (S) 9601 et seq., as amended
("CERCLA").
"Environmental Law" means any Legal Requirement that requires or relates
to:
(a) advising appropriate authorities, employees and the public of
intended or actual releases of pollutants or hazardous substances or materials,
violations of discharge limits or other prohibitions and of to commencements
of activities, such as resource extraction or construction, that could have
significant impact on the Environment;
-4-
<PAGE>
(b) preventing or reducing to acceptable levels the release of
pollutants or hazardous substances or materials into the Environment;
(c) reducing the quantities, preventing the release or minimizing the
hazardous characteristics of wastes that are generated;
(d) assuring that products are designed, formulated, packaged and
used so that they do not present unreasonable risks to human health or the
Environment when used or disposed of;
(e) protecting resources, species or ecological amenities;
(f) reducing to acceptable levels the risks inherent in the
transportation of hazardous substances, pollutants, oil or other potentially
harmful substances;
(g) cleaning up pollutants that have been released, preventing the
threat of release or paying the costs of such clean up or prevention; or
(h) making responsible parties pay private parties, or groups of them,
for damages done to their health or the Environment or permitting self-
appointed representatives of the public interest to recover for injuries
done to public assets.
"Facilities" means any real property, leaseholds or other interests
currently or formerly owned or operated by the Company or any Subsidiary and any
buildings, plants, structures or equipment (including motor vehicles) currently
or formerly owned or operated by the Company or any Subsidiary.
"Financial Statements" has the meaning as defined in Section 3.6.
"GAAP" means generally accepted accounting principles in effect in the
United States from time to time.
"Governmental Authorization" means any approval, consent, license,
permit, waiver or other authorization issued, granted, given or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"Governmental Body" means any:
(a) federal, state, regional, county, city, town, village, district or
other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign or other government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official or entity
and any court or other tribunal);
-5-
<PAGE>
(d) multi-national organization or body; or
(e) body exercising or entitled to exercise any administrative,
executive, judicial, legislative, police, regulatory or taxing authority
or power of any nature.
"Hazardous Activity" means the distribution, generation, handling,
importing, management, manufacturing, processing, production, refinement,
release, storage, transfer, transportation, treatment or use (including any
withdrawal or other use of groundwater) of Hazardous Materials in, on, under,
about or from the Facilities or any part thereof into the Environment, and any
other act, business, operation or thing that increases the danger, or risk of
danger, or poses an unreasonable risk of harm to persons or property on or off
the Facilities, or that may affect the value of the Facilities or the Company or
any of the Subsidiaries.
"Hazardous Materials" means any waste or other substance that is
listed, defined, designated or classified as, or otherwise determined to be,
hazardous, radioactive or toxic or a pollutant or a contaminant under or
pursuant to any Environmental Law, including any admixture or solution thereof
and specifically including petroleum and all derivatives thereof or synthetic
substitutes therefor and asbestos or asbestos-containing materials.
"Indemnification Claim" has the meaning as defined in Section 5.5.
"Indemnified Party" has the meaning as defined in Section 5.5.
"IRC" means the Internal Revenue Code of 1986 or any successor law and
regulations issued by the IRS pursuant to the Internal Revenue Code or any
successor law.
"IRS" means the United States Internal Revenue Service or any
successor agency and, to the extent relevant, the United States Department of
the Treasury.
"Knowledge of Codina" means the actual knowledge of Armando Codina and
Henry Befeler with respect to the subject matter of the representation.
"Leasing Agreements" means any Applicable Contract under which the
Company or a Subsidiary has a right to list and/or lease certain commercial and
industrial space as more particularly described in Exhibit 3.21(i).
"Legal Requirement" means any federal, state, local, municipal, or
other administrative order, constitution, law, ordinance, principle of common
law, regulation statute or treaty.
"License Agreement" means that certain license agreement dated the
date hereof, by and between Codina, as licensor, and the Company, as licensee.
-6-
<PAGE>
"Management Agreements" means any Applicable Contract under which the
Company or a Subsidiary is responsible for the management of the operations of
real property as more particularly described in Exhibit 3.21(i).
"Occupational Safety and Health Law" means any Legal Requirement
designed to provide safe and healthful working conditions and to reduce
occupational safety and health hazards, and any program, whether governmental or
private (including those promulgated or sponsored by industry associations and
insurance companies) designated to provide safe and healthful working
conditions.
"Order" means any award, decision, injunction, judgment, order,
ruling, subpoena or verdict entered, issued, made or rendered by any court,
administrative agency or other Governmental Body or by any arbitrator.
"Ordinary Course of Business" means an action taken by a Person will
be deemed to have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of such Person
and is taken in the ordinary course of the normal day-to-day operations
of such Person; and
(b) such action is similar in nature and magnitude to actions
customarily taken in the ordinary course of the normal day-to-day
operations of other Persons that are in the same line of business
as such Person.
"Organizational Documents" means (a) the articles or certificate of
incorporation and the bylaws of a corporation, (b) the partnership agreement and
any statement of partnership of a general partnership, (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership, (d) any charter or similar document adopted or filed in connection
with the creation, formation or organization of a Person, and (e) any amendment
to any of the foregoing.
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union or other entity
or Governmental Body.
"Proceeding" means any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal, administrative,
investigative or informal) commenced, brought, conducted or heard by or before,
or otherwise involving, any Governmental Body or arbitrator.
"Proprietary Rights Agreement" has the meaning defined in Section 3.25.
"Purchase Price" means an aggregate of $16,800,000 as adjusted pursuant
to the provisions of Section 2.2.
-7-
<PAGE>
"Related Person" means, with respect to a particular individual:
(a) each other member of such individual's Family;
(b) any Person that is directly or indirectly controlled by such
individual or one or more member of such individual's Family;
(c) any Person in which such individual or members of such individual's
Family hold (individually or in the aggregate) a material Interest; and
(d) any Person with respect to which such individual or one or more
members of such individual's Family serves as a director, officer partner,
executor or trustee (or in a similar capacity).
With respect to a specified Person other than an individual:
(a) any Person that directly or indirectly controls, is directly or
indirectly controlled by or is directly or indirectly under common control
with such specified Person;
(b) any Person that holds a material Interest in such specified Person;
(c) each Person that serves as a director, officer, partner, executor
or trustee of such specified Person (or in a similar capacity);
(d) any Person in which such specified Person holds a material
Interest;
(e) any Person with respect to which such specified Person serves as a
general partner or a trustee (or in a similar capacity); and
(f) any Related Person of any individual described in clause (b) or
(c).
For purposes of this definition, (a) the "Family" of an individual includes
(i) the individual's spouse and, (ii) any other natural person who is related to
the individual or the individual's spouse within the second degree, and (b)
"material Interest" means direct or indirect beneficial ownership (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) of voting securities or
other voting interests representing at least 10% of the outstanding voting power
of a Person or equity securities or other equity interests representing at
least 10% of the outstanding equity securities or equity interests in a Person.
"Release" means any spilling, leaking, emitting, discharging,
depositing, escaping, leaching, dumping or other releasing into the Environment,
whether intentional or unintentional.
-8-
<PAGE>
"Securities Act" means the Securities Act of 1933, as amended, or any
successor law, regulations and rules issued pursuant to that act or any
successor law.
"Sellers" has the meaning as defined in the first paragraph of this
Agreement.
"Sellers' Closing Documents" means the Collateral Documents, Sellers'
Release and the certificates representing the St. Joe Shares and the Weeks
Shares.
"Sellers' Release" has the meaning as defined in Section 2.3.
"Shareholders' Agreement" means that certain shareholders' agreement
dated as of the date hereof, by and between Codina, Weeks and St. Joe, as
Shareholders, and the Company.
"Shares" has the meaning as defined in Section 3.4.
"St. Joe Shares" means the 3,601 Shares delivered to St. Joe by Codina
and the 1,399 Shares issued to St. Joe by the Company.
"Subsidiary" has the meaning as defined in the Recitals of this
Agreement.
"Tax" means any and all taxes, charges, fees, duties, levies or other
assessments, including, without limitation, income, gross receipts, net
proceeds, ad valorem, turnover, real and personal property (tangible and
intangible), sales, use, franchise, excise, value added, license, payroll,
unemployment, customs duties, disability, stamp, leasing, lease, user, transfer,
fuel, excess profits, occupational and interest equalization, windfall profits,
severance and employees' income withholding and Social Security taxes imposed
by, the United States or any other country or by any state, municipality,
subdivision or instrumentality of, the United States or of any other country or
by any other Governmental Authority, including all applicable penalties and
interest, and such term shall include any interest, penalties or additions to
tax attributable to such Taxes.
"Tax Return" means any return (including any information return),
report, statement, schedule, notice, form or other document or information filed
with or submitted to, or required to be filed with or submitted to any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any Legal Requirement relating to any Tax.
"Threat of Release" means a substantial likelihood of a Release that
may require action in order to prevent or mitigate damage to the Environment
that may result from such Release.
"Threatened" means a claim, Proceeding, dispute, action or other
matter will be deemed to have been "Threatened" if any demand or statement has
been made (in writing) or any notice has been given (in writing) or if any other
event has occurred or any other circumstances exist that would lead a prudent
-9-
<PAGE>
Person to conclude that such a claim, Proceeding, dispute, action or other
matter is likely to be asserted, commenced, taken or otherwise pursued in the
future.
"Warrant Agreement" means the form of warrant agreement attached
hereto as Exhibit A.
"Weeks Shares" means the 3,601 Shares delivered to Weeks by Codina
and the 1,399 Shares issued to Weeks by the Company.
"Weeks Warrant" means a warrant to purchase a share of Weeks
Corporation common stock issued pursuant to a Warrant Agreement containing the
same terms and conditions as the Warrant Agreement with an Exercise Price (as
defined therein) equal to the closing price of Weeks Corporation's common stock
on the first day immediately preceding the Closing Date when the New York Stock
Exchange is open for business.
ARTICLE II. TRANSFER OF SHARES; CLOSING
----------------------------------------
2.1 SHARES. Subject to the terms and conditions of this Agreement,
------
Sellers hereby sell or issue, as applicable the St. Joe Shares to St. Joe and
the Weeks Shares to Weeks.
2.2 PURCHASE PRICE.
--------------
(a) St. Joe hereby delivers (i) to Codina the sum of Six Million Fifty
Thousand Dollars ($6,050,000) and (ii) to the Company the sum of Two Million
Three Hundred Fifty Thousand Dollars ($2,350,000), both in exchange for the St.
Joe Shares. Weeks hereby delivers (i) to Codina the sum of Six Million Fifty
Thousand Dollars ($6,050,000) and (ii) to Company the sum of Two Million Seven
Hundred Fifty Thousand Dollars ($2,750,000), both in exchange for the Weeks
Shares. Upon completion of the Company's 1997 audited financial statements, (i)
if (a) the Company's 1997 EBIDTA is less than $4,000,000 and/or (b) the
Company's liabilities exceed its assets, the Purchase Price paid to the Company
and Codina collectively by Weeks and St. Joe will be reduced by the sum of (I)
an amount equal to the product of (A) 66 2/3% and (B) the product of (1) 6 and
(2) the amount, if any, by which $4,000,000 exceeds the Company's 1997 EBITDA
and (II) the product of (A) 66 2/3% and (B) the amount, if any, by which the
Company's liabilities exceed its assets or (ii) if (a) the Company's 1997 EBITDA
exceeds $4,400,000 and/or (b) the Company's assets exceed its liabilities, the
Purchase Price paid to the Company and Codina collectively by Weeks and St. Joe
will be increased by the sum of (I) an amount equal to the product of (A) 66
2/3% and (B) the product of (1) 6 and (2) the amount, if any, by which the
Company's 1997 EBITDA exceeds $4,400,000 but is not in excess of $4,600,000 and
(II) the product of (A) 66-2/3% and (B) the amount, if any, by which the
Company's assets exceed its liabilities. Any purchase price increase or
decrease shall be paid or repaid by or to the Sellers in the same ratio as their
initial payments hereunder provided that for such purpose the total Purchase
Price paid to the Company shall be deemed to be $4,700,000. Any purchase price
adjustment shall be paid in cash within 30 days after issuance of the Company's
1997 audited financial statements.
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<PAGE>
(b) If the cost to the Corporation of reaching agreement with the Internal
Revenue Service regarding the qualification of the Codina Group Employee Savings
and Protection Plan net of any recovery from consultants to the Corporation
exceeds $25,000, the Purchase Price shall be reduced by such excess amount.
Such excess amount, if any, shall be paid in cash by Codina to the Corporation
within thirty (30) days after such amount is ultimately determined.
2.3 CLOSING OBLIGATIONS. Sellers shall deliver to Buyers:
-------------------
(i) certificates representing the St. Joe Shares and the Weeks
Shares to St. Joe and Weeks respectively;
(ii) release in the form of Exhibit B attached hereto executed by
Seller ("Seller's Release");
(iii) Shareholders' Agreement; and
(iv) License Agreement.
2.4 Weeks Warrants. The Company shall purchase and Weeks Corporation
--------------
shall sell to the Company 100,000 Weeks Warrants for a purchase price of Four
Hundred Thousand Dollars ($400,000). Codina shall purchase and Weeks
Corporation shall sell to Codina 70,000 Weeks Warrants for a purchase price of
Two Hundred and Eighty Thousand Dollars ($280,000). The Company and Codina
shall pay the foregoing purchase price by wire transfer within two business days
from the Closing Date and Weeks Corporation shall deliver a Warrant Agreement
and the Warrant Certificates referred to in such Warrant Agreement to the
Company and Codina within thirty days from the Closing Date.
The individuals listed below shall purchase and Weeks Corporation
shall sell to the individuals listed below the number of Weeks Warrants listed
opposite their names for the purchase price indicated:
<TABLE>
<CAPTION>
Number of
Name Weeks Warrants Purchase Price
- ------------------------------ ------------------------------ ------------------
<S> <C> <C>
Henry Befeler 50,000 $200,000
Ford Gibson 40,000 $160,000
Henry Klein 20,000 $ 80,000
William T. Wassey 20,000 $ 80,000
Jose Hevia 20,000 $ 80,000
Rafael Rodon 30,000 $120,000
</TABLE>
-11-
<PAGE>
The purchase price shall be paid by Messrs. Befeler, Gibson, Klein, Wassey,
Hevia and Rodon by check within ten business days from the Closing Date and
Weeks Corporation shall deliver a Warrant Agreement and the Warrant Certificates
referred to in such Warrant Agreement to such individuals within thirty days
from the Closing Date.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
--------------------------------------------
OF CODINA AND COMPANY
---------------------
Codina, and the Company as to Sections 3.1 through and including Section
3.5 only, jointly and severally, represent and warrant to each of the Buyers as
follows:
3.1 ORGANIZATION AND GOOD STANDING. The Company and the Subsidiaries are
------------------------------
each a corporation duly organized, validly existing, and in good standing under
the laws of the State of Florida, with full corporate power and authority to
conduct their business as it is now being conducted, to own or use the
properties and assets that it purports to own or use, and to perform all its
obligations under Applicable Contracts. Neither the Company nor any Subsidiary
is qualified to do business as a foreign corporation under the laws of any other
state or other jurisdiction because the ownership and use of the properties
owned or used by it, or the nature of the activities conducted by it, does not
require such qualification. Sellers have delivered to Buyers true, correct and
complete copies of the Organizational Documents of the Company and Subsidiaries,
as currently in effect.
3.2 AUTHORITY. The execution and delivery of this Agreement and the other
---------
Sellers' Closing Documents by the Company and the performance by the Company of
its covenants and agreements hereunder and thereunder have been duly authorized
by all necessary corporate action on the part of the Company, and each of this
Agreement and the Collateral Documents constitutes the legal, valid and binding
obligation of Sellers, enforceable against Sellers in accordance with their
respective terms subject to applicable bankruptcy, insolvency, reorganization or
other laws now or hereafter in effect affecting creditors' rights generally and
subject to general principles of equity. Sellers have the absolute and
unrestricted right, power, authority and capacity to execute and deliver this
Agreement and the Sellers' Closing Documents and to perform their obligations
under this Agreement and the Sellers' Closing Documents, and all of the Seller's
Closing Documents executed and delivered by the Company and the Contemplated
Transactions have been approved by all necessary corporate and other action.
3.3 NO CONFLICT. Except as would not have a material adverse effect on
-----------
the consolidated financial condition of the Company, provided that the preceding
exception does not apply to Subsection 3.3(i), neither the execution and
delivery of this Agreement nor the consummation or performance of any of the
Contemplated Transactions will, directly or indirectly (with or without notice
or lapse of time or both);
(i) contravene, conflict with or result in a violation of (A) any
provision of the Organizational Documents of the Company or the
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<PAGE>
Subsidiaries, or (B) any resolution adopted by the board of directors or
the stockholders of the Company or the Subsidiaries;
(ii) contravene, conflict with or result in a violation of or give any
Governmental Body or other Person the right to challenge Codina's or the
Company's consummation of any of the Contemplated Transactions or to
exercise any remedy or obtain any relief under, any Legal Requirement or
any Order to which Codina, the Company or any Subsidiary, or any of the
assets owned or used by Codina, the Company or any Subsidiary, may be
subject;
(iii) contravene, conflict with or result in a violation of any of
the terms or requirements of or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify any Governmental
Authorization that is held by the Company or any Subsidiary or that
otherwise relates to the business of, or any of the assets owned or used
by, the Company or any Subsidiary;
(iv) to the Knowledge of Codina, cause the Company or any Subsidiary
to become subject to or to become liable for the payment of any Tax for
which they would otherwise not be liable;
(v) contravene, conflict with or result in a violation or breach of
any provision of or give any Person the right to declare a default or
exercise any remedy under or to accelerate the maturity or performance of
or to cancel, terminate or modify any Applicable Contract; or
(vi) result in the imposition or creation of any Encumbrance upon or
with respect to any of the assets owned or used by the Company and the
Subsidiaries.
Except as provided in Exhibit 3.3, neither Codina nor the Company nor
any Subsidiary is or will be required to give any notice to or obtain any
Consent from any Person in connection with the execution and delivery of this
Agreement or the consummation or performance of any of the Contemplated
Transactions except as set forth on Exhibit 3.3 attached hereto.
3.4 CAPITALIZATION OF COMPANY. The authorized capital stock of the
-------------------------
Company consist of Fifty Thousand (50,000) shares of common stock, par value one
cent ($.01) per share, of which Twelve Thousand Two Hundred and Two (12,202)
shares are issued and outstanding (the "Shares"). Codina is the record and
beneficial owner and holder of the Shares, free and clear of all Encumbrances,
and Codina has full legal right, power and authority to transfer the Shares to
the Buyers. With the exception of the Shares there exists no outstanding equity
securities or other securities or any subscriptions, options, warrants, calls,
contracts, demands, commitments or other agreements requiring the Company to
issue or entitling any Person or entity to acquire any additional shares of
capital stock or any other equity security of the Company. No legend or other
reference to any purported Encumbrance appears upon any certificate representing
-13-
<PAGE>
the Shares. All of the Shares have been duly authorized, validly issued and are
fully paid and nonassessable. There are no Contracts relating to the issuance,
sale or transfer of any equity securities or other securities or any
subscriptions, options, warrants, calls, contracts, demands, commitments or
other agreements requiring the Company to issue or entitling any Person or
entity to acquire any additional shares of capital stock or any other equity
security of the Company. Neither the Shares nor any other securities of the
Company were issued or transferred in violation of the Securities Act or any
other Legal Requirement. Except as set forth on Exhibit 3.4 attached hereto,
the Company and the Subsidiaries do not own, or have any Contract to acquire any
equity securities or other securities of any Person or any direct or indirect
equity or ownership interest in any other business other than the Subsidiaries.
To the Knowledge of Codina no former or present holder of any of the capital
stock of the Company has any legally cognizable claim against the Company or
Codina, based on any issuance, sale, purchase, redemption or involvement in any
transfer of any capital stock by the Company. The Company has no outstanding
obligations to repurchase, redeem or otherwise acquire any outstanding shares of
its stock.
3.5 CAPITALIZATION OF SUBSIDIARIES. The authorized, issued and
------------------------------
outstanding capital stock of the Subsidiaries is as set forth below:
<TABLE>
<CAPTION>
SHARES OF CAPITAL STOCK
SUBSIDIARIES AUTHORIZED
ISSUED AND OUTSTANDING PAR VALUE
<S> <C> <C> <C>
Codina Development 7,500 2,500 $1.00
Corporation
Codina Construction 1,000 1,000 1.00
Corporation
Codina Bush Klein 60 60 No par
Realty, Inc.
Codina Real Estate 1,000 1,000 $.01
Management, Inc.
CR Consulting, Inc. 1,000 1,000 $1.00
C&S Real Estate 1,000 1,000 $1.00
Development Corp.
</TABLE>
-14-
<PAGE>
The Company is the record and beneficial owner and holder of all of the
outstanding capital stock of each Subsidiary (other than C&S Real Estate
Development Corp.), free and clear of all Encumbrances. Codina Development
Corporation is the record and beneficial owner and holder of all capital stock
of C&S Real Estate Development Corp., free and clear of all Encumbrances. With
the exception of the shares identified above, there exists no outstanding equity
securities or other securities or any subscriptions, options, warrants, calls,
contracts, demands, commitments or other agreements requiring any Subsidiary to
issue or entitling any Person or entity to acquire any additional shares of
capital stock or any other equity security of any Subsidiary. No legend or
other reference to any purported Encumbrance appears upon any certificate
representing equity securities of any Subsidiary. All of the outstanding equity
securities of each Subsidiary have been duly authorized, validly issued and are
fully paid and nonassessable. There are no Contracts relating to the issuance,
sale or transfer of any equity securities or other securities of any Subsidiary.
None of the outstanding equity securities or other securities or any
subscriptions, options, warrants, calls, contracts, demands, commitments or
other agreements requiring any Subsidiary to issue or entitling any Person or
entity to acquire any additional shares of capital stock or any other equity
security of any Subsidiary was issued or transferred in violation of the
Securities Act or any other Legal Requirement. Except for Codina Development
Corporation, which owns all of C&S Real Estate Development Corp., no Subsidiary
owns, or has any Contract to acquire any equity securities or other securities
of any Person, or any direct or indirect equity or ownership interest in any
other business. No former or present holder of any of the capital stock of any
Subsidiary has any legally cognizable claim against the Company, any Subsidiary
or Codina, based on any issuance, sale, purchase, redemption or involvement in
any transfer of any capital stock by any Subsidiary. No Subsidiary has any
outstanding obligations to repurchase, redeem or otherwise acquire any
outstanding shares of its stock.
3.6 FINANCIAL STATEMENTS. Sellers have delivered to Buyers:
--------------------
(a) consolidated balance sheets of the Company and the Subsidiaries at
December 31 in each of the years 1995 through 1996 and the related consolidated
statements of income, changes in stockholders' equity and cash flow for each of
the fiscal years then ended, together with the report thereon of Gerson, Preston
& Company, P.A., independent certified public accountants; and
(b) an unaudited consolidated balance sheet of the Company as at
December 31, 1997 ("Closing Date Balance Sheet") and the related unaudited
consolidated statements of income, for the twelve (12) months then ended
(together, with the financial statements referred to in Section 3.6(a), the
"Financial Statements").
Except as provided in Exhibit 3.6, to the Knowledge of Codina such
Financial Statements and notes fairly present the consolidated financial
condition and the results of operations, changes in stockholders' equity and
cash flow of the Company and the Subsidiaries in all material respects, as at
the respective dates of and for the periods referred to in such financial
statements, all in accordance with GAAP, and as to the Closing Date Balance
-15-
<PAGE>
Sheet without customary year end audit adjustments and without the notes which
would normally accompany audited financial statements.
3.7 LICENSING OF COMPANY AND SUBSIDIARIES. Except as would not have
-------------------------------------
a material adverse effect on the consolidated financial condition of the
Company, the Company and each Subsidiary is licensed, authorized or registered
to carry on such business carried on by it in each jurisdiction in which such
businesses are carried on as of the date of this Agreement and the employees and
the consultants of the Company and each Subsidiary that need to be licensed or
registered by any Governmental Authority have all necessary valid licenses
and/or registrations to conduct the activities or perform the functions
currently being conducted by the Company and the Subsidiaries. To the Knowledge
of Codina, the Company and each of the Subsidiaries, except as set forth on
Exhibit 3.7 attached hereto, there has not been, and there is no, Proceeding
pending, served or Threatened to suspend, revoke or limit any such license or
registration of the Company, any Subsidiary or any employee of the Company or
any Subsidiary, and there is no circumstance which, with notice or passage of
time or both, will result in any such revocation, suspension or limitation.
3.8 BOOKS AND RECORDS. The books of account, minute books, stock
-----------------
record books and other material records of the Company and the Subsidiaries,
all of which have been made available to Buyers, are complete and correct in all
material respects. The minute books of the Company and the Subsidiaries contain
accurate and complete records of all meetings held of, and corporate action
taken by, the stockholders and the Boards of Directors (including without
limitation all issuances, transfers and redemptions of all the capital stock of
the Company and the Subsidiaries.), and no meeting of any such stockholders or
Board of Directors has been held for which minutes have not been prepared and
are not contained in such minute books. At the Closing all of those books and
records will be in the possession of the Company.
3.9 TITLE TO PROPERTIES; LEASES ENCUMBRANCES.
----------------------------------------
(a) Exhibit 3.9(a) attached hereto contains a complete and accurate
list of all real property or other interests therein owned by the Company and
the Subsidiaries. The Company and the Subsidiaries own (with good and
marketable title in the case of real property, subject only to the matters
permitted by the following sentence) all the properties and assets (whether
real, personal, or mixed and whether tangible or intangible) that they purport
to own located in the facilities owned or operated by the Company and the
Subsidiaries or reflected as owned in the books and records of the Company and
the Subsidiaries, including all of the properties and assets reflected in the
Closing Date Balance Sheet and all of the properties and assets purchased or
otherwise acquired by the Company and the Subsidiaries since the date of the
Closing Date Balance Sheet (except for personal property acquired and sold since
the date of the Closing Date Balance Sheet in the Ordinary Course of Business
and consistent with past practice). All properties and assets reflected in the
Closing Date Balance Sheet are free and clear of all Encumbrances except, with
respect to all such properties and assets (a) mortgages or security interests
-16-
<PAGE>
shown on the Closing Date Balance Sheet as securing specified liabilities or
obligations, with respect to which no default (or event that, with notice or
lapse of time or both, would constitute a default) exists, (b) mortgages or
security interests incurred in connection with the purchase of property or
assets after the date of the Closing Date Balance Sheet (such mortgages and
security interests being limited to the property or assets so acquired) with
respect to which no default (or event that with notice or lapse of time or both
would constitute a default) exists, (c) liens for current taxes not yet due, and
(d) with respect to real property (i) minor imperfections of title, if any, none
of which materially detracts from the value or impairs the use of the property
subject thereto for its intended use, or impairs the operations of the Company
or any Subsidiary, and (ii) zoning laws and other land use restrictions, right-
of-way, building use restrictions, exception, variances, reservations or
limitations that do not impair the present or anticipated use of the property
subject thereto. All buildings, plants, and structures owned by the Company or
any Subsidiary lie wholly within the boundaries of the real property owned by
the Company or any Subsidiary and do not encroach upon the property of or
otherwise conflict with the property rights of any other Person.
(b) Exhibit 3.9(b) sets forth all leases of real property to which the
Company or any Subsidiary is a party, together with all amendments and
supplements thereto and modifications thereof. To the Knowledge of Codina there
is no default or claim of default pending, threatened or asserted against the
Company or any Subsidiary by any party to any such contract or agreement, and
all such contracts and agreements are currently in full force and effect, and
there are no circumstances which, with notice or passage of time or both, would
constitute a default or a breach thereunder.
(c) Except as would not have a material adverse effect in the
consolidated financial condition of the Company, Exhibit 3.9(c) sets forth a
description of all leases of personal property involving expenditures of $10,000
or more in any year during its term to which the Company or any Subsidiary is a
party, together with all amendments and supplements thereto and modifications
thereof. No personal property leasehold interest of the Company or any
Subsidiary is subject to or subordinate to any security interest, lease or other
Encumbrance except as set forth on Exhibit 3.9(c). To the Knowledge of Codina
there is no default or claim of default pending, threatened or asserted against
the Company or any Subsidiary by any party to any such contract or agreement,
and all such contracts and agreements are currently in full force and effect,
and there are no circumstances which, with notice or passage of time or both,
would constitute a default or a breach thereunder.
3.10 CONDITION AND SUFFICIENCY OF ASSETS. Exhibit 3.10 attached
-----------------------------------
hereto contains a complete and accurate list of the buildings, structures,
fixtures and equipment of the Company and the Subsidiaries. To the Knowledge of
Codina the buildings, structures, fixtures and equipment of the Company and the
Subsidiaries are structurally sound, are in good operating condition and repair
and are adequate for the uses to which they are being put and none of such
buildings, plants, structures, fixtures or equipment is in need of maintenance
or repairs except for ordinary, routine maintenance and repairs that are not
-17-
<PAGE>
material in nature or cost. The buildings, structures, fixtures and equipment of
the Company and the Subsidiaries are sufficient for the continued conduct of the
Company and the Subsidiaries businesses after the Closing in substantially the
same manner as conducted prior to the Closing.
3.11 ACCOUNTS RECEIVABLE. To the Knowledge of Codina all accounts
-------------------
receivable of the Company and the Subsidiaries that are reflected on the Closing
Date Balance Sheet (collectively, the "Accounts Receivable") represent or will
represent valid obligations arising from sales actually made or services
actually performed in the Ordinary Course of Business. To the Knowledge of
Codina the Accounts Receivable are current and collectible net of the respective
reserves shown on the Closing Date Balance Sheet or on the accounting records of
the Company and the Subsidiaries as of the Closing Date (which reserves are
adequate and calculated consistent with past practice and, in the case of the
reserve as of the Closing Date, will not represent a material adverse change in
the composition of such Accounts Receivable in terms of aging). To the
Knowledge of Codina, subject to such reserves, each of the Accounts Receivable
either has been or will be collected in full in the Ordinary Course of Business.
To the Knowledge of Codina there is no pending contest, claim or right of set-
off, under any Contract with any obligor of an Accounts Receivable relating to
the amount or validity of such Accounts Receivable. Exhibit 3.11 attached
hereto is the Accounts Receivable Ledger as of the date of the Closing Date
Balance Sheet, which list sets forth the aging of such Accounts Receivable.
3.12 NO UNDISCLOSED LIABILITIES. Except as set forth on Exhibit
--------------------------
3.12 or liabilities and obligations incurred in the Ordinary Course of Business,
to the Knowledge of Codina neither the Company nor any Subsidiaries has any
liabilities (whether absolute, accrued, contingent or otherwise) except for
liabilities or obligations reflected or reserved against in the Closing Date
Balance Sheet. The Company has provided Buyers with all information and detail
relating to any liability or obligation reflected on or reserved against in the
Closing Date Balance Sheet. Further, to the Knowledge of Codina, neither the
Company nor any Subsidiary is in material violation of or default under any
Contract which could give rise to any material liability or obligation not
disclosed on the Closing Date Balance Sheet.
3.13 TAXES. The Company and each Subsidiary has filed or cause to
-----
be filed (on a timely basis since its creation) all Tax Returns that are or were
required to be filed by it and each Subsidiary either separately or as a member
of a group of corporations, pursuant to applicable Legal Requirements. Sellers
have delivered to Buyers copies of all such Tax Returns filed since December 31,
1995. The Company has paid on a timely basis or made provision for the payment
of all Taxes that have or may have become due pursuant to those Tax Returns or
otherwise, or pursuant to any assessment received by the Company or any
Subsidiary. The charges, accruals and reserves with respect to Taxes on the
books of the Company and of the Subsidiaries are adequate (determined in
accordance with GAAP) and are at least equal to the Company's and the
Subsidiaries' liability for Taxes. There exists no proposed tax assessment or
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other dispute or claim for Taxes against the Company or any Subsidiary except as
disclosed in the Closing Date Balance Sheet. No consent to the application of
Section 341(f)(2) of the IRC has been filed with respect to any property or
assets held, acquired, or to be acquired by the Company. All Taxes that the
Company and each Subsidiary is or was required by Legal Requirements to withhold
or collect have been duly withheld or collected and, to the extent required,
have been paid to the proper Governmental Body or other Person on a timely
basis. All Tax Returns filed by the Company and each Subsidiary are true,
correct and complete. Except with respect to the Subsidiaries, there is no tax
sharing agreement that will require any payment by the Company after the date of
this Agreement. Neither the Company nor any Subsidiary has executed an
extension or waiver of any statute of limitations on the assessment or
collection of any Tax. There is no audit, examination, deficiency or refund
Proceeding with respect to Taxes of any kind pending or Threatened, and there is
no basis in fact for any assessment of any additional Tax. All documentary
stamp Taxes with respect to the issuance of all capital stock of the Company and
the Subsidiaries have been paid.
3.14 NO MATERIAL ADVERSE CHANGE. To the Knowledge of Codina, since
--------------------------
the date of the Closing Date Balance Sheet, there has not been any material
adverse change in the business, operations, properties, prospects, assets or
condition of the Company or the Subsidiaries and no event has occurred or
circumstance exists that may result in such a material adverse change.
3.15 EMPLOYEE BENEFITS.
-----------------
(i) Except as listed on Exhibit 3.15, neither the Company, any
Subsidiary nor any Person treated as a single employer with the Company under
IRC Section 414(b), (c) or (m) maintains or contributes to, or has any
obligation to maintain or to contribute to, any profit sharing plan, pension
plan, welfare plan, retirement plan or other employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Securities Act of
1974, as amended ("ERISA"), fringe benefit, severance or any bonus or incentive
compensation plan (collectively "Company Benefit Plans").
(ii) To the Knowledge of Codina, except as provided on Exhibit 3.15,
each Company Benefit Plan is in substantial compliance with all applicable laws
and has been administered and operated in all material respects in accordance
with its terms.
(iii) Each Company Benefit Plan intended to qualify under IRC Section
401 (a) has received from the IRS a favorable determination letter with respect
to such qualified status of such Company Benefit Plan.
(iv) To the Knowledge of Codina, all reports, returns and similar
documents with respect to the Company Benefit Plans required to be filed with
any governmental agency or furnished to any participant or beneficiary have been
properly and timely filed or so furnished except to the extent that any failure
to do so could not be expected to result in the imposition of material
liability.
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<PAGE>
(v) There are no audits, investigations, and to the Knowledge of
Codina, any actions, suits or claims (other than routine claims for benefits)
threatened or pending against, or with respect to, any of Company Benefit Plans
or the assets thereof, which would result in a material liability of the
Company.
(vi) To the Knowledge of Codina, the consummation of the transactions
contemplated hereby will not accelerate the vesting or payment of any benefit
under any Company Benefit Plan which would result in a material liability of the
Company.
(vii) To the Knowledge of Codina, the assets allocated to each
Company Benefit Plan are equal to or exceed the liabilities of such Company
Benefit Plan or such liabilities are properly shown on the Closing Date Balance
Sheet.
3.16 COMPLIANCE WITH LEGAL REQUIREMENTS. To the Knowledge of Codina
----------------------------------
the Company and each Subsidiary is, and at all times since January 1, 1995 has
been in material compliance with each Legal Requirement that is or was
applicable to it or to the conduct or operation of their respective businesses
or the ownership or use of any of their respective assets. No event has occurred
or circumstance exists that (with or without notice or lapse of time or both)
(A) may constitute or result in a material violation by the Company or any
Subsidiary of or a failure on the part of the Company or any Subsidiary to
comply with any material Legal Requirement, or (B) may give rise to any
obligation on the part of the Company or any Subsidiary to undertake or to bear
all or any portion of the cost of any remedial action of any nature. Except as
set forth on Exhibit 3.16 attached hereto, neither the Company nor any
Subsidiary has received, at any time since January 1, 1995, any notice or other
written communication from any Governmental Body or any other Person regarding
(A) any actual, alleged, possible or potential material violation of or failure
to comply with any Legal Requirement, or (B) any actual, alleged, possible or
potential material obligation on the part of the Company or any Subsidiary to
undertake or to bear all or any portion of the cost of any material remedial
action of any nature.
3.17 GOVERNMENTAL AUTHORIZATIONS. Exhibit 3.17 attached
---------------------------
hereto contains a complete and accurate list of each material Governmental
Authorization that is held by the Company and the Subsidiaries. To the
Knowledge of Codina, each Governmental Authorization listed or required to be
listed on Exhibit 3.17 is valid and in full force and effect. To the Knowledge
of Codina, the Company is, and at all times since January 1, 1995, has been in
full compliance with all of the terms and requirements of each Governmental
Authorization identified or required to be identified on Exhibit 3.17 attached
hereto. To the Knowledge of Codina no event has occurred or circumstance exists
that may (with or without notice or lapse of time or both) (A) constitute or
result directly or indirectly in a material violation of or a failure to comply
with any term or requirement of any Governmental Authorization listed or
required to be listed on Exhibit 3.17, or (B) result directly or indirectly in
the revocation, withdrawal, suspension, cancellation or termination of or any
modification to any Governmental Authorization listed or required to be listed
on Exhibit 3.17. Neither the Company nor any Subsidiary has received, at any
time since January 1, 1995, any notice or other written communication from any
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<PAGE>
Governmental Body or any other Person regarding (A) any actual, alleged,
possible or potential violation of or failure to comply with any term or
requirement of any Governmental Authorization, or (B) any actual, proposed,
possible or potential revocation, withdrawal, suspension, cancellation,
termination of or modification to any Governmental Authorization. All
applications required to have been filed for the renewal of the Governmental
Authorizations listed or require to be listed on Exhibit 3.17 have been duly
filed on a timely basis with the appropriate Governmental Bodies and all other
filings required to have been made with respect to such Governmental
Authorizations have been duly made on a timely basis with the appropriate
Governmental Bodies. To the Knowledge of Codina, the Governmental
Authorizations listed on Exhibit 3.17 collectively constitute all of the
material Governmental Authorizations necessary to permit the Company and the
Subsidiaries to lawfully conduct and operate its business in the manner it
currently conducts and operates such business and to permit the Company and the
Subsidiaries to own and use their respective assets in the manner in which they
currently own and use such assets.
3.18 LEGAL PROCEEDINGS. Except as disclosed on Exhibit 3.18 attached
-----------------
hereto, there is no pending Proceeding: (A) that has been commenced by or
against Codina, the Company or any Subsidiary that relates to the business of or
any of the assets owned or used by the Company or any Subsidiary; or (B) that
challenges or that may have the effect of preventing, delaying, making illegal
or otherwise interfering with any of the Contemplated Transactions.
Except as provided on Exhibit 3.18, to the Knowledge of Codina, (A)
no such Proceeding has been Threatened, and (B) no event has occurred or
circumstance exists that may give rise to or serve as a basis for the
commencement of any such Proceeding. To the Knowledge of Codina, there is no
proceeding pending or Threatened which otherwise relates to or may affect the
business of the Company or any Subsidiary.
3.19 ORDERS. To the Knowledge of Codina, there is no material Order
------
to which the Company or the Subsidiaries or any of the assets owned or used by
the Company or the Subsidiaries is subject. To the Knowledge of Codina, no
officer, director or employee of the Company or the Subsidiaries is subject to
any Order that prohibits such officer, director or employee from engaging in or
continuing any conduct, activity or practice relating to the business of the
Company or the Subsidiaries.
3.20 ABSENCE OF CERTAIN CHANGES AND EVENTS. Since the date of the
-------------------------------------
Closing Date Balance Sheet the Company and the Subsidiaries have conducted their
respective businesses only in the Ordinary Course of Business and except as set
forth on Exhibit 3.20, there has not been any: (i) change in the Company's or
the Subsidiaries' authorized or issued capital stock; grant of any stock option
or right to purchase shares of capital stock of the Company or any Subsidiary;
issuance of any security convertible into such capital stock; grant of any
registration rights; purchase, redemption, retirement or other acquisition by
the Company or any Subsidiary of any shares of any such capital stock; or
declaration or payment of any dividend or other distribution or payment on any
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<PAGE>
of its shares of capital stock; (ii) amendment to the Organizational Documents
of the Company or any Subsidiary; (iii) payment or increase by the Company or
any Subsidiary of any bonuses, salaries or other compensation to any
stockholder, director, officer or employee (except in the Ordinary Course of
Business) or entry into any employment, severance or similar Contract with any
director, officer or employee; (iv) payment on account of the Shares by way of
dividends or other distributions of cash or other assets of the Company; (v)
damage to or destruction or loss of any asset or property of the Company or the
Subsidiaries, whether or not covered by insurance, materially and adversely
affecting the properties, assets, business, financial condition or prospects of
the Company and the Subsidiaries taken as a whole; (vi) other than in the
Ordinary Course of Business, entry into, termination of or receipt of notice of
termination of (1) any license, distributorship, dealer, sales representative,
joint venture, management, development, credit or similar agreement; (2) any
Management, Development or Leasing Agreement; or (3) any Contract or transaction
involving a total remaining commitment by or to the Company or any Subsidiary of
at least Fifty Thousand and no/100 Dollars ($50,000.00); (vii) other than the
Ordinary Course of Business, purchase, sale, lease or other disposition of any
asset or property of the Company or any Subsidiary or mortgage, pledge or
imposition of any lien or other encumbrance on any asset or property of the
Company or the Subsidiaries involving Fifty Thousand and no/100 Dollars
($50,000.00) or more, including the sale, lease or other disposition of any of
the assets; (viii) cancellation or waiver of any claims or rights with a value
to the Company or any Subsidiary in excess of Ten Thousand and no/100 Dollars
($10,000.00); (ix) material change in the tax elections or accounting methods
used by the Company or any Subsidiary; (x) agreement, whether oral or written,
by the Company or any Subsidiary to do any of the foregoing outside the Ordinary
Course of Business; (xi) any borrowings, other than trade payables incurred in
the Ordinary Course of Business; (xii) any change in existing credit
arrangements with any bank or other institution; (xiii) any material loan or
advance made to any officer, director, consultant, agent, employee or
shareholder, or Related Person of any of the foregoing outside of the Ordinary
Course of Business; or (xiv) any material transactions outside the Ordinary
Course of Business.
3.21 CONTRACTS. Exhibit 3.21 attached hereto contains a complete and
---------
accurate list and the Company has delivered to Buyers true and complete copies
of:
(i) each Applicable Contract that involves performance of services or
delivery of goods or materials in excess of Fifty Thousand and no/100
Dollars ($50,000.00) per annum by the Company and all Subsidiaries,
including without limitation the Development, Management and Leasing
Agreements;
(ii) each licensing agreement or other Applicable Contract with
respect to patents, trademarks, copyrights or other intellectual property,
including agreements with current or former employees, consultants or
contractors in excess of Fifty Thousand and no/100 Dollars ($50,000.00) per
annum;
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<PAGE>
(iii) each joint venture, partnership and other Applicable Contract
(however named) involving a sharing of profits, losses, costs or
liabilities by the Company or any Subsidiary with any other Person;
(iv) each Applicable Contract containing covenants that in any way
purport to restrict the business activity of Codina, the Company or any
Subsidiary of the Company or limit the freedom of Codina, the Company or
any Subsidiary of the Company to engage in any line of business or to
compete with any Person;
(v) each Applicable Contract providing for payments to or by any
Person based on sales, purchases or profits in excess of Fifty Thousand and
no/100 Dollars ($50,000.00) per annum other than direct payments for good
and services;
(vi) each power of attorney that is currently effective and
outstanding;
(vii) each Applicable Contract for capital expenditures in excess of
Fifty Thousand and no/100 Dollars ($50,000.00) per annum;
(viii) each written warranty, guaranty and/or other similar
undertaking with respect to contractual performance extended by the Company
or the Subsidiaries in excess of Fifty Thousand and no/100 ($50,000.00) per
annum;
(ix) all leases of real property;
(x) each Applicable Contract with any director, officer, shareholder
employee, or affiliates of any of the foregoing entered into by the Company
or any Subsidiary;
(xi) any other written or unwritten agreement that is material to the
business of the Company and any Subsidiary; and
(xii) each amendment, supplement and modification (whether oral or
written) in respect of any of the foregoing.
To the Knowledge of Codina, each Contract identified or required to be
identified on Exhibit 3.21 is in full force and effect and is valid and
enforceable in accordance with its terms.
Except as provided on Exhibit 3.21, to the Knowledge of Codina, as of the
date hereof with respect to each Construction Contract identified on Exhibit
3.21, it is not anticipated (i) that the party to each of such contracts will be
entitled to make a claim for liquidated damages under such contracts or (ii)
that the Company's total cost of performing such contracts will exceed the
guaranteed maximum price, if any, under such contracts.
-23-
<PAGE>
Except as provided on Exhibit 3.21, to the Knowledge of Codina as of the
date hereof, it is not anticipated that the Company's cost of performing any
Development Agreement which has a guaranteed maximum price will exceed such
guaranteed maximum price.
3.22 NO DEFAULTS. Except as set forth on Exhibit 3.22, to the Knowledge
-----------
of Codina:
(i) the Company and the Subsidiaries are, and at all times have been,
in material compliance with all material applicable terms and requirements
of each Contract under which the Company or any Subsidiary has or had any
obligation or liability or by which the Company or any Subsidiary or any of
the assets owned or used by the Company or any Subsidiary is or was bound;
(ii) each other Person that has or had any obligation or liability
under any Contract under which the Company or any Subsidiary has or had any
rights is, and at all times has been, in material compliance with all
applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or
without notice or lapse of time) may contravene, conflict with or result in
a material violation or breach of or give the Company, a Subsidiary or
other Person the right to declare a default or exercise any remedy under or
to accelerate the maturity or performance of or to cancel, terminate or
modify any Applicable Contract;
(iv) neither the Company nor any Subsidiary has given to, or received
from, any other Person, at any time any notice or other written
communication regarding any actual, alleged, possible or potential
violation or breach of or default under any Contract; and
(v) neither Codina nor the Company nor any Subsidiary is or will be
required to give any notice to or obtain Consent from any Person in
connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.
There are no renegotiations or outstanding rights to renegotiate any
material amounts paid or payable to the Company under current or completed
Contracts with any Person and no such Person has made written demand for such
renegotiation.
3.23 INSURANCE. To the Knowledge of Codina, except as described on
---------
Exhibit 3.23, the Company and each Subsidiary maintains, insurance policies of
fire and extended coverage and casualty, liability and other forms of insurance
in such amounts and against such risks and losses as are set forth on Exhibit
3.23 attached hereto. To the Knowledge of Codina, all such insurance policies
are in full force and effect. To the Knowledge of Codina, except as described
on Exhibit 3.23, all such insurance policies will continue in full force and
effect following consummation of the Contemplated Transactions and do not
-24-
<PAGE>
provide for any retroactive premium adjustment or other experience-based
liability on the part of the Company or any Subsidiary.
Neither Company nor any Subsidiary has received (i) any refusal of coverage
or any notice that a defense will be afforded with reservation of rights, or
(ii) any notice of cancellation or any other indication that any insurance
policy is no longer in full force or effect or will not be renewed or that the
issuer of any policy is not willing or able to perform its obligations
thereunder. The Company and each Subsidiary has paid all premiums due and has,
to the Knowledge of Codina, except as described on Exhibit 3.23, otherwise
performed all of its obligations under each policy to which the Company or any
Subsidiary is a party or that provides coverage to the Company or any Subsidiary
or any director, officer, employee, agent or consultant of the Company or any
Subsidiary thereof. To the Knowledge of Codina, except as described on Exhibit
3.23, the Company and each Subsidiary, as applicable, has given notice to the
insurer of all claims that may be insured thereby.
3.24 ENVIRONMENTAL MATTERS.
---------------------
(i) To the Knowledge of Codina, the Company is, and at all times has
been, in full compliance with and has not been and is not in violation of
or liable under any Environmental Law. To the Knowledge of Codina, the
Company has no basis to expect nor has it or any other Person for whose
conduct it is or may be held to be responsible received any actual or
Threatened order, notice or other communication from (a) any Governmental
Body or private citizen acting in the public interest, or (b) the current
or prior owner or operator of any Facilities of any actual or potential
violation or failure to comply with any Environmental Law or of any actual
or Threatened obligation to undertake or bear the cost of any
Environmental, Health and Safety Liabilities with respect to any of the
Facilities or any other properties or assets (whether real, personal or
mixed) in which the Company has had an interest or with respect to any
property or Facility at or to which Hazardous Materials were generated,
manufactured, refined, transferred, imported, used or processed by the
Company or any other Person for whose conduct they are or may be held
responsible.
(ii) There are no pending or, to the Knowledge of Codina, Threatened
claims, Encumbrances or other restrictions of any nature resulting from any
Environmental, Health and Safety Liabilities or arising under or pursuant
to any Environmental Law with respect to or affecting any of the Facilities
or any other properties and assets (whether real, personal or mixed) in
which the Company or any Subsidiary has or had an interest.
(iii) To the Knowledge of Codina, the Company has no basis to expect,
nor has it or any other Person for whose conduct it is or may be held
responsible, received any citation, directive, inquiry, notice, Order,
summons, warning or other communication that relates to Hazardous Activity,
Hazardous Materials or any alleged, actual or potential obligation to
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<PAGE>
undertake or bear the cost of any Environmental, Health and Safety
Liabilities with respect to any of the Facilities or any other properties
or assets (whether real, personal or mixed) in which the Company or the
Subsidiaries had an interest, or with respect to any property or facility
to which Hazardous Materials generated, manufactured, refined, transferred,
imported, used or processed by the Company or any other Person for whose
conduct it is or may be held responsible, have been transported, treated,
stored, handled, transferred, disposed, recycled or received.
(iv) To the Knowledge of Codina, neither the Company nor any
Subsidiary, nor any other Person for whose conduct it is or may be held
responsible, has any Environmental, Health and Safety Liabilities with
respect to the Facilities or with respect to any other properties and
assets (whether real, personal or mixed) in which the Company or any
Subsidiary (or any predecessor) has or had an interest, or at any property
geologically or hydrologically adjoining the Facilities or any such other
property or assets.
(v) To the Knowledge of Codina, neither the Company nor any
Subsidiary, nor any other Person for whose conduct it is or may be held
responsible has permitted or conducted or is aware of any Hazardous
Activity conducted with respect to the Facilities or any other properties
or assets (whether real, personal or mixed) in which the Company or any
Subsidiary has or had an interest except in full compliance with all
applicable Environmental Laws.
(vi) To the Knowledge of Codina, there has been no Release, or Threat
of Release, of any Hazardous Materials at or from the Facilities or at any
other locations where any Hazardous Materials were generated, manufactured,
refined, transferred, produced, imported, used or processed from or by the
Facilities or from or by any other properties and assets (whether real,
personal or mixed) in which the Company or any Subsidiary has or had an
interest whether by the Company or any other Person.
(vii) The Company has delivered to Buyers true and complete copies
and results of any reports, studies, analyses, tests or monitoring
possessed or initiated by the Company pertaining to Hazardous Materials or
Hazardous Activities in, on or under the Facilities or concerning
compliance by the Company or any other Person for whose conduct it is or
may be held responsible with Environmental Laws.
3.25 EMPLOYEES.
---------
(a) Exhibit 3.25 attached hereto is the Payroll Register as of
December 31, 1997 which contains a complete and accurate list of the following
information for each employee, officer or director of the Company and each
Subsidiary, including each such person on leave of absence or layoff status:
employer; name; job title; current compensation paid or payable; last increase
in compensation; and vacation accrued. Except as set forth on Exhibit 3.25
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<PAGE>
attached hereto, no employee, officer or director of the Company or any
Subsidiary is a party to or is otherwise bound by any agreement or arrangement,
including any confidentiality, non-competition or proprietary rights agreement
between such employee, officer or director and any other Person ("Proprietary
Rights Agreement") that in any way adversely affects or will affect (i) the
performance of his or her duties as an employee or director of the Company or
any Subsidiary, or (ii) the ability of the Company or any Subsidiary to conduct
its business, including any Proprietary Rights Agreement with the Company or any
Subsidiary by any such employee, consultant, officer or director. To the
Knowledge of Codina, no director, officer or other key employee of the Company
or any Subsidiary intends to terminate his employment with the Company or any
Subsidiary.
(b) To the Knowledge of Codina, except as set forth in Exhibit
3.25, neither the Company nor any Subsidiary has any:
(i) Outstanding written or oral employment, consulting or
retainer (except for retainer agreements with attorneys and accountants and
retainer agreements for the provision of services for the Company or any
Subsidiary that are terminable at will by the Company and entered into in
the Ordinary Course of Business) agreements for rendition of services by
any person or any outstanding obligation under any prior written or oral
agreement of such nature;
(ii) Officers or other employees or consultants whose employment
or retainer, as the case may be, cannot be terminated by the Company or any
Subsidiary at will and without penalty, and, except in the Ordinary Course
of Business, without payment of any severance or similar benefits imposed
by any statute, regulation, order, decree, Applicable Contract or
otherwise;
(iii)Obligations to make future contributions to fund bonus,
pension, profit sharing or deferred compensation agreements, plans, or
arrangements; or
(iv) Collective bargaining agreement. or labor union.
(c) Neither the Company nor any Subsidiary has any "golden parachute
agreements" or agreements providing payments, bonuses, or termination or
acceleration rights, or other benefits to employees or other Persons in
connection with or as a result of a change in control of the Company or any
Subsidiary.
(d) Except as provided elsewhere in this Agreement, neither the
Company nor any of the Subsidiaries has any outstanding liability to any of
their employees, officers or directors except (i) accrued salaries during the
current period (not to exceed one month) or accrued compensation or commissions,
as the case may be, and (ii) normal vacations during the preceding twelve
months.
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<PAGE>
(e) The incentive compensation arrangements reflected on Exhibits to
the Employment Agreements by and between the Company and each member of Senior
Management (as such term is defined in the Shareholders Agreement) are the same
as the incentive compensation arrangements in effect with such individuals for
the calendar year 1997 except that there was a 10% holdback of the amount of the
incentive compensation which is not provided for in the Exhibits to the
Employment Agreements.
3.26 INTELLECTUAL PROPERTY.
---------------------
(a) To the Knowledge of Codina, except as disclosed on Exhibit 3.26,
the Company and the Subsidiaries do not own, use or license: (i) registered and
unregistered trademarks, service marks and applications (collectively, "Marks");
or (ii) know-how, trade secrets, confidential information, customer lists,
software, technical information, data process technology, plans, drawings and
blue prints (collectively, "Trade Secrets").
(b) Neither the Company nor any Subsidiary owns any patent, patent
application or invention or discovery that may be patentable or any copyright in
either published works or unpublished works.
To the Knowledge of Codina, Exhibit 3.26 attached hereto lists all of the
Marks and Trade Secrets and contains a complete and accurate list and summary
description, including any royalties paid or received by the Company or any
Subsidiary, of all Contracts relating to the Marks, Patents, Copyrights and
Trade Secrets to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound. To the Knowledge of Codina, there are no
outstanding and no Threatened disputes or disagreements with respect to any such
agreement. The Company has provided Buyers with true and complete copies of
each item listed or required to be listed on Exhibit 3.26. To the Knowledge of
Codina, the Company and the Subsidiaries have not infringed on any proprietary
rights of any other Person. To the Knowledge of Codina, the Company and each of
the Subsidiaries owns, or possesses valid license rights to, all computer
software programs that are material to the conduct of the business of the
Company and the Subsidiaries. To the Knowledge of Codina, the consummation of
the transactions contemplated by this Agreement will not result in the loss or
impairment of any of the Marks or Trade Secrets.
3.27 CERTAIN PAYMENTS. To the Knowledge of Codina, neither the
----------------
Company, the Subsidiaries nor any director, officer or employee of the Company
or any Subsidiary, or any other Person associated with or acting for or on
behalf of the Company or any Subsidiary has directly or indirectly (i) made any
illegal contribution, gift, bribe, rebate, payoff, influence payment, kickback
or other payment to any Person, private or public, regardless of form, whether
in money, property or services (a) to obtain favorable treatment in securing
business, (b) to pay for favorable treatment for business secured, (c) to obtain
special concessions or for special concessions already obtained for or in
respect of the Company or any Subsidiary or any Related Person of the Company or
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<PAGE>
any Subsidiary, or (d) in violation of any Legal Requirement, and (ii)
established or maintained on behalf of the Company or any Subsidiary any fund or
asset that has not been recorded in the books and records of the Company or of
any Subsidiary.
3.28 DISCLOSURE. To the Knowledge of Codina, no representation,
----------
warranty or statement of the Company or Codina in this Agreement and no
statement contained in any other document executed in connection with this
Agreement contains an untrue statement of material fact or omits to state a
material fact necessary to make the statements herein or therein in light of the
circumstances in which they were made not misleading. To the Knowledge of
Codina, there is no fact that has specific application to the Company and the
Subsidiaries (other than general economic or industry conditions) and that
materially adversely affects the assets, business, prospects, financial
condition or results of operations of the Company and the Subsidiaries that has
not been set forth in this Agreement or the Exhibits hereto.
3.29 RELATIONSHIPS WITH RELATED PERSONS. Except as listed on Exhibit
----------------------------------
3.29 attached hereto, as of the date hereof, neither Codina nor any Related
Person of Codina has any interest in any property (whether real, personal or
mixed and whether tangible or intangible) used in or pertaining to the Company
or the Subsidiaries' businesses. Except as listed on Exhibit 3.29 attached
hereto, as of the date hereof, neither Codina nor any Related Person of Codina
owns (of record or as a beneficial owner), an equity interest or any other
financial or profit interest in a Person that has business dealings or a
material financial interest in any transaction with the Company or any
Subsidiary which involved payment in excess of $10,000 per annum.
3.30 BROKERS OR FINDERS. Neither Codina nor the Company nor any
------------------
Subsidiary has incurred any obligation or liability, contingent or otherwise,
for brokerage or finders' fees or agents' commissions or other similar payment
in connection with this Agreement as the commission of any of the Contemplated
Transactions except for the fee owed to Arthur Andersen by the Company as set
forth on Exhibit 3.30.
3.31 BANK ACCOUNTS; DIRECTORS AND OFFICERS. A complete list of all
-------------------------------------
bank accounts and safe deposit boxes maintained by each of the Company and the
Subsidiaries and all persons entitled to draw thereon or with access thereto is
set forth on Exhibit 3.31 attached hereto. Exhibit 3.31 also sets forth the
names of all of the directors and officers of the Company and the Subsidiaries.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF
----------------------------------------------
ST. JOE AND WEEKS
-----------------
St. Joe represents and warrants to each of the Sellers as
follows:
4.1 ORGANIZATION AND GOOD STANDING. St. Joe is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the State of
Florida.
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<PAGE>
4.2 AUTHORITY. This Agreement and each of the St. Joe's Closing
---------
Documents listed in Section 2 constitutes the legal, valid and binding
obligation of St. Joe, enforceable against St. Joe in accordance with its terms.
St. Joe has the absolute and unrestricted right, power and authority to execute
and deliver this Agreement and the St. Joe's Closing Documents and to perform
its obligations under this Agreement and the St. Joe's Closing Documents.
4.3 NO CONFLICT. Neither the execution and delivery of this
-----------
Agreement by St. Joe nor the consummation or performance of any of the
Contemplated Transactions by St. Joe will give any Person the right to prevent,
delay or otherwise interfere with any of the Contemplated Transactions pursuant
to:
(i) any provision of St. Joe's Organizational Documents;
(ii) any resolution adopted by the board of directors or the
stockholders of St. Joe;
(iii) any Legal Requirement or Order to which St. Joe may
be subject;or
(iv) any Contract to which St. Joe is a party or by which St.
Joe may be bound.
St. Joe is not and will not be required to obtain any Consent from any
Person in connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.
4.4 INVESTMENT INTENT. St. Joe is acquiring the St. Joe Shares for
-----------------
its own account and not with a view to their distribution within the meaning of
Section 2(11) of the Securities Act.
4.5 CERTAIN PROCEEDINGS. There is no pending Proceeding that has
-------------------
been commenced against St. Joe and that challenges or may have the effect of
preventing, delaying, making illegal or otherwise interfering with any of the
Contemplated Transactions. To St. Joe's Knowledge, no such Proceeding has been
Threatened.
4.6 BROKERS OR FINDERS. Neither St. Joe nor its officers and agents
------------------
have incurred any obligation or liability, contingent or otherwise, for
brokerage or finders' fees or agents' commissions or other similar payment in
connection with this Agreement or the consummation of the Contemplated
Transactions.
Weeks represents and warrants to each of the Sellers as follows:
4.7 ORGANIZATION AND GOOD STANDING. Weeks is a corporation, duly
------------------------------
organized validly existing and in good standing under the laws of the State of
Georgia.
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<PAGE>
4.8 AUTHORITY. This Agreement and each of the Weeks Closing
---------
Documents constitutes the legal, valid and binding obligation of Weeks,
enforceable against Weeks in accordance with its terms. Weeks has the absolute
and unrestricted right, power and authority to execute and deliver this
Agreement and the Weeks' Closing Documents and to perform its obligations under
this Agreement and the Weeks' Closing Documents.
4.9 NO CONFLICT. Neither the execution and delivery of this
-----------
Agreement by Weeks nor the consummation or performance of any of the
Contemplated Transactions by Weeks will give any Person the right to prevent,
delay or otherwise interfere with any of the Contemplated Transactions pursuant
to:
(i) any provision of Weeks' Organizational Documents;
(ii) any resolution adopted by the board of directors or the
stockholders of Weeks;
(iii)any Legal Requirement or Order to which Weeks may be subject;
or
(iv) any Contract to which Weeks is a party or by which Weeks may
be bound.
Weeks is not and will not be required to obtain any Consent from any
Person in connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.
4.10 INVESTMENT INTENT. Weeks is acquiring the Weeks Shares for its
-----------------
own account and not with a view to their distribution within the meaning of
Section 2(11) of the Securities Act.
4.11 CERTAIN PROCEEDINGS. There is no pending Proceeding that has
-------------------
been commenced against Weeks and that challenges or may have the effect of
preventing, delaying, making illegal or otherwise interfering with any of the
Contemplated Transactions. To Weeks' Knowledge, no such Proceeding has been
Threatened.
4.12 BROKERS OR FINDERS. Neither Weeks nor its officers and agents
------------------
have incurred any obligation or liability, contingent or otherwise, for
brokerage or finders' fees or agents' commissions or other similar payment in
connection with this Agreement the consummation of any of the Contemplated
Transactions.
ARTICLE V. INDEMNIFICATION; REMEDIES
-------------------------------------
5.1 SURVIVAL; RIGHT TO INDEMNIFICATION. All representations,
----------------------------------
warranties, covenants and obligations in this Agreement and any other
certificate or document delivered pursuant to this Agreement will survive for
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<PAGE>
eighteen (18) months after the Closing Date except for the representations and
warranties contained in Section 3.12 which will survive for thirty-six (36)
months after Closing Date.
5.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY CODINA. Codina will
------------------------------------------------
indemnify and hold harmless each of the Buyers and their respective
stockholders, controlling persons and affiliates for and will pay to such
persons the amount of any loss, liability, claim, damage, fine, penalty
(excluding incidental and consequential damages), expense (including costs of
investigation and defense and reasonable attorneys' and accountants' fees) or
diminution of value whether or not involving a third-party claim (collectively,
"Damages") arising, directly or indirectly, from or in connection with:
(i) any Breach of any representation or warranty made by
Sellers in this Agreement or any other certificate delivered by Sellers
pursuant to this Agreement;
(ii) any Breach by Sellers of any covenant or obligation in
this Agreement;
(iii) any claim by any Person for brokerage or finders' fees
or commissions or similar payments based upon any agreement or
understanding alleged to have been made by any such Person with either
Codina or the Company or any Subsidiary (or any Person acting on their
behalf) in connection with any of the Contemplated Transactions; and
(iv) any breach of Contract or violation of law occurring
prior to the date of closing.
5.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY ST. JOE. St. Joe will
-------------------------------------------------
indemnify and hold harmless Sellers against any Damages arising, directly or
indirectly, from or in connection with:
(i) any Breach of any representation or warranty made by St. Joe in
this Agreement or in any certificate or documents delivered by St. Joe
pursuant to this Agreement; or
(ii) any Breach by St. Joe of any covenant or obligation of St. Joe in
this Agreement.
5.4 INDEMNIFICATION AND PAYMENT OF DAMAGES BY WEEKS. Weeks will
-----------------------------------------------
indemnify and hold harmless Sellers against any Damages arising, directly or
indirectly, from or in connection with:
(i) any Breach of any representation or warranty made by Weeks in this
Agreement or in any certificate or documents delivered by Weeks pursuant to
this Agreement; or
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<PAGE>
(ii) any Breach by Weeks of any covenant or obligation of Weeks in
this Agreement.
5.5 ASSERTION OF CLAIMS. In the event that Buyers or Sellers desires
-------------------
to make a claim under this Article 5 (an "Indemnification Claim"), the party to
be indemnified (the "Indemnified Party") will give the other party (the
"Indemnifying Party") prompt notice of any such Indemnification Claim and, in
the event such Indemnification Claim involves any suit, action or other
proceeding, pending or threatened, the Indemnifying Party will undertake the
defense thereof by representatives chosen by it which are reasonably
satisfactory to the Indemnified Party. The failure to promptly notify the
Indemnifying Party hereunder shall not relieve such party of its obligations
hereunder, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. If the Indemnifying Party, within a
reasonable time after notice of any such Indemnification Claim, fails to defend
such Indemnification Claim, the Indemnified Party will have the right to
undertake the defense, compromise or settlement of such Indemnification Claim on
behalf of and for the account and risk of the Indemnifying Party, subject to the
right of the Indemnifying Party to assume the defense of such Indemnification
Claim at any time prior to settlement, compromise or final determination
thereof. The Indemnified Party shall, at the request and expense of the
Indemnifying Party, provide reasonable assistance in the defense of any such
Indemnification Claim. If the Indemnifying Party has undertaken defense of an
Indemnification Claim and if there is a reasonable probability that (i) an
Indemnification Claim may materially and adversely affect the Indemnified Party
other than as a result of money damages or other money payments or (ii) the
Indemnified Party or parties may have legal defenses available to it which are
different from or additional to the defenses available to the Indemnifying
Party, the Indemnified Party shall have the right, at the Indemnifying Party's
expense, to jointly control the defense, compromise or settlement of such
Indemnification Claim. In all events an Indemnified Party shall have the right
to participate in its defense at its own expense. Notwithstanding the
foregoing, no Indemnifying Party shall be liable for any compromise or
settlement of any action or proceeding effected without its written consent
(which shall not be unreasonably withheld). The Indemnifying Party shall not,
without the written consent of the Indemnified Party, settle or compromise any
Indemnification Claim or consent to the entry of any judgment with respect to
the Indemnified Party which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Party a release
from all liability in respect of such Indemnification Claim.
5.6 INDEMNITY LIMITS.
----------------
(a) Indemnification Claims shall be reduced by proceeds actually
received by an Indemnified Party under insurance policies, risk sharing pools,
or similar arrangements specifically as a result of, and in compensation for,
the subject matter of an Indemnification Claim by such Indemnified Party.
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<PAGE>
(b) Notwithstanding anything herein to the contrary, (i) Codina shall
not be obligated to indemnify Weeks against any Indemnification Claim pursuant
to this Agreement unless and until all amounts for which Codina would otherwise
be obligated to indemnify Weeks under this Agreement exceeds $250,000; provided,
however, that if Codina's obligation under this Article V exceeds such limit,
his obligation shall be for the full amount of such obligation, from the first
dollar up to the maximum amount of his liability; (ii) Codina shall not be
obligated to indemnify St. Joe against any Indemnification Claim pursuant to
this Agreement unless and until all amounts for which Codina would otherwise be
obligated to indemnify St. Joe under this Agreement exceeds $250,000; provided,
however, that if Codina's obligation under this Article V exceeds such limit,
his obligation shall be for the full amount of such obligation, from the first
dollar up to the maximum amount of his liability; and (iii) in no event shall
the aggregate liability of Codina pursuant to this Agreement exceed $1,500,000
with respect to Weeks or $1,500,000 with respect to St. Joe.
(c) Notwithstanding anything herein to the contrary, neither Weeks nor
St. Joe shall be obligated to indemnify against any Indemnification Claim
pursuant to this Agreement until such time as Codina's aggregate right to such
indemnification exceeds $250,000 with respect to indemnification by St. Joe;
provided, however that if St. Joe's obligation under this Article V exceeds such
limit, its obligation shall be for the full amount of such obligation, from the
first dollar up to the maximum amount of its liability; and $250,000 with
respect to indemnification by Weeks; provided, however, that if Weeks'
obligation under this Article V exceed such limit, its obligation shall be for
the full amount of such obligation, from the first dollar up to the maximum
amount of its liability. St. Joe's and Weeks' aggregate liability for
indemnification pursuant to Section 7.3 will not exceed $1,500,000 each.
ARTICLE VI. GENERAL PROVISIONS
-------------------------------
6.1 EXPENSES. Each of Codina, St. Joe and Weeks will bear its
--------
respective expenses incurred in connection with the preparation, execution and
performance of this Agreement and the Contemplated Transactions, including all
fees and expenses of agents, representatives, counsel and accountants.
6.2 PUBLIC ANNOUNCEMENTS. Any public announcement or similar
--------------------
publicity with respect to this Agreement or the Contemplated Transaction will be
issued, if at all, at such time and in such manner as Buyers and Codina mutually
determine. Unless consented to by Buyers and Codina in advance or required by
Legal Requirements, each party hereto shall keep this Agreement strictly
confidential and may not make any disclosure of this Agreement to any Person.
Sellers and Buyers will consult with each other concerning the means by which
the Company's employees, customers, consultants and suppliers and others having
dealings with the Company will be informed of the Contemplated Transactions and
Buyers will have the right to be present for any such communication.
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<PAGE>
6.3 CONFIDENTIALITY. Each party hereto will maintain in confidence
---------------
and will cause their respective directors, officers, employees, agents,
consultants and advisors to maintain in confidence, any written, oral or other
information obtained in confidence from another party hereto or the Company in
connection with this Agreement or the Contemplated Transactions, unless (i) such
information is already known to such party or to others not bound by a duty of
confidentiality or such information becomes publicly available through no fault
of such party, (ii) the use of such information is necessary or appropriate in
making any filing or obtaining any consent or approval required for the
consummation of the Contemplated Transactions, or (iii) the furnishing or use of
such information is required by legal proceedings; provided, however, that in
the event of disclosure pursuant to (ii) or (iii) hereof, such disclosing party
shall agree to provide prompt written notice to the other parties hereto prior
to disclosure and to disclose only that portion of the confidential information
which is legally required or otherwise necessary.
6.4 ENFORCEMENT COSTS. If any civil action, arbitration or other
-----------------
legal proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover reasonable attorneys' fees, sales and use taxes, court
costs and all expenses even if not taxable as court costs (including, without
limitation, all such fees, taxes, costs and expenses incident to arbitration,
appellate, bankruptcy and post-judgment proceedings), incurred in that civil
action, arbitration or legal proceeding, in addition to any other relief to
which such party or parties may be entitled. Attorneys' fees shall include,
without limitation, paralegal fees, investigative fees, administrative costs,
sales and use taxes and all other charges billed by the attorney to the
prevailing party. All of such preceding enforcement costs shall not be subject
to the limitations on amounts set forth in Section 5.6 of this Agreement.
6.5 EQUITABLE REMEDIES. Each of the parties acknowledges that the
------------------
other parties hereto will be irreparably damaged (and damages at law would be an
inadequate remedy) if this Agreement is not specifically enforced. Therefore,
in the event of a breach or threatened breach by any party of any provision of
this Agreement, the other parties hereto shall be entitled, in addition to any
other rights or remedies or law or in equity to which such party may be
entitled, to an injunction restraining such breach, without being required to
show any actual damage or to post an injunction bond, and/or to a decree for
specific performance of the provisions of this Agreement.
6.6 NOTICES. All notices, consents, waivers and other communications
-------
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
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<PAGE>
(receipt requested) in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
To St. Joe:
- -----------
St. Joe Corporation
1650 Prudential Drive, Suite 400
Jacksonville, Florida 32207
Attention: David D. Fitch, Senior Vice President
Telephone: (904) 396-6600
Facsimile: (904) 396-4042
With a copy to:
- --------------
Robert M. Rhodes, Esq.
St. Joe Corporation
1650 Prudential Drive, Suite 400
Jacksonville, Florida 32207
Telephone: (904) 396-6600
Facsimile: (904) 858-5237
To the Company:
- --------------
Codina Group, Inc.
2 Alhambra Plaza
Penthouse #2
Miami, Florida 33134
Attention: Henry Befeler, CFO
Telephone: (305) 520-2317
Facsimile: (305) 520-2342
With a copy to:
- --------------
White & Case
First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2352
Attention: K. Lawrence Gragg, Esq.
Telephone: (305) 995-5209
Facsimile: (305) 358-5744
To Weeks:
- --------
Weeks Corporation
4497 Park Drive
Norcross, GA 30093
Attention: A. Ray Weeks, Jr., Chairman and CEO
Telephone: (770) 717-3202
Facsimile: (770) 717-3310
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<PAGE>
With a copy to:
- --------------
King & Spalding
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1763
Attention: William B. Fryer, Esq.
Telephone: (404) 572-4911
Facsimile: (404) 572-5148
6.7 JURISDICTION; SERVICE OF PROCESS. Any action or proceeding seeking to
--------------------------------
enforce any provision of or based on any right arising out of this Agreement may
be brought against any of the parties in the courts of the Circuit Court in and
for County of Dade, or if it has or can acquire jurisdiction, in the United
States District Court for the Southern District of Florida, and each of the
parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world.
6.8 FURTHER ASSURANCES. The parties agree (i) to furnish upon request to
------------------
each other such further information, (ii) to execute and deliver to each other
such other documents, and (iii) to do such other acts and things all as the
other party may reasonably request for the purpose of carrying out the intent of
this Agreement and the documents referred to in this Agreement.
6.9 WAIVER. The rights and remedies of the parties to this Agreement are
------
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege, and no single or partial exercise of any such right, power
or privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. To the
maximum extent permitted by applicable law (i) no claim or right of any party
arising out of this Agreement can be discharged by a party, in whole or in part,
by a waiver or renunciation of the claim or right unless in writing signed by
the party possessing such right, (ii) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given, and
(iii) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement; provided that notwithstanding anything herein to the contrary, if
Weeks and St. Joe have the same or similar claim against Codina hereunder,
either Weeks or St. Joe may settle such claim with Codina as to itself only
without the consent of the other party.
6.10 ENTIRE AGREEMENT AND AMENDMENT. This Agreement supersedes all prior
------------------------------
agreements between the parties with respect to its subject matter including
without limitation that certain letter of intent dated December 9, 1997 and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
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<PAGE>
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by all parties.
6.11 ASSIGNMENTS, SUCCESSORS AND NO THIRD-PARTY RIGHTS. No party may
-------------------------------------------------
assign any of its rights under this Agreement without the prior consent of the
other parties, which will not be unreasonably withheld; provided, however, that
Weeks may freely transfer any of its rights under this Agreement to any Person
of which Weeks Corporation owns, directly or indirectly, a majority of such
Person's beneficial interest. Subject to the preceding sentence, this Agreement
will apply to, be binding in all respects upon and inure to the benefit of the
heirs and legal representatives, successors and permitted assigns of the
parties. Nothing expressed or referred to in this Agreement will be construed
to give any Person other than the parties to this Agreement any legal or
equitable right, remedy or claim under or with respect to this Agreement or any
provision of this Agreement. This Agreement and all of its provisions and
conditions are for the sole and exclusive benefit of the parties to this
Agreement and their heirs and legal representatives, successors and assigns.
6.12 SEVERABILITY. If any provision of this Agreement is held invalid or
------------
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
6.13 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
------------------------------
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Article", "Section" or "Sections" refer
to the corresponding Article, Section or Sections of this Agreement. All words
used in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
6.14 TIME OF ESSENCE. With regard to all dates and time periods set forth
---------------
or referred to in this Agreement, time is of the essence.
6.15 GOVERNING LAW. This Agreement will be governed by the laws of the
-------------
State of Florida without regard to conflicts of laws principles.
6.16 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which when taken together will be deemed to constitute one
and the same agreement.
(Signatures on following page)
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<PAGE>
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
___________________________________
ARMANDO CODINA
CODINA GROUP, INC.
By:_________________________________
Armando Codina, President
ST. JOE CORPORATION
By:_________________________________
Name:______________________________
Title:_______________________________
WEEKS REALTY SERVICES, INC.
By:________________________________
Name:______________________________
Title:_______________________________
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<PAGE>
EXHIBIT A
---------
WARRANT AGREEMENT
-----------------
<PAGE>
EXHIBIT B
---------
SELLER'S RELEASE
----------------
<PAGE>
EXHIBIT 10.2
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT is made this ___ day of February, 1998, by and
among Codina Group, Inc., a Florida corporation (the "Corporation"), and Armando
Codina, a Florida resident ("Codina"), St. Joe Corporation, a Florida
corporation ("St. Joe"), and Weeks Realty Services, Inc. ("Weeks"), a Georgia
corporation and an indirectly, majority-owned subsidiary of Weeks Corporation,
and any other Person (as defined below) who hereafter acquires or holds, during
the term of this Agreement, any of the Shares (as defined below) (hereinafter
referred to individually as a "Shareholder" and collectively as the
"Shareholders").
WHEREAS, the Shareholders are the record owners of all of the issued and
outstanding Shares;
WHEREAS, the Shareholders desire to promote their mutual interests and the
interests of the Corporation by imposing certain restrictions and obligations on
themselves, on the Corporation and on the Shares now owned or at any time
hereafter acquired by any Shareholder or the Corporation;
NOW, THEREFORE, in consideration of the premises and of the promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions.
-----------
"Accountant" shall mean Gerson, Preston & Company or such other firm of
certified public accountants selected by the Board from time to time.
"Affiliate(s)" of a specified Person shall mean any Person or group of
Persons, Controlling, Controlled by, or under Common Control with the specified
Person. For the purposes of this Agreement none of the Trust, FECI or the Gran
Entity shall be considered Affiliates of St. Joe.
"Agreement" shall mean this agreement and all exhibits hereto.
"Airport Land" shall mean that certain approximately 195 acre tract owned by
FECI contiguous to Miami International Airport.
"Annual Business Plan" shall have the meaning provided in Section 3.3.
"Beacon Centre Property" shall mean all property owned by Weeks or a Weeks'
Affiliate in that certain real estate development located in Dade County,
Florida, more commonly known as Beacon Centre.
<PAGE>
"Board" shall mean the Board of Directors of the Corporation.
"Brickell Avenue Office Building Project" shall mean the development of an
office building on certain property located in Miami, Florida on Brickell Avenue
adjacent to the Brickell Square building.
The term "Change in Control" with respect to St. Joe or Weeks means that:
(i) 25% or more of the outstanding voting stock of Weeks Corp. or St. Joe,
as the case may be, is acquired by any Person or group of Persons.
With respect to St. Joe, a Change in Control will not have occurred
because of a change in ownership by the Trust,
(ii) St. Joe or Weeks Corp. is a party to a merger or similar transaction
as a result of which St. Joe or Weeks Corp. stockholders immediately
prior to such transaction, as the case may be, own less than 50% of
the surviving entity's voting securities after such merger or similar
transaction; and
(iii) with respect to Weeks Corp., none of A. Ray Weeks, Jr., Thomas D.
Senkbeil, David P. Stockert or any replacement for any of the
foregoing who has been acknowledged as a replacement by St. Joe
continues to serve in a senior management capacity with Weeks Corp. or
its successor in interest and at least one member of the foregoing is
not represented on the Board at any time. St. Joe hereby agrees to act
reasonably in approving replacements for the foregoing individual
designees.
"Closing" shall mean the consummation of the Transfer of any Shares required
or permitted to be Transferred hereunder.
"Closing Date" shall have the meaning provided in Section 8.11.
"Codina" shall have the meaning provided in the introductory paragraph hereof.
"Codina Cause" shall mean with respect to Codina: (i) any reduction by the
Corporation in the amount of his base compensation or benefits which are
provided in this Agreement, (ii) any change in his incentive compensation
formula which is provided for in this Agreement, except as provided in this
Agreement, (iii) his actual or de facto removal from the position of President
and Chief Executive Officer of the Corporation, (iv) any material reduction in
his authority within the Corporation or (v) a material increase or substantial
change in his duties from those being performed at the date of this Agreement,
except for any change which may result from the general growth of the
Corporation; provided, however, that Codina Cause shall not exist if Codina
-------- -------
approves in writing any of the foregoing changes.
"Codina Owned Real Estate" shall mean all real estate located in South Florida
which is, directly or indirectly, owned, in whole or in part, by Codina as of
the date hereof and which is more particularly described on Exhibit A.
"Codina Put Option" shall have the meaning provided in Section 8.6.
2
<PAGE>
"Codina Representative" shall have the meaning provided in Section 3.1(a).
"Codina St. Joe Change in Control" shall be deemed to have occurred if none of
the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer
of St. Joe or its successor in interest is serving as a member of the Board.
"Codina Weeks Change in Control" shall be deemed to have occurred if A. Ray
Weeks, Jr. ceases to serve in a senior management capacity with Weeks or its
successor in interest and Codina is not then serving on the Board of Directors
of Weeks Corp. as a result of having not been elected or re-elected (other than
as a result of Codina's refusal to stand for re-election). Codina may in his
sole discretion approve a replacement for A. Ray Weeks, Jr.; provided however,
-------- -------
that if a request is made in writing by Weeks to approve a replacement for A.
Ray Weeks, Jr., Codina shall approve or disapprove such replacement, in his sole
discretion, within 90 days of such written request.
"Codina Weeks Partnership" shall mean those to-be-formed partnerships by and
between an entity controlled by Armando Codina and Weeks or one of its
Affiliates.
"Collateral Documents" shall mean (i) the Stock Purchase Agreement and (ii)
the License Agreement.
"Consumer Price Index" shall mean the Consumer Price Index "All Urban
Consumers: U.S. city average, all items" (1982-1984 = 100) published by the
Bureau of Labor Statistics of the United States Department of Labor, or any
equivalent successor or substitute index published by the Bureau of Labor
Statistics or a successor or substitute governmental agency.
"Control" of a Person (including, with correlative meaning, the terms
-------
"Controlling," "Controlled by" and "Under Common Control With") shall mean (i)
- ------------ ------------- -------------------------
the beneficial ownership (as defined in Rule 13d-3 under the Securities and
Exchange Act of 1934) of 50 percent or more of the voting or equity securities
of such Person, (ii) the status of being a director, officer, partner, executor,
trustee or other fiduciary of such Person or (iii) the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting or equity
securities, by contract or otherwise. For purposes of the foregoing, the
managing partner of a general or limited partnership and any general partner of
a limited partnership and the adviser of a partnership, corporation, trust or
other entity shall be deemed to be in control thereof.
"Control Group" shall mean with respect to each of Codina, St. Joe and Weeks,
each of them and their respective Permitted Transferees.
"Coral Gables Office Building Project" shall mean the development of an office
building on Giralda Avenue, Coral Gables, Florida.
"Corporation" shall have the meaning provided in the introductory paragraph
hereof.
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"Corporation Call Option" shall have the meaning provided in Section 8.8(a).
"Corporation Cause" shall mean with respect to Codina: (i) his gross
negligence or willful misconduct with respect to the Corporation, (ii) his
conviction of a felony or a lesser crime involving fraud which is materially
injurious to the Corporation or its reputation, in each case as determined by
the unanimous vote of the Weeks Representatives and St. Joe Representatives or
(iii) after written notice, his failure to cure a breach by him of this
Agreement or any of the Collateral Agreements; provided that with respect to the
Stock Purchase Agreement, for purposes hereof only a failure by Codina to pay an
indemnification claim which Codina has not contested is due and payable or for
which a judgment against Codina has been entered by a court of competent
jurisdiction or final order in binding arbitration and from which no further
appeals are available, shall be considered a breach.
"Default Call" shall have the meaning provided in Section 8.7.
"Designated Purchaser" shall have the meaning provided in Section 8.3(a).
"Disabled or Disability" shall mean, with respect to Codina, a condition which
renders him incapable of performing in any material respect his duties as an
officer or employee of the Corporation, whether by reason of a physical or
mental injury, physical incapacity or disability, physical or mental illness or
otherwise, for any period of 180 consecutive days, exclusive of vacations,
holidays and leaves of absence approved in writing by the Corporation and which
in the written opinion of a physician resident in South Florida of recognized
ability and reputation selected by the Board who has examined Codina after such
180 days renders Codina unable to perform his duties as an officer and employee
of the Corporation.
"Distributed Division" shall have the meaning provided in Section 8.1(b).
"Distributed Division Value" shall mean with respect to the Weeks Division or
the St. Joe Division, as the case may be, an amount equal to the lesser of (i)
the amount determined by multiplying the Corporation's EBITDA attributable to
the Weeks Division or St. Joe Division, as the case may be, for the four
consecutive calendar quarters immediately preceding the date of the valuation by
six or (ii) the amount determined by multiplying the Corporation's EBITDA
attributable to the Weeks Division or St. Joe Division, as the case may be, for
the four consecutive calendar quarters commencing on the first day of the
calendar quarter which precedes by eight calendar quarters the date of the
valuation by 7.5; provided, however, if the Weeks Division or the St. Joe
-------- -------
Division, as the case may be, has not operated for the requisite number of
calendar quarters, the Distributed Division Value shall mean a value as
determined by the Board in good faith.
"EBITDA" shall mean for any fiscal period or portion thereof, the net income
(determined in accordance with generally accepted accounting principles) of the
Corporation for such period, before interest expense and the provision for
income taxes, adjusted by (i) adding thereto the amount of all amortization of
intangibles and depreciation that were deducted in arriving at the Corporation's
net income for such period, (ii) subtracting therefrom the amount of all non-
cash gains that were added in arriving at the Corporation's net income for such
period, (iii) excluding from such calculation all extraordinary items
(determined in accordance with generally accepted accounting principles) and
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(iv) adding thereto the amount of all non-cash losses that were deducted in
arriving at the Corporation's net income for such period.
"Employment Agreement" shall mean with respect to each member of Senior
Management, the employment agreement dated as of January 1, 1998 by and between
each such individual and the Corporation.
"Excluded Areas" shall mean (i) the area bounded on the north by Florida State
Road 836 (also known as the Dolphin Expressway), the east by Northwest 2nd
Avenue, the west by Interstate 95 and the south by Flagler Street and (ii) the
area bounded by Okeechobee Road, the Florida Turnpike and Northwest 58th Street.
"Exercise Amount" shall mean at the date of any determination, the amount
which would be received by the Corporation if all options to purchase Shares
which are In The Money were exercised, without regard to whether such option is
exercisable by its terms at the date of such determination.
"FECI" shall mean Florida East Coast Industries, Inc.
"Gran Entity" shall mean Gran Central Corporation ("GCC").
"Gran Property" shall mean all of the improved real property located in Gran
Park in Medley, Florida currently owned by GCC.
"In the Money" shall mean, at the date of any determination, with respect to
an option to purchase a Share, that the value of the Share which is subject to
such option exceeds the option price of such Share. For purposes of determining
the value of each Share subject to an option, the Shares of the Company shall be
valued by dividing the Total Price (computed for this purpose only by not
including the Exercise Amount) by the total number of issued and outstanding
Shares as of such time.
"License Agreement" shall mean that certain license agreement dated the date
hereof by and between Codina, as licensor and the Corporation as licensee.
"Management Division" shall have the meaning provided in Section 4.1.
"Non-Offering Shareholder" shall have the meaning provided in Section 9.2(a).
"Offered Shares" shall have the meaning provided in Section 9.2(a).
"Offeree" shall have the meaning provided in Section 8.10.
"Offering Shareholder" shall have the meaning provided in Section 9.2(a).
"Offeror" shall have the meaning provided in Section 8.10.
"Officer(s)" shall mean any officer of the Corporation.
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"Option Shares" shall mean Shares initially acquired by the exercise of an
option under the Stock Option Plan.
"Permitted Transfer" shall mean:
(i) with respect to a Shareholder who is a natural person, a Transfer by
way of gift or the laws of descent and distribution to his or her
spouse or lineal descendants, or to any trust of which he or she is
the settlor for the primary benefit of his or her spouse or lineal
descendants, or to any partnership or other entity, the securities or
equity of which are owned by the Shareholder or his or her spouse,
lineal descendants or trust of the type described above in this
subsection (i);
(ii) with respect to Weeks or St. Joe, a Transfer to any other Person or
entity that is an Affiliate of Weeks or St. Joe, respectively;
(iii) with respect to St. Joe, a Transfer to either FECI or Gran Entity, if
such transferee agrees to assume all of the obligations of St. Joe
hereunder and the other of such parties (i.e. FECI or Gran Entity, as
the case may be) agrees to be treated as an Affiliate of the
transferee for all purposes hereof; or
(iv) with respect to any Shareholder, a Transfer (a) pursuant to Section 8
or (b) by way of pledge to bank or recognized financial institution
(provided that (A) such pledge is taken subject to any obligations
hereunder, (B) any foreclosure or other action taken against the
pledge by the pledgee shall be subject to the provisions of this
Agreement, (C) such pledge is taken only upon the written consent of
each of the other Shareholders, which consent shall not be
unreasonably withheld, (D) the bank or financial institution to which
the Shares are pledged will agree to sell to the other Shareholders
any Shares that it owns as a result of realizing on the pledge for an
amount equal to the amount of its outstanding loan and accrued
interest which was secured by such Shares and (E) with respect to a
pledge by Codina or Codina's Permitted Transferee, such pledge shall
not be made prior to eighteen months from the date hereof and provided
that the loan for which the Shares are pledged as security is recourse
to Codina or Codina's Permitted Transferee and the amount of such loan
does not exceed fifty percent of the value of the Shares pledged at
the time of such pledge).
"Permitted Transferee" shall mean any transferee described in the definition
of Permitted Transfer. A transferee under Section 9.2 is not a Permitted
Transferee.
"Person" shall mean any individual, partnership, corporation, limited
liability company, trust or other unincorporated association or entity.
"Purchase Price" shall mean an amount equal to the product of (i) the Total
Price and (ii) a fraction, the numerator of which is the total number of Shares
owned by the selling shareholder and the denominator of which is the sum of (a)
the total number of issued and outstanding Shares and (b) all shares which may
be purchased pursuant to an outstanding option if such option is In the Money at
the time of the determination of the Purchase Price.
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"Purchasing Shareholder" shall have the meaning provided in Section 8.1(a).
"Put Option" shall have the meaning provided in Section 8.1(a).
"Put Time" shall mean the earliest to occur of the following: (i) the death
of Codina, (ii) the Disability of Codina, (iii) the seventh anniversary of the
date of this Agreement, (iv) the date Codina's employment with the Corporation
is terminated by the Corporation other than for Corporation Cause, (v) the date
Codina terminates employment with the Corporation for Codina Cause, (vi) the
date when Codina (a) has ceased to be employed by the Corporation for any reason
and (b) either (A) there has been a Codina St. Joe Change in Control and a
Codina Weeks Change in Control or (B) either St. Joe or Weeks has acquired the
interest of the other in the Corporation and following or preceding such
acquisition there has been or is a Codina St. Joe Change in Control or a Codina
Weeks Change in Control, as applicable, of the acquiring Shareholder and (vii)
if Weeks has acquired the interest of St. Joe in the Corporation and either (A)
Codina is not then serving on the Board of Directors of Weeks Corp. as a result
of having not been elected or reelected (other than as a result of Codina's
refusal to stand for re-election) or (B) Codina is subsequently not elected as a
member of the Board of Directors of Weeks Corp.
"Qualified Public Offering" shall mean a sale of the Corporation's common
stock to the public pursuant to an effective registration statement filed under
the Securities Act of 1933, as amended, after which such shares are listed on a
national securities exchange or quoted on the NASDAQ Stock Market, Inc.'s
National Market System.
"Remaining Offered Shares" shall have the meaning provided in Section 9.2(c).
"Removed Director" shall have the meaning provided in Section 3.1(e).
"Selling Shareholder" shall have the meaning provided in Section 8.1(a).
"Senior Management" shall have the meaning provided in Section 7.1.
"Shareholder(s)" shall have the meaning provided in the introductory paragraph
hereof; provided however, that unless the context requires the term shall not
include holders of Option Shares.
"Shares" shall mean the $.01 par value common capital stock of the
Corporation, which constitutes all of the authorized stock of the Corporation
and all subsequent issuances of equity securities of the Corporation to any
Shareholder.
"South Florida" shall mean Miami-Dade, Broward, Palm Beach and Monroe
Counties, Florida.
"Specified Amount" shall have the meaning provided in Section 8.10.
"St. Joe" shall have the meaning provided in the introductory paragraph
hereof.
"St. Joe Call Option" shall have the meaning provided in Section 8.4.
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"St. Joe Division" shall have the meaning provided in Section 4.1.
"St. Joe Partnerships" shall mean those certain to-be-formed partnerships by
and between St. Joe and a Codina Weeks Partnership or Weeks for the purpose of
developing certain property owned by St. Joe, FECI, Gran Entity and/or its
Affiliates in South Florida.
"St. Joe Representative" shall have the meaning provided in Section 3.1(a).
"Stock Option Plan" shall mean the Codina Group, Inc. 1998 Stock Option Plan.
"Stock Purchase Agreement" shall mean that certain Stock Purchase Agreement
dated the date hereof by and among the Corporation, Codina, St. Joe and Weeks.
"Subsidiary" shall mean the direct or indirect subsidiaries of the
Corporation.
"Tax Resolution Accountant" shall have the meaning provided in Section 3.5
herein.
"Total Price" shall mean an amount equal to the lesser of (i) the sum of (a)
the amount determined by multiplying the Corporation's EBITDA for the four
consecutive calendar quarters immediately preceding the date of the valuation by
six, (b) the undistributed earnings accumulated from January 1, 1998 to the date
of such determination and (c) the Exercise Amount or (ii) the sum of (a) the
amount determined by multiplying the Corporation's EBITDA for the four
consecutive calendar quarters commencing on the first day of the calendar
quarter which precedes by eight calendar quarters the date of the valuation by
7.5, (b) the undistributed earnings accumulated from January 1, 1998 to the date
of such determination and (c) the Exercise Amount; provided however,
----------------
notwithstanding anything contained herein to the contrary, for purposes of this
definition any calendar quarter occurring in 1997 shall be deemed to have an
EBITDA in an amount equal to the product of (I) 25% and (II) the final EBITDA
utilized to determine the purchase price as defined in the Stock Purchase
Agreement.
"Tradeport Project" shall mean the development, leasing, sale, and/or any and
all other activities related to that certain approximately 374 acres located at
the northeast quadrant of the intersection of the Florida Turnpike and Florida
State Road 836 (also known as the Dolphin Expressway).
"Transfer" shall mean the sale, gift, pledge, assignment, transfer, transfer
in trust, mortgage, alienation, hypothecation, encumbering or disposition of
Shares in any manner whatsoever, voluntarily or involuntarily, including,
without limitation, any attachment, assignment for the benefit of creditors or
transfer by operation of law or otherwise.
"Trust" shall mean the Alfred I. duPont Testamentary Trust.
"Weeks Codina Call" shall have the meaning provided in Section 8.9(a).
"Weeks Corp." shall mean Weeks Corporation, a Georgia corporation.
"Weeks" shall have the meaning provided in the introductory paragraph.
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<PAGE>
"Weeks Call Option" shall have the meaning provided in Section 8.5.
"Weeks Division" shall have the meaning provided in Section 4.1.
"Weeks Partnership" shall mean those to-be-formed partnerships by and between
St. Joe and a Codina Weeks Partnership or Weeks for the purpose of developing
and owning property owned, controlled or identified by Weeks and/or its
Affiliates in South Florida.
"Weeks Representative" shall have the meaning provided in Section 3.1(a).
Section 2. Representations and Warranties.
------------------------------
2.1. Representations and Warranties of St. Joe. To induce Weeks, Codina and
-----------------------------------------
the Corporation to execute, deliver and perform this Agreement, St. Joe
represents and warrants to Weeks, Codina and the Corporation on and as of the
date hereof as follows:
(a) Organization/Authority. St. Joe is a corporation duly formed, validly
----------------------
existing and in good standing under the laws of the State of Florida. St.
Joe has the requisite power and authority to execute, deliver and perform
its obligations under this Agreement. The execution, delivery and
performance of this Agreement by St. Joe has been duly and validly
authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by St. Joe. This Agreement constitutes a legal,
valid and binding obligation of St. Joe which, subject to applicable
bankruptcy, insolvency, reorganization or other laws now or hereafter in
effect affecting creditors' rights generally, and subject to general
principles of equity, will be enforceable against St. Joe in accordance
with its terms.
(b) No Violation. The execution, delivery and performance by St. Joe of this
------------
Agreement and of the documents and instruments contemplated hereby to be
executed, delivered and performed by it will not (i) violate or conflict
with any provision of the Articles of Incorporation or Bylaws of St. Joe,
(ii) constitute a violation of, or be in conflict with, or result in a
breach of, or constitute a default under, or create (or cause the
acceleration of the maturity of) any debt, obligation or liability pursuant
to, or result in the imposition of any lien upon any of the assets of, St.
Joe under, any indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument, to which St. Joe is a party or by which St. Joe is
bound or to which St. Joe or any of its assets are subject, or (iii)
contravene any provision of any law, rule or regulation or any judgment,
decree, order or award by which St. Joe or any of its assets are subject
except, in each case, as would not have a material adverse effect on the
consolidated financial condition of St. Joe.
(c) Restrictions and Contractual Obligations. The restrictions and contractual
----------------------------------------
obligations set forth on Schedule 5.2(b) is a complete and accurate list of
the restrictions and contractual obligations applicable to St. Joe and/or
its Affiliates with respect to its commercial and industrial activities in
South Florida as of the date hereof.
(d) Gran Property. St. Joe shall use its reasonable best efforts to cause the
-------------
Gran Entity to enter into property management and exclusive brokerage
agreements with the Corporation with respect to the Gran Property within a
reasonable time period after the date of this Agreement.
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2.2. Representations and Warranties of Weeks. To induce St. Joe, Codina and
---------------------------------------
the Corporation to execute, deliver and perform this Agreement, Weeks Corp. and
Weeks, jointly and severally, represent and warrant to St. Joe, Codina and the
Corporation on and as of the date hereof as follows:
(a) Organization/Authority. Each of Weeks Corp. and Weeks is a corporation
----------------------
duly formed, validly existing, in good standing under the laws of the State
of Georgia and qualified to transact business in the State of Florida.
Each of Weeks Corp. and Weeks has the requisite power and authority to
execute, deliver and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by each of Weeks
Corp. and Weeks has been duly and validly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by
each of Weeks Corp. and Weeks. This Agreement constitutes a legal, valid
and binding obligation of each of Weeks Corp. and Weeks which, subject to
applicable bankruptcy, insolvency, reorganization or other laws now or
hereafter in effect affecting creditors' rights generally, and subject to
general principles of equity, will be enforceable against each of Weeks
Corp. and Weeks in accordance with its terms.
(b) No Violation. The execution, delivery and performance by each of Weeks
------------
Corp. and Weeks of this Agreement and of the documents and instruments
contemplated hereby to be executed, delivered and performed by it will not
(i) violate or conflict with any provision of the Articles of Incorporation
and Bylaws of either Weeks Corp. or Weeks, (ii) constitute a violation of,
or be in conflict with, or result in a breach of, or constitute a default
under, or create (or cause the acceleration of the maturity of) any debt,
obligation or liability pursuant to, or result in the imposition of any
lien upon any of the assets of either Weeks Corp. or Weeks under, any
indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument, to which either Weeks Corp. or Weeks is a party or by which
either Weeks Corp. or Weeks is bound or to which either Weeks Corp. or
Weeks or any of their assets are subject, or (iii) contravene any provision
of any law, rule or regulation or any judgment, decree, order or award by
which either Weeks Corp. or Weeks or any of their assets are subject
except, in each case, as would not have a material adverse effect on the
consolidated financial condition of Weeks Corp.
2.3. Representations and Warranties of Codina. To induce Weeks, St. Joe and
----------------------------------------
the Corporation to execute, deliver and perform this Agreement, Codina
represents and warrants to Weeks, St. Joe and the Corporation on and as of the
date hereof as follows:
(a) Execution/Enforceability. This Agreement has been duly executed and
------------------------
delivered by Codina. This Agreement constitutes a legal, valid and binding
obligation of Codina which, subject to applicable bankruptcy, insolvency,
reorganization or other laws now or hereafter in effect affecting
creditors' rights generally, and subject to general principles of equity,
will be enforceable against him in accordance with its terms.
(b) No Violation. The execution, delivery and performance by Codina of this
------------
Agreement and of the documents and instruments contemplated hereby to be
executed, delivered and performed by him will not (i) constitute a
violation of, or be in conflict with, or result in a breach of, or
constitute a default under, or create (or cause the acceleration of the
maturity of) any debt, obligation or liability pursuant to, or result in
the imposition of any lien upon any of the assets of Codina under, any
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indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument, to which Codina is a party or by which Codina is bound or to
which Codina or any of his assets are subject, or (ii) contravene any
provision of any law, rule or regulation or any judgment, decree, order or
award by which Codina or any of his assets are subject except, in each
case, as would not have a material adverse effect on the financial
condition of Codina.
(c) Codina Owned Real Estate. The real estate described on Exhibit A is a
------------------------
complete and accurate schedule of all real estate, directly or indirectly,
owned, in whole or in part, by Codina in South Florida as of the date of
this Agreement.
2.4. Representations and Warranties of Codina and the Corporation. To induce
------------------------------------------------------------
St. Joe and Weeks to execute, deliver and perform this Agreement, Codina and the
Corporation, jointly and severally, represent and warrant to St. Joe and Weeks
on and as of the date hereof as follows:
(a) Organization/Authority. The Corporation is a corporation duly formed,
----------------------
validly existing and in good standing under the laws of the State of
Florida. The Corporation has the requisite power and authority to execute,
deliver and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement by the Corporation has been duly
and validly authorized by all necessary corporate action. This Agreement
has been duly executed and delivered by the Corporation. This Agreement
constitutes a legal, valid and binding obligation of the Corporation which,
subject to applicable bankruptcy, insolvency, reorganization or other laws
now or hereafter in effect affecting creditors' rights generally, and
subject to general principles of equity, will be enforceable against the
Corporation in accordance with its terms.
(b) No Violation. The execution, delivery and performance by the Corporation
------------
of this Agreement and of the documents and instruments contemplated hereby
to be executed, delivered and performed by it will not (i) violate or
conflict with any provision of the Articles of Incorporation or Bylaws of
the Corporation or any Subsidiary, (ii) constitute a violation of, or be in
conflict with, or result in a breach of, or constitute a default under, or
create (or cause the acceleration of the maturity of) any debt, obligation
or liability pursuant to, or result in the imposition of any lien upon any
of the assets of, the Corporation or any Subsidiary under, any indenture,
mortgage, deed of trust, loan agreement, or other agreement or instrument,
to which the Corporation or any Subsidiary is a party or by which the
Corporation or any Subsidiary is bound or to which the Corporation or any
Subsidiary or any of its assets are subject, or (iii) contravene any
provision of any law, rule or regulation or any judgment, decree, order or
award by which the Corporation or any Subsidiary or any of its assets are
subject except, in each case, as would not have a material adverse effect
on the consolidated financial condition of the Corporation and its
Subsidiaries.
2.5. Representations and Warranties of St. Joe and Weeks to Each Other.
-----------------------------------------------------------------
(a) Disclosure by St. Joe. St. Joe represents and warrants to Weeks with full
---------------------
knowledge that Weeks is relying upon the same that St. Joe has fully
disclosed to Weeks all of its and its Affiliates' agreements and contracts
with Codina.
(b) Disclosure by Weeks. Weeks represents to St. Joe with full knowledge that
-------------------
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St. Joe is relying upon the same that, except with respect to the
agreements and contracts regarding the acquisition of the Beacon Centre
Property, Weeks has fully disclosed to St. Joe all of its and its
Affiliates' agreements and contracts with Codina.
Section 3. Governance of the Corporation.
-----------------------------
3.1 Election, Resignation and Removal of the Board of Directors.
-----------------------------------------------------------
(a) The Shareholders covenant and agree that they will take and will cause to
be taken at all times all necessary action, including, without limitation,
the voting of the Shares to fix the size of the Board at six individuals to
be comprised as follows: (i) two members of the Board shall be individuals
nominated in writing by St. Joe (each a "St. Joe Representative"), (ii) two
members of the Board shall be individuals nominated in writing by Weeks
(each a "Weeks Representative") and (iii) two members of the Board shall be
individuals nominated in writing by Codina (each a "Codina
Representative"). The Weeks Representatives initially shall be A. Ray
Weeks, Jr. and Thomas D. Senkbeil, the St. Joe Representatives initially
shall be Peter S. Rummell and David D. Fitch and the Codina Representatives
initially shall be Armando Codina and Henry Befeler.
(b) The Shareholders covenant and agree that they will take, and cause to be
taken, all necessary action, including, without limitation, the voting of
their respective Shares and the tendering of resignations of their
respective nominees to the Board, to cause the reallocation of the seats on
the Board in accordance with the following:
(i) In the event of a sale of St. Joe's Shares other than to a Permitted
Transferee, (a) if Weeks or Codina purchases such Shares, the seats on the
Board previously held by the St. Joe Representatives shall be redesignated
seats to be held by individuals nominated in writing by the Shareholder
purchasing such Shares, (b) if Weeks and Codina purchase such Shares, one
seat on the Board previously held by a St. Joe Representative shall be
redesignated to be held by an individual nominated in writing by Weeks and
one seat on the Board previously held by a St. Joe Representative shall be
redesignated to be held by an individual nominated in writing by Codina and
(c) if neither Weeks nor Codina purchases such Shares, the seats on the
Board previously held by the St. Joe Representatives shall be redesignated
seats to be held by individuals nominated in writing by the Person
purchasing such Shares.
(ii) In the event of a sale of Weeks' Shares other than to a Permitted
Transferee, (a) if St. Joe or Codina purchases such Shares, the seats on
the Board previously held by the Weeks Representatives shall be
redesignated seats to be held by individuals nominated in writing by the
Shareholder purchasing such Shares, (b) if St. Joe and Codina purchase such
Shares, one seat on the Board previously held by a Weeks Representative
shall be redesignated to be held by an individual nominated in writing by
St. Joe and one seat on the Board previously held by a Weeks Representative
shall be redesignated to be held by an individual nominated in writing by
Codina and (c) if neither St. Joe nor Codina purchases such Shares, the
seats on the Board previously held by the Weeks Representatives shall be
redesignated seats to be held by individuals nominated in writing by the
Person purchasing such Shares.
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(iii) In the event of a sale of Codina's Shares other than to a Permitted
Transferee, (a) if St. Joe or Weeks purchases such Shares, the seats on
the Board previously held by the Codina Representatives shall be
redesignated seats to be held by individuals nominated in writing by the
Shareholder purchasing such Shares, (b) if St. Joe and Weeks purchase such
Shares, one seat on the Board previously held by a Codina Representative
shall be redesignated to be held by an individual nominated in writing by
St. Joe and one seat on the Board previously held by a Codina
Representative shall be redesignated to be held by an individual nominated
in writing by Weeks and (c) if neither St. Joe nor Weeks purchases such
Shares, the seats on the Board previously held by the Codina
Representatives shall be redesignated seats to be held by individuals
nominated in writing by the Person purchasing such Shares.
(c) Notwithstanding anything contained herein to the contrary, the Shareholders
covenant and agree that in the event the size of the Board increases or
decreases, the allocation of seats on the Board to each of the Shareholders
shall be equitably adjusted.
(d) The nomination of a nominee to the Board must be made by the Shareholder
entitled to make the nomination hereunder, a copy of which must be
delivered to the Corporation and the other Shareholders not fewer than 5
days prior to any meeting or taking of action by Shareholders for the
purpose of electing any members to the Board. In the absence of such a
nomination, each St. Joe Representative, Weeks Representative and Codina
Representative, as the case may be, then serving on the Board shall be
deemed to be renominated, except to the extent inconsistent with this
Section 3.
(e) No Shareholder shall vote to remove a member of the Board except (i) on
account of such member of the Board's bad faith or willful misconduct or
(ii) upon the request of the Shareholder originally nominating such member
of the Board. In the event that any member of the Board is removed (a
"Removed Director"), each Shareholder shall vote, whether in person or by
proxy, to cause to be voted all of its Shares, and otherwise use its
reasonable best efforts, so that the vacancy created thereby is filled by a
nominee of the Shareholder that originally nominated the Removed Director;
provided that such Shareholder shall not nominate any Removed Director and
that no Shareholder shall nominate any Removed Director removed pursuant to
Section 3.1(e)(i).
(f) In the event that any member of the Board dies or resigns, each Shareholder
shall take all such action and shall vote, whether in person or by proxy,
or cause to be voted all Shares owned by it and otherwise use its
reasonable best efforts, so that the vacancy created thereby is filled by a
nominee of the Shareholder that originally designated such member of the
Board.
(g) Each Shareholder shall have the right to have a proportionate
representation on any committee or subcommittee created by the Board as
such Shareholder has on the Board.
(h) Each Shareholder shall take such actions or cause the Corporation to take
such actions and otherwise use its reasonable best efforts to enable any
Shareholder to exercise the rights provided in this Section 3.1, including,
without limitation, the calling of a special meeting of the Shareholders.
13
<PAGE>
3.2 Management of the Corporation. Except as provided in Section 3.4 and
-----------------------------
otherwise delegated to the officers of the Corporation, the business and affairs
of the Corporation shall be managed by or under the direction of the Board.
Except for the following acts which shall require the unanimous vote of the
members of the Board, all decisions of the Board shall be made by majority vote
of the members of the entire Board:
(a) the merger, consolidation, liquidation or dissolution of the Corporation;
(b) the sale of all or substantially all of the assets of the Corporation;
(c) the issuance of additional Shares or other securities other than pursuant
to options granted to employees;
(d) the amendment of the Corporation's Articles of Incorporation and Bylaws;
(e) the entering into of contractual arrangements with any Shareholder or
Affiliate of any Shareholder at less than market rates, as reasonably
determined by a majority of the disinterested members of the Board;
provided that if approval of such contractual agreement is not required
hereunder, the terms of any such contractual agreements with a Shareholder
or an Affiliate of a Shareholder shall be disclosed to the Board;
(f) the entering into of any agreement which will require the Corporation to
impose material restrictions on the manner in which it conducts its
business;
(g) the removal or replacement of Senior Management, provided that the Codina
Representatives will recuse themselves from voting on such issue;
(h) other than the Tradeport Project, the Coral Gables Office Project or the
Brickell Avenue Office Building Project, the undertaking by the
Corporation of a major project for any Shareholder or any Affiliates of a
Shareholder which would absorb a disproportionate amount of the time of
the Senior Management of the Corporation;
(i) for the calendar year 1998 the ratification of, and for the calendar year
1999 only, the approval of, the Annual Business Plan;
(j) material acquisitions; and
(k) the determination to proceed with a public offering.
3.3 Annual Business Plans. At least 30 days prior to the commencement of
---------------------
each calendar year after the date hereof, the President of the Corporation shall
cause to be prepared and submitted to the Board for its consideration and
approval, a business plan (the "Annual Business Plan") for the operation of the
business of the Corporation during the ensuing calendar year, in the form
established by the Board from time to time, setting forth on a pro-forma basis
the estimated receipts and expenditures (capital, operating and other) and an
income statement for the ensuing calendar year, as well as any other matter
relating to the business of the Corporation which the Board may require. The
President has caused to be prepared the Annual Business Plan for the 1998
14
<PAGE>
calendar year. The Officers of the Corporation are authorized to use their best
efforts to implement the 1998 Annual Business Plan and each subsequently
approved Annual Business Plan in accordance with the terms thereof and the terms
hereof.
3.4 Officers. The Officers shall implement the Annual Business Plan, manage
--------
the day-to-day business of the Corporation and perform such other duties as may
be specified by resolution of the Board that are not inconsistent with the By-
laws of the Corporation and the corporate law of Florida. In addition, the
Officers shall perform such ministerial duties (e.g., signing annual reports and
----
stock certificates and filing tax returns) appropriately performed by an Officer
and such other duties as may be required by law to be performed by an Officer.
3.5 Tax Matters.
-----------
(a) The federal, state and, if applicable, local tax returns of the Corporation
shall be prepared by the Accountant. The Accountant shall provide the
Board with copies of all proposed tax returns at least 30 days prior to the
filing due date (inclusive of extensions) of any such return for the
Board's review and approval. The Corporation shall not file any tax
return, make any material tax election or take any material tax position
without obtaining the approval of the Board. In the event that the Board
cannot agree upon a tax matter, the Board shall submit such tax matter to a
nationally recognized certified public accounting firm which is considered
a member of the "Big Six" accounting firms or one of its successors (the
"Tax Resolution Accountant") selected by the Board which shall resolve the
dispute in such a manner as is in the best interests of the Corporation and
the Shareholders, taken as a whole and taking into consideration the
particular tax attributes and characteristics of each Shareholder. The Tax
Resolution Accountant's decision shall be final and binding on the
Corporation and all of the Shareholders and the Corporation and the
Shareholders covenant and agree not to take any tax position inconsistent
with the decision of the Tax Resolution Accountant.
(b) The provisions of this Section 3.5 shall survive the termination of this
Agreement or the dissolution of the Corporation with respect to any matters
relating to events occurring prior to the termination of this Agreement or
the dissolution of the Corporation and shall remain binding on the
Corporation and the Shareholders for the period of time necessary to
resolve with the Internal Revenue Service, the Department of Treasury
and/or the applicable State Department of Revenue any and all matters
regarding the taxation of the Corporation and each of the Shareholders.
3.6 Covenants. Each Shareholder covenants that it will cause its
---------
Representatives to vote to: (i) adopt and maintain the calendar year as the
Corporation's fiscal year and (ii) make distributions of the Corporation's
earnings for each fiscal year, to the extent not previously distributed and
after the retention of appropriate reserves as agreed to by the Board, to be
distributed within 60 days after the end of each fiscal year.
3.7 Accounting Treatment. The parties hereby acknowledge and agree that for
--------------------
book and tax accounting purposes the Shareholders shall be entitled to share
equally in any distributions resulting from the Corporations results of
operations for the period beginning January 1, 1998.
15
<PAGE>
Section 4. Structural Organization of the Corporation.
-------------------------------------------
4.1 Divisions of the Corporation. At such time as the Shareholders mutually
----------------------------
agree and as the activity levels of the Corporation allow, to the extent
possible, the Corporation shall be divided into three or more divisions,
including, without limitation, (i) a division (the "St. Joe Division") devoted
to the extent reasonably practical to the provision of property management,
development and asset management services for assets owned by St. Joe, its
Affiliates and the St. Joe Partnerships, (ii) a division (the "Weeks Division")
devoted to the extent reasonably practical to the provision of property
management, development and asset management services for assets owned by Weeks,
its Affiliates and the Weeks Partnerships and (iii) a division (the "Management
Division") devoted to the extent reasonably practical to the provision of
various services to the St. Joe Division, the Weeks Division and to various
third parties.
4.2 Assignment of Personnel to Divisions. To the extent reasonably
------------------------------------
practical, each of the St. Joe Division, the Weeks Division, the Management
Division and any other division established pursuant to the mutual agreement of
the Shareholders, shall have senior line management, including, without
limitation, account principals and operational personnel, assigned to it on a
full time basis; provided however, in no event shall Henry Befeler or Armando
----------------
Codina, or either of their replacements, be an account principal allocated to
any such division; and provided further, each member of Senior Management and
----------------
their respective replacements shall be assigned as account principals to the
Management Division and shall provide services to both the St. Joe Division and
the Weeks Division.
4.3 Allocation of Salaries. The Corporation shall allocate the salaries of
----------------------
operational personnel and senior line management to the division to which each
such employee is assigned, or in the event that any such employee is assigned to
more than one division, among such divisions based on the time expended on the
matters in each such division. The Corporation shall allocate the salaries of
employees providing general and administrative services, including Codina and
Senior Management, if applicable, among the divisions in an equitable manner to
be agreed upon by the Shareholders.
Section 5. Covenants Regarding the Shareholders' and Corporation's Activities.
------------------------------------------------------------------
5.1 Restrictions on Weeks' and Weeks' Affiliates' Activities. Except as set
--------------------------------------------------------
forth in Sections 5.3, 5.4 and 5.5, until such time as the earlier of (i) either
St. Joe or Weeks exercises its Put Option and for a period of two years
thereafter or (ii) either St. Joe's or Weeks' interest in the Corporation is
acquired pursuant to the St. Joe Call Option, the Weeks Call Option or the
Default Call, (a) Weeks and its Affiliates will restrict their respective real
estate development and ownership activities in South Florida to the following
product types: bulk industrial, office warehouse or business distribution, flex
or service, medical offices comprised of eight or less stories, and suburban
offices comprised of eight or less stories and (b) Weeks will not develop real
estate in its permitted product types within the Excluded Areas.
16
<PAGE>
5.2 Restrictions on St. Joe's and St. Joe's Affiliates' Activities.
--------------------------------------------------------------
(a) Except as set forth in this Section and Sections 5.3, 5.4 and 5.5, until
such time as the earlier of (i) either St. Joe or Weeks exercises its Put
Option and for a period of two years thereafter or (ii) either St. Joe's or
Weeks' interest in the Corporation is acquired pursuant to the Weeks Call
Option, the St. Joe Call Option or the Default Call, St. Joe and its
Affiliates will restrict their real estate development and ownership
activities in South Florida to any of the following: (A) their existing
properties, (B) all development by FECI which directly relates to FECI's
railroad operations, (C) the following product types: retail,
entertainment, hotel, resort and residential and (D) any activities
described in item 2 of Schedule 5.2(b).
(b) Notwithstanding anything contained herein to the contrary, (i) in the event
that St. Joe, as a result of its relationship with a tenant outside of
South Florida, has an exclusive commitment to develop a build-to-suit
project for such tenant in South Florida on property not owned by St. Joe
or one of its Affiliates as of the date of this Agreement and St. Joe has
unsuccessfully negotiated in good faith with a Weeks Partnership or Weeks
to invest in the development and ownership of such project, St. Joe may
proceed with the development and ownership of such project; and (ii) St.
Joe and its Affiliates shall be entitled to engage in commercial and
industrial development activities to the extent that such commercial and/or
industrial development activities are: (A) ancillary to residential
development activities in South Florida or (B) covered by the contracts or
obligations described in item 2 of Schedule 5.2(b); provided that, a Weeks
--------------
Partnership or Weeks is first offered the opportunity to invest in such
commercial and/or industrial development activities on the same terms and
conditions as St. Joe or its Affiliate, as the case may be; provided
--------
further that, St. Joe shall not be obligated to offer such opportunity to a
------------
Weeks Partnership or Weeks (A) to the extent prohibited by the restrictions
or contractual obligations applicable to St. Joe or its Affiliates as of
the date of this Agreement as described in Schedule 5.2(b), it being
understood that St. Joe would be obligated under this Section 5.2(b)(ii) to
offer to a Weeks partnership or Weeks any portion of such opportunity not
covered by any such contractual obligation, and/or (B) with respect to a
commercial or industrial building that is less than 30,000 square feet.
5.3 Obligation to Negotiate, Except as set forth in Sections 5.4 and 5.5, in
-----------------------
the event that either St. Joe or Weeks desire to develop and/or own an urban
office high rise building in excess of eight stories, St. Joe or Weeks, as the
case may be, shall negotiate in good faith with the other party for the
participation of the other party in such project in South Florida. If after
such good faith negotiations the parties are unable to reach agreement upon such
participation, the originating party may proceed with the development and
ownership of such project subject to the provisions of Section 5.6.
5.4 Multi-Asset Portfolio Acquisition. Notwithstanding anything contained
---------------------------------
herein to the contrary, neither St. Joe nor Weeks shall be in breach of Sections
5.1, 5.2 or 5.3, as the case may be, as a result of a multi-asset portfolio
acquisition by it or any of its Affiliates in which in excess of 75% of (A) the
total developed square footage of the developed commercial and industrial assets
or (B) the total value of the portfolio acquired in such acquisition, are
located outside of South Florida; provided that the party otherwise in breach
-------------
negotiates in good faith to conform its and/or its Affiliates activities to be
in compliance with Section 5.1, 5.2 or 5.3, as the case may be, including,
without limitation, (i) the orderly sale of some or all of the commercial and
industrial assets which violate Section 5.1, 5.2 or 5.3, as the case may be,
17
<PAGE>
and/or (ii) (a) in the event that St. Joe is the otherwise breaching party,
offering to Weeks and (b) in the event that Weeks is the otherwise breaching
party, offering to St. Joe, the opportunity to invest in some or all of the
commercial and industrial assets which violate such Sections. In the event St.
Joe and Weeks are unable to agree as to the corrective action required to bring
the otherwise breaching party into conformity with the provision of this Section
5, such matter shall be referred to binding arbitration in accordance with
Section 12.
5.5 De Minimis and Passive Investments. Notwithstanding anything contained
----------------------------------
herein to the contrary, neither St. Joe nor Weeks shall be in breach of Sections
5.1, 5.2 or 5.3, as the case may be, as the result of the ownership of less than
a ten percent (10%) interest in an entity which owns an asset or assets in a
precluded category provided that such ownership interest is passive in nature.
5.6 Real Estate Activities of St. Joe, Weeks and Their Respective Affiliates.
------------------------------------------------------------------------
(a) Except as otherwise set forth in Section 5.9, each of St. Joe (with respect
to St. Joe specifically, including the Gran Entity entering into a
management and leasing agreement with respect to the Gran Property) and
Weeks hereby covenant and agree to contract with the Corporation
exclusively for all of its and its Affiliates real estate development,
construction, property management and leasing activities for real estate
projects located in South Florida; provided however, St. Joe and its
----------------
Affiliates shall not be obligated to contract with the Corporation for the
provision of services related to St. Joe's and its Affiliates' railroad,
residential, entertainment, retail, hotel, resort activities and commercial
and/or industrial activities to the extent that such commercial and/or
industrial activities are: (A) ancillary to residential development
activities in South Florida and constitute Future Developments as such term
is defined in item 1 of Schedule 5.2(b) or (B) projects which are required
to be developed by the CNL Partnership (as such term is defined in item of
2 of Schedule 5.2(b)). With respect to any activity described in clauses
(A) and (B) of the preceding sentence, St. Joe covenants to use its
reasonable best efforts to cause the Corporation's construction, leasing,
development, consulting and management services to be utilized to the
extent reasonably possible and not inconsistent with the contractual
relationships described on Schedule 5.2(b). All such services shall be
rendered by the Corporation at prevailing market rates, from time to time.
(b) Each of St. Joe and Weeks covenant and agree that in the event that it or
its Affiliates desires to contract with the Corporation for the provision
of services outside of South Florida, (i) such contract shall be at market
rates and (ii) if the service desired is development service, and if the
development activity to which the provision of such service relates is
deemed competitive, e.g. such development projects could reasonably be
deemed to compete for tenants, with the other party's (i.e., Weeks or St.
Joe, as the case may be) existing or planned future activity as determined
in such other party's sole discretion, it shall not contract with the
Corporation without obtaining the prior written consent of the other party.
18
<PAGE>
5.7 Real Estate Activities of Codina and his Affiliates.
---------------------------------------------------
(a) During the period of time that Codina is a Shareholder and for either (i) a
one year period thereafter if Codina ceases to be a Shareholder for any
reason other than pursuant to a transfer by him under Section 9 or as a
result of the Corporation Call Option, (ii) a three year period thereafter
if Codina ceases to be a Shareholder pursuant to a transfer by him under
Section 9 or (iii) a two year period thereafter if Codina ceases to be a
Shareholder as a result of the Corporation Call Option, except for Codina
Owned Real Estate, residential development activities, the Coral Gables
Office Building Project, the Brickell Avenue Office Building Project and
the Tradeport Project, Codina and his Affiliates, if the Corporation
desires, (i) will contract with the Corporation for provision of property
development, leasing, management and construction services relating to his
or its residential development activities in South Florida, to the extent
applicable and if, and only if, the Corporation has expertise at such time
in providing the services to be provided and is currently providing such
services to other parties and (ii) will conduct all of his or its other
real estate development, construction, consulting, service and ownership
activities in South Florida through the Corporation, a St. Joe Partnership
or a Codina Weeks Partnership; provided however, that the foregoing shall
----------------
not apply to Codina's ownership of less than a 10% interest in a publicly
traded company engaged in the real estate business provided that such
ownership interest is passive in nature; and provided, further, that the
-------- -------
one and three year periods, as applicable, provided for above shall not
apply if Codina's employment has been terminated by the Corporation other
than for Corporation Cause or by Codina for Codina Cause.
(b) If Weeks acquires Codina's Shares within four years from the date hereof,
the restrictions set forth in Section 5.7(a)(i), if applicable, shall apply
for the period Codina is a Shareholder of Codina Group or a member of Weeks
Corporation's Board of Directors, and a period of eighteen months
thereafter.
(c) During the time that Codina is a Shareholder and for any applicable non-
competition period thereafter, Codina covenants and agrees not to operate
any separate real estate business under his name or any other name other
than real estate activities that he is entitled to engage in pursuant to
the terms of this Agreement.
(d) Notwithstanding anything contained herein to the contrary, subject to
Section 6.1(a), Codina may engage or invest in any other non-real estate
business or investment activity.
(e) If Codina or one of his Affiliates develops the Coral Gables Office
Building Project, Codina will cause Codina Group to be retained to provide
the development services for the Coral Gables Building Project at market
rates and subject to partner limitations will cause Codina Group to be
retained to provide property management and leasing services for such
project.
5.8 Brickell Avenue Office Building Project. Codina shall provide each of
---------------------------------------
St. Joe and Weeks with written notice containing the terms and conditions upon
which each of them shall have a right to participate (on an equal basis with
each other) in the development and ownership of the Brickell Avenue Office
Building Project, including all information concerning the project which is
19
<PAGE>
available to Codina at such time, and St. Joe and/or Weeks shall be entitled to
participate in such project upon notifying Codina of its intent to participate
within 30 days of Codina providing written notice as herein provided. In the
event that either St. Joe or Weeks does not elect to participate on the offered
terms within such 30 days period, the other party may participate with Codina in
such project. In the event that neither St. Joe nor Weeks elects to
participate on the offered terms within the 30-day period, Codina shall be
entitled to develop and own the project without the participation of either of
St. Joe or Weeks. In the event that any third party participates with him in
the development and/or ownership of such project, such third party may not
participate on terms and conditions more favorable than those offered to St. Joe
and Weeks. Codina covenants and agrees to contract with the Corporation for the
provision of development services related to the Brickell Avenue Office Building
Project and shall use his best efforts to contract with the Corporation for the
provision of management and leasing services related to the Brickell Avenue
Office Building Project.
5.9 Limitation on Requirement to Contract with the Corporation.
----------------------------------------------------------
Notwithstanding anything contained herein to the contrary, from and after the
time that (i) except for Codina's obligations pursuant to Section 5.7, any
Shareholder ceases to be a Shareholder for whatever reason, such Shareholder and
its Affiliates shall no longer be required to utilize the Corporation for its
real estate development, leasing, management, construction, consulting or any
other real estate services in South Florida, and (ii) any Shareholder or its
Affiliates ceases to own a particular parcel of real property in South Florida,
such Shareholder or its Affiliate shall no longer be required to utilize the
Corporation for its real estate development, leasing, management, construction,
consulting or any other real estate services with respect to such property.
5.10 Notice to Directors of Shareholder's Real Estate Activities. Each of
-----------------------------------------------------------
the Shareholders covenants and agrees, to the extent not prohibited by an
applicable legal or other required confidentiality restrictions (which
restrictions each Shareholder will attempt to minimize in good faith) to timely
advise the Board of its planned real estate activities in South Florida for
which such Shareholder is obligated to utilize the Corporation's services to
assist the Corporation in allocating its resources and developing its business
plans.
5.11 Solicitation of Employees. If (i) either St. Joe or Weeks exercises the
-------------------------
Put Option or the Default Call, (ii) Weeks exercises the Weeks Call Option or
(iii) St. Joe exercises the St. Joe Call Option, none of St. Joe, its
Affiliates, Weeks, its Affiliates and the Corporation may solicit for employment
any of the employees of the others for a period of three years after the Closing
of the sale of Shares pursuant to the exercise of such put or call option;
provided however, (a) the party exercising the Put Option may employ the
- ----------------
personnel of the division transferred to it as the result of such exercise and
the employees of such division shall be deemed to be its employees for purposes
of this Section and (b) any selling party may negotiate with and employ Ford
Gibson. In the event that a division is transferred to a Shareholder pursuant
to the exercise of a Put Option, each other party hereto agrees not to solicit
for employment any of the employees of such division for a period of two years
after the Closing of such Put Option.
5.12 St. Joe Covenant. St. Joe hereby covenants and agrees to use its
----------------
reasonable best efforts to cause FECI and the Gran Entity to comply with the
provisions of this Section 5 as if it were an Affiliate of St. Joe for purposes
of this Agreement.
5.13 Restriction on Corporation's Activities. Each of Weeks and St. Joe
---------------------------------------
20
<PAGE>
acknowledges that Codina has entered into certain agreements more particularly
described on Schedule 5.13 (true and correct copies of which have been delivered
to Weeks and St. Joe) which will be violated if the Corporation engages in
certain activities. Each of Codina, St. Joe and Weeks agree to cause the
Corporation not to engage in any activity which would cause Codina to violate
such obligations until (i) Codina consents in writing, (ii) the Corporation
obtains an unqualified legal opinion from counsel satisfactory to Codina that a
restriction has lapsed or that a particular activity will not violate such
restriction, or (iii) such restriction has expired by its express terms.
Section 6. Codina.
------
6.1 Devotion of Time; Compensation; Incentive Compensation;
-------------------------------------------------------
Modification of Compensation.
----------------------------
(a) Devotion of Time. Codina covenants and agrees that during the period of
----------------
time he is a Shareholder, he will devote such reasonable time as is
necessary for the operation of the Corporation consistent with his duties
as the President and Chief Executive Officer of the Corporation and his
past practices; provided however, each of St. Joe and Weeks acknowledge
----------------
and agree that Codina shall not be required to devote his full time to the
Corporation and that he will be permitted to continue (i) his involvement
in existing and future civic activities, non-real estate related business
activities and the real estate activities provided in Section 5.7 outside
of the Corporation and/or a Codina Weeks Partnership and (ii) to serve as a
member of the boards of directors of the corporations on which he currently
serves and on additional boards of directors from time to time, in each
case for as long as such activities do not unreasonably interfere with the
operations of the Corporation.
(b) The Board shall elect Codina as the President and Chief Executive Officer
of the Corporation. Codina shall serve in such capacities until the
Corporation or Codina terminates such relationship upon 60 days prior
written notice unless he is terminated for Corporation Cause.
(c) Base Compensation. During the period of time that Codina is employed by
-----------------
the Corporation, Codina shall receive an annual base salary in an amount
equal to $250,000.00, increased each year by the Consumer Price Index
increase, if any from the immediately preceding year. The base salary will
be paid in periodic payments consistent with the Corporation's payroll
practices from time to time. Codina shall be reimbursed for all reasonable
expenses incurred by him in the performance of his duties to the
Corporation and accounted for in accordance with the Corporation's expense
guidelines and reimbursement procedures and practices in effect from time
to time, including, without limitation, travel, hotel and entertainment.
(d) Incentive Compensation. During any calendar year during the term of his
----------------------
employment by the Corporation, the Corporation shall pay, and Codina shall
receive, incentive compensation for each year (or a pro rata portion
thereof if Codina's employment by the Corporation is terminated prior to
the end of a calendar year for any reason other than (A) Corporation Cause
or (B) his resignation for other than Codina Cause) equal to the sum of (i)
10 percent of the amount, if any, by which the EBITDA for such year exceeds
an amount equal to 110 percent of the greater of (x) the EBITDA for the
21
<PAGE>
immediately preceding year or (y) $4,200,000.00/1/, (ii) 3 percent of the
amount, if any, by which the EBITDA for such year exceeds the greater of
(x) an amount equal to 115 percent of EBITDA for the immediately preceding
year and (y) $4,200,000.00, and (iii) 5 percent of the amount, if any, by
which the EBITDA for such year exceeds the greater of (x) an amount equal
to 125 percent of EBITDA for the immediately preceding year and (y)
$4,200,000.00. If Codina's employment by the Corporation is terminated
prior to the end of a calendar year for any reason other than (A)
Corporation Cause or (B) his resignation for other than Codina Cause,
Codina's incentive compensation, if any, shall be computed on a partial
year basis calculated on the Corporation's EBITDA through the date of
termination and adjusting the $4,200,000 and the prior year's EBITDA
thresholds based on the portion of the year elapsed. For purposes of this
Section 6.1(d), EBITDA shall be calculated prior to any reduction for
incentive compensation payable to Codina.
(e) Modification of Base Compensation or Incentive Compensation. Neither the
-----------------------------------------------------------
amount of base salary to which Codina is entitled pursuant to Section
6.1(c) hereof nor the formula for computing the amount of incentive
compensation to which Codina is entitled pursuant to Section 6.1(d) hereof
may be reduced or otherwise changed without the approval of Codina;
provided however, the formula for the computation of the amount of
----------------
incentive compensation to which Codina is entitled may be changed by the
Compensation Committee of the Board if such change does not materially
reduce the amount of incentive compensation to which Codina would have been
entitled to prior to such change when both the old and new formulae are
applied to the actual financial results.
(f) Benefits. Codina shall be entitled to participate in such medical, dental,
--------
disability, hospitalization, life insurance, profit sharing and other
benefit plans which are maintained for the benefit of executive officers of
the Corporation on the terms and subject to the conditions set forth in
such plans.
6.2 Non-exclusive License. Codina and the Corporation shall enter into the
---------------------
License Agreement.
Section 7. Executive Compensation and Stock Option Plan.
--------------------------------------------
7.1 Executive Compensation. Commencing on the date of this Agreement and
----------------------
continuing for the period of time three years thereafter, the Corporation
covenants and agrees to retain the base salaries (as reflected in each
individual's Employment Agreement) and the same or similar incentive
compensation structure (as reflected in each individual's Employment Agreement)
which is in effect as of the date of this Agreement for Henry Befeler, Hank
Klein, Ford Gibson, Jose Hevia, Rafael Rodon and William Wassey (collectively
"Senior Management").
- -----------
/1/ If the EBITDA used in the Stock Purchase Agreement for determining the
purchase price thereunder is (i) less than $4,000,000 or between $4,400,000 and
$4,600,000 then such EBITDA amount shall be substituted for the $4,200,000
amount each place that it appears in Section 6.1(d), or (ii) greater than
$4,600,000 then $4,600,000 shall be substituted for $4,200,000 each place that
it appears in Section 6.1(d).
22
<PAGE>
7.2 Stock Option Plan.
-----------------
The Corporation will adopt the Stock Option Plan. The exercise price of the
initial options granted under the plan will be the value per share paid by Weeks
and St. Joe in their acquisition of Shares. Subject to the approval of the
Board, the Shareholders and the Corporation agree that (i) up to 30% of the
options initially available to be granted under the Stock Option Plan will be
retained for future grants and (ii) it is not currently envisioned that options
will be granted to Codina but that the Board in its sole discretion may
entertain such grants in the future.
Section 8. Put and Call Options.
--------------------
8.1 Put Option.
----------
(a) At any time commencing three years after the date of this Agreement, either
St. Joe or Weeks, but not both (the first of such Shareholders to initiate
the provisions of this Section 8.1(a), the "Selling Shareholder"; and the
other of such Shareholders, the "Purchasing Shareholder"), shall have the
right (such right, the "Put Option"), upon providing 45 days prior written
notice to the Corporation and other Shareholders, to require, subject to
Sections 8.2 and 8.3 hereof, the Purchasing Shareholder to purchase all of
its Shares for an amount equal to the Purchase Price payable as provided in
Section 8.1(b) and otherwise as provided in this Section 8.
(b) In the event the Selling Shareholder exercises its Put Option, the Purchase
Price shall be paid to the Selling Shareholder by the Purchasing
Shareholder causing the Corporation to distribute, in the event that St.
Joe is the Selling Shareholder, the St. Joe Division and, in the event that
Weeks is the Selling Shareholder, the Weeks Division (such distributed
division, the "Distributed Division"), to the Selling Shareholder. In the
event that the Purchase Price exceeds the Distributed Division Value, the
Purchasing Shareholder shall pay in cash to the Selling Shareholder at the
Closing an amount equal to the amount by which the Purchase Price exceeds
the Distributed Division Value. In the event that the Distributed
Division Value exceeds the Purchase Price, the Selling Shareholder shall
pay in cash at the Closing to the Purchasing Shareholder, an amount equal
to the amount by which Distributed Division Value exceeds the Purchase
Price. The Purchasing Shareholder shall pay in cash at the Closing to the
Corporation an amount equal to the Distributed Division Value of the
division distributed to the Selling Shareholder. All Shareholders covenant
and agree that they will take and will cause to be taken at all times all
necessary action, including without limitation, the voting of Shares to
distribute a division to effectuate the provisions of this Section 8.1(b).
(c) Notwithstanding the foregoing, if both Weeks and St. Joe exercise the Put
Option within 60 days after the third anniversary of this Agreement, both
such exercises of the Put Option shall be void ab initio and neither Weeks
---------
nor St. Joe may exercise the Put Option (i) for a period of 30 days after
the last of the foregoing exercises or (ii) if either Weeks or St. Joe
initiates the buy-sell procedure set forth in Section 8.10, at any time
thereafter.
8.2 Codina Option to Purchase One-half of Selling Shareholder's Shares. If
------------------------------------------------------------------
either St. Joe or Weeks exercises its Put Option pursuant to Section 8.1 and
such exercise is not voided as provided in Section 8.1(c), Codina shall have the
23
<PAGE>
right, in his sole discretion and upon providing written notice within 15 days
of receipt of the Selling Shareholder's notice of its exercise of the Put Option
to the Corporation and the other Shareholders, to purchase one-half, but not
less than one-half, of the Selling Shareholder's Shares. If Codina elects to
purchase one-half of the Selling Shareholder's Shares, Codina shall become a
Purchasing Shareholder with respect to one-half of the Selling Shareholder's
Shares and shall have all the rights and obligations of a Purchasing Shareholder
of such Shares as provided in this Section 8. The original Purchasing
Shareholder shall continue as a Purchasing Shareholder of one-half of the
Selling Shareholder's Shares and shall have all the rights and obligations as
such are provided in this Section 8.
8.3 Purchasing Shareholder's Option.
-------------------------------
(a) Notwithstanding anything contained herein to the contrary, if either St.
Joe or Weeks is obligated to purchase Shares pursuant to Section 8.1, the
Purchasing Shareholder shall have the right, in its sole discretion, to
either (i) if Codina so desires, in his sole discretion, allow Codina to
acquire the Shares required to be purchased by it pursuant to Section 8.1,
or (ii) upon obtaining Codina's prior written consent, which consent may be
withheld in his sole discretion, allow another Person to acquire the Shares
required to be purchased by it pursuant to Section 8.1 (such other Person,
the "Designated Purchaser").
(b) If Codina purchases all of the Selling Shareholder's Shares pursuant to
clause (i) of Section 8.3(a), Codina shall become the Purchasing
Shareholder and shall have all of the rights and obligations as such are
provided in this Section 8.
(c) If a Designated Purchaser purchases all of the Selling Shareholder's Shares
pursuant to clause (ii) of Section 8.3(a), the Designated Purchaser shall
become the Purchasing Shareholder and shall have all of the rights and
obligations as such are provided in this Section 8.
8.4 St. Joe's Call Option. At any time within 180 days after St. Joe has
---------------------
actual knowledge of a Change in Control of Weeks, St. Joe shall have the right
(the "St. Joe Call Option") to require, upon providing 45 days prior written
notice (provided that such 45-day prior notice requirement shall not operate to
shorten the 180-day exercise period) to the Corporation and the other
Shareholders, Weeks to sell its Shares to St. Joe for an amount equal to the
Purchase Price payable as provided in Section 8.1(b), as if St. Joe is the
Purchasing Shareholder and Weeks is the Selling Shareholder.
8.5 Week's Call Option. At any time (i) within 180 days after Weeks has
------------------
actual knowledge of a Change in Control of St. Joe, (ii) after eighteen months
after, and prior to twenty-four months after, the date hereof, if (A) St. Joe
and a Codina Weeks Partnership have not reached agreement after good faith
negotiations upon the timing and terms of the formation of the partnership which
will develop the Airport Land, or (B) FECI and the Gran Entity have not agreed
in writing to be bound by the terms of this Agreement as if they were Affiliates
of St. Joe for purposes of this Agreement, or (iii) within 180 days after Weeks
has actual knowledge that FECI has engaged in any activity that would be
prohibited under Section 5 of this Agreement if it were deemed to be an
Affiliate of St. Joe for purposes of this Agreement, Weeks shall have the right
(the "Weeks Call Option") to require, upon providing 45 days prior written
24
<PAGE>
notice (provided that such 45-day prior notice requirement shall not operate to
shorten the 180-day exercise period) to the Corporation and the other
Shareholders, St. Joe to sell its Shares to Weeks for an amount equal to the
Purchase Price payable as provided in Section 8.1(b), as if Weeks is the
Purchasing Shareholder and St. Joe is the Selling Shareholder.
8.6 Codina Put Option.
-----------------
(a) The holders of Codina's Shares shall have the right (the "Codina Put
Option"), at any time after the Put Time (except if the Put Time occurs as
a result of Codina's death, within 180 days after the date of Codina's
death), to require, upon providing 45 days prior written notice to the
Corporation and the other Shareholders, the then current Shareholders which
are members of the Weeks Control Group or St. Joe Control Group to acquire,
in proportion to their relative ownership interests in the Corporation
without considering Codina's Shares and Option Shares, all of Codina's
Shares. At the Closing, each of the then Shareholders which are members of
the Weeks Control Group or St. Joe Control Group shall pay to the holders
of Codina's Shares in cash or, at the election of the holders of the Codina
Shares, in stock or units of limited partnership interest as provided in
Section 8.6(b), an amount equal to the product of (a) the Purchase Price
and (b) a fraction, the numerator of which is the number of Shares owned by
such Shareholder and the denominator of which is the total number of Shares
owned by members of the Weeks Control Group and St. Joe Control Group.
(b) If either Weeks or St. Joe is the sole other Shareholder at the time of the
exercise of the Codina Put Option, at the election of the holders of the
Codina Shares, Weeks or St. Joe, as the case may be, shall use its
reasonable best efforts to structure the acquisition of Codina's Shares on
a tax efficient basis to the holders of the Codina Shares, through either a
merger or, if Weeks is the only Shareholder, the contribution by the
holders of the Codina Shares to Weeks Realty, L.P. in exchange for common
units of limited partnership interests therein. If Weeks and St. Joe are
both Shareholders at the time of the exercise of the Codina Put Option, at
the election of the holders of the Codina Shares, Weeks shall use its
reasonable best efforts to structure its portion of the acquisition on a
tax efficient basis to the holders of the Codina Shares through a
contribution by the holders of the Codina Shares to Weeks Realty, L.P. in
exchange for common units of limited partnership interest therein. No
holder of Codina Shares shall be entitled to elect to receive securities of
Weeks Corp. or Weeks Realty, L.P unless at the time of such election such
holder is an "accredited investor" as defined under Rule 501(a) of the
Securities Act of 1933, as amended.
8.7 Default Call. In the event that as a result of a merger, consolidation
------------
or other business combination by either St. Joe or Weeks, St. Joe or Weeks is in
default of Section 5.1, 5.2 or 5.3. Weeks or St. Joe as the nondefaulting
party, as the exclusive remedy for such default, shall have the right (such
right, the "Default Call"), at any time within 180 days after such breach, upon
providing 45 days prior written notice (provided that such 45-day prior notice
requirement shall not operate to shorten the 180-day exercise period) to the
Corporation and the other Shareholders, to acquire the defaulting party's Shares
for an amount equal to the Purchase Price payable as provided in Section 8.1(b)
hereof, as if the defaulting Shareholder is the Selling Shareholder and the
nondefaulting Shareholder is the Purchasing Shareholder.
8.8 Corporation Call. (a) At any time within 70 days after Codina's
----------------
25
<PAGE>
employment with the Corporation is terminated by the Corporation for Corporation
Cause, the Corporation shall have the right (the "Corporation Call Option") to
require, upon providing 45 days prior written notice (provided that such 45-day
prior notice requirement shall not operate to shorten the 70-day exercise
period) to Codina, Codina to sell his Shares to the Corporation for an amount
equal to the Purchase Price.
(b) (i) If the Corporation does not exercise the Corporation Call Option in
accordance with Section 8.8(a) above within the 70-day period, then Weeks
and St. Joe (collectively, the "Offered Shareholders") shall have the
right, within 15 days following the earlier of either (A) the expiration of
the 70-day period or (B) the giving of written notice by the Corporation to
Codina and each Offered Shareholder that it will not exercise the
Corporation Call Option, to elect to purchase their pro rata share of
Codina's Shares at their prorata share of the Purchase Price by giving
written notice to Codina, the Corporation and the other Shareholders within
the 15-day period.
(ii) If any Offered Shareholder does not elect to purchase its pro rata share of
the Codina Shares (the "Remaining Codina Shares") within the 15-day period
specified in Section 8.8(b)(i) above, the Offered Shareholders who have
elected to purchase their pro rata share of the Codina Shares shall have
the right, exercisable for a period of five days after the 15-day period
specified in Section 8.8(b)(i) above, to purchase the Remaining Codina
Shares pro rata or in such other proportion as they may agree. The Offered
Shareholders must purchase in the aggregate all of Codina's Shares, or else
they may not purchase any of Codina's Shares.
(c) At any time within 180 days after the date of Codina's death, the
Corporation shall have the right to require, upon providing 45 days prior
written notice (provided that such 45-day prior notice requirement shall
not operate to shorten the 180-day exercise period) to Codina, Codina to
sell his Shares to the Corporation for an amount equal to the Purchase
Price.
8.9 (a) At any time within 180 days after the first anniversary of Weeks or
an Affiliate of Weeks acquisition of St. Joe's Shares, Weeks shall have the
right ("Weeks Codina Call") to require, upon providing 45 days prior written
notice (provided that such 45-day prior notice requirement shall not operate to
shorten the 180-day exercise period) to Codina, Codina to sell his Shares to
Weeks, for an amount equal to the Purchase Price.
(b) At any time (i) within 180 days after the first anniversary of Weeks
acquisition of St. Joe's Shares or (ii) within 180 days after the
occurrence of the last to occur of (A) Codina is not elected or re-elected
to the Board of Directors of Weeks Corp. (other than as a result of
Codina's refusal to stand for re-election) and (B) Weeks or an Affiliate of
Weeks acquires St. Joe's Shares, Codina shall have the right to require
Weeks to acquire his Shares for an amount equal to the Purchase Price.
(c) The Purchase Price under this Section 8.9 shall be paid in cash or at the
option of Codina Weeks, will use its reasonable best efforts to structure
its acquisition of Codina's Shares such that the Purchase Price can be paid
in a tax efficient manner.
26
<PAGE>
8.10 Buy-Sell.
--------
(a) If both Weeks and St. Joe exercise the Put Option within 60 days after the
third anniversary of this Agreement, at any time within the 30 day period
following the date of the last of such exercises, either Weeks or St. Joe
shall have the right to purchase from or sell to each of the Shareholders
all, but not less than all, of its Shares in the manner set forth in this
Section 8.10.
(b) Either Weeks or St. Joe (the "Offeror") may serve upon the other
Shareholder(s) (each an "Offeree") a notice (the "Offering Notice") which
shall contain the following terms:
(i) a statement of intent to rely on this Section 8.10; and
(ii) the price per Share (the "Specified Amount") at which the Offeror is
willing to buy and sell Shares.
(c) Either Weeks or St. Joe as the Offeree shall have the option to elect to do
one of the following, and such option may be exercised at any time within
25 days after its receipt of the Offering Notice:
(i) to sell all, but not less than all, of its Shares to the Offeror for a per-
Share price equal to the Specified Amount;
(ii) to purchase, subject to Codina's right set forth in Section 8.10(d), all,
but not less than all, of the Shares of the Offeror for a per-Share price
equal to the Specified Amount. If an Offeree does not exercise either of
its options within such 25-day period, then, as of the day following the
expiration of such period, the Offeree shall be conclusively deemed to have
elected to sell its Shares.
(d) Codina shall have the option to purchase one-half of the Shares which are
sold by either the Offeror or Offeree and such option may be exercised at
any time within 10 days after Codina is advised in writing as to the
identity of the buyer and seller.
8.11 Closing.
-------
(a) Closing. Except as otherwise agreed to by all of the purchasing and
-------
selling Shareholders, all sales of a Shareholder's Shares pursuant to the
provisions of Section 8 shall take place at the Closing on the Closing Date
and shall occur in accordance with the following Sections 8.11(b) through
(f).
(b) Closing Date. The closing date ("Closing Date") shall be as applicable (i)
------------
the date 60 days after the providing of written notice by the Shareholder
which initiated the sale of such Shares pursuant to Section 8 or such
earlier date as the buying and selling Shareholders so determine or (ii) 30
days following the date of the exercise of an option or the expiration of
the time period provided for in Section 8.10(c); provided, however, if, in
connection with any such closing, a Notification and Report Form is
required to be filed under the Hart-Scott-Rodino Antitrust Improvements Act
27
<PAGE>
of 1976, the Closing Date shall be deferred until the expiration or early
termination of the notice periods required under such Act.
(c) Place and Time. The Closing shall be held at 1:00 p.m. on the Closing
--------------
Date, at the offices of the Corporation, or at any other time and place as
the parties shall agree.
(d) Payment and Delivery. At the Closing, the Purchase Price shall be paid in
--------------------
accordance with Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9 or
8.10, as the case may be, and the selling Shareholder shall deliver
certificates representing all of the Shares to be sold, duly endorsed, free
and clear of all liens and encumbrances.
(e) Failure to Deliver Certificates. If the Shareholder required to sell Shares
-------------------------------
pursuant hereto does not deliver the certificates at the Closing of a sale
of Shares pursuant to Section 8 hereof, then the Corporation shall cause
its transfer books to reflect that such Shares have been transferred to the
purchasing Shareholder, as of the Closing Date.
(f) Attorney-in-Fact. Each Shareholder hereby appoints the Corporation,
----------------
through its Secretary or such other officer as the Board may designate, as
its attorney-in-fact to execute and deliver all documents needed to convey
the Shares to the purchasing Shareholder, if the Shareholder does not
deliver the Shares at the Closing as required hereby. This power of
attorney is coupled with an interest, does not terminate on the
Shareholder's disability or death, and continues for so long as this
Agreement is in effect.
8.12 Fair and Sufficient Purchase Price. With respect to any sale of Shares
----------------------------------
pursuant to Section 8, the Shareholders acknowledge that the Purchase Price may
not, depending upon the circumstances, reflect the fair market value of such
Shares, but that in any event such price constitutes fair and sufficient
consideration for the Shares as determined through the process of arms-length
negotiations among the parties hereto.
8.13 REIT Qualification. In the event that an amendment to the Internal
------------------
Revenue Code of 1986, as amended (the "Code") subsequent to the date hereof
could, in the reasonable opinion of counsel to Weeks Corp., result in a material
risk that Weeks' compliance with the put/call provisions under this Section 8
would jeopardize Weeks Corp.'s qualification as a real estate investment trust
under Sections 856 through 860 of the Code, the parties shall negotiate in good
faith to modify such provisions in a manner that would, in the reasonable
opinion of counsel to Weeks Corp., eliminate such material risk of
disqualification and would preserve to the greatest extent practicable the
original agreement of the parties under the applicable provisions of this
Section 8; provided that no modification shall terminate the right of the
applicable selling Shareholder to sell its Shares or to require a Shareholder to
sell his or its Shares except as otherwise required under such Section on the
terms set forth therein.
28
<PAGE>
Section 9. Transfer of Shares.
------------------
9.1 Restrictions on Transfer. No Shareholder shall, directly or indirectly,
------------------------
Transfer any Shares, and no Shares shall be, directly or indirectly,
Transferred, except for Permitted Transfers and Transfers in compliance with
Section 9.2. Except for Permitted Transfers, and Transfers made in accordance
with Section 9.2, no Shareholder shall, at any time, (i) deposit any Shares
under a voting trust or similar agreement, or otherwise Transfer any shares to
any Person for the purpose of vesting in such Person the right to vote such
Shares; (ii) enter into any agreement providing for the voting of Shares as
directed by any Person, or in a specified manner, or pursuant to a specified
procedure; or (iii) grant any voting proxy or otherwise enter into any agreement
or arrangement, the purpose or effect of which is to vest in any other Person
the voting rights of the Shares from time to time held by such Person. Any such
Transfer not made in compliance with this Section 9 shall be void ab initio and
-- ------
of no effect whatsoever. The provisions of this Section 9.1 shall not be
applicable to sales of Shares in a Qualified Public Offering.
9.2 Right of First Refusal.
----------------------
(a) Except as otherwise provided hereinafter, if any Shareholder (the "Offering
Shareholder") shall desire to sell all but not less than all of his or its
Shares (the "Offered Shares"), the Corporation and the remaining
Shareholders (the "Non-Offering Shareholders") shall have the right of
first refusal to purchase the Offered Shares upon the terms and conditions
hereinafter provided. Prior to any Transfer of Offered Shares, the
Offering Shareholder shall have received a written bona fide offer from a
third party to purchase the Offered Shares stating the number of Shares to
be purchased and the price and terms upon which such Shares are proposed to
be Transferred, and shall have delivered a copy of such written bona fide
offer to the Corporation and each of the Non-Offering Shareholders. The
Corporation shall have the right to elect within 30 days thereafter to
purchase all, but not less than all, of the Offered Shares at the lesser of
the Purchase Price or the same price and upon the same terms and conditions
as those contained in such offer by giving notice to the Offering
Shareholder within the 30-day period. The Offering Shareholder shall not
participate in any way in the making of the decision as to whether the
Corporation shall accept or reject the offer. Any attempted conditional or
partial acceptance of the offer by the Corporation shall constitute a
rejection.
(b) If the Corporation does not accept an offer made in accordance with Section
9.2(a) above within the 30-day period, then the Non-Offering Shareholders
shall have the right, within 5 days following the earlier of either (i) the
expiration of the 30-day period or (ii) the giving of written notice by the
Corporation to the Offering Shareholder and each Non-Offering Shareholder
that it will not purchase the Offered Shares, to elect to purchase their
pro rata share of the Offered Shares at the lesser of the Purchase Price or
the same price and upon the same terms and conditions as those contained in
such offer by giving written notice to the Offering Shareholder and the
Corporation within the five-day period. Any attempted conditional or
partial acceptance of the offer by a Non-Offering Shareholder shall
constitute a rejection.
(c) If any Non-Offering Shareholder does not elect to purchase his or its pro
rata share of the Offered Shares (the "Remaining Offered Shares") within
the 5-day period specified in Section 9.2(b) above, the Non-Offering
Shareholders who have elected to purchase their pro rata share of the
Offered Shares shall have the right, exercisable for a period of five days
after the five-day period specified in Section 9.2(b) above, to purchase
29
<PAGE>
the Remaining Offered Shares pro rata or in such other proportion as they
may agree. The Non-Offering Shareholders must purchase in the aggregate
all of the Offered Shares, or else they may not purchase any of the Offered
Shares.
(d) If the Corporation and the Non-Offering Shareholders do not elect to
purchase all of the Offered Shares within the aforesaid periods, or, if
after accepting such offer, the Corporation fails to purchase all of the
Offered Shares in accordance herewith and (i) the Non-Offering Shareholders
do not elect to purchase all of the Offered Shares within the periods
provided herein or (ii) the Non-Offering Shareholders elect to accept such
offer but fail to purchase all of the Offered Shares in accordance
herewith, then, subject to the provisions of Section 9.4, the Offering
Shareholder shall be free to Transfer all of the Offered Shares to the
third party that submitted the written bona fide offer at not less than the
price and on the same terms and conditions set forth in such bona fide
offer within 90 days following, as the case may be, (a) the default by the
Non-Offering Shareholders to make such purchase of the Offered Shares on
the Closing Date, or (b) the earlier of either (A) the expiration of the
period within which the Non-Offering Shareholders may elect to purchase the
Offered Shares or (B) the giving of written notice by the Non-Offering
Shareholders to the Offering Shareholder that they do not elect to purchase
all of the Offered Shares; provided that in no event shall a Shareholder be
-------- ----
permitted to sell its Shares to a Person which is a competitor of the
Corporation or any of its Shareholders, as reasonably determined by the
disinterested members of the Board. Promptly after the execution of any
contract for the Transfer of the Offered Shares, the Offering Shareholder
shall deliver to the Corporation a true and complete copy of such contract
and all amendments thereto, and such other information relating to the
contract and the proposed purchaser as the Corporation may request. Upon
the consummation of the Transfer of the Offered Shares, the Shareholder
shall notify the Corporation thereof and shall certify the price and terms
and conditions upon which such Transfer was made.
(e) If the Offering Shareholder does not Transfer all of the Offered Shares
within the 90-day period specified in Section 9.2(d) above, then the rights
of the Corporation and the other Shareholders under this Section 9.2 shall
be fully restored and reinstated as if such offer had never been made;
provided, however, that the 90-day period shall be extended during any
period in which such sale is not completed as a result of an act of God,
war or other force majeure.
9.3 Default by Corporation. If the Corporation accepts an offer for Shares
----------------------
made in accordance with Section 9, and then, on the Closing Date, the
Corporation defaults (other than a willful default) or is precluded by law from
consummating such purchase at the price or on the terms and conditions
prescribed hereby, the Non-Offering Shareholders shall have the options set
forth in Sections 9.2(b) and 9.2(c), dating from such Closing Date.
9.4 Validity and Effect of Transfer.
-------------------------------
(a) Notwithstanding anything in this Agreement to the contrary, no Transfer of
Shares or rights shall be deemed to be a Permitted Transfer or a
permissible transfer pursuant to Section 9.2 unless the Permitted
Transferee or Section 9.2 transferee agrees in writing for the benefit of
the other Shareholders, as a condition to such Transfer, to be bound by all
of the provisions of this Agreement to the same extent as was the
transferor hereunder; and provided, further, that the provisions hereof
30
<PAGE>
shall be self-operative such that any such Permitted Transferees or Section
9.2 transferee shall take all such Shares and rights subject to all the
provisions of this Agreement as if such Shares or rights were still held by
the Shareholder who made the Transfer, whether or not they so agree with
the Shareholder who makes the Transfer or with the other Shareholders.
(b) If any Transfer is made or attempted contrary to the provisions of this
Agreement, such purported Transfer shall be void ab initio; the other
-- ------
Shareholders shall have, in addition to any other legal or equitable
remedies which they may have, the right to enforce the provisions of this
Agreement by actions for specific performance (to the extent permitted by
law). Without limitation to the foregoing, each of the Shareholders
further agrees that the provisions of Section 13.11 shall apply in the
event of any violation or threatened violation of this Agreement.
(c) If a Permitted Transferee is a member of its transferor's Control Group
then the Permitted Transferee or such Control Group, if the Shares of such
Control Group are held by more than one member of such Control Group, shall
have, either individually or collectively, as the case may be, all of the
rights and obligations of Control Group's initial Shareholder under this
Agreement. A transferee under Section 9.2 shall succeed to all of the
rights of its transferor hereunder except if such transferee's transferor
is Codina or a Permitted Transferee of Codina, the Codina Put Option.
9.5 Acknowledgment of Restrictions. Each of the Shareholders acknowledges
------------------------------
and understands that the limitations imposed upon him or it by Sections 8 and 9
with respect to such Shareholder's ownership of Shares significantly limit such
Shareholder's ability to Transfer, and realize any value from, the Shares owned
by the Shareholder.
Section 10. Notations of Restrictions on Certificates. All certificates
-----------------------------------------
evidencing Shares shall bear legends on the face thereof substantially as
follows:
The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"). Such shares have been
acquired for investment and may not be sold or transferred in the absence
of an effective registration statement for such shares under the Act or an
opinion of counsel for the Corporation that registration is not required
under the Act.
The shares evidenced by this certificate are subject to the restrictions
and options stated in, and are transferable only upon compliance with, the
provisions of the Shareholders' Agreement, dated as of February ___, 1998,
by and among Codina Group, Inc., and its shareholders, as amended from time
to time, a copy of which is on file in the office of the Secretary of the
Corporation, the provisions of which are incorporated herein by reference.
Section 11. Termination of Agreement. This Agreement shall terminate, and
------------------------
the certificates representing the Shares subject to this Agreement shall be
released from the terms of this Agreement, upon the occurrence of any of the
following events:
(a) cessation of the Corporation's business;
31
<PAGE>
(b) written agreement of the Shareholders owning all of the Shares;
(c) adjudication of bankruptcy or dissolution of the Corporation or appointment
of a receiver for the Corporation or any substantial part of its assets;
(d) acquisition by one Person of all of the outstanding Shares; or
(e) the sale by the Corporation and/or its Shareholder of stock of the
Corporation in a Qualified Public Offering.
Section 12. Arbitration.
-----------
12.1 Application of Section. Whenever either (a) the Shareholders have a
----------------------
dispute regarding the interpretation of this Agreement or (b) the Shareholders
mutually agree to submit any other question, matter or dispute to arbitration,
the provisions of this Section shall apply.
12.2 Initiating Arbitration, Selection of Arbitrators. Any Shareholder may
------------------------------------------------
submit any question, matter or dispute set forth in Section 12.1 to arbitration
at which time the submitting Shareholder shall provide written notice to each of
the other Shareholders of its intent to initiate the arbitration proceedings set
forth herein. Within thirty (30) days after receipt of a request to arbitrate a
dispute, if there are three Shareholders, each Shareholder shall appoint one
arbitrator. If any Shareholder shall fail to make such appointment within said
30-day period within 15 days after the expiration of the 30-day period, the
other Shareholders shall jointly appoint another arbitrator, or, in the event
that the other Shareholders can not agree upon the appointment of a third
arbitrator, the two appointed arbitrators shall select a third arbitrator within
said 15-day period. If the other Shareholders and/or the two appointed
arbitrators are unable to agree within fifteen (15) days, then any Shareholder
may, upon at least five days' prior written notice to the other Shareholders,
request the Presiding Judge of the Circuit Court of the Eleventh Judicial
Circuit, in and for Miami-Dade County, Florida, ("Judge") acting in his or her
private and nonjudicial capacity, to choose an arbitrator to fill the vacancy.
The Judge may thereupon appoint an arbitrator to complete the panel of three
arbitrators. If there are only two Shareholders, each Shareholder shall appoint
one arbitrator within thirty (30) days after a receipt of a request to arbitrate
a dispute. If a Shareholder shall fail to make such appointment within said 30-
day period, the other Shareholder shall appoint the second arbitrator. The two
appointed arbitrators shall select a third arbitrator. If the two arbitrators
are unable to agree within fifteen (15) days, then any Shareholder may request
the Judge to choose an arbitrator to fill the vacancy.
All arbitrators shall be impartial and unrelated, directly or indirectly, so
far as employment of services is concerned to any of the Shareholders or to any
Affiliate or to any person directly or indirectly related to any Affiliate or to
any person directly or indirectly related to the Shareholders. In an
arbitration proceeding involving the management and operation of the
Corporation, the arbitrators shall have substantial knowledge and experience in
the management and operation of similar companies. In any arbitration
proceedings involving any other specialized area of knowledge or competence, the
arbitrators shall have substantial knowledge and experience in such specialized
area as, for example, in any dispute involving accounting procedures the
arbitrators shall be independent certified public accountants. The arbitration
proceeding shall otherwise be governed by the rules of the American Arbitration
32
<PAGE>
Association then in force.
12.3 Procedures: Limitations on Authority. The three arbitrators shall
------------------------------------
investigate the facts and shall hold hearings at which the Shareholders may
present evidence and arguments, be represented by counsel and conduct cross
examination. The three arbitrators shall render a written decision upon the
matter presented to them by a majority vote within ninety (90) days after the
date upon which the last arbitrator is appointed, and that decision shall be
final and binding on the Shareholders, subject to the provisions of Section 12.4
hereof. Judgment upon the decision rendered in such arbitration may be entered
by any court having jurisdiction thereof. No Shareholder shall be considered in
default hereunder during the pendency of arbitration proceedings relating to a
disputed default. If the three arbitrators shall fail to render a decision
within said 90-day period, any Shareholder may initiate a second arbitration
proceeding as provided in Section 12.1 and if the second set of arbitrators
shall fail to render a decision within said 90-day period the Shareholder shall
have the right to institute such action or proceeding in such court as shall be
appropriate in the circumstances. Upon the institution of such action, the
arbitration proceeding shall be terminated and shall be of no further force and
effect. The arbitrators shall determine in what proportion the Shareholders
shall bear the fees and expenses of the arbitrator appointed by or on behalf of
it and each Shareholder shall bear the fees and expenses of its own counsel and
other consultants. In determining any question, matter or dispute before them,
the arbitrators shall apply the provisions of this Agreement, without varying
therefrom in any respect. They shall not have the power to add to, modify or
change any of the provisions of this Agreement.
12.4 Review of Arbitration Decision. Notwithstanding anything contained
------------------------------
herein to the contrary, any Shareholder may seek review of any arbitration
decision made pursuant to this Section 12 by a court of competent jurisdiction
whose review shall be limited to a determination that there is substantial
competent evidence to support the facts as found by the arbitrators and that the
arbitrators have applied the law applicable to the dispute. The decision of the
trial court may be appealed to an appellate court.
Section 13. Miscellaneous.
-------------
13.1 Amendment. This Agreement may be amended only by a writing signed by
---------
all of the Shareholders; provided, however, that no such amendment shall deprive
-------- -------
any Shareholder of any right which has accrued hereunder prior to the effective
date of such amendment.
13.2 Notices. All notices, requests, demands and other communications
--------
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when delivered in person, or when sent by telex
or telecopy or other facsimile transmission (with receipt confirmed), or on the
fifth business day after posting thereof by registered or certified mail, return
receipt requested, pre-paid and addressed as follows (or at such other addresses
as the parties may designate by written notice in the manner aforesaid):
33
<PAGE>
If to the Corporation:
Codina Group, Inc.
Two Alhambra Plaza, PH-2
Coral Gables, FL 33134
Attention: Armando Codina
Facsimile No.: (305) 520-2342
If to St. Joe:
St. Joe Corporation
DuPont Center, Suite 400
1650 Prudential Drive
Jacksonville, FL 32207
Attention: David D. Fitch
Facsimile No.: (905) 398-8620
With a copy to:
St. Joe Corporation
DuPont Center, Suite 400
1650 Prudential Drive
Jacksonville, FL 32207
Attention: Robert M. Rhodes
Facsimile No.: (305) 396-4042
Gunster Yoakley Valdes-Fauli & Stewart, P.A.
777 S. Flagler Drive
West Palm Beach, FL 33402
Attention: Michael V. Mitrione
Facsimile No.: (561) 655-5677
If to Weeks:
Weeks Corporation
4497 Park Drive
Norcross, GA 30093
Attention: A. Ray Weeks, Jr.
Facsimile No.: (770) 717-2479
With a copy to:
Weeks Corporation
4497 Park Drive
Norcross, GA 30093
Attention: Elizabeth C. Belden
Facsimile No.: (770) 717-3310
34
<PAGE>
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attention: William B. Fryer
Facsimile No.: (404) 572-5148
If to Codina:
c/o Codina Group, Inc.
Two Alhambra Plaza, PH-2
Coral Gables, FL 33134
Attention: Armando Codina
Facsimile No.: (305) 520-2342
With a copy to:
White & Case
200 South Biscayne Boulevard
Suite 4900
Miami, FL 33131
Attention: K. Lawrence Gragg
Facsimile No.: (305) 358-5744
13.3 Governing Law. This Agreement shall be construed in accordance with,
-------------
and be governed by, the law of the State of Florida without regard to its
conflict of laws provisions.
13.4 Binding Effect. This Agreement shall be binding upon the Shareholders,
--------------
their estates, legatees, heirs, personal representatives and other permitted
successors in interest, and upon the Corporation, its permitted successors and
assigns.
13.5 Attorneys' Fees. In any litigation arising under this Agreement, the
---------------
prevailing party shall be entitled to recover from the non-prevailing party all
reasonable attorneys' fees and costs incurred by the prevailing party.
13.6 Headings. The headings in this Agreement are intended solely for
--------
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
13.7 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute the same Agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile transmission shall be effective
delivery of a manually executed counterpart of this Agreement.
13.8 Entire Agreement. This Agreement constitutes the entire agreement among
----------------
the parties hereto with respect to the subject matter hereof and all
understandings and agreements heretofore or simultaneously had among the parties
35
<PAGE>
are merged into this Agreement and superseded thereby, including without
limitation that certain letters of intent dated December 9, 1997. No promises,
representations, understandings, warranties, and agreements have been made by
any of the parties hereto except as referred to herein; and all inducements to
the making of this Agreement relied upon by either party hereto have been
expressed herein.
13.9 Partial Invalidity. If any provision of this Agreement, or the
------------------
application of a provision to any person or circumstance, shall be held invalid,
the validity or legality of the remainder of this Agreement, or the application
of such provision to persons or circumstances other than those to which it is
held invalid, shall not be affected.
13.10 Phrase Reference. Wherever from the context it appears appropriate,
----------------
each term stated in either the singular or the plural shall include the singular
and the plural, and pronouns stated in the masculine, the feminine or the neuter
gender shall include the masculine, feminine and neuter.
13.11 Specific Performance. The parties agree that it is impossible to
--------------------
measure in money the damages which will accrue to a party by reason of a failure
to perform any of the obligations set forth in this Agreement. Therefore, if
any party shall institute any action or proceeding to enforce the terms or
alleging a breach of the provisions of this Agreement, in addition to any other
remedy available at law, such party may seek specific performance of the terms
hereof; and any other party against whom such action or proceeding is brought
hereby waives the claim or defense that a remedy at law alone is adequate, and
agrees (to the maximum extent permitted by law) to have such provision
specifically enforced against it by any court of equity, without the necessity
of posting bond or other security against it, and consents to the entry of
injunctive relief against it enjoining or restraining any violation or
threatened violation of this Agreement.
13.12 Service of Process; Jurisdiction. Except for matters subject to
--------------------------------
arbitration pursuant to Section 12.1, the parties hereto (i) hereby irrevocably
submit themselves to the jurisdiction of the courts of the State of Florida and
to the jurisdiction of the United States District Court for the Southern
District of Florida for the purpose of any suit, action or other proceeding
arising out of or based upon this Agreement, any other agreements entered into
pursuant to this Agreement or the subject matter hereof or thereof and (ii)
hereby waive, and agree not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, any claim that they are not
subject personally to the jurisdiction of the above-named courts, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court. The parties hereto
hereby consent to service of process by registered mail at the address to which
notices are to be given. The parties hereto agree that their submission to
jurisdiction and their consent to service of process by mail is made for the
express benefit of the other parties hereto. Final judgment against any party
hereto in any such action, suit or proceeding shall be conclusive and may be
enforced in other jurisdictions (A) by suit, action or proceeding on the
judgment, a certified or true copy of which shall be conclusive evidence of the
fact and of the amount of any indebtedness or liability of the party therein
described or (B) in any other manner provided by or pursuant to the laws of such
other jurisdiction.
13.13 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN
--------------------
36
<PAGE>
ANY LITIGATION, SUIT OR PROCEEDING, IN ANY COURT WITH RESPECT TO, IN CONNECTION
WITH, OR ARISING OUT OF THIS AGREEMENT, THE SHARES, ANY OTHER AGREEMENT ENTERED
INTO PURSUANT TO THIS AGREEMENT, OR ANY INSTRUMENT OR DOCUMENT DELIVERED
PURSUANT TO THIS AGREEMENT OR ANY SUCH OTHER AGREEMENT, OR THE VALIDITY,
PROTECTION , INTERPRETATION, COLLECTION OR ENFORCEMENT, THEREOF; PROVIDED,
HOWEVER, THAT WITH RESPECT TO ANY COMPULSORY COUNTERCLAIM (I.E., A CLAIM BY A
PARTY HERETO AGAINST ANOTHER PARTY WHICH, IF NOT BROUGHT IN SUCH ACTION, WOULD
RESULT IN THE FIRST PARTY BEING FOREVER BARRED FROM BRINGING SUCH CLAIM), A
PARTY HERETO SHALL HAVE THE RIGHT TO RAISE SUCH COMPULSORY COUNTERCLAIM IN ANY
SUCH LITIGATION.
13.14 Consents. Any consent required by this Agreement may be given as
--------
follows:
(a) By a written consent given by the consenting Shareholder at or before the
doing of the act or thing for which the consent is solicited, provided that
such consent shall be nullified by either (i) written notification to the
other Shareholders by the consenting Shareholder at or before the time of,
or the negative vote by such consenting Shareholder at, any meeting held to
consider the doing of such act or thing, or (ii) written notification to
the other Shareholders by the consenting Shareholder before the doing of
any act or thing the doing of which is not subject to approval at such a
meeting; or
(b) By the affirmative vote by the consenting Shareholder to the doing of the
act or thing for which the consent is solicited at any meeting duly called
and held to consider the doing of such act or thing.
13.15 Force Majeure. The parties to this Agreement shall be excused from
-------------
performance of their obligations under this Agreement where they are prevented
from so performing by revolutions or other disorders, wars, acts of enemies,
fires, floods, or acts of God. All parties shall perform such parts or aspects
of their obligations that are not interfered with by such causes.
13.16 Successors. Except as herein otherwise specifically provided, this
----------
Agreement shall be binding upon, and inure to, the benefit of the parties and
their successors and permitted assigns.
13.17 No Third Party Rights. The provisions of this Agreement are for the
---------------------
exclusive benefit of the Corporation and the Shareholders and no other party,
except as specifically provided herein (including without limitation, any
creditor of the Corporation), shall have any right or claim against the
Corporation or any Shareholder by reason of those provisions or be entitled to
enforce any of those provisions against the Corporation or any Shareholder.
13.18 Survival. All covenants, agreements, representations and warranties
--------
made herein or otherwise made in writing by any Shareholder or the Corporation
pursuant hereto shall survive the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
37
<PAGE>
13.19 No Waiver. One or more waivers of the breach of any provision of this
---------
Agreement by any party hereto shall not be construed as a waiver of a subsequent
breach of the same or any other provision, nor shall any delay or omission by a
nondefaulting party to seek a remedy for any breach of this Agreement or to
exercise the rights accruing to a nondefaulting party by reason of such breach
be deemed a waiver by a nondefaulting party of its remedies and rights with
respect to such breach.
13.20 Confidentiality. No party hereto, without the written approval of the
---------------
other party, during the period of time this Agreement is in effect or thereafter
divulge to any person not a party hereto, other than its attorneys, accountants,
employees and professional advisers, any information concerning the business of
the Corporation or the content of this Agreement or any other contract or
agreement entered into by the Corporation, unless (i) such information is
already known to such party or to others not bound by a duty of confidentiality
or such information becomes publicly available through no fault of such party,
(ii) the use of such information is necessary or appropriate in making any
filing or obtaining any consent or approval, or (iii) the furnishing of such
information is required by law; provided, however, that in the event of
disclosure pursuant to (ii) or (iii) hereof, such disclosing party shall agree
to provide prompt written notice to the other parties hereto prior to
disclosure, if practicable, and to disclose only that portion of the
confidential information which is legally required or otherwise necessary.
13.21 Construction. This Agreement shall be interpreted without regard to
------------
any presumption or rule requiring construction against the party causing this
Agreement to be drafted.
13.22 Further Assurances. Each party hereto agrees to execute and deliver
------------------
any and all additional instruments and documents and do any and all acts and
things as may be necessary or expedient to more fully carry out this Agreement
and the purposes contemplated herein.
(Signatures on following page)
38
<PAGE>
IN WITNESS WHEREOF, the Shareholders have executed this Agreement, and the
Corporation has caused its corporate name to be signed by an authorized officer
of the Corporation as of the date first above written.
THE CORPORATION:
Codina Group, Inc., a Florida corporation
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
ST. JOE:
St. Joe Corporation, a Florida corporation
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
WEEKS CORP.:
WEEKS CORPORATION, a Georgia corporation
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
WEEKS REALTY:
Weeks Realty Services, Inc.
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
CODINA:
-----------------------------------------
Armando Codina
39
<PAGE>
EXHIBIT A
---------
Codina Owned Real Estate
------------------------
GABLES GRAND PLAZA
2320 Salzedo Street, Coral Gables
200 Apartments, 35,000 sf Retail & 500 car Parking Garage
AMC ASSOCIATES, INC.
1099 N.W. 14 Street, Miami
58,800 sf Lot with 4,000 sf Structure
BAYSIDE, LTD.
N.E. 3rd Street & Biscayne Boulevard
Retail Center in Downtown Miami
BEACON AT 97TH AVENUE JV
1900 N.W. 97 Avenue, Miami
41 Acre Business Park including approximately 450,000 sf of Industrial
Buildings
CODINA VALLS PROPERTY
10915 N.W. 138 Street, Miami
7.21 Acres of land by SR 27 and the Turnpike
MIAMI RIVER PROPERTY JV
Miami Avenue & S.E. 4 Street, NE corner on 2nd Avenue
69,000 sf fronting the Miami River
MIAMI RIVER PROPERTY NO. 2
SE Corner on 2nd Avenue
115,000 sf fronting the Miami River
BEACON TRADEPORT
11200 N.W. 25 Street, Miami
374 Acre Property at NE corner of Turnpike & SR 836
BEACON INDUSTRIAL PARK
11010 N.W. 30 Street, Miami; 107 Avenue & 30 Street
8 acres remaining to be developed
<PAGE>
SCHEDULE 5.2(b)
---------------
Restrictions and Contractual Obligations
----------------------------------------
St. Joe Corporation ("St. Joe") has the following restrictions and contractual
obligations as of the date of the Agreement.
1. St. Joe/Arvida Company, L.P. St. Joe, St. Joe/Arvida Company, L.P. (the
----------------------------
"JMB Partnership") and their affiliates must: (i) act as the exclusive agent and
enter into exclusive pre-development, development, management, residential
property brokerage, advisory, construction, project consulting and/or project
supervisory agreements (the "Future Management Contracts") with respect to any
Future Development (as hereinafter defined); and (ii) provide JMB Realty
Corporation ("JMB") the right to participate in any Future Development on the
same economic basis as St. Joe and its affiliates, for up to 26% (such
percentage to be determined by JMB) of the Future Development. The right of
participation granted to JMB covers all acquisitions of economic interests of
St. Joe, in any Future Development whether obtained through purchase, option,
the acquisition of development rights, loans, contribution or other transfers of
assets, securities or rights.
Future Development means: (a) future Arvida-named projects; and (b) other
residential projects or mixed use projects that are primarily residential, but
may include other land uses, whether or not such projects include the name
"Arvida". This term includes all land, infrastructure, improvements (whether
residential improvements or non-residential improvements which support any such
property development), rights, fixtures, easements and other real and personal
property relative thereto. Future Developments, at St. Joe's sole discretion,
may, in addition, include stand alone hotel and/or resort properties, but shall
not include stand-alone golf courses; provided that, Future Developments in all
cases shall include any Arvida-named projects regardless of any designations to
the contrary by St. Joe. These rights extend to all properties owned by St. Joe
and its affiliates as of November 12, 1997 and to all future acquired lands on
which a Future Development is to be built. In addition, St. Joe and its
affiliates are obligated to enter into Future Management Contracts solely with
------
the Partnership (or its wholly-owned subsidiaries) for all Future Developments,
and must refer all opportunities for Future Management Contracts with
unaffiliated third parties for Future Developments to the JMB Partnership, which
shall include all property purchase, pre-development, development, management,
residential property brokerage, advisory, construction, project consulting
and/or project supervisory services to be provided relative to such Future
Developments.
2. St. Joe/CNL Realty Group, Ltd. Activity. St. Joe/CNL Realty Group, Ltd.
----------- ---------------------
(the "CNL Partnership") and their affiliates (except for Florida East Coast
Industries, Inc. ("FEC") for which St. Joe is required to use only its best
efforts) must present to the CNL Partnership on a right of first option basis
all opportunities identified, optioned, acquired or presently held by St. Joe or
its affiliates with respect to acquiring, financing, developing, leasing,
maintaining, owning, operating, managing and/or disposing of single tenant
<PAGE>
Schedule 5.2(b)
---------------
Page 2
Corporate Facilities (as hereinafter defined) throughout the United States
obtained through referrals by existing or future clients of the retail,
restaurant, hospitality or healthcare groups of affiliates of CNL Venture and
cultivation of the "Butler" relationship of such CNL Venture affiliates.
Corporate Facilities means office buildings, industrial space and flex space,
but does not include medical or medical office buildings.
CNL Venture means CNL Corporate Venture, Inc., a wholly owned subsidiary of
CNL Group, Inc.
<PAGE>
SCHEDULE 5.13
-------------
Restrictions on Activities
--------------------------
1. The restriction set forth in that Section 15 of the Purchase Agreement by
and between Beacon Industrial Park Joint Venture and AMB Industrial Park Joint
Venture dated December 31, 1995.
A similar provision is included in the Management Agreements between Codina
Real Estate Management, Inc. and AMB Industrial Fund, Inc. dated December 31,
1995 and Codina Real Estate Management, Inc. and SSMRT Blue Lagoon (13), Inc.
dated November 15, 1996.
2. The restriction set forth in Section 4.3 of the Agreement of Limited
Partnership of CSC Limited Partnership dated as of April 30, 1997.
<PAGE>
EXHIBIT 12.1
Weeks Realty, L.P.
Ratio Of Earnings To Fixed Charges
(Dollars in thousands)
<TABLE>
<CAPTION>
Year Ended Jan. 1, 1994 Aug. 24, 1994
Dec. 31, To To Year Ended Year Ended Year Ended
1993 Aug. 23, 1994 Dec. 31, 1994 Dec. 31, 1995 Dec. 31, 1996 Dec. 31, 1997
(unaudited)
------------------------- ----------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Earnings Computation
- ------------------------
Net Income $998 $516 $1,067 $11,107 $15,809 $29,194
Extraordinary Loss - - 2,667 - - -
Add:
Interest Expense 10,254 6,682 1,958 8,106 11,779 17,900
Amortization Of Deferred
Financing Costs 372 322 252 691 864 933
Interest Expense of
Unconsolidated
Subsidiaries - - - 295 365 372
------------------------- ----------------------------------------------------------------
Earnings For Purposes
Of Computation $11,624 $7,520 $5,944 $20,199 $28,817 $48,399
------------------------- ----------------------------------------------------------------
<CAPTION>
Fixed Charges Computation
- --------------------------
<S> <C> <C> <C> <C> <C> <C>
Interest Expense $10,254 $6,682 $1,958 $8,106 $11,779 $17,900
Capitalized Interest 70 89 - 1,198 2,358 5,289
Amortization Of Deferred
Financing Costs 372 322 252 691 864 933
Interest Expense of
Unconsolidated
Subsidiaries - - - 295 365 372
------------------------- ----------------------------------------------------------------
Fixed Charges for Purposes
Of Computation $10,696 $7,093 $2,210 $10,290 $15,366 $24,494
------------------------- ----------------------------------------------------------------
Ratio Of Earnings To
Fixed Charges 1.09 1.06 2.69 1.96 1.88 1.98
========================= ================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Three Months Three Months
Ended Ended
Dec. 31, 1996 Dec. 31, 1997
(unaudited) (unaudited)
--------------- ----------------
<S> <C> <C>
Earnings Computation
- ------------------------
Net Income $4,459 $9,987
Add:
Interest Expense 3,622 3,559
Amortization Of Deferred
Financing Costs 222 254
Interest Expense of
Unconsolidated
Subsidiaries 88 194
--------------- ----------------
Earnings For Purposes
Of Computation $8,391 $13,994
--------------- ----------------
<CAPTION>
Fixed Charges Computation
- --------------------------
<S> <C> <C>
Interest Expense $3,622 $3,559
Capitalized Interest 795 1,551
Amortization Of Deferred
Financing Costs 222 254
Interest Expense of
Unconsolidated
Subsidiaries 88 194
--------------- ----------------
Fixed Charges for Purposes
Of Computation $4,727 $5,558
--------------- ----------------
Ratio Of Earnings To
Fixed Charges 1.78 2.52
=============== ================
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 21, 1997
included in Weeks Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996, as amended by Form 10-K/A-2 filed on September 26, 1997, our
report dated February 21, 1997 included in Weeks Realty L.P.'s Registration
Statement on Form 10 dated August 1, 1997 and filed on August 4, 1997, as
amended by Pre-Effective Amendment No. 3 dated and filed on October 1, 1997, our
report dated September 24, 1996 included in Weeks Corporation's Current Report
on Form 8-K dated November 5, 1996 and filed on November 6, 1996 and included in
Weeks Realty, L.P.'s Registration Statement on Form 10 dated August 1, 1997 and
filed on August 4, 1997, as amended by Pre-Effective Amendment No. 3 dated and
filed on October 1, 1997, our reports dated September 8, 1997 included in Weeks
Corporation's Current Report on Form 8-K dated October 3, 1997 and filed on
October 6, 1997 and included in Weeks Realty, L.P.'s Current Report on Form 8-K
dated October 3, 1997 and filed on October 8, 1997, and our reports dated
February 13, 1998 included in Weeks Corporation's Current Report on Form 8-K
dated February 17, 1998 and filed on February 18, 1998 and included in Weeks
Realty, L.P.'s Current Report on Form 8-K dated February 17, 1998 and filed on
February 18, 1998, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
March 17, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-32755) and related prospectus
supplement dated March 17, 1998 of Weeks Realty, L.P. for the registration of
6.875% Notes due March 15, 2005 with an aggregate principal amount of
$100,000,000 and to the incorporation by reference therein of our report dated
September 27, 1996, with respect to the combined financial statements of NWI
Warehouse Group as of December 31, 1995 and 1994 and for each of the years then
ended included in the Form 8-K/A of Weeks Corporation dated November 1, 1996,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
----------------------
ERNST & YOUNG LLP
Atlanta, Georgia
March 17, 1998
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement File. No.
333-32755 of Weeks Corporation and Weeks Realty, L.P. of our report dated
January 30, 1998 relating to the statement of revenues and certain expenses of
Beacon Centre Acquisition Property for the year ended December 31, 1996
appearing in the Report of Form 8-K/A of the Weeks Corporation and Weeks Realty,
L.P. dated January 9, 1998 and to the reference to us under the heading
"Experts" in the Prospectus Supplement, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
- -------------------------
Deloitte & Touche LLP
Miami, Florida
March 17, 1998
<PAGE>
EXHIBIT 99.1
[LOGO OF WEEKS APPEARS HERE]
CONTACT: David P. Stockert, Senior Vice President and Chief Financial Officer,
770-717-3204 Susan C. Walker, Vice President, Investor Relations,
770-717-3260
WEEKS CORPORATION (WKS) COMPLETES $100 MILLION SEVEN-YEAR NOTE OFFERING
Atlanta, Georgia (March 18, 1998)--Weeks Corporation (NYSE:WKS) today announced
the sale of $100 million of seven-year unsecured notes. The 6.875% notes, due
March 15, 2005, were priced to yield 6.942%. The Company expects the notes to be
rated BBB by Standard & Poor's, Baa2 by Moody's and BBB by Duff & Phelps.
Proceeds from the offering will be used to repay borrowings under the Company's
unsecured line of credit. In anticipation of the offering, and in connection
with funding decisions made regarding its acquisition and development
activities, the Company had entered into a treasury rate guarantee hedge
transaction in September 1997. The effect of this hedge is to increase the
effective interest rate on the notes to approximately 7.6%.
The managing underwriters for the offering were Goldman, Sachs & Co. and Morgan
Stanley Dean Witter. The notes were offered pursuant to a registration
statement that has been declared effective by the Securities and Exchange
Commission, and application has been made to list the notes on the New York
Stock Exchange. This press release shall not constitute an offer to sell or the
solicitation of an offer to buy, nor shall there be any sale of the notes in any
state in which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such state.
OVERVIEW OF WEEKS CORPORATION
Weeks Corporation is a self-administered real estate investment trust that owns,
develops and acquires primarily industrial and suburban office buildings and
business parks in metropolitan Atlanta, Georgia; Nashville, Tennessee; the
Research Triangle area of North Carolina; Jacksonville, Miami/Fort Lauderdale,
Orlando and Tampa, Florida; and Spartanburg, South Carolina. Weeks Corporation
provides leasing, management, development, construction, landscaping and other
tenant-related services for its own properties and for properties owned by
others.
To see recent news releases, EDGAR filings, and stock quotes, find Weeks
Corporation on the internet at http://www.businesswire.com/cnn/wks.htm
Send e-mail correspondence to [email protected]
