Exihibit 1.1
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WEEKS REALTY, L.P.
Debt Securities
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Underwriting Agreement
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July 30, 1998
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
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
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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 statements 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) One or more registration statements on Form S-3 (the File Nos. of
which are set forth in the relevant Pricing Agreement) in respect of the
Securities have been filed with the Securities and Exchange Commission (the
"Commission"); such registration statements and any post-effective
amendments thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statements, 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 any 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 any such registration statement, any post-effective
amendments 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 statements 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 statements, any post-effective
amendments 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 statements at the time such part
of the registration statements became effective but excluding Form T-1,
each as amended at the time such part of the registration statements 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
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
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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 first 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
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
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expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(d) None of Weeks Corporation, a Georgia corporation ("Weeks"), 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
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;
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(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 subject to no material liability or disability by
reason of the failure to be so qualified or be in good standing in any such
jurisdiction;
(g) 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
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;
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(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;
(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,
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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 (as 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,
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;
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(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");
(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) Xxxxxx Xxxxxxxx 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
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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
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
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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 to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such 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
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 most
recent 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
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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
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
11
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 their counsel,
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
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:
12
(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);
(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. Xxx Xxxxx, Xx., Xxxxxx X.
Xxxxxxxx or Xxxxxxx X. Xxxxxxxx, as the case may be, free and clear of
all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions
of local counsel and in respect of matters of fact upon certificates of
officers of the 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,
13
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 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);
14
(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
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
15
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";
(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.
16
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 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
17
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 most recent 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
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
18
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
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
19
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 amendment or supplement thereto 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
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto 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
20
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
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 to 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
21
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
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.
22
(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
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
23
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
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.
24
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof.
Very truly yours,
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc.
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
/s/ Xxxxxxx, Sachs & Co.
---------------------------------
(Xxxxxxx, Xxxxx & Co.)
25
ANNEX I
Pricing Agreement
-----------------
[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 [Name(s) of Representative(s)] 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 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
-31-
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:
[Name(s) of Representative(s)]]
[By:
--------------------------------
[[Name(s) of Co-Representative Corporation(s)]
By:
---------------------------------
Name:
Title:
---------------------------------
[(Name(s) of Co-Representative
Partnership(s))]]
On behalf of each of the Underwriters
-32-
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
----------
Underwriter
-------------
$
-----------
Total............................................................... $
==========
-33-
SCHEDULE II
Registration Statement File Numbers:
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from
to [and accrued amortization[, if any,] from to
]
Form of Designated Securities:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.]
Specified funds for payment of purchase price:
-00-
Xxxxxxx (xxxx day) funds
Time of Delivery:
a.m. (New York City time), , 19
Indenture:
Indenture dated ______________ __, 1998, between the Company and [ ],
as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ....................., 19..]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the amount
of [$ ] or an integral multiple thereof,
-35-
[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.]]
[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].]
-36-
[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].]
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:
-37-
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
-38-
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
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
-39-
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:
(AO (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;
(BO 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;
(CO the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to in
Clause (B) were not determined on a basis substantially consistent with the
basis for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year or the Company's Registration Statement on Form 10, as
applicable;
(DO 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;
(EO 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
35
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
(FO 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
(vi 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,
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.
36
