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REGISTRATION RIGHTS AGREEMENT
FOR POST-MARCH 31, 1998 SHARES AND UNITS
Dated as of November 1, 1996
by and among
WEEKS CORPORATION
and
NWI WAREHOUSE GROUP, L.P. and
▇▇▇▇▇▇▇ & COMPANY REAL ESTATE, INC.,
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REGISTRATION RIGHTS AGREEMENT
FOR POST-MARCH 31, 1998 SHARES AND UNITS
THIS REGISTRATION RIGHTS AGREEMENT FOR POST-MARCH 31, 1998 SHARES AND UNITS
(this "Agreement") is made and entered into as of November 1, 1996, by and among
WEEKS CORPORATION, a Georgia corporation (the "Company"), NWI WAREHOUSE GROUP,
L.P. a Tennessee limited partnership, including its successors, assigns and
transferees ("NWI"), and ▇▇▇▇▇▇▇ & COMPANY REAL ESTATE, INC., a Tennessee
corporation, including its successors, assigns and transferees ("▇▇▇▇▇▇▇ &
Co."). NWI and ▇▇▇▇▇▇▇ & Co. are collectively referred to hereafter as "NWI
Group" and all references to NWI Group shall include within its meaning "▇▇▇▇▇▇▇
& Co." and "NWI."
WHEREAS, this Agreement is made pursuant to (i) the Contribution Agreement
for the Aspen Grove Land dated as of even date herewith , (ii) the Contribution
Agreement for the I-440 Land dated as of even date herewith (collectively, (i)
and (ii) are hereafter referred to as the "Contribution Agreements.") and (iii)
certain other agreements executed pursuant to the acquisition by Weeks of the
assets of NWI Group and its affiliates;
WHEREAS, NWI Group will become the owner of Units (as defined below) in
Weeks Realty, L.P., a Georgia limited partnership (the "Operating Partnership"),
either in connection with the transactions described in the Contribution
Agreements or in connection with the acquisition of the assets of NWI Group and
its affiliates; and
WHEREAS, in order to induce NWI Group to enter into the transactions
described in the Contribution Agreements, the Company has agreed, with respect
to the Units issued after March 31, 1998, to provide NWI Group with the
registration rights set forth in Section 2 hereof;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"▇▇▇▇▇▇▇ & Co." shall have the meaning set forth in the Preamble and also
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shall include each of ▇▇▇▇▇▇▇ & Co.'s successors and assigns.
"Common Stock" shall mean the Common Stock, par value $.01 per share, of
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the Company.
"Company" shall have the meaning set forth in the Preamble and also shall
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include the Company's successors.
"Contribution Agreements" shall have the meaning set forth in the
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Preamble.
"Control" shall mean the ability, whether by the direct or indirect
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ownership of shares or other equity interests, by contract or otherwise, to
select a majority of the directors of a corporation, to select the managing
partner of a partnership, to select the manager of a limited liability company
or otherwise to select, or have the power to remove and then select, a majority
of those persons exercising governing authority over an Entity. In the case of
a limited partnership, the sole general partner, each of the general partners
that has equal management control and authority, or the designated managing
general partner or managing general partners thereof shall be deemed to have
control of such partnership. In the case of a trust, any trustee thereof or
any Person having the right to select any such trustee shall be deemed to have
control of such trust.
"Entity" shall mean any general partnership, limited partnership,
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corporation, limited liability company, joint venture, trust, business trust,
cooperative or association.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Maximum Number" shall mean with respect to an underwritten public
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offering, the maximum number of securities which in the opinion of the managing
underwriters can be included in such offering without adversely affecting the
marketability of the offering.
"NWI" shall have the meaning set forth in the Preamble and also shall
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include each of NWI's successors and assigns.
"NWI Group" shall have the meaning set forth in the Preamble.
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"Operating Partnership" shall have the meaning set forth in the Preamble
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and also shall include the Operating Partnership's successors and assigns.
"Partnership Agreement" shall mean the Second Amended and Restated
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Agreement of Limited Partnership of the Operating Partnership.
"Person" shall mean any individual or Entity.
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"Piggyback Registration" shall have the meaning set forth in Section 2
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hereof.
"Piggyback Registration Request" shall have the meaning set forth in
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Section 2 hereof.
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"Piggyback Registrable Securities" shall mean the Shares held by NWI Group,
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excluding (i) Shares that have been disposed of under any other effective
registration statement, (ii) Shares sold or otherwise transferred pursuant to
Rule 144 under the Securities Act, and (iii) Shares held by NWI Group if all of
such Shares are eligible for sale pursuant to Rule 144 under the Securities Act
and could be sold in one transaction in accordance with the volume limitations
contained in Rule 144(e)(1)(i) under the Securities Act.
"Piggyback Registration Expenses" shall mean any and all expenses incurred
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by the Company in connection with Piggyback Registrations, including, without
limitation: (i) all SEC, stock exchange and National Association of Securities
Dealers, Inc. ("NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or "blue sky" laws
(including reasonable fees and disbursements of counsel in connection with
qualification of any of the Piggyback Registrable Securities under any state
securities or blue sky laws and the preparation of a blue sky memorandum) and
compliance with the rules of the NASD, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
the Registration Statement, any Prospectus, certificates and other documents
relating to the performance of and compliance with this Agreement, (iv) all fees
and expenses incurred in connection with the listing, if any, of any of the
Piggyback Registrable Securities on any securities exchange or exchanges
pursuant to Section 4(i) hereof, and (v) the fees and disbursements of counsel
for the Company and of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance. Piggyback Registration
Expenses shall specifically exclude "Selling Expenses."
"Private Placement" shall mean the issuance and sale of Shares and Units
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pursuant to the transactions contemplated by the Contribution Agreements and
pursuant to any other event in which ▇▇▇▇▇▇▇ & Co. is issued Shares or Units
after March 31, 1998.
"Prospectus" shall mean the prospectus included in the Registration
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Statement, including any preliminary prospectus, and any amendment or supplement
thereto, including any supplement relating to the terms of the offering of any
portion of the Piggyback Registrable Securities covered by the Registration
Statement, and in each case including all material incorporated by reference
therein.
"Registration Statement" shall mean the registration statement prepared
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and filed with the SEC.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
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time to time.
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"Selling Expenses" shall mean all underwriting discounts and selling
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commissions and transfer taxes applicable to the sale of Piggyback Registrable
Securities and disbursements of underwriters.
"Shares" shall mean (i) any Common Stock issued to NWI Group in private
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placements subsequent to March 31, 1998 and (ii) any Common Stock issued to NWI
Group upon redemption of those Units which were issued to NWI Group subsequent
to March 31, 1998.
"Units" shall mean the limited partnership interests of the Operating
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Partnership issued to NWI Group in the Private Placement, which interests are
redeemable for Common Stock, or at the Operating Partnership's option, cash.
2. Piggyback Registrations for the Benefit of NWI Group.
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(a) Right to Piggyback. With respect to any Units or Shares issued to
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NWI Group subsequent to March 31, 1998, if the Company at any time proposes to
register any of its Common Stock or other securities under the Securities Act
for sale to the public, whether for its own account or for the account of other
shareholders or both (except with respect to registration statements on Form S-
8 or another form not available for registering the Piggyback Registrable
Shares for sale to the public) (a "Piggyback Registration"), the Company will
promptly (but in any event within 30 days) give written notice to NWI Group of
its intention to effect such registration and will include in such registration
all Piggyback Registrable Securities with respect to which the Company has
received written requests for inclusion within 15 days after the receipt of the
Company's notice (a "Piggyback Registration Request"); provided, however, that
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the Company shall not be required to include Piggyback Registrable Securities
in the securities to be registered pursuant to a registration statement on any
form which limits the amount of securities which may be registered by the
issuer and/or selling security holders if, and to the extent that, such
inclusion would make the use of such form unavailable. In the event that any
Piggyback Registration shall be, in whole or in part, an underwritten public
offering of Common Stock, any Piggyback Registration Request by NWI Group shall
specify that either (i) such Piggyback Registrable Securities are to be
included in the underwriting on the same terms and conditions as the shares of
Common Stock otherwise being sold through underwriters under such registration,
or (ii) such Piggyback Registrable Securities are to be sold in the open market
without any underwriting, on terms and conditions comparable to those normally
applicable to offerings of common stock in reasonably similar circumstances.
(b) Priority on Primary Registrations. If a Piggyback Registration is an
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underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
shares requested to be included in such registration exceeds the Maximum
Number, the Company will limit the number of shares included in such
registration to the Maximum Number, and the shares registered shall be selected
in the following order of priority: (i) first, securities the Company proposes
to sell, (ii) securities requested to be included in such registration pursuant
to the Registration Rights and Lock-Up Agreement dated as of August 24, 1994,
by and among Weeks Corporation and the Company Participants Listed on
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Schedule A thereof and the Other Participants Listed on Schedule B thereof,
(iii) third, (a) Piggyback Registrable Securities covered by Piggyback
Registration Requests, (b) securities covered by piggyback registration requests
pursuant to that certain Registration Rights and Lock-Up Agreement by and among
Weeks Corporation, Lichtin Properties, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trust, The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust and The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust dated 1996, and
(c) securities covered by piggyback registration requests pursuant to that
certain Registration Rights and Lock-Up Agreement for Post-March 31, 1997 Units
by and among Weeks Corporation, Lichtin Properties, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, The
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust, The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust and The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trust dated 1996, pro rata among the holders thereof on the basis of the number
of shares requested to be included in such registration and (iv) fourth, other
securities requested to be included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback Registration is
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an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the Maximum Number, the Company will include in such
registration the shares requested to be included therein by the holders
requesting such registration and the Piggyback Registrable Securities covered
by Piggyback Registration Requests and any other securities requested to be
included in such registration, pro rata among the holders thereof on the basis
of the number of shares requested to be included in such registration;
provided, however, that if the holders requesting registration are doing so
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pursuant to demand registration rights of such holders, such holders' shares
shall take priority over any Piggyback Registrable Securities and any other
securities requested to be included, which shall be included on a pro rata
basis.
(d) Demand Registration Rights After Fifth Anniversary. If all of the
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Piggyback Registrable Securities under this Agreement, which NWI Group wishes
to dispose of, have not been disposed of on or before the fifth anniversary of
this Agreement, then NWI Group shall be entitled to two (2) demand registration
right with respect to such Piggyback Registrable Securities. Such demand
registration shall be conducted in accorandance with the terms, provisions and
priorities of the demand registration provisions (including, without
limitation, the expense allocation provisions) contained in the Registration
Rights Agreement dated as of the date hereof by and among the Company, NWI,
▇▇▇▇▇▇▇ & Co., ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
3. Holdback Agreements.
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(a) NWI Group of Piggyback Registrable Shares. NWI Group agrees not to
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effect any public sale or distribution (including sales pursuant to Rule 144)
of equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the 7 days prior to
(provided that NWI Group receives a notice from the Company of the commencement
of such 7-day period) and the 90-day period beginning on the effective date of
any
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underwritten Piggyback Registration in which Piggyback Registrable Securities
are included (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree.
(b) Company Officers and Directors. The Company agrees (i) not to effect
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any public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
7 days prior to (provided that the Company receives notice of the commencement
of such 7-day period) and the 90-day period beginning on the effective date of
any underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise
agree, and (ii) to use its best efforts to cause each of the Company's officers
and directors who hold Common Stock or any securities convertible into or
exercisable for Common Stock, to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
4. Piggyback Registration Procedures. If and whenever the Company is
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required to use its reasonable efforts to effect the registration of any of its
securities under the Securities Act, the Company shall use its reasonable
efforts to effect the registration and sale of the Piggyback Registrable
Securities in accordance with the intended method of disposition thereof;
provided, however, that the Company will not be under any obligation to ensure
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the registration of such Piggyback Registrable Securities is consummated if the
Registration Statement pursuant to which the Piggyback Registrable Securities
are being registered is canceled or withdrawn on behalf of the Company or those
persons requesting such registration. In connection with the foregoing, the
Company will, as expeditiously as possible:
(a) prior to the filing of the Registration Statement, furnish to
NWI Group copies of the Registration Statement and any amendments or
supplements thereto and any prospectus forming a part thereof, which
documents shall be subject to the approval of NWI Group only with respect
to any statement in the Registration Statement which relates to NWI Group;
(b) notify NWI Group promptly and, if requested by NWI Group,
confirm in writing, (i) when the Registration Statement and any post-
effective amendments thereto have become effective, (ii) when any amendment
or supplement to the Prospectus has been filed with the SEC, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of the Registration Statement or any part
thereof or the initiation of any proceedings for that purpose, (iv) if the
Company receives any notification with respect to the suspension of the
qualification of the Piggyback Registrable Securities for offer or sale in
any jurisdiction or the initiation of any proceeding for such purpose, and
(v) of the happening of any event during the period the Registration
Statement is effective as a result of which (A) such Registration Statement
contains any untrue
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statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or (B) the Prospectus as then amended or supplemented contains
any untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(c) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement or any
part thereof as promptly as possible;
(d) furnish to NWI Group after it has delivered a Piggyback
Registration Request to the Company, without charge, at least one conformed
copy of the Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested);
(e) prepare and file with the SEC such amendments and supplements
to such Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective
for the period specified in paragraph (a) above and to comply with the
provisions of the Securities Act with respect to the disposition of all
Piggyback Registrable Securities covered by such Registration Statement in
accordance with NWI Group's intended method of disposition set forth in
such Registration Statement for such period;
(f) furnish to NWI Group and to each underwriter such number of
copies of the Registration Statement and the Prospectus included therein
(including each preliminary prospectus) and such other documents, as such
persons may reasonably request in order to facilitate the public sale or
other disposition of the Piggyback Registrable Securities covered by such
Registration Statement;
(g) use its reasonable efforts to register or qualify the Piggyback
Registrable Securities covered by such Registration Statement under the
securities or blue sky laws of such jurisdictions as NWI Group or, in the
case of an underwritten public offering, the managing underwriter, shall
reasonably request;
(h) provide a transfer agent and registrar, which may be a single
entity, for all Piggyback Registrable Securities not later than the
effective date of the Registration Statement;
(i) use its reasonable efforts to cause all Piggyback Registrable
Securities to be listed on any securities exchange on which similar
securities issued by the Company are then listed;
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(j) if the offering is underwritten, to furnish, at the request of
NWI Group, on the date that Piggyback Registrable Securities are delivered
to the underwriters for sale pursuant to such registration: (i) an opinion
dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters, stating that such
Registration Statement has become effective under the Securities Act and
that (A) to the best knowledge of such counsel, no stop order suspending
the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Securities Act, (B) the Registration Statement, the related Prospectus, and
each amendment or supplement thereto, comply as to form in all material
respects with the requirements of the Securities Act and the applicable
rules and regulations of the SEC thereunder and that such counsel does not
believe that any such Registration Statement, Prospectus, amendment or
supplement contains a misstatement of a material fact or an omission to
state a material fact required to be stated therein or necessary to make
the statements made therein, in light of the circumstances under which they
were made, not misleading (except that such counsel need express no opinion
as to financial statements or financial or statistical data contained
therein) and (C) to such other effects as may reasonably be requested by
counsel for the underwriters or by NWI Group or its counsel, and (ii) a
letter dated such date from the independent public accountants retained by
the Company, addressed to the underwriters, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the Registration Statement or the Prospectus, or any
amendment or supplement thereto, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other financial matters (including
information as to the period ending no more than five business days prior
to the date of such letter) with respect to the registration in respect of
which such letter is being given as such underwriters may reasonably
request; and
(k) make available for inspection by NWI Group after it has
provided a Piggyback Registration Request to the Company and any counsel,
accountants or other representatives retained by NWI Group all financial
and other records, pertinent corporate documents and properties of the
Company and cause the officers, directors and employees of the Company to
supply all such records, documents or information reasonably requested by
NWI Group, counsel, accountants or representatives in connection with the
Registration Statement; provided, however, that such records, documents or
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information which the Company determines in good faith to be confidential
and notifies NWI Group, counsel, accountants or representatives in writing
that such records, documents or information are confidential shall not be
disclosed by NWI Group, counsel, accountants or representatives unless (i)
such disclosure is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, or (ii) such records, documents or
information become generally available to the public other than through a
breach of this Agreement.
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For purposes of paragraph (e) of this Section 4, the period of
distribution of Piggyback Registrable Securities in a firm commitment
underwritten public offering shall be deemed to be that period during which
the underwriters in such offering require in an underwriting agreement in
the form customarily used by such underwriters for comparable transactions
that the Company keep a registration statement effective to permit each
underwriter to complete the distribution of all securities purchased by it,
and the period of distribution of Piggyback Registrable Securities in any
other registration shall be deemed to extend until the earlier of the sale
of all Piggyback Registrable Securities covered thereby or nine months
after the effective date thereof.
In connection with each registration hereunder, NWI Group will
furnish to the Company in writing such information with respect to itself
and the proposed distribution by itself as shall be reasonably necessary in
order to assure compliance with federal and applicable state securities
laws. Reasonable compliance with the obligation to furnish such information
shall be a condition to the rights afforded NWI Group hereunder. In
addition, NWI Group and any of its partners, officers, directors or
affiliates, if any, (i) will comply with the provisions of Rule 10b-6 and
10b-7 under the Exchange Act as applicable to them in connection with sales
of Piggyback Registrable Securities pursuant to the Registration Statement;
(ii) will comply with the prospectus delivery requirements of the
Securities Act as applicable to them in connection with sales of Piggyback
Registrable Securities pursuant to the Registration Statement; and (iii)
will enter into such written agreements as the Company shall reasonably
request to ensure compliance therewith.
In connection with each registration pursuant to Section 2 hereof
covering an underwritten public offering, the Company agrees to enter into
a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Company's size and investment stature;
provided that such agreement shall not contain any such provision
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applicable to the Company which is inconsistent with the provisions hereof;
provided, further that the time and place of the closing under said
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agreement shall be as mutually agreed upon between the Company and such
managing underwriter.
5. Piggyback Registration Expenses. In connection with any
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Piggyback Registration, the Company shall pay all Piggyback Registration
Expenses and NWI Group shall pay all Selling Expenses applicable to the
shares sold by NWI Group.
6. Indemnification; Contribution.
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(a) Indemnification by the Company. The Company agrees to
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indemnify and hold harmless NWI Group and its partners, officers and
directors and each Person, if any, who controls NWI Group within the
meaning of Section 15 of the Securities Act as follows:
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(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to which NWI Group, or any partner, officer,
director or controlling Person may become subject under the Securities Act
or otherwise (A) that arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) that arise
out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus or any amendment or
supplement thereto, or the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or alleged untrue statement
or any omission or alleged omission, if such settlement is effected with
the written consent of the Company; and
(iii) subject to the limitations set forth in Section 6(c), against
any and all expense whatsoever, as incurred (including reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether
or not a party, or any claim whatsoever based upon any such untrue
statement or alleged untrue statement or omission or alleged omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that the indemnity provided pursuant to this Section 6(a)
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shall not apply with respect to any loss, liability, claim, damage or expense
that arise out of or are based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by NWI Group (i)
expressly for use in the Registration Statement or any amendment thereto, or the
Prospectus or any amendment or supplement thereto or (ii) pursuant to any
representation, warranty or other statement contained in any of the Contribution
Agreements or any admission amendment to the Partnership Agreement.
(b) Indemnification by NWI Group. NWI Group agrees to indemnify and
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hold harmless the Company, and each of its respective directors and officers
(including each director and officer of the Company who signed the Registration
Statement), and each Person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act, to the same extent as the indemnity
contained in Section 6(a) hereof, but only insofar as such loss, liability,
claim, damage or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, or the Prospectus or any
amendment or supplement thereto, or any of the Contribution Agreements in
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reliance upon and in conformity with written information furnished to the
Company by NWI Group expressly for use therein. In no event, however shall the
liability of NWI Group exceed the net proceeds received by NWI Group from any
offering made in connection with a Registration Statement.
(c) Conduct of Indemnification Proceedings. Each indemnified party shall
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give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity agreement provided
in Section 6(a) or (b) above, unless and to the extent it did not otherwise
learn of such action and the lack of notice by the indemnified party materially
prejudices the indemnifying party or results in the forfeiture by the
indemnifying party of substantial rights and defenses, and (ii) shall not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided under
Section 6(a) or (b) above. After receipt of such notice, the indemnifying
party shall be entitled to participate in and, to the extent it shall wish,
jointly with any other indemnifying party so notified, to assume the defense of
such action or proceeding at such indemnifying party's own expense with counsel
chosen by such indemnifying party and approved by the indemnified party, which
approval shall not be unreasonably withheld; provided, however, that, if the
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defendants in any such action or proceeding include both the indemnified party
and the indemnifying party and the indemnified party reasonably determines,
upon advice of counsel, that a conflict of interest exists or that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, then the
indemnified party shall be entitled to one separate counsel, the reasonable
fees and expenses of which shall be paid by the indemnifying party. If the
indemnifying party does not assume the defense of any such action or
proceeding, after having received the notice referred to in the first sentence
of this paragraph, the indemnifying party will pay the reasonable fees and
expenses of counsel (which shall be limited to a single law firm) for the
indemnified party. In such event, however, the indemnifying party will be
liable for any settlement effected without the written consent of such
indemnifying party. If the indemnifying party assumes the defense of any such
action or proceeding in accordance with this paragraph, such indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
party incurred thereafter in connection with such action or proceeding, except
as set forth in the proviso in the second sentence of this Section 6(c).
(d) Contribution. In order to provide for just and equitable
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contribution in circumstances in which the indemnity agreement provided for in
this Section 6 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Company and NWI Group shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and NWI Group,
in such proportion as is appropriate to reflect the relative fault of and
benefits to the Company on the one hand and NWI Group on the other, in
connection with the statements or omissions which resulted
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in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits to the indemnifying
party and indemnified parties shall be determined by reference to, among other
things, the total proceeds received by the indemnified party and indemnified
parties in connection with the offering to which such losses, claims, damages,
liabilities or expenses relate. The relative fault of the indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
the indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), NWI Group shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Piggyback Registrable Securities of NWI Group were offered to
the public exceeds the amount of any damages which NWI Group would otherwise
have been required to pay by reason of such untrue statement or omission.
Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6(d), each Person, if
any, who controls NWI Group within the meaning of Section 15 of the Securities
Act and partners, directors and officers of NWI Group shall have the same rights
to contribution as NWI Group, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as the Company.
(e) In the event any sale pursuant to a Piggyback Registration is an
underwritten offering, then the Company agrees to indemnify and hold harmless
each underwriter of Piggyback Registerable Securities to the same extent and on
substantially similar terms as the Company's indemnification of NWI Group as set
forth in Section 6(a) above.
7. Rule 144 Sales.
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(a) Compliance. The Company covenants that, so long as it is subject to
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the reporting requirements of the Exchange Act, it will file the reports
required to be filed by it under the Exchange Act so as to enable NWI Group to
sell Piggyback Registrable Securities pursuant to Rule 144 under the Securities
Act.
(b) Cooperation with NWI Group. In connection with any sale, transfer or
--------------------------
other disposition by NWI Group of any Piggyback Registrable Securities pursuant
to Rule 144 under the Securities Act, the Company shall cooperate with NWI
Group to facilitate the timely preparation and
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delivery of certificates representing Piggyback Registrable Securities to be
sold and not bearing any Securities Act legend, and enable certificates for such
Piggyback Registrable Securities to be for such number of shares as NWI Group
may reasonably request at least two business days prior to any sale of Piggyback
Registrable Securities.
8. Miscellaneous.
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(a) Amendments and Waivers. The provisions of this Agreement, including
----------------------
the provisions of this sentence, may not be amended, modified, supplemented or
waived, nor may consent to departures therefrom be given, without the written
consent of the parties hereto.
(b) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery, (i) if to NWI, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., (ii) if to ▇▇▇▇▇▇▇ & Co., at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇., or (iii) if to the Company, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: A. R. Weeks, Jr.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; or at
the time delivered if delivered by an air courier guaranteeing overnight
delivery.
(c) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors, assigns and transferees of each of the
parties. If any successor, assignee or transferee of NWI or ▇▇▇▇▇▇▇ & Co.
shall acquire Piggyback Registrable Securities, in any manner, whether by
operation of law or otherwise, such Piggyback Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Piggyback Registrable Securities such Person shall be entitled to receive
the benefits hereof and shall be conclusively deemed to have agreed to be bound
by all of the terms and provisions hereof.
(d) Third Party Beneficiaries. There shall be no third party
-------------------------
beneficiaries or intended beneficiaries of this Agreement
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
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(g) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Georgia without giving effect to the
conflicts of law provisions thereof.
(h) Specific Performance. The parties hereto acknowledge that there
--------------------
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction.
(i) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above
WEEKS CORPORATION
By:
______________________________
Name:
Title:
NWI WAREHOUSE GROUP, L.P.
By: NWI X, L.P., its Sole General Partner
By: _________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.,
General Partner
By: _________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
General Partner
▇▇▇▇▇▇▇ & COMPANY REAL ESTATE, INC.
By: _______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
President
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