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CONTRIBUTION AGREEMENT
FOR
DEVELOPMENT PROPERTIES,
BETWEEN
WEEKS REALTY, L.P.
AND
NWI WAREHOUSE GROUP, L.P.
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TABLE OF CONTENTS
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Page
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1. DEFINED TERMS................................................... 1
2. COVENANT TO CONTRIBUTE.......................................... 10
3. STRUCTURE OF CONTRIBUTION....................................... 10
4. TIMING OF CONTRIBUTION.......................................... 11
5. CONTRIBUTION VALUE.............................................. 13
6. ADJUSTED CONTRIBUTION VALUE..................................... 14
7. ISSUANCE OF UNITS............................................... 15
8. INTERIM CONDUCT................................................. 16
9. EXISTING LOANS.................................................. 17
10. TITLE AND SURVEY................................................ 18
11. DATE, TIME AND PLACE OF CONTRIBUTION............................ 18
12. COSTS AND EXPENSES; PREPARATION OF DOCUMENTS.................... 20
13. ACCESS TO AND EXAMINATION OF THE DEVELOPMENT PROPERTIES......... 21
14. REPRESENTATIONS AND WARRANTIES OF NWI........................... 21
15. REPRESENTATIONS AND WARRANTIES OF WEEKS......................... 22
16. CONDITIONS...................................................... 23
17. FIRE AND CASUALTY............................................... 25
18. EMINENT DOMAIN.................................................. 26
19. DEFAULT......................................................... 26
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Page
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20. BROKERAGE FEES.................................................. 27
21. ADDITIONAL UNIT EARNOUT......................................... 27
22. MISCELLANEOUS................................................... 31
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SCHEDULE OF EXHIBITS
EXHIBIT A Aspen Grove Park
EXHIBIT B Development Properties
EXHIBIT C Existing Loans
EXHIBIT D Legal Descriptions of Land
EXHIBIT E Leasing Guidelines
EXHIBIT F Pro Forma Annual Operating Expense
EXHIBIT G Pro Forma Costs
EXHIBIT H Pro Forma Rental Rates
EXHIBIT I Rent Roll
EXHIBIT J Tenant Estoppel Certificate Form
EXHIBIT K Illustrative Calculation
EXHIBIT L Exclusive Development, Leasing and Management Agreement
EXHIBIT M Pro Forma Reimbursable Amounts
EXHIBIT N Permitted Exceptions
EXHIBIT O I-440 Land
EXHIBIT P Xxxxxx Parkway Land
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CONTRIBUTION AGREEMENT
(Development Properties)
THE CONTRIBUTION AGREEMENT (hereinafter referred to as this
"Agreement"), made and entered into as of this 1st day of November, 1996, by and
between NWI WAREHOUSE GROUP, L.P., a Tennessee limited partnership (hereinafter
referred to as "NWI"); and WEEKS REALTY, L.P., a Georgia limited partnership
(hereinafter referred to as "Weeks");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, NWI, through the merger into Weeks of a wholly owned
affiliate of NWI, has agreed to contribute certain assets of NWI to the capital
of Weeks in several stages (hereinafter referred to as the "Transaction");
WHEREAS, on even date herewith, through the merger into Weeks of the
wholly owned affiliate of NWI, NWI contributed to the capital of Weeks
(hereinafter referred to as the "Initial Contribution") the "Completed
Properties" (as defined in that certain Amendment to Partnership Agreement of
Weeks, dated as of even date herewith) in exchange for "Units" (as hereinafter
defined) and assumption (subject to the limitation on recourse provisions) of
certain indebtedness as one of the stages in the Transaction;
WHEREAS, NWI has under development and lease-up several properties
hereinafter defined as the "Development Properties";
WHEREAS, as another stage of the Transaction, NWI, through the merger
into Weeks of wholly owned affiliates of NWI, has agreed to contribute, from
time to time, each of the Development Properties to the capital of Weeks in
exchange for the issuance of additional Units and, in several instances, the
assumption (subject to the limitation on recourse provisions) of certain
indebtedness, as and when certain conditions are met, all as more particularly
set forth in this Agreement; and
WHEREAS, Weeks has agreed to the merger referenced above and has
agreed to accept such contribution of the Development Properties and, in
connection therewith, issue Units to NWI and assume (subject to the limitations
of recourse provisions) certain liabilities, all as more particularly set forth
in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing premises,
the mutual covenants and agreements herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, NWI
and Weeks hereby covenant and agree as follows:
1. DEFINED TERMS. In addition to terms defined elsewhere in this
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Agreement, the following words, when used in this Agreement, shall have the
meanings ascribed thereto in this paragraph:
a. "Adjusted Contribution Value" means the adjusted contribution value
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for Development Property arrived at after making the adjustments
provided for in Paragraph 6 of this Agreement.
b. "Aspen Grove Park" means that certain warehouse/industrial park
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depicted on the master plan, attached hereto as Exhibit A and by this
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reference made a part hereof.
c. "Bulk Building" means a building with a minimum of eighteen (18) feet
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of clear interior height with dock level loading in which ten percent
(10%) or less of the rentable area is devoted to office use.
d. "Contribution" means the consummation of a contribution to the
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capital of Weeks of a Development Property pursuant to the terms and
conditions of this Agreement.
e. "Contribution Date", for each Development Property, means the date on
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which that Development Property is contributed by NWI to the capital
of Weeks pursuant to Paragraph 4 of this Agreement.
f. "Contribution Value" means the contribution value of a Development
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Property determined in accordance with Paragraph 5 of this Agreement.
g. "Development Property" means the Real Property, the Tangible Personal
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Property and the Intangible Personal Property located at,
attributable to or used in connection with one of the six (6)
projects under development and lease-up identified on Exhibit B,
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attached hereto and by this reference made a part hereof; and
Development Properties means, collectively, all of the Real Property,
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the Tangible Personal Property and the Intangible Personal Property
located at, attributable to or used in connection with all of the six
(6) projects identified on Exhibit B hereto. Any reference to a
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specific Development Property shall be made by incorporating the name
of the project as set forth on Exhibit B; for example, a specific
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reference to the first listed Development Property shall be the
"Airpark Center X Development Property".
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h. "Distribution Building" means a building with a minimum of eighteen
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(18) feet of clear interior height with dock level loading in which
more than ten percent (10%) of the rentable area is devoted to office
use.
i. "85% Stabilization", with reference to a specific Development
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Property, means that all of the following conditions have been met:
(i) eighty-five percent (85%) of the net leasable area of the
Improvements have been leased to creditworthy Tenant(s) approved by
Weeks under Lease(s) approved by Weeks (which will base its approval
on commercially reasonable standards); (i) Tenant(s) are in actual
possession and have accepted possession of eighty-five percent (85%)
of the net leasable area of the Improvements, including Tenant
improvements; (iii) except for free-rent periods expressly stipulated
in the Lease(s), rental shall have commenced on eighty-five percent
(85%) of the net leaseable area of the Improvements and all other
concessions (besides any free rent periods) shall have expired; (iv)
no default by NWI or any Tenant is then outstanding and uncured under
the Lease(s), and (v) all of matters described in the foregoing four
(4) clauses have been confirmed to Weeks by the Tenant(s) pursuant to
Tenant Estoppel Certificate(s). For the purposes this definition, NWI
and Weeks agree that the net leasable area of the Improvement in each
Development Property is that set forth on Exhibit B hereto.
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j. "Environmental Laws" means the Resource Conservation and Recovery Act
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(42 U.S.C. (S) 6901 et seq.), as amended by the Hazardous Materials
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Transportation Act (490 U.S.C. (S) 1801 et seq.); the Toxic Substance
Control Act (15 U.S.C. (S) 2601 et seq.); Clean Air Act U.S.C. (S)
-- ---
136 et seq.); the Occupational Safety and Health Act (29 U.S.C. (S)
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651 et seq.) and all applicable federal, state and local
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environmental laws, including obligations under the common law,
ordinances, rules and regulations, as any of the foregoing may have
been amended, supplemented or supplanted prior to the date hereof,
relating to regulation or control of hazardous, toxic or dangerous
substances or wastes, or their handling, storage or disposal or to
environmental health and safety.
k. "Existing Loan" means one of the loans identified on Exhibit C,
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attached hereto and by this reference made a part hereof; and
"Existing Loans" means, collectively, all of the loans identified on
Exhibit C hereto.
l. "Existing Loan Documents" means, collectively, all of the loan
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documents evidencing and securing an Existing Loan.
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m. "Flex Building" means a building with less than eighteen (18) feet of
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clear interior height with grade level loading.
n. "Gross Income", for the purpose of determining the Contribution Value
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of a Development Property and subject to certain adjustments and
deductions expressly provided in this definition, means the gross
rental income, including applicable Pro Forma Reimbursable Amounts,
to be paid by the Tenant(s) under their respective Lease(s) for the
twelve (12) month period commencing on the Contribution Date, subject
to the following:
i. If Tenant concessions for a Lease exceed (A) three (3) months for
a Lease that has an original term of at least five (5) years, or
(B) one (1) month for a Lease that has an original term of less
than five (5) years (in either case, such excess, the "Excess
Tenant Concessions"); then, the amount included in determining
Gross Income from this Lease shall equal the dollar amount
derived from the following formula:
(A) [(B - C) /B] = D
where in the foregoing formula:
A = gross rental income, including applicable Pro Forma
Reimbursable Amounts, to be paid under the Lease for the
twelve (12) month period commencing on the Contribution
Date;
B = total gross rental income, including applicable Pro Forma
Reimbursable Amounts, scheduled to be paid under the Lease
for the original term of the Lease, calculated without
regard to Excess Tenant Concessions;
C = total value of the Excess Tenant Concessions for
the initial term of the Lease; and
D = amount to be included in Gross Income from the Lease.
ii. if the percentage of space finished as office space exceeds the
applicable Pro Forma Level of Office Finish for the Development
Property, in question, or for any Lease in that Development
Property; for the purpose of determining Gross Income from this
Development Property or this Lease, the rental income
attributable to the twelve (12) month period commencing on the
Contribution Date shall be reduced by the amount attributable to
that twelve (12) month period for amortization of such excess
office finish and Lease commissions attributable to such excess
office finish, if any; provided, however, in instances where
percentage of space finished as office space does not exceed
applicable Pro Forma Level of Office Finish for
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the total net leasable area of the Development Property, but
the percentage of space finished as office space under a Lease
does exceed the applicable Pro Forma Level of Office Finish,
Weeks may nevertheless consider, in its discretion, the
appropriateness of not deducting amortization of such excess
office finish and related commission cost, taking into account
factors such as Tenant layout, Tenant improvement allowances
granted to other tenants in such Development Property, and the
likelihood that such Tenant improvements would be readily
useable upon releasing of such space in the future. For this
purpose, the amortization shall be computed by treating the
amount of the excess office finish and related commission cost
as a loan to Tenant having a term equal to the original term of
the Lease and bearing interest at a simple interest rate per
annum of ten and one-quarter percent (10.25%) to be repaid in
equal monthly installments of principal and interest over the
original term of the Lease.
iii. If a Development Property is being contributed pursuant to
Paragraph 4(d) or Paragraph 4(c) of this Agreement, for the
percentage of space that must be leased that would be necessary
to bring the total leased space to ninety-five percent (95%) of
the space in the Development Property, rental income shall be
attributed in determining Gross Income for that Development
Property, at the lesser of the applicable Pro Forma Rental
Rates or the average actual rental rates for the space leased
in that Development Property plus, in either instance, Pro
Forma Reimbursable Amounts.
o. "Hazardous Materials" means (i) those substances included within
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definitions of or identified as "hazardous substances," "hazardous
materials," or "toxic substances" in or pursuant to Environmental
Laws; (ii) those substances listed in the United States Department of
Transportation Table (40 CFR 172.101 and amendments thereto) or by
the Environmental Protection Agency (or any successor agency) as
hazardous substances (40 CFR Part 302 and amendments thereto); (iii)
any material, waste or substance which is or contains (A) petroleum,
including crude oil or any fraction thereof, natural gas or synthetic
gas usable for fuel or any mixture thereof, or any product containing
the foregoing substances, (B) asbestos or asbestos containing
material, (C) polychlorinated biphenyls, (D) any substance designated
as "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. (S) 1251 et seq. (33 U.S.C. (S) 1321), or listed
-- ---
pursuant to Section 307 of the Clean Water Act (33 U.S.C. (S) 1317);
(E) flammable explosives; (F) radioactive materials; and (iv) such
other substances, materials
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and wastes which are or become regulated as hazardous, toxic or
"special wastes" under Environmental Laws.
p. "Improvements" means all buildings, structures and other
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improvements, including such fixtures as constitute real property,
located on the Land.
q. "I-440 Land" means those certain tracts or parcels of real property
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depicted on the site plan, attached hereto as Exhibit O and by this
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reference made a part hereof.
r. "Intangible Personal Property" means any intangible personal property
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now or hereafter owned by NWI in connection with the Land, the
Improvements or the Tangible Personal Property, and all of NWI's
rights under all contracts, utility arrangements, and other
agreements relating to the ownership, operation and occupancy
thereof, including, without limitation, warranties from contractors
on the Improvements, roof warranties, equipment warranties, the
Leases and Service Contracts; provided, however, the terms
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"Intangible Personal Property" does not include any cash on hand and
in bank accounts, notes receivable, accounts receivable and rights
under pending litigation (that are not lease enforcement actions,
filed in the ordinary course of business).
s. "Land" means those certain tracts or parcels of real property located
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in Davidson and Xxxxxxxxxx Counties, Tennessee, and containing
approximately 41.0 acres, in the aggregate, as more particularly
described in Exhibit D, attached hereto and by this reference made a
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part hereof, together with all of NWI's right, title and interest in
and to all appurtenances, rights, easements, tenements and
hereditaments incident thereto.
t. "Lease" means any lease or occupancy agreement affecting the
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Development Properties.
u. "Leasing Guidelines" means the leasing guidelines set forth on
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Exhibit E, attached hereto and by this reference made a part hereof.
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v. "Lender" means the holder of an Existing Loan.
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w. "Liens" means any liens, security interests, mortgages, deeds of
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trust, charges, claims, encumbrances, pledges, options, rights of
first offer or first refusal and any other rights or interests of
others of any kind or nature, actual or contingent, or other similar
encumbrances of any nature whatsoever.
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x. "Net Operating Income", for the purposes of determining the
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Contribution Value of a Development Property as of its Contribution
Date, means (i) Vacancy Adjusted Gross Income; less (ii) Operating
Expenses.
y. "95% Stabilization", with reference to a specific Development
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Property, means that all of the following conditions have been met:
(i) ninety-five percent (95%) of the net leasable area of the
Improvements have been leased to creditworthy Tenant(s) approved by
Weeks under Lease(s) approved by Weeks (which will base its approval
on commercially reasonable standards); (i) Tenant(s) are in actual
possession and have accepted possession of ninety-five percent (95%)
of the net leasable area of the Improvements, including Tenant
improvements; (iii) except for free-rent periods expressly stipulated
in the Lease(s), rental shall have commenced on ninety-five percent
(95%) of the net leasable area of the Improvements and all other
concessions (besides any free rent periods) shall have expired; (iv)
no default by NWI or any Tenant is then outstanding and uncured under
the Lease(s), and (v) all of matters described in the foregoing four
(4) clauses have been confirmed to Weeks by the Tenant(s) pursuant to
Tenant Estoppel Certificate(s). For the purposes this definition, NWI
and Weeks agree that the net leasable area of the Improvement in each
Development Property is that set forth on Exhibit B hereto.
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z. "Office Building" means a building with dropped ceilings, finished
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walls and floors, and heating, ventilating and air conditioning
which is used primarily for office purposes.
aa. "Operating Expenses", for the purposes of determining the
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Contribution Value of a Development Property, means the applicable
Pro Forma Annual Operating Expense for the twelve (12) month period
commencing on the Contribution Date for that Development Property.
Operating Expenses also shall include, without limitation, (i) a
management fee equal to four percent (4%) (or such other percentage
as is contractually agreed in a Lease for the gross rental income
from that Lease) of Vacancy Adjusted Gross Income (but not including
reimbursables) for the twelve (12) month period commencing on the
Contribution Date for that Development Property, and (ii) a reserve
for expenses in the amount of five cents ($.05) per square foot of
area in that Development Property per annum.
bb. "Partnership Amendment" means that certain First Amendment to Second
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Amended and Restated Agreement of Limited Partnership, dated of even
date herewith, pursuant to which NWI is admitted as a limited
partner to Weeks.
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cc. "Permitted Exceptions" means those matters set forth in Exhibit N,
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attached hereto and by this reference made a part hereof, together
with any matter expressly approved by Weeks pursuant to this
Agreement.
dd. "Pro Forma Annual Operating Expense" means the pro forma annual
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operating expenses set forth on Exhibit F, attached hereto and by
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this reference made a part hereof.
ee. "Pro Forma Level of Office Finish" means the following applicable
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percentages of net leasable area finished or to be finished, in
total, as office space in the following Development Properties or
the percentage of net leasable area finished or to be finished, in
total, as office space under a Lease in those Development
Properties:
Development Property Percentage
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440 Business Center I 25%
Airpark Center X 50%
Aspen Grove II 50%
All Others 40%
ff. "Pro Forma Costs" means the pro forma cost for each Development
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Property set forth on Exhibit G, attached hereto and by this
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reference made a part hereof.
gg. "Pro Forma Reimbursable Amounts" means the pro forma reimbursable
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amounts set forth on Exhibit M, attached hereto and by this
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reference made a part hereof.
hh. "Pro Forma Rental Rates" means to pro forma rental rates set forth
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on Exhibit H, attached hereto and by this reference made a part
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hereof.
ii. "Real Property" means collectively, the Land and the Improvements.
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jj. "Rent Roll" means any and all Leases containing, with respect to
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each Lease, information as to the commencement date of such Lease,
the termination date of such Lease, any renewal rights or expansion
rights under such Lease, the approximate square footage of the
leased premises under such Lease, the annual base rental and
additional rent due under such Lease, and the amount and duration of
any rent or other concessions made to the Tenant under such Lease.
The Rent Roll attached hereto as Exhibit I and by this reference
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made a part hereof, sets forth the status of leasing at the
Development Properties as of the date hereof.
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kk. "Rights Agreements", collectively, means that certain Registration
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Rights and Lock-Up Agreement and that certain Registration Rights
and Lock-Up Agreement for Post-March 31, 1998 Shares and Units,
both dated of even date herewith and both by and between Weeks and
NWI.
ll. "Service Contracts" means any and all of the service contracts,
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equipment, labor or material contracts, management contracts,
maintenance or repair contracts, or other agreements (other than
the Leases and related lease commission agreements) entered into by
NWI and that are in force and effect and that affect the
Development Properties or the operation, repair, or maintenance
thereof.
mm. "Security Deposits" means the refundable deposits (in the form of
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cash, letters of credit or certificates of deposit) made by Tenants
with NWI as security for such Tenants' obligations under their
respective Leases, to the extent not previously forfeited, applied
or refunded, together with interest thereon accrued as of the
Contribution Date which NWI is obligated to pay to any such
Tenants.
nn. "Tangible Personal Property" means all tangible personal property
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located on the Real Property which is owned by NWI and used in the
ownership, operation and maintenance of the Land and Improvements,
including, without limitation, all art, furniture, furnishings,
fixtures and equipment and stock for completion of Tenant
improvements.
oo. "Tenant" means any Tenant or lessee under any of the Leases.
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pp. "Tenant Estoppel Certificate" means the certificate to be submitted
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for execution to each Tenant with respect to the Lease pursuant to
which such Tenant leases space in the Improvements, such
certificate to be in the form attached hereto as Exhibit J and
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incorporated herein by this reference.
qq. "To NWI's Knowledge" means to the current actual knowledge of Xxxx
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X. Xxxxxx, Xx. or Xxxxxx X. Xxxxxxx, Xx.
rr. "Total Potential Gross Income", for the purpose of determining
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Vacancy Adjusted Gross Income, means at the Contribution Date the
sum of (i) Gross Income, and (ii) the amount of Gross Income
(including Pro Forma Reimbursable Amounts) that would accrue from
all vacant space in a Completed Property if such vacant space were
leased at applicable Pro Forma Rental Rates, and assuming a term of
less than 10 years, with no adjustment for Excess Tenant
Concessions or excess office finish and related Lease
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commissions; provided, however, that if a Development Property is
contributed pursuant to Paragraph 4(d) or 4(e) of this Agreement,
such Gross Income attributable to vacant space will be computed
using the lesser of the applicable Pro Forma Rental Rates or the
average actual rental rates for the space leased in that
Development Property.
ss. "Units" means limited partnership units in Weeks Realty, L.P., as
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described in the Rights Agreements.
tt. "Unit Value" means (i) for Contributions for which the Contribution
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Date occurs on or before March 31, 1997, Twenty-Five Dollars
($25.00); and (ii) for Contributions for which the Contribution
Date occurs after March 31, 1997, the arithmetic average of the
daily closing price of a share of common stock of Weeks Corporation
on the New York Stock Exchange for the twenty (20) business days
immediately prior to the Contribution Date. The Unit Value set
forth in clause (i) of the immediately preceding sentence is a
negotiated amount for the purposes of this transaction and does not
reflect a valuation by either NWI or Weeks of Weeks Corporation or
Weeks.
uu. "Vacancy Adjusted Gross Income", to adjust for possible future
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vacancy, for each Development Property as of the Contribution Date,
means the following:
i. If on the Contribution Date, less than ninety-five percent
(95%) of the space in the Development Property is leased, then
the Vacancy Adjusted Gross Income shall equal the Gross
Income.
ii. If on the Contribution Date, at least ninety-five percent
(95%) of the space in that Development Property is leased,
then the Vacancy Adjusted Gross Income shall be the lesser of:
(1) Gross Income of that Development Property; or
(2) ninety-five percent (95%) of Total Potential Gross Income
of that Development Property, plus an amount equal to five
percent (5.0%) of the Gross Income attributable to leases
having a term of ten years or more.
iii. If the Development Property is being contributed pursuant to
Paragraph 4(d) or 4(e) of this Agreement, then the Vacancy
Adjusted Gross Income shall be computed as in the manner
detailed in the immediately preceding Paragraph 1.uu.ii.(2)
above.
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2. COVENANT TO CONTRIBUTE. NWI hereby covenants and agrees to
----------------------
contribute the Development Properties to the capital of Weeks in accordance
with, and subject to, the terms and conditions of this Agreement. Weeks hereby
covenants and agrees to accept Contribution of the Development Properties to its
capital in accordance with, and subject to, the terms and conditions of this
Agreement.
3. STRUCTURE OF CONTRIBUTION. Each time a Development Property is to be
-------------------------
contributed to the capital of Weeks by NWI pursuant to this Agreement, (a) NWI
shall form a limited liability company under Delaware law, with NWI as the sole
member, substantially similar to that company formed for the Initial
Contribution, (b) NWI shall contribute the Development Property to that company
by instruments substantially similar to that used for the Initial Contribution,
(c) that company shall then merge into Weeks, with Weeks being the surviving
entity, pursuant to agreements of merger substantially similar to that used in
connection with the Initial Contribution, and (d) Weeks shall issue Units as
provided in this Agreement to NWI in exchange for NWI's membership interests in
that company. Each limited liability company to be formed by NWI pursuant to the
immediately preceding sentence shall have as its sole business purpose the
ownership of the Development Property in question and shall assume or incur no
unrelated liability or obligation. NWI shall deliver possession of the
Development Property to Weeks on the Contribution Date.
4. TIMING OF CONTRIBUTION.
----------------------
a. Subject to certain exceptions and notification requirements
hereinafter provided in this Paragraph 4, after a Development
Property first achieves 95% Stabilization, NWI shall contribute
that Development Property to Weeks pursuant to this Agreement.
b. Notwithstanding anything in this Paragraph 4 to the contrary, and
provided all conditions in Paragraph 16 hereof are satisfied,
including shell completion and the obtaining of Tenant Estoppel
Certificates, any Development Property not previously contributed
to Weeks by NWI pursuant to this Agreement shall be contributed to
Weeks on March 31, 1998, even if it has not yet achieved 85%
Stabilization or 95% Stabilization, as applicable.
c. If 95% Stabilization (or 85% Stabilization, if applicable) has
occurred with respect to the Aspen Grove I Development Property or
the Aspen Grove II Development Property, but not the other, then
NWI may elect (but does not have the obligation so to elect) to
delay Contribution of the Development Property that has achieved
95% Stabilization (or 85% Stabilization, if applicable) until the
earlier of March 31, 1998 (provided all conditions in Paragraph 16
are satisfied) or until Aspen Grove I Development Property and
Aspen Grove II Development Property both have achieved 95%
Stabilization (or 85% Stabilization, if applicable).
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d. If Weeks commences construction of a warehouse/industrial building
in Aspen Grove Park, then NWI may contribute to Weeks pursuant to
this Agreement, the Aspen Grove I Development Property, the Aspen
Grove II Development Property and the Aspen Grove V Development
Property after the later of (i) the date Weeks commenced
construction of such other Aspen Grove Park building, or (ii) the
date each such Development Property first achieves 85%
Stabilization [but in no event shall Contribution be later than
March 31, 1998, as provided in Paragraph 4(b) above and provided
all conditions in Paragraph 16 hereof are satisfied]. For the
purpose of this subparagraph and the next subparagraph, Weeks only
shall be deemed to have commenced construction of a building if
Weeks has approved the development of a specific building pursuant
to its customary procedures and grading of the site of that
building has commenced.
e. If Weeks commences construction of a warehouse/industrial building
on the I-440 Land, then NWI may contribute to Weeks, pursuant to
this Agreement, the 440 Business Center I Development Property
after the later of (i) the date Weeks commenced construction of
such other I-440 Land building, or (ii) the date the 440 Business
Center I Development Property first achieves 85% Stabilization [but
in no event shall Contribution be later than March 31, 1998, as
provided in Paragraph 4(b) above and provided all conditions in
Paragraph 16 hereof are satisfied].
f. Before April 1, 1997, NWI may elect to accelerate Contribution to
Weeks of any Development Property (provided all conditions in
Paragraph 16 hereof are satisfied, including shell completion and
the obtaining of Tenant Estoppel Certificates) which has not yet
achieved either 95% Stabilization or 85% Stabilization, as
applicable, and without regard to any minimum return achieved by
such Development Property.
g. After March 31, 1997, NWI may otherwise elect to accelerate
Contribution to Weeks of any Development Property (provided all
conditions in Paragraph 16 hereof are satisfied, including shell
completion and the obtaining of Tenant Estoppel Certificates) which
has not yet achieved 95% Stabilization or 85% Stabilization, as
applicable, if the (i) Net Operating Income from that Development
Property, divided by (ii) the Pro Forma Costs for that Development
Property (which Pro Forma Costs shall be reduced by those amounts
not yet expended for tenant finish, related lease commissions and
other costs attributable to space not yet leased) equals or exceeds
decimal one zero two five (.1025).
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h. NWI is seeking to negotiating a 160,000 square foot Lease with AMR,
Inc., or other tenant approved by Weeks for the entire Aspen Grove V
Development Property pursuant to which such tenant would initially
occupy and pay rent with respect to 120,000 square feet of the
Improvements and would subsequently occupy and pay rent with respect
to the balance of the Improvements within one (1) year following the
date of its initial occupancy. If NWI is successful in having such
Lease executed by such tenant, and such tenant occupies such 120,000
square feet and commences payment of rent with respect thereto on or
prior to March 31, 1997 (all as confirmed to Weeks in a Tenant
Estoppel Certificate from such tenant), then the Contribution of
Aspen Grove V Development Property shall occur within thirty (30)
days thereafter.
i. If pursuant to the foregoing subparagraphs of this Paragraph 4, a
Development Property is to be Contributed after it achieves 95%
Stabilization or 85% Stabilization, as applicable, then NWI shall
notify Weeks as soon as the Development Property has achieved 95%
Stabilization or 85% Stabilization, as applicable, and such notice
shall specify a date within thirty (30) days after such notice which
shall be for the purposes of this Agreement the Contribution Date
for that Development Property. If pursuant to the foregoing
subparagraphs of this Xxxxxxxxx 0, XXX may elect to contribute a
Development Property before it achieves 95% Stabilization or 85%
Stabilization, as applicable, NWI may make such election by notice
to Weeks, which notice shall specify a date within thirty (30) days
after such notice which shall be for the purposes of this Agreement
the Contribution Date for that Development Property. If a
Development Property has not been Contributed by March 31, 1998,
that date shall be the Contribution Date for the purposes of this
Agreement. NWI and Weeks agree to use reasonable best efforts to
complete Contribution of a Development Property as soon as is
reasonably practicable after the Contribution Date is established
pursuant to the applicable, immediately preceding sentences;
provided, however, if the Contribution of a Development Property is
not completed pursuant to the requirements of this Agreement within
sixty (60) day after the date established as that Development
Property's Contribution Date pursuant to the applicable, immediately
preceding sentences and such delay is the result of a default by
NWI, in addition to any other remedies Weeks may have under this
Agreement, at law or in equity, Weeks reserves the right to delay
the Contribution Date for that Development Property to the date
Contribution can be completed and the Contribution Value and
Adjusted Contribution Value shall be adjusted accordingly.
-13-
5. CONTRIBUTION VALUE. The Contribution Value of a Development
------------------
Property shall be determined as of the Contribution Date in accordance with the
following:
a. For any Development Property whose Contribution Date is on or
before March 31, 1997, the Contribution Value shall equal the Net
Operating Income of that Development Property determined as of the
Contribution Date divided by decimal one zero (.10).
b. For any Development Property whose Contribution Date is after March
31, 1997, the Contribution Value shall equal the greater of (A) the
Net Operating Income of that Development Property determined as of
the Contribution Date divided by decimal one zero two five (.1025),
or (B) the applicable Pro Forma Costs (which Pro Forma Costs shall
be reduced by those amounts not yet expended for tenant finish,
related lease commissions and other costs attributable to space not
yet leased).
c. Notwithstanding the provisions of subparagraphs (a) and (b) above,
if the Aspen Grove V Development Property is contributed pursuant
to Paragraph 4(h) of this Agreement [as a result of NWI's
successful leasing of the Property as described in Paragraph 4(h)],
the Contribution Value shall equal the Net Operating Income of the
Aspen Grove V Development Property determined as of the
Contribution Date divided by decimal one zero (.10).
6. ADJUSTED CONTRIBUTION VALUE. After determination of the Contribution
---------------------------
Value of a Development Property, such Contribution Value shall be subject to the
following further prorations, allocations and adjustments, all as of the
Contribution Date (the "Adjusted Contribution Value"):
a. If no adjustment to Gross Income has been made for free rent
concessions pursuant to clause (i) of the definition of Gross
Income, the Contribution Value shall be reduced by the amount of
free rent concessions unexpired as of the Contribution Date;
provided, however, NWI may elect to make a cash payment to Weeks
for the amount of unexpired free rent concessions in lieu of such
adjustment.
b. If adjustment to Gross Income has been made for excess office
finish and related Lease commissions pursuant to clause (ii) of the
definition of Gross Income, the Contribution Value shall be
increased by the actual cost of such excess office finish and
related Lease commisions.
c. If a Development Property is being contributed pursuant to
Paragraph 4(d) or 4(e) of this Agreement, the Contribution Value
shall be reduced by the pro forma amount which would be incurred
for tenant improvements and Lease
-14-
commissions (all in accordance with the Leasing Guidelines) on the
amount of vacant space in the Development Property which, it if
were leased and occupied, would result in the Development Property
being ninety five percent (95%) occupied.
d. If the Development Property is to be contributed subject to an
Existing Loan in accordance with the terms and conditions of
Paragraph 9 of this Agreement, the Contribution Value shall be
reduced by the outstanding principal balance of that Existing Loan
as of the Contribution Date.
7. ISSUANCE OF UNITS.
-----------------
a. Upon Contribution of a Development Property to Weeks, on the
Contribution Date, Weeks shall issue to NWI (pursuant to the
structure set forth in Paragraph 3 of this Agreement) a number of
Units equal to the quotient of (i) the Adjusted Contribution Value
for that Development Property, divided by (ii) the Unit Value.
b. For any Development Property Contributed after March 31, 1997, but
prior to achievement of 85% Stabilization or 95% Stabilization, as
applicable, the Adjusted Contribution Value (using for the purpose
of the recomputation the outstanding principal balance of any
applicable Existing Loan on the Contribution Date) shall be
recomputed as of the earlier of (i) the date the Development
Property first achieves 85% Stabilization or 95% Stabilization, as
applicable, or (ii) March 31, 1998, and, if this newly recomputed
Adjusted Contribution Value exceeds the Adjusted Contribution Value
determined on the Contribution Date for this Development Property,
Weeks shall issue to NWI in respect of such previously Contributed
Development Property an additional number of Units equal to the
quotient of (i) such excess divided by (ii) the Unit Value
[determined under clause (ii) of the definition of Unit Value as of
the date of recomputation under this subparagraph].
c. If the Aspen Grove V Development Property is contributed pursuant
to Paragraph 4(h) of this Agreement and if, and only if, AMR, Inc.
or other Tenant approved by Weeks commences paying rental with
respect to the entire Aspen Grove V Development Property pursuant
to the original terms of its Lease (as same is confirmed to Weeks
by acceptable Tenant Estoppel Certificate from such tenant), Weeks
shall issue to NWI in respect of such previously Contributed
Development Property an additional number of Units equal to the
quotient of (i) the quotient of the Net Operating Income
attributable to the additional space for which such tenant has
commenced to pay rent since that Development Property was
Contributed, divided by decimal one zero two five (.1025), divided
by (ii) the Unit Value [determined
-15-
under clause (ii) of the definition of Unit Value as of the date of
the recomputation under this subparagraph].
d. Units issued by Weeks Corporation to NWI pursuant to this Agreement
shall be held by NWI subject to the terms and conditions of the
Partnership Amendment and the applicable Rights Agreements.
e. Notwithstanding any provision of this Agreement to the contrary, no
fractional Units shall be issued to NWI pursuant to this Agreement.
If as a result of the application of the foregoing formulas, a
fractional Unit is due NWI, Weeks shall pay to NWI, in cash on the
same date as the fractional Unit would otherwise be issued and in
lieu of any such fractional Unit, an amount equal to that
fractional Unit times the applicable Unit Price, as determined
pursuant to this Agreement.
f. NWI and Weeks agree that Exhibit K, attached hereto and by this
---------
reference made a part hereof, which is an example based upon
certain hypothetical assumptions, sets forth an accurate
illustration of the application of the valuation formulas and
definitions in this Agreement.
8. INTERIM CONDUCT.
---------------
a. NWI hereby covenants and agrees with Weeks that, so long as this
Agreement remains in full force and effect, NWI will not sell,
assign, rent, lease, convey (absolutely or as security), grant a
security interest in, or otherwise encumber or dispose of, the
Development Properties (or any interest or estate therein) without
the prior consent of Weeks; provided, however, NWI may enter into
Leases for space in the Development Properties without the prior
consent of Weeks so long as (i) the terms of the Lease equal or
exceed the Leasing Guidelines, (ii) the prospective Tenant is
approved by Weeks, in the exercise of commercially reasonable
judgment (provided, however, if the Tenant is an affiliate of NWI,
Xxxx X. Xxxxxx, Xx., Xxxxxx X. Xxxxxxx, Xx. or a partner of any of
the foregoing, Weeks may elect to withhold its approval in its
absolute and sole discretion), (iii) the Lease is on a form
previously approved by Weeks, and (iv) within ten (10) business
days after execution and delivery of the Lease, NWI shall furnish a
copy thereof to Weeks.
b. NWI covenants and agrees that, so long as this Agreement remains in
full force and effect, NWI will not amend or modify the Existing
Loan Documents in any way, will make all payments of money, and
will perform all obligations, required under the Existing Loan
Documents; and that NWI will take no affirmative action which shall
cause NWI to be unable to contribute good and marketable title to
the Development Properties or which shall cause any
-16-
warranty or representation contained in this Agreement to be
incorrect or misleading at any time.
c. Weeks and NWI agree that a Bulk Building, a Distribution Building,
a Flex Building and an Office Building do not compete with each
other for prospective Tenants. Until such time as the net leasable
area of a Development Property (which has not yet been contributed
to Weeks) is at least fifty percent (50%) leased, Weeks agrees to
not commence construction of a building in the same park as that
Development Property is located that would compete with that
Development Property. By way of illustration and not limitation, if
a Development Property is classified as a "Flex Building", then
pursuant to the foregoing restriction, Weeks could commence
construction of a Bulk Building, a Distribution Building or an
Office Building, but could not commence construction of a Flex
Building until such time as the net leasable area of that
Development Property, classified as a Flex Building, is at least
fifty percent (50%) leased.
d. On even date herewith, NWI shall enter into an agreement with Weeks
(i) for the provision of construction and development services with
respect to the construction of Tenant improvements in each of the
Development Properties for which Weeks shall earn fees equal to
five percent (5%) of the hard cost of Tenant construction commenced
after the date this Agreement, payable monthly; and (ii) for the
provision of property management and leasing services for each of
the Development Properties for a term commencing on the date hereof
and ending, with respect to each of the Development Properties, on
the date that that Development Property is contributed to Weeks for
a management fee equal to four percent (4%) (or such other
percentage as is contractually agreed in a Lease with respect to
the rental collected from that Lease) of the gross collected rent
(excluding reimbursables) for each of the Development Properties,
payable monthly. The form of this agreement is attached hereto as
Exhibit L and by this reference made a part hereof.
---------
e. NWI hereby covenants and agrees to construct the Improvements on
the Land in a good and workerlike fashion, in compliance with all
applicable laws, ordinances and regulations and substantially in
accordance with plans and specifications approved by Weeks,
pursuant to separate written instrument. NWI further agrees and
covenants to prosecute such construction in a diligent manner so as
to comply with all terms and conditions of the Existing Loan
Documents or any Lease affecting the Development Properties.
-17-
9. EXISTING LOANS. The Development Properties are subject to the
--------------
Existing Loans and are encumbered by the Existing Loan Documents. Unless Weeks
requests otherwise in writing, at the time a Development Property is to be
contributed to Weeks pursuant to this Agreement, Weeks, at its sole cost and
expense, excluding any prepayment fee, will pay-in-full the Existing Loan that
encumbers the Development Property to be contributed and shall cause the
Existing Loan Documents to be canceled. NWI shall pay any prepayment fee due
upon such payoff.
10. TITLE AND SURVEY.
----------------
a. Weeks hereby approves the Permitted Exceptions (including, without
limitation, the Leases identified on the Rent Roll) and agrees to
accept the Contribution of a Development Property subject to the
Permitted Exceptions applicable to the Development Property, except
for those Permitted Exceptions that relate to the Existing Loan
that encumbers that Development Property that is not to be assumed
by Weeks pursuant to Paragraph 9 of this Agreement.
b. Within ten (10) business days of the notice of intent to Contribute
pursuant to Paragraph 11 hereof, Weeks shall cause title and survey
to be updated and Weeks shall identify in such notice any title
exception (other than Permitted Exceptions) Weeks determines to be
objectionable. NWI shall cure any such exception on or before the
date designated for Contribution to Weeks' reasonable satisfaction
and, if such cure is not completed by that date, then the
Contribution shall be delayed for a period not to exceed sixty (60)
days to permit NWI additional time to cure. If after such delay,
such title objection is not cured to Weeks' reasonable
satisfaction, Weeks may elect to do one of the following: (i) cure
the exception, with all costs and expenses incurred by Weeks
applied to reduce the Contribution Value and the Adjusted
Contribution Value, in which case the Contribution shall be further
delayed an additional sixty (60) day period, or (ii) terminate this
Agreement as to that Development Property or as to the remaining
uncontributed Development Properties (at Weeks' election) and xxx
NWI for damages at law, or (iii) seek specific performance of NWI's
obligations hereunder.
11. DATE, TIME AND PLACE OF CONTRIBUTION. Each Contribution shall
------------------------------------
commence at 9:00 a.m., EST, on the Contribution Date at the offices of Baker,
Donelson, Xxxxxxx & Xxxxxxxx, Xxxxx 0000 Xxxxx Xxxx Center, 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, or at such other place as may be agreed by NWI and
Weeks. The following adjustments and prorations shall be made on the
Contribution Date with respect to the Development Property to be Contributed on
that date by appropriate cash payments between NWI and Weeks.
-18-
a. NWI shall be entitled to all rents [including any additional rent
and any accrued tax and operating expense escalations, subject to
clause (ii) below], charges, and other revenue of any kind
attributable to any period under the Leases or otherwise up to but
not including the Contribution Date. Weeks shall be entitled to all
rents [including any additional rent and any accrued tax and
operating expense escalations, subject to clause (ii) below],
charges and other revenue of any kind attributable to any period
under the Leases or otherwise on and after the Contribution Date.
Rents and expense escalations or other reimbursements due landlord
under the Leases collected prior to the Contribution Date and
attributable to both NWI's and Weeks' periods of ownership shall be
prorated as of the Contribution Date. Uncollected rents and expense
escalations or other reimbursements due landlord under the Leases
shall not be prorated at the time of Contribution, but Weeks shall
include such amounts in Weeks' monthly billing statements to the
Tenants and tender the same to NWI upon receipt, provided that all
rents, escalations and other reimbursements due landlord under the
Leases collected by Weeks on or after the Contribution Date shall be
prorated as of the Contribution Date and shall first be applied to
all amounts due under the Leases at the time of collection (i.e.,
current rents, delinquent rents attributable to periods after
Contribution and sums due Weeks as the current owner and landlord)
with the balance (if any) payable to NWI, but only to the extent of
amounts delinquent and actually due NWI. NWI shall not have any
right to xxx any Tenant under the Leases for sums due NWI for
periods attributable to NWI's ownership of the Development Property.
NWI shall pay to Weeks a sum equal to all Security Deposits
(excluding certificates of deposit, letters of credit or the like
which shall be assigned to Weeks at Contribution to the extent
assignable by NWI, NWI agreeing to make reasonable efforts to cause
the same to be assignable by NWI or otherwise to be assigned to
Weeks) and pre-paid rentals held by NWI under the Leases.
b. Real estate taxes shall be prorated as of the Contribution Date. NWI
shall be responsible for all real estate taxes attributable to the
Development Property to, but not including the, Contribution Date.
If the real estate tax rate and assessments have not been set for
the year in which the Contribution occurs, then the proration of
such taxes shall be based upon the rate and assessments for the
preceding tax year, and such proration shall be adjusted in cash
between NWI and Weeks upon presentation of written evidence that the
actual taxes paid for the year in which the Contribution occurs
differ from the amounts used at Contribution. Notwithstanding the
foregoing, NWI shall be entitled to a refund of NWI's proportionate
share of such taxes for which NWI has not been reimbursed by
Tenants, to the extent Weeks after Contribution recovers an increase
in taxes attributable to the year in which Contribution occurs from
the Tenants under the Leases, and Weeks agrees to conduct an
-19-
annual reconciliation of tax "pass-through" for the tax year of
Contribution in accordance with the terms of the Leases.
Notwithstanding the foregoing provisions of this clause (ii) to the
contrary, NWI, may elect to defer payment to Weeks of its prorated
portion of the real estate taxes attributable to the Development
Property until such date as such real estate taxes are due, but not
past due, to the appropriate taxing authority and the obligation to
make such deferred payment shall be secured as provided in the
Partnership Amendment.
c. Operating expenses for the Development Property shall be prorated as
of the Contribution Date. NWI shall pay all utility charges and
other operating expenses attributable to the Development Property
for the period prior to but not including the Contribution Date
(except for those utility charges and operating expenses payable by
Tenants in accordance with the Leases) and Weeks shall pay all
utility charges and other operating expenses attributable to the
Development Property for the period on or after the Contribution
Date. If a Tenant defaults in the payment of its pro rata share of
utility charges or other operating expenses under its Lease, to the
extent that such utility charges or operating expenses are
attributable to any period prior to the Contribution Date, NWI shall
reimburse Weeks for such defaulted payment upon written demand from
Weeks and NWI's obligation to pay such sums shall be secured as
provided in the Partnership Amendment. NWI shall not assign to Weeks
any deposits which NWI has with any of the utility services or
companies servicing the Development Property. Weeks shall arrange
with such services and companies to have accounts opened in Weeks'
name beginning at 12:01 a.m. on the day following the Contribution
Date.
d. If the Development Property is to be contributed subject to an
Existing Loan in accordance with the terms and conditions of
Paragraph 9 of this Agreement, (i) NWI shall make a cash payment to
Weeks equal to the sum of the amount of accrued but unpaid interest
due under the Existing Loan attributable to any period up to, but
not including, the Contribution Date; and (ii) Weeks shall make a
cash payment to NWI equal to the amount of any tax, insurance
premium or other escrow deposits maintained pursuant to the Existing
Loan Documents to the extent ownership of such deposits are
transferred to Weeks.
e. If at any time following the Contribution Date the amount of an item
listed in the subparagraphs of this Paragraph 11 shall prove to be
incorrect, the party in whose favor the error was made shall
promptly pay to the other party the sum necessary to correct such
error upon receipt of proof of such error, provided that such proof
is delivered to the party from whom payment is requested on or
before one (1) year after the Contribution Date.
-20-
12. COSTS AND EXPENSES; PREPARATION OF DOCUMENTS. Costs and expenses
--------------------------------------------
shall be apportioned in the following manner:
a. Weeks shall pay the premium for title insurance, the survey fees and
recording costs related to each Contribution, as well as all costs
incurred by it in inspecting the Development Properties and making
such other investigations thereof as it deems appropriate. Weeks
also shall pay all fees and expenses incurred in the creation of
limited liability companies and their subsequent merger into Weeks
as contemplated in Paragraph 3 of this Agreement.
b. NWI shall pay all transfer taxes, if any, and any fees and expense
imposed by a Lender under Paragraph 9 hereof.
c. Each party shall pay its own attorneys' fees in connection with this
transaction.
d. Weeks' attorney shall prepare all Contribution documents, which
shall be subject to the reasonable approval of NWI's attorney and
which shall be substantially the same as the documents used in the
Initial Contribution.
13. ACCESS TO AND EXAMINATION OF THE DEVELOPMENT PROPERTIES. Weeks,
-------------------------------------------------------
personally or through agents, employees or contractors, may go upon the
Development Properties during normal business hours prior to Contribution to
conduct such soil, engineering, environmental and other tests, investigations
and analyses of the Land and Improvements as Weeks deems desirable and to review
and make photocopies of the Leases, lease commission agreements, Service
Contracts, amendments, contracts and plans and specifications relating to or
affecting the Development Properties. Weeks shall pay all costs incurred in
making such tests, analyses, copies, and investigations. In no event shall
Weeks conduct any intrusive or destructive tests, analyses, or investigations of
the Development Properties without first obtaining NWI's written consent, which
will not be unreasonably withheld. Weeks acknowledges that any such
examinations or inspections of the Development Properties pursuant to this
subparagraph or otherwise are subject to the rights of all Tenants, and Weeks
agrees to conduct such inspections or examinations in such a manner so as to
honor the rights of the Tenants and to prevent disruption of the ordinary
operation of the Tenants' business on the Development Properties. Weeks agrees
to repair any damage to the Development Properties resulting or relating to such
inspection or examination and agrees to and does hereby indemnify, defend, and
hold the NWI harmless from any personal injury, death, damage to property,
damages, liens, claims, losses, and liabilities arising out of Weeks' exercising
such right and privilege to go upon the Development Properties, including the
acts and omissions of Weeks' employees, agents, contractors and consultants (but
under no circumstances shall Weeks be liable to NWI for
-21-
consequential damages attributable to the results or findings of such tests).
Weeks' indemnity under this subparagraph shall survive the Contribution or any
termination of this Agreement.
14. REPRESENTATIONS AND WARRANTIES OF NWI. As of the date of this
-------------------------------------
Agreement, NWI hereby makes for the benefit of Weeks each and every
representation and warranty set forth in Exhibit E to the Partnership Amendment
---------
but as to and in respect of the Development Properties and not the "Completed
Properties" (as that term is defined in the Partnership Amendment).
15. REPRESENTATIONS AND WARRANTIES OF WEEKS. Weeks represents and
---------------------------------------
warrants to NWI, as follows:
a. Weeks is a limited partnership duly formed, validly existing and in
good standing under the laws of the State of Georgia. By the first
Contribution Date, Weeks will be qualified to transact business in
the State of Tennessee. Weeks has full power and authority to
execute and deliver this Agreement and all other documents executed
and delivered, or to be executed and delivered, by it
(contemporaneously herewith or at Contribution) in connection with
the transactions described herein and to perform all of its
obligations arising under this Agreement and such other documents;
the officers executing this Agreement and such other documents on
behalf of Weeks have the authority to bind Weeks hereunder and
thereunder.
b. Neither the execution and delivery of this Agreement nor any other
documents executed and delivered, or to be executed and delivered
by Weeks (contemporaneously herewith or at Contribution) in
connection with the transactions described herein will violate any
provision of Weeks's limited partnership agreement, articles of
incorporation or by-laws of Weeks's General Partner or of any
agreements, regulations, or laws to which Weeks is bound, except
for waivers and consents that have been obtained prior to the date
hereof.
c. To Weeks' knowledge, there is no action, suit, proceeding, or claim
affecting Weeks pending or being prosecuted in any court or by or
before any federal, state, county, or municipal department,
commission, board, bureau, agency, or other governmental
instrumentality which would prevent consummation by Weeks of the
Contribution of the Development Properties or materially and
adversely affect the performance of any of Weeks's other
obligations hereunder to be performed prior to, at or after
Contribution.
d. Weeks is solvent, has not made a general assignment for the benefit
of its creditors, and has not admitted in writing its inability to
pay its debts as they become due, nor has Weeks filed, nor does it
contemplate the filing of, any
-22-
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or any other proceeding for the relief of debtors in
general, nor has any such proceeding been instituted by or against
Weeks, nor is any such proceeding to Weeks' knowledge threatened or
contemplated.
16. CONDITIONS.
----------
a. In addition to any other conditions provided in this Agreement,
Weeks' obligation to accept Contribution of a Development Property
pursuant to this Agreement is subject to the satisfaction of each
of the following conditions at or prior to the Contribution Date
for that Development Property:
i. NWI shall have complied with and performed all of its
obligations and covenants set forth in this Agreement.
ii. On or before the Contribution Date, NWI shall have executed
and delivered all documents required to be delivered by NWI
pursuant to the terms of this Agreement. Additionally, NWI
shall have delivered to Weeks reasonable evidence of its
authority to consummate the transaction herein contemplated,
including without limitation, an opinion of counsel in form
and content reasonably acceptable to Weeks.
iii. All of the representations and warranties made by NWI in
Paragraph 14 shall be true correct at and as of the
Contribution Date as though such representations and
warranties were made both at and as of the date hereof and at
and as of the Contribution Date. Provided, further, the
representations and warranties concerning Rent Roll and
Leases, when reaffirmed at Contribution shall be made with
respect to a Rent Roll made as of Contribution and such Rent
Roll shall disclose no material changes from the Rent Roll
attached hereto as Exhibit I, except those approved by Weeks
---------
in writing.
iv. NWI shall have obtained and delivered to Weeks by the date and
time of Contribution a Tenant Estoppel Certificate for all
Leases then in effect in the Development Property, each duly
executed by an authorized officer of the Tenant under such
Lease and dated no earlier than thirty (30) days before the
Contribution Date. NWI agrees to use NWI's diligent good faith
efforts to obtain such Tenant Estoppel Certificates at or
prior to Contribution. Any material modification to the form
of Tenant Estoppel Certificate shall be approved in writing by
Weeks in advance and, in Weeks' discretion, may be the basis
upon
-23-
which Weeks excludes such certificate in the determination as
to whether this condition has been satisfied. During the term
of this Agreement, as and when received, NWI shall provide to
Weeks copies of each Tenant Estoppel Certificate received from
any Tenant promptly after receipt of such Tenant Estoppel
Certificate. Weeks shall have the right to delay Contribution
by up to thirty (30) days by written notice to NWI if NWI has
not obtained the required Tenant Estoppel Certificates.
v. No material adverse change shall have occurred to the
Development Properties.
vi. NWI shall have completed construction of the Improvements as
required under this Agreement as evidenced by the foregoing
(A) final, unconditional certificate(s) of occupancy for the
building shell(s) and each leased tenant space shall have been
issued by the appropriate governmental authority; (B) the
building shell(s) and each leased tenant space shall have been
completed substantially in accordance with plans and
specifications approved by Weeks, subject only to customary
punch list items approved by Weeks and appropriate reserves
established with Weeks to Weeks' reasonable satisfaction for
such items; (C) all contractors shall have been paid-in-full
and released any lien rights in the Development Property and
appropriate evidence of such shall have been furnished to
Weeks including, without limitation, a final general
contractor's affidavit and lien waiver, if applicable; and (D)
Weeks shall have inspected and accepted the Improvements.
vii. Weeks shall have obtained title insurance coverage on ALTA
Form Policy issued by a title insurance company approved by
Weeks, in an amount not in excess of the Contribution Value,
and specifying as exceptions to coverage only the Permitted
Exceptions.
viii. The limited liability company formed for the Contribution of
the Development Property in question pursuant to Paragraph 3
hereof shall be wholly-owned by NWI, shall own only the
Development Property as its sole business activity and shall
have no indebtedness, other than the applicable Existing Loan.
ix. The contingencies set forth in this Paragraph 16(a) are for
the sole benefit of Weeks, and Weeks may elect in writing to
waive any such contingency reserved for its benefit and
proceed to consummate the transaction contemplated hereby.
-24-
b. In addition to any other conditions provided in this Agreement,
NWI's obligation to contribute a Development Property is subject to
the satisfaction of each of the following conditions at or prior to
the Contribution Date for that Development Property:
i. Weeks shall have complied with and performed all of its
obligations and covenants set forth in this Agreement.
ii. On or before the Contribution Date, Weeks shall have
executed and delivered all documents required to be
delivered by Weeks pursuant to the terms of this Agreement,
and shall have issued Units to NWI as required under
Paragraph 7 hereof. Additionally, Weeks shall have delivered
to NWI reasonable evidence of its authority to consummate
the transaction herein contemplated, including without
limitation, an opinion of counsel in form and content
reasonably acceptable to NWI.
iii. The contingencies set forth in this Paragraph 16(b) are for
the sole benefit of NWI, and NWI may elect in writing to
waive any such contingency reserved for its benefit and
proceed to consummate the transaction contemplated hereby.
17. FIRE AND CASUALTY. Prior to the Contribution of a Development
-----------------
Property, the risk of loss shall remain with NWI and NWI shall bear all
ownership risks and obligations, including construction risks and the risk of
cost overruns. NWI shall maintain in effect until the Contribution Date all
insurance policies currently in force with respect to the Development Property
to be contributed including liability insurance and fire and extended coverage
insurance. If at any time prior to the Contribution Date any portion of the
Development Properties is destroyed or damaged as a result of fire or any other
casualty (a "Casualty"), NWI shall promptly give written notice (a "Casualty
Notice") thereof to Weeks. If a Development Property is the subject of a
Casualty, Weeks shall have the right, at its sole option, of terminating this
Agreement (by written notice to NWI given within thirty (30) days after receipt
of the Casualty Notice from NWI) as to that Development Property, unless
(a) (i) all such damage or destruction is repaired at the sole cost
and expense of NWI prior to Contribution to substantially the condition existing
immediately prior to such damage or destruction, or (ii) the cost to fully
repair or restore such damage is less than Two Hundred Fifty Thousand Dollars
($250,000) and either (x) insurance proceeds sufficient to restore fully such
damage are available and the insurance company issuing NWI's insurance policies
has confirmed in writing prior to the expiration of such thirty (30) day period
that such Casualty is covered by such policies and that no defense to payment of
the claim on
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account thereof exists, or (y) NWI gives Weeks a credit at Contribution (the
"Credit") in an amount equal to the deficiency in any insurance proceeds
described in clause (x); and
(b) such Casualty (i) does not result in any Tenant terminating its
Lease or asserting a right to terminate its Lease, and (ii) would not entitle
any Tenant to terminate its Lease after Contribution if such Tenant has not
waived such right as of Contribution.
If a Casualty Notice is given to Weeks less than thirty (30) days prior to
Contribution, at Weeks' option Contribution shall be postponed to a date not
earlier than thirty (30) days after Weeks' receipt of the Casualty Notice. If
Weeks terminates this Agreement pursuant to this Paragraph, then this Agreement
shall terminate and the parties hereto shall have no further rights or
obligations hereunder, with regard to that Development Property. If Weeks does
not terminate this Agreement, the proceeds of any insurance with respect to the
Development Property paid between the date of this Agreement and the
Contribution Date, together with the Credit if applicable, shall be paid to
Weeks at the time of Contribution and all unpaid claims and rights in connection
with property damage to the Development Properties shall be assigned to Weeks at
Contribution without in any manner affecting the Adjusted Contribution Value.
18. EMINENT DOMAIN. In the event of a taking by condemnation or
--------------
eminent domain proceedings of any material portion of a Development Property
[prior to Contribution, NWI shall promptly give written notice thereof to Weeks
and Weeks shall have the right, at its sole option, of terminating this
Agreement as to that Development Property by written notice given to NWI on or
before the tenth (10th) day following receipt of such notice. If Weeks so
terminates this Agreement as to that Development Property, then this Agreement
shall terminate as to that Development Property, and the parties hereto shall
have no further rights or obligations hereunder. If Weeks does not terminate
the Agreement pursuant to this Paragraph as to that Development Property, then
NWI shall pay over to Weeks on the Contribution Date all monies received or
collected by NWI by reason of such taking, and NWI shall further assign and
transfer to Weeks all of NWI's right, title and interest of, in and to any
awards that have been or may be made for such condemnation or eminent domain
proceedings and the additional money that may be payable when the same is and
becomes assignable as a matter of law.
19. DEFAULT.
-------
a. If Weeks defaults hereunder, NWI may either proceed against Weeks
at law for damages or seek specific performance of Weeks'
obligations hereunder.
b. If NWI defaults hereunder, Weeks may either proceed against NWI at
law for damages or seek specific performance of NWI's obligations
hereunder. After notice as provided in Paragraph 19(c) below, and
lapse of cure period without cure by NWI, Weeks may elect to cure
NWI's default hereunder and NWI shall promptly, upon demand,
reimburse Weeks for all costs and expenses
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incurred in cure, including interest on such costs and expenses, at
a rate equal to the sum of the "Prime Rate" (as announced from time
to time by Wachovia Bank of Georgia, N.A.) plus two percent (2.0%),
per annum, from the date incurred until the date of reimbursement,
and upon Contribution of the Development Property in question, if
ever, the Contribution Value and Adjusted Contribution Value for
such Development Property shall be reduced by such costs and
expenses of cure and accrued interest thereon.
c. Prior to exercising any of its rights hereunder or at law or in
equity for a default, a party shall give the other party written
notice of such default hereunder and the other party shall have
thirty (30) days to cure such default from and after such notice.
20. BROKERAGE FEES. Except for brokers paid-in-full at the Initial
--------------
Contribution pursuant to separate written agreements that cover the transactions
contemplated in this Agreement as well as the Initial Contribution and other
related transactions, NWI and Weeks each represent and warrant to the other that
it has not employed, retained, or consulted any broker, agent, or finder in
connection with this Agreement or the Contribution, and NWI and Weeks each
hereby indemnify and agree to hold the other harmless from and against any and
all claims, demands, causes of action, debts, liabilities, judgments and damages
(including costs and reasonable attorneys' fees incurred in connection with the
enforcement of this indemnity) which may be asserted or recovered against the
indemnified party for or on account of any brokerage fee, commission, or other
compensation arising by reason of the indemnitor's breach of this representation
and warranty.
21. ADDITIONAL UNIT EARNOUT. Weeks hereby grants to NWI the right to
-----------------------
have additional Units issued to NWI in consideration of NWI's contribution of
the Development Properties to the capital of Weeks, upon and subject to the
following terms and conditions:
a. In addition to the terms defined in Paragraph 1 of this Agreement,
the following definitions also shall apply:
i. "Aspen Grove Contribution Agreement" means that certain
----------------------------------
Contribution Agreement, dated of even date herewith, by and
between NWI and Weeks concerning the contribution of the
"Core Parcel", the "FEMA Parcel" and the "Out Parcel" (as
those terms are defined in the Aspen Grove Contribution
Agreement) (collectively, as used in this Paragraph 00, xxx
"Xxxxx Xxxxx Xxxx").
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ii. "Xxxxxx Parkway Land" means that certain tract or parcel of
-------------------
land consisting of approximately 58 acres located in Davidson
County, Tennessee, as more particularly described in Exhibit
P, attached hereto and by this reference made a part hereof.
iii. "Development Properties Consideration" means the aggregate
------------------------------------
of the Adjusted Contribution Value for each Development
Properties, as determined pursuant to Paragraph 6 of this
Agreement for each Development Property as of the
Contribution Date of that Development Property plus, if a
Development Property was contributed subject to an Existing
Loan, the outstanding principal balance of that loan as of
the Contribution Date.
iv. "Earnout Contribution Value" means (i) in the case of a
--------------------------
Tract in the Xxxxxx Parkway Land, the payment by Weeks to
NWI at Contribution to reimburse NWI for its out-of-pocket
expenditures for the acquisition of the Xxxxxx Parkway Land,
including the down payment, brokerage fees, closing costs
and taxes and insurance, plus the costs of carry on those
items from the date paid, plus the outstanding principal
balance of the purchase money debt assumed at Contribution,
all allocated to that Tract on the basis of the number of
square feet of planned development for the Xxxxxx Parkway
Land, and (ii) in the case of a Tract in the Aspen Grove
Land, the sum of the Contribution Value of that Tract
determined as provided in the Aspen Grove Contribution
Agreement plus, in the case of any Tract from the Core
Parcel of the Aspen Grove Land, the aggregate Unit Price
(determined as of the date of issuance) of any Units issued
to NWI as of the "Revaluation Date" (as that term is defined
in the Aspen Grove Contribution Agreement) as provided in
the Aspen Grove Contribution Agreement.
v. "Excess Tract Value" means, as of the Valuation Date, the
------------------
excess, if any, of the Tract Value over the Total
Development Cost of that Tract.
vi. "Interest Rate", for a Tract, means an annual rate equal to
-------------
Weeks' weighted average borrowing rate under its principal
revolving credit facility (London Interbank Offering Rate,
plus applicable margin, option) for the period from and
including the date of Contribution for that Tract (the date
of Contribution for Tracts in the Xxxxxx Parkway Land is the
date of this Agreement) to and including the Valuation Date
for that Tract plus .75% (75 basis points).
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vii. "Minimum Value" means the sum of (A) Thirty-Eight Million
-------------
Seven Hundred Fifty-Five Thousand Dollars ($38,755,000), plus
(B) the aggregate additional amount expended by NWI for tenant
improvements and allowances and lease commissions for the
Development Properties as approved by Weeks due to increases
in the office finish percentages for the Development
Properties above the Pro Forma Level of Office Finish, minus
(C) an amount equal to the sum of (1) the aggregate decrease
in the amount expended for tenant improvements and allowances
and lease commissions due to decreases in the office finish
percentages for the Development Properties below the Pro Forma
Level of Office Finish, and (2) the product of Eighty-Two
Thousand Dollars ($82,000) times the number of acres, or
fraction thereof, within the FEMA Parcel (as that term is
defined in the Aspen Grove Contribution Agreement) in excess
of three (3) acres which are determined not to be subject to
flood plain restrictions upon conclusion of the FEMA study of
the FEMA Parcel.
viii. "Operating Expense Deficit" or "Operating Expense
------------------------- -----------------
Surplus", for a Tract for the period from the date of issuance
-------
of a certificate of occupancy for the first building shell
constructed on that Tract until 95% Stabilization of that
Tract means, in the case of an Operating Expense Deficit, the
excess of operating expenses (e.g., property taxes, insurance
---
premiums, utility charges, maintenance expenses, management
fees and other customary expenses) incurred over gross rental
income and operating expense reimbursables collected for that
same period and, in the case of an Operating Expense Surplus,
the excess of gross rental income and operating expense
reimbursables collected over operating expenses incurred for
that period.
ix. "Remaining Shortfall Balance" means, at any date the excess,
---------------------------
if any, of the Shortfall Amount over the aggregate of the Unit
Price (determined as the date of issuance) of all Units issued
to NWI as of that date pursuant to this Paragraph 21. Once the
Remaining Shortfall Balance is reduced to zero or less, NWI
shall be entitled to no further Units under this Paragraph 21.
x. "Shortfall Amount" means the amount, if any, by which the
----------------
Minimum Value exceeds the Development Properties
Consideration.
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xi. "Total Development Cost", for a Tract, means the total of
----------------------
(i) all costs and expenses incurred through the Valuation Date
in acquisition, development, construction and lease-up of that
Tract and the building(s) located thereon, including without
limitation the Earnout Contribution Value of that Tract, site
preparation costs and expenses, construction costs and fees,
tenant finish costs and expenses, lease commissions, property
taxes and any other items which would be capitalized under
generally accepted accounting principles (excluding interest),
plus (ii) Operating Expense Deficit (or less Operating Expense
Surplus), plus (iii) a fee for development equal to five
percent (5%) of the pro forma project cost budget, plus (iv)
an amount computed like simple interest thereon at the
Interest Rate on sum of the foregoing components as and when
funded by Weeks (and the Earnout Contribution Value will be
deemed to have been incurred on the date of the contribution
of the Tract).
xii. "Tract" means a portion of the Xxxxxx Parkway Land or the
-----
Aspen Grove Land and any Improvements constructed thereon,
if any.
xiii. "Tract Value" means the value of a Tract determined as
-----------
of the Valuation Date by dividing the Net Operating Income of
that Tract, determined as of the Valuation Date, by decimal
one zero two five (.1025).
xiv. "Unit Value", for the purposes of this Paragraph 21, shall
----------
mean the arithmetic average of the daily closing price of a
share of common stock of Weeks Corporation on the New York
Stock Exchange for the twenty (20) business days immediately
prior to the Valuation Date.
xv. "Valuation Date" means the earlier of the date on which a
--------------
Tract achieves 95% Stabilization (if there are more than one
building on a Tract when all buildings on said tract achieve
95% Stabilization) or December 31, 2010. There shall be only
one Valuation Date per Tract.
b. All of the Development Properties shall have been contributed to
Weeks pursuant to this Agreement.
c. On or before April 30, 1998, Weeks and NWI shall determine in
writing if a Shortfall Amount exists as of March 31, 1998. If no
Shortfall Amount exists as of that date, NWI shall have no further
right to receive Units pursuant to this Paragraph 21. If a
Shortfall Amount exists, then NWI shall have the right to receive
additional Units as provided in this Paragraph 21.
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d. Within thirty (30) days after the Valuation Date for a Tract, Weeks
shall issue to NWI a number of Units equal to the lesser of the (i)
Excess Tract Value or (ii) the Remaining Shortfall Balance, divided
by the Unit Value. Any Units issued to NWI pursuant to this
Paragraph 21 shall be held subject to the Rights Agreements and the
Partnership Amendment. Any potential Fractional Units shall be
handled as provided in Paragraph 7(e) of this Agreement.
22. MISCELLANEOUS.
-------------
a. Notwithstanding any provision of this Agreement to the contrary, (i)
Airpark Center XII Development Property and 440 Business Center I
Development Property may be contributed to Weeks as part of the
Initial Contribution in order to accommodate applicable platting
restrictions and/or lender requirements and (ii) at the time Aspen
Grove I Development Property is contributed to Weeks pursuant to
this Agreement, Aspen Grove II Development Property may be
contributed to Weeks as part of that same transaction to accommodate
applicable platting restrictions even though it is not eligible for
Contribution to Weeks pursuant to the terms of this Agreement. Even
though such Development Properties may be contributed to Weeks prior
to being eligible for Contribution to Weeks under this Agreement,
(i) Weeks and NWI agree that all of the benefits and burdens of
ownership, and the risk of loss, shall remain with NWI, subject to
this Agreement, and (ii) such Development Properties shall be
treated in the same manner as the other Development Properties under
this Agreement including, without limitation, issuance of Units,
calculation of Gross Income, calculation of Net Operating Income,
determination of Contribution Value and determination of Adjusted
Contribution Value and responsibilities for completion of
Improvements and funding of carrying costs.
b. Weeks shall not assign, sell, convey or otherwise transfer any or
all its rights under this Agreement without the prior written
consent of NWI. NWI shall not assign, sell, convey, or otherwise
transfer any or all of the Development Properties or its rights
under this Agreement without the prior written consent of Weeks. No
such assignment by NWI or Weeks shall relieve or release the
assigning party of any liability hereunder. Subject to the
foregoing, this Agreement and the terms and provisions hereof shall
inure to the benefit of and be binding upon the successors and
assigns of the parties.
c. This Agreement and the other "Transaction Documents" (as that term
is defined in the Partnership Amendment) supersedes all prior
agreements between the parties hereto with respect thereto. No claim
of waiver, modification, consent or acquiescence with respect to any
of the provisions of this Agreement shall be made against either
party, except on the basis of a written instrument executed by or on
behalf of such parties.
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d. This Agreement shall be governed by and construed in accordance with
the laws of the State of Tennessee.
e. The headings of the several paragraphs and subparagraphs of this
Agreement are inserted solely for the convenience of reference and
are not a part of and are not intended to govern, limit, or aid in
the construction of any term or provision hereof, except otherwise
provided in Paragraph 1 of this Agreement.
f. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words of a singular
number shall be held to include the plural and vice versa, unless
the context requires otherwise.
g. Any notice, request or other communication (a "notice") required
------
or permitted to be given hereunder shall be in writing and be
delivered by hand or overnight courier (such as UPS Next Day Air) or
mailed by United States registered or certified mail, return receipt
requested, postage prepaid and addressed to each party at its
address as set forth below. Any such notice shall be considered
given on the date of such hand or courier delivery, deposit with
such overnight courier for next business day delivery, or deposit in
the United States mail, but the time period (if any is provided
herein) in which to respond to such notice shall commence on the
date of hand or courier delivery or on the date received following
deposit in the United States mail as provided above. Rejection or
other refusal to accept or inability to deliver because of changed
address of which no notice was given shall be deemed to be receipt
of the notice. By giving at least five (5) days' prior written
notice thereof, any party may from time to time and at any time
change its mailing address hereunder. Any notice of any party may be
given by such party's counsel. The parties respective notice
addresses are as follows:
Weeks: Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx,
Vice Chairman/Chief
Investment Officer
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With Copy To: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
NWI: NWI Warehouse Group, L.P.
0000 Xxxxxxxx Xxxx
Xxxxx X-0
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Xx.,
Chief Financial Officer
h. If any provision of this Agreement or the application thereto to any
person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such
provisions to the other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent
permitted by law.
i. Nothing in this Agreement shall be construed as giving any person,
firm, corporation, or other entity, other than the parties hereto,
their successors and assigns, any rights, remedy or claim under or
in respect to this Agreement or any provision hereof.
j. This Agreement may be executed in any number of counterparts, each
of which so executed shall be deemed an original; such counterparts
together shall constitute the one agreement.
k. Time is of the essence of this Agreement; provided, however, that if
-------- -------
the time within which any action, consent, approval, or other
activity herein contemplated, expires on a Saturday, Sunday, or
legal holiday, such time period shall automatically be deemed
extended to the first day after the scheduled termination of such
time period which is not a Saturday, Sunday, or legal holiday.
l. No failure or delay by a party to exercise any right it may have by
reason of the default of the other party shall operate as a waiver
of default or modification of this Agreement or shall prevent the
exercise of any right by the first party while the other party
continues to be so in default.
m. All representations, warranties and agreements of NWI and Weeks
contained in this Agreement shall not be merged into the
Contribution documents and shall survive Contribution subject to the
provisions of the Partnership Amendment.
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n. In the event of a breach of this Agreement by either party, the non-
breaching party shall be entitled to recover all costs associated
with enforcing this Agreement, including reasonable attorneys' fees
and expenses actually incurred.
o. NWI agrees not to offer to any party other than Weeks, the
Development Properties, or any portion thereof or any interest
therein, for sale or lease, except for the leasing of space pursuant
to the terms of this Agreement, and NWI agrees not to negotiate,
solicit or entertain any offers from or with any party other than
Weeks, to purchase or lease the property, or any portion thereof or
any interest therein, except for the leasing of space as aforesaid.
p. Contemporaneously with the execution and delivery of this Agreement,
Weeks and NWI shall enter into a short form memorandum of this
Agreement, which shall be recorded in the public records of Davidson
and Xxxxxxxxxx Counties, Tennessee, to give notice of Weeks'
interest in the Development Properties pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above stated.
WEEKS:
-----
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc.,
a Georgia corporation,
its Sole General Partner
By:
-----------------------------
Xxxxxx X. Xxxxxxxx
Vice Chairman and
Chief Investment Officer
NWI:
---
NWI WAREHOUSE GROUP, L.P.
BY: NWI X, L.P., its Sole
General Partner
BY:
----------------------------------
Xxxx X. Xxxxxx, Xx.,
General Partner
BY:
---------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
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