EXHIBIT 10.1
THIRD AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS THIRD AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. is entered into as of the 31st day of
January, 1997, by and among XXXXXXXX X. XXXXXX, an individual resident of North
Carolina, XXXX X. XXXXXXXX, an individual resident of Virginia, F. XXXXXXX
XXXXXXXX, an individual resident of North Carolina, XXXXX X. XXXXXX, an
individual resident of Virginia and REGENCY FOREST LLC, a North Carolina limited
liability company (Xxxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxx, F. Xxxxxxx Xxxxxxxx,
Xxxxx X. XxXxxx and Regency Forest LLC are collectively referred to hereafter as
the "Contributors" and "Contributor" shall hereafter mean any one of the
Contributors), WEEKS GP HOLDINGS, INC., a Georgia corporation (the "General
Partner"), and WEEKS CORPORATION, a Georgia corporation (the "Company").
RECITALS
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Weeks Realty, L.P. (the "Partnership") is a Georgia limited partnership
authorized to do business in the State of North Carolina as Weeks Realty Limited
Partnership. The General Partner is the sole general partner of the Partnership
and is a wholly owned subsidiary of the Company. The partnership agreement of
the Partnership is that certain Second Amended and Restated Agreement of Limited
Partnership of Weeks Realty, L.P., dated as of October 30, 1996 (the
"Partnership Agreement") as amended by the First Amendment to the Partnership
Agreement dated November 1, 1996, and the Second Amendment to the Partnership
Agreement dated December 31, 1996. Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Partnership
Agreement.
Pursuant to the agreements and instruments listed or referred to on Exhibit
A hereto (the ("Transaction Documents"), and the transactions effected by the
Transaction Documents, effective as of the date hereof the Contributors have
contributed, directly or indirectly, certain properties to the capital of the
Partnership.
Pursuant to the Partnership Agreement (including, without limitation,
Section 9.3 and Section 15.7(b)(ii) thereof), the General Partner is authorized
(without the consent of any Limited Partner) to admit additional Limited
Partners to the Partnership for such Capital Contributions as are determined by
the General Partner to be appropriate, and to amend the Partnership Agreement to
reflect such admissions.
The General Partner wishes to amend the Partnership Agreement as set forth
herein to reflect the admission of the Contributors as Limited Partners of the
Partnership, and the Contributors wish to enter into this Third Amendment to
memorialize their agreement as to certain matters relating to their becoming
Limited Partners of the Partnership.
AGREEMENT
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In consideration of the circumstances referred to in the Recitals, the
consummation of the transactions effected pursuant to the Transaction Documents,
the mutual covenants and agreements contained herein, and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Admission. The Contributors are hereby admitted to the Partnership as
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Limited Partners, effective as of the date hereof, and each of the Contributors
hereby agrees to be bound by the Partnership Agreement, including, but not
limited to, the transfer restrictions contained in Article IX thereof.
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2. Capital Contributions. The Contributors are agreed to have made, as
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of the date hereof, the Capital Contributions set forth on Exhibit B hereto.
The agreed to gross fair market values of any property other than money
contributed by each of the Contributors, which shall be such property's initial
Gross Asset Value, are shown on Exhibit B.
3. Initial Partnership Units; Rights.
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(a) The Partnership Units attributable to the Partnership Interests of
the Contributors, effective upon their admission as Limited Partners at the
date hereof, are as set forth on Exhibit B hereto, and the Partnership
Agreement is hereby amended to reflect the Contributors' having such
Partnership Units.
(b) The Partnership does hereby grant to each of the Contributors, and
each of them does hereby accept, the right, but not the obligation (herein
such rights being sometimes referred to as the "Rights"), to require the
Partnership to redeem all or a portion of the Partnership Units issued to
them pursuant to the Transaction Documents, on the terms and subject to the
conditions and restrictions contained in Exhibit D hereto. The Rights are
governed solely by this Third Amendment and Exhibit D hereto, and none of
the Contributors shall have any rights with respect to the "Rights"
provided for in Section 11.1 and Exhibit B-1 to the Partnership Agreement.
The Rights granted hereunder may be exercised by any one or more of the
Contributors, on the terms and subject to the conditions and restrictions
contained in Exhibit D hereto, upon delivery to the Partnership of a
Conversion Exercise Notice, in the form of Schedule 1 attached to Exhibit
D, which notice shall specify the Partnership Units with respect to which
the Rights are being exercised. Once delivered, the Conversion Exercise
Notice shall be irrevocable, subject to compliance by the General Partner
and the Partnership with the terms of the Rights.
4. Restated Percentage Interests. After giving effect to the admission
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of the Contributors as Limited Partners at the date hereof, the Percentage
Interests of all of the Partners
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have been revised and are as reflected on Exhibit C hereto, and the Partnership
Agreement is hereby amended accordingly.
5. Proration of Distributions. Notwithstanding any contrary provision of
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the Partnership Agreement, including, without limitation, Section 6.2 thereof,
the Contributors agree that the distribution of Net Operating Cash Flow made for
the calendar quarter ending March 31, 1997, by reason of each Capital
Contribution made pursuant to the Transaction Documents shall be equal to the
amount of Net Operating Cash Flow otherwise distributable with respect to such
under the terms of the Partnership Agreement, multiplied by a fraction, the
numerator of which is the number of calendar days beginning on the date hereof
and the denominator of which is the total number of days in the calendar quarter
ended March 31, 1997.
6. Representations and Warranties.
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(a) Contributors' Representations. Each Contributor, severally and
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not jointly, hereby represents and warrants to the Partnership and the
General Partner that (i) such Contributor is acquiring the Partnership
Units for his or her own account and not with a view to, or for sale in
connection with, the "distribution," as such term is used in Section 2(11)
of the Securities Act of 1933, as amended (the "Securities Act"), of any of
the Partnership Units in violation of the Securities Act; (ii) such
Contributor is an "accredited investor," as that term is defined in Rule
501(a) of Regulation D promulgated under the Securities Act; (iii) such
Contributor understands that the Partnership Units have not been registered
under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among
other things, the nature of the investment intent and the accuracy of such
Contributor's representations as expressed herein; (iv) such Contributor
has had an opportunity to discuss the Partnership's business, management
and financial affairs with the Partnership's management and the opportunity
to review the Partnership's financial records; (v) such Contributor
understands and acknowledges that no public market now exists for any of
the Partnership Units and that
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there can be no assurance that a public market will ever exist for the
Partnership Units; and (vi) such Contributor has such knowledge and
experience in financial and business matters that such Contributor is
capable of evaluating the merits and risks of the purchase of the
Partnership Units pursuant to this Agreement and of protecting the
Contributor's interests in connection herewith.
(b) No Liens. Each Contributor, severally and not jointly, represents
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and warrants to the Partnership and the General Partner that at the date
hereof none of the Partnership Units issued or issuable to him or her
pursuant to the Transaction Documents, and none of the shares of Common
Stock that may be acquired by him or her upon exercise of Rights, is
subject to any Lien, other than the security interest created by paragraph
9 hereof.
(c) Definition. All of the representations, warranties, covenants and
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agreements of each of the Contributors referred to in this paragraph 6 are
referred to collectively as the "Representations and Warranties."
(d) General Partner Representations. The General Partner represents
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and warrants to each of the Contributors as follows:
(i) Organization. The General Partner is duly incorporated,
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validly existing and in good standing under the laws of the State of
Georgia.
(ii) Due Authorization; Binding Agreement. The execution,
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delivery and performance of this Third Amendment by the General
Partner have been duly and validly authorized by all necessary action
of the General Partner and the Partnership. This Third Amendment has
been duly executed and delivered by the General Partner and
constitutes a legal, valid and binding obligation of the General
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Partner and the Partnership, enforceable against the General Partner
and the Partnership in accordance with the terms hereof.
(iii) Consents and Approvals. No consent, waiver, approval or
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authorization of, or filing, registration or qualification with, or
notice to, any governmental unit or any other Person is required to be
made, obtained or given by the General Partner in connection with the
execution, delivery and performance of this Third Amendment, other
than consents, waivers, approvals or authorizations that have been
obtained prior to the date hereof.
(iv) Partnership Units. The Partnership Units issued pursuant
-----------------
to the Transaction Documents are duly authorized and, when issued in
accordance with the Transaction Documents, will be duly issued, fully
paid and nonassessable and will be unencumbered except for the
security interest created by paragraph 9 hereof.
7. Survival of Representations and Warranties. All of the
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Representations and Warranties shall survive the consummation of the
transactions contemplated by the Transaction Documents; provided, however, that
no claim for a breach of any Representation or Warranty may be maintained by the
Partnership or the General Partner unless the Partnership or the General Partner
shall have delivered a written notice ("Notice of Breach") specifying the
details of such claimed breach to the respective Contributor or before the third
anniversary of the date hereof.
8. Indemnification.
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(a) Each of the Contributors indemnifies and holds harmless the
Partnership and the General Partner against and from all liabilities,
demands, claims, actions or causes of action, assessments, losses, fines,
penalties, costs, damages and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and expenses actually
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incurred) sustained or incurred by the Partnership or the General Partner
as a result of or arising out of any inaccuracy in or breach of such
Contributor's Representation or Warranty.
(b) The Partnership and the General Partner shall not be entitled to
indemnification hereunder unless a Notice of Breach has been delivered by
the Partnership or the General Partner to the applicable Contributor.
(c) If a claim for indemnification is asserted by the Partnership or
the General Partner against a Contributor, such Contributor shall have the
right, at his or her own expense, to participate in the defense of any
claim, action or proceeding asserted against the Partnership or the General
Partner that resulted in the claim for indemnification, and if such right
is exercised, the parties shall cooperate in the defense of such action or
proceeding.
(d) Indemnification of the Partnership and the General Partner
pursuant to this paragraph 8 and the remedies in respect thereof as set
forth in paragraph 9 hereof shall be the exclusive remedy of the
Partnership and the General Partner for any breach of any Representation or
Warranty, and the only legal action that may be asserted against a
Contributor under this paragraph 8 for breach of a Representation or
Warranty shall be to pursue the remedies in respect thereof as set forth in
paragraph 9 hereof.
9. Security and Remedies.
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(a) Each of the Contributors hereby grants to the Partnership a lien
upon and a continuing security interest in the Partnership Units issued to
each of them pursuant to the Transaction Documents at the date hereof and
the shares of Common Stock acquired by each of them upon exercise of Rights
with respect to such Partnership Units (the "Collateral"), which shall be
security for the indemnification obligations of each of the Contributors
under paragraph 8 hereof. Except as otherwise provided in this Third
Amendment, the indemnification obligations of each of the
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Contributors hereunder with respect to breaches of Representations and
Warranties shall be payable out of such Contributor's entire Collateral;
provided, however, that a Contributor may satisfy all or any part of such
indemnification obligation of such Contributor in cash if such Contributor
so elects. Any Transfer by a Contributor of his or her Collateral shall be
subject to the lien and security interest granted hereby.
(b) In the event the General Partner asserts that a Contributor has an
indemnification obligation to the Partnership or the General Partner under
paragraph 8 hereof, the General Partner shall deliver written notice (the
"Indemnification Notice") to such Contributor describing in reasonable
detail the circumstances giving rise to such obligation and the amount
thereof. If, within thirty (30) days after the receipt of an
Indemnification Notice, the Contributor delivers written notice to the
General Partner indicating that the Contributor disputes the circumstances
giving rise to or the amount of such claimed indemnification obligation,
the General Partner may submit such matter for binding arbitration in
accordance with the provisions of Article XIV of the Partnership Agreement
by delivering a Demand Notice to the Contributor pursuant to such Article
XIV. If, after receiving timely notice of a dispute hereunder from the
Contributor, the General Partner fails to so submit the matter for
arbitration within twenty (20) days after receipt of such notice from the
Contributor, then the Contributor shall be relieved of the claimed
indemnification obligation described in the Indemnification Notice. In the
event the Contributor (i) receives an Indemnification Notice and fails to
timely deliver notice to the General Partner of his or her dispute as to
the indemnification obligation and fails to make payment within thirty (30)
days after delivery of an Indemnification Notice or (ii) has an
indemnification obligation to the Partnership or the General Partner under
paragraph 8 hereof as determined pursuant to Article XIV of the Partnership
Agreement, and does not satisfy such obligation within ten (10) days after
the decision rendered in the arbitration, then, in either event, the
Partnership shall have any and all remedies of a
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secured creditor under the Uniform Commercial Code, and, in addition
thereto, at the election of the Partnership, the Partnership shall, to the
extent permitted by law, be deemed, without the payment of any further
consideration or the taking of any further action required by the
Contributor, to have acquired from the Contributor such portion of the
Collateral as shall be equal in value (based, in the case of Partnership
Units, on the Current Per Share Market Price as computed as of the date
immediately preceding such deemed acquisition of the number of shares of
Common Stock for which such Partnership Units could be redeemed if the
General Partner assumed the redemption obligation and elected to pay the
Redemption Price (as defined in Exhibit D) in shares of Common Stock
(assuming the ownership limits in the Articles of Incorporation would not
prohibit the issuance of any such shares of Common Stock to the
Contributor), and, in the case of shares of Common Stock, on the Current
Per Share Common Stock Price computed as of the date immediately preceding
such deemed acquisition) to the amount recoverable from the Contributor
under paragraph 8 hereof. In the event the Partnership shall have acquired
from a Contributor any Collateral pursuant to this paragraph 9, the General
Partner shall deliver written notice to such Contributor within ten (10)
days thereafter identifying the specific Collateral acquired and, if such
Collateral consists of Partnership Units, the Percentage Interests of the
Contributor following such acquisition. Unless and until the Partnership
shall have acquired from a Contributor any Collateral pursuant to this
paragraph 9, the Contributor shall retain all rights with respect to the
Collateral not expressly limited herein or in the Partnership Agreement,
including, without limitation, rights to distributions provided for in the
Partnership Agreement and rights to dividends on shares of Common Stock.
Each Contributor hereby agrees to take any and all actions and to execute
and deliver any and all documents or instruments necessary to perfect the
security interest created by this Third Amendment, including delivering the
certificates representing the Partnership Units or shares of Common Stock
to the General Partner.
10. Recourse. Notwithstanding anything contained in this Third Amendment
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or in the Partnership Agreement to the contrary, the recourse of the General
Partner or the Partnership
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under paragraph 8 hereof with respect to breaches of Representations and
Warranties of any Contributor shall not be limited to such Contributor's
Collateral.
11. Restriction on Transfer. In connection with the security interests
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granted by the Contributor under paragraph 9 hereof, each of the Contributors
agrees that any shares of Common Stock and any portion of the Contributor's
Partnership Interests included in the Collateral shall not be Transferred
without the consent of the General Partner; provided, however, that each of the
Contributors may Transfer all or any portion of such shares of Common Stock or
Partnership Interests to an Affiliate of such person (so long as such Affiliate
remains an Affiliate of such person), subject to the prior security interest
granted in paragraph 9 hereof and to the restrictions contained in Article IX of
the Partnership Agreement. Upon exercise of the Rights with respect to any
Partnership Units included in a Contributor's Collateral, the Partnership, in
perfection of the security interest herein granted, shall retain the
certificate(s) representing the portion of the Common Stock issued upon such
exercise that is included in such Collateral. If any portion of the Partnership
Interests of a Contributor included in such Contributor's Collateral is
represented by certificates, the Partnership shall retain such certificates in
perfection of the security interest herein granted.
12. Miscellaneous. This Amendment shall be governed by and construed in
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conformity with the laws of the State of Georgia. For the purposes of the
notice provisions of the Partnership Agreement, the address of each of the
Contributor is as set forth on the signature page hereof. Except as expressly
amended hereby, the Partnership Agreement shall remain in full force and effect.
This Third Amendment and all the terms and provisions hereof shall be binding
upon and shall inure to the benefit of the parties, and their legal
representatives, heirs, successors and permitted assigns.
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IN WITNESS WHEREOF, the parties have executed and delivered this Third
Amendment as of the date first above written.
WEEKS REALTY, L.P., a Georgia limited
partnership authorized to do business in the
State of North Carolina as Weeks Realty Limited
Partnership
By: Weeks GP Holdings, Inc., a Georgia
corporation, its Sole General Partner
By: _______________________________________
Name:
Title:
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CONTRIBUTORS:
____________________________________
XXXXXXXX X. XXXXXX
Address: 0000 Xxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
____________________________________
XXXX X. XXXXXXXX
Address: Xx. 0 Xxx 0000
Xxxxxxxxxx, XX 00000-0000
____________________________________
F. XXXXXXX XXXXXXXX
Address: X.X. Xxx 00000
Xxxxxxx, XX 00000
____________________________________
XXXXX X. XXXXXX
Address: X.X. Xxxxxx 0000
Xxxxxxxxxxxxxxx, XX 00000
REGENCY FOREST LLC
By:_________________________________
Xxxxxx X. Xxxxxxx, Manager
Address: 0000 Xxxxxxxxx Xxxx Xxxxx
Xxx. 000
Xxxxxxxxxxx, XX 00000
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Solely to evidence its agreement to its
undertakings in Exhibit D hereto:
WEEKS CORPORATION
By:___________________________________
Name:______________________________
Title:_____________________________
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Exhibit A
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TRANSACTION DOCUMENTS
Exhibit B
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CAPITAL CONTRIBUTION:
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Xxxxxxxx X. Xxxxxx Capital Contribution: All assets, properties and businesses
transferred from Xxxxxxxx X. Xxxxxx at
January 31, 1997, to the Partnership
pursuant to the Transaction Documents
(as defined in the foregoing Third
Amendment)
Xxxx X. Xxxxxxxx All assets, properties and businesses
Capital Contribution: transferred from Xxxx X. Xxxxxxxx at
January 31, 1997, to the Partnership
pursuant to the Transaction Documents
(as defined in the foregoing Third
Amendment)
F. Xxxxxxx Xxxxxxxx Capital Contribution: All assets, properties and businesses
transferred from F. Xxxxxxx Xxxxxxxx
at January 31, 1997, to the
Partnership pursuant to the
Transaction Documents (as defined in
the foregoing Third Amendment)
Xxxxx X. XxXxxx Capital Contribution: All assets, properties and businesses
transferred from Xxxxx X. XxXxxx at
January 31, 1997, to the Partnership
pursuant to the Transaction Documents
(as defined in the foregoing Third
Amendment)
Regency Forest LLC: All assets, properties and businesses
transferred from Regency Forest LLC at
January 31, 1997, to the Partnership
pursuant to the Transaction Documents
(as defined in the foregoing Third
Amendment)
B-1
GROSS FAIR MARKET VALUE OF PROPERTY CONTRIBUTIONS:
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Gross Fair Market Value of all
property other than money included in
Xxxxxxxx X. Xxxxxx Contribution: $_______
Gross Fair Market Value of all
property other than money included in
Xxxx X. Xxxxxxxx Capital
Contribution: $_______
Gross Fair Market Value of all
property other than money included in
F. Xxxxxxx Xxxxxxxx Capital Contribution: $_______
Gross Fair Market Value of all
property other than money included in
Xxxxx X. XxXxxx Capital Contribution: $_______
Gross Fair Market Value of all
property other than money included in
Regency Forest LLC Capital Contribution: $_______
B-2
ALLOCATION OF PARTNERSHIP UNITS:
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Contributor No. of Units
----------- ------------
Xxxxxx X. Xxxxxxx 17,141
Xxxxx Xxxxxxxxxx Xxxxxxxxx 5,756
Xxxxxxxx X. Xxxxxx 2,928
Xxxx X. Xxxxxxxx 1,561
F. Xxxxxxx Xxxxxxxx 1,757
Xxxxx X. XxXxxx 39
Perimeter Park West 26,596
Regency Forest LLC 15,380
B-3
Exhibit D
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RIGHTS TERMS
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The Rights granted by the Partnership to the Contributor (referred to in
this Exhibit as "Limited Partners"), pursuant to paragraph 3(b) of the foregoing
Third Amendment shall be subject to the following terms and conditions:
1. Definitions. Capitalized terms used in this Exhibit without
-----------
definition shall have the meanings given to them in the Partnership Agreement or
the foregoing Third Amendment, as applicable, and the following terms and
phrases shall, for purposes of this Exhibit D, the Partnership Agreement and the
foregoing Third Amendment, have the meanings set forth below:
"Cash Purchase Price" shall have the meaning set forth in Paragraph 4
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hereof.
"Closing Notice" shall mean the written notice to be given by the
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General Partner to the Exercising Partner(s) in response to the receipt by the
General Partner of a Conversion Exercise Notice from such Exercising Partner(s).
The form of the Closing Notice is attached hereto as Schedule 2.
"Computation Date" shall mean the date on which a Conversion Exercise
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Notice is delivered to the General Partner.
"Conversion Exercise Notice" shall have the meaning set forth in
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Paragraph 2 hereof.
"Conversion Factor" shall mean 100%, provided that such factor shall
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be adjusted in accordance with the provisions of paragraph 10 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, or any successor statute.
"Exercising Partners" shall have the meaning set forth in Paragraph 2
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hereof.
"Offered Partnership Units" shall mean the Partnership Units of the
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Exercising Partner(s) identified in a Conversion Exercise Notice that, pursuant
to the exercise of Rights, must be redeemed by the Partnership or acquired by
the General Partner and/or Weeks LP Holdings under the terms hereof.
"Redemption Price" shall mean the Cash Purchase Price or the Stock
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Purchase Price.
"Rights" shall have the meaning set forth in paragraph 3(b) of the
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foregoing Third Amendment.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any successor statute.
"Stock Purchase Price" shall have the meaning set forth in Paragraph 4
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hereof.
2. Delivery of Conversion Exercise Notices. Any one or more Limited
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Partners ("Exercising Partners") may, subject to the limitations set forth
herein, deliver to the General Partner written notice (the "Conversion Exercise
Notice") pursuant to which such Exercising Partners elect to exercise the
Rights. The form of Conversion Exercise Notice is attached hereto as Schedule
1.
3. Limitations on Exercise of Rights; Deemed Exercise.
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(a) No Conversion Exercise Notice, with respect to any Unit (except
for those Units described in the immediately following subparagraph (b)),
may be delivered to the General Partner by a Limited Partner until the
later of (i) the date which is the later of (A) one year following the
issuance of the last Units which are issued with respect to the Development
Properties or the Northern Telecom Properties or (B) the third anniversary
of the date hereof, or (ii) the date on which either (A) there is a
registration statement effective under the Securities Act with respect to
the issuance of any shares of Common Stock that could be issued to such
Limited Partner pursuant to such exercise of Rights and with respect to any
resale by such Limited Partner of any of such shares of Common Stock, or
(B) in the opinion of counsel to Weeks, shares of Common Stock that could
be issued to such Limited Partner pursuant to such exercise of Rights may
be issued without registration under the Securities Act.
(b) With respect to Units issued in exchange for Perimeter Park West,
Metro Center and Perimeter Park Land, no Conversion Exercise Notice may be
delivered to the General Partner by a Limited Partner until the later of
(i) the date which is the later of (A) one year following the closing date
for the acquisition of such Perimeter Park West, Metro Center and
Perimeter Park Land or (B) the expiration of the last lock-up period
described in Paragraph 3(a)(i) above, or (ii) the date on which either (A)
there is a registration statement effective under the Securities Act with
respect to the issuance of any shares of Common Stock that could be issued
to such Limited Partner pursuant to such exercise of Rights and with
respect to any resale by such Limited Partner of any of such shares of
Common Stock, or (B) in the opinion of counsel to Weeks, shares of Common
Stock that could be issued to such Limited Partner pursuant to such
exercise of Rights may be issued without registration under the Securities
Act.
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(c) A Limited Partner may not exercise the Rights for less than one
thousand (1,000) Partnership Units or, if such Limited Partner holds less
than one thousand (1,000) Partnership Units, all of the Partnership Units
held by such Limited Partner.
(d) Neither the General Partner nor the Partnership shall have any
obligation or authority to redeem or purchase Offered Partnership Units to
the extent that issuance of shares of Common Stock in payment of the Stock
Purchase Price for any part of the Offered Partnership Units would result
(i) in the violation of the General Ownership Limit (as such term is
defined in the Articles of Incorporation), (ii) would cause Weeks to fail
the stock ownership test of Section 856(a)(6) of the Code, or (iii) would
otherwise cause Weeks to fail to qualify as a REIT; provided that in any
such case, the General Partner or the Partnership shall purchase for cash
those offered Partnership Units which may not be redeemed with shares of
Common Stock. Each Exercising Partner shall provide to the General Partner
such information as the General Partner may request regarding such
Exercising Partner's actual and constructive ownership of Common Stock (and
of individuals, and entities related to such Exercising Partner) in order
for the General Partner to determine, in its sole discretion, whether a
purchase or redemption of the Offered Partnership Units for shares of
Common Stock would result in a violation of such restrictions.
(e) If, after complying with all applicable provisions of the
Partnership Agreement, any Person with an ownership interest in any of the
Contributor becomes the owner of any Partnership Units previously owned by
the any of the Contributor, such Person may exercise the Rights granted
with respect to such Partnership Units in accordance with the terms hereof.
4. Computation of Redemption Price/Form of Payment. The Redemption Price
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payable by the Partnership to each Exercising Partner for the Offered
Partnership Units shall be payable, at the election of the General Partner, by
the delivery by the Partnership of the Redemption Price. Notwithstanding the
foregoing, at the election of the General Partner, the Redemption Price may be
the Stock Purchase Price for part of the Offered Partnership Units and the Cash
Purchase Price for the remainder of the Offered Partnership Units. The "Stock
Purchase Price" shall mean the number of shares of Common Stock equal to the
product, expressed as a whole number, of (i) the number of Offered Partnership
Units, multiplied by (ii) the Conversion Factor. The "Cash Purchase Price"
shall mean an amount of cash (in immediately available funds) equal to (i) the
number of shares of Common Stock that would be issued to the Exercising Partner
if the Stock Purchase Price were paid for such Offered Partnership Units,
multiplied by (ii) the Current Per Share Market Price computed as of the
Computation Date. To the extent the Partnership elects to pay the Stock
Purchase Price, it shall obtain the necessary shares of Common Stock in exchange
for the issuance of additional Partnership Interests to the General Partner,
Weeks LP Holdings, or any combination thereof, as determined by the General
Partner in its sole discretion, and the General Partner and/or Weeks LP Holdings
shall obtain the necessary shares of Common Stock in exchange for the issuance
of additional capital stock to Weeks.
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5. Closing; Delivery of Closing Notice. The closing of the redemption of
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Offered Partnership Units shall, unless otherwise mutually agreed, be held at
the principal office of the Partnership, as follows:
(a) Within ten (10) days after the receipt by the Partnership of the
Conversion Exercise Notice, the Partnership shall deliver a Closing
Notice to the Exercising Partner(s). The Closing Notice shall state a date
for the closing of the redemption of the Offered Partnership Units, which
date shall not be later than the later of (i) twenty (20) days after the
receipt by the Partnership of the Conversion Exercise Notice (forty-five
(45) days as to the Offered Partnership Units for which the Cash Purchase
Price will be paid), and (ii) the first (1st) business day after the
expiration or termination of the waiting period applicable to each
Exercising Partner, if any, under the Xxxx-Xxxxx Act.
(b) If applicable, the Closing Notice shall (i) specify the
Partnership's election to pay the Cash Purchase Price for some or all of
the Offered Partnership Units and (ii) set forth the computation of the
Cash Purchase Price to be paid by the Partnership to such Exercising
Partner(s). The Cash Purchase Price shall be paid by wire transfer of
immediately available funds to such account of the Exercising Partner as is
designated in the Conversion Exercise Notice.
6. Assumption by the General Partner and/or Weeks LP Holdings.
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Notwithstanding anything in this Exhibit D to the contrary, the General Partner,
Weeks LP Holdings or any combination thereof (an "Assumer" or, collectively, the
"Assumers") may, in the sole and absolute discretion of the General Partner,
assume directly and satisfy the exercise of a Right by paying the Electing
Partner the Redemption Price. In such event, the Assumers shall acquire the
Offered Partnership Units and shall be treated for all purposes of this
Agreement as the owner of such Partnership Units, which shall be held by the
Assumers in their respective existing capacities as general partner or Limited
Partners, as the case may be. In the event the General Partner shall exercise
the Assumers' right to satisfy a Right in the manner described in this Paragraph
6, the Partnership shall have no obligation to pay any amount to the Exercising
Partner with respect to such Exercising Partner's exercise of a Right; provided,
however, that the Partnership shall remain liable to the Exercising Partner to
the extent that any such Exercising Partner's Right is not fully satisfied; and
each of the Exercising Partner, the Partnership, and the Assumers shall treat
the transaction between the Assumers and the Exercising Partner as a sale of the
Exercising Partner's Partnership Units to the Assumers for federal income tax
purposes. To the extent the Assumers elect to pay the Stock Purchase Price,
they shall obtain the necessary shares of Common Stock in exchange for the
issuance of additional capital stock to Weeks. Each Exercising Partner agrees
to execute such documents as the General Partner may reasonably require in
connection with the issuance of Common Stock upon exercise of a Right.
7. Closing Deliveries. At the closing, payment of the Redemption Price
------------------
shall be accompanied by proper instruments of transfer and assignment for the
Offered Partnership Units and by the delivery of (i) representations and
warranties of (A) the Exercising Partner with respect
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to its due authority to sell all of the right, title and interest in and to the
Offered Partnership Units and with respect to the status of the Offered
Partnership Units being sold, free and clear of all Liens, and (B) the
Partnership or the Assumers, as applicable, with respect to due authority for
the redemption or purchase of such Offered Partnership Units, and (ii) to the
extent that shares of Common Stock are issued in payment of the Stock Purchase
Price, (A) an opinion of counsel for Weeks, reasonably satisfactory to the
Exercising Partner(s), to the effect that such shares of Common Stock have been
duly authorized, are validly issued, fully-paid and nonassessable, and (b) a
stock certificate or certificates evidencing the Common Stock to be issued and
registered in the name of the Exercising Partner(s) or its (their) designee.
8. Covenants of Weeks. To facilitate the Partnership's and the Assumers'
------------------
ability to fully perform their obligations hereunder, Weeks covenants and agrees
as follows:
(a) At all times during the pendency of the Rights, Weeks shall
reserve for issuance such number of shares of Common Stock as may be
necessary to enable Weeks to issue shares of Common Stock in full payment
of the Stock Purchase Price in regard to all Partnership Units that are
from time to time outstanding and with respect to which Rights exist.
(b) During the pendency of the Rights, the Limited Partners shall
receive in a timely manner all communications transmitted from time to time
by Weeks to its shareholders generally.
9. Limited Partners' Covenants. Each Limited Partner covenants and
---------------------------
agrees that all Offered Partnership Units tendered in accordance with the
exercise of Rights shall be delivered free and clear of all Liens. Should any
Liens exist or arise with respect to such Offered Partnership Units, neither the
Assumers nor the Partnership shall be under any obligation to redeem or acquire
the same unless, in connection therewith, the General Partner has elected to pay
a portion of the Redemption Price in the form of the Cash Purchase Price in
circumstances in which such Cash Purchase Price will be sufficient to cause such
existing Lien to be discharged in full upon application of all or a part of the
Cash Purchase Price. The Partnership and the Assumers are expressly authorized
to apply such portion of the Cash Purchase Price as may be necessary to
discharge such Lien in full. Each Limited Partner further agrees that, in the
event any state or local property transfer tax is payable as a result of the
transfer of its Offered Partnership Units to the Partnership or the Assumers,
such Limited Partner shall assume and pay such transfer tax.
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10. Antidilution Provisions
-----------------------
(a) The Conversion Factor shall be subject to adjustment from time to
time effective upon the occurrence of the following events and shall be
expressed as a percentage, calculated to the nearest one-thousandth of one
percent (.001%):
(i) In case Weeks shall pay or make a dividend or other
distribution on any class of stock of Weeks in shares of Common Stock,
the Conversion Factor in effect at the opening of business on the day
following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be
increased in proportion to the increase in outstanding shares of
Common Stock resulting from such dividend or other distribution, such
increase to become effective immediately after the opening of business
on the day following the record date fixed for such dividend or other
distribution.
(ii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares, the Conversion Factor in
effect at the opening of business on the day following the day upon
which such subdivision becomes effective shall be proportionately
increased, and, conversely, in case the outstanding shares of Common
Stock shall be combined into a smaller number of shares, the
Conversion Factor in effect at the opening of business on the day
following the day upon which such combination becomes effective shall
be proportionately reduced, such increase or reduction, as the case
may be, to become effective immediately after the opening of business
on the day following the day upon which such subdivision or
combination becomes effective.
(b) In case Weeks shall issue rights, options or warrants to all
holders of its shares of Common Stock entitling them to subscribe for or
purchase Common Stock or other securities convertible into shares of Common
Stock at a price per share less than the Current Per Share Market Price as
of the day before the "ex date" with respect to the issuance or
distribution, each Limited Partner holding Rights shall be entitled to
receive such number of such rights, options or warrants, as the case may
be, as he would have been entitled to receive had he exercised all of his
then existing Rights immediately prior to the record date for such issuance
by Weeks. The term "ex date" shall mean the first date on which shares of
Common Stock trade regular way without the right to receive such issuance
or distribution.
(c) In case the shares of Common Stock shall be changed into the same
or a different number of shares of any class or classes of stock, whether
by capital reorganization, reclassification, or otherwise (other than
subdivision or combination of shares described in subparagraph (a) (ii) of
this Paragraph), then and in each such event the Limited Partners holding
Rights shall have the right thereafter to exercise their Rights for the
kind and amount of shares and other securities and property that would have
been
-6-
received upon such reorganization, reclassification or other change by
holders of the number of shares of Common Stock with respect to which such
Rights could have been exercised immediately prior to such reorganization,
reclassification or change.
(d) The General Partner may, but shall not be required to, make such
adjustments to the number of shares of Common Stock issuable upon exercise
of Rights, in addition to those required by this Paragraph 10, as the
General Partner considers to be advisable in order that any event treated
for federal income tax purposes as a dividend of stock or stock rights
shall not be taxable to the recipients. The General Partner shall have the
power to resolve any ambiguity or correct any error in the adjustments made
pursuant to this Paragraph and its actions in so doing shall be final and
conclusive, absent manifest error by the General Partner in taking such
action.
11. Fractions of Shares. No fractional shares of Common Stock shall be
-------------------
issued upon exercise of Rights. If Rights shall be exercised with respect to
more than one Offered Partnership Unit at one time by the same Exercising
Partner, the number of full shares of Common Stock comprising the Stock Purchase
Price (or the cash equivalent amount thereof to the extent the Cash Purchase
Price is paid) shall be computed on the basis of the aggregate number of Offered
Partnership Units. Instead of any fractional share of Common Stock that would
otherwise be issuable upon exercise of Rights, the Partnership or the Assumers
shall pay a cash adjustment in respect of such fraction in an amount equal to
the Cash Purchase Price computed hereunder for such fraction of a share.
12. Notice of Adjustments of Conversion Factor. Whenever the Conversion
------------------------------------------
Factor is adjusted as herein provided:
(a) the General Partner shall compute the adjusted Conversion Factor
in accordance with Paragraph 10 hereof and shall prepare a certificate
signed by the chief financial officer or the Treasurer of the General
Partner setting forth the adjusted Conversion Factor and showing in
reasonable detail the facts upon which such adjustment is based; and
(b) notice stating that the Conversion Factor has been adjusted and
setting forth the adjusted Conversion Factor shall forthwith be mailed by
the General Partner to all holders of Rights at their last addresses on
record under this Agreement.
13. Notice of Certain Corporate Actions.
-----------------------------------
In case:
(a) Weeks shall declare a dividend (or any other distribution) on its
Common Stock payable otherwise than in cash; or
-7-
(b) Weeks shall authorize the granting to the holders of its Common
Stock of rights, options or warrants to subscribe for or purchase any
shares of stock of any class or of any other rights; or
(c) of any reclassification of the shares of Common Stock (other than
a subdivision or combination of its outstanding Common Stock, or of any
consolidation, merger or share exchange to which Weeks is a party and for
which approval of any shareholders of Weeks is required), or of the sale or
transfer of all or substantially all of the assets of Weeks; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of Weeks;
then the General Partner shall cause to be mailed to all holders of Rights at
their last addresses on record under this Agreement, at least 20 days (or 12
days in any case specified in clause (a) or (b) above) prior to the applicable
record date hereinafter specified, a notice stating (i) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of which
the holders of shares of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (ii) the date
on which such reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of shares of
Common Stock of record shall be entitled to exchange their shares for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding up.
14. Provisions in Case of Consolidation, Merger or Sale of Assets.
-------------------------------------------------------------
In case of any consolidation of Weeks with, or merger of Weeks into, any
other Person, any merger or consolidation of another Person into Weeks (other
than a merger that does not result in any reclassification, conversion, exchange
or cancellation of outstanding shares of Common Stock), any acquisition of the
outstanding Common Stock by share exchange, or any sale or transfer of all or
substantially all of the assets of Weeks, the Person formed by such
consolidation or resulting from such merger or that acquires the outstanding
Common Stock or such assets of Weeks as the case may be, shall execute and
deliver to each holder of Rights an agreement providing that such holder shall
have the right thereafter, during the period such rights shall be exercisable
(which shall be at least as long as the period for which the Rights can be
exercised under the other provisions of this Agreement), to exercise the Rights
for the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, share exchange, sale or transfer by a holder of the
number of shares of Common Stock for which the Rights might have been exercised
immediately prior to such consolidation, merger, share exchange, sale or
transfer, assuming both that (a) such holder of shares of Common Stock is not a
Person with which Weeks consolidated or into which Weeks merged or that merged
into Weeks, or that acquired the outstanding Common Stock by share exchange, or
to which such sale or
-8-
transfer was made, as the case may be (a "Constituent Person"), or an Affiliate
of a Constituent Person, and that (b) such holder does not exercise his right of
election, if any, as to the kind or amount of securities, cash or other property
receivable upon such consolidation, merger, share exchange, sale or transfer
(provided that if the kind or amount of securities, cash and other property
--------
receivable upon such consolidation, merger, share exchange, sale or transfer is
not the same for each share of Common Stock in respect of which such right of
election, if any, is not exercised ("non-electing Share"), then for the purpose
of this Paragraph 14, the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, share exchange, sale or transfer by
each non-electing Share shall be deemed to be the kind and amount so receivable
per non-electing Share by a plurality of the non-electing Shares). Such
agreement shall provide for adjustments that, for events subsequent to the
effective date of such agreement, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Exhibit D.
The above provisions of this Paragraph 14 shall similarly apply to
successive consolidations, mergers, sales or transfers.
-9-
SCHEDULE 1
CONVERSION EXERCISE NOTICE
--------------------------
To: Weeks Realty, L.P.
Reference is made to that certain Third Amendment (the "Third Amendment")
to the Third Amended and Restated Agreement of Limited Partnership of Weeks
Realty, L.P. (the "Partnership"). Capitalized terms used but not defined herein
shall have the meanings set forth in Third Amendment. Pursuant to Exhibit D to
the Third Amendment, the undersigned, being a limited partner of the Partnership
(an "Exercising Partner"), hereby elects to exercise its Rights as to the number
of Offered Partnership Units specified opposite its name below:
Number of Offered
Exercising Limited Partner Partnership Units
-------------------------- -----------------
________________________________
Signature of Exercising Limited Partner
Date:___________________________
SCHEDULE 2
CLOSING NOTICE
--------------
To: Exercising Limited Partner(s)
Reference is made to that certain Third Amendment (the "Third Amendment")
to the Third Amended and Restated Agreement of Limited Partnership of Weeks
Realty, L.P. (the "Partnership"). Capitalized terms used but not defined herein
shall have the meaning set forth in Third Amendment. The closing of the
redemption of the Offered Partnership Units shall occur at _______, ________,
Georgia, on ___________. Pursuant to Exhibit D to the Third Amendment, the
Partnership hereby notifies the Exercising Partner(s) that it has elected to pay
the Cash Purchase Price to the Exercising Partner(s) for the number of Offered
Partnership Units set forth below, and that the computation of the Cash Purchase
Price is set forth on an attachment hereto
NUMBER OF OFFERED CASH PURCHASE
EXERCISING PARTNER(S) PARTNERSHIP UNITS PRICE
--------------------- ----------------- -------------
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc., General Partner
By:___________________________
Title:____________________
Date:________________________________
