EXHIBIT 10.67
FOURTEENTH AMENDMENT TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
This Fourteenth Amendment to the Second Amended and Restated Agreement of
Limited Partnership of Weeks Realty, L.P. (this "Amendment") is entered into as
of November 6, 1998, by and among Weeks GP Holdings, Inc., a Georgia corporation
(the "General Partner"), AEW Targeted Securities Fund, L.P., a Delaware limited
partnership ("AEW Fund"), and Weeks LP Holdings, Inc., a Georgia corporation,
solely in its capacity as holder of the Series A Preferred Partnership Units.
All capitalized terms used herein shall have the meanings given to them in the
Second Amended and Restated Agreement of Limited Partnership of Weeks Realty,
L.P., dated October 30, 1996, as amended by the First Amendment to the
Partnership Agreement dated November 1, 1996, the Second Amendment to the
Partnership Agreement dated December 31, 1996, the Third Amendment to the
Partnership Agreement dated January 31, 1997, the Fourth Amendment to the
Partnership Agreement dated August 1, 1997, the Fifth Amendment to the
Partnership Agreement dated October 7, 1997, the Sixth Amendment to the
Partnership Agreement dated October 27, 1997, the Seventh Amendment to the
Partnership Agreement dated December 30, 1997 and effective as of August 1,
1997, the Eighth Amendment to the Partnership Agreement dated January 9, 1998,
the Ninth Amendment to the Partnership Agreement dated January 20, 1998, the
Tenth Amendment to the Partnership Agreement dated April 3, 1998, the Eleventh
Amendment to the Partnership Agreement dated May 26, 1998, the Twelfth Amendment
to the Partnership Agreement dated June 3, 1998, and the Thirteenth Amendment to
the Partnership Agreement dated August 7, 1998 (the "Partnership Agreement").
Capitalized terms used in this Amendment without definition shall have the
meanings given to them in the Partnership Agreement.
WHEREAS, pursuant to that certain Securities Purchase Agreement dated the
date hereof by and among AEW Fund, Weeks and the Partnership (the "Securities
Purchase Agreement"), AEW Fund desires to contribute $33,862,500 to the
Partnership in exchange for partnership interests in the Partnership as set
forth herein;
WHEREAS, pursuant to the Securities Purchase Agreement, AEW Fund desires to
contribute $1,137,500 million to Weeks in exchange for a warrant which
represents the right to purchase either (i) 1,046,729 shares of Common Stock or
(ii) 1,400,000 shares of Series A Preferred Stock;
WHEREAS, Weeks will contribute the proceeds from the warrant, either
through the General Partner or Weeks LP, or both, to the Partnership in exchange
for a reciprocal warrant issuable to Weeks; and
WHEREAS, as provided in Section 9.3 of the Partnership Agreement, the
General Partner is authorized to cause the Partnership to issue additional
interests in the Partnership in exchange for such contribution.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Contribution.
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AEW Fund hereby contributes to the Partnership $33,862,500 million as a
contribution to the capital of the Partnership.
2. Issuance of Series C Preferred Partnership Units; Rights.
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In consideration of the contribution to the Partnership pursuant to Section
1 hereof, the Partnership hereby issues to AEW Fund 1,400,000 Series C Preferred
Partnership Units (as defined herein). Exhibit S to the Partnership Agreement,
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attached hereto, is hereby inserted into the Partnership Agreement. AEW Fund
hereby agrees that it shall not have any rights with respect to the "Rights"
provided for in Section 11.1 and Exhibit B-1 to the Partnership Agreement.
3. Definitions.
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In addition to those terms defined in the Partnership Agreement, the
following definitions shall be for all purposes, unless otherwise clearly
indicated to the contrary, inserted into the Partnership Agreement and applied
to the terms used in the Partnership Agreement and in this Amendment:
"AEW Warrant" means the right to purchase (i) an aggregate of
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1,046,729 shares of Common Stock or (ii) an aggregate of 1,400,000 shares
of Series A Preferred Stock pursuant to the terms of that certain Warrant
dated November 6, 1998 issued by Weeks."
"Series C Preferred Partnership Unit" means a Partnership Unit issued
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by the Partnership to AEW Fund in consideration of the contribution by AEW
Fund to the Partnership of $24.1875. The Series C Preferred Partnership
Units shall constitute Preferred Partnership Units. The Series C Preferred
Partnership Units shall have the voting powers, designation, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions as are set forth in Exhibit S,
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attached hereto.
In addition, the definition of "Liquidation Preference Amount" appearing in
Article I of the Partnership Agreement is hereby deleted in its entirety and the
following definition is inserted in its place:
"Liquidation Preference Amount" means, with respect to any Preferred
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Partnership Unit, the amount payable with respect to such Preferred
Partnership Unit
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(as established by the instrument designating such Preferred Partnership
Units) upon the voluntary or involuntary dissolution, liquidation or
winding up of the Partnership, or upon the earlier redemption of such
Preferred Partnership Units, as the case may be, other than accrued and
unpaid quarterly distributions in arrears.
4. Allocations and Other Tax and Accounting Matters.
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Exhibit F to the Partnership Agreement is hereby deleted in its entirety
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and Exhibit F attached hereto is hereby inserted in its place.
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5. Admission. AEW Fund is hereby admitted to the Partnership as a
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Limited Partner, effective as of the date hereof, and AEW Fund hereby agrees to
be bound by the terms of the Partnership Agreement.
6. Exhibits to Partnership Agreement.
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The General Partner shall maintain the information set forth in Exhibit A
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to the Partnership Agreement, as such information shall change from time to
time, in such form as the General Partner deems appropriate for the conduct of
the Partnership affairs, and Exhibit A shall be deemed amended from time to time
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to reflect the information so maintained by the General Partner, whether or not
a formal amendment to the Partnership Agreement has been executed amending such
Exhibit A. In addition to the issuance of Series C Preferred Partnership Units
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pursuant to this Amendment, such information shall reflect (and Exhibit A shall
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be deemed amended from time to time to reflect) the issuance of any additional
Partnership Units to any Person, the transfer of Partnership Units and the
redemption of any Partnership Units, all as contemplated herein.
7. 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 AEW Fund 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 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 hereto have executed this Amendment as of
the date first written above.
GENERAL PARTNER:
WEEKS GP HOLDINGS, INC.,
a Georgia corporation
By: ___________________________________
Name:
Title:
LIMITED PARTNER:
AEW TARGETED SECURITIES FUND, L.P.,
a Delaware limited partnership
By: AEW TSF, L.L.C., a Delaware limited liability
By: AEW TSF, INC., a Delaware corporation,
By: ___________________________
Name:
Title:
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: AEW TSF, Inc.
SOLELY IN ITS CAPACITY AS HOLDER OF THE
SERIES A PREFERRED PARTNERSHIP UNITS:
LIMITED PARTNER:
WEEKS LP HOLDINGS, INC.,
a Georgia corporation
By:_____________________________________
Name:
Title:
EXHIBIT F
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WEEKS REALTY, L.P.
ALLOCATIONS
Section 1. Allocation of Net Income and Net Loss.
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(a) Net Income. After giving effect to the special allocations
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set forth in Section 2 hereof, Net Income for any fiscal year or other
applicable period shall be allocated in the following manner and order of
priority:
(1) To the General Partner until the cumulative allocations of
Net Income under this Section 1(a)(1) equal the cumulative Net
Losses allocated to the General Partner under Section 1(b)(5)
hereof.
(2) To those Partners who have received allocations of Net Loss
under Section 1(b)(4) hereof until the cumulative allocations of
Net Income under this Section 1(a)(2) equal such cumulative
allocations of Net Loss (such allocation of Net Income to be in
proportion to the cumulative allocations of Net Loss under such
section to each such Partner).
(3) To the Partners holding Preferred Partnership Units until
the cumulative allocations of Net Income under this Section
1(a)(3) equal the cumulative allocations of Net Loss to such
Partners under Section 1(b)(3) hereof (such allocation of Net
Income being in proportion to the cumulative allocations of Net
Loss under such section to each such Partner).
(4) To those Partners who have received allocations of Net Loss
under Section 1(b)(2) hereof until the cumulative allocations of
Net Income under this Section 1(a)(4) equal such cumulative
allocations of Net Loss (such allocation of Net Income to be in
proportion to the cumulative allocations of Net Loss under such
section to each such Partner).
(5) To the Partners until the cumulative allocations of Net
Income under this Section 1(a)(5) equal the cumulative
allocations of Net Loss to such Partners under Section 1(b)(1)
hereof (such allocation of Net Income to be in proportion to the
cumulative allocations of Net Loss under such section to each
such Partner).
(6) Any remaining Net Income shall be allocated to the Partners
who hold Common Partnership Units in proportion to their
respective Percentage Interests as holders of Common Partnership
Units.
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(b) Net Losses. After giving effect to the special allocations
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set forth in Section 2 hereof, Net Losses shall be allocated to the
Partners as follows:
(1) To the Partners who hold Common Partnership Units in
accordance with their respective Percentage Interests as holders
of Common Partnership Units, except as otherwise provided in this
Section 1(b).
(2) To the extent that an allocation of Net Loss under Section
1(b)(1) would cause a Partner to have an Adjusted Capital Account
Deficit at the end of such taxable year (or increase any existing
Adjusted Capital Account Deficit of such Partner), such Net Loss
shall instead be allocated to those Partners who hold Common
Partnership Units, if any, for whom such allocation of Net Loss
would not cause or increase an Adjusted Capital Account Deficit.
Solely for purposes of this Section 1(b)(2), the Adjusted Capital
Account Deficit, in the case of those Partners who also hold
Preferred Partnership Units, shall be determined without regard
to the amount credited to such Partners' Capital Accounts for the
aggregate Liquidation Preference Amount attributable to such
Preferred Partnership Units, and in the case of a Principal or a
Principal-Controlled Partnership, shall be determined without
regard to such Partner's deficit Capital Account restoration
obligation under Section 8.7(b) of the Partnership Agreement. The
Net Loss allocated under this Section 1(b)(2) shall be allocated
among the Partners who may receive such allocation in proportion
to their respective Percentage Interests in Common Partnership
Units.
(3) Any remaining Net Loss shall be allocated to the holders of
Preferred Partnership Units in accordance with their respective
Percentage Interests as holders of Preferred Partnership Units to
the extent that such allocation of Net Loss would not cause or
increase an Adjusted Capital Account Deficit of such Partners.
(4) Any remaining Net Loss shall be allocated to the Principals
and the Principal-Controlled Partnerships in accordance with
their respective Percentage Interests in Common Partnership
Units; provided that if, after the death of a Principal, the
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estate of such Principal or any Principal-Controlled Partnership
with respect to such Principal elects pursuant to Section 8.7(c)
of the Partnership Agreement to eliminate or reduce its deficit
Capital Account restoration obligation under Section 8.7(b) of
the Partnership Agreement, Net Losses shall not be allocated to
such Partner to the extent that such allocation would cause such
Partner to have an Adjusted Capital Account Deficit (or would
increase any existing Adjusted Capital Account Deficit of such
Partner) as of the end of such taxable year, and instead shall be
allocated to those Principals and Principal-Controlled
Partnerships as to whom the foregoing limitation does not apply.
(5) Any remaining Net Loss shall be allocated to the General
Partner.
Section 2. Special Allocations. Notwithstanding any provisions of paragraph
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1 of this Exhibit F, the following special allocations shall be made in the
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following order:
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(a) Minimum Gain Chargeback (Nonrecourse Liabilities). If there is a net
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decrease in Partnership Minimum Gain for any Partnership fiscal year (except as
a result of certain conversions or refinancings of Partnership indebtedness,
certain capital contributions, or certain revaluations of Property as further
outlined in Regulation Sections 1.704-2(d)(4), (f)(2) or (f)(3)), each Partner
shall be specially allocated items of Partnership income and gain for such year
(and, if necessary, subsequent years) in an amount equal to that Partner's share
of the net decrease in Partnership Minimum Gain. The items to be so allocated
shall be determined in accordance with Regulation Section 1.704-2(f). This
paragraph (a) is intended to comply with the minimum gain chargeback requirement
in said section of the Regulations and shall be interpreted consistently
therewith. Allocations pursuant to this paragraph (a) shall be made in
proportion to the respective amounts required to be allocated to each Partner
pursuant hereto.
(b) Minimum Gain Attributable to Partner Nonrecourse Debt. If there is a
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net decrease in Minimum Gain Attributable to Partner Nonrecourse Debt during any
fiscal year (other than due to the conversion, refinancing or other change in
the debt instrument causing it to become partially or wholly nonrecourse,
certain capital contributions, or certain revaluations of Property as further
outlined in Regulation Section 1.704-2(i)(4)), each Partner shall be specially
allocated items of Partnership income and gain for such year (and, if necessary,
subsequent years) in an amount equal to that Partner's share of the net decrease
in the Minimum Gain Attributable to Partner Nonrecourse Debt. The items to be
so allocated shall be determined in accordance with Regulation Sections 1.704-
2(i)(4) and (j)(2). This paragraph (b) is intended to comply with the minimum
gain chargeback requirement with respect to Partner Nonrecourse Debt contained
in said sections of the Regulations and shall be interpreted consistently
therewith. Allocations pursuant to this paragraph (b) shall be made in
proportion to the respective amounts required to be allocated to each Partner
pursuant hereto.
(c) Qualified Income Offset. In the event any Partner unexpectedly
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receives any adjustments, allocations or distributions described in Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), and such Partner has an Adjusted
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Capital Account Deficit, items of Partnership income and gain shall be specially
allocated to such Partner in an amount and manner sufficient to eliminate the
Adjusted Capital Account Deficit as quickly as possible. This paragraph (c) is
intended to constitute a "qualified income offset" under Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
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(d) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or
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other applicable period shall be allocated to the Partners in accordance with
their respective Percentage Interests in Common Partnership Units.
(e) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any
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fiscal year or other applicable period shall be specially allocated to the
Partner that bears the economic risk of loss for the debt in respect of which
such Partner Nonrecourse Deductions are attributable (as determined under
Regulations Sections 1.704-2(b)(4) and (i)(1)).
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(f) Curative Allocations. The Regulatory Allocations (as hereinafter
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defined) shall be taken into account in allocating other items of income, gain,
loss, and deduction among the Partners so that, to the extent possible, the
cumulative net amount of allocations of Partnership items under Sections 1 and 2
of this Exhibit F shall be equal to the net amount that would have been
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allocated to each Partner if the Regulatory Allocations had not occurred. This
paragraph (f) is intended to minimize, to the extent possible and to the extent
necessary, any economic distortions which may result from application of the
Regulatory Allocations and shall be interpreted in a manner consistent
therewith. For purposes hereof, "Regulatory Allocations" shall mean all the
allocations provided under this Section 2 other than paragraphs (f), (g), (h)
and (i).
(g) Priority Allocation With Respect To Preferred Partnership Units. All
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or a portion of the remaining items of Partnership gross income or gain for the
Partnership fiscal year, if any, shall be specially allocated to the holders of
the outstanding Series A Preferred Partnership Units and Series C Preferred
Partnership Units (the "Preferred Unit Holders") in an amount equal to the
excess, if any, of the cumulative distributions received by the Preferred Unit
Holders pursuant to Section 6.2(i) of the Partnership Agreement, as amended, for
the current Partnership fiscal year and all prior Partnership fiscal years
(other than any distributions that are treated as being in satisfaction of the
Liquidation Preference Amount for any Preferred Partnership Units) over the
cumulative allocations of Partnership gross income and gain to the Preferred
Unit Holders under this Section 2(g) for all prior Partnership fiscal years.
Such allocations shall be made in proportion to relative excess amounts
determined for each such holder. Solely for purposes of making the required
allocation under this Section 2(g) in the fiscal year in which the Partnership
is liquidated, the amount of any accrued but unpaid distributions in arrears in
respect of the Preferred Partnership Units (determined in accordance with the
relevant provisions of Exhibit R and Exhibit S to the Agreement) shall be
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treated as having been distributed to the Preferred Unit Holders immediately
prior to such liquidation under Section 6.2(i) hereof.
(h) Special Additional Priority Allocations With Respect to Series C
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Preferred Partnership Units. In addition to the priority allocations set forth
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in paragraph (g), the following allocations shall be made only in the taxable
years as specified in this Section 2(h), and shall be made prior to making the
allocations in Section 2(g), and in the following priority:
(A) Items of Partnership gross income or gain for the Partnership
fiscal year shall be specially allocated to the holder of the outstanding
Series C Preferred Partnership Units until the cumulative allocations under
this Section 2(h)(A) equal the difference between the aggregate Liquidation
Preference Amounts with respect to such Units and the amount contributed to
the Partnership with respect to such Units.
(B) If the Series C Preferred Partnership Units are redeemed pursuant
to Section 5(a) or 5(b) or put pursuant to Section 6 of Exhibit S to this
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Agreement, additional items of Partnership gross income or gain for the
Partnership fiscal year shall be specially allocated to the holder of the
redeemed Series C Preferred Partnership Units until such holder's Capital
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Account balance equals (i) if the Series C Preferred Partnership Units are
redeemed pursuant to Section 5(b) or put pursuant to Section 6, the
Liquidation Preference Amount, plus the amount of any accrued but unpaid
quarterly distributions (the "Target Balance"), and (ii) if the Series C
Preferred Partnership Units are redeemed pursuant to Section 5(a), the sum
of (X) the Target Balance, plus (Y) if the AEW Warrant has not been
exercised on or before the Expiration Date of the AEW Warrant (as defined
therein), the Target Balance with respect to the Series C Preferred
Partnership Units redeemed, multiplied by the following applicable
percentage based on the time of redemption of such Units:
Redemption on or after November 6, Percentage
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2003 4%
2004 3%
2005 2%
2006 1%
2007 0%
(C) If the Series C Preferred Partnership Units are redeemed pursuant
to Section 5(c) of Exhibit S to this Agreement, additional items of
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Partnership gross income or gain for the Partnership fiscal year shall be
specially allocated to the holder of the redeemed Series C Preferred
Partnership Units until such holder's Capital Account balance equals the
sum of (i) the Target Balance, plus (ii) the Target Balance with respect to
the Series C Preferred Partnership Units redeemed, multiplied by the
following applicable percentage based on the time of redemption of such
Units:
Redemption on or after November 6, Percentage
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1998 10%
1999 9%
2000 8%
2001 7%
2002 6%
(D) The priority allocations provided by this paragraph (h) shall
only be made with respect to: (i) any fiscal year, or portion thereof, in
which a Redemption Date or Exchange Date falls (as defined in Exhibit S to
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this Agreement); (ii) solely with respect to the allocation provided by
paragraph (h)(A) above, the fiscal year in which the partnership interest
of a holder of Series C Preferred Partnership Units is "liquidated" within
the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); and (iii) any
fiscal year immediately prior to any of the fiscal years referenced in
clauses (i) and (ii) to the extent that the Exchange Date, the Redemption
Date or liquidating distributions occur on or before the due date (not
including extensions) for filing the Partnership's federal income tax
return for such prior fiscal year.
(i) Allocation of Nonrecourse Liabilities. The "excess nonrecourse
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liabilities" of the Partnership (as defined in Regulations Section 1.752-
3(a)(3)) shall be allocated among the Partners in proportion to their respective
interests in Common Partnership Units.
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Section 3. Tax Allocations.
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(a) Generally. Subject to paragraphs (b) and (c) hereof, items of
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income, gain, loss, deduction and credit to be allocated for income tax purposes
(collectively, "Tax Items") shall be allocated among the Partners on the same
basis as their respective book items.
(b) Sections 1245/1250 Recapture. If any portion of gain from the
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sale of property is treated as gain which is ordinary income by virtue of the
application of Code Sections 1245 or 1250 ("Affected Gain"), then (A) such
Affected Gain shall be allocated among the Partners in the same proportion that
the depreciation and amortization deductions giving rise to the Affected Gain
were allocated and (B) other Tax Items of gain of the same character that would
have been recognized, but for the application of Code Sections 1245 and/or 1250,
shall be allocated away from those Partners who are allocated Affected Gain
pursuant to Clause (A) so that, to the extent possible, the other Partners are
allocated the same amount, and type, of capital gain that would have been
allocated to them had Code Sections 1245 and/or 1250 not applied. For purposes
hereof, in order to determine the proportionate allocations of depreciation and
amortization deductions for each fiscal year or other applicable period, such
deductions shall be deemed allocated on the same basis as Net Income and Net
Loss for such respective period.
(c) Allocations Respecting Section 704(c) and Revaluations.
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Notwithstanding paragraph (b) hereof, Tax Items with respect to Property that is
subject to Code Section 704(c) and/or Regulation Section 1.704-1(b)(2)(iv)(f)
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(collectively "Section 704(c) Tax Items") shall be allocated in accordance with
said Code section and/or Regulation Section 1.704-1(b)(4)(i), as the case may
be. Specifically, the allocation of all Section 704(c) Tax Items shall be made
in accordance with the "traditional method" set forth in Regulation Section
1.704-3(b)(1) and thus shall be subject to the ceiling rule stated in said
section of the Regulations.
(d) Return of Capital Determination. For purposes of computing the
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return on the capital of the holder of Series C Preferred Partnership Units, the
capital of a holder of the Series C Preferred Partnership Units attributable to
each such Unit shall be treated as returned (x) when the Unit is redeemed by the
Partnership or (y) to the extent that the Partnership has distributed with
respect to such Unit an amount that exceeds the cumulative quarterly
distributions accrued thereon, plus the difference between $25 and the amount
contributed to the Partnership with respect to such Unit. Such return of capital
determination is solely for the internal tax accounting purposes of the holders
of the Series C Preferred Partnership Units and shall not in any way affect the
distributions to the Partners under this Agreement or the allocations of Net
Profit, Net Loss and other items under this Exhibit F.
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F-7
EXHIBIT S
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WEEKS REALTY, L.P.
DESIGNATION OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS AND
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
The following are the terms of the Series C Preferred Partnership Units
established pursuant to this Amendment:
8. NUMBER. The maximum number of authorized units of the Series C
Preferred Partnership Units shall be 1,400,000.
9. RELATIVE SENIORITY. In respect of rights to receive distributions (as
provided in Section 3 below), the Series C Preferred Partnership Units shall
rank (a) senior to any class or series of Partnership Units of the Partnership
ranking, as to the payment of distributions, junior to the Series C Preferred
Partnership Units (collectively, "Junior Partnership Units"), and (b) on a
parity with any class or series of Partnership Units of the Partnership if the
holders of such class or series of Partnership Units and the Series C Preferred
Partnership Units shall be entitled to the receipt of distributions and of
amounts distributable upon liquidation, dissolution or winding up (taking into
account the effects of allocations of Net Profits, Net Losses and other items)
in proportion to their respective amounts of accrued and unpaid distributions
per unit or liquidation preferences, without preference or priority one over the
other, whether or not the distribution rates, distribution payment dates,
liquidation preferences or redemption prices per unit thereof are different from
those of the Series C Preferred Partnership Units (collectively, "Parity
Partnership Units"). The Series A Preferred Partnership Units are Parity
Partnership Units with the Series C Preferred Partnership Units, and all Common
Partnership Units shall rank junior to Preferred Partnership Units as to rights
to receive distributions and rights upon liquidation, dissolution or winding up
of the Partnership. Upon liquidation, dissolution or winding up of the
Partnership, the holders of the Series A Preferred Partnership Units and Series
C Preferred Partnership Units shall be entitled to such distributions as are
provided in Section 8.2 of this Agreement, taking into account the required
allocations of Net Profits, Net Losses and other items to the Partners as
provided in Exhibit F to this Agreement. Nothing contained in Exhibit F or
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Exhibit S to this Agreement shall prohibit the Partnership from issuing
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additional Partnership Units which are Parity Partnership Units with the Series
C Preferred Partnership Units.
10. QUARTERLY DISTRIBUTIONS.
1. The holder of the then outstanding Series C Preferred Partnership
Units shall be entitled to receive, when, as and if declared by the General
Partner out of funds legally available therefor, cumulative distributions
at the rate of $2.00 per unit per year, payable in equal amounts of $.50
per unit (plus the amount of any accrued but unpaid distributions from
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prior periods) quarterly in cash on the last day of each January, April,
July and October or, if not a Business Day (as hereinafter defined), the
next succeeding Business Day. Quarterly distributions shall begin to
accrue and shall be fully cumulative from the first date on which the
pertinent units of the Series C Preferred Partnership Units are issued and
sold and shall first be payable on January 31, 1999 (each such payment date
being hereafter called a "Quarterly Distribution Date" and each period
ending on a Quarterly Distribution Date being hereinafter called a
"Quarterly Distribution Period"). Quarterly distributions shall be payable
to holder of record as it appears in the records of the Partnership at the
close of business on the applicable record date (the "Record Date"), which
shall be the 15th day of the calendar month in which the applicable
Quarterly Distribution Date falls on or such other date designated by the
General Partner for the payment of quarterly distributions that is not more
than 50 nor less than 10 days prior to such Quarterly Distribution Date.
The amount of any quarterly distribution payable for any Quarterly
Distribution Period shorter than a full Quarterly Distribution Period shall
be prorated and computed on the basis of the actual number of days in such
period on the basis of a 360-day year of twelve 30-day months. Quarterly
distributions paid on the Series C Preferred Partnership Units in an amount
less than the total amount of such quarterly distributions at the time
accrued and payable on such units shall be allocated pro rata on a per unit
basis among all such units at the time outstanding.
"Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions in New York, New York or Atlanta, Georgia are authorized or
required by law, regulation or executive order to close.
2. The amount of any quarterly distributions accrued on any Series C
Preferred Partnership Units at any Quarterly Distribution Date shall be the
amount of any unpaid quarterly distributions accumulated thereon, to and
including such Quarterly Distribution Date, whether or not earned or
declared, plus an amount equivalent to interest at the rate of eight
percent (8%) per annum compounded quarterly in arrears on any accrued and
unpaid quarterly distributions accrued to and including the most recent
prior Quarterly Distribution Date. The amount of quarterly distributions
accrued on any Series C Preferred Partnership Units at any date other than
a Quarterly Distribution Date shall be equal to the sum of the amount of
any unpaid quarterly distributions accumulated thereon, to and including
the last preceding Quarterly Distribution Date, whether or not earned or
declared, plus an amount equivalent to interest at the rate of eight
percent (8%) per annum compounded quarterly in arrears on any accrued and
unpaid quarterly distributions accrued to and including the most recent
prior Quarterly Distribution Date, and plus an amount calculated on the
basis of the quarterly distribution rate of $.50 per unit for the period
after such last preceding Quarterly Distribution Date to and including the
date as of which the calculation is made based on the actual number of days
in such period on the basis of a 360-day year of twelve 30-day months.
3. Except as provided herein, the Series C Preferred Partnership
Units will not be entitled to any quarterly distributions in excess of full
cumulative quarterly distributions
S-2
as described above and shall not be entitled to participate in the earnings
or assets of the Partnership, and no interest, or sum of money in lieu of
interest, shall be payable in respect of any quarterly distribution payment
or payments on the Series C Preferred Partnership Units which may be in
arrears, except as otherwise provided herein.
4. Any quarterly distribution payment made on the Series C Preferred
Partnership Units shall first be credited against the earliest accrued but
unpaid distribution due with respect to such units which remains payable.
5. No quarterly distributions on the Series C Preferred Partnership
Units shall be authorized by the General Partner or be paid or set apart
for payment by the Partnership at such time as the terms and provisions of
any agreement of the Partnership, including any agreement relating to its
indebtedness, prohibit such authorization, payment or setting apart for
payment or provide that such authorization, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if
such authorization or payment shall be restricted or prohibited by law.
Notwithstanding the foregoing, quarterly distributions on the Series C
Preferred Partnership Units will accrue whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment
of such quarterly distributions and whether or not such quarterly
distributions are authorized.
6. So long as any Series C Preferred Partnership Units remain
outstanding, no distributions, except as described in the immediately
following sentence, shall be declared or paid or set apart for payment on
any class or series of Parity Partnership Units for any period unless full
cumulative quarterly distributions have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Series C Preferred Partnership Units for
all Quarterly Distribution Periods terminating on or prior to the
distribution payment date for such class or series of Parity Partnership
Units. When quarterly distributions are not paid in full or a sum
sufficient for such payment is not set apart, as aforesaid, all
distributions declared upon Series C Preferred Partnership Units and all
distributions declared upon any other class or series of Parity Partnership
Units shall be declared ratably in proportion to the respective amounts of
distributions accumulated and unpaid on the Series C Preferred Partnership
Units and accumulated and unpaid on such Parity Partnership Units.
7. So long as any Series C Preferred Partnership Units remain
outstanding, no distributions (other than distributions paid solely in
units of, or options, warrants or rights to subscribe for or purchase,
Junior Units) shall be declared or paid or set apart for payment or other
distribution declared or made upon Junior Units, nor shall any Junior Units
be redeemed, purchased or otherwise acquired (other than a redemption,
purchase or other acquisition of Common Units made for purposes of any
employee incentive or benefit plan of the Partnership or any subsidiary)
for any consideration (or any monies be paid to or made available for a
sinking fund for the redemption of any such units) by the Partnership,
directly or indirectly (except by conversion into or exchange for Junior
Units), unless in each case (i) the full cumulative quarterly distributions
on all outstanding Series C Preferred
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Partnership Units shall have been or contemporaneously are declared and
paid or declared and set apart for payment for all past Quarterly
Distribution Periods with respect to the Series C Preferred Partnership
Units and (ii) sufficient funds shall have been or contemporaneously are
declared and paid or declared and set apart for the payment of the
quarterly distribution for the current Quarterly Distribution Period with
respect to the Series C Preferred Partnership Units.
11. LIQUIDATION RIGHTS.
1. Upon the voluntary or involuntary liquidation, dissolution or
winding up of the Partnership, the holder of the Series C Preferred
Partnership Units then outstanding shall be entitled to receive and to be
paid out of the assets of the Partnership available for distribution to its
Partners, before any payment or distribution shall be made on any Junior
Units, the amount of $25.00 per unit, plus accrued and unpaid quarterly
distributions thereon, plus an amount equivalent to interest at the rate of
eight percent (8%) per annum compounded quarterly in arrears on any accrued
and unpaid quarterly distributions accrued to and including such
liquidation date; provided, however, that in no event shall such amount
exceed such holder's Capital Account balance on the date of such
distribution.
2. Neither a consolidation nor a merger of any other entity into or
with the Partnership or Weeks, nor a statutory share exchange by Weeks
shall be deemed to be a dissolution, liquidation or winding up, voluntary
or involuntary, for the purposes hereof. A sale, transfer or conveyance of
all or substantially all of the property or business of the Partnership
shall be deemed to be a dissolution, liquidation or winding up for the
purposes hereof.
12. REDEMPTION.
1. OPTIONAL REDEMPTION. On and after November 6, 2003, the
Partnership may, at its option, redeem at any time all, but not part, of
the Series C Preferred Partnership Units at a price per unit equal to the
Redemption Price (as defined below). For purposes of this Section 5(a),
and for purposes of Sections 5(b) and 5(c), the "Redemption Price" shall
equal the portion of the Capital Account balance of the holder of such
Units attributable to such Units, as determined after taking into account
all contributions and distributions, to and including the date fixed for
redemption (the "Redemption Date"), as well as all allocations of Net
Profit, Net Losses and other items to such holder with respect to the
portion of the fiscal year ending on the Redemption Date (including without
limitation the allocations provided by Sections 2(g) and 2(h) of Exhibit F
---------
to this Agreement, to the extent applicable to the type of redemption
involved). The Redemption Price shall be paid to the holder of the Series
C Preferred Partnership Units (X) if the Current Per Share Market Price is
less than or equal to the Common Stock Exercise Price (as defined in the
AEW Warrant), in cash, or (Y) if the Current Per Share Market Price is
greater than the Common Stock Exercise Price (as defined in the AEW
Warrant), in cash, or at the option of the Partnership, in a number of
shares of Common Stock equal to (i) the aggregate Redemption
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Price to be paid by the Partnership, divided by (ii) the Current Per Share
Market Price. In addition, if an additional amount of income or gain is
allocated or allocable to the holder of the Series C Preferred Partnership
Units pursuant to Section 2(h)(B)(ii)(Y) of Exhibit F to this Agreement,
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then on the Expiration Date of the AEW Warrant (as defined therein), an
additional cash payment shall be paid to such holder in the amount of such
allocation.
2. REDEMPTION FOLLOWING EXERCISE OF THE AEW WARRANT. If the AEW
Warrant is exercised for shares of Common Stock and the Series C Preferred
Partnership Units have not previously been redeemed, the Partnership may,
at its option, redeem, on or before the 30th day following the exercise of
the AEW Warrant, all, but not part, of the Series C Preferred Partnership
Units at the Redemption Price per unit, and such Redemption Price shall be
paid to the holder in cash, or at the option of the Partnership, in a
number of shares of Common Stock equal to (i) the aggregate Redemption
Price to be paid by the Partnership for such Series C Preferred Partnership
Units, divided by (ii) the Current Per Share Market Price. If the AEW
Warrant is exercised for shares of Series A Preferred Stock, the Series C
Preferred Partnership Units have not previously been redeemed, and the
exercise price is paid for by the holder in cash, the Partnership may, at
its option, redeem, on or before the 30th day following the exercise of the
AEW Warrant, all, but not part, of the Series C Preferred Partnership Units
at the Redemption Price per unit, and such Redemption Price shall be paid
to the holder in cash.
3. REDEMPTION FOLLOWING CERTAIN CONSOLIDATIONS OR MERGERS OF THE
PARTNERSHIP WITHIN FIVE YEARS. If, prior to November 6, 2003, (i) the
Partnership shall effect or consummate a consolidation with or a merger of
the Partnership with or into another entity, and the surviving entity is
not taxed as a partnership for federal income tax purposes, and (ii) the
AEW Warrant has not been exercised on or before the date of the
consummation of such transaction (the "Merger Date"), the Partnership shall
redeem on the Merger Date, all, but not part, of the Series C Preferred
Partnership Units at the Redemption Price per unit. The Redemption Price
shall be paid to the holder of the Series C Preferred Partnership Units in
cash, or at the option of the Partnership, in a number of shares of Common
Stock equal to (i) the aggregate Redemption Price to be paid by the
Partnership, divided by (ii) the Current Per Share Market Price.
4. PROCEDURES OF REDEMPTION.
(1) Notice of redemption will be mailed by the Partnership to the
holder of the Series C Preferred Partnership Units to be redeemed not
less than 5 days nor more than 30 days prior to the Redemption Date at
the address set forth in the Partnership's records. Any notice mailed
in the manner provided herein shall be conclusively presumed to have
been given on the date mailed whether or not the holder received the
notice. In addition to any information required by law, such notice
shall state: (a) the Redemption Date; (b) the Redemption Price; and
(c) that distributions on the units to be redeemed will cease to
accumulate on the Redemption Date.
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(2) If notice has been mailed in accordance with subparagraph (1)
above and provided that on or before the Redemption Date specified in
such notice all funds necessary for such redemption shall have been
irrevocably set aside by the Partnership, separate and apart from its
other funds in trust for the benefit of the holder of the Series C
Preferred Partnership Units so called for redemption, so as to be, and
to continue to be available therefor, then, from and after the
Redemption Date, distributions on the Series C Preferred Partnership
Units so called for redemption shall cease to accumulate, and said
units shall no longer be deemed to be outstanding and shall not have
the status of Series C Preferred Partnership Units and all rights of
the holder thereof as a partner of the Partnership (except the right
to receive the Redemption Price) shall cease. Upon surrender, in
accordance with such notice, of the Series C Preferred Partnership
Units so redeemed, such Series C Preferred Partnership Units shall be
redeemed by the Partnership at the Redemption Price.
(3) Any funds deposited with a bank or trust company for the
purpose of redeeming Series C Preferred Partnership Units shall be
irrevocably deposited except that:
(a) the Partnership shall be entitled to receive from such
bank or trust company the interest or other earnings, if any,
earned on any money so deposited in trust, and the holder of any
Series C Preferred Partnership Units redeemed shall have no claim
to such interest or other earnings; and
(b) any balance of monies so deposited by the Partnership
and unclaimed by the holder of the Series C Preferred Partnership
Units entitled thereto at the expiration of two years from the
applicable Redemption Date shall be repaid, together with any
interest or other earnings earned thereon, to the Partnership,
and after any such repayment, the holder of the units entitled to
the funds so repaid to the Partnership shall look only to the
Partnership for payment without interest or other earnings.
(4) Unless full accumulated distributions on all Series C
Preferred Partnership Units and any other class or series of Parity
Partnership Units shall have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set
apart for payment for all past Quarterly Distribution Periods and the
then current Quarterly Distribution Period, no Series C Preferred
Partnership Units or Parity Partnership Units shall be redeemed or
purchased or otherwise acquired directly or indirectly; provided,
however, that the foregoing provision shall not restrict or otherwise
adversely affect the rights of the holder of the Series C Preferred
Partnership Units under Section 6 hereof.
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(5) If the Redemption Date is after a Record Date and before the
related Quarterly Distribution Date, the distribution payable on such
Quarterly Distribution Date shall be paid on the Redemption Date to
the holder in whose name the Series C Preferred Partnership Units to
be redeemed are registered at the close of business on such Record
Date notwithstanding the redemption thereof between such Record Date
and the related Quarterly Distribution Date.
13. PUT RIGHTS.
1. EXERCISE OF PUT RIGHT. The holder of the Series C Preferred
Partnership Units shall have the right, at its option, to put (the "Put
Right") to the Partnership at any time all, but not part, of the Series C
Preferred Partnership Units at a price per unit (the "Put Price") equal to
the portion of the Capital Account balance of the holder of such Units
attributable to such Units, as determined after taking into account all
contributions and distributions, to and including the date fixed for such
exchange (the "Exchange Date"), as well as all allocations of Net Profit,
Net Losses and other items to such holder with respect to the fiscal year
in which the Exchange Date falls (including without limitation the
allocations provided by Sections 2(g) and 2(h) of Exhibit F to this
---------
Agreement, to the extent applicable to the exchange). The Put Price shall
be paid to the holder, at the option of the Partnership, in (i) cash, or
(ii) a number of shares of Common Stock equal to either (x) the aggregate
Put Price to be paid by the Partnership divided by the Current Per Share
Market Price, if the Current Per Share Market Price is greater than
$33.4375 per share (the "Put Exchange Price"), or (y) 1,046,729 shares of
Common Stock, if the Current Per Share Market Price is less than or equal
to the Put Exchange Price (the "Put Share Exchange Rate").
2. PROCEDURES OF PUT RIGHT.
(1) The Put Right shall terminate at the close of business on (i)
the Redemption Date set pursuant to Section 5 hereof, or (ii) if the
Partnership shall so elect and state in the notice of redemption, the
date on which the Partnership irrevocably deposits with a designated
bank or trust company money sufficient to pay, on the Redemption Date,
the Redemption Price, unless the Partnership shall default in making
payment of the amount payable upon such redemption.
(2) In order to exercise the Put Right, the holder of the Series
C Preferred Partnership Units shall mail notice of the exercise of
such right to the Partnership not less than 5 days nor more than 30
days prior to the Exchange Date and shall surrender to the Partnership
the units to be exchanged on the Exchange Date. If the Exchange Date
is after a Record Date and before the related Quarterly Distribution
Date, the distribution payable on such Quarterly Distribution Date
shall be paid on the Exchange Date to the holder in whose name the
Series C Preferred Partnership Units to be exchanged are registered at
the close of business on such Record Date notwithstanding the exchange
thereof between such Record Date and the related Quarterly
Distribution Date.
S-7
(3) The Put Share Exchange Rate shall be adjusted from time to
time as follows:
(i) In case Weeks shall, after the date of original issuance
ofthe Series C Preferred Partnership Units, (A) pay an
extraordinary dividend or make an extraordinary distribution on
its Common Stock in shares of its Common Stock, (B) subdivide or
split its outstanding Common Stock into a greater number of
shares, (C) combine its outstanding Common Stock into a smaller
number of shares or (D) issue any shares of capital stock by
reclassification of its Common Stock, the Put Share Exchange Rate
in effect immediately prior thereto shall be adjusted so that the
holder of any Series C Preferred Partnership Units thereafter
surrendered for exchange shall be entitled to receive the number
of shares of Common Stock of Weeks which such holder would have
owned or have been entitled to receive after the occurrence of
any of the events described above had such units been surrendered
for exchange immediately prior to the occurrence of such event or
the record date therefor, whichever is earlier. An adjustment
made pursuant to this clause (i) shall become effective
immediately after the close of business on the record date for
determination of shareholders entitled to receive such
extraordinary dividend or extraordinary distribution in the case
of an extraordinary dividend or extraordinary distribution
(except as provided in subparagraph (6) below) and shall become
effective immediately after the close of business on the
effective date in the case of a subdivision, split, combination
or reclassification.
(ii) No adjustment in the Put Share Exchange Rate shall be
required unless such adjustment would require an increase or
decrease of at least 1%; provided, however, that any adjustments
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which by reason of this subparagraph (ii) are not required to be
made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this subparagraph
(3) shall be made to the nearest 1/100th of a share (with .005 of
a share being rounded upward).
(4) Whenever the Put Share Exchange Rate is adjusted in
accordance with subparagraph (3), the Put Exchange Price shall be
adjusted by multiplying such Put Exchange Price immediately prior to
such adjustment by a fraction, of which the numerator shall be the
number of shares of Common Stock issuable upon exchange immediately
prior to such adjustment, and of which the denominator shall be the
number of shares of Common Stock issuable upon exchange immediately
thereafter.
(5) In any case in which subparagraph (3) above provides that
an adjustment shall become effective immediately after a record date
for an event and
S-8
the date fixed for exchange occurs after such record date but before
the occurrence of such event, the Partnership may defer until the
actual occurrence of such event (i) issuing to the holder of the
Series C Preferred Partnership Units surrendered for exchange the
additional shares of Common Stock issuable upon such exchange by
reason of the adjustment required by such event over and above the
Common Stock issuable upon such exchange before giving effect to such
adjustment and (ii) paying to such holder any amount in cash in lieu
of any fraction pursuant to Section 12.
(6) Notwithstanding any other provision herein to the contrary,
the issuance of any shares of Common Stock pursuant to any plan
providing for the reinvestment of dividends or interest payable on
securities of Weeks and the investment of additional optional amounts
in shares of Common Stock under any such plan shall not be deemed to
constitute an issuance of Common Stock. There shall be no adjustment
of the Put Share Exchange Rate in case of the issuance of any stock of
Weeks in a reorganization, acquisition, stock sale or other similar
transaction except as specifically set forth in Section 11. If any
action or transaction would require adjustment of the Put Share
Exchange Rate pursuant to more than one provision, only one adjustment
shall be made and such adjustment shall be the amount of adjustment
which has the highest absolute value.
(7) Subject to the provision of Section 12(a), Weeks shall not
take any action which results in adjustment of the number of shares of
Common Stock issuable upon exchange of Series C Preferred Partnership
Units if the total number of shares of Common Stock issuable after
such action upon exchange of the Series C Preferred Partnership Units
then outstanding, together with the total number of shares of Common
Stock then outstanding, would exceed the total number of shares of
Common Stock then authorized under Weeks' Articles of Incorporation.
Subject to the foregoing, Weeks shall take all such actions as it may
deem reasonable under the circumstances to provide for the issuance of
such number of shares of Common Stock as would be necessary to allow
for the exchange from time to time, and taking into account
adjustments as herein provided, of the outstanding Series C Preferred
Partnership Units in accordance with the terms and provisions of
Weeks' Articles of Incorporation.
14. VOTING RIGHTS. Except as required by law, the holder of the Series C
Preferred Partnership Units shall not be entitled to vote at any meeting of the
Partners or for any other purpose or otherwise to participate in any action
taken by the Partnership or the Partners, or to receive notice of any meeting of
the Partners; provided, however that so long as the Series C Preferred
Partnership Units remain outstanding, the Partnership will not, without the
affirmative vote or consent of the holder of the Series C Preferred Partnership
Units, (i) authorize or create a class or series of Partnership Units ranking
prior to the Series C Preferred Partnership Units, as to the payment of
distributions or as to the distribution of assets upon liquidation, dissolution
or winding up (taking into account the effects of allocations of Net Profits,
Net Losses and other items), (ii) amend, alter or repeal the provisions of the
Partnership Agreement so as to materially and adversely affect any
S-9
right, preference, privilege or voting power of the Series C Preferred
Partnership Units (provided that the amendment of the provisions of the
Partnership Agreement so as to authorize or create or to increase the authorized
amount of any class of Units that are not senior in any respect to the Series C
Preferred Partnership Units, or any Parity Partnership Units, shall not be
deemed to adversely affect the rights, preferences, privileges or voting power
of the Series C Preferred Partnership Units); or (iii) effect or consummate a
consolidation with or a merger of the Partnership with or into another entity,
unless each Series C Preferred Partnership Unit (x) shall remain outstanding
without a material and adverse change to its terms and rights or (y) shall be
converted into or exchanged for preferred units of the surviving entity having
preferences, voting powers, restrictions, limitations as to distributions,
qualifications and terms or conditions of redemption thereof identical to that
of a Series C Preferred Partnership Unit (except for changes that do not
materially and adversely affect the holder of Series C Preferred Partnership
Units). The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding Series C Preferred Partnership Units shall
have been redeemed or called for redemption pursuant to Section 5 or 6 hereof
and sufficient funds shall have been deposited in trust to effect such
redemption. Nothing contained in this Section 7 shall adversely affect the
rights granted to AEW Fund pursuant to that certain Management Rights Letter (as
defined in the Securities Purchase Agreement).
15. CONVERSION. Except as otherwise set forth herein, the Series C
Preferred Partnership Units are not convertible into or exchangeable for any
other property or securities of the Partnership.
16. NO MATURITY. The Series C Preferred Partnership Units shall have no
stated maturity and will not be subject to any sinking fund or mandatory
redemption provisions.
17. RESTRICTIONS ON TRANSFER. The Series C Preferred Partnership Units
may only be transferred in whole and not in part. The Series C Preferred
Partnership Units are subject to the transfer restrictions set forth in Article
IX of the Partnership Agreement. For this purpose, no Restricted Period shall
apply with respect to the Series C Preferred Partnership Units, and the "Rights"
applicable shall be the Put Right and the other provisions of Section 6 hereof.
18. 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 the holder of Series C Preferred Partnership Units an agreement
providing that such holder shall have the rights provided herein, during the
period such rights shall be exercisable (which shall be at least as long as the
period for which such rights can be exercised pursuant to the terms hereof), to
exercise such rights for the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, share exchange, sale or
transfer
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by a holder of the number of shares of Common Stock for which such 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 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 Section 11, 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 herein.
19. GENERAL.
a. All shares of Common Stock delivered upon exchange or redemption
of the Series C Preferred Partnership Units will upon delivery be duly and
validly issued and fully paid and nonassessable. Weeks covenants that it
will at all times reserve and keep available, free from preemptive rights,
out of the aggregate of its authorized but unissued shares of Common Stock
or its issued shares of Common Stock held in its treasury, or both, for the
purpose of effecting the exchange or redemption of the Series C Preferred
Partnership Units, the full number of shares of Common Stock deliverable
upon the exchange or redemption of all outstanding shares of Series C
Preferred Partnership Units not theretofore exchanged or redeemed.
b. In connection with the exchange or redemption of any Series C
Preferred Partnership Units, fractions of such units may be converted;
however, no fractional shares or scrip representing fractions of shares of
Common Stock shall be issued upon exchange or redemption of the Series C
Preferred Partnership Units. Instead of any fractional interest in a share
of Common Stock which would otherwise be deliverable upon the exchange or
redemption of a share of Series C Preferred Partnership Units (or fraction
thereof), the Partnership shall pay to the holder of such unit an amount in
cash (computed to the nearest cent) equal to the Current Per Share Market
Price immediately preceding the date of exchange or redemption multiplied
by the fraction of a share of Common Stock represented by such fractional
interest
c. For purposes hereof, the number of shares of Common Stock at any
time outstanding shall not include any shares of Common Stock then owned or
held by or for the account of Weeks or any entity controlled by Weeks.
S-11
d. Neither the General Partner nor the Partnership shall have any
obligation or authority to redeem or exchange any Series C Preferred
Partnership Units to the extent that issuance of shares of Common Stock
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 Series C Preferred Partnership Units which may not be redeemed
or exchanged with shares of Common Stock. Each holder shall provide to the
General Partner such information as the General Partner may request
regarding such holder's actual and constructive ownership of Common Stock
and Preferred Stock (and of individuals, and entities related to such
holder) in order for the General Partner to determine, in its sole
discretion, whether an exchange or redemption of the Series C Preferred
Partnership Units for shares of Common Stock would result in a violation of
such restrictions.
e. To the extent the Partnership issues shares of Common Stock, 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 may obtain the necessary shares of Common Stock from Weeks.
f. Notwithstanding anything herein 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
redemption or exchange right by paying the holder of Series C Preferred
Partnership Units the Redemption Price or Put Price, as applicable. In
such event, the Assumers shall acquire the Series C Preferred Partnership
Units and shall be treated for all purposes as the owner of such Series C
Preferred 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 redemption or exchange right in the manner
described in this paragraph, the Partnership shall have no obligation to
pay any amount to such holder with respect to such holder's exercise of
such right; provided, however, that the Partnership shall remain liable to
the holder to the extent that any such holder's right is not fully
satisfied; and each of the holder, the Partnership, and the Assumers shall
treat the transaction between the Assumers and the holder as a sale of the
holder's Series C Preferred Partnership Units to the Assumers for federal
income tax purposes. To the extent the Assumers issue shares of Common
Stock, they may obtain the necessary shares of Common Stock from Weeks.
Each holder agrees to execute such documents as the General Partner may
reasonably require in connection with the issuance of Common Stock.
g. Redemption or exchange of Series C Preferred Partnership Units
shall be accompanied by proper instruments of transfer and assignment for
such Series C Preferred
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Partnership Units and by the delivery of (i) representations and warranties
of (A) such holder with respect to its due authority to transfer all of the
right, title and interest in and to such Series C Preferred Partnership
Units and with respect to the status of the Series C Preferred Partnership
Units being transferred, free and clear of all Liens, and (B) the
Partnership or the Assumers, as applicable, with respect to due authority
for the redemption or exchange of such Series C Preferred Partnership
Units, and (ii) to the extent that shares of Common Stock are issued, (A)
an opinion of counsel for Weeks, reasonably satisfactory to the holder(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 holder or its designee.
h. The holder of Series C Preferred Partnership Units covenants and
agrees that all such Partnership Units redeemed or exchanged shall be
delivered free and clear of all Liens. Should any Liens exist or arise
with respect to such Series C Preferred 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 or the Put Price, as
applicable, in the form of the cash in circumstances in which such cash
will be sufficient to cause such existing Lien to be discharged in full
upon application of all or a part of the cash. The Partnership and the
Assumers are expressly authorized to apply such portion of the cash as may
be necessary to discharge such Lien in full. The holder further agrees
that, in the event any state or local property transfer tax is payable as a
result of the transfer of its Series C Preferred Partnership Units to the
Partnership or the Assumers, such holder shall assume and pay such transfer
tax.
i. The rights of the holder of the Series C Preferred Partnership
Units, in its capacity as a holder of the Series C Preferred Partnership
Units, are in addition to and not in limitation on any other rights or
authority of the holder of the Series C Preferred Partnership Units, in any
other capacity, under the Partnership Agreement. In addition, nothing
contained herein shall be deemed to limit or otherwise restrict any rights
or authority of the holder of the Series C Preferred Partnership Units
under the Partnership Agreement, other than in its capacity as a holder of
the Series C Preferred Partnership Units.
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