EXHIBIT 10.1
SIXTEENTH AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS SIXTEENTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. (the "Amendment") is entered into as
of the 14th day of January, 1999 by and among WEEKS GP HOLDINGS, INC., a Georgia
corporation (the "General Partner"), WEEKS CORPORATION, a Georgia corporation
(the "Company"), and PARAGON LEGACY ASSOCIATES, LTD. (the "Contributor").
RECITALS
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Weeks Realty, L.P. (the "Partnership") is a Georgia 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, 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 as of 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 22, 1998, the
Tenth Amendment to the Partnership Agreement dated as of April 3, 1998, the
Eleventh Amendment to the Partnership Agreement dated as of May 26, 1998, the
Twelfth Amendment to the Partnership Agreement dated as of June 3, 1998, the
Thirteenth Amendment to the Partnership Agreement dated as of August 7, 1998,
the Fourteenth Amendment to the Partnership dated as of November 6, 1998, and
the Fifteenth Amendment to the Partnership dated as of November 12, 1998 (the
"Partnership Agreement"). 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
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A hereto (the "Transaction Documents"), and the transactions effected by the
-
Transaction Documents, effective as of the date hereof the Contributor has
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 Contributor as a Limited Partner of the Partnership, and the
Contributor wishes to enter into this Amendment to memorialize their agreement
as to certain matters relating to their becoming a Limited Partner 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 Contributor is hereby admitted to the Partnership
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as a Limited Partner, effective as of the date hereof, and the Contributor
hereby agrees to be bound by the Partnership Agreement, including, but not
limited to, the transfer restrictions contained in Article IX thereof.
2. Capital Contributions. The Contributor has agreed to have made,
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as of the date hereof, the Capital Contributions set forth on Exhibit B hereto.
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The agreed to gross fair market values of any property other than money
contributed by the Contributor, which shall be such property's initial Gross
Asset Value, are shown on Exhibit B.
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3. Initial Partnership Units; Rights.
---------------------------------
(a) The Partnership Units attributable to the Partnership Interests of
the Contributor, effective upon its admission as a Limited Partner at
the date hereof, are as set forth on Exhibit B hereto, and the
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Partnership Agreement is hereby amended to reflect the Contributor's
having such Partnership Units.
(b) The Partnership does hereby grant to the Contributor, and it 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
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hereto. The Rights are governed solely by this Amendment and Exhibit
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D hereto, and the Contributor shall have none of the rights with
-
respect to the "Rights" provided for in Section 11.1 and Exhibit B-1
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to the Partnership Agreement. The Rights granted hereunder may be
exercised by the Contributor, on the terms and subject to the
conditions and restrictions contained in Exhibit D hereto, upon
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delivery to the Partnership of a Conversion Exercise Notice, in the
form of Schedule 1 attached to Exhibit D, which notice shall specify
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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
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admission of the Contributor as a Limited Partner at the date hereof, the
Percentage Interests of the Contributor has been reflected on Exhibit C hereto,
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and the Partnership Agreement is hereby amended accordingly.
5. Future Contributions. The parties acknowledge that, pursuant to
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and subject to the terms and conditions of the Transaction Documents, the
Contributor may make additional Capital
Contributions. Concurrently with any such additional Capital Contribution, the
General Partner shall supplement this Amendment by executing and attaching
hereto supplements to Exhibits B and C (which shall be captioned "Exhibit B-1,"
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"Exhibit B-2," "Exhibit C-1," "Exhibit C-2," and so on and shall identify the
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Capital Contribution to which each relates) that will, respectively, reflect (to
the extent determinable at such time) the Capital Contribution made by the
Contributor at that time, the initial Gross Asset Value of any property other
than money included in such Capital Contribution, the additional Partnership
Units attributable to the Partnership Interest associated with such Capital
Contribution, and the resulting restated Percentage Interests of all of the
Partners. Such supplements shall be in accordance with the terms of the
Transaction Documents. The Partnership Agreement shall be deemed to be amended
as reflected in each such supplement to this Amendment.
6. Adjustments to Partnership Units. The parties acknowledge that the
--------------------------------
Transaction Documents provide for adjustments to the Partnership Units of the
Contributor in certain circumstances, and further provide that the Contributor's
Partnership Interests and Units, and the resulting restated Percentage Interests
of all of the Partners, may not be capable of determination at the time a
Capital Contribution is made after the date hereof. At the times of adjustment
and final determination provided for in the Transaction Documents, the General
Partner shall supplement this Amendment by executing and attaching hereto either
additional supplements to Exhibits B and C (in the form described above), or
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amended and restated versions of prior supplements to Exhibits B and C, as
----------------
applicable. Such supplements shall be in accordance with the terms of the
Transaction Documents. The Partnership Agreement shall be deemed to be amended
as reflected in each such supplement to this Amendment.
7. Proration of Distributions. Notwithstanding any contrary
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provision of the Partnership Agreement, including, without limitation, Section
6.2 thereof, the Contributor agrees that the distribution of Net Operating Cash
Flow made for the calendar quarter in which the Partnership Units are issued, 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 Partnership Units 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 of issuance of the Partnership Units and
ending on the last day of such calendar quarter and the denominator of which is
the total number of days in the calendar quarter in which the Partnership Units
are issued.
8. Representations and Warranties.
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(a) Contributor's Representations. The Contributor hereby
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reaffirms and makes to each of the Partnership and the General Partner
those representations and warranties contained in the Acquisition
Agreement identified in Exhibit A attached hereto. In addition, the
Contributors hereby represents and warrants to the Partnership and the
General Partner that (i) such Contributor is acquiring the Partnership
Units for the Contributor's 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) Contributor is an "accredited investor," as
that term is defined in Rule 501(a) of Regulation D promulgated under
the Securities Act; (iii) 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 Contributor's representations as
expressed herein; (iv) 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) Contributor
understands and acknowledges that no public market now exists for any
of the Partnership Units and that there can be no assurance that a
public market will ever exist for the Partnership Units; and (vi)
Contributor has such knowledge and experience in financial and
business matters, or has been adequately advised by Contributor's
financial representatives, that Contributor is capable of evaluating
the merits and risks of the purchase of the Partnership Units pursuant
to this Agreement and of protecting Contributor's interests in
connection herewith.
(b) No Liens. The Contributor represents and warrants to the
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Partnership and the General Partner that at the date hereof none of
the Partnership Units issued or issuable to the Contributor pursuant
to the Transaction Documents, and none of the shares of Common Stock
that may be acquired by the Contributor upon exercise of Rights, is
subject to any Lien, other than the security interest created by
paragraph 11 hereof.
(c) Definition. All of the representations, warranties, covenants and
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agreements of the Contributor referred to in this paragraph 8 are
referred to collectively as the "Representations and Warranties."
(d) General Partner Representations. The General Partner represents
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and warrants to the Contributor as follows:
(i) Organization. The General Partner is duly incorporated, validly
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existing and in good standing under the laws of the State of
Georgia.
(ii) Due Authorization; Binding Agreement. The execution, delivery
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and performance of this Amendment by the General Partner have
been duly and validly authorized by all necessary action of the
General Partner and the Partnership. This Amendment has been
duly executed and delivered by the General Partner and
constitutes a legal, valid and binding obligation of the General
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
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
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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 11 hereof.
9. 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, the Company or the General
Partner unless the Partnership, the Company 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 first anniversary of
the last issuance of Units pursuant to the Transaction Documents (the "Survival
Period").
10. Indemnification.
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(a) The Contributor indemnifies and holds harmless the Partnership,
the Company 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 incurred) sustained or incurred by the Partnership, the
Company or the General Partner as a result of or arising out of any
inaccuracy in or breach of a Representation or Warranty.
(b) The Partnership, the Company and the General Partner shall not be
entitled to indemnification hereunder unless a Notice of Breach has
been delivered by the Partnership, the Company or the General Partner
to the Contributors.
(c) If a claim for indemnification is asserted by the Partnership, the
Company or the General Partner against the Contributor, the
Contributor shall have the right, at its own expense, to participate
in the defense of any claim, action or proceeding asserted against the
Partnership, the Company 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, the Company and the General
Partner pursuant to this paragraph 10 shall be the exclusive remedy of
the Partnership, the Company and the General Partner for any breach of
any Representation or Warranty contained in this contained in this
Agreement. Nothing contained herein shall limit any remedy the
Partnership (or any affiliate of the Partnership including, without
limitation, any affiliate of the Partnership as determined with
respect to the voting or economic control held by or in the
Partnership) may have under the Transaction Documents, including,
without limitation, the remedy of specific performance for any failure
by the Contributor to contribute a property or otherwise limit any
remedy the Partnership, the Company or the General Partner may have
for any commission of fraud made by the Contributor.
11. Security and Remedies.
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(a) The Contributor 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 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 the Contributor under paragraph 10
hereof. Except as otherwise provided in this Amendment, the
indemnification obligations of the Contributor hereunder with respect
to breaches of Representations and Warranties shall be payable out of
the Contributor's entire Collateral; provided, however, that the
Contributor may satisfy all or any part of such indemnification
obligation of the Contributor in cash if the Contributor so elect.
Any Transfer by a Contributor of its Collateral shall be subject to
the lien and security interest granted hereby.
(b) In the event the General Partner asserts that the Contributor
has an indemnification obligation to the Partnership, the Company or
the General Partner under paragraph 10 hereof, the General Partner
shall deliver written notice (the "Indemnification Notice") to the
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
deliver written notice to the General Partner indicating that the
Contributor dispute 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 their 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 10 hereof as determined pursuant to Article
XIV of the Partnership Agreement, and do 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 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
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ownership limits in the Articles of Incorporation would not prohibit
the issuance of any such shares of Common Stock to the Contributors),
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
10 hereof. In the event the Partnership shall have acquired from the
Contributor any Collateral pursuant to this paragraph 11, the General
Partner shall deliver written notice to the 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 the Contributor any
Collateral pursuant to this paragraph 11, 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. The 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 Amendment, including delivering the certificates
representing the Partnership Units or shares of Common Stock to the
General Partner.
(c) On the first day immediately following the expiration of the
Survival Period as defined in paragraph 9 hereof (or, if a Notice of
Breach has been delivered to the Contributor prior to such date, then
on the first day immediately following the resolution of such Notice
of Breach) the Contributor will be relieved of the restrictions on
transferability provided for by this Amendment (except that the
transfer restrictions contained in the Partnership Agreement shall
continue) and the security interest in the Collateral shall terminate
without further action, and the Partnership, at the request of the
Contributor, shall promptly execute and deliver any document or
instrument reasonably requested by the Contributor to evidence such
termination.
12. Recourse. Notwithstanding anything contained in this Amendment
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or in the Partnership Agreement to the contrary, the recourse of the General
Partner, the Company or the Partnership under paragraph 10 hereof with respect
to breaches of Representations and Warranties of the Contributor shall not be
limited to the Contributor's Collateral.
13. Restriction on Transfer. In connection with the security
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interests granted by the Contributor under paragraph 11 hereof, the Contributor
agrees that any shares of Common Stock and any portion of such Contributor's
Partnership Interests included in the Collateral shall not be Transferred
without the consent of the General Partner; provided, however, that the
Contributor 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 11 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. On the first day
immediately following the expiration of the Survival Period as defined in
paragraph 9 hereof (or, if a Notice of Breach has been delivered to the
Contributor prior to such date, then on the first day immediately following the
resolution of such Notice of Breach) the Contributor will be relieved of the
restrictions on transferability provided for by this paragraph 13 without
further action, and the Partnership, at the request of the Contributor, shall
promptly execute and deliver any document or instrument reasonably requested by
the Contributor to evidence such termination.
14. Miscellaneous. This Amendment shall be governed by and construed
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in conformity with the laws of the State of Georgia. For the purposes of the
notice provisions of the Partnership Agreement, the address 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
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.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first above written.
WEEKS REALTY, L.P., a Georgia limited
partnership
By: Weeks GP Holdings, Inc., a Georgia
corporation, its Sole General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
___________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman and
Chief Investment Officer
[SIGNATURES CONTINUED ON NEXT PAGE]
CONTRIBUTOR:
PARAGON LEGACY ASSOCIATES, LTD.,
By: WRC Turtle Creek, Inc.,
a Texas corporation
By:
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Name:
Title:
Address:
Solely to evidence its agreement to its
undertakings in Exhibit D hereto:
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WEEKS CORPORATION
By:
----------------------------------
Name:
Title:
CONTRIBUTOR:
PARAGON LEGACY ASSOCIATES, LTD.,
By: WRC Turtle Creek, Inc.,
a Texas corporation
By:
--------------------------
Name:
Title:
Address:
Solely to evidence its agreement to its
undertakings in Exhibit D hereto:
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WEEKS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman and
Chief Investment Officer
Exhibit A
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TRANSACTION DOCUMENTS
That certain Contribution Agreement (the "Contribution Agreement") dated as of
----------------------
December 17, 1998, between the Partnership and Contributor, covering the "Phase
II Lease" and other property described therein, together with the other
documents executed and delivered pursuant to such Contribution Agreement.
Exhibit B
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Capital Contribution:
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Paragon Legacy Associates, Ltd. Capital Contribution: All assets, properties
Capital Contribution: and businesses transferred from Paragon Legacy
Associates, Ltd. on January 14, 1999, to the
Partnership pursuant to the Contribution
Agreement (as defined in Exhibit A to the
foregoing Amendment)
Gross Fair Market Value of Property Contributions:
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Gross Fair Market Value of all
property other than money included in
Contribution: $1,500,000.00*
* This is the gross value of the property being contributed pursuant to the
Contribution Agreement as of the closing of the contribution. At such closing,
pursuant to the Contribution Agreement, Contributor is to receive a cash
distribution from the Partnership in the amount of $1,200,004.40, reimbursing
Contributor for costs and expenses relating to the property, together with Units
having a value of $299,995.60.
Exhibit C
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Weeks Realty, L.P.
Partnership Interests as of 1/13/99
No. Person/Entity Units Percent
----------------- ----- -------
Common Partnership Interests
General Partner:
1 Weeks GP Holdings, Inc. 337,503 1.250%
Limited Partners:
2 Weeks LP Holdings, Inc. 19,336,919 71.621%
3 NWI Warehouse Group, L.P. 2,685,649 9.947%
4 A. Xxx Xxxxx, Xx. 614,079 2.274%
5 Xxxx X. Xxxxx 239,791 0.888%
6 Xxxxxx X. Xxxxx 228,047 0.845%
7 A.R. Weeks, Jr., as Trustee U/W of
Xxxxx Xxx Weeks dated March 1, 1983,
f/b/o Xxxxxx Xxx Xxxxx, A.R. Weeks,
Jr., Xxxxxxx Xxxxx Xxxxxx, Xxxxxxxx
Weeks and Xxxx Xxxxxxx Xxxxx 212,663 0.788%
8 Xxxxxxxx X. Xxxxx 206,607 0.765%
9 Xxxxxxx Xxxxx Xxxxxx 198,339 0.735%
10 Xxxxx X. Weeks, A.R. Weeks, Jr., and
Xxxxxx Xxxxxxxxx Weeks as Trustees
under Trust Agreement dated 10/27/76,
as amended, f/b/o/ Xxxxxx Xxx Xxxxx,
A.R. Weeks, Jr., Xxxxxxx Xxxxx Xxxxxx,
Xxxxxxxx Xxxxxx Xxxxx and Xxxx Xxxxxxx
Xxxxx. 187,492 0.694%
11 Xxxxx X. Xxxxx 163,048 0.604%
12 Weeks Horizon Corp. 116,012 0.430%
13 Oakdale Land Management, Inc. 110,493 0.409%
14 Weeks Hillside Corp. 78,145 0.289%
15 Xxxxxx X. Xxxxxxxx 52,817 0.196%
16 Weeks Southridge Corp. 42,993 0.159%
17 Xxxxxxx X. Xxxxxxxx 28,877 0.107%
18 Xxxxx X. Weeks 27,535 0.102%
19 Xxxxx X. Xxxxxxxx 20,016 0.074%
20 Xxxxxxx & Company Real Estate, Inc. 20,000 0.074%
21 HV, Inc. 17,074 0.063%
22 Xxxxx X. Xxxxxxx 5,627 0.021%
23 Xxxx X. Xxxxxx 5,627 0.021%
24 Xxxxxx X. Xxxxxx 5,138 0.019%
25 Xxxx X. Xxxxxxx 4,110 0.015%
26 Xxxx X. Xxxxxxx 1,541 0.006%
27 Weeks Management Corp. 1,142 0.004%
28 RTF Management Corp. 257 0.001%
29 Xxxxx Xxxxxxxxxx Xxxxxxxx 268,508 0.995%
30 Xxxxxx X. Xxxxxxx 36,639 0.136%
31 Xxxx X. Xxxxxxx 298 0.001%
00 Xxxxxxxxx Xxxx Xxxx Associates
Limited Partnership 351,484 1.302%
33 Xxx X. Xxxxxx 2,053 0.008%
34 Xxxxxx X. Xxxxxxxxx 2,053 0.008%
35 Xxxxxxx Xxxxxxx 1,757 0.007%
No. Person/Entity Units Percent
----------------- ----- -------
36 Xxxxxxxx Xxxxxx 2,928 0.011%
37 Xxxxx XxXxxx 39 0.000%
38 Xxxx Xxxxxxxx 1,561 0.006%
39 Xxxxxx X. Xxxxxxx Family
Limited Partnership 342,569 1.269%
40 GB Partners, Ltd. 18,461 0.068%
41 Xxxxxxx Xxxxxx 124,523 0.461%
42 Codina Family Investments, Ltd. 30,351 0.112%
43 Codina West Dade Development Corporation 117,692 0.436%
44 The Xxxxxxxx Capital Company 320,721 1.188%
45 Raha Associates, Inc. 7,281 0.027%
46 Xxxxxxx X. Xxxxx 164,001 0.607%
47 PCTC Associates, LLC 47,273 0.175%
48 Xxxxxxx X. Xxxxx 40,789 0.151%
49 Xxxxxxx X. Xxxxx, as Trustee of the
Xxxxx Xxxxx Life Trust U/A with
Xxxxxxx X. Xxxxx, dated December
27, 1973 6,798 0.025%
50 Xxxxxxx X. Xxxxx, as Trustee of the
Xxxxxx Xxxxx Life Trust U/A with
Xxxxxxx X. Xxxxx, dated December
27, 1973 6,798 0.025%
51 Xxxxxxx X. Xxxxx, as Trustee of the
Xxxxxxx Xxxxx Life Trust U/A with
Xxxxxxx X. Xxxxx, dated December
27, 1973 6,798 0.025%
52 Xxxxxxx X. Xxxxx, as Trustee of the
Xxxxxxx Xxxxx Life Trust U/A with
Xxxxxxx X. Xxxxx, dated December
27, 1973 6,798 0.025%
53 The Xxxxxxx Properties Limited
Partnership No. 1 45,895 0.170%
54 Xxxxxx X. Xxxxxxx 28,643 0.106%
55 Xxxxxx X. Xxxxxx, Xx. 28,643 0.106%
56 Xxxxxxxx & Co. 29,528 0.109%
57 Paragon Legacy Associates, Ltd. 10,676 0.040%
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Total Common Partnership Interests 26,999,099 100.00%
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Preferred Partnership Interests
Series A Preferred Units
Weeks LP Holdings, Inc. 6,000,000
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Series C Preferred Units
AEW Targeted Securities Fund, L.P. 1,400,000
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Series X Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxx 0000 Xxxxxxxx Fund, L.P. 2,600,000
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Total Preferred Partnership Interests 10,000,000
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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
Amendment shall be subject to the following terms and conditions:
1. Definitions. Capitalized terms used in this Exhibit without definition
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shall have the meanings given to them in the Partnership Agreement or the
foregoing Amendment, as applicable, and the following terms and phrases shall,
for purposes of this Exhibit D, the Partnership Agreement and the foregoing
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
-----------------
Notice is delivered to the General Partner.
"Conversion Exercise Notice" shall have the meaning set forth in
--------------------------
Paragraph 2 hereof.
"Conversion Factor" shall mean 100%, provided that such factor shall
-----------------
be adjusted in accordance with the provisions of paragraph 10 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended, or any successor statute.
"Exercising Partners" shall have the meaning set forth in Paragraph 2
-------------------
hereof.
"Offered Partnership Units" shall mean the Partnership Units of the
-------------------------
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
----------------
Purchase Price.
"Rights" shall have the meaning set forth in paragraph 3(b) of the
------
foregoing Amendment.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
--------------
any successor statute.
"Stock Purchase Price" shall have the meaning set forth in Paragraph 4
--------------------
hereof.
2. Delivery of Conversion Exercise Notices. Any one or more Limited
---------------------------------------
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.
--------------------------------------------------
(a) No Conversion Exercise Notice, with respect to any Unit may be
delivered to the General Partner by a Limited Partner until the later
of (i) the first anniversary of the date of each such issuance, 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) 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.
(c) 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.
(d) 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
-----------------------------------------------
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.
5. Closing; Delivery of Closing Notice. The closing of the redemption of
-----------------------------------
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.
----------------------------------------------------------
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 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.
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 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
(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 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.
SCHEDULE 1
CONVERSION EXERCISE NOTICE
--------------------------
To: Weeks Realty, L.P.
Reference is made to that certain Sixteenth Amendment (the "Amendment") to
the Second 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 Amendment. Pursuant to Exhibit D to the
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 Sixteenth Amendment (the "Amendment") to
the Second 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 Amendment. The closing of the redemption of
the Offered Partnership Units shall occur at _______, ________, Georgia, on
___________. Pursuant to Exhibit D to the 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:____________________
