EXHIBIT 2.1
THIS BEACON CENTRE CONTRIBUTION AGREEMENT ("Agreement") is made as of this 2nd
day of January, 1998, by and between Xxxxxxx Xxxxxx, Xxxxxx West Dade
Development Corporation, a Florida Corporation (together, "Codina"), Codina
Family Investments, Ltd., a Florida limited partnership ("CFI"), The Xxxxxxxx
Capital Company, a New York general partnership, Raha Associates, Inc., a
Florida corporation (together, "Xxxxxxxx"), Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx
(together, "Tisch" and with Codina, CFI and Xxxxxxxx, "Contributors" and each, a
"Contributor"), Raha Associates II, Inc., a Florida corporation (the "Raha II
Corporation"), Codina West Dade Development Corporation No. 5, a Florida
corporation (the "Codina No. 5 Corporation"), Weeks Realty, L.P., a Georgia
limited partnership ("Acquirer") and Weeks Corporation, a Georgia corporation
(for the purpose set forth below).
WITNESSETH:
In consideration of TEN DOLLARS and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and the mutual
covenants and agreements set forth herein, the parties hereto do hereby agree as
follows:
1. Contribution.
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1.1. Contribution of Partnership Interests. Codina agrees to contribute
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and assign to Acquirer and Acquirer agrees to acquire and accept
subject to and in accordance with the terms and conditions stated
herein, all of Codina's right, title and interest in and to
Codina/Tradewind, Ltd. a Florida limited partnership (the "CT
Partnership Interest"). Codina and CFI agree to contribute and assign
to Acquirer and Acquirer agrees to acquire and accept subject to and
in accordance with the terms and conditions stated herein all of their
rights, title and interests in Codina/Tradewind No. 4 Ltd., a Florida
limited partnership (the "CT No. 4 Partnership Interest" and together
with the CT Partnership Interest, the "Codina Partnership Interests").
Xxxxxxxx and Xxxxx agree to contribute and assign to Acquirer and
Acquirer agrees to acquire and accept subject to and in accordance
with the terms and conditions stated herein, all of their rights,
title and interests in and to Raha Associates, Ltd. a Florida limited
partnership (the "Raha Partnership Interests" and, together with the
Codina Partnership Interests, the "Partnership Interests").
1.2. Weeks Affiliates. Acquirer may designate an affiliate to acquire any
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portion of the Partnership Interests, provided that Acquirer shall
remain liable for all of its obligations under this Agreement.
2. Consideration.
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2.1. Total Consideration. The total consideration from Acquirer in
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respect of the contribution of the Partnership Interests is the sum of
ONE HUNDRED SEVENTY THREE MILLION, SEVEN HUNDRED THOUSAND AND NO/100
DOLLARS ($173,700,000) (the "Acquisition Consideration"). The
Acquisition Consideration shall be paid in the manner set forth below
in this Section 2.
2.2. Assumption and Repayment of Loans. Acquirer shall assume (subject to
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the existing exculpatory provisions) or take subject to, as New York
Life Insurance Company agrees, the existing first mortgage loans with
New York Life Insurance Company and will at Closing (as defined in
Section 8.1 hereof) repay at par the existing construction and partner
loans (which amounts and obligors are set forth in Schedule A hereto).
The aggregate amount of the principal and accrued interest of the
loans as set forth on Schedule A hereto shall be paid by Acquirer at
Closing and credited against the Acquisition Consideration and
Contributors shall be entitled to the release of, or credit for, any
escrows in respect of such loans to the extent such escrows are not
included in Current Assets pursuant to the balance sheet adjustment to
be made pursuant to Section 2.4 hereof. Acquirer hereby indemnifies
Contributors against any and all claims, losses and liabilities under
the assumed, or taken subject to, New York Life Insurance Company
loans, arising on or after the Closing date.
2.3. Net Equity. The remaining balance of the Acquisition Consideration,
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after the assumption (or taking subject to) or repayment of debt,
shall be paid, on the date of Closing, in the combination of cash and
common units of limited partnership interest of Acquirer having the
terms described in Section 3 hereof ("Common Units") as set forth in
Schedule B hereto provided, however, that there will be no fractional
Common Units, and any fractions will be paid in cash. This amount
shall be increased or decreased, as appropriate, by the consideration
adjustment which shall be calculated pursuant to and in the manner set
forth in Section 2.4 hereof.
2.4. Acquisition Consideration Adjustment. The Acquisition Consideration
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shall be (i) increased by the amount by which the combined Current
Assets of New World Partners Joint Venture, New World Partners Joint
Venture Number Two, New World Partners Joint Venture Number Three and
New World Partners Joint Venture Number Four (such partnerships
collectively, the "New World Partnerships") exceed the combined
Current Liabilities of the New World Partnerships at the date of
Closing or (ii) decreased by the amount by which the combined Current
Liabilities of the New World Partnerships exceed the combined Current
Assets of the New World Partnerships at the date of Closing. The
Current Assets and Current Liabilities shall be determined in
accordance with generally accepted
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accounting principles with the following modifications: (i) the
current portion of any liability, and any accrued interest on any
liability, which is paid or assumed pursuant to Section 2.2 hereof
shall not be included in Current Liabilities, (ii) a current liability
shall be accrued for any assessment liens which are certified, or the
work for which has been substantially completed, as of the date of
Closing, (iii) a liability shall be accrued for leasing commissions
and unfunded tenant improvements (including the completion of building
#38 - the Office Max building) which will become payable under an
existing lease of a portion of the Property (however, a liability
shall not be accrued for leasing commissions which may become payable
in the event a lease is renewed, extended or expanded, or some other
option under a lease is exercised, in the future), (iv) no liability
shall be accrued, and Contributors shall be reimbursed for any amounts
expended which do not constitute Current Assets, for obligations or
payments to tenants or to others arising from leases executed after
November 17, 1997, provided, however, that Acquirer shall have
approved any such leases, (v) liability for the sales tax assessment
proposed by the Florida Department of Revenue shall not be accrued nor
shall escrows in respect thereof be included in Current Assets, and
(vi) any liability directly attributable to the Properties which would
have been assumed and not prorated or adjusted if Acquirer had
purchased the Properties directly and not through a contribution of
partnership interests shall not be accrued. The adjustment provided
for in this Section shall be made at Closing based upon the December
31, 1997, consolidated Balance Sheet of the New World Partnerships,
provided that if a consolidated Balance Sheet for the New World
Partnerships with a date closer to the date of the Closing can be
produced, such consolidated Balance Sheet shall be utilized. Within 30
days after the final audit, but in no event later than 12 months after
the date of the Closing, the adjustment provided for in this Section
shall be brought forward to the date of the Closing with such final
adjustments as can be made with information available during this
period. If the parties are unable to agree upon the final adjustment,
the matter shall be submitted to a nationally recognized firm of
certified public accountants reasonably acceptable to the parties and
such firm's determination shall be final and binding on the parties.
The terms "Property" and "Properties" as used in this Agreement shall
refer to the real property owned by the New World Partnerships as set
forth in Schedule I hereto.
3. Common Units.
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3.1. Common Unit Value. Common Unit value, computed as the average
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closing price for Weeks' common stock for the 20 trading days
immediately preceding the signing of the Term Sheet, November 21,
1997, is $30.4875. The Common Units will rank pari passu with and be
entitled to the same rights (including, the right to distributions) as
all of the units held by the general partner and its affiliates (other
than the Preferred Partnership Units), as set forth in the amendment
to Acquirer's partnership agreement in the form attached hereto as
Exhibit B. Contributors shall have the right to convert each Unit
into one share of Weeks Corporation Common Stock subject to the terms
of the anti dilution provisions, including the anti dilution
Conversion Factor, of the rights terms (the "Rights Terms") attached
as Exhibit A hereto, and subject to Acquirer's right to instead pay
the cash equivalent thereof.
3.2. Amendment to Partnership Agreement. Acquirer shall amend its
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partnership agreement to admit Contributors as limited partners
pursuant to an amendment in the form attached hereto as Exhibit B.
3.3. Restrictions on Common Units Issued to Codina and CFI. Common Units
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issued to Codina and CFI will be transferrable subject to the
restrictions on transfer contained in the last two sentences of
Section 9.2 and Section 9.4 of Acquirer's partnership agreement, and,
notwithstanding the foregoing, such Common Units will be restricted
from sale, conversion or transfer until the earlier to occur of (i)
three months from the date of Closing if Codina has not been appointed
to Weeks Corporation's Board of Directors within such three month
period, (ii) if Codina is appointed to the Weeks Corporation Board of
Directors, the date that his term as a Director expires if he is not
re-elected to the Board of Directors, (iii) the death of Codina or
(iv) three years from the date of Closing (such date, the "Expiration
Date"), except for transfers to Codina family members and trusts for
the benefit of Codina family members and to entities entirely owned by
any combination of the foregoing. Such Common Units will be
convertible from time to time in accordance with the Rights Terms at
the holders' option from and after the Expiration Date into common
stock of Weeks Corporation, which may be sold pursuant to a resale
shelf registration statement, or, at the election of Acquirer (after a
holder exercises its conversion option), into the cash equivalent of
such stock.
3.4. Restrictions on Common Units Issued to Tisch and Xxxxxxxx. Common
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Units issued to Tisch and Xxxxxxxx will be transferrable subject to
the restrictions on transfer contained in the last two sentences of
section 9.2 and Section 9.4 of Acquirer's partnership agreement, and
will be convertible from time to time in accordance with the Rights
Terms at the holders' option exercisable at any time into common stock
of Weeks Corporation
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which may be sold pursuant to a resale shelf registration statement,
or, at the election of Acquirer (after the holder exercises its
conversion option), into the cash equivalent of such stock.
3.5. Registration of Shares. Pursuant to, and as more particularly set
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forth in, the Registration Rights Agreement attached hereto as Exhibit
C, Weeks Corporation shall file a shelf registration statement with
the SEC for the shares into which such Common Units are convertible
within 10 business days after the date of Closing for Tisch and
Xxxxxxxx and within 10 business days after the Expiration Date for
Codina and CFI. Weeks Corporation shall at its sole cost and expense
(i) use its best efforts to have each such shelf registration declared
effective as soon as possible, (ii) notify the respective Contributors
immediately upon receiving notice that each such shelf has been
declared effective, (iii) use its best efforts to keep each such shelf
effective for so long as is necessary to permit resales by Tisch,
Benenson, CFI and Codina, as appropriate, and (iv) take any and all
actions reasonably necessary and appropriate to enable Tisch,
Benenson, CFI and Codina to resell such shares pursuant to the
appropriate shelf registration statements.
4. Covenants.
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4.1. Lock-Up of Properties. Acquirer shall not sell or in any way
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transfer (as distinguished from any financing thereof, which is
expressly hereby permitted) any of the partnership interests or
properties owned directly or indirectly by the partnerships whose
interests are being contributed in a manner that would cause a gain to
be recognized to any Contributor for U.S. federal income tax purposes
for a period of 60 months from the date of Closing. The foregoing
notwithstanding, neither the involuntary foreclosure or any conveyance
in lieu thereof of the New York Life Insurance Company loans nor the
sale of the Properties as part of a sale of all or substantially all
of Acquirer's assets shall constitute a violation of this covenant.
4.2. Capital Account Revaluation and Gain Allocation. Acquirer shall, in
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connection with the contribution of the contributed interests
hereunder, revalue its property and increase or decrease the capital
accounts of its preexisting partners to reflect such revaluation in
accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f) and
Acquirer shall comply with the requirements of Treasury Regulation
Section 1.704-1(b)(2)(iv)(f)(1)-(5). Acquirer agrees to use the
"traditional" method described in Treasury Regulation Section 1.704-
3(b) in allocating income, gain, loss or deduction with respect to the
contributed interests pursuant to Section 704(c) of the Internal
Revenue Code.
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4.3. Final Tax Returns. Contributors shall at their sole expense cause
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1997 and 1998 (through the Closing) federal and state, if applicable,
tax returns to be filed for the New World Partnerships,
Codina/Tradewind, Ltd., Codina/Tradewind No. 4, Ltd. and Raha
Associates, Ltd., and Contributors shall at their sole expense cause
all federal and state, if applicable, tax returns to be filed for New
World Partners Joint Venture Number Five, Raha Associates II, Ltd. and
Codina/Tradewind No. 5, Ltd. through the closing of that contribution
pursuant to Section 5.1 hereof.
4.4. Continued Operation of the Properties. From the date hereof until
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the date of Closing, Contributors shall continue to operate the
Properties in the ordinary course of their business and consistent
with their current business practices and policies, and Contributors
shall not sign any new leases or material agreements without the prior
consent of Acquirer, which consent shall not be unreasonably withheld
or delayed.
4.5. Exclusive Dealing. From the date hereof until the date of Closing,
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Contributors shall not market, encumber, convey, negotiate to convey
or commit to convey all or any portion of the Properties to any third
party.
4.6. Administrative Proceeding in respect of the Pre Closing Period.
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Contributors shall be entitled to any refund received from the
government and any payments made by the tenants, including release of
the tenant escrows, with regard to the sales and use tax deficiency
asserted against New World Partners Joint Venture, New World Partners
Joint Venture Number Two and New World Partners Joint Venture Number
Three by the Florida Department of Revenue which is currently the
subject matter of that certain administrative proceeding pending
before the State of Florida Division of Administrative Hearings (and
will return such tenant escrows to the tenants as appropriate), and
Contributors shall have sole control of, (and Acquirer may at its own
cost participate as an observer in), (i) the proceeding and (ii) any
settlement or disposition of the government's claim; provided,
Contributors shall have no authority to settle such claim in any
manner that subjects Acquirer or any of the New World Partnerships to
such liability in respect of the pre Closing period unless
Contributors indemnify Acquirer for such liability. The foregoing
notwithstanding, Acquirer shall employ all reasonable good faith
efforts to collect such liability from the tenants, provided that it
shall not be obligated to unreasonably jeopardize its tenant
relations. Contributors shall severally and not jointly indemnify
Acquirer for any liability arising from such sales tax liability
related to the subject matter of the proceeding, to the extent such
liability is attributable to payments during the period
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prior to the date of Closing and not funded through reimbursements
received from the tenants.
5. Other Transactions Involving the Parties.
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5.1. Building #13. Contributors, the Raha II Corporation and the Codina
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No. 5 Corporation shall have the obligation on the Building No. 13
Valuation Date (as defined in Schedule C hereto) to sell, and Acquirer
shall have the obligation to acquire, the partnership interests of
Raha Associates II, Ltd. and Codina/Tradewind No. 5, Ltd., which own
New World Partners Joint Venture Number Five, which owns the real
estate set forth in Schedule D hereto (building #13, which shall have
been constructed and completed substantially in accordance with the
plans and specifications set forth in Schedule E hereto), to Acquirer
for a minimum consideration of $4.8 million. The actual consideration
(which will be paid in cash) will be calculated based on a
capitalization rate of 8.7% on the Net Operating Income (as defined in
Schedule C hereto). Notwithstanding the foregoing, in no event shall
the consideration required to be paid by Acquirer be less than $4.8
million, provided that the consideration shall be adjusted if
necessary pursuant to Section 2.4 hereof (other than clauses (iii),
(iv) and (v)), calculated effective as of the Building No. 13
Valuation Date and, with respect to the second clause (i) of Section
2.4, calculated with respect to the debt relating to building #13.
Such consideration shall be allocated among Contributors in the manner
set forth in Schedule F hereto. All of the covenants set forth in
Section 4 hereof (other than Sections 4.1, 4.2, 4.4 and 4.6), the
representations, warranties and indemnities set forth in Section 6
hereof, the closing ("closing" in this context refers to the closing
of the sale contemplated in this Section 5.1) conditions set forth in
Section 7 hereof (other than Sections 7.2.3 and 7.3), the closing
costs set forth in Section 8.3 (other than Section 8.3.2), the closing
documents set forth in Sections 8.4.1 and 8.4.5 and the additional
miscellaneous covenants set forth in Section 10 hereof shall apply,
mutatis mutandis, to such contribution.
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5.2. Xxxxx #00, #00 and #42. Tisch and Xxxxxxxx shall have the right
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exercisable for a period of 180 days after the date which is 18 months
from the Closing date, to contribute by limited warranty deed good and
marketable fee simple title to plots #31, #32 and #42, the legal
description of which are described in Schedule K hereto, to Acquirer,
subject only to the Permitted Exceptions set forth on Schedule L
hereto and such other matters affecting title occurring after December
1, 1997 as shall reasonably be approved by Acquirer, for a total
consideration value of $4 million, with $550,000 of such amount
allocated to plot #42 and the
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remaining $3.45 million allocated to plots #31 and #32, provided that
in each case the vested development rights described in Schedule G
hereto are in force and Tisch and Xxxxxxxx shall not have applied for
any zoning changes without Acquirer's prior consent, which consent
shall not be unreasonably withheld. Such consideration shall be paid
in any combination of cash and/or Common Units, as specified by Tisch
and/or Xxxxxxxx on the date of the put. For the purposes of this
section, Unit value will be computed as the average closing price for
Weeks' common stock for the 20 trading days immediately preceding the
exercise of the put (as to all other terms, the Common Units will be
identical to those described in Section 3 hereof). If a portion of
plots #31 and #32 is sold, then the price to be paid by Acquirer upon
exercise of the put by Tisch and Xxxxxxxx shall be reduced using the
per square foot values included in the conceptual site plan attached
as Exhibit D, provided that the remaining land that is to be put to
Acquirer is reasonably commercially developable and is a separate
subdivision or subdivisions. If any dispute arises over whether such
remaining land is commercially developable, the parties agree to
negotiate in good faith to resolve such dispute, and if the parties
are unable to resolve the dispute on their own, each party agrees to
submit such dispute to expedited binding arbitration in accordance
with the rules of the American Arbitration Association. All of the
representations, warranties and indemnities set forth in Section 6
hereof, the closing ("closing" in this context refers to the land
transaction contemplated in this Section 5.2) conditions set forth in
Section 7 hereof (other than Sections 7.2.3 and 7.3), the closing
costs set forth in Section 8.3 hereof (other than Section 8.3.2) and
the additional miscellaneous covenants set forth in Section 10 hereof
shall apply, mutatis mutandis, to such contribution. Ad valorem
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property taxes and other revenues and expenses of, and impounds,
repayments, or other deposits affecting or related to, plots
#31, #32 and #42 (excluding insurance costs and premiums) will be
prorated as of 12:00 a.m. on the closing date. Special assessment
liens certified, or for which the work has been substantially
completed, as of the closing date will be paid by Tisch and Xxxxxxxx.
Tisch and Xxxxxxxx will pay the cost of documentary tax stamps and
documentary surtax stamps required to be affixed to the deed of
conveyance. At the closing of the sale of any, all or portions of
plots #31, #32 and #42, Tisch and Xxxxxxxx shall deliver such
affidavit(s) or certification(s) as reasonably may be required to
induce the title agent and/or underwriter to issue the owner's title
insurance policy insuring such plots.
5.3. Building #7. If building #7 is sold to the tenant, pursuant to its
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exercise prior to the date hereof of its existing option to purchase,
before March 2, 1998, an adjustment will be made to reflect the
amount, if any, by which
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$4 million exceeds the net sale proceeds derived from the sale to such
tenant after deduction for brokerage commission, if any, incurred by
Acquirer in connection with such sale, provided, however, that such
adjustment shall not exceed $500,000. Such adjustment shall be
credited against the anticipated consideration from Acquirer in
respect of the contribution of the partnership interests of Raha
Associates II, Ltd. and Codina/Tradewind No. 5, Ltd. pursuant to
Section 5.1 hereof.
5.4. Building #15. If building #15 is sold to the tenant, pursuant to its
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exercise prior to the date hereof of its existing option to purchase,
before November 1, 1998, an adjustment will be made to reflect the
amount, if any, by which $2,700,000 exceeds the net sale proceeds
derived from the sale to such tenant after deduction for brokerage
commission, if any, incurred by Acquirer in connection with such sale,
provided, however, that such adjustment shall not exceed $193,431. If
such sale occurs prior to the contribution of the partnership
interests of Raha Associates II, Ltd. and Codina/Tradewind No. 5, Ltd.
pursuant to Section 5.1 hereof, such adjustment shall be credited
against the anticipated consideration from Acquirer in respect of such
contribution, otherwise Contributors shall severally indemnify
Acquirer for this adjustment.
5.5. Master Leases. The existing arrangements on the space vacated early
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by Xxxxx Worldwide, Inc., in building #1, with Beacon Industrial Park
Joint Venture, and on the space to be vacated early by Xxxxxx Micro,
Inc., in building #18, with Beacon at 97th Joint Venture, will remain
in effect.
6. Representations, Warranties and Indemnities.
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6.1. Acquirer. Acquirer represents and warrants to Contributors, as of
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the date of this Agreement and as of the Closing, that:
6.1.1. Acquirer is a duly organized validly existing limited
partnership, is properly treated as a partnership for tax
purposes, and has full power and authority to enter into this
Agreement with Contributors and to perform all of Acquirer's
obligations hereunder and no additional consents or approvals
are required for the consummation of the transactions
contemplated hereunder, other than the registration of the
shares into which the Common Units are convertible, which
Weeks Corporation shall use its best efforts to accomplish
pursuant to Section 3.5 hereof.
6.1.2. The Common Units which Contributors will receive at Closing
will, at Closing, be validly and duly issued, fully paid, non-
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assessable and free of all liens and encumbrances and this
Agreement, the Second Amended and Restated Agreement of
Limited Partnership of Weeks Realty, L.P. as amended, and the
option to convert the Common Units into validly issued, fully
paid, non-assessable and unencumbered shares of Weeks
Corporation or cash will at Closing be enforceable in
accordance with their terms.
6.1.3. SEC Documents. Acquirer and Weeks Corporation have filed all
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material reports, schedules, forms, statements and other
documents required to be filed by them with the Securities and
Exchange Commission ("SEC") (the "SEC Documents"). Acquirer
and Weeks Corporation have caused to be delivered to
Contributors true, correct and complete copies of the Second
Amended and Restated Agreement of Limited Partnership of Weeks
Realty, L.P., as amended, and will cause to be delivered to
Contributors copies of any documents as may be filed by
Acquirer and/or Weeks Corporation pursuant to the Securities
Act of 1933 and the Securities and Exchange Act of 1934 (the
"1933 Act" and the "1934 Act", respectively) from the date
hereof to the Closing date. The SEC Documents were, and all
additional documents filed in the future with the SEC will be,
prepared and filed in compliance with the 1933 Act and the
1934 Act and the rules and regulations promulgated by the SEC,
and do not and will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein in order to make the statements contained
therein, in light of the circumstances under which they were
made or will be made, not misleading.
6.1.4. Completion of Due Diligence. Acquirer acknowledges that it
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has been given the opportunity to examine, inspect, study and
investigate, and has already completed such examination,
inspection, studies and investigations of, the properties and
information regarding the properties, including economic,
financial, physical and environmental due diligence and review
of title and survey, and Acquirer is fully satisfied with the
results. Acquirer is not relying on any representations and
warranties of Contributors other than as expressly and to the
extent set forth herein and in the other Agreements in this
transaction.
6.2. Contributors. Contributors severally and not jointly represent and
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warrant to Acquirer, as of the date of this Agreement and as of the
Closing, that:
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6.2.1. Contributors have full power and authority to enter into this
Agreement with Acquirer and to perform all of Contributors'
obligations hereunder and no additional consents or approvals
are required for the consummation of the transactions
contemplated hereunder, and this Agreement is enforceable
against Contributors in accordance with its terms. This
representation shall survive for a period of 18 months from
the date of Closing.
6.2.2. None of the partnerships whose interests are being contributed
or the New World Partnerships have any undisclosed liabilities
unrelated to the property or business of the partnerships, and
the development, ownership and operation of Beacon Centre and
matters relating thereto is and has been the only business of
the partnerships. Contributors hereby severally (and not
jointly) indemnify Acquirer against damages arising from
undisclosed liabilities for which Acquirer would not have been
subject to had it bought all of the properties directly and
not through a contribution of partnership interests (which
shall be deemed to include, without limitation, any liability
which may arise as a result of the accidental death of Xxxxxx
Xxxxx Xxxxxxxxx on parcel 53 of the Property, with respect to
which Acquirer shall be deemed to have given Contributors
notice thereof within the meaning of clause (i) below);
provided that (i) Acquirer shall notify Contributors
immediately upon receiving notice of the existence of such a
liability and (ii) Contributors shall have sole control of any
proceeding relating to or arising from such a liability and
Contributors shall have sole control of any settlement or
disposition of any such claims (except that such settlement or
disposition shall not shift the liability to Acquirer). This
indemnity shall survive for a period of 18 months from the
date of Closing.
6.2.3. Contributors have good title to the partnership interests
being contributed free of any undisclosed liens or
encumbrances, and such partnerships have good title to their
interests in the New World Partnerships free of any
undisclosed liens or encumbrances. This representation shall
survive for a period of 18 months from the date of Closing.
6.2.4. Contributors are contributing to Acquirer 100% of all of the
partnership interests in Raha Associates, Ltd.,
Codina/Tradewind, Ltd. and Codina/Tradewind No. 4, Ltd. Such
partnerships own 100% of all of the partnership interests in
the New World Partnerships. Contributors, the Raha II
Corporation and the
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Codina No. 5 Corporation are contributing
100% of all of the partnership interests in Raha Associates
II, Ltd. and Codina/Tradewind No. 5, Ltd. Such partnerships
own 100% of all of the partnership interests in New World
Partners Joint Venture Number 5. This representation shall
survive for a period of 18 months from the date of Closing.
6.2.5. Contributors have provided Acquirer with true and correct
copies of the partnership agreements and any amendments
thereto for the partnerships whose interests are being
contributed and for the New World Partnerships This
representation shall survive for a period of 18 months from
the date of Closing.
6.2.6. With regard to the Common Units issued and to be issued
pursuant hereto:
a. Contributors that are acquiring Common Units are so
acquiring them for their own accounts and not with a view
to, or for sale in connection with, the "distribution",
as such term is used in Section 2(11) of 1933 Act, as
amended, of any of Common Units in violation of the 0000
Xxx.
b. Each Contributor acquiring Common Units is an "accredited
investor", as that term is defined in Rule 501(a) of
Regulation D promulgated under the 1933 Act.
c. Each Contributor acquiring Common Units understands that
the Common Units have not been registered under the 1933
Act by reason of a specific exemption from the
registration provisions of the 1933 Act that depends
upon, among other things, the nature of the investment
intent and the accuracy of such Contributor's
representations as expressed herein.
d. No such Contributor has relied on Acquirer or Weeks
Corporation or any person or entity affiliated with
Acquirer or Weeks Corporation for business, legal or tax
advice in connection with the transactions contemplated
hereby, and each such Contributor has looked solely to
its own advisors on such matters.
e. Each such Contributor has such knowledge and experience
in financial and business matters that such Contributor
is
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capable of evaluating the merits and risks of the
purchase of the Common Units pursuant to this Agreement
and of protecting such Contributor's interests in
connection herewith.
6.3. Prior Knowledge of Problem. In no event shall Contributors be liable
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after the Closing date for a misrepresentation or breach of warranty
hereunder, if such misrepresentation or breach was disclosed in
writing to Acquirer (or its counsel) on or prior to the Closing date
(provided that disclosure to Acquirer of the Xxxxxx Xxxxx Xxxxxxxxx
matter to which reference is made in Section 6.2.2 hereof shall not be
deemed to disqualify Acquirer from the benefit to Contributors'
indemnity against damages relating thereto as provided in said Section
6.2.2).
6.4. Transfer Taxes. Contributors hereby indemnify Acquirer severally and
--------------
not jointly for any transfer taxes incurred as a result of the
contribution of the Partnership Interests. This indemnity shall
survive for a period of 18 months from the date of Closing.
6.5. Liabilities of the Partnerships. Acquirer hereby indemnifies
-------------------------------
Contributors against any and all claims and liabilities arising, from
the partnerships whose interests are being contributed, on or after
the date of Closing based on facts and circumstances first existing on
or after the date of Closing.
7. Conditions to Closing.
---------------------
7.1. Conditions to Contributors' Obligations. The obligation of
---------------------------------------
Contributors to complete the contributions described herein on the
Closing date under this Agreement is subject to the fulfillment on or
prior to the Closing date of the following conditions, any one or more
of which may be waived by Contributors in advance of Closing in
writing, or by Closing notwithstanding the non-satisfaction of such
condition:
7.1.1. Payment of the Acquisition Consideration. Contributors shall
----------------------------------------
have received the Acquisition Consideration as provided
herein.
7.1.2. Acquirer's Representations and Warranties. All
-----------------------------------------
representations and warranties of Acquirer contained herein
shall be true and correct in all material respects on the date
of this Agreement and on the Closing date.
7.1.3. Execution and Delivery of the Closing Documents. Acquirer
-----------------------------------------------
shall have executed and delivered each of the documents,
agreements
-13-
and other instruments to be executed and delivered
by Acquirer hereunder at or before the Closing.
7.1.4. Other Conditions. Any other matter expressly set forth herein
----------------
as a condition to Contributors' obligation to close or as a
matter to be completed or effected prior to Closing.
7.2. Conditions to Acquirer's Obligation. The obligation of Acquirer to
-----------------------------------
complete the contributions described herein on the Closing date under
this Agreement is subject to the fulfillment on or prior to the
Closing date of the following conditions, any one or more of which may
be waived by Acquirer in advance of Closing in writing, or by Closing
notwithstanding the non-satisfaction of such condition:
7.2.1. Contributors' Representations and Warranties. All
--------------------------------------------
representations and warranties of Contributors contained
herein shall be true and correct in all material respects on
the date of this Agreement and on the Closing date.
7.2.2. Execution and Delivery of the Closing Documents. Contributors
-----------------------------------------------
shall have executed and delivered each of the documents,
agreements and other instruments to be executed and delivered
by Contributors hereunder at or before the Closing.
7.2.3. Receipt of Estoppels. Acquirer shall have received tenant
--------------------
estoppels in the form attached hereto as Exhibit E and
consistent with the Rent Roll attached hereto as Exhibit F
from 80% of those tenants who lease over 20,000 square feet
and from 70% of the balance. Notwithstanding that the
foregoing expresses a condition of Acquirer's obligation to
close, Contributors shall not be in default hereunder solely
by reason of the fact that the required amount of tenants have
not responded to Acquirer's request for estoppels.
7.2.4. The Assets of the Partnerships. On the date of Closing, the
------------------------------
partnerships whose interests are being contributed will own
the partnership interests listed in Schedule H hereto, and the
New World Partnerships will own the Properties listed in
Schedule I hereto upon which no material adverse encumbrance
or lien shall have been recorded or allowed to attach after
December 1, 1997. All cash and assets, (other than such
-----
partnership interests, real property and any personal property
owned by the New World Partnerships and located on and used in
the operation of such
-14-
Properties as set forth in Schedule J hereto and any
intangible personal property owned by the New World
Partnerships in connection with the Properties, including
warranties from contractors on the improvements, roof
warranties, equipment warranties, and rights under leases and
service contracts), shall either be distributed out of the
partnerships to Contributors immediately prior to Closing
and/or retained in the partnerships and will be applied to the
Acquisition Consideration Adjustment pursuant to Section 2.4
hereof.
7.2.5. No Material Adverse Effect on the Aggregate Value of the
--------------------------------------------------------
Assets. From the date hereof until the date of Closing, there
------
shall have been no material casualty or condemnation of any of
the Properties, no material adverse change to the
environmental or physical condition of the Properties, no
material default by a tenant leasing over 20,000 square feet
of the Properties and no default under the New York Life
Insurance Company loans, which in any case has resulted in a
material adverse effect on the aggregate value of all of the
assets being contributed. If Acquirer waives this condition or
if such casualty or condemnation has not resulted in a
material adverse effect on the aggregate value of all of the
assets being contributed, then Acquirer shall be entitled to
an assignment of Contributors' rights in all insurance
proceeds or condemnation award or settlements in connection
with such casualty or condemnation, less amounts used by
Contributors to repair the casualty damage.
7.2.6. Consent of New York Life Insurance Company. New York Life
------------------------------------------
Insurance Company shall have consented to the assumption of
its loans, and shall have agreed to modify its loan agreements
to exclude the issuance and transfer of securities of Weeks
Corporation and of Acquirer from its "due on sale" provisions.
7.2.7. No Dissolution of the Partnerships. Contributors shall have
----------------------------------
amended the limited partnership agreements of
Codina/Tradewind, Ltd., Codina/Tradewind Xx. 0, Xxx.,
Xxxxxx/Xxxxxxxxx Xx. 0, Ltd., Raha Associates, Ltd. and Raha
Associates II, Ltd., to the extent necessary, to provide that
a transfer of any partnership interest of each such
partnership as contemplated herein will not result in a
dissolution of such partnership.
-15-
7.2.8. Other Conditions. Any other matter expressly set forth herein
----------------
as a condition to Acquirer's obligation to close or as a
matter to be completed or effected prior to Closing.
7.3. Condition to Both Parties' Obligations. If the New York Life
--------------------------------------
Insurance Company loan assumption fee exceeds 1% of the assumed loan
balance, the Parties shall have mutually agreed how such excess shall
be paid.
8. Closing. Acquirer and Contributors hereby agree that the acquisition and
-------
contribution contemplated hereby (the or this "Transaction") shall be
consummated as follows:
8.1. Closing Date. The Transaction shall close ("Closing") as soon as
------------
practicable, but no later than January 9, 1998 unless all of the
parties consent to a later date. Time shall be of the essence in
respect of such Closing. The Closing shall take place in the offices
of White & Case, 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx
or at such other location as Acquirer and Contributors shall mutually
determine, and the Acquisition Consideration shall be received by
Contributors no later than 12:00 p.m. Eastern Standard Time on the
Closing date.
8.2. Title Transfer and Payment of Acquisition Consideration.
-------------------------------------------------------
Contributors agree to assign Contributors' title to the Partnership
Interests to Acquirer by an assignment of partnership interests in
the form attached hereto as Exhibit G (the "Assignment and
Assumption"), concurrently with payment of the Acquisition
Consideration by Acquirer as set forth below. Acquirer agrees to
deliver the cash portion of the Acquisition Price specified in
Section 2 hereof (and Schedule B hereto) on the Closing date in
accordance with the time requirements set forth in Section 7.1
hereof, to such accounts as Contributors shall designate.
8.3. Closing Costs. Each party shall pay its own legal and accounting
-------------
fees. All other closing costs shall be allocated among the parties as
follows:
8.3.1. Due Diligence Costs. Acquirer shall pay all of its due
-------------------
diligence costs, including the costs and expenses arising in
connection with environmental, survey, title insurance and
building inspection.
8.3.2. Loan Assumption Costs. Acquirer shall pay all of the costs
---------------------
related to the assumption of the New York Life Insurance
Company mortgage loans, including all transfer and documentary
taxes, lender's counsel fees and any loan assumption fee
charged by New York Life Insurance Company up to a maximum of
1% of the
-16-
assumed loan balance. The foregoing notwithstanding,
if New York Life Insurance Company charges a higher fee,
neither Acquirer nor Contributors shall be obligated to pay
such excess.
8.3.3. Brokerage Commissions. Each Contributor represents that it
---------------------
has not dealt with any brokers other than Xxxxxxx, Xxxxx &
Co. and Archon Management Services, LP, regarding the
transaction described herein. Acquirer represents that there
are no, and hereby indemnifies Contributors from and against
any, brokerage commissions or finders' fees resulting from
any action taken by it or any person acting or purporting to
act on its behalf. Contributors will pay the amounts due
Xxxxxxx, Sachs and/or Archon. Contributors' liability
hereunder shall survive for a period of 18 months from the
date of Closing.
8.4. Closing Documents. At the Closing, the parties shall execute and
-----------------
deliver or cause to be delivered the following documents, in addition
to such other documents as are delivered at the Closing in accordance
with the other provisions of this Agreement:
8.4.1. Assignment. Acquirer and Contributors shall execute and
----------
deliver the Assignment and Assumption in the form attached
hereto as Exhibit G.
8.4.2. Amendment to Acquirer's Partnership Agreement. Acquirer and
---------------------------------------------
Contributors shall execute and deliver an amendment to the
Second Amended and Restated Agreement of Limited Partnership
of Weeks Realty, L.P. in the form attached hereto as Exhibit
B.
8.4.3. Registration Rights Agreement. Weeks Corporation, Acquirer
-----------------------------
and Contributors shall execute and deliver the Registration
Rights Agreement in the form attached hereto as Exhibit C.
8.4.4. Management and Leasing Agreements. At the Closing, the
---------------------------------
existing management and leasing agreements shall be canceled.
8.4.5. Partnership Certificates. Acquirer will promptly file new
------------------------
partnership certificates for Codina/Tradewind, Ltd.,
Codina/Tradewind No. 4, Ltd. and Raha Associates, Ltd.
reflecting the withdrawal of Contributors and the admission of
Acquirer and Acquirer's designated affiliate. Upon the closing
of the sale described in Section 5.1 hereof, Acquirer will
file new partnership certificates for Codina/Tradewind No. 5,
Ltd. and Raha Associates
-17-
II, Ltd. reflecting the withdrawal of Contributors, the Raha
II Corporation and the Codina No. 5 Corporation and the
admission of Acquirer and Acquirer's designated affiliate.
9. Default and Remedies; Termination.
---------------------------------
9.1. Acquirer. If Contributors default in the performance of any of
--------
Contributors' material obligations or agreements contained herein and
required to be performed prior to the Closing, and if Acquirer is not
then in default of any of its obligations and agreements contained
herein, then Acquirer may elect one of the following as Acquirer's
sole and exclusive remedy: either (i) terminate this Agreement by
giving written notice of termination and the reasons therefor to
Contributors, and thereafter neither Contributors nor Acquirer shall
have any further obligations or liabilities one to the other
hereunder; or, (ii) bring an equitable action of specific performance
--
by Contributors of the terms of this Agreement (by which Acquirer
shall be deemed to have waived all actions, rights or claims for
damages with respect to such default).
9.2. Contributors. If Acquirer defaults in the performance of any of
------------
Acquirer's material obligations or agreements contained herein and
required to be performed prior to Closing, and Contributors are not
then in default of any of their material obligations or agreements
contained herein, then Contributors may elect (as their sole and
exclusive remedy) to either (i) terminate this Agreement by giving
written notice of termination and the reasons therefor to Acquirer in
which event neither Contributors nor Acquirer shall have any further
obligations or liabilities one to the other hereunder; or, (ii) bring
--
an equitable action of specific performance by Acquirer of the terms
of this Agreement (by which Contributors shall be deemed to have
waived all actions, rights or claims for damages with respect to such
default).
10. Additional Miscellaneous Covenants.
----------------------------------
10.1. Notices. Any notice, request, demand, instruction or other
-------
communication to be given to either party hereunder (except those
required to be delivered at Closing) shall be in writing, and shall be
deemed to be delivered upon the earlier to occur of (i) actual receipt
if delivered by hand or by commercial courier to the address indicated
or (ii) the third (3rd) Business Day after deposit in registered or
certified United States Postal Service mail, return receipt requested,
postage prepaid, addressed as follows:
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IF TO ACQUIRER:
---------------
Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Vice Chairman and CIO
Xxxxx Xxxxxxxx, Xx. Vice President and CFO
COPIES TO:
----------
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxxxxx, Esq.
IF TO CONTRIBUTORS:
-------------------
Tisch Family Interests
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, President
The Xxxxxxxx Capital Company
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Managing Director
Codina Group, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxxx XX
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, CFO
COPIES TO:
---------
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
-19-
White & Case
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, XX 00000
Attention: K. Xxxxxxxx Xxxxx, Esq.
The addresses and addressees for the purpose of this Paragraph may be
changed (and the number of addressees, up to a maximum of four (4) in
the aggregate per party, may be increased) by either party by giving
written notice of such change to the other party in the manner
provided herein.
10.2. Limited and Several Liability of Contributors. Acquirer agrees that
---------------------------------------------
any recourse for payment or damages it may have against Contributors
under this Agreement, including damages for a misrepresentation,
breach of warranty or indemnity obligation hereunder shall be several
and not joint (so that any such liability shall be paid 50% by Codina
and CFI and 25% by each of Xxxxxxxx and Xxxxx) and shall be limited
solely and exclusively to the cash sale proceeds and Common Units (and
to the extent they have been sold, the net proceeds from such sale)
received by such liable Contributor as set forth in Schedule B hereto.
In no event whatsoever shall any recourse be to any other assets owned
by any Contributor and no Contributor shall have any personal
liability hereunder.
10.3. Attorneys' Fees. In the event it becomes necessary for either
---------------
Acquirer or Contributors to file a suit to enforce this Agreement or
any provisions contained herein, the prevailing party in such suit
shall be entitled to recover, in addition to all other remedies or
damages, reasonable attorneys' fees and costs of court incurred in
connection with such suit.
10.4. Severability. If any provision hereof shall be held to be invalid,
------------
illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions, or parts thereof, shall not in any way be
affected or impaired thereby.
10.5. Counterparts. This Agreement may be executed in any number of
------------
identical counterparts, all of which shall together constitute one and
the same instrument.
10.6. Entire Agreement and Modification. This Agreement constitutes the
---------------------------------
entire agreement between Acquirer and Contributors with respect to the
subject matter hereof and supersedes all prior agreements and
understandings (if any) relating to the subject matter hereof. This
Agreement cannot be
-20-
amended, modified or altered, or any provision waived, except by an
agreement in writing executed by both Acquirer and Contributors.
10.7. Binding Effect. This Agreement shall be binding upon the parties
--------------
and their respective successors and assigns and shall inure to the
benefit of the parties hereto and their respective permitted assigns.
10.8. No Third Part Beneficiaries. This Agreement does not create, and
---------------------------
shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
10.9. Headings. Paragraph headings are for convenience of reference only
--------
and shall in no way affect the interpretation of this Agreement.
10.10. Governing Law. THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK SHALL
-------------
GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF
THIS AGREEMENT.
10.11. Full Execution. This Agreement shall be deemed fully executed and
--------------
binding upon Acquirer and Contributors if, as and when both Acquirer
and Contributors have executed this Agreement as set forth below.
10.12. Confidentiality. Neither party hereto shall issue any press
---------------
release or make any other public announcement relating to the
transactions contemplated by this Agreement without the prior consent
of the other party hereto (which consent shall not be unreasonably
withheld).
10.13. Radon Gas. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
---------
WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY
PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME.
LEVELS OF RADON THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN
FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL INFORMATION REGARDING RADON
AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY HEALTH UNIT.
10.14. Business Day. As used herein, "Business Day" shall mean any day
------------
other than (i) Saturday and Sunday or (ii) a day on which the banks in
New York State, Georgia or Florida are permitted or required to close.
10.15. Including: Herein, Hereof etc. As used herein: the term
------------------------------
"including" or "include" shall be deemed to be followed by the phrase
"without limitation", and, unless the context shall otherwise require,
the terms
-21-
"herein", "hereunder" and "hereof" shall each refer to this Agreement as a whole
and not to the particular paragraph or provision in which such term is used.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
in multiple counterparts and is effective as of the date first above stated.
CONTRIBUTORS:
/s/ Xxxxxxx Xxxxxx
------------------
XXXXXXX XXXXXX
CODINA WEST DADE DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
CODINA FAMILY INVESTMENTS, LTD.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
THE XXXXXXXX CAPITAL COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
RAHA ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
/s/ Xxxxxxxx Xxxxx
-----------------------
XXXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
-----------------------
XXXXXXX XXXXX
-22-
RAHA ASSOCIATES II, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
CODINA WEST DADE DEVELOPMENT CORPORATION NO. 5
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------
XXXXXXX X. XXXXXXXX (for the purpose of Section 5.2)
ACQUIRER: WEEKS REALTY, L.P.
By: WEEKS GP HOLDINGS, INC., general partner
By: /s/ A. R. Weeks, Jr.
--------------------------
WEEKS CORPORATION (for the purpose of Sections 3.5, 6.1.3 and
8.4.3)
By: /s/ A. R. Weeks, Jr.
--------------------------
-23-
