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CONTRIBUTION AGREEMENT
FOR
XXXXXXX OPERATING BUSINESS
BY AND BETWEEN
XXXXXXX & COMPANY REAL ESTATE, INC.
AND
WEEKS REALTY, L.P.
DATED AS OF NOVEMBER 1, 1996
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TABLE OF CONTENTS
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PAGE
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ARTICLE I CONTRIBUTION............................................................... 1
Section 1.01. Contribution of Assets............................................... 1
Section 1.02. Excluded Assets...................................................... 2
Section 1.03. Assumed Obligations.................................................. 2
Section 1.04. Excluded Liabilities................................................. 2
ARTICLE II CONSIDERATION............................................................. 3
Section 2.01. Form and Amount of Consideration..................................... 3
Section 2.02. Recalculation of Consideration....................................... 3
Section 2.03. Minimum Consideration................................................ 3
Section 2.04. The Closing.......................................................... 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF XXXXXXX................................. 4
Section 3.01. Organization; Authority.............................................. 4
Section 3.02. Due Authorization; Binding Agreement................................. 4
Section 3.03. Governmental Consents................................................ 4
Section 3.04. Other Consents....................................................... 5
Section 3.05. No Violation......................................................... 5
Section 3.06. Compliance with Laws................................................. 5
Section 3.07. Absence of Undisclosed Liabilities and Contractual Obligations....... 5
Section 3.08. Contracts in Force................................................... 5
Section 3.09. Litigation........................................................... 6
Section 3.10. Financial Status..................................................... 6
Section 3.11. Taxes................................................................ 6
Section 3.12. Employee Benefits; Labor............................................. 6
Section 3.13. Title to Assets...................................................... 7
Section 3.14. Investment........................................................... 7
Section 3.15. Access to Data....................................................... 7
Section 3.16. No Public Market..................................................... 7
Section 3.17. Experience; Risk..................................................... 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF WEEKS.................................... 8
Section 4.01. Organization; Authority.............................................. 8
Section 4.02. Due Authorization; Binding Agreement................................. 8
Section 4.03. No Violation......................................................... 8
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Page
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Section 4.04. Litigation..................................................................... 8
Section 4.05. Governmental Consents.......................................................... 8
Section 4.06. Other Consents................................................................. 8
Section 4.07. Compliance with Laws........................................................... 9
Section 4.08. Absence of Undisclosed Liabilities and Contractual Obligations................. 9
Section 4.09. Financial Status............................................................... 9
Section 4.10. Taxes.......................................................................... 9
ARTICLE V COVENANTS AND AGREEMENTS............................................................. 9
Section 5.01. Further Assurances............................................................. 9
Section 5.02. Employee Matters............................................................... 9
ARTICLE VI COVENANTS AND AGREEMENTS............................................................ 10
Section 6.01. Survival; Reliance............................................................. 10
Section 6.02. Indemnification................................................................ 10
ARTICLE VII MISCELLANEOUS...................................................................... 10
Section 7.01. Proration of Income and Expenses............................................... 10
Section 7.02. Fees and Expenses; Transfer Taxes.............................................. 10
Section 7.03. Notices........................................................................ 11
Section 7.04. Entire Agreement............................................................... 11
Section 7.05. Waivers and Amendments......................................................... 11
Section 7.06. Governing Law.................................................................. 11
Section 7.07. Binding Effect; Benefit........................................................ 11
Section 7.08. No Assignment.................................................................. 12
Section 7.09. Counterparts................................................................... 12
Section 7.10. Headings....................................................................... 12
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CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT (the "Agreement") dated as of November 1, 1996 (the
"Contribution Date"), by and between Xxxxxxx & Company Real Estate, Inc., a
Tennessee corporation ("Xxxxxxx"), and Weeks Realty, L.P., a Georgia limited
partnership ("Weeks").
W I T N E S S E T H:
- - - - - - - - - -
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
CONTRIBUTION
Section 1.01. Contribution of Assets. Xxxxxxx hereby contributes to the
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capital of Weeks, effective as of the Contribution Date, and Weeks hereby
accepts from Xxxxxxx, effective as of the Contribution Date (the
"Contribution"), the right, title and interest in and to the real estate
brokerage and operating business of Xxxxxxx and the assets relating thereto (the
"Operating Business"); it being the intention of Xxxxxxx to contribute and it
being the intention of Weeks to accept and receive the Operating Business and
the assets relating thereto, and the assets, properties, rights, contracts,
claims, operations and management of the Operating Business of every kind and
description related to or necessary for the ownership or operation of the
Operating Business, wherever located, whether tangible or intangible, real,
personal, or mixed, whether or not appearing on the books of Xxxxxxx, that are
owned or leased by Xxxxxxx on the date hereof, free and clear of all liens, but
excluding the Excluded Assets. Without limiting the generality of the
foregoing, the Operating Business shall include the following:
(a) All office supplies, equipment, business machines, furniture,
fixtures, information systems, computers, and other tangible property;
(b) All revenue generating contracts, agreements and other
arrangements related to property management, asset management, development
and rehabilitation, brokerage activities (including sales, leasing and
financing), and other services related or ancillary thereto;
(c) All third-party accounts receivable relating to the Operating
Business which are carried on the books of Xxxxxxx;
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(d) All intangible property, including any permits and licenses; and
(e) All business books and records, including, without limitation, all
financial, operating, inventory, legal, personnel, payroll, and customer
records and all sales and promotional literature, correspondence, and
files, which are directly related to the assets being transferred pursuant
to this Agreement (except that Xxxxxxx shall have reasonable access to such
information and records to the extent necessary).
Section 1.02. Excluded Assets. Notwithstanding anything to the contrary
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contained in Section 1.01 hereof, the parties to this Agreement expressly
understand and agree that Xxxxxxx is not, pursuant to this Agreement, conveying
or contributing to Weeks the following assets, rights and properties
(collectively, the "Excluded Assets"):
(a) Corporate seals, minute books, stock ledgers or other books and
records pertaining to the organization, issuance of stock, operation and
capitalization of Xxxxxxx (except that Weeks shall have reasonable access
to such information and records relating to the Operating Business);
(b) Trademarks, trade names, corporate names and logos owned by
Xxxxxxx and any of its subsidiaries unrelated to the Operating Business;
(c) Sales tax reports, tax returns, and certificates related to the
Operating Business (except that Weeks shall have reasonable access to such
information and records relating to the Operating Business);
(d) Personal property identified on Schedule 1.02(d), attached hereto;
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(e) All other business books and records, including, without
limitation, all financial, operating, inventory, legal, personnel, payroll,
and customer records and all sales and promotional literature,
correspondence, and files which are not otherwise contained in Section
1.01(e) hereof (except that Weeks shall have reasonable access to such
information and records to the extent necessary); and
(f) All life insurance policies, and any related proceeds therefrom,
issued on the life of Xxxxxx X. Xxxxxxx, Xx.
Section 1.03. Assumed Obligations. Weeks hereby assumes, and agrees to
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pay, perform and discharge, those liabilities and obligations, and only those
liabilities and obligations, expressly identified on Schedule 1.03, attached
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hereto (the "Assumed Obligations").
Section 1.04. Excluded Liabilities. Except for the Assumed Obligations,
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no obligation or liability of Xxxxxxx, whether or not relating to or arising out
of the operation of the Operating Business, of any nature whatsoever (whether
expressed or implied, fixed or contingent, liquidated
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or unliquidated, known or unknown, accrued, due or to become due), including
without limitation, any obligations or liability of Xxxxxxx to any of its
current or former employees, is being assumed by Weeks, nor shall Weeks be
liable to pay, perform or discharge any such obligation or liability, nor shall
any of property or assets being contributed to Weeks pursuant hereto be subject
to any such obligation or liability. Xxxxxxx shall pay, perform, and discharge
all of the Excluded Liabilities consistent with present practice.
ARTICLE II
CONSIDERATION
Section 2.01. Form and Amount of Consideration. In consideration of
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Xxxxxxx'x transfer and delivery of the Operating Business, Weeks does hereby
issue and deliver to Xxxxxxx 20,000 limited partnership units in Weeks (the
"Units"). Such Units shall be subject to the provisions of the Registration
Rights and Lock-Up Agreement dated as of even date herewith and the provisions
of the Second Amended and Restated Agreement of Limited Partnership of Weeks
dated as of October 30, 1996, as amended by the First Amendment thereto dated as
of even date herewith (the "First Amendment").
Section 2.02. Recalculation of Consideration. For the purposes hereof,
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the "Brokerage Amount" means $500,000. If the cumulative net operating income
for Weeks' third-party brokerage business in Nashville, Tennessee is less than
sixty percent (60%) of the Brokerage Amount for the three (3) year period
commencing on the Contribution Date and ending on the third anniversary thereof,
then Xxxxxxx shall automatically surrender to Weeks for no consideration
effective as of such third anniversary the number of such Units equal to the
product of the total number of Units issued to Xxxxxxx on the Contribution Date
pursuant to Section 2.01 times a fraction, the numerator of which is the amount
by which sixty (60%) of the Brokerage Amount exceeds the cumulative net
operating income actually achieved for such third-party brokerage business for
such three (3) year period and the denominator of which is sixty (60%) of the
Brokerage Amount. Net operating income for the third-party brokerage business
for the relevant three (3) year period shall be determined in Weeks' reasonable
discretion and shall be defined as gross operating revenues attributable to such
business (excluding individual agent commissions) less direct expenses
attributable to such business and less a reasonable allocation of general
overhead. In computing the cumulative net operating income for Weeks' third-
party brokerage business in Nashville for the foregoing purposes, any commission
paid to Weeks by a third-party seller out of the sales proceeds for any land
acquisition for Weeks' own account in a transaction in which a brokerage
commission would otherwise be payable to a third-party broker shall be taken
into account as part of Weeks' third-party brokerage income in Nashville, but
limited to an aggregate of Ninety Thousand Dollars ($90,000) of net operating
income attributable to commissions derived from Weeks' land acquisitions during
such relevant three (3) year period.
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Section 2.03. Minimum Consideration. Notwithstanding the foregoing
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provisions of Section 2.02 providing for the possible surrender of Units by
Xxxxxxx depending upon the level of cumulative net operating income for Weeks'
third-party brokerage business in Nashville, Xxxxxxx will be entitled to retain
and not surrender to Weeks 8,000 Units (i.e., Units having an initial face value
of Two Hundred Thousand Dollars ($200,000) at Twenty-Five Dollars ($25) per
Unit) issued to Xxxxxxx pursuant to this Agreement.
Section 2.04. The Closing.
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(a) The Contribution has occurred simultaneously with the execution
and delivery hereof and shall commence at 9:00 a.m., EST, on the
Contribution Date at the offices of Baker, Donelson, Xxxxxxx & Xxxxxxxx,
Xxxxx 0000 Xxxxx Xxxx Center, 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
or at such other place as may be agreed by Xxxxxxx and Weeks (the
"Closing").
(b) At the Closing, Xxxxxxx has executed and delivered to Weeks the
following:
(i) Assignments, bills of sale or other documents or
instruments of transfer, in form and substance reasonably acceptable
to Weeks, to transfer to Weeks all tangible and intangible property
included in the Operating Business; and
(ii) Such other instruments or documents, in form and substance
reasonably acceptable to Weeks, as may be necessary to effect the
Closing or evidence the Contribution.
(c) At the Closing, Weeks has entered into the Transaction Documents
(as defined in the First Amendment) and delivered such other instruments
and documents, in form and substance reasonably acceptable to Xxxxxxx, as
may be necessary to effect the Closing or evidence the Contribution.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF XXXXXXX
Section 3.01. Organization; Authority. Xxxxxxx is a corporation duly
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formed, validly existing and in good standing under the laws of the State of
Tennessee and has all the necessary power and authority to enter into and
perform its obligations under this Agreement. Xxxxxx X. Xxxxxxx, Xx. is the
sole shareholder of Xxxxxxx and possesses all necessary power and authority to
control the actions of Xxxxxxx.
Section 3.02. Due Authorization; Binding Agreement. The execution,
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delivery and performance of this Agreement by Xxxxxxx has been duly and validly
authorized by all necessary
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action of Xxxxxxx. This Agreement has been duly executed and delivered by
Xxxxxxx and constitutes a legal, valid and binding obligation of Xxxxxxx,
enforceable against Xxxxxxx in accordance with the terms hereof (except as
enforcement may be limited by bankruptcy, insolvency or other laws affecting
enforcement of creditors' rights generally and general equity principles).
Section 3.03. Governmental Consents. Except as has been obtained or is
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being effected as part of the consummation of the transactions contemplated by
this Agreement, no consent, waiver, approval or authorization of, or filing,
registration or qualification with, or notice to, any governmental unit or any
other regulatory body is required to be made, obtained or given by Xxxxxxx in
connection with the execution, delivery and performance of this Agreement.
Section 3.04. Other Consents. Except for waivers and consents that
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have been obtained prior to the date hereof, and except as would not have a
material adverse effect on the Operating Business, no consent of any party to
any agreement, contract, mortgage, indenture, lease, reciprocal easement or
operating agreement or other arrangement, to which Xxxxxxx is a party, or, by
which Xxxxxxx is bound, is required in connection with the execution, delivery
or performance by Xxxxxxx of this Agreement or the consummation of the
transactions provided for herein.
Section 3.05. No Violation. Except for waivers and consents that have
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been obtained prior to the date hereof, none of the execution, delivery and
performance of this Agreement by Xxxxxxx does or will, with or without the
giving of notice, lapse of time or both, (i) violate, conflict with or
constitute a default under any term or condition of (A) the organizational
documents of Xxxxxxx, or (B) any term or provision of any judgment, decree,
order, statute, injunction, rule or regulation of a governmental unit applicable
to Xxxxxxx or any agreement, contract, mortgage, indenture, lease, reciprocal
easement or operating agreement or other arrangement to which Xxxxxxx is a party
or by which it is bound or to which any of its assets is subject, except in the
case where appropriate waivers and consents have been obtained prior to the date
hereof, and except as would not have a material adverse effect on the Operating
Business, or (ii) result in the creation of any lien or other encumbrance upon
the Operating Business, except as may be contemplated by this Agreement, and
except as would not have a material adverse effect on the Operating Business.
Section 3.06. Compliance with Laws. Xxxxxxx has complied with all laws
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applicable to the conduct of the business of Xxxxxxx and to the ownership, use
and operation of the Operating Business and has obtained all licenses and
permits required for the conduct thereof, except where the failure to so comply
or obtain will not have a material adverse effect on the Operating Business. To
Xxxxxxx'x knowledge, such licenses and permits are in full force and effect,
Xxxxxxx has not taken any action that would (or failed to take any action the
omission of which would) result in the revocation of such licenses or permits,
and Xxxxxxx has not received any notice of violation from any federal, state or
municipal entity or written notice of an intention by any such government entity
to revoke any certificate of occupancy or other certificate, license or permit
issued by it in connection with the Operating Business, that in each case has
not been cured or otherwise resolved to the satisfaction of such government
entity, except where such failure or such action will not have a material
adverse effect on the Operating Business.
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Section 3.07. Absence of Undisclosed Liabilities and Contractual
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Obligations. The consummation of the transactions effected hereby will not
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subject Weeks or any of its assets, including, without limitation, those
contributed pursuant hereto, to any liability or obligation whatsoever, except
for the Assumed Obligations.
Section 3.08. Contracts in Force. Each of the agreements related to
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the Operating Business are valid and binding and in full force and effect,
enforceable against the parties thereto in accordance with its terms (except as
enforcement may be limited by bankruptcy, insolvency or other laws affecting
enforcement of creditors' rights generally and general equitable principles).
To Xxxxxxx'x knowledge, no other party to any of the contracts being transferred
pursuant to this Agreement is in default under such contract in any material
respect. The contracts being transferred pursuant to this Agreement constitute
all of the agreements which are related to the Operating Business.
Section 3.09. Litigation. There are no claims, actions, suits,
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proceedings or investigations pending, or, to Xxxxxxx'x knowledge, threatened,
before any court, governmental unit, agency, arbitrator or other forum or
tribunal with respect to the Operating Business (including, without limitation,
by any current or former employee of Xxxxxxx).
Section 3.10. Financial Status. Xxxxxxx is solvent, has not made a
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general assignment for the benefit of its creditors, and has not admitted in
writing its inability to pay its debts as they become due, nor has Xxxxxxx
filed, nor does it contemplate the filing of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or any other proceeding for
the relief of debtors in general, nor has any such proceeding been instituted by
or against Xxxxxxx, nor is any such proceeding to Xxxxxxx'x knowledge threatened
or contemplated.
Section 3.11. Taxes. Xxxxxxx has filed in a timely manner all tax
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returns required to be filed by it or on its behalf. All such tax returns are
true, correct and complete in all material respects, and taxes due with respect
to such tax returns have been timely paid in full.
Section 3.12. Employee Benefits.
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(a) Definition of Benefit Plans. For purposes of this Section 3.12,
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the term "Benefit Plan" means any plan, program, arrangement, fund, policy,
practice or contract which, through which or under which Xxxxxxx provides
benefits or compensation to or on behalf of employees or former employees
of Xxxxxxx, whether formal or informal, and whether written or not written.
(b) Documentation. Xxxxxxx has made available to Weeks a true and
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complete copy of the all documents relating to any such Benefit Plan.
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(c) Compliance; Legal Actions. Each Benefit Plan maintained by
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Xxxxxxx has been maintained, by its terms and in operation, in all material
respects in accordance with all applicable laws. There are no actions,
audits, suits or claims known to Xxxxxxx which are pending or, to the
knowledge of the Xxxxxxx, threatened against any Benefit Plan or against
the assets of any of the Benefit Plans.
(d) Funding. Xxxxxxx has made full and timely payment of all amounts
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required to be contributed under the terms of each Benefit Plan and
applicable law or required to be paid as expenses under such Benefit Plan,
and no excise taxes are assessable as a result of any nondeductible or
other contributions made or not made to a Benefit Plan. The assets of all
Benefit Plans which are required under applicable laws to be held in trust
are in fact held in trust, and the assets of each such Benefit Plan equal
or exceed the liabilities of each such plan. The liabilities of each other
plan are in all material respects properly and accurately reported on the
financial statements and records of Xxxxxxx. Xxxxxxx does not owe any
deferred compensation or commission to any person as of the Contribution
Date.
(e) Liabilities. Xxxxxxx is not subject to any material liability,
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tax or penalty whatsoever with respect to any Benefit Plan.
Section 3.13. Title to Assets. Xxxxxxx is the sole owner of and holds
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good, valid and marketable title to all of the assets being transferred to Weeks
pursuant to this Agreement, free and clear of any and all claims, lines,
pledges, security interests, and other encumbrances of any kind.
Section 3.14. Investment.
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(a) Xxxxxxx is acquiring the Units for its 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 Units in violation of the Securities Act.
(b) Xxxxxxx is an "accredited investor," as that term is defined in
Rule 501(a) of Regulation D promulgated under the Securities Act.
(c) Xxxxxxx understands that the Units have not been registered under
the Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act which depends upon, among other things,
the nature of the investment intent and the accuracy of such Xxxxxxx'x
representations as expressed herein.
Section 3.15. Access to Data. Xxxxxxx has had an opportunity to discuss
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Weeks' business, management and financial affairs with Weeks' management and has
had an opportunity to review Weeks' financial records.
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Section 3.16. No Public Market. Xxxxxxx understands and acknowledges that
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no public market now exists for any of the securities issued by Weeks and that
there can be no assurance that a public market will ever exist for the Units.
Section 3.17. Experience; Risk. Xxxxxxx has such knowledge and experience
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in financial and business matters that Xxxxxxx is capable of evaluating the
merits and risks of the purchase of the Units pursuant to this Amendment and of
protecting the Xxxxxxx'x interests in connection herewith.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WEEKS
Section 4.01. Organization; Authority. Weeks is a limited partnership
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duly formed, validly existing and in good standing under the laws of the State
of Georgia and has all the necessary power and authority to enter into and
perform its obligations under this Agreement.
Section 4.02. Due Authorization; Binding Agreement. The execution,
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delivery and performance of this Agreement by Weeks has been duly and validly
authorized by all necessary action of Weeks. This Agreement has been duly
executed and delivered by Weeks and constitutes a legal, valid and binding
obligation of Weeks, enforceable against Weeks in accordance with the terms
hereof (except as enforcement may be limited by bankruptcy, insolvency or other
laws affecting enforcement of creditors' rights generally and general equity
principles).
Section 4.03. No Violation. None of the execution, delivery and
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performance of this Agreement by Weeks does or will, with or without the giving
of notice, lapse of time or both, (i) violate, conflict with or constitute a
default under any term or condition of (A) the organizational documents of
Weeks, or (B) any term or provision of any judgment, decree, order, statute,
injunction, rule or regulation of a governmental unit applicable to Weeks or any
agreement, contract, mortgage, indenture, lease, reciprocal easement or
operating agreement or other arrangement to which such Weeks is a party or by
which it is bound or to which any of its assets is subject, except in the case
where appropriate waivers and consents have been obtained prior to the date
hereof, and except as would not have a material adverse effect on Weeks, or (ii)
result in the creation of any lien or other encumbrance upon the assets of
Weeks, except as may be contemplated by this Agreement, and except as would not
have a material adverse effect on Weeks or its assets.
Section 4.04. Litigation. There are no claims, actions, suits,
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proceedings or investigations pending, or, to Weeks' knowledge, threatened,
before any court, governmental unit, agency, arbitrator or other forum or
tribunal with respect to the assets of Weeks which would have a material adverse
effect on the assets of Weeks.
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Section 4.05. Governmental Consents. Except as has been obtained or is
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being effected as part of the consummation of the transactions contemplated by
this Agreement, no consent, waiver, approval or authorization of, or filing,
registration or qualification with, or notice to, any governmental unit or any
other regulatory body is required to be made, obtained or given by Weeks in
connection with the execution, delivery and performance of this Agreement.
Section 4.06. Other Consents. Except for waivers and consents that
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have been obtained prior to the date hereof, and except as would not have a
material adverse effect on Weeks, no consent of any party to any agreement,
contract, mortgage, indenture, lease, reciprocal easement or operating agreement
or other arrangement, to which Weeks is a party, or, by which Weeks is bound, is
required in connection with the execution, delivery or performance by Weeks of
this Agreement or the consummation of the transactions provided for herein.
Section 4.07. Compliance with Laws. Weeks has complied with all laws
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applicable to the conduct of the business of Weeks and has obtained all licenses
and permits required for the conduct thereof, except where the failure to so
comply or obtain will not have a material adverse effect on Weeks. To Weeks'
knowledge, such licenses and permits are in full force and effect, Weeks has not
taken any action that would (or failed to take any action the omission of which
would) result in the revocation of such licenses or permits, and Weeks has not
received any notice of violation from any federal, state or municipal entity or
written notice of an intention by any such government entity to revoke any
certificate of occupancy or other certificate, license or permit issued by it in
connection with its business, that in each case has not been cured or otherwise
resolved to the satisfaction of such government entity, except where such
failure or such action will not have a material adverse effect on Weeks.
Section 4.08. Absence of Undisclosed Liabilities and Contractual
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Obligations. The consummation of the transactions effected hereby will not
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subject Weeks or any of its assets, to any liability or obligation whatsoever,
except for those which would not have a material adverse effect on Weeks.
Section 4.09. Financial Status. Weeks is solvent, has not made a
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general assignment for the benefit of its creditors, and has not admitted in
writing its inability to pay its debts as they become due, nor has Weeks filed,
nor does it contemplate the filing of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or any other proceeding for
the relief of debtors in general, nor has any such proceeding been instituted by
or against Weeks, nor is any such proceeding to Weeks's knowledge threatened or
contemplated.
Section 4.10. Taxes. Weeks has filed in a timely manner all tax returns
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required to be filed by it or on its behalf. All such tax returns are true,
correct and complete in all material respects, and taxes due with respect to
such tax returns have been timely paid in full.
ARTICLE V
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COVENANTS AND AGREEMENTS
Section 5.01. Further Assurances. In addition to the actions, contracts
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and other agreements and documents and other papers specifically required to be
taken or delivered pursuant to this Agreement, each of the parties hereto shall
execute such contracts and other agreements and documents and take such further
actions as may be reasonably required or desirable to carry out the provisions
hereof and the Contribution.
Section 5.02. Employee Matters. Weeks is entitled to offer employment to
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any and all active employees of Xxxxxxx, and Xxxxxxx shall in no way hinder or
impede Weeks from soliciting the employment of any employee of Xxxxxxx. Nothing
contained herein is intended to limit Weeks's ability to terminate or modify the
terms of employment of any active employee of Xxxxxxx who accepts employment
with Weeks. Xxxxxxx shall be obligated to discharge and satisfy all obligations,
liabilities, demands, claims, assessments and expenses related to any employee
of Xxxxxxx which accrued prior to the Contribution Date, and Weeks shall have no
liability whatsoever in that connection. After the Contribution Date, Weeks
shall be obligated to discharge and satisfy all obligations, liabilities,
demands, claims, assessments and expenses which relate to any facts or
circumstances first occuring on or after the Contribution Date related to those
employees of Xxxxxxx which Weeks decides to employ, and Xxxxxxx shall have no
liability whatsoever in that connection.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Survival; Reliance. The representations, warranties,
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covenants and agreements made by each of the parties hereto shall survive until
the third anniversary of the Contribution Date, and each party hereto has the
right to fully rely on the representations, warranties, covenants and agreements
made by the other party.
Section 6.02. Indemnification. In the event that a party breaches any
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representation, warranty, covenant or agreement contained herein, such breaching
party agrees to indemnify and hold harmless the non-breaching party from all
liabilities, demands, claims, actions, assessments, losses, fines, penalties,
costs, damages and expenses (including, without limitation, reasonable
attorneys' and accountants' fees and expenses) sustained or incurred by the non-
breaching party as result of such breach. The sole recourse of Weeks with
respect to breaches of representations and warranties made by Xxxxxxx shall be
against the Units issued pursuant to this Agreement, and Xxxxxxx shall have no
personal liability with respect thereto. With respect to indemnification claims
under this Section 6.02, each of the parties hereto agrees to be governed by the
notice provisions contained in paragraph 11(b) of the First Amendment.
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ARTICLE VII
MISCELLANEOUS
Section 7.01. Proration of Income and Expense. The parties hereto have
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expressly determined to apportion all items of income and expense associated
with or related to the Operating Business as of the Contribution Date.
Section 7.02. Fees and Expenses; Transfer Taxes. Fees and expenses
---------------------------------
incident to the negotiation, preparation and execution of this Agreement and the
performance of the Contribution (including attorneys', accountants', financial
advisors' and other advisors' fees and disbursements) shall be borne by the
party incurring the expense.
Section 7.03. Notices. Any notice or other communication required or
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that may be given hereunder shall be in writing and shall be delivered
personally or sent by certified, registered, or express mail, postage prepaid,
to the parties at the following addresses or such other addresses as shall be
specified by the parties by like notice, and shall be deemed given when so
delivered personally or if mailed, three days after the date of mailing, as
follows:
(i) If to Weeks:
Weeks Realty, L.P.
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Vice Chairman and Chief Investment Officer
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(ii) If to Xxxxxxx:
0000 Xxxxxxxx Xxxx, Xxxxx X-0
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx, Xx.
Section 7.04. Entire Agreement. This Agreement and the Transaction
----------------
Documents (as defined in the First Amendment) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior contracts, agreements undertakings and
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understandings, express or implied, written or oral, between the parties, or any
of them, with respect to the subject matter hereof and, except as otherwise
expressly provided herein, is not intended to confer upon any other person any
rights or remedies hereunder.
Section 7.05. Waivers and Amendments. This Agreement may be amended,
----------------------
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties hereto.
Section 7.06. Governing Law. This Agreement shall be governed by, and
-------------
construed and enforce in accordance with and subject to, the laws of the State
of Tennessee, without regard to principles of conflicts of law.
Section 7.07. Binding Effect; Benefit. This Agreement shall inure to
-----------------------
the benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 7.08. No Assignment. This Agreement is not assignable (by
-------------
operation of law or otherwise) without the prior written consent of the other
party.
Section 7.09. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed an original but all of which
taken together shall constitute one and same instrument.
Section 7.10. Headings. The headings in this Agreement are for
--------
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
XXXXXXX & COMPANY REAL ESTATE, INC.
By: ___________________________
Name:
Title:
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc.
a Georgia corporation, its
Sole General Partner
By: ______________________
Name:
Title:
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SCHEDULE 1.02(D)
----------------
[Schedule of personal effects]
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SCHEDULE 1.03
-------------
[Schedule of liabilities]
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