ELEVENTH AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS ELEVENTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. (the "Amendment") is entered into as
of the 26th day of May, 1998, by and among WEEKS GP HOLDINGS, INC., a Georgia
corporation (the "General Partner"), WEEKS CORPORATION, a Georgia corporation
(the "Company"), and THE XXXXXXX PROPERTIES LIMITED PARTNERSHIP NO. 1, a North
Carolina limited partnership (the "Contributor").
RECITALS
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Weeks Realty, L.P. (the "Partnership") is a Georgia limited partnership.
The General Partner is the sole general partner of the Partnership and is a
wholly owned subsidiary of the Company. The partnership agreement of the
Partnership is that certain Second Amended and Restated Agreement of Limited
Partnership of Weeks Realty, L.P., dated as of October 30, 1996, as amended by
the First Amendment to the Partnership Agreement dated November 1, 1996, the
Second Amendment to the Partnership Agreement dated December 31, 1996, the Third
Amendment to the Partnership Agreement dated January 31, 1997, the Fourth
Amendment to the Partnership Agreement dated August 1, 1997, the Fifth Amendment
to the Partnership Agreement dated October 7, 1997, the Sixth Amendment to the
Partnership Agreement dated October 27, 1997, the Seventh Amendment to the
Partnership Agreement dated December 30, 1997 and effective as of August 1,
1997, the Eighth Amendment to the Partnership Agreement dated January 9, 1998,
the Ninth Amendment to the Partnership Agreement dated January 22, 1998, and the
Tenth Amendment to the Partnership Agreement dated as of April 3, 1998
(collectively, the "Partnership Agreement"). Capitalized terms used herein
without definition shall have the meanings ascribed to them in the Partnership
Agreement.
Pursuant to the agreements and instruments listed or referred to on Exhibit
A hereto (the ("Transaction Documents"), and the transactions effected by the
Transaction Documents, effective as of the date hereof the Contributor has
contributed, directly or indirectly, certain properties to the capital of the
Partnership.
Pursuant to the Partnership Agreement (including, without limitation,
Section 9.3 and Section 15.7(b)(ii) thereof), the General Partner is authorized
(without the consent of any Limited Partner) to admit additional Limited
Partners to the Partnership for such Capital Contributions as are determined by
the General Partner to be appropriate, and to amend the Partnership Agreement to
reflect such admissions.
The General Partner wishes to amend the Partnership Agreement as set forth
herein to reflect the admission of the Contributor as a Limited Partner of the
Partnership, and the Contributor wishes to enter into this Amendment to
memorialize its agreement as to certain matters relating to its becoming a
Limited Partner of the Partnership.
AGREEMENT
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In consideration of the circumstances referred to in the Recitals, the
consummation of the transactions effected pursuant to the Transaction Documents,
the mutual covenants and agreements contained herein, and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
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1. Admission. The Contributor is hereby admitted to the Partnership as a
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Limited Partner, effective as of the date hereof, and the Contributor hereby
agrees to be bound by the Partnership Agreement, including, but not limited to,
the transfer restrictions contained in Article IX thereof.
2. Capital Contributions. The Contributor is agreed to have made, as of
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the date hereof, the Capital Contributions set forth on Exhibit B hereto. The
agreed-to gross fair market values of any property other than money contributed
by the Contributor, which shall be such property's initial Gross Asset Value,
are shown on Exhibit B.
3. Initial Partnership Units; Rights.
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(a) The Partnership Units attributable to the Partnership Interests of
the Contributor, effective upon its admission as a Limited Partner at the
date hereof, are as set forth on Exhibit B hereto, and the Partnership
Agreement is hereby amended to reflect the Contributor's having such
Partnership Units.
(b) The Partnership does hereby grant to the Contributor, and the
Contributor does hereby accept, the right, but not the obligation (herein
such rights being sometimes referred to as the "Rights"), to require the
Partnership to redeem all or a portion of the Partnership Units issued to
it pursuant to the Transaction Documents, on the terms and subject to the
conditions and restrictions contained in Exhibit D hereto. The Rights are
governed solely by this Amendment and Exhibit D hereto, and the Contributor
shall not have any rights with respect to the "Rights" provided for in
Section 11.1 and Exhibit B-1 to the Partnership Agreement. The Rights
granted hereunder may be exercised by the Contributor, on the terms and
subject to the conditions and restrictions contained in Exhibit D hereto,
upon delivery to the Partnership of a Conversion Exercise Notice, in the
form of Schedule 1 attached to Exhibit D, which notice shall specify the
Partnership Units with respect to which the Rights are being exercised.
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Once delivered, the Conversion Exercise Notice shall be irrevocable,
subject to compliance by the General Partner and the Partnership with the
terms of the Rights.
4. Restated Percentage Interests. After giving effect to the admission of
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the Contributor as a Limited Partner at the date hereof, the Percentage Interest
of the Contributor has been reflected on Exhibit C hereto, and the Partnership
Agreement is hereby amended accordingly.
5. Future Contributions. The parties acknowledge that, pursuant to and
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subject to the terms and conditions of the Transaction Documents, the
Contributor may make additional Capital Contributions. Concurrently with any
such additional Capital Contribution, the General Partner shall supplement this
Amendment by executing and attaching hereto supplements to Exhibits B and C
(which shall be captioned "Exhibit B-1," "Exhibit B-2," "Exhibit C-1," "Exhibit
C-2," and so on and shall identify the Capital Contribution to which each
relates) that will, respectively, reflect (to the extent determinable at such
time) the Capital Contribution made by the Contributor at that time, the initial
Gross Asset Value of any property other than money included in such Capital
Contribution, the additional Partnership Units attributable to the Partnership
Interest associated with such Capital Contribution, and the resulting restated
Percentage Interests of all of the Partners. Such supplements shall be in
accordance with the terms of the Transaction Documents. The Partnership
Agreement shall be deemed to be amended as reflected in each such supplement to
this Amendment.
6. Adjustments to Partnership Units. The parties acknowledge that the
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Transaction Documents provide for adjustments to the Partnership Units of the
Contributor in certain circumstances, and further provide that the Contributor's
Partnership Interests and Units, and the resulting restated Percentage Interests
of all of the Partners, may not be capable of determination at the time a
Capital Contribution is made after the date hereof. At the times of adjustment
and final determination provided for in the Transaction Documents, the General
Partner shall supplement this Amendment by executing and attaching hereto either
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additional supplements to Exhibits B and C (in the form described above), or
amended and restated versions of prior supplements to Exhibits B and C, as
applicable. Such supplements shall be in accordance with the terms of the
Transaction Documents. The Partnership Agreement shall be deemed to be amended
as reflected in each such supplement to this Amendment.
7. Proration of Distributions. Notwithstanding any contrary provision of
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the Partnership Agreement, including, without limitation, Section 6.2 thereof,
the Contributor agrees that the distribution of Net Operating Cash Flow made for
the calendar quarter in which the Partnership Units are issued, by reason of
each Capital Contribution made pursuant to the Transaction Documents shall be
equal to the amount of Net Operating Cash Flow otherwise distributable with
respect to such Partnership Units under the terms of the Partnership Agreement,
multiplied by a fraction, the numerator of which is the number of calendar days
beginning on the date of issuance of the Partnership Units and ending on the
last day of such calendar quarter and the denominator of which is the total
number of days in the calendar quarter in which the Partnership Units are
issued.
8. Representations and Warranties.
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(a) Contributor's Representations. The Contributor hereby reaffirms
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and makes to each of the Partnership and the General Partner those
representations and warranties contained in the Contract for the Purchase
and Sale of Real and Personal Property identified in Exhibit A hereto. In
addition, the Contributor hereby represents and warrants to the Partnership
and the General Partner that (i) Contributor is acquiring the Partnership
Units for Contributor's own account and not with a view to, or for sale in
connection with, the "distribution," as such term is used in Section 2(11)
of the Securities Act of 1933, as amended (the "Securities Act"), of any of
the Partnership Units in violation of the Securities Act; (ii) the
Contributor is an "accredited investor," as that term is defined in Rule
501(a) of Regulation D promulgated under the Securities Act; (iii) the
Contributor understands that the Partnership Units have not been registered
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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 the
Contributor's representations as expressed herein; (iv) the Contributor has
had an opportunity to discuss the Partnership's business, management and
financial affairs with the Partnership's management and the opportunity to
review the Partnership's financial records; (v) the Contributor understands
and acknowledges that no public market now exists for any of the
Partnership Units and that there can be no assurance that a public market
will ever exist for the Partnership Units; and (vi) the Contributor has
such knowledge and experience in financial and business matters, or has
been adequately advised by the Contributor's financial representatives,
that the Contributor is capable of evaluating the merits and risks of the
purchase of the Partnership Units pursuant to this Amendment and of
protecting the Contributor's interests in connection herewith.
(b) No Liens. The Contributor represents and warrants to the
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Partnership and the General Partner that at the date hereof none of the
Partnership Units issued or issuable to the Contributor pursuant to the
Transaction Documents, and none of the shares of Common Stock that may be
acquired by the Contributor upon exercise of Rights, is subject to any
Lien, other than the security interest created by paragraph 11 hereof.
(c) Definition. All of the representations, warranties, covenants and
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agreements of the Contributor referred to in this paragraph 8 are referred
to collectively as the "Representations and Warranties."
(d) General Partner Representations. The General Partner represents
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and warrants to the Contributor as follows:
(i) Organization. The General Partner is duly incorporated,
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validly existing and in good standing under the laws of the State of
Georgia.
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(ii) Due Authorization; Binding Agreement. The execution,
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delivery and performance of this Amendment by the General Partner have
been duly and validly authorized by all necessary action of the
General Partner and the Partnership. This Amendment has been duly
executed and delivered by the General Partner and constitutes a legal,
valid and binding obligation of the General Partner and the
Partnership, enforceable against the General Partner and the
Partnership in accordance with the terms hereof.
(iii) Consents and Approvals. No consent, waiver, approval or
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authorization of, or filing, registration or qualification with, or
notice to, any governmental unit or any other Person is required to be
made, obtained or given by the General Partner in connection with the
execution, delivery and performance of this Amendment, other than
consents, waivers, approvals or authorizations that have been obtained
prior to the date hereof.
(iv) Partnership Units. The Partnership Units issued pursuant
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to the Transaction Documents are duly authorized and, when issued in
accordance with the Transaction Documents, will be duly issued, fully
paid and nonassessable and will be unencumbered except for the
security interest created by paragraph 11 hereof.
9. Survival of Representations and Warranties. All of the Representations
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and Warranties shall survive the consummation of the transactions contemplated
by the Transaction Documents; provided, however, that no claim for a breach of
any Representation or Warranty may be maintained by the Partnership, the Company
or the General Partner unless the Partnership, the Company or the General
Partner shall have delivered a written notice ("Notice of Breach") specifying
the details of such claimed breach to the Contributor on or before the first
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anniversary of the last issuance of Units pursuant to the Transaction Documents
(the "Survival Period").
10. Indemnification.
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(a) The Contributor hereby indemnifies and holds harmless the
Partnership, the Company and the General Partner against and from all
liabilities, demands, claims, actions or causes of action, assessments,
losses, fines, penalties, costs, damages and expenses (including, without
limitation, reasonable attorneys' and accountants' fees and expenses
actually incurred) sustained or incurred by the Partnership, the Company or
the General Partner as a result of or arising out of any inaccuracy in or
breach of a Representation or Warranty.
(b) The Partnership, the Company and the General Partner shall not be
entitled to indemnification hereunder unless a Notice of Breach has been
delivered by the Partnership, the Company or the General Partner to the
Contributor.
(c) If a claim for indemnification is asserted by the Partnership, the
Company or the General Partner against the Contributor, the Contributor
shall have the right, at its own expense, to participate in the defense of
any claim, action or proceeding asserted against the Partnership, the
Company or the General Partner that resulted in the claim for
indemnification, and if such right is exercised, the parties shall
cooperate in the defense of such action or proceeding.
(d) Indemnification of the Partnership, the Company and the General
Partner pursuant to this paragraph 10 shall be the exclusive remedy of the
Partnership, the Company and the General Partner for any breach of any
Representation or Warranty contained in this contained in this Agreement.
Nothing contained herein shall limit any remedy the Partnership (or any
affiliate of the Partnership including, without limitation, any affiliate
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of the Partnership as determined with respect to the voting or economic
control held by or in the Partnership) may have under the Transaction
Documents, including, without limitation, the remedy of specific
performance for any failure by the Contributor to contribute a property or
otherwise limit any remedy the Partnership, the Company or the General
Partner may have for any commission of fraud made by the Contributor.
11. Security and Remedies.
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(a) The Contributor hereby grants to the Partnership a lien upon and a
continuing security interest in the Partnership Units issued to it pursuant
to the Transaction Documents and the shares of Common Stock acquired by it
upon exercise of Rights with respect to such Partnership Units (the
"Collateral"), which shall be security for the indemnification obligations
of the Contributor under paragraph 10 hereof. Except as otherwise provided
in this Amendment, the indemnification obligations of the Contributor
hereunder with respect to breaches of Representations and Warranties shall
be payable out of the Contributor's entire Collateral; provided, however,
that the Contributor may satisfy all or any part of such indemnification
obligation of the Contributor in cash if the Contributor so elects. Any
Transfer by the Contributor of its Collateral shall be subject to the lien
and security interest granted hereby.
(b) In the event the General Partner asserts that the Contributor has
an indemnification obligation to the Partnership, the Company or the
General Partner under paragraph 10 hereof, the General Partner shall
deliver written notice (the "Indemnification Notice") to the Contributor
describing in reasonable detail the circumstances giving rise to such
obligation and the amount thereof. If, within thirty (30) days after the
receipt of an Indemnification Notice, the Contributor delivers written
notice to the General Partner indicating that the Contributor disputes the
circumstances giving rise to or the amount of such claimed indemnification
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obligation, the General Partner may submit such matter for binding
arbitration in accordance with the provisions of Article XIV of the
Partnership Agreement by delivering a Demand Notice to the Contributor
pursuant to such Article XIV. If, after receiving timely notice of a
dispute hereunder from the Contributor, the General Partner fails to so
submit the matter for arbitration within twenty (20) days after receipt of
such notice from the Contributor, then the Contributor shall be relieved of
the claimed indemnification obligation described in the Indemnification
Notice. In the event the Contributor (i) receives an Indemnification
Notice and fails to timely deliver notice to the General Partner of its
dispute as to the indemnification obligation and fails to make payment
within thirty (30) days after delivery of an Indemnification Notice or (ii)
has an indemnification obligation to the Partnership or the General Partner
under paragraph 10 hereof as determined pursuant to Article XIV of the
Partnership Agreement, and does not satisfy such obligation within ten (10)
days after the decision rendered in the arbitration, then, in either event,
the Partnership shall have any and all remedies of a secured creditor under
the Uniform Commercial Code, and, in addition thereto, at the election of
the Partnership, the Partnership shall, to the extent permitted by law, be
deemed, without the payment of any further consideration or the taking of
any further action required by the Contributor, to have acquired from the
Contributor such portion of the Collateral as shall be equal in value
(based, in the case of Partnership Units, on the Current Per Share Market
Price as computed as of the date immediately preceding such deemed
acquisition of the number of shares of Common Stock for which such
Partnership Units could be redeemed if the General Partner assumed the
redemption obligation and elected to pay the Redemption Price (as defined
in Exhibit D) in shares of Common Stock (assuming the ownership limits in
the Articles of Incorporation would not prohibit the issuance of any such
shares of Common Stock to the Contributors), and, in the case of shares of
Common Stock, on the Current Per Share Common Stock Price computed as of
the date immediately preceding such deemed acquisition) to the amount
recoverable from the Contributor under paragraph 10 hereof. In the event
the Partnership shall have acquired from the Contributor any Collateral
pursuant to this paragraph 11, the General Partner shall deliver written
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notice to the Contributor within ten (10) days thereafter identifying the
specific Collateral acquired and, if such Collateral consists of
Partnership Units, the Percentage Interests of the Contributor following
such acquisition. Unless and until the Partnership shall have acquired
from the Contributor any Collateral pursuant to this paragraph 11, the
Contributor shall retain all rights with respect to the Collateral not
expressly limited herein or in the Partnership Agreement, including,
without limitation, rights to distributions provided for in the Partnership
Agreement and rights to dividends on shares of Common Stock. The
Contributor hereby agrees to take any and all actions and to execute and
deliver any and all documents or instruments necessary to perfect the
security interest created by this Amendment, including delivering the
certificates representing the Partnership Units or shares of Common Stock
to the General Partner.
(c) On the first day immediately following the expiration of the
Survival Period as defined in paragraph 9 hereof (or, if a Notice of Breach
has been delivered to the Contributor prior to such date, then on the first
day immediately following the resolution of such Notice of Breach) the
Contributor will be relieved of the restrictions on transferability
provided for by this Amendment (except that the transfer restrictions
contained in the Partnership Agreement shall continue) and the security
interest in the Collateral shall terminate without further action, and the
Partnership, at the request of the Contributor, shall promptly execute and
deliver any document or instrument reasonably requested by the Contributor
to evidence such termination.
12. Recourse. Notwithstanding anything contained in this Amendment or in
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the Partnership Agreement to the contrary, the recourse of the General Partner,
the Company or the Partnership under paragraph 10 hereof with respect to
breaches of Representations and Warranties of the Contributor shall not be
limited to the Contributor's Collateral.
13. Restriction on Transfer. In connection with the security interests
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granted by the Contributor under paragraph 11 hereof, the Contributor agrees
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that any shares of Common Stock and any portion of the Contributor's Partnership
Interests included in the Collateral shall not be Transferred without the
consent of the General Partner; provided, however, that the Contributor may
Transfer all or any portion of such shares of Common Stock or Partnership
Interests to an Affiliate of such person (so long as such Affiliate remains an
Affiliate of such person), subject to the prior security interest granted in
paragraph 11 hereof and to the restrictions contained in Article IX of the
Partnership Agreement. Upon exercise of the Rights with respect to any
Partnership Units included in the Contributor's Collateral, the Partnership, in
perfection of the security interest herein granted, shall retain the
certificate(s) representing the portion of the Common Stock issued upon such
exercise that is included in such Collateral. If any portion of the Partnership
Interests of the Contributor included in the Contributor's Collateral is
represented by certificates, the Partnership shall retain such certificates in
perfection of the security interest herein granted. On the first day
immediately following the expiration of the Survival Period as defined in
paragraph 9 hereof (or, if a Notice of Breach has been delivered to the
Contributor prior to such date, then on the first day immediately following the
resolution of such Notice of Breach) the Contributor will be relieved of the
restrictions on transferability provided for by this paragraph 13 without
further action, and the Partnership, at the request of the Contributor, shall
promptly execute and deliver any document or instrument reasonably requested by
the Contributor to evidence such termination.
14. Miscellaneous. This Amendment shall be governed by and construed in
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conformity with the laws of the State of Georgia. For the purposes of the
notice provisions of the Partnership Agreement, the address of the Contributor
is as set forth on the signature page hereof. Except as expressly amended
hereby, the Partnership Agreement shall remain in full force and effect. This
Amendment and all the terms and provisions hereof shall be binding upon and
shall inure to the benefit of the parties, and their legal representatives,
heirs, successors and permitted assigns.
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first above written.
WEEKS REALTY, L.P., a Georgia limited
partnership
By: Weeks GP Holdings, Inc., a Georgia
corporation, its Sole General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name:
Title: President/COO
CONTRIBUTOR:
THE XXXXXXX PROPERTIES LIMITED PARTNERSHIP NO. 1, A
NORTH CAROLINA LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
General Partner
Address:
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Solely to evidence its agreement to its undertakings in
Exhibit D hereto:
WEEKS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name:
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Title: President/COO
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