Exhibit 4.10
NINTH AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS NINTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. (the "Amendment") is entered into as
of the 22nd day of January, 1998, by and among WEEKS GP HOLDINGS, INC., a
Georgia corporation (the "General Partner"), WEEKS CORPORATION, a Georgia
corporation (the "Company"), and PCTC ASSOCIATES, LLC, a Georgia limited
liability company (the "Contributor").
RECITALS
--------
Weeks Realty, L.P. (the "Partnership") is a Georgia limited partnership.
The General Partner is the sole general partner of the Partnership and is a
wholly owned subsidiary of the Company. The partnership agreement of the
Partnership is that certain Second Amended and Restated Agreement of Limited
Partnership of Weeks Realty, L.P., dated as of October 30, 1996, as amended by
the First Amendment to the Partnership Agreement dated November 1, 1996, the
Second Amendment to the Partnership Agreement dated December 31, 1996, the Third
Amendment to the Partnership Agreement dated January 31, 1997, the Fourth
Amendment to the Partnership Agreement dated August 1, 1997, the Fifth Amendment
to the Partnership Agreement dated October 7, 1997, the Sixth Amendment to the
Partnership Agreement dated October 27, 1997, the Seventh Amendment to the
Partnership Agreement dated as of December 30, 1997 and effective as of August
1, 1997, and the Eighth Amendment to the Partnership Agreement dated January 9,
1998 (the "Partnership Agreement"). Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Partnership
Agreement.
Pursuant to the agreements and instruments listed or referred to on Exhibit
A hereto (the ("Transaction Documents"), and the transactions effected by the
Transaction Documents, effective as of the date hereof the Contributor has
contributed, directly or indirectly, certain properties to the capital of the
Partnership.
Pursuant to the Partnership Agreement (including, without limitation,
Section 9.3 and Section 15.7(b)(ii) thereof), the General Partner is authorized
(without the consent of any Limited Partner) to admit additional Limited
Partners to the Partnership for such Capital Contributions as are determined by
the General Partner to be appropriate, and to amend the Partnership Agreement to
reflect such admissions.
The General Partner wishes to amend the Partnership Agreement as set forth
herein to reflect the admission of the Contributor as a Limited Partner of the
Partnership, and the Contributor wishes to enter into this Amendment to
memorialize their agreement as to certain matters relating to their becoming
Limited Partners of the Partnership.
AGREEMENT
---------
In consideration of the circumstances referred to in the Recitals, the
consummation of the transactions effected pursuant to the Transaction Documents,
the mutual covenants and agreements contained herein, and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Admission. The Contributor hereby is admitted to the Partnership as a
---------
Limited Partner, effective as of the date hereof, and the Contributor hereby
agrees to be bound by the Partnership Agreement, including, but not limited to,
the transfer restrictions contained in Article IX thereof.
-2-
2. Capital Contributions. The Contributor is agreed to have made, as of
---------------------
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.
---------------------------------
(1) 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 having such
Partnership Units.
(2) 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.
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 the Contributor as a Limited Partner at the date hereof, the Percentage
Interests of all of the Partners have been
-3-
revised and are as reflected on Exhibit C hereto, and the Partnership Agreement
is hereby amended accordingly.
5. [Intentionally omitted.]
6. Adjustments to Partnership Units. The parties acknowledge that the
--------------------------------
Transaction Documents provide for the issuance of additional Partnership Units
to the Contributors, and accordingly the Contributors' final Partnership
Interests and Units, and the resulting restated Percentage Interests of all of
the Partners, following such issuance cannot be determined on the date hereof.
At the time of issuance and final determination provided for in the Transaction
Documents, 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 C-1," and so on and shall identify the Capital
Contribution to which it relates). 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
--------------------------
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 the
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.
-4-
8. Representations and Warranties.
------------------------------
(1) Contributor's Representations. The Contributor hereby reaffirms
-----------------------------
and makes to each of the Partnership and the General Partner those
representations and warranties contained in Sections 2 and 3 of the
Contribution Agreement identified in Exhibit A attached hereto. In
---------
addition, the Contributor hereby represents and warrants to the Partnership
and the General Partner that (i) the Contributor is acquiring the
Partnership Units for the Contributor's own account and not with a view to,
or for sale in connection with, the "distribution," as such term is used in
Section 2(11) of the Securities Act of 1933, as amended (the "Securities
Act"), of any of the Partnership Units in violation of the Securities Act;
(ii) each of the Managers of 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 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 its 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.
(2) No Liens. The Contributor represents and warrants to the
--------
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
-5-
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.
(3) Definition. All of the representations, warranties, covenants and
----------
agreements of the Contributor referred to in this paragraph 8 are referred
to collectively as the "Representations and Warranties."
(4) General Partner Representations. The General Partner represents
-------------------------------
and warrants to the Contributor as follows:
(i) Organization. The General Partner is duly incorporated,
------------
validly existing and in good standing under the laws of the State of
Georgia.
(ii) Due Authorization; Binding Agreement. The execution,
------------------------------------
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
----------------------
authorization of, or filing, registration or qualification with, or
notice to, any governmental unit or any other Person is required to be
made, obtained or given by the General Partner in connection with the
execution, delivery and performance of this Amendment, other than
consents, waivers, approvals or authorizations that have been obtained
prior to the date hereof.
(iv) Partnership Units. The Partnership Units issued pursuant
-----------------
to the Transaction Documents are duly authorized and, when issued in
accordance with the
-6-
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 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 anniversary of this Amendment (the "Survival Period").
10. Indemnification.
---------------
(1) The Contributor indemnifies and holds harmless the Partnership,
the Company and the General Partner against and from all liabilities,
demands, claims, actions or causes of action, assessments, losses, fines,
penalties, costs, damages and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and expenses actually incurred)
sustained or incurred by the Partnership, the Company or the General
Partner as a result of or arising out of any inaccuracy in or breach of a
Representation or Warranty.
(2) 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.
(3) 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
-7-
indemnification, and if such right is exercised, the parties shall
cooperate in the defense of such action or proceeding.
(4) 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 Amendment. Nothing contained
herein shall limit any remedy the Partnership (or any affiliate of the
Partnership including, without limitation, any affiliate of the Partnership
as determined with respect to the voting or economic control held by or in
the Partnership) may have under the Transaction Documents, including,
without limitation, the remedy of specific performance for any failure by
the Contributor to contribute a property or otherwise limit any remedy the
Partnership, the Company or the General Partner may have for any commission
of fraud made by the Contributor.
11. Security and Remedies.
---------------------
(1) 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 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.
(2) In the event the General Partner asserts that the Contributor has
an indemnification obligation to the Partnership, the Company or the
General Partner under
-8-
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 obligation,
the General Partner may submit such matter for binding arbitration in
accordance with the provisions of Article XIV of the Partnership Agreement
by delivering a Demand Notice to the Contributor pursuant to such Article
XIV. If, after receiving timely notice of a dispute hereunder from the
Contributor, the General Partner fails to so submit the matter for
arbitration within twenty (20) days after receipt of such notice from the
Contributor, then the Contributor shall be relieved of the claimed
indemnification obligation described in the Indemnification Notice. In the
event the Contributor (i) receives an Indemnification Notice and fails to
timely deliver notice to the General Partner of their dispute as to the
indemnification obligation and fails to make payment within thirty (30)
days after delivery of an Indemnification Notice or (ii) has an
indemnification obligation to the Partnership or the General Partner under
paragraph 10 hereof as determined pursuant to Article XIV of the
Partnership Agreement, and 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 Contributor), and, in the case of shares of
Common Stock, on the Current Per
-9-
Share Common Stock Price computed as of the date immediately preceding such
deemed acquisition) to the amount recoverable from the Contributor under
paragraph 10 hereof. In the event the Partnership shall have acquired from
the Contributor any Collateral pursuant to this paragraph 11, the General
Partner shall deliver written notice to the Contributor within ten (10)
days thereafter identifying the specific Collateral acquired and, if such
Collateral consists of Partnership Units, the Percentage Interests of the
Contributor following such acquisition. Unless and until the Partnership
shall have acquired from the Contributor any Collateral pursuant to this
paragraph 11, the Contributor shall retain all rights with respect to the
Collateral not expressly limited herein or in the Partnership Agreement,
including, without limitation, rights to distributions provided for in the
Partnership Agreement and rights to dividends on shares of Common Stock.
The Contributor hereby agrees to take any and all actions and to execute
and deliver any and all documents or instruments necessary to perfect the
security interest created by this Amendment, including delivering the
certificates representing the Partnership Units or shares of Common Stock
to the General Partner.
(3) 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
--------
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 Collateral.
-10-
13. Restriction on Transfer. In connection with the security interest
-----------------------
granted by the Contributor under paragraph 11 hereof, the Contributor agrees
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 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 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
-------------
conformity with the laws of the State of Georgia. For the purposes of the
notice provisions of the Partnership Agreement, the address of each 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.
-11-
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:
_____________________________________
Name:
Title:
CONTRIBUTOR:
PCTC ASSOCIATES, LLC
By:
_____________________________________
Xxxxxxx X. Xxxxxx
Manager
By:
_____________________________________
Xxxxxxx X. Law, Jr.
Manager
Address: 0000 Xxxxxxxxx Xxxxxx
-------
Suite 000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Solely to evidence its agreement to
its undertakings in Exhibit D hereto:
WEEKS CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
-12-
Exhibit A
---------
TRANSACTION DOCUMENTS
1. Contract for the Partnership Contribution of Real and Personal Property,
dated January 20, 1998, by and among PCTC Associates, LLC and Weeks Realty,
L.P. (the "Contribution Agreement")
2. Registration Rights and Lock-Up Agreement, dated January 20, 1998, by and
among Weeks Corporation and PCTC Associates, LLC
A-1
Exhibit B
---------
Capital Contribution:
--------------------
PCTC Associates, LLC Capital Contribution: All assets, properties and
businesses transferred from PCTC Associates at January 20,
1998, to the Partnership pursuant to the Transaction Documents
(as defined in the foregoing Amendment)
Gross Fair Market Value of Property Contributions:
-------------------------------------------------
Gross Fair Market Value of all
property other than money included in
PCTC Associates, LLC Contribution: $1,239,075.58
PCTC Associates, LLC Units issued hereby: 38,806
B-1
Exhibit C
---------
PARTNERSHIP UNITS/PERCENTAGE INTERESTS
All Partners
Partner Units Percentage Interest
------- ---------- -------------------
Weeks GP Holdings, Inc. 237,503 0.971%
Weeks LP Holdings, Inc. 17,467,840 71.426%
NWI Warehouse Group, L.P. 2,281,273 9.328%
A. Xxx Xxxxx, Xx. 614,079 2.511%
Xxxx X. Xxxxx 239,791 0.981%
Xxxxxx X. Xxxxx 228,047 0.932%
Trust U/W/1/ 212,663 0.870%
Xxxxxxxx X. Xxxxx 206,607 0.845%
Xxxxxxx Xxxxx Xxxxxx 198,339 0.811%
Trust B/2/ 187,492 0.767%
Xxxxx X. Xxxxx 163,048 0.667%
Weeks Horizon Corp. 116,012 0.474%
Oakdale Land Management, Inc. 110,493 0.452%
Weeks Hillside Corp. 78,145 0.320%
Xxxxxx X. Xxxxxxxx 52,817 0.216%
Weeks Southridge Corp. 42,993 0.176%
--------------------
/1/ A. R. Weeks, Jr., as Trustee U/W of Xxxxx Xxx Weeks dated March 1, 1983,
f/b/o Xxxxxx Xxx Xxxxx, A. R. Weeks, Jr., Xxxxxxx Xxxxx Xxxxxx, Xxxxxxxx Xxxxxx
Xxxxx and Xxxx Xxxxxxx Xxxxx.
/2/ Xxxxx X. Weeks, A. R. Weeks, Jr., and Xxxxxx Xxxxxxxxx Weeks as
Trustees under Trust Agreement dated 10/27/76, as amended, f/b/o Xxxxxx Xxx
Xxxxx, A. R. Weeks, Jr., Xxxxxxx Xxxxx Xxxxxx, Xxxxxxxx Xxxxxx Xxxxx and Xxxx
Xxxxxxx Xxxxx.
C-1
Xxxxxxx X. Xxxxxxxx 28,877 0.118%
Xxxxx X. Weeks 27,535 0.113%
Xxxxx X. Xxxxxxxx 20,016 0.082%
Xxxxxxx & Company Real Estate, Inc. 20,000 0.082%
HV, Inc. 17,074 0.070%
Xxxxx X. Xxxxxxx 5,627 0.023%
Xxxx X. Xxxxxx 5,627 0.023%
Xxxxxx X. Xxxxxx 5,138 0.021%
Xxxx X. Xxxxxxx 4,110 0.017%
Xxxx X. Xxxxxxx 1,541 0.006%
Weeks Management Corp 1,142 0.005%
RTF Management Corp. 257 0.001%
Xxxxx Xxxxxxxxxx Xxxxxxxxx 268,045 1.096%
Xxxxxx X. Xxxxxxx 28,780 0.118%
Xxxx X. Xxxxxxx 153 0.001%
Perimeter Park West Associates
Limited Partnership 252,796 1.034%
Xxx X. Xxxxxx 2,053 0.008%
Xxxxxx X. Xxxxxxxxx 2,053 0.008%
Xxxxxxxx Xxxxxx 2,928 0.012%
Xxxxxxx Xxxxxxxx 1,757 0.007%
Xxxxx XxXxxx 39 0.000%
Xxxx Xxxxxxxx 1,561 0.006%
Xxxxxx X. Xxxxxxx Family 342,569 1.401%
Lmited Partnership
GB Partners, Ltd. 11,561 0.047%
Xxxxxxx Xxxxxx 124,523 0.509%
Codina Family Investments, Ltd. 30,351 0.124%
Codina West Dade 117,692 0.481%
Development Corporation
The Xxxxxxxx Capital Company 320,721 1.311%
Raha Associates, Inc. 7,281 0.030%
Xxxxxxx X. Xxxxx 164,001 0.671%
Xxxxxxxx X. Xxxxx 164,001 0.671%
PCTC Associates, LLC 38,806 0.159%
---------- -------
Total 24,455,757 100.000%
========== =======
C-2
Exhibit D
---------
RIGHTS TERMS
------------
The Rights granted by the Partnership to the Contributor (referred to in
this Exhibit as "Limited Partners"), pursuant to paragraph 3(b) of the foregoing
Amendment shall be subject to the following terms and conditions:
1. Definitions. Capitalized terms used in this Exhibit without
-----------
definition shall have the meanings given to them in the Partnership Agreement or
the foregoing Amendment, as applicable, and the following terms and phrases
shall, for purposes of this Exhibit D, the Partnership Agreement and the
foregoing Amendment, have the meanings set forth below:
"Cash Purchase Price" shall have the meaning set forth in Paragraph 4
-------------------
hereof.
"Closing Notice" shall mean the written notice to be given by the
--------------
General Partner to the Exercising Partner(s) in response to the receipt by the
General Partner of a Conversion Exercise Notice from such Exercising Partner(s).
The form of the Closing Notice is attached hereto as Schedule 2.
"Computation Date" shall mean the date on which a Conversion Exercise
-----------------
Notice is delivered to the General Partner.
"Conversion Exercise Notice" shall have the meaning set forth in
--------------------------
Paragraph 2 hereof.
"Conversion Factor" shall mean 100%, provided that such factor shall
-----------------
be adjusted in accordance with the provisions of paragraph 10 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended, or any successor statute.
"Exercising Partners" shall have the meaning set forth in Paragraph 2
-------------------
hereof.
"Offered Partnership Units" shall mean the Partnership Units of the
-------------------------
Exercising Partner(s) identified in a Conversion Exercise Notice that, pursuant
to the exercise of Rights, must be redeemed by the Partnership or acquired by
the General Partner and/or Weeks LP Holdings under the terms hereof.
"Redemption Price" shall mean the Cash Purchase Price or the Stock
----------------
Purchase Price.
"Rights" shall have the meaning set forth in paragraph 3(b) of the
------
foregoing Amendment.
C-1
"Securities Act" shall mean the Securities Act of 1933, as amended, or
--------------
any successor statute.
"Stock Purchase Price" shall have the meaning set forth in Paragraph 4
--------------------
hereof.
2. Delivery of Conversion Exercise Notices. Any one or more Limited
---------------------------------------
Partners ("Exercising Partners") may, subject to the limitations set forth
herein, deliver to the General Partner written notice (the "Conversion Exercise
Notice") pursuant to which such Exercising Partners elect to exercise the
Rights. The form of Conversion Exercise Notice is attached hereto as Schedule
1.
3. Limitations on Exercise of Rights; Deemed Exercise.
--------------------------------------------------
(1) No Conversion Exercise Notice, with respect to any Unit may be
delivered to the General Partner by a Limited Partner until the later of
(i) the first anniversary of the date of each such issuance, or (ii) the
date on which either (A) there is a registration statement effective under
the Securities Act with respect to any resale by such Limited Partner of
any of such shares of Common Stock, or (B) in the opinion of counsel to
Weeks, shares of Common Stock that could be issued to such Limited Partner
pursuant to such exercise of Rights may be issued without registration
under the Securities Act.
(2) A Limited Partner may not exercise the Rights for less than one
thousand (1,000) Partnership Units or, if such Limited Partner holds less
than one thousand (1,000) Partnership Units, all of the Partnership Units
held by such Limited Partner.
(3) Neither the General Partner nor the Partnership shall have any
obligation or authority to redeem or purchase Offered Partnership Units to
the extent that issuance of shares of Common Stock in payment of the Stock
Purchase Price for any part of the Offered Partnership Units would result
(i) in the violation of the General Ownership Limit (as such term is
defined in the Articles of Incorporation), (ii) would cause Weeks to fail
the stock ownership test of Section 856(a)(6) of the Code, or (iii) would
otherwise cause Weeks to fail to qualify as a REIT; provided that in any
such case, the General Partner or the Partnership shall purchase for cash
those offered Partnership Units which may not be redeemed with shares of
Common Stock. Each Exercising Partner shall provide to the General Partner
such information as the General Partner may request regarding such
Exercising Partner's actual and constructive ownership of Common Stock (and
of individuals, and entities related to such Exercising Partner) in order
for the General Partner to determine, in its sole discretion, whether a
purchase or redemption of the Offered Partnership Units for shares of
Common Stock would result in a violation of such restrictions.
(4) If, after complying with all applicable provisions of the
Partnership Agreement, any Person with an ownership interest in any of the
Contributor becomes the owner of any Partnership Units previously owned by
the any of the Contributor, such Person may exercise the Rights granted
with respect to such Partnership Units in accordance with the terms hereof.
C-2
4. Computation of Redemption Price/Form of Payment. The Redemption Price
-----------------------------------------------
payable by the Partnership to each Exercising Partner for the Offered
Partnership Units shall be payable, at the election of the General Partner, by
the delivery by the Partnership of the Redemption Price. Notwithstanding the
foregoing, at the election of the General Partner, the Redemption Price may be
the Stock Purchase Price for part of the Offered Partnership Units and the Cash
Purchase Price for the remainder of the Offered Partnership Units. The "Stock
Purchase Price" shall mean the number of shares of Common Stock equal to the
product, expressed as a whole number, of (i) the number of Offered Partnership
Units, multiplied by (ii) the Conversion Factor. The "Cash Purchase Price"
shall mean an amount of cash (in immediately available funds) equal to (i) the
number of shares of Common Stock that would be issued to the Exercising Partner
if the Stock Purchase Price were paid for such Offered Partnership Units,
multiplied by (ii) the Current Per Share Market Price computed as of the
Computation Date. To the extent the Partnership elects to pay the Stock
Purchase Price, it shall obtain the necessary shares of Common Stock in exchange
for the issuance of additional Partnership Interests to the General Partner,
Weeks LP Holdings, or any combination thereof, as determined by the General
Partner in its sole discretion, and the General Partner and/or Weeks LP Holdings
shall obtain the necessary shares of Common Stock in exchange for the issuance
of additional capital stock to Weeks.
5. Closing; Delivery of Closing Notice. The closing of the redemption of
-----------------------------------
Offered Partnership Units shall, unless otherwise mutually agreed, be held at
the principal office of the Partnership, as follows:
(a) Within ten (10) days after the receipt by the Partnership of the
Conversion Exercise Notice, the Partnership shall deliver a Closing
Notice to the Exercising Partner(s). The Closing Notice shall state a date
for the closing of the redemption of the Offered Partnership Units, which
date shall not be later than the later of (i) twenty (20) days after the
receipt by the Partnership of the Conversion Exercise Notice (forty-five
(45) days as to the Offered Partnership Units for which the Cash Purchase
Price will be paid), and (ii) the first (1st) business day after the
expiration or termination of the waiting period applicable to each
Exercising Partner, if any, under the Xxxx-Xxxxx Act.
(b) If applicable, the Closing Notice shall (i) specify the
Partnership's election to pay the Cash Purchase Price for some or all of
the Offered Partnership Units and (ii) set forth the computation of the
Cash Purchase Price to be paid by the Partnership to such Exercising
Partner(s). The Cash Purchase Price shall be paid by wire transfer of
immediately available funds to such account of the Exercising Partner as is
designated in the Conversion Exercise Notice.
6. Assumption by the General Partner and/or Weeks LP Holdings.
----------------------------------------------------------
Notwithstanding anything in this Exhibit D to the contrary, the General Partner,
Weeks LP Holdings or any combination thereof (an "Assumer" or, collectively, the
"Assumers") may, in the sole and absolute discretion of the General Partner,
assume directly and satisfy the exercise of a Right by paying the Electing
Partner the Redemption Price. In such event, the Assumers shall acquire the
Offered Partnership Units and shall be treated for all purposes of this
Agreement as the owner of such Partnership Units, which shall be held by the
Assumers in their respective existing capacities as
C-3
general partner or Limited Partners, as the case may be. In the event the
General Partner shall exercise the Assumers' right to satisfy a Right in the
manner described in this Paragraph 6, the Partnership shall have no obligation
to pay any amount to the Exercising Partner with respect to such Exercising
Partner's exercise of a Right; provided, however, that the Partnership shall
remain liable to the Exercising Partner to the extent that any such Exercising
Partner's Right is not fully satisfied; and each of the Exercising Partner, the
Partnership, and the Assumers shall treat the transaction between the Assumers
and the Exercising Partner as a sale of the Exercising Partner's Partnership
Units to the Assumers for federal income tax purposes. To the extent the
Assumers elect to pay the Stock Purchase Price, they shall obtain the necessary
shares of Common Stock in exchange for the issuance of additional capital stock
to Weeks. Each Exercising Partner agrees to execute such documents as the
General Partner may reasonably require in connection with the issuance of Common
Stock upon exercise of a Right.
7. Closing Deliveries. At the closing, payment of the Redemption Price
------------------
shall be accompanied by proper instruments of transfer and assignment for the
Offered Partnership Units and by the delivery of (i) representations and
warranties of (A) the Exercising Partner with respect to its due authority to
sell all of the right, title and interest in and to the Offered Partnership
Units and with respect to the status of the Offered Partnership Units being
sold, free and clear of all Liens, and (B) the Partnership or the Assumers, as
applicable, with respect to due authority for the redemption or purchase of such
Offered Partnership Units, and (ii) to the extent that shares of Common Stock
are issued in payment of the Stock Purchase Price, (A) an opinion of counsel for
Weeks, reasonably satisfactory to the Exercising Partner(s), to the effect that
such shares of Common Stock have been duly authorized, are validly issued,
fully-paid and nonassessable, and (b) a stock certificate or certificates
evidencing the Common Stock to be issued and registered in the name of the
Exercising Partner(s) or its (their) designee.
8. Covenants of Weeks. To facilitate the Partnership's and the Assumers'
------------------
ability to fully perform their obligations hereunder, Weeks covenants and agrees
as follows:
(a) At all times during the pendency of the Rights, Weeks shall
reserve for issuance such number of shares of Common Stock as may be
necessary to enable Weeks to issue shares of Common Stock in full payment
of the Stock Purchase Price in regard to all Partnership Units that are
from time to time outstanding and with respect to which Rights exist.
(b) During the pendency of the Rights, the Limited Partners shall
receive in a timely manner all communications transmitted from time to time
by Weeks to its shareholders generally.
9. Limited Partners' Covenants. Each Limited Partner covenants and
---------------------------
agrees that all Offered Partnership Units tendered in accordance with the
exercise of Rights shall be delivered free and clear of all Liens. Should any
Liens exist or arise with respect to such Offered Partnership Units, neither the
Assumers nor the Partnership shall be under any obligation to redeem or acquire
the same unless, in connection therewith, the General Partner has elected to pay
a portion of the Redemption Price in the form of the Cash Purchase Price in
circumstances in which such Cash
C-4
Purchase Price will be sufficient to cause such existing Lien to be discharged
in full upon application of all or a part of the Cash Purchase Price. The
Partnership and the Assumers are expressly authorized to apply such portion of
the Cash Purchase Price as may be necessary to discharge such Lien in full. Each
Limited Partner further agrees that, in the event any state or local property
transfer tax is payable as a result of the transfer of its Offered Partnership
Units to the Partnership or the Assumers, such Limited Partner shall assume and
pay such transfer tax.
10. Antidilution Provisions
-----------------------
(a) The Conversion Factor shall be subject to adjustment from time to
time effective upon the occurrence of the following events and shall be
expressed as a percentage, calculated to the nearest one-thousandth of one
percent (.001%):
(i) In case Weeks shall pay or make a dividend or other
distribution on any class of stock of Weeks in shares of Common Stock,
the Conversion Factor in effect at the opening of business on the day
following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be
increased in proportion to the increase in outstanding shares of
Common Stock resulting from such dividend or other distribution, such
increase to become effective immediately after the opening of business
on the day following the record date fixed for such dividend or other
distribution.
(ii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares, the Conversion Factor in
effect at the opening of business on the day following the day upon
which such subdivision becomes effective shall be proportionately
increased, and, conversely, in case the outstanding shares of Common
Stock shall be combined into a smaller number of shares, the
Conversion Factor in effect at the opening of business on the day
following the day upon which such combination becomes effective shall
be proportionately reduced, such increase or reduction, as the case
may be, to become effective immediately after the opening of business
on the day following the day upon which such subdivision or
combination becomes effective.
(b) In case Weeks shall issue rights, options or warrants to all
holders of its shares of Common Stock entitling them to subscribe for or
purchase Common Stock or other securities convertible into shares of Common
Stock at a price per share less than the Current Per Share Market Price as
of the day before the "ex date" with respect to the issuance or
distribution, each Limited Partner holding Rights shall be entitled to
receive such number of such rights, options or warrants, as the case may
be, as he would have been entitled to receive had he exercised all of his
then existing Rights immediately prior to the record date for such issuance
by Weeks. The term "ex date" shall mean the first date on which shares of
Common Stock trade regular way without the right to receive such issuance
or distribution.
C-5
(c) In case the shares of Common Stock shall be changed into the same
or a different number of shares of any class or classes of stock, whether
by capital reorganization, reclassification, or otherwise (other than
subdivision or combination of shares described in subparagraph (a) (ii) of
this Paragraph), then and in each such event the Limited Partners holding
Rights shall have the right thereafter to exercise their Rights for the
kind and amount of shares and other securities and property that would have
been received upon such reorganization, reclassification or other change by
holders of the number of shares of Common Stock with respect to which such
Rights could have been exercised immediately prior to such reorganization,
reclassification or change.
(d) The General Partner may, but shall not be required to, make such
adjustments to the number of shares of Common Stock issuable upon exercise
of Rights, in addition to those required by this Paragraph 10, as the
General Partner considers to be advisable in order that any event treated
for federal income tax purposes as a dividend of stock or stock rights
shall not be taxable to the recipients. The General Partner shall have the
power to resolve any ambiguity or correct any error in the adjustments made
pursuant to this Paragraph and its actions in so doing shall be final and
conclusive, absent manifest error by the General Partner in taking such
action.
11. Fractions of Shares. No fractional shares of Common Stock shall be
-------------------
issued upon exercise of Rights. If Rights shall be exercised with respect to
more than one Offered Partnership Unit at one time by the same Exercising
Partner, the number of full shares of Common Stock comprising the Stock Purchase
Price (or the cash equivalent amount thereof to the extent the Cash Purchase
Price is paid) shall be computed on the basis of the aggregate number of Offered
Partnership Units. Instead of any fractional share of Common Stock that would
otherwise be issuable upon exercise of Rights, the Partnership or the Assumers
shall pay a cash adjustment in respect of such fraction in an amount equal to
the Cash Purchase Price computed hereunder for such fraction of a share.
12. Notice of Adjustments of Conversion Factor. Whenever the Conversion
------------------------------------------
Factor is adjusted as herein provided:
(a) the General Partner shall compute the adjusted Conversion Factor
in accordance with Paragraph 10 hereof and shall prepare a certificate
signed by the chief financial officer or the Treasurer of the General
Partner setting forth the adjusted Conversion Factor and showing in
reasonable detail the facts upon which such adjustment is based; and
(b) notice stating that the Conversion Factor has been adjusted and
setting forth the adjusted Conversion Factor shall forthwith be mailed by
the General Partner to all holders of Rights at their last addresses on
record under this Agreement.
13. Notice of Certain Corporate Actions.
-----------------------------------
In case:
C-6
(a) Weeks shall declare a dividend (or any other distribution) on its
Common Stock payable otherwise than in cash; or
(b) Weeks shall authorize the granting to the holders of its Common
Stock of rights, options or warrants to subscribe for or purchase any
shares of stock of any class or of any other rights; or
(c) of any reclassification of the shares of Common Stock (other than
a subdivision or combination of its outstanding Common Stock, or of any
consolidation, merger or share exchange to which Weeks is a party and for
which approval of any shareholders of Weeks is required), or of the sale or
transfer of all or substantially all of the assets of Weeks; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of Weeks;
then the General Partner shall cause to be mailed to all holders of Rights at
their last addresses on record under this Agreement, at least 20 days (or 12
days in any case specified in clause (a) or (b) above) prior to the applicable
record date hereinafter specified, a notice stating (i) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of which
the holders of shares of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (ii) the date
on which such reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of shares of
Common Stock of record shall be entitled to exchange their shares for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding up.
14. Provisions in Case of Consolidation, Merger or Sale of Assets.
-------------------------------------------------------------
In case of any consolidation of Weeks with, or merger of Weeks into, any
other Person, any merger or consolidation of another Person into Weeks (other
than a merger that does not result in any reclassification, conversion, exchange
or cancellation of outstanding shares of Common Stock), any acquisition of the
outstanding Common Stock by share exchange, or any sale or transfer of all or
substantially all of the assets of Weeks, the Person formed by such
consolidation or resulting from such merger or that acquires the outstanding
Common Stock or such assets of Weeks as the case may be, shall execute and
deliver to each holder of Rights an agreement providing that such holder shall
have the right thereafter, during the period such rights shall be exercisable
(which shall be at least as long as the period for which the Rights can be
exercised under the other provisions of this Agreement), to exercise the Rights
for the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, share exchange, sale or transfer by a holder of the
number of shares of Common Stock for which the Rights might have been exercised
immediately prior to such consolidation, merger, share exchange, sale or
transfer, assuming both that (a) such holder of shares of Common Stock is not a
Person with which Weeks consolidated or into which Weeks merged or that merged
into Weeks, or that acquired the outstanding Common Stock by share
C-7
exchange, or to which such sale or transfer was made, as the case may be (a
"Constituent Person"), or an Affiliate of a Constituent Person, and that (b)
such holder does not exercise his right of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such consolidation,
merger, share exchange, sale or transfer (provided that if the kind or amount of
--------
securities, cash and other property receivable upon such consolidation, merger,
share exchange, sale or transfer is not the same for each share of Common Stock
in respect of which such right of election, if any, is not exercised ("non-
electing Share"), then for the purpose of this Paragraph 14, the kind and amount
of securities, cash and other property receivable upon such consolidation,
merger, share exchange, sale or transfer by each non-electing Share shall be
deemed to be the kind and amount so receivable per non-electing Share by a
plurality of the non-electing Shares). Such agreement shall provide for
adjustments that, for events subsequent to the effective date of such agreement,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Exhibit D.
The above provisions of this Paragraph 14 shall similarly apply to
successive consolidations, mergers, sales or transfers.
C-8
SCHEDULE 1
CONVERSION EXERCISE NOTICE
--------------------------
To: Weeks Realty, L.P.
Reference is made to that certain Seventh Amendment (the "Amendment") to
the Second Amended and Restated Agreement of Limited Partnership of Weeks
Realty, L.P. (the "Partnership"). Capitalized terms used but not defined herein
shall have the meanings set forth in Amendment. Pursuant to Exhibit D to the
Amendment, the undersigned, being a limited partner of the Partnership (an
"Exercising Partner"), hereby elects to exercise its Rights as to the number of
Offered Partnership Units specified opposite its name below:
Number of Offered
Exercising Limited Partner Partnership Units
-------------------------- -----------------
---------------------------------------
Signature of Exercising Limited Partner
Date:__________________________________
SCHEDULE 2
CLOSING NOTICE
--------------
To: Exercising Limited Partner(s)
Reference is made to that certain Seventh Amendment (the "Amendment") to
the Second Amended and Restated Agreement of Limited Partnership of Weeks
Realty, L.P. (the "Partnership"). Capitalized terms used but not defined herein
shall have the meaning set forth in Amendment. The closing of the redemption of
the Offered Partnership Units shall occur at _______, ________, Georgia, on
___________. Pursuant to Exhibit D to the Amendment, the Partnership hereby
notifies the Exercising Partner(s) that it has elected to pay the Cash Purchase
Price to the Exercising Partner(s) for the number of Offered Partnership Units
set forth below, and that the computation of the Cash Purchase Price is set
forth on an attachment hereto.
NUMBER OF OFFERED CASH PURCHASE
EXERCISING PARTNER(S) PARTNERSHIP UNITS PRICE
--------------------- ----------------- -------------
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc., General Partner
By:_________________________________________
Title:______________________________________
Date:_______________________________________
