SIXTH AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS SIXTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. (the "Amendment") is entered into as
of the 27th day of October, 1997, by and among WEEKS GP HOLDINGS, INC., a
Georgia corporation (the "General Partner"), WEEKS CORPORATION, a Georgia
corporation (the "Company"), and GB PARTNERS, LTD., a Florida 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 and the Fifth
Amendment to the Partnership Agreement dated October 7, 1997 (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 that certain contribution agreement executed on the date hereof
by and among the Contributor, the Partnership and certain other parties
identified therein (the "Contribution Agreement"), the Partnership will
contribute such properties, through one or more steps, to an entity controlled,
directly or indirectly, by 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:
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
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agrees to be bound by the Partnership Agreement, including, but not limited to,
the transfer restrictions contained in Article IX thereof.
2. Capital Contributions. The Contributor has made, as of the date
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hereof, the Capital Contribution 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.
---------------------------------
(a) The Partnership Units attributable to the Partnership Interest 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.
(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 have no 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.
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4. Restated Percentage Interests. After giving effect to the admission
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of the Contributor as a Limited Partner at the date hereof, the Percentage
Interests of all of the Partners have been 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 adjustments to the Partnership Units of the
Contributor in certain circumstances, and further provide that the Contributor
Partnership Interest and Units, and the resulting restated Percentage Interests
of all of the Partners, may not be capable of determination at the time a
Capital Contribution is made after the date hereof. At the times of adjustment
and final determination provided for in the Transaction Documents, the General
Partner shall supplement this Amendment by executing and attaching hereto either
additional supplements to Exhibits B and C, 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 Units are issued shall be equal to the amount
of Net Operating Cash Flow otherwise distributable with respect to such 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
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 Units are
issued.
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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 Section 16 of the Contribution
Agreement. In addition, the Contributor hereby represents and warrants to
the Partnership and the General Partner that (i) such Contributor is
acquiring the Partnership Units for such 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) such Contributor is an "accredited investor," as that
term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act; (iii) such 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 such Contributor's representations as expressed herein;
(iv) such 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) such 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) such Contributor has such knowledge and experience in financial
and business matters, or has been adequately advised by such Contributor's
financial representatives, that such Contributor is capable of evaluating
the merits and risks of the purchase of the Partnership Units pursuant to
this Agreement and of protecting such 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
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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.
(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.
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(iv) Partnership Units. The Partnership Units issued pursuant
-----------------
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 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 or
before the first anniversary of the date hereof (the "Survival Period").
10. Indemnification.
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(a) The Contributor indemnifies and holds harmless the Partnership,
the Company and the General Partner against and from all liabilities,
demands, claims, actions or causes of action, assessments, losses, fines,
penalties, costs, damages and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and expenses actually incurred)
sustained or incurred by the Partnership, the Company or the General
Partner as a result of or arising out of any inaccuracy in or breach of a
Representation or Warranty.
(b) The Partnership, the Company and the General Partner shall not be
entitled to indemnification hereunder unless a Notice of Breach has been
delivered by the Partnership, the Company or the General Partner to the
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
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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 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.
---------------------
(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.
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(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
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
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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 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 Interest 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. 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.
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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 such Contributor's Collateral.
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 such Contributor's
Partnership Interest 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
Interest 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
Interest of the Contributor included in such Contributor's Collateral is
represented by certificates, the Partnership shall retain such certificates in
perfection of the security interest herein granted. On the first day
immediately following the expiration of the Survival Period as defined in
paragraph 9 hereof (or, if a Notice of Breach has been delivered to the
Contributor prior to such date, then on the first day immediately following the
resolution of such Notice of Breach) the Contributor will be relieved of the
restrictions on transferability provided for by this paragraph 13 without
further action, and the Partnership, at the request of the Contributor, shall
promptly execute and deliver any document or instrument reasonably requested by
the Contributor to evidence such termination.
14. Miscellaneous. This Amendment shall be governed by and construed 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
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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:
--------------------------------------
Name:
Title:
GB PARTNERS, LTD., a Florida limited
partnership
By:
--------------------------------------
Name:
Title:
Address:
Solely to evidence its agreement to its undertakings
in Exhibit D hereto:
WEEKS CORPORATION
By:
---------------------------------------
Name:
Title:
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Exhibit A
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TRANSACTION DOCUMENTS
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Exhibit B
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CAPITAL CONTRIBUTION:
--------------------
GB Partners, Ltd. Capital Contribution: All assets, properties and businesses
transferred from GB Partners, Ltd. at
October 27, 1997 to the Partnership
pursuant to the Transaction Documents
(as defined in the foregoing Amendment)
GROSS FAIR MARKET VALUE OF PROPERTY CONTRIBUTIONS:
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Gross Fair Market Value of all
property other than money included in
GB Partners, Ltd. Contribution: $250,000.00
NO. OF UNITS: 7,633
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Exhibit C
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PARTNERSHIP UNITS/PERCENTAGE INTERESTS
All Partners
Partner Units Percentage Interest
------- ----- -------------------
Weeks GP Holdings, Inc. 237,503 1.037%
Weeks LP Holdings, Inc. 17,464,548 76.236%
NWI Warehouse Group, L.P. 1,833,749 8.005%
A. Xxx Xxxxx, Xx. 614,079 2.681%
Xxxx X. Xxxxx 239,791 1.047%
Xxxxxx X. Xxxxx 228,047 0.995%
Trust U/W/1/ 212,663 0.928%
Xxxxxxxx X. Xxxxx 206,607 0.902%
Xxxxxxx Xxxxx Xxxxxx 198,339 0.866%
Trust B/2/ 187,492 0.818%
Weeks Horizon Corp. 116,012 0.506%
Oakdale Land Management, Inc. 110,493 0.482%
Weeks Hillside Corp. 78,145 0.341%
Xxxxxx X. Xxxxxxxx 52,817 0.231%
Weeks Southridge Corp. 42,993 0.188%
Xxxxxxx X. Xxxxxxxx 28,877 0.126%
Xxxxx X. Weeks 27,535 0.120%
Xxxxx X. Xxxxxxxx 20,016 0.087%
Xxxxxxx & Company Real Estate, Inc. 20,000 0.087%
HV, Inc. 17,074 0.075%
Xxxxx X. Xxxxxxx 5,627 0.025%
Xxxx X. Xxxxxx 5,627 0.025%
Xxxxxx X. Xxxxxx 5,138 0.022%
Xxxx X. Xxxxxxx 4,110 0.018%
Xxxxx X. Xxxxx 163,048 0.712%
Xxxx X. Xxxxxxx 1,541 0.007%
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/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
Partner Units Percentage Interest
------- ----- -------------------
Weeks Management Corp. 1,142 0.005%
RTF Management Corp. 257 0.001%
Xxxxx Xxxxxxxxxx Xxxxxxxxx 267,419 1.167%
Xxxxxx X. Xxxxxxx 28,154 0.123%
Xxxx X. Xxxxxxx 153 0.001%
Perimeter Park West Associates
Limited Partnership 128,797 0.562%
Xxx X. Xxxxxx 2,053 0.009%
Xxxxxx X. Xxxxxxxxx 2,053 0.009%
Xxxxxxxx Xxxxxx 2,928 0.013%
Xxxxxxx Xxxxxxxx 1,757 0.008%
Xxxxx XxXxxx 39 0.000%
Xxxx Xxxxxxxx 1,561 0.007%
Xxxxxx X. Xxxxxxx Family Limited
Partnership 342,569 1.495%
GB Partners, Ltd. 7,633 0.033%
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Total 22,908,386 100.000%
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C-2
Exhibit D
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RIGHTS TERMS
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The Rights granted by the Partnership to the Contributor (referred to in this
Exhibit as "Limited Partners"), pursuant to paragraph 3(b) of the foregoing
Amendment shall be subject to the following terms and conditions:
1.
Definitions. Capitalized terms used in this Exhibit without definition shall
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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.
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"Closing Notice" shall mean the written notice to be given by the General
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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
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in accordance with the provisions of paragraph 10 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, or
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any successor statute.
"Exercising Partners" shall have the meaning set forth in Paragraph 2 hereof.
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"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
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Amendment.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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successor statute.
"Stock Purchase Price" shall have the meaning set forth in Paragraph 4 hereof.
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2.
Delivery of Conversion Exercise Notices. Any one or more Limited Partners
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("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. No Conversion Exercise
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Notice, with respect to any Unit may be delivered to the General Partner by a
Limited Partner until the later of (i) the first anniversary of the date of each
such issuance, or (ii) the date on which either (A) there is a registration
statement effective under the Securities Act with respect to the issuance of any
shares of Common Stock that could be issued to such Limited Partner pursuant to
such exercise of Rights and with respect to any resale by such Limited Partner
of any of such shares of Common Stock, or (B) in the opinion of counsel to
Weeks, shares of Common Stock that could be issued to such Limited Partner
pursuant to such exercise of Rights may be issued without registration under the
Securities Act.
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.
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.
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,
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such Person may exercise the Rights granted with respect to such Partnership
Units in accordance with the terms hereof.
4.
Computation of Redemption Price/Form of Payment. The Redemption Price payable
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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.
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6.
Assumption by the General Partner and/or Weeks LP Holdings. Notwithstanding
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anything in this Exhibit D to the contrary, the General Partner, Weeks LP
Holdings or any combination thereof (an "Assumer" or, collectively, the
"Assumers") may, in the sole and absolute discretion of the General Partner,
assume directly and satisfy the exercise of a Right by paying the Electing
Partner the Redemption Price. In such event, the Assumers shall acquire the
Offered Partnership Units and shall be treated for all purposes of this
Agreement as the owner of such Partnership Units, which shall be held by the
Assumers in their respective existing capacities as general partner or Limited
Partners, as the case may be. In the event the General Partner shall exercise
the Assumers' right to satisfy a Right in the manner described in this Paragraph
6, the Partnership shall have no obligation to pay any amount to the Exercising
Partner with respect to such Exercising Partner's exercise of a Right; provided,
however, that the Partnership shall remain liable to the Exercising Partner to
the extent that any such Exercising Partner's Right is not fully satisfied; and
each of the Exercising Partner, the Partnership, and the Assumers shall treat
the transaction between the Assumers and the Exercising Partner as a sale of the
Exercising Partner's Partnership Units to the Assumers for federal income tax
purposes. To the extent the Assumers elect to pay the Stock Purchase Price,
they shall obtain the necessary shares of Common Stock in exchange for the
issuance of additional capital stock to Weeks. Each Exercising Partner agrees to
execute such documents as the General Partner may reasonably require in
connection with the issuance of Common Stock upon exercise of a Right.
7.
Closing Deliveries. At the closing, payment of the Redemption Price shall be
------------------
accompanied by proper instruments of transfer and assignment for the Offered
Partnership Units and by the delivery of (i) representations and warranties of
(A) the Exercising Partner with respect to its due authority to sell all of the
right, title and interest in and to the Offered Partnership Units and with
respect to the status of the Offered Partnership Units being sold, free and
clear of all Liens, and (B) the Partnership or the Assumers, as applicable, with
respect to due authority for the redemption or purchase of such Offered
Partnership Units, and (ii) to the extent that shares of Common Stock are issued
in payment of the Stock Purchase Price, (A) an opinion of counsel for Weeks,
reasonably satisfactory to the Exercising Partner(s), to the effect that such
shares of Common Stock have been duly authorized, are validly issued, fully-paid
and nonassessable, and (b) a stock certificate or certificates evidencing the
Common Stock to be issued and registered in the name of the Exercising
Partner(s) or its (their) designee.
8.
Covenants of Weeks. To facilitate the Partnership's and the Assumers' ability
------------------
to fully perform their obligations hereunder, Weeks covenants and agrees as
follows:
(a) At all times during the pendency of the Rights, Weeks shall reserve for
issuance such number of shares of Common Stock as may be necessary to enable
Weeks to issue shares of Common Stock in full payment of the Stock Purchase
-4-
Price in regard to all Partnership Units that are from time to time outstanding
and with respect to which Rights exist.
(b) During the pendency of the Rights, the Limited Partners shall receive in a
timely manner all communications transmitted from time to time by Weeks to its
shareholders generally.
9.
Limited Partners' Covenants. Each Limited Partner covenants and agrees that all
---------------------------
Offered Partnership Units tendered in accordance with the exercise of Rights
shall be delivered free and clear of all Liens. Should any Liens exist or arise
with respect to such Offered Partnership Units, neither the Assumers nor the
Partnership shall be under any obligation to redeem or acquire the same unless,
in connection therewith, the General Partner has elected to pay a portion of the
Redemption Price in the form of the Cash Purchase Price in circumstances in
which such Cash Purchase Price will be sufficient to cause such existing Lien to
be discharged in full upon application of all or a part of the Cash Purchase
Price. The Partnership and the Assumers are expressly authorized to apply such
portion of the Cash Purchase Price as may be necessary to discharge such Lien in
full. Each Limited Partner further agrees that, in the event any state or local
property transfer tax is payable as a result of the transfer of its Offered
Partnership Units to the Partnership or the Assumers, such Limited Partner shall
assume and pay such transfer tax.
10.
Antidilution Provisions
-----------------------
(a) The Conversion Factor shall be subject to adjustment from time to time
effective upon the occurrence of the following events and shall be expressed as
a percentage, calculated to the nearest one-thousandth of one percent (.001%):
(i) In case Weeks shall pay or make a dividend or other distribution on any
class of stock of Weeks in shares of Common Stock, the Conversion Factor in
effect at the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased in proportion to the increase in outstanding
shares of Common Stock resulting from such dividend or other distribution, such
increase to become effective immediately after the opening of business on the
day following the record date fixed for such dividend or other distribution.
(ii) In case outstanding shares of Common Stock shall be subdivided into a
greater number of shares, the Conversion Factor in effect at the opening of
business on the day following the day upon which such subdivision becomes
effective shall be proportionately increased, and, conversely, in case the
outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Conversion Factor in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
-5-
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(iii) In case Weeks shall issue rights, options or warrants to all holders of
its shares of Common Stock entitling them to subscribe for or purchase Common
Stock or other securities convertible into shares of Common Stock at a price per
share less than the Current Per Share Market Price as of the day before the "ex
date" with respect to the issuance or distribution, each Limited Partner holding
Rights shall be entitled to receive such number of such rights, options or
warrants, as the case may be, as he would have been entitled to receive had he
exercised all of his then existing Rights immediately prior to the record date
for such issuance by Weeks. The term "ex date" shall mean the first date on
which shares of Common Stock trade regular way without the right to receive such
issuance or distribution.
(c) In case the shares of Common Stock shall be changed into the same or a
different number of shares of any class or classes of stock, whether by capital
reorganization, reclassification, or otherwise (other than subdivision or
combination of shares described in subparagraph (a) (ii) of this Paragraph),
then and in each such event the Limited Partners holding Rights shall have the
right thereafter to exercise their Rights for the kind and amount of shares and
other securities and property that would have been received upon such
reorganization, reclassification or other change by holders of the number of
shares of Common Stock with respect to which such Rights could have been
exercised immediately prior to such reorganization, reclassification or change.
(d) The General Partner may, but shall not be required to, make such adjustments
to the number of shares of Common Stock issuable upon exercise of Rights, in
addition to those required by this Paragraph 10, as the General Partner
considers to be advisable in order that any event treated for federal income tax
purposes as a dividend of stock or stock rights shall not be taxable to the
recipients. The General Partner shall have the power to resolve any ambiguity
or correct any error in the adjustments made pursuant to this Paragraph and its
actions in so doing shall be final and conclusive, absent manifest error by the
General Partner in taking such action.
11.
Fractions of Shares. No fractional shares of Common Stock shall be issued upon
-------------------
exercise of Rights. If Rights shall be exercised with respect to more than one
Offered Partnership Unit at one time by the same Exercising Partner, the number
of full shares of Common Stock comprising the Stock Purchase Price (or the cash
equivalent amount thereof to the extent the Cash Purchase Price is paid) shall
be computed on the basis of the aggregate number of Offered Partnership Units.
Instead of any fractional share of Common Stock that would otherwise be issuable
upon exercise of Rights, the Partnership or the Assumers shall pay a cash
adjustment in respect of such fraction in an amount equal to the Cash Purchase
Price computed hereunder for such fraction of a share.
-6-
12.
Notice of Adjustments of Conversion Factor. Whenever the Conversion Factor is
------------------------------------------
adjusted as herein provided:
(a) the General Partner shall compute the adjusted Conversion Factor in
accordance with Paragraph 10 hereof and shall prepare a certificate signed by
the chief financial officer or the Treasurer of the General Partner setting
forth the adjusted Conversion Factor and showing in reasonable detail the facts
upon which such adjustment is based; and
(b) notice stating that the Conversion Factor has been adjusted and setting
forth the adjusted Conversion Factor shall forthwith be mailed by the General
Partner to all holders of Rights at their last addresses on record under this
Agreement.
13.
Notice of Certain Corporate Actions.
-----------------------------------
In case:
(a) Weeks shall declare a dividend (or any other distribution) on its Common
Stock payable otherwise than in cash; or
(b) Weeks shall authorize the granting to the holders of its Common Stock of
rights, options or warrants to subscribe for or purchase any shares of stock of
any class or of any other rights; or
(c) of any reclassification of the shares of Common Stock (other than a
subdivision or combination of its outstanding Common Stock, or of any
consolidation, merger or share exchange to which Weeks is a party and for which
approval of any shareholders of Weeks is required), or of the sale or transfer
of all or substantially all of the assets of Weeks; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up of
Weeks;
then the General Partner shall cause to be mailed to all holders of Rights at
their last addresses on record under this Agreement, at least 20 days (or 12
days in any case specified in clause (a) or (b) above) prior to the applicable
record date hereinafter specified, a notice stating (i) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of which
the holders of shares of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (ii) the date
on which such reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of shares of
Common Stock of record shall be entitled to exchange their shares for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding up.
-7-
14.
Provisions in Case of Consolidation, Merger or Sale of Assets.
-------------------------------------------------------------
In case of any consolidation of Weeks with, or merger of Weeks into, any other
Person, any merger or consolidation of another Person into Weeks (other than a
merger that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock), any acquisition of the
outstanding Common Stock by share exchange, or any sale or transfer of all or
substantially all of the assets of Weeks, the Person formed by such
consolidation or resulting from such merger or that acquires the outstanding
Common Stock or such assets of Weeks as the case may be, shall execute and
deliver to each holder of Rights an agreement providing that such holder shall
have the right thereafter, during the period such rights shall be exercisable
(which shall be at least as long as the period for which the Rights can be
exercised under the other provisions of this Agreement), to exercise the Rights
for the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, share exchange, sale or transfer by a holder of the
number of shares of Common Stock for which the Rights might have been exercised
immediately prior to such consolidation, merger, share exchange, sale or
transfer, assuming both that (a) such holder of shares of Common Stock is not a
Person with which Weeks consolidated or into which Weeks merged or that merged
into Weeks, or that acquired the outstanding Common Stock by share exchange, or
to which such sale or transfer was made, as the case may be (a "Constituent
Person"), or an Affiliate of a Constituent Person, and that (b) such holder does
not exercise his right of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such consolidation, merger,
share exchange, sale or transfer (provided that if the kind or amount of
--------
securities, cash and other property receivable upon such consolidation, merger,
share exchange, sale or transfer is not the same for each share of Common Stock
in respect of which such right of election, if any, is not exercised ("non-
electing Share"), then for the purpose of this Paragraph 14, the kind and amount
of securities, cash and other property receivable upon such consolidation,
merger, share exchange, sale or transfer by each non-electing Share shall be
deemed to be the kind and amount so receivable per non-electing Share by a
plurality of the non-electing Shares). Such agreement shall provide for
adjustments that, for events subsequent to the effective date of such agreement,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Exhibit D.
The above provisions of this Paragraph 14 shall similarly apply to successive
consolidations, mergers, sales or transfers.
-8-
SCHEDULE 1
CONVERSION EXERCISE NOTICE
--------------------------
To: Weeks Realty, L.P.
Reference is made to that certain Sixth 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 Sixth 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:
--------------------------------
