EXHIBIT 10.4
TENTH AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS TENTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. (the "Amendment") is entered into as
of April 3, 1998, by and among WEEKS GP HOLDINGS, INC., a Georgia corporation
(the "General Partner"), WEEKS CORPORATION, a Georgia corporation (the
"Company"), and XXXXXXX X. XXXXX, an individual resident of the State of
Georgia, and XXXXXXX X. XXXXX, an individual resident of the State of Georgia,
not individually, but solely (i) as Trustee of the Xxxxxx Xxxxx Life Trust U/A
with Xxxxxxx X. Xxxxx dated December 27, 1973, (ii) as Trustee of the Xxxxxx
Xxxxx Life Trust U/A with Xxxxxxx X. Xxxxx dated December 27, 1973, (iii) as
Trustee of the Xxxxxxx Xxxxx Life Trust U/A with Xxxxxxx X. Xxxxx dated December
27, 1973, and (iv) as Trustee of the Xxxxxxx Xxxxx Life Trust U/A with Xxxxxxx
X. Xxxxx dated December 27, 1973 (Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx are
collectively referred to hereafter as the "Contributors" and "Contributor" shall
hereafter mean any one of the Contributors).
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, the
Eighth Amendment to the Partnership Agreement dated January 9, 1998, and the
Ninth Amendment to the Partnership Agreement dated January 22, 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 Contributors have
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 Contributors as Limited Partners of the
Partnership, and the Contributors wish 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
-2-
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Admission. The Contributors are hereby admitted to the Partnership as
---------
Limited Partners, effective as of the date hereof, and each of the Contributors
hereby agrees to be bound by the Partnership Agreement, including, but not
limited to, the transfer restrictions contained in Article IX thereof.
2. Capital Contributions. The Contributors are 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 each of the Contributors, 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 Interests of
the Contributors, effective upon their admission as Limited Partners at the
date hereof, are as set forth on Exhibit B hereto, and the Partnership
Agreement is hereby amended to reflect the Contributors' having such
Partnership Units.
(b) The Partnership does hereby grant to each of the Contributors, and
each of them 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
them 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 none of the
Contributors shall 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 any one or more of the
Contributors, on the terms and subject to the
-3-
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 Contributors as Limited Partners at the date hereof, the Percentage
Interests of the Contributors have been reflected on Exhibit C hereto, and the
Partnership Agreement is hereby amended accordingly.
5. Future Contributions. The parties acknowledge that, pursuant to and
--------------------
subject to the terms and conditions of the Transaction Documents, the
Contributors may make additional Capital Contributions. Concurrently with any
such additional Capital Contribution, the General Partner shall supplement this
Amendment by executing and attaching hereto supplements to Exhibits B and C
(which shall be captioned "Exhibit B-1," "Exhibit B-2," "Exhibit C-1," "Exhibit
C-2," and so on and shall identify the Capital Contribution to which each
relates) that will, respectively, reflect (to the extent determinable at such
time) the Capital Contribution made by the Contributors at that time, the
initial Gross Asset Value of any property other than money included in such
Capital Contribution, the additional Partnership Units attributable to the
Partnership Interest associated with such Capital Contribution, and the
resulting restated Percentage Interests of all of the Partners. Such
supplements shall be in accordance with the terms of the Transaction Documents.
The Partnership Agreement shall be deemed to be amended as reflected in each
such supplement to this Amendment.
6. Proration of Distributions. Notwithstanding any contrary provision of
--------------------------
the Partnership Agreement, including, without limitation, Section 6.2 thereof,
the Contributors agree that the distribution of Net Operating Cash Flow made for
the calendar quarter in which the Partnership Units are issued, by reason of
each Capital Contribution made pursuant to the
-4-
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.
7. Tax Considerations.
------------------
(a) During the five-year period commencing on the date hereof, the
General Partner agrees that in the event it elects to cause the Partnership to
sell or otherwise convey any of the properties contributed to the Partnership
pursuant to this Amendment (each, a "Contributed Property"), the General Partner
will structure any such sale or conveyance of a Contributed Property as a tax-
deferred like-kind exchange under Section 1031 of the Internal Revenue Code, as
amended (the "Code"), to the extent such sale or conveyance would result in the
recognition of gain for federal income tax purposes by one or more of the
Contributors; provided, however, that, so long as the General Partner and the
Partnership comply with the terms and provisions of subparagraph (c) below, the
foregoing limitation shall not apply to the Company or the Partnership and shall
not be binding on any successor in interest to the Company or the Partnership if
the Company or the Partnership (i) agrees to sell all or substantially all of
its assets (collectively, a "Bulk Sale") or (ii) agrees to any merger,
consolidation, reorganization, liquidation or similar transaction (collectively,
a "Merger").
(b) During the period between the fifth (5th) anniversary of the date
hereof and the tenth (10th) anniversary of the date hereof, the General Partner
agrees that in the event it elects to cause the Partnership to sell or otherwise
convey any Contributed Property, the Partnership hereby agrees to provide
reasonable advance notice to the Contributors of any such sale or other
conveyance and, together with the Contributors, to use commercially reasonable,
good faith efforts to structure any such sale or conveyance of a Contributed
Property in a manner
-5-
which the Contributors believe will avoid any substantial adverse federal income
tax consequences to Contributors resulting from such transaction; provided,
however, that, so long as the General Partner and the Partnership comply with
the terms and provisions of subparagraph (c) below, the foregoing limitation
shall not apply to the Company or the Partnership and shall not be binding on
any successor in interest to the Company or the Partnership if the Company or
the Partnership (i) agrees to a Bulk Sale or (ii) agrees to a Merger. If, after
such commercially reasonable, good faith efforts as provided in the immediately
preceding sentence, the General Partner determines in good faith, after taking
into consideration the objectives of both the Partnership and the Contributors,
that it is not in the best interest of the Partnership to structure such
transaction in a manner which the Contributors believe will achieve the
objective of avoiding any substantial adverse federal income tax consequences to
the Contributors resulting from such transaction, the General Partner may cause
the Partnership to consummate such transaction, without the consent of the
Contributors, it being acknowledged, however that in no event shall this
sentence or such consummation without the consent of the Contributors be deemed
a waiver or release by the Contributors of any rights or remedies available to
them for any failure by the Partnership to consider in a commercially
reasonable, good faith manner Contributors' tax objectives in structuring the
transaction as described above. Notwithstanding the foregoing, the Partnership
expressly acknowledges and agrees that in respect of any proposed sale of the
Contributed Property or any portion thereof during the period between the fifth
(5th) anniversary of the date hereof and the tenth (10th) anniversary of the
date hereof, that is not incident to a Bulk Sale or Merger: (x) the Partnership
shall reserve with its prospective purchaser the right to consummate the sale by
means of a tax-deferred exchange under Section 1031 of the Code; (y) the
Partnership shall reserve with its prospective purchaser the right to convey the
Contributed Property or applicable portion thereof to Contributors or any of the
persons or entities composing Contributors (the "Contributor Parties") prior to
the consummation of such sale so that such sale is consummated by the
Contributor Parties; and (z) at the option of the Contributor Parties, the
Partnership shall convey the Contributed Property or applicable portion thereof
to the Contributor Parties prior to the consummation of such sale, provided that
(A) the Contributor Parties pay to the Partnership an amount equal to the net
-6-
proceeds that would have been received by the Partnership in connection with
such sale (which payment may be made, at the sole option and election of the
Contributor Parties, by the payment of cash, by the tender of Partnership Units
for redemption at their fair market value at the date of tender, or any
combination of the foregoing in any proportion), and (B) the Contributor Parties
assume the obligations of the Partnership under the applicable documents to
consummate the sale. The Contributors shall be responsible for any Georgia
Realty Transfer Tax liability accruing to the Partnership as a result of the
transfers described in the immediately preceding sentence.
(c) During the ten (10)-year period commencing on the date hereof, the
Partnership hereby agrees to provide reasonable advance notice to the
Contributors of any such proposed Bulk Sale or Merger and, together with the
Contributors, to use commercially reasonable, good faith efforts to structure
the transaction in a manner which the Contributors believe will avoid any
substantial adverse federal income tax consequences to the Contributors
resulting from such transaction. If, after such commercially reasonable, good
faith efforts, the General Partner determines in good faith, after taking into
consideration the objectives of both the Partnership and the Contributors, that
it is not in the best interest of the Partnership to structure such transaction
in a manner which would achieve the objective of avoiding any substantial
adverse federal income tax consequences to the Contributors resulting from such
Bulk Sale or Merger, the General Partner may cause the Partnership to consummate
the Bulk Sale or Merger, without the consent of the Contributors, it being
acknowledged, however that in no event shall this sentence or such consummation
without the consent of the Contributors be deemed a waiver or release by the
Contributors of any rights or remedies available to them for any failure by the
Partnership to consider in a commercially reasonable, good faith manner
Contributors' tax objectives in structuring the proposed Bulk Sale or Merger as
described above.
(d) Contributors acknowledge and agree that the Partnership and the
General Partner have made no representations or assurances to the Contributors
of the tax consequences of any course of action taken under paragraphs 7(a),
7(b) or 7(c) hereof at the request of
-7-
Contributors designed to minimize or avoid substantial adverse financial federal
income tax consequences to Contributors and the Contributors bear the risk
thereof entirely.
8. 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.
-8-
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first above written.
WEEKS REALTY, L.P., a Georgia limited
partnership
By: Weeks GP Holdings, Inc., a Georgia
corporation, its Sole General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name:
Title: President/COO
CONTRIBUTORS:
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
XXXXXXX. X. XXXXX, individually
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
XXXXXXX X. XXXXX, as Trustee of the Xxxxxx Xxxxx Life
Trust U/A with Xxxxxxx X. Xxxxx, dated December, 1973,
(ii) as Trustee of the Xxxxxx Xxxxx Life Trust U/A with
Xxxxxxx X. Xxxxx, dated December 27, 1973, (iii) as
Trustee of the Xxxxxxx Xxxxx Life Trust U/A with
Xxxxxxx X. Xxxxx, dated December 27, 1973, and (iv) as
Trustee of the Xxxxxxx Xxxxx Life Trust U/A with
Xxxxxxx X. Xxxxx, dated December 23, 1973
-9-
Solely to evidence its agreement to its undertakings
in Exhibit D hereto:
WEEKS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name:
Title: President/COO
-10-
