EXHIBIT 10.1
EIGHTH AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS EIGHTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. (the "Amendment") is entered into as
of the 9th day of January, 1998, by and among WEEKS GP HOLDINGS, INC., a Georgia
corporation (the "General Partner"), WEEKS CORPORATION, a Georgia corporation
(the "Company"), XXXXXXX XXXXXX, an individual resident of the State of Florida
("Codina"), CODINA FAMILY INVESTMENTS, LTD., a Florida limited partnership
("CFI"), CODINA WEST DADE DEVELOPMENT CORPORATION, a Florida corporation ("West
Dade"), THE XXXXXXXX CAPITAL COMPANY, a New York general partnership
("Xxxxxxxx"), RAHA ASSOCIATES, INC., a Florida corporation ("RAHA"), XXXXXXXX
XXXXX, an individual resident of the State of New York ("X. Xxxxx"), and XXXXXXX
XXXXX, an individual resident of the State of New York ("X. Xxxxx") (Codina,
CFI, West Dade, Benenson, RAHA, X. Xxxxx and X. Xxxxx are collectively referred
to hereafter as the "Contributors" and "Contributor" shall hereafter mean any
one of the Contributors).
RECITALS
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Weeks Realty, L.P. (the "Partnership") is a Georgia limited partnership.
The General Partner is the sole general partner of the Partnership and is a
wholly owned subsidiary of the Company. The partnership agreement of the
Partnership is that certain Second Amended and Restated Agreement of Limited
Partnership of Weeks Realty, L.P., dated as of October 30, 1996, as amended by
the First Amendment to the Partnership Agreement dated November 1, 1996, the
Second Amendment to the Partnership Agreement dated December 31, 1996, the Third
Amendment to the Partnership Agreement dated January 31, 1997, the Fourth
Amendment to the Partnership Agreement dated August 1, 1997, the Fifth Amendment
to the Partnership Agreement dated October 7, 1997, the Sixth Amendment to the
Partnership Agreement dated October 27, 1997, and the Seventh Amendment to the
Partnership Amendment dated December 30, 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 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
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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
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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
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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
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the date hereof, the Capital Contributions set forth on Exhibit B hereto. The
agreed to gross fair market values of any property other than money contributed
by each of the Contributors, which shall be such property's initial Gross Asset
Value, are shown on Exhibit B.
3. Initial Partnership Units; Rights.
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(a) The Partnership Units attributable to the Partnership Interests of
the 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
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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
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the Contributors as Limited Partners 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. Future Contributions. The parties acknowledge that, pursuant to and
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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. Adjustments to Partnership Units. The parties acknowledge that the
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Transaction Documents provide for adjustments to the Partnership Units of the
Contributors in certain circumstances, and further provide that the
Contributors' Partnership Interests and Partnership Units, and the resulting
restated Percentage Interests of all of the Partners, may not be capable of
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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
(in the form described above), or amended and restated versions of prior
supplements to Exhibits B and C, as applicable. Such supplements shall be in
accordance with the terms of the Transaction Documents. The Partnership
Agreement shall be deemed to be amended as reflected in each such supplement to
this Amendment.
7. Proration of Distributions. Notwithstanding any contrary provision of
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the Partnership Agreement, including, without limitation, Section 6.2 thereof,
the 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 Transaction Documents, shall be
equal to the amount of Net Operating Cash Flow otherwise distributable with
respect to such Partnership Units under the terms of the Partnership Agreement,
multiplied by a fraction, the numerator of which is the number of calendar days
beginning on the date of issuance of the Partnership Units and ending on the
last day of such calendar quarter and the denominator of which is the total
number of days in the calendar quarter in which the Partnership Units are
issued.
8. Capital Account Revaluation and Gain Allocation. In connection with
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the Capital Contributions, the Partnership shall revalue its property and
increase or decrease the capital accounts of its Partners to reflect such
revaluation in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f),
and the Partnership shall comply with the requirements of Treasury Regulation
Section 1.704-1(b)(2)(iv)(f)(1)-(5). The Partnership hereby agrees to use the
"traditional" method described in Treasury Regulation Section 1.704-3(b) in
allocating income, gain, loss or deduction to the contributed interests pursuant
to Section 704(c) of the Internal Revenue Code of 1986, as amended.
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9. 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 each of the
Contributor is as set forth in the Contribution Agreement. Except as expressly
amended hereby, the Partnership Agreement shall remain in full force and effect.
This Amendment and all the terms and provisions hereof shall be binding upon and
shall inure to the benefit of the parties, and their legal representatives,
heirs, successors and permitted assigns.
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first above written.
WEEKS GP HOLDINGS, INC.
By:/s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name:
Title:
CONTRIBUTORS:
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
CODINA FAMILY INVESTMENTS, LTD.
By: Codina Investments, Inc.
By: /s/ Xxxxxxx Xxxxxx
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Name:
Title:
CODINA WEST DADE DEVELOPMENT CORPORATION
By:/s/ Xxxxxxx Xxxxxx
---------------------------------
Name:
Title:
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THE XXXXXXXX CAPITAL COMPANY
By:/s/ Xxxxxxx X. Xxxxxxxx
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Name:
Title:
RAHA ASSOCIATES, INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name:
Title:
/s/ Xxxxxxxx Xxxxx
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XXXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
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XXXXXXX XXXXX
Solely to evidence its agreement to its undertakings
in Exhibit D hereto:
WEEKS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name:
Title:
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