FIRST AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. is entered into as of the 1st day of
November, 1996, by and among NWI WAREHOUSE GROUP, L.P., a Tennessee limited
partnership ("NWI"), XXXXXXX & COMPANY REAL ESTATE, INC., a Tennessee
corporation ("Xxxxxxx & Co."), and WEEKS GP HOLDINGS, INC., a Georgia
corporation (the "General Partner").
RECITALS
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Weeks Realty, L.P. (the "Partnership") is a Georgia limited partnership.
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 (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 NWI and Xxxxxxx & Co.
have contributed certain assets, properties and businesses to the capital of the
Partnership. The assets, properties and businesses contributed by NWI to the
capital of the Partnership by the merger of NWI Warehouse Group, LLC, into the
Partnership (which are further described on Exhibit G hereto) are referred to as
the "Completed Properties." NWI has agreed, subject to the terms and conditions
of the Transaction Documents, to make certain additional contributions of
properties to the capital of the Partnership at certain times in the future (in
a series of transactions similar to the merger described in the foregoing
sentence).
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 (including the
contribution of assets in a series of transactions similar to the merger
described in the foregoing paragraph) 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 NWI and Xxxxxxx & Co. as Limited Partners of
the Partnership, and NWI and Xxxxxxx & Co. wish to enter into this First
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 and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Admission. NWI and Xxxxxxx & Co. are hereby admitted to the
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Partnership as Limited Partners, effective as of the date hereof, and each of
NWI and Xxxxxxx & Co. hereby agrees to be bound by the Partnership Agreement,
including, but not limited to, the transfer
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restrictions contained in Article IX thereof, in their respective capacities as
Limited Partners of the Partnership.
2. Capital Contributions. NWI and Xxxxxxx & Co. are agreed to have made,
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as of the date hereof, the Capital Contributions set forth on Exhibit B hereto,
which Capital Contributions by NWI and Xxxxxxx & Co. have been made pursuant to
the merger and other transactions described in the Transaction Documents listed
on Exhibit A hereto. The agreed to gross fair market values of any property
other than money contributed by each of NWI and Xxxxxxx & Co., which shall be
such property's initial Gross Asset Value, are shown on Exhibit B. The parties
acknowledge that (a) the Capital Contribution made on the date hereof by NWI
includes interests in certain parcels of land identified on Exhibit B hereto,
together with improvements thereon that are under construction or undergoing
lease-up, (b) all benefits and burdens (including, without limitation, risk of
loss generally) associated with such land and improvements (other than bare
legal title thereto) have been retained by NWI, and (c) such retained benefits
and burdens shall be contributed to the capital of the Partnership in the
future, subject to the terms and conditions of the Transaction Documents.
Accordingly, at the date hereof, there has been no credit to the Capital Account
of NWI with respect to the contribution of such land and improvements, and the
Partnership Interest and Partnership Units of NWI at the date hereof do not
reflect the value of such land and improvements. NWI will receive credit to its
Capital Account with respect to such land and improvements only if, as and when
Partnership Units are issued to NWI with respect thereto, as referred to in
paragraph 5 below. For federal, state and local income tax purposes, the
parties agree that NWI shall be treated as the tax owner of such land and
improvements until such time as the benefits and burdens of ownership thereof
are conveyed to the Partnership.
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3. Initial Partnership Units; Rights.
---------------------------------
(a) The Partnership Units attributable to the Partnership Interests
of NWI and Xxxxxxx & Co., 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 NWI's and Xxxxxxx &
Co.'s having such Partnership Units.
(b) The Partnership does hereby grant to each of NWI and Xxxxxxx &
Co., 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 First Amendment and Exhibit D
hereto, and neither NWI nor Xxxxxxx & Co. 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 NWI and Xxxxxxx & Co., 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.
Weeks executes and delivers this First Amendment solely to become bound by
its undertakings in Exhibit D hereto.
4. Restated Percentage Interests. After giving effect to the admission
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of NWI and Xxxxxxx & Co. 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.
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5. Future Contributions. The parties acknowledge that, pursuant to and
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subject to the terms and conditions of the Transaction Documents, NWI will make
additional Capital Contributions, which Capital Contributions will be made
pursuant to mergers and other transactions described in the Transaction
Documents listed on Exhibit A hereto. Concurrently with each such additional
Capital Contribution, the General Partner shall supplement this First 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 NWI 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 First Amendment.
6. Adjustments to Partnership Units. The parties acknowledge that the
--------------------------------
Transaction Documents provide for adjustments to the Partnership Units of NWI
and Xxxxxxx & Co. in certain circumstances, and further provide that NWI's
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 First 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 First Amendment.
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7. Proration of Distributions. Notwithstanding any contrary provision of
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the Partnership Agreement, including, without limitation, Section 6.2 thereof,
NWI and Xxxxxxx agree that the first distribution of Net Operating Cash Flow
made with respect to the Partnership Units 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 such Capital Contribution is made and ending on the last day of the
calendar quarter with respect to which such distribution is being made, and the
denominator of which is the total number of days in such calendar quarter.
8. Representations and Warranties.
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(a) NWI Completed and Development Properties. NWI hereby represents
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and warrants to the Partnership and the General Partner as to the matters
set forth on Exhibit E hereto. NWI acknowledges that it has made and will
make representations and warranties to the Partnership and the General
Partner in that certain Contribution Agreement for Development Properties,
of even date herewith (the "Contribution Agreement"), between the
Partnership and NWI.
(b) NWI Operating Business. NWI acknowledges that it has made the
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representations and warranties to the Partnership and the General Partner
set forth in that certain Contribution Agreement for NWI Operating
Business, of even date herewith, between NWI and the Partnership.
(c) No Liens. NWI represents and warrants to the Partnership and the
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General Partner that at the date hereof none of the Partnership Units
issued or issuable to it pursuant to the Transaction Documents, and none of
the shares of Common Stock that
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may be acquired by it upon exercise of Rights, is subject to any Lien,
other than the security interest created by paragraph 11 hereof.
(d) Definition. All of the representations and warranties of NWI
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referred to in this paragraph 8 are referred to collectively as the
"Representations and Warranties."
(e) General Partner Representations. The General Partner represents
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and warrants to NWI and Xxxxxxx & Co. 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 First Amendment by the General
Partner have been duly and validly authorized by all necessary action
of the General Partner. This First Amendment has been duly executed
and delivered by the General Partner and constitutes a legal, valid
and binding obligation of the General Partner, enforceable against the
General Partner in accordance with the terms hereof.
(iii) Consents and Approvals. No consent, waiver, approval or
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authorization of, or filing, registration or qualification with, or
notice to, any governmental unit or any other Person is required to be
made, obtained or given by the General Partner in connection with the
execution, delivery and performance of this Amendment, other than
consents, waivers, approvals or authorizations that have been obtained
prior to the date hereof.
(iv) Partnership Units. The Partnership Units issued and
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issuable pursuant to the Transaction Documents are duly authorized
and, when issued in accordance with the Transaction Documents, will be
duly issued, fully paid and
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nonassessable and will be unencumbered except for the security
interest created by paragraph 11 hereof.
9. Survival of Representations and Warranties. All of the
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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 or the General Partner unless the Partnership or the General Partner
shall have delivered a written notice ("Notice of Breach") specifying the
details of such claimed breach to NWI on or before the third anniversary of the
date hereof.
10. Indemnification.
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(a) NWI indemnifies and holds harmless the Partnership 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 or the General Partner as a result of or arising out of any
inaccuracy in a Representation or Warranty.
(b) The Partnership and the General Partner shall not be entitled to
indemnification hereunder unless a Notice of Breach has been delivered by
the Partnership or the General Partner to NWI within the time period
specified in paragraph 9 hereof.
(c) Subject to the further provisions hereof, NWI shall not be liable
under this paragraph 10 unless and until the total amount recoverable from
NWI under this paragraph 10 exceeds, in the aggregate, $350,000; provided,
however, that if NWI's obligation under this paragraph 10 exceeds, in the
aggregate, such limit, its obligation under this paragraph 10 shall be for
the full amount of such obligation. The foregoing
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$350,000 threshold shall not be applicable to Representation 1.38 of
Exhibit E hereto (the "Prorations Representation"), and NWI shall not be
liable for inaccuracies in the Prorations Representation unless and until
the total amount recoverable under this paragraph 10 with respect thereto
exceeds $5,000 for a particular Completed or Development Property or
$25,000 for all Completed and Development Properties; provided, however,
that if NWI's obligation under this paragraph 10 with respect to the
Prorations Representation exceeds $5,000 for a particular Completed or
Development Property, NWI's obligation under this paragraph 10 shall be the
full amount of such obligation for such Completed or Development Property;
and provided further, however, that if NWI's obligation under this
paragraph 10 with respect to the Prorations Representation exceeds $25,000
in the aggregate for all Completed and Development Properties, NWI's
obligation under this paragraph 10 shall be the full amount of such
obligation.
(d) If a claim for indemnification is asserted by the Partnership or
the General Partner against NWI, NWI shall have the right, at its own
expense, to participate in the defense of any claim, action or proceeding
("Claim") asserted against the Partnership 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.
(e) Indemnification of the Partnership and the General Partner
pursuant to this paragraph 10 and the remedies in respect thereof as set
forth in paragraph 11 hereof shall be the exclusive remedy of the
Partnership and the General Partner for any breach of any Representation or
Warranty, and the only legal action that may be asserted against NWI under
this paragraph 10 for breach of a Representation or Warranty shall be to
pursue the remedies in respect thereof as set forth in paragraph 11 hereof.
Nothing contained herein shall limit any remedy the Partnership may have
under the Contribution Agreement, including, without limitation, the remedy
of specific performance for any failure by NWI to contribute a Development
Property pursuant to the Contribution Agreement.
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11. Security and Remedies.
---------------------
(a) NWI grants to the Partnership a lien upon and a continuing
security interest in 280,000 of the Partnership Units issued to it pursuant
to the Transaction Documents at the date hereof 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 NWI under paragraph 10 hereof. At the time
of each Capital Contribution pursuant to the Contribution Agreement, the
number of shares of Common Stock and Partnership Units constituting the
Collateral shall be increased (with additional shares of Common Stock
and/or Partnership Units not subject to any Lien) by a number of shares of
Common Stock and/or Partnership Units having a value equal to the value
provided for in Exhibit F hereto (based, in the case of Partnership Units,
on the Current Per Share Market Price at such time 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 and in
Exhibit D would not prohibit the issuance of any such shares of Common
Stock to NWI), and, in the case of shares of Common Stock, on the Current
Per Share Market Price at such time). At each anniversary of the date
hereof, the number of shares of Common Stock and the Partnership Units
constituting the Collateral shall be increased or decreased so that the
value thereof (based, in the case of Partnership Units, on the Current Per
Share Market Price at such time 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 and in Exhibit D would not prohibit
the issuance of any such shares of Common Stock to NWI), and, in the case
of shares of Common Stock, on the Current Per Share Market Price at such
time) is equal to $7,000,000 plus all amounts
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previously taken into account from Exhibit F; provided, however, that in no
event shall the aggregate amount of NWI's Collateral at any time exceed
one-half of the total number of shares of Common Stock and Partnership
Units that NWI owns at that time. To the maximum extent possible under the
terms hereof, NWI's Collateral shall consist of Partnership Units, rather
than shares of Common Stock. The indemnification obligation of NWI
hereunder with respect to breaches of Representations and Warranties shall
be payable out of, and only out of, NWI's entire Collateral; provided,
however, that NWI may satisfy all or any part of any indemnification
obligation of NWI in cash if NWI so elects. Any Transfer by NWI of its
Collateral shall be subject to the lien and security interest granted
hereby.
(b) In the event the General Partner asserts, within the time period
set forth in paragraph 9 hereof, that NWI has an indemnification obligation
to the Partnership or the General Partner under paragraph 10 hereof, the
General Partner shall deliver written notice (the "Indemnification Notice")
to NWI describing in reasonable detail the circumstances giving rise to
such obligation and the amount thereof. If, within thirty (30) days after
its receipt of an Indemnification Notice, NWI delivers written notice to
the General Partner indicating that NWI 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 NWI pursuant to such Article XIV. If,
after receiving timely notice of a dispute hereunder from NWI, the General
Partner fails to so submit the matter for arbitration within twenty (20)
days after receipt of such notice from NWI, then NWI shall be relieved of
the claimed indemnification obligation described in the Indemnification
Notice. In the event NWI (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
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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
NWI, to have acquired from NWI 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 NWI), 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 NWI under paragraph 10 hereof. In the event the Partnership shall have
acquired from NWI any Collateral pursuant to this paragraph, the General
Partner shall deliver written notice to NWI within ten (10) days thereafter
identifying the specific Collateral acquired and, if such Collateral
consists of Partnership Units, the Percentage Interest of NWI following
such acquisition. Unless and until the Partnership shall have acquired from
NWI any Collateral pursuant to this paragraph, NWI 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. NWI 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.
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12. Non-Recourse. Notwithstanding anything contained in this Amendment or
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in the Partnership Agreement to the contrary, the sole recourse of the General
Partner or the Partnership under paragraph 10 hereof with respect to breaches of
Representations and Warranties shall be against the Collateral, and NWI shall
have no personal liability with respect thereto. Nothing contained herein shall
limit any remedy the Partnership may have under the Contribution Agreement,
including, without limitation, the remedy of specific performance for any
failure by NWI to contribute a Development Property pursuant to the Contribution
Agreement.
13. Restriction on Transfer. In connection with the security interest
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granted by NWI to the Partnership under paragraph 11 hereof, NWI agrees that any
shares of Common Stock and any portion of NWI's Partnership Interest included in
the Collateral shall not be Transferred without the consent of the General
Partner until the third anniversary of the date hereof; provided, however, that
NWI may Transfer all or any portion of such shares of Common Stock to an
Affiliate of NWI (so long as such Affiliate remains an Affiliate of NWI),
subject to the prior security interest granted in paragraph 11 hereof and to the
restrictions contained in Article IX of the Partnership Agreement, provided
further, however, that the restrictions imposed by this paragraph shall be
extended with respect to NWI if there has been delivered to NWI a Notice of
Breach and the indemnification obligation with respect thereto remains
unsatisfied, or there is pending a dispute with respect to such obligation,
until such dispute is finally resolved or satisfied in accordance with paragraph
11 hereof. Notwithstanding the foregoing, NWI may, with the consent of the
General Partner in its sole and absolute discretion, be relieved of the
restrictions on transferability contained in this paragraph by (a) consenting to
personal liability (by execution and delivery of an agreement to such effect in
form and substance reasonably satisfactory to the General Partner) for any
indemnification obligations secured by a Partnership Interest or Common Stock,
or (b) pledging (by execution and delivery of a pledge agreement or amendment to
this agreement in form and substance reasonably satisfactory to the General
Partner) substitute collateral that, in the reasonable determination of the
General Partner, is substantially equivalent in value to the Partnership
Interests or Common Stock described in this paragraph 13. In the event that NWI
is relieved of the restrictions on transferability in
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accordance with the terms of this paragraph, the security interest in NWI's
Partnership Interest and Common Stock granted to the General Partner and the
Partnership pursuant to paragraph 11 hereof shall terminate without further
action, and the Partnership, at the request of NWI, shall promptly execute and
deliver any document or instrument reasonably requested by NWI to evidence such
termination. 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, if any, of the Common Stock issued upon such exercise that is included
in the Collateral. If any portion of the Partnership Interest of NWI included in
the Collateral is represented by certificates, the Partnership shall retain such
certificates in perfection of the security interest herein granted.
14. Miscellaneous. This First Amendment shall be governed by and
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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
NWI and Xxxxxxx & Co. 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 First 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 First
Amendment as of the date first above written.
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc., a Georgia
corporation, its Sole General Partner
By: ___________________________
Xxxxxx X. Xxxxxxxx
Executive Vice President
NWI WAREHOUSE GROUP, L.P.
By: NWI X, L.P., its Sole General Partner
By: ___________________________
Xxxx X. Xxxxxx, Xx.,
General Partner
By: ___________________________
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
Address: 0000 Xxxxxxxx Xxxx
Xxxxx X-0
Xxxxxxxxx, Xxxxxxxxx 00000
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XXXXXXX & COMPANY REAL ESTATE, INC.
By:__________________________________
Name:____________________________
Title:_____________________________
Address: 0000 Xxxxxxxx Xxxx
Xxxxx X-0
Xxxxxxxxx, Xxxxxxxxx 00000
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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NWI Capital Contribution: All assets, properties and businesses transferred
from NWI at November 1, 1996, to the Partnership
pursuant to the Transaction Documents (as defined
in the foregoing First Amendment)
Xxxxxxx & Co. Capital All assets, properties and businesses transferred
Contribution: from Xxxxxxx & Co. at November 1, 1996, to the
Partnership pursuant to the Transaction Documents
(as defined in the foregoing First Amendment)
Gross Fair Market Value of
properties other than money
included in NWI Capital
Contribution: Airpark Center I
Airpark Center II
Airpark Center III
Airpark Center IV
Airpark Center V
Airpark Center VI
Airpark Center VII
Airpark Center VIII
Airpark Center IX
Airpark Center XI
Airpark Center XIII
Brentwood South I
Brentwood South II
Brentwood South III
Brentwood South IV
Brentwood South V
Brentwood South VI
$69,000,000
Gross Fair Market Values of
each property other than
money included in Xxxxxxx &
Co. Capital Contribution: $500,000 (Operating Business)
NWI Partnership Units: 1,080,752
Xxxxxxx & Co. Partnership Units: 20,000
Interests in land and
improvements as to which legal
title only is being contributed: Airpark XII, 440 Business Center I
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Exhibit C
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PERCENTAGE INTERESTS
Partner Percentage Interest
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Weeks GP Holdings, Inc. 0.926%
Weeks LP Holdings, Inc. 74.374%
NWI 7.277%
A. Xxx Xxxxx, Xx. 5.216%
Xxxx X. Xxxxx 1.615%
Xxxxxx Xxxxx 1.536%
Trust U/W 1.432%
Xxxxxxxx Xxxxx 1.391%
Xxxxxxx Xxxxxx 1.336%
Trust B 1.262%
Weeks Horizon 0.781%
Oakdale Land 0.744%
Weeks Hillside 0.526%
Xxx Xxxxxxxx 0.356%
Weeks Southridge 0.289%
Xxxxxxx Xxxxxxxx 0.194%
Xxxxx X. Weeks 0.185%
Xxxxx X. Xxxxxxxx 0.135%
Xxxxxxx & Co. 0.135%
HV, Inc. 0.115%
Xxxxx Xxxxxxx 0.038%
Xxxx Xxxxxx 0.038%
Xxx Xxxxxx 0.035%
Xxxx Xxxxxxx 0.028%
Xxxxx Xxxxx 0.016%
Xxxx Xxxxxxx 0.010%
Weeks Management 0.008%
RTF Management 0.002%
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Exhibit D
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RIGHTS TERMS
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The Rights granted by the Partnership to NWI and Xxxxxxx & Co. (referred to
in this Exhibit as "Limited Partners"), pursuant to paragraph 3(b) of the
foregoing First Amendment shall be subject to the following terms and
conditions:
14. Definitions. Capitalized terms used in this Exhibit without
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definition shall have the meanings given to them in the Partnership Agreement or
the foregoing First Amendment, as applicable, and the following terms and
phrases shall, for purposes of this Exhibit D, the Partnership Agreement and the
foregoing First Amendment, have the meanings set forth below:
"Cash Purchase Price" shall have the meaning set forth in Paragraph 4
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hereof.
"Closing Notice" shall mean the written notice to be given by the
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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
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Notice is delivered to the General Partner.
"Conversion Exercise Notice" shall have the meaning set forth in
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Paragraph 2 hereof.
"Conversion Factor" shall mean 100%, provided that such factor shall
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be adjusted in accordance with the provisions of paragraph 10 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, or any successor statute.
"Exercising Partners" shall have the meaning set forth in Paragraph 2
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hereof.
"Offered Partnership Units" shall mean the Partnership Units of the
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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.
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"Redemption Price" shall mean the Cash Purchase Price or the Stock
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Purchase Price.
"Rights" shall have the meaning set forth in paragraph 3(b) of the
------
foregoing First Amendment.
"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.
15. 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.
16. Limitations on Exercise of Rights; Deemed Exercise.
--------------------------------------------------
(a) 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) one year after the issuance of such Unit, 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. Until the third anniversary of the date hereof neither NWI nor
Xxxxxxx & Co. shall deliver a Conversion Exercise Notice with respect to
Partnership Units if the redemption thereof would cause the aggregate
Partnership Units held by such entity to be less than 42.722% (in the case
of NWI), or 100% (in the case of Xxxxxxx & Co.), of the aggregate number of
Partnership Units issuable to such entity pursuant to the Transaction
Documents.
(b) 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.
(c) Neither the General Partner nor the Partnership shall have any
obligation or authority to redeem or purchase Offered Partnership Units if
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
-21-
stock ownership test of Section 856(a)(6) of the Code, or (iii) would
otherwise cause Weeks to fail to qualify as a REIT. 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.
(d) If, after complying with all applicable provisions of the
Partnership Agreement, any Person with an ownership interest in NWI or
Xxxxxxx & Co. becomes the owner of any Partnership Units previously owned
by NWI or Xxxxxxx & Co., such Person may exercise the Rights granted with
respect to such Partnership Units in accordance with the terms hereof.
17. 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.
18. 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
-22-
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.
19. 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 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, 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.
20. 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.
-23-
21. 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.
22. 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.
23. 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.
-24-
(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 requiring such computation, 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 of a stock dividend 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.
24. 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
-25-
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.
25. 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.
26. 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
-26-
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.
27. 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,
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.
-27-
SCHEDULE 1
CONVERSION EXERCISE NOTICE
--------------------------
To: Weeks Realty, L.P.
Reference is made to that certain First Amendment (the "First 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 First Amendment. Pursuant to Exhibit D to
the First 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:___________________________
-28-
SCHEDULE 2
CLOSING NOTICE
--------------
To: Exercising Limited Partner(s)
Reference is made to that certain First Amendment (the "First 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 First Amendment. The closing of the
redemption of the Offered Partnership Units shall occur at _______, ________,
Georgia, on ___________. Pursuant to Exhibit D to the First 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:________________________________
-29-
Exhibit E
---------
1 REPRESENTATIONS AND WARRANTIES OF NWI.
-------------------------------------
1.1 Organization; Authority. NWI is a limited partnership duly
-----------------------
formed, validly existing and in good standing under the laws of the State of
Tennessee and has all the necessary power and authority to enter into and
perform its obligations under the Partnership Agreement, as amended by this
Amendment, and to consummate the transactions contemplated by the Transaction
Documents (the "Transactions"). NWI X, L.P., is the sole general partner of NWI
and is a limited partnership duly formed, validly existing and in good standing
under the laws of the State of Tennessee and has all the necessary power and
authority, in its capacity as the sole general partner of NWI, to enter into and
perform its obligations under the Partnership Agreement, as amended by this
Amendment, and to consummate the Transaction. Xxxx X. Xxxxxx, Xx. and Xxxxxx X.
Xxxxxxx, Xx. are the sole general partners of NWI X, L.P.
1.2 Due Authorization; Binding Agreement. The execution, delivery
------------------------------------
and performance of this Amendment and the other Transaction Documents by NWI has
been duly and validly authorized by all necessary action of NWI. This Amendment
and each of the other Transaction Documents has been duly executed and delivered
by NWI and constitutes a legal, valid and binding obligation of NWI, enforceable
against NWI in accordance with the terms hereof (except as enforcement may be
limited by bankruptcy, insolvency or other laws affecting enforcement of
creditors' rights generally and general equity principles).
1.3 Governmental Consents. Except as has been obtained or is being
---------------------
effected as part of the consummation of the Transactions, no consent, waiver,
approval or authorization of, or filing, registration or qualification with, or
notice to, any governmental unit or any other regulatory body is required to be
made, obtained or given by NWI in connection with the execution, delivery and
performance of this Amendment and the other Transaction Documents.
1.4 Other Consents. Except for waivers and consents that have been
--------------
obtained prior to the date hereof, and except as would not have a material
adverse effect on any of the Completed Properties, no consent of any party to
any agreement, contract, mortgage, indenture, lease, reciprocal easement or
operating agreement or other arrangement, to which NWI is a party, or, by which
NWI is bound, is required in connection with the execution, delivery or
performance by NWI of this Amendment or any of the other Transaction Documents
or the consummation of the Transactions.
1.5 No Violation. Except for waivers and consents that have been
------------
obtained prior to the date hereof, none of the execution, delivery and
performance of this Amendment or any of the other Transaction Documents by NWI
does or will, with or without the giving of notice, lapse of time or both, (i)
violate, conflict with or constitute a default under any term or condition of
(A) the organizational documents of NWI, or (B) any term or provision of any
judgment, decree, order, statute, injunction, rule or regulation of a
governmental unit applicable to NWI or any agreement,
-30-
contract, mortgage, indenture, lease, reciprocal easement or operating agreement
or other arrangement to which such NWI is a party or by which it is bound or to
which any of its assets or any of the Completed Properties is subject except in
the case where appropriate waivers and consents have been obtained prior to the
date hereof, and except as would not have a material adverse effect on the
Partnership, NWI or any of the Completed Properties, or (ii) result in the
creation of any lien or other encumbrance upon the assets of NWI or any of the
Completed Properties, except as may be contemplated by this Amendment or any of
the Transaction Documents and except as would not have a material adverse effect
on NWI or any of the Completed Properties.
1.6 Compliance with Laws. NWI has complied with all laws
--------------------
applicable to the conduct of the business of NWI and to the ownership, use and
operation of the Completed Properties and has obtained all licenses and permits
required for the conduct thereof, except where the failure to so comply or
obtain will not have a material adverse effect on NWI or any of the Completed
Properties. To NWI's knowledge ("NWI's knowledge" shall hereafter mean the
knowledge of either Xxxx X. Xxxxxx, Xx. or Xxxxxx X. Xxxxxxx, Xx.), such
licenses and permits are in full force and effect, NWI has not taken any action
that would (or failed to take any action the omission of which would) result in
the revocation of such licenses or permits, and NWI has not received any notice
of violation from any federal, state or municipal entity or written notice of an
intention by any such government entity to revoke any certificate of occupancy
or other certificate, license or permit issued by it in connection with the use
of any of the Completed Properties, that in each case has not been cured or
otherwise resolved to the satisfaction of such government entity, except where
such failure or such action will not have a material adverse effect on NWI or
any of the Completed Properties.
1.7 Investment.
----------
1.7.1 NWI is acquiring Partnership Units for its 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.
1.7.2 NWI is an "accredited investor," as that term is defined in
Rule 501(a) of Regulation D promulgated under the Securities
Act.
1.7.3 NWI 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 NWI's
representations as expressed herein.
1.8 Access to Data. NWI 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.
-31-
1.9 No Public Market. NWI understands and acknowledges that no
----------------
public market now exists for any of the securities issued by the Partnership and
that there can be no assurance that a public market will ever exist for the
Partnership Units.
1.10 Experience; Risk. NWI has such knowledge and experience in
----------------
financial and business matters that NWI is capable of evaluating the merits and
risks of the purchase of the Partnership Units pursuant to this Amendment and of
protecting NWI's interests in connection herewith.
1.11 Environmental. NWI has not knowingly caused or permitted any
-------------
Hazardous Material to be improperly maintained or disposed of on, under or at
any of the Completed Properties or any part thereof. To NWI's knowledge, and
except as may be revealed in the Environmental Reports (which are identified in
Exhibit E-11.1 attached hereto and by this reference made a part hereof) and
--------------
except for tenants who handle hazardous materials in the ordinary course of
business (which are identified in Exhibit E-11.2 attached hereto and by this
--------------
reference made a part hereof): (i) no liability under or violation of any
Environmental Laws exists with respect to the Completed Properties, (ii) NWI
has not received any written notice from any governmental agency or
instrumentality having jurisdiction thereof of any violation of any
Environmental Laws that remains uncured as of the date hereof or that it has any
material liability with respect thereto, (iii) there are no administrative,
regulatory or judicial proceedings pending or threatened against NWI pursuant
to, or alleging any material violation of, or material liability under any
Environmental Laws, (iv) none of the properties (including without limitation
the Completed Properties) now or heretofore owned, leased or used by NWI or any
of its predecessors has been used as a storage or disposal site (whether
temporary or permanent) for any hazardous, toxic or dangerous materials the
storage or disposal of which is governed by any Environmental Laws and (v)
except for Brentwood VI, there are no underground storage tanks located on,
under or about the Completed Properties, and there is no facility located on or
at the Completed Properties that is subject to the reporting requirements of
Section 312 of the Federal Emergency Planning and Community Right to Know Act of
1986 and the federal regulations promulgated thereunder (42 U.S.C. (S) 11022).
In connection with the representations and warranties in this Section 1.11, the
Partnership acknowledges that NWI disclaims any professional expertise with
respect to Environmental Laws.
1.12 Ownership of the Completed Properties. With respect to each
-------------------------------------
of the Completed Properties, NWI (i) is the sole owner and (ii) has good, valid
and marketable title, free and clear of all Liens other than the following:
1.12.1 Liens, or deposits made to secure the release of such Liens,
securing taxes, the payment of which is at the time not
delinquent or the payment of which is actively being
contested in good faith by appropriate proceedings
diligently pursued, and for which appropriate reserves shall
have been established by NWI for the Partnership.
-32-
1.12.2 Attachments, judgments and other similar Liens arising in
connection with court or administrative proceedings,
provided, that the execution or other enforcement of such
Liens is effectively stayed or secured and the claims
secured by such Liens are actively being contested in good
faith by appropriate proceedings diligently pursued, and for
which appropriate reserves shall have been established by
NWI.
1.12.3 Zoning laws and ordinances; provided that none of the
Completed Properties are in violation thereof, in any
material respect and that such laws and ordinances do not
require the demolition, vacation or cessation of the use for
industrial or office purposes (as applicable) of any portion
of the improvements material to any of the Completed
Properties or require the discontinuance of the use of all
or any material portion of any of the Completed Properties
as industrial facilities or office buildings.
1.12.4 Any laws, ordinances, deeds of trust, mortgages, Liens,
easements, rights of way, restrictions, exemptions,
reservations, conditions, limitations, covenants,
encumbrances, adverse rights or interests and other matters
identified on Exhibit E-1.12.4; provided that none of the
----------------
Completed Properties are not in violation thereof in any
material respect and the same do not require the demolition,
vacation or cessation of the use of for industrial or office
purpose of any portion of the improvements material to any
of the Completed Properties or require the discontinuance of
the use of all or any material portion of any of the
Completed Properties as industrial facilities or office
buildings.
1.12.5 Any other easements, rights of way, restrictions,
exceptions, reservations, conditions, limitations,
covenants, adverse rights or interests, licenses, minor
irregularities in title and other similar encumbrances which
do not in the aggregate materially impair the use of any of
the Completed Properties in the operation of the business of
NWI.
1.12.6 Any law or governmental regulation or other right of any
governmental unit, which (i) requires the person to maintain
certain facilities or perform certain acts as a condition of
its occupancy or use of its assets and properties, or (ii)
condemns, appropriates or recaptures the person's assets or
property.
1.12.7 Liens imposed by laws, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens arising in the
ordinary course of business which secure payment of
obligations not more than sixty (60) days past due or which
are being contested in good faith by appropriate proceedings
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diligently pursued, and for which appropriate reserves shall
have been established by NWI for the Partnership.
1.13 Zoning; Other Laws. NWI has not received any written or
------------------
other actual notice of any violation of any applicable zoning regulation or
ordinance, or of any employment, environmental or other regulatory law, order,
regulation or requirement relating to NWI's operations, practices, properties or
assets that remain uncured as of the date hereof, and, to NWI's knowledge, there
are no such violations that, individually or in the aggregate, will have a
material adverse effect on any of the Completed Properties.
1.14 Absence of Undisclosed Liabilities and Contractual
--------------------------------------------------
Obligations. NWI has no liabilities of any nature, whether matured or
-----------
unmatured, fixed or contingent, regardless of whether the disclosure thereof
would otherwise be required by GAAP, which would have, individually or in the
aggregate, a material adverse effect upon any of the Completed Properties,
except for (i) the Prudential Loan Documents identified on Exhibit E-1.15, (ii)
--------------
the Permitted Exceptions identified on Exhibit E-1.12.4, (iii) the Leases
----------------
identified on the Rent Roll attached hereto as Exhibit E-1.19, (iv) the
--------------
Commission Obligations identified on Exhibit E-1.34, (v) the Service Contracts
--------------
identified on Exhibit E-1.33 (collectively, the "Significant Agreements") and
--------------
(vi) the liabilities disclosed in the most recent audited financial statements
of NWI dated as of December 31, 1995, and the liabilities disclosed in the
financial statements of NWI dated as of June 30, 1996.
1.15 Prudential Loans. The Completed Properties are encumbered by
----------------
term loans (the "Loans") in favor of the Prudential Insurance Company of America
("Prudential"). With respect to the Loans, NWI represents and warrants as
follows:
1.15.1 The loan documents identified Exhibit E-1.15.1 (the
----------------
"Prudential Loan Documents") hereto constitute all of the
documents that evidence or secure the Loans; and such
documents have not been amended or modified except as
expressly identified on Exhibit E-1.15.1 hereto. NWI has
----------------
delivered to the Partnership true, correct and complete
copies of all of the Prudential Loan Documents.
1.15.2 All payments due and payable on or before the date of this
Amendment under the Prudential Loan Documents by NWI, or any
of its predecessor entities, have been paid, and no monetary
default exists as of the date of this Amendment.
1.15.3 As of the date of this Amendment, no written notice of a
default is outstanding and, to the knowledge of NWI, no
condition exists which with the giving of notice or the
passage of time or both would constitute an Event of Default
under the Prudential Loan Documents.
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1.16 Significant Agreements; Binding Agreements. Each of the
------------------------------------------
Significant Agreements referred to in Subsection 1.14 above is (to NWI's
knowledge, with respect to parties thereto other than NWI) valid and binding and
in full force and effect, enforceable against the parties thereto in accordance
with its terms (except as enforcement may be limited by bankruptcy, insolvency
or other laws affecting enforcement of creditors' rights generally and general
equitable principles).
1.17 Litigation. Other than as set forth in Exhibit E-1.17,
---------- --------------
attached hereto and by this reference made a part hereof, there are no claims,
actions, suits, proceedings or investigations pending, or, to NWI's knowledge,
threatened, before any court, governmental unit or arbitrator with respect to
NWI or any of the Completed Properties (either filed against NWI or filed by NWI
against third parties), and, to NWI's knowledge, none of the claims or other
matters set out in said Exhibit E-1.17, will have a material adverse effect on
--------------
NWI or any of the Completed Properties.
1.18 Tangible Personal Property. The Tangible Personal property
--------------------------
located at the Completed Properties is sufficient to permit the full operation
of the improvements for their intended purpose.
1.19 Rent Roll. The rent roll for the Completed Properties
---------
attached hereto as Exhibit E-1.19 (the "Rent Roll") is true, correct and
--------------
complete with respect to the categories described therein as of October 28,
1996, and there are no tenant cancellation rights, renewal or extension options
or rent abatements or tenant concessions, except to the extent any inaccuracies
would not, individually or in the aggregate, have a material adverse effect on
the value of any of the Completed Properties.
1.20 Leases. The Rent Roll lists each of the leases ("Leases")
------
in effect as of the date of the Rent Roll with respect to the Completed
Properties. NWI represents and warrants to the Partnership that it has
delivered to the Partnership true, correct and complete copies of the Leases
identified on the Rent Roll and any and all amendments thereto. In the case of
any sublease or assignment of any such Lease, the tenant listed in such Rent
Roll remains liable for the performance of said Lease.
1.21 Improvements. Except as disclosed in the Engineering
------------
Reports listed in Exhibit E-1.21, attached hereto and by this reference made a
--------------
part hereof, the improvements on each of the Completed Properties are in good
condition and repair and have not suffered any material casualty or, to NWI's
knowledge, other material damage that has not been repaired in all material
respects. To NWI's knowledge, there is no material latent or patent structural,
mechanical or other significant defect or deficiency in the Improvements, other
than as disclosed in said Engineering Reports.
1.22 Condemnation. No proceedings have been commenced, or, to
------------
NWI's knowledge, threatened, by any authority having the power of eminent domain
to condemn any part of the Completed Properties or any Improvements thereon
that, if successful, would have a material adverse effect on any of the
Completed Properties.
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1.23 Bankruptcy and Insolvency. To NWI's knowledge, none of the
-------------------------
tenants now occupying the Completed Properties or having a Lease affecting the
Completed Properties is the subject of any bankruptcy, reorganization,
insolvency or similar proceedings.
1.24 [Intentionally Omitted]
1.25 Full Disclosure. No representation or warranty by NWI
---------------
herein contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein, in
light of the circumstances under which they were made, not misleading.
1.26 Ownership Interest in Tenants. None of NWI, its general
-----------------------------
partner or any of its limited partners owns, directly or indirectly, (i) one
percent (1%) or more of the total combined voting power of all classes of stock
entitled to vote, or one percent (1%) or more of the total number of shares of
all classes of stock, of any corporation that is a Tenant or (ii) an interest
of one percent (1%) or more in the assets or net profits of any Tenant.
1.27 Tenant Operations. NWI has not received written notice that
-----------------
any Tenant intends either to cease such operations (other than temporarily due
to casualty, remodeling, renovation or any similar cause) or to cease operating
under the name under which it was operating as of the date hereof.
1.28 Lease Defaults. To NWI's knowledge, no condition exists
--------------
which, with the giving of notice or the passage of time, or both, would permit
any party to cancel its obligations under any reciprocal easement agreement or
Lease.
1.29 Incomplete Improvements. Except for routine repairs and
-----------------------
maintenance, all alterations, improvements or other work required to have been
completed by NWI under any reciprocal easement agreements and Leases to which it
is a party, including, without limitation, all alterations, improvements and
other work required to prepare space for the initial occupancy of each tenant
under a Lease, has heretofore been completed and paid for in full. To the
extent such alterations, improvements and other work has not been completed and
paid for in full, NWI shall be obligated to complete and pay for such items,
except that tenant improvement costs and items incurred for leases entered into
after May 22, 1996, shall be prorated, as provided in paragraph 2(e) of the
Letter of Intent dated May 22, 1996, between NWI and Weeks.
1.30 Integrated Facilities. Except for Airparks IV - IX which
---------------------
are served by a single-loop fire and water protection system, each of the
Completed Properties is an independent unit that does not now rely on any
facilities (other than facilities covered by Permitted Exceptions including,
without limitations, any reciprocal easement agreements or facilities of
municipalities or public utility and water companies and other than parking
areas which the Completed Properties make use of under any reciprocal easement
agreements) located on any property not included in the
-36-
Completed Properties to fulfill any municipal or governmental requirement or for
the furnishings to the Completed Properties of any essential building systems or
utilities.
1.31 Agreement Violations. NWI has not received any written
--------------------
notice that is still in effect that there is, and, to NWI's knowledge, there
does not exist, any violation of a condition or agreement contained in any
easement, restrictive covenant or any similar instrument or agreement affecting
the Completed Properties or any portion thereof, if such violation would have a
material adverse effect on any of the Completed Properties.
1.32 Radius Restrictions. NWI is not in violation of any radius
-------------------
restrictions, exclusive or similar provisions contained in any reciprocal
easement agreements, Leases or any other agreements to which NWI is a party or
is bound, if such violation would have a material adverse effect on the
Partnership, NWI or any of the Completed Properties.
1.33 Financial Status. NWI is solvent, has not made a general
----------------
assignment for the benefit of its creditors, and has not admitted in writing its
inability to pay its debts as they become due, nor has NWI filed, nor does it
contemplate the filing of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or any other proceeding for the relief of
debtors in general, nor has any such proceeding been instituted by or against
NWI, nor is any such proceeding to NWI's knowledge threatened or contemplated.
1.34 Service Contracts. Attached hereto as Exhibit D-1.34 is a
----------------- --------------
schedule of the Service Contracts now in effect to which NWI and/or the
Completed Properties are subject. No notice of default has been received by NWI
from any of the parties to the Service Contracts and, to NWI's knowledge, no
event has occurred which, with notice or lapse of time, or both, will constitute
any such default. There are no Service Contracts affecting the Completed
Properties other than as listed on Exhibit E-1.34, and the Service Contracts are
--------------
in full force and effect. Each of the Services Contracts can be canceled upon
not more than thirty (30) days written notice and without the payment of any
penalty or termination fee.
1.35 Lease Commissions. All leasing commissions payable in
-----------------
connection with the Leases now in occupancy have been paid-in-full, including
leasing commissions payable with respect to extensions, expansions and renewals
which have not been exercised as of the date hereof or payable in the event a
Tenant does not exercise a cancellation right under its Lease, except for lease
commission obligations identified on Exhibit E-1.35.
--------------
1.36 No NWI-Leased Space. Except for leases with Telco, Inc. and
-------------------
Matrix Exhibits, NWI does not lease space at any of the Completed Properties,
and no tenant at the Completed Properties is "related" to NWI within the meaning
of Section 267(b) or Section 707(b) of the Internal Revenue Code of 1986, as
amended.
1.37 ERISA. Except for Xxxxxxx & Company Real Estate, Inc.
-----
Defined Benefit Pension Plan, Xxxxx'x Supermarkets, Inc. Profit Sharing Plan,
Xxxxxxx Parts & Services Profit
-00-
Xxxxxxx Xxxx, Xxxxxx Xxxxxx Company Money Purchase Pension Plan, Xxxx X. Xxxxxx,
Xx. XXX Rollover Account, J. Xxxxxx Xxxxxxxxxx, M.D., P.C. Pension & Profit
Sharing Plan, Massmark Companies, Inc. Defined Benefit Pension Plan, Parthenon
Metal Works Profit Sharing Plan and Xxxxx X. Xxxxx, Xx., XXX, no interest in the
Completed Properties is or is deemed to be, directly or indirectly, an asset of
a "Plan" (as defined in the next sentence). "Plan" means an "employee benefit
----
plan" as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended, or a "plan" within the meaning of Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended.
1.38 Prorations. Prorations made for each contribution of a
----------
Completed or Development Property will be true and correct on the date of
contribution.
-38-
Exhibit F
---------
Amount by which the value (determined as provided in the foregoing First
Amendment) of NWI's Collateral is to be increased upon the contribution of each
Development Property:
Airpark Center X $364,782
Airpark Center XII $414,192
Aspen Grove I $282,873
Aspen Grove II $264,601
Aspen Grove V $363,279
440 Business Center I $310,273
-39-
Exhibit G
---------
All those properties recorded in that certain Quitclaim Deed for
Contribution, dated as of even date herewith and recorded in Deed Book ______,
page _____, in the Register's Offices in Davidson or Xxxxxxxxxx County,
Tennessee.
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