AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (this "Agreement"), dated as of November 1, 1996,
by and between NWI WAREHOUSE GROUP, LLC, a Delaware limited liability company
("NWI"), and WEEKS REALTY, L.P., a Georgia limited partnership ("Weeks Realty");
WITNESSETH:
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WHEREAS, NWI has been formed for the sole purpose of effecting a
contribution of certain assets of NWI Warehouse Group, L.P. to Weeks Realty in
exchange for limited partnership interests therein and is intended to exist only
as a transitory conduit for this purpose and not to conduct any other business
or activity; and
WHEREAS, the parties hereto desire that NWI be merged with and into Weeks
Realty on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
conditions and agreements set forth herein, the parties hereby agree as follows:
ARTICLE 1
THE MERGER
1.1 Merger. Subject to the terms and conditions of this Agreement, at the
Effective Time (as defined in this Agreement), NWI shall be merged with and into
Weeks Realty (the "Merger") pursuant to Section 18-209 of the Delaware Limited
Liability Company Act ("DLLCA") and Section 14-9-206.1 of the Georgia Revised
Uniform Limited Partnership Act ("GRULPA").
1.2 Effects of the Merger. The Merger shall have the effects set forth in
Section 18-209 of DLLCA and Section 14-9-206.1 of GRULPA.
1.3 Effective Time. The Merger shall become effective at such time as
certificates of merger are filed with the Secretary of State of the State of
Georgia and with the Secretary of State of the State of Delaware (the "Effective
Time").
1.4 Surviving Business Entity. Weeks Realty shall be the surviving
business entity in the Merger and shall continue to be governed by GRULPA. The
Second Amended and Restated Agreement of Limited Partnership of Weeks Realty,
dated as of October ___, 1996, as amended by the First Amendment to the Second
Amended and Restated Agreement of Limited Partnership of Weeks Realty dated as
of the date hereof (the "Partnership Agreement"), shall be the
partnership agreement of the surviving limited partnership. The general partner
of the surviving limited partnership shall be Weeks GP Holdings, Inc., a Georgia
corporation.
1.5 Closing. The closing of the Merger (the "Closing") will take place as
of the Effective Time at the offices of Baker, Donelson, Xxxxxxx & Xxxxxxxx,
Xxxxx 0000, Xxxxx Xxxx Center, 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
1.6 Conversion of Interests. At the Effective Time, by virtue of the
Merger and without any further action on the part of Weeks Realty or the
partners thereof or NWI or the member thereof, the interest of the member of NWI
in NWI shall be converted into and exchanged for the number of units of limited
partnership interest in Weeks Realty as set forth in the First Amendment to the
Partnership Agreement.
ARTICLE 2
MISCELLANEOUS
2.1 Amendment. This Agreement may be supplemented, amended or modified by
the parties hereto at any time prior to the Effective Time. This Agreement may
not be amended except by an instrument in writing signed by the parties hereto.
2.2 Waiver. At any time prior to the Effective Time, the parties hereto
may waive compliance with any of the agreements or conditions contained herein.
2.3 Notices. All notices and other communications to be given or made
hereunder by any party shall be delivered by first class mail, or by personal
delivery, postage or fees prepaid, to the appropriate party at the following
addresses:
NWI Warehouse Group, LLC
0000 Xxxxxxxx Xxxx, Xxxxx X-0
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Xx.
Weeks Realty, L.P.
0000 Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
2.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
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2.5 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party.
2.6 Remedies. Except as otherwise expressly provided herein, this
Agreement is not intended to confer any rights or remedies hereunder upon any
person not a party hereto.
2.7 Assignment. This Agreement shall not be assigned by operation of law
or otherwise without the consent of all parties hereto.
2.8 No Implied Waiver. Except as expressly provided in this Agreement, no
course of dealing among the parties hereto and no delay by any of them in
exercising any right, power or remedy conferred herein or now or hereafter
existing at law or in equity, by statute or otherwise, shall operate as a waiver
of, or otherwise prejudice, any such right, power or remedy.
2.9 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Georgia (regardless of the laws that
might otherwise govern under applicable principles of conflicts of law) as to
all matters, including, but not limited to, matters of validity, construction,
effect, performance and remedies.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement the date
first written above.
NWI WAREHOUSE GROUP, LLC
By: NWI WAREHOUSE GROUP, L.P., its
Sole Member
By: NWI X, L.P., its Sole General
Partner
By: _______________________
Xxxx X. Xxxxxx, Xx.,
General Partner
By: _______________________
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc., a Georgia
corporation, its sole General Partner
By: ______________________
Name:
Title:
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