Exhibit 10.1
FORM 0F
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FIFTH AMENDMENT TO THE
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SECOND AMENDED AND RESTATED
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AGREEMENT OF LIMITED PARTNERSHIP
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OF
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WEEKS REALTY, L.P.
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This Fifth Amendment to the Second Amended and Restated Agreement of
Limited Partnership of Weeks Realty, L.P. (this "Amendment") is entered into as
of October 7, 1997, by and between Weeks GP Holdings, Inc. (the "General
Partner") and Weeks LP Holdings, Inc. ("Weeks LP Holdings"). All capitalized
terms used herein shall have the meanings given to them in the Second Amended
and Restated Agreement of Limited Partnership of Weeks Realty, L.P., dated
October 30, 1996 (the "Partnership Agreement"), 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, and the Fourth
Amendment to the Partnership Agreement dated August 1, 1997.
WHEREAS, Weeks Corporation ("Weeks"), on even date herewith, has issued
6,000,000 shares of its 8.00% Series A Cumulative Redeemable Preferred Stock,
par value $0.01 per share, having a liquidation preference equivalent to $25.00
per share (the "Series A Preferred Stock"), and has sold such Series A Preferred
Stock in a public offering;
WHEREAS, Weeks has contributed to the capital of Weeks LP Holdings, Inc.
the proceeds received by Weeks from the issuance of the Series A Preferred
Stock;
WHEREAS, Weeks LP Holdings desires to contribute the net proceeds of the
sale of the Series A Preferred Stock to the Partnership in exchange for
partnership interests in the Partnership as set forth herein; and
WHEREAS, as provided in Section 9.3 of the Partnership Agreement, the
General Partner is authorized to cause the Partnership to issue additional
interests in the Partnership to Weeks LP Holdings in exchange for such
contribution.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
Section 1. Contribution.
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Weeks LP Holdings hereby contributes to the Partnership the entire net
proceeds received from Weeks as a contribution to the capital of Weeks LP
Holdings in connection with the issuance of the Series A Preferred Stock. As
provided in Section 4.1 of the Partnership Agreement, Weeks LP Holdings shall be
deemed to have made a Capital Contribution to the Partnership in the amount of
the gross proceeds of such issuance, which is $150,000,000, and Weeks LP
Holdings shall be deemed simultaneously to have reimbursed Weeks, and the
Partnership shall be deemed simultaneously to have reimbursed Weeks LP Holdings
for the amount of the underwriter's discount and other costs incurred by Weeks
in connection with such issuance.
Section 2. Issuance of Series A Preferred Partnership Units.
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In consideration of the contribution to the Partnership made by Weeks LP
Holdings pursuant to Section 1 hereof, the Partnership hereby issues to Weeks LP
Holdings 8.00% Series A Preferred Partnership Units (as defined herein).
Section 3. Definitions.
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In addition to those terms defined in the Partnership Agreement, the
following definitions shall be for all purposes, unless otherwise clearly
indicated to the contrary, inserted into the Partnership Agreement and applied
to the terms used in the Partnership Agreement and in this Amendment:
"Adjusted Capital Account Deficit" shall mean, with respect to any
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Partner, the deficit balance, if any, in such Partner's Capital Account as
of the end of any relevant fiscal year and after giving effect to the
following adjustments:
(a) credit to such Capital Account an amounts that such Partner
is obligated to restore with respect to any deficit balance in such
Capital Account pursuant to Section 8.7 hereof or is deemed to be
obligated to restore with respect to any deficit balance pursuant to
the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5)
of the Regulations; and
(b) debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
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"Common Partnership Unit" means a Partnership Unit that is not a
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Preferred Partnership Unit.
"Liquidation Preference Amount" means, with respect to any Preferred
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Partnership Unit, the amount payable with respect to such Preferred
Partnership Unit (as established by the instrument designating such
Preferred Partnership Units) upon the voluntary or involuntary dissolution,
liquidation or winding up of the Partnership,
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or upon the earlier redemption of such Preferred Partnership Units, as the
case may be.
"Partner Nonrecourse Debt" shall have the meaning set forth in
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Regulations Section 1.704-2(b)(4).
"Partnership Year" means the fiscal year of the Partnership, which
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shall be the calendar year.
"Preferred Partnership Unit" means any Partnership Unit issued from
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time to time pursuant to Section 9.3 hereof that is designated by the
General Partner at the time of its issuance as a Preferred Partnership
Unit. Each Preferred Partnership Unit shall have such designation,
preferences and relative, participating, optional or other special rights,
powers and duties, including rights, powers and duties senior to the
Partnership Interests of the Limited Partners and Common Partnership Units,
all as shall be determined by the General Partner subject to the
requirements of Section 9.3 hereof.
"Series A Preferred Partnership Unit" means a Partnership Unit issued
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by the Partnership to Weeks LP Holdings in consideration of the
contribution by Weeks LP Holdings to the Partnership of the entire net
proceeds received by Weeks LP Holdings as a contribution to the capital of
Weeks LP Holdings by Weeks of the proceeds from the issuance of the Series
A Preferred Stock by Weeks. The Series A Preferred Partnership Units shall
constitute Preferred Partnership Units. The Series A Preferred Partnership
Units shall have the voting powers, designation, preferences and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions as are set forth in Exhibit R, attached hereto.
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It is the intention of the General Partner, in establishing the Series A
Preferred Partnership Units, that each Series A Preferred Partnership Unit
shall be substantially the economic equivalent of a share of Series A
Preferred Stock.
"Series A Preferred Stock" means the 8.00% Series A Cumulative
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Redeemable Preferred Stock, par value $0.01 per share, having a liquidation
preference equivalent to $25.00 per share, issued by Weeks.
In addition, the definitions of "Majority Interest of the Limited Partners,"
"Partnership Unit," and "Partnership Interest" appearing in Article 1 of the
Partnership Agreement are hereby deleted in their entirety and the following
definitions are inserted in their place:
" Majority-In-Interest of the Limited Partners" shall mean Limited
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Partner(s) (other than Weeks LP Holdings and other than the General Partner
in its capacity, if any, as a Limited Partner) who hold in the aggregate
more than fifty percent (50%) of the Percentage Interests of the Common
Partnership Units then allocable to and
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held by the Limited Partners (other than Weeks LP Holdings and other than
the General Partner in its capacity, if any, as a Limited Partner), as a
class.
"Partnership Unit" shall mean a share of the Partnership Interests of
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all Partners. The allocation of Partnership Units to each Partner, after
giving effect to (a) Weeks' holding part of its Partnership Units as the
general partner of the Partnership and part of its Partnership Units as a
Limited Partner, and (b) the transfer by Weeks of all of its Partnership
Units to the General Partner and to Weeks LP Holdings as contemplated
hereby (collectively, the "Reorganization"), and the total number of Units
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allocated to all of the Partners, are as set forth on the attached Exhibit
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A-1. The ownership of Partnership Units may be evidenced by such form of
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certificate as the General Partner approves from time to time, and any such
certificate shall bear a legend that shall state that the Partnership Units
represented thereby are subject to the provisions hereof, shall refer
specifically to the transfer restrictions contained herein and (if the
holder thereof is a Manager) to the provision of Article XII hereof, and
shall otherwise have such form and content as the General Partner shall
determine. Without limitation of the authority of the General Partner as
set forth in Section 9.3 hereof, the General Partner may designate any
Partnership Units, when issued, as Common Partnership Units or as Preferred
Partnership Units, may establish any other class of Partnership Units, and
may designate one or more series of any class of Partnership Units. [At the
date hereof, each Partnership Unit represents a ._________% Percentage
Interest.]
"Percentage Interest" means, as to a Partner, with respect to any
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class of Partnership Units held by such Partner, its interest in such class
of Partnership Units as determined by dividing the number of Partnership
Units in such class owned by such Partner by the total number of
Partnership Units in such class then outstanding.
Section 4. Allocations and Other Tax and Accounting Matters.
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(a) Exhibit F to the Partnership Agreement is hereby deleted in its
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entirety and Exhibit F attached hereto is hereby inserted in its place.
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(b) Section 6.2 of the Partnership Agreement is hereby deleted in its
entirety and the following new Section 6.2 is inserted in its place:
"6.2 Distributions. The General Partner shall cause the Partnership
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to distribute all or a portion of Net Operating Cash Flow to the Partners
from time to time as determined by the General Partner, but in any event
not less frequently than quarterly, in the following order of priority:
(i) First, to the holders of the Preferred Partnership Units in such
amount as is required for the Partnership to pay all distributions
with respect to such Preferred Partnership
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Units due or payable in accordance with the instruments designating
such Preferred Partnership Units through the last day of such quarter;
such distributions shall be made to such Partners in such order of
priority and with such preferences as have been established with
respect to such Preferred Partnership Units as of the last day of such
calendar quarter; and then
(ii) To the Partners in proportion to their respective Percentage Interests
in Common Partnership Units on such Partnership Record Date;
provided, however, that all such distributions shall be made pro rata in
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accordance with the then outstanding Percentage Interests of each class of
Partnership Units to those Partners who are Partners as of the Partnership
Record Date for the quarter or other fiscal period with respect to which
such distribution is made. Notwithstanding the foregoing, the General
Partner shall cause the Partnership to distribute sufficient amounts to
enable the General Partner and Weeks LP Holdings to distribute to Weeks
sufficient amounts to enable Weeks to pay shareholder dividends that will
(a) satisfy the requirements for qualifying as a REIT under the Code and
Regulations ("REIT Requirements"), and (b) avoid any federal income or
excise tax liability of Weeks; provided, however, that the General Partner
may in its sole discretion from time to time elect not to cause the
Partnership to distribute sufficient amounts to enable Weeks to pay
shareholder dividends that will avoid any federal income or excise tax
liability of Weeks so long as to do so would not be disadvantageous to the
Limited Partners. Except as set forth in the immediately preceding
sentence, nothing contained herein shall require the General Partner to
cause the Partnership to distribute any particular portion of Net Operating
Cash Flow. The Partners acknowledge that the Partnership expects in the
future to undertake the construction and development of Properties, to
acquire additional Properties and interests in Investment Entities through
purchase for cash, debt and equity securities, issuance of indebtedness,
merger or other means, to make other investments utilizing, inter alia, the
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Receipts of the Partnership, and to establish reserves for the purpose of
making such future expenditures, thereby reducing the amounts of Net
Operating Cash Flow that otherwise would be available for distribution to
the Partners.
Notwithstanding anything to the contrary herein, in no event shall any
Partner receive a distribution of Net Operating Cash Flow with respect to
any Common Partnership Unit with respect to any quarter until such time as
the Partnership has distributed to the holders of the Preferred Partnership
Units an amount sufficient to pay all distributions payable with respect to
such Preferred Partnership Units through the last day of such quarter, in
accordance with the instruments designating such Preferred Partnership
Units."
Section 5. Exhibits to Partnership Agreement.
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The General Partner shall maintain the information set forth in Exhibit A
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to the Partnership Agreement, as such information shall change from time to
time, in such form as the General Partner deems appropriate for the conduct of
the Partnership affairs, and Exhibit A shall be deemed amended
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from time to time to reflect the information so maintained by the General
Partner, whether or not a formal amendment to the Partnership Agreement has been
executed amending such Exhibit A. In addition to the issuance of Series A
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Preferred Partnership Units to Weeks LP Holdings pursuant to this Amendment,
such information shall reflect (and Exhibit A shall be deemed amended from time
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to time to reflect) the issuance of any additional Partnership Units to Weeks LP
Holdings or any other Person, the transfer of Partnership Units and the
redemption of any Partnership Units, all as contemplated herein.
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IN WITNESS WHEREOF, the parties hereto have executed the Amendment under
seal as of the date first written above.
GENERAL PARTNER:
WEEKS GP HOLDINGS, INC.,
a Georgia corporation
By:
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Name:
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Title:
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LIMITED PARTNER:
WEEKS LP HOLDINGS, INC.,
a Georgia corporation
By:
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Name:
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Title:
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EXHIBIT F
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WEEKS REALTY, L.P.
ALLOCATIONS
Section 1. Allocation of Net Income and Net Loss.
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(a) Net Income. After giving effect to the special allocations set
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forth in Section 2 hereof, Net Income for any fiscal year or other
applicable period shall be allocated in the following manner and order of
priority:
(1) To the General Partner until the cumulative allocations of Net
Income under this Section 1(a)(1) equal the cumulative Net Losses
allocated to the General Partner under Section 1(b)(5) hereof.
(2) To those Partners who have received allocations of Net Loss
under Section 1(b)(4) hereof until the cumulative allocations of
Net Income under this Section 1(a)(2) equal such cumulative
allocations of Net Loss (such allocation of Net Income to be in
proportion to the cumulative allocations of Net Loss under such
section to each such Partner).
(3) To the General Partner until the cumulative allocations of Net
Income under this Section 1(a)(3) equal the cumulative allocations
of Net Loss to the General Partner under Section 1(b)(3) hereof.
(4) To those Partners who have received allocations of Net Loss
under Section 1(b)(2) hereof until the cumulative allocations of
Net Income under this Section 1(a)(4) equal such cumulative
allocations of Net Loss (such allocation of Net Income to be in
proportion to the cumulative allocations of Net Loss under such
section to each such Partner).
(5) To the Partners until the cumulative allocations of Net Income
under this Section 1(a)(5) equal the cumulative allocations of Net
Loss to such Partners under Section 1(b)(1) hereof (such allocation
of Net Income to be in proportion to the cumulative allocations of
Net Loss under such section to each such Partner).
(6) Any remaining Net Income shall be allocated to the Partners who
hold Common Partnership Units in proportion to their respective
Percentage Interests as holders of Common Partnership Units.
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(b) Net Losses. After giving effect to the special allocations set
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forth in Section 2 hereof, Net Losses shall be allocated to the Partners as
follows:
(1) To the Partners who hold Common Partnership Units in accordance
with their respective Percentage Interests as holders of Common
Partnership Units, except as otherwise provided in this Section
1(b).
(2) To the extent that an allocation of Net Loss under Section
1(b)(1) would cause a Partner to have an Adjusted Capital Account
Deficit at the end of such taxable year (or increase any existing
Adjusted Capital Account Deficit of such Partner), such Net Loss
shall instead be allocated to those Partners, if any, for whom such
allocation of Net Loss would not cause or increase an Adjusted
Capital Account Deficit. Solely for purposes of this Section
1(b)(2), the Adjusted Capital Account Deficit, in the case of Weeks
LP Holdings, shall be determined without regard to the amount
credited to Weeks LP Holdings' Capital Account for the aggregate
Liquidation Preference Amount attributable to Weeks LP Holdings'
Preferred Partnership Units, and in the case of a Principal or a
Principal-Controlled Partnership, shall be determined without
regard to such Partner's deficit Capital Account restoration
obligation under Section 8.7(b) of the Partnership Agreement. The
Net Loss allocated under this Section 1(b)(2) shall be allocated
among the Partners who may receive such allocation in proportion to
their respective Percentage Interests in Common Partnership Units.
(3) Any remaining Net Loss shall be allocated to the General
Partner to the extent that such allocation of Net Loss would not
cause or increase an Adjusted Capital Account Deficit of the
General Partner.
(4) Any remaining Net Loss shall be allocated to the Principals and
the Principal-Controlled Partnerships in accordance with their
respective Percentage Interests in Common Partnership Units;
provided that if, after the death of a Principal, the estate of
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such Principal or any Principal-Controlled Partnership with respect
to such Principal elects pursuant to Section 8.7(c) of the
Partnership Agreement to eliminate or reduce its deficit Capital
Account restoration obligation under Section 8.7(b) of the
Partnership Agreement, Net Losses shall not be allocated to such
Partner to the extent that such allocation would cause such Partner
to have an Adjusted Capital Account Deficit (or would increase any
existing Adjusted Capital Account Deficit of such Partner) as of
the end of such taxable year, and instead shall be allocated to
those Principals and Principal-Controlled Partnerships as to whom
the foregoing limitation does not apply.
(5) Any remaining Net Loss shall be allocated to the General
Partner.
Section 2. Special Allocations. Notwithstanding any provisions of paragraph 1
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of this Exhibit F, the following special allocations shall be made in the
following order:
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(a) Minimum Gain Chargeback (Nonrecourse Liabilities). If there is a net
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decrease in Partnership Minimum Gain for any Partnership fiscal year (except as
a result of certain conversions or refinancings of Partnership indebtedness,
certain capital contributions, or certain revaluations of Property as further
outlined in Regulation Sections 1.704-2(d)(4), (f)(2) or (f)(3)), each Partner
shall be specially allocated items of Partnership income and gain for such year
(and, if necessary, subsequent years) in an amount equal to that Partner's share
of the net decrease in Partnership Minimum Gain. The items to be so allocated
shall be determined in accordance with Regulation Section 1.704-2(f). This
paragraph (a) is intended to comply with the minimum gain chargeback requirement
in said section of the Regulations and shall be interpreted consistently
therewith. Allocations pursuant to this paragraph (a) shall be made in
proportion to the respective amounts required to be allocated to each Partner
pursuant hereto.
(b) Minimum Gain Attributable to Partner Nonrecourse Debt. If there is a
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net decrease in Minimum Gain Attributable to Partner Nonrecourse Debt during any
fiscal year (other than due to the conversion, refinancing or other change in
the debt instrument causing it to become partially or wholly nonrecourse,
certain capital contributions, or certain revaluations of Property as further
outlined in Regulation Section 1.704-2(i)(4)), each Partner shall be specially
allocated items of Partnership income and gain for such year (and, if necessary,
subsequent years) in an amount equal to that Partner's share of the net decrease
in the Minimum Gain Attributable to Partner Nonrecourse Debt. The items to be
so allocated shall be determined in accordance with Regulation Sections 1.704-
2(i)(4) and (j)(2). This paragraph (b) is intended to comply with the minimum
gain chargeback requirement with respect to Partner Nonrecourse Debt contained
in said sections of the Regulations and shall be interpreted consistently
therewith. Allocations pursuant to this paragraph (b) shall be made in
proportion to the respective amounts required to be allocated to each Partner
pursuant hereto.
(c) Qualified Income Offset. In the event any Partner unexpectedly
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receives any adjustments, allocations or distributions described in Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), and such Partner has an Adjusted
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Capital Account Deficit, items of Partnership income and gain shall be specially
allocated to such Partner in an amount and manner sufficient to eliminate the
Adjusted Capital Account Deficit as quickly as possible. This paragraph (c) is
intended to constitute a "qualified income offset" under Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
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(d) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or
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other applicable period shall be allocated to the Partners in accordance with
their respective Percentage Interests in Common Partnership Units.
(e) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any
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fiscal year or other applicable period shall be specially allocated to the
Partner that bears the economic risk of loss for the debt in respect of which
such Partner Nonrecourse Deductions are attributable (as determined under
Regulation Section 1.704-2(b)(4) and (i)(1)).
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(f) Curative Allocations. The Regulatory Allocations (as hereinafter
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defined) shall be taken into account in allocating other items of income, gain,
loss, and deduction among the Partners so that, to the extent possible, the
cumulative net amount of allocations of Partnership items under paragraphs 1 and
2 of this Exhibit F shall be equal to the net amount that would have been
allocated to each Partner if the Regulatory Allocations had not occurred. This
paragraph (f) is intended to minimize to the extent possible and to the extent
necessary any economic distortions which may result from application of the
Regulatory Allocations and shall be interpreted in a manner consistent
therewith. For purposes hereof, "Regulatory Allocations" shall mean all the
allocations provided under this paragraph 2 other than this paragraph (f).
(g) Priority Allocation With Respect To Preferred Partnership Units. All
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or a portion of the remaining items of Partnership gross income or gain for the
Partnership Year, if any, shall be specifically allocated to Weeks LP Holdings
in an amount equal to the excess, if any, of the cumulative distributions
received by Weeks LP Holdings pursuant to Section 6.2(i) of the Partnership
Agreement, as amended, for the current Partnership Year and all prior
Partnership Years (other than any distributions that are treated as being in
satisfaction of the Liquidation Preference Amount for any Preferred Partnership
Units) over the cumulative allocations of Partnership gross income and gain to
Weeks LP Holdings under this Section 2(g) for all prior Partnership Years.
Section 3. Tax Allocations.
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(a) Generally. Subject to paragraphs (b) and (c) hereof, items of income,
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gain, loss, deduction and credit to be allocated for income tax purposes
(collectively, "Tax Items") shall be allocated among the Partners on the same
basis as their respective book items.
(b) Sections 1245/1250 Recapture. If any portion of gain from the sale of
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property is treated as gain which is ordinary income by virtue of the
application of Code Sections 1245 or 1250 ("Affected Gain"), then (A) such
Affected Gain shall be allocated among the Partners in the same proportion that
the depreciation and amortization deductions giving rise to the Affected Gain
were allocated and (B) other Tax Items of gain of the same character that would
have been recognized, but for the application of Code Sections 1245 and/or 1250,
shall be allocated away from those Partners who are allocated Affected Gain
pursuant to Clause (A) so that, to the extent possible, the other Partners are
allocated the same amount, and type, of capital gain that would have been
allocated to them had Code Sections 1245 and/or 1250 not applied. For purposes
hereof, in order to determine the proportionate allocations of depreciation and
amortization deductions for each fiscal year or other applicable period, such
deductions shall be deemed allocated on the same basis as Net Income and Net
Loss for such respective period.
(c) Allocations Respecting Section 704(c) and Revaluations.
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Notwithstanding paragraph (b) hereof, Tax Items with respect to Property that is
subject to Code Section 704(c) and/or Regulation Section 1.704-1(b)(2)(iv)(f)
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(collectively "Section 704(c) Tax Items") shall be allocated in accordance with
said Code section and/or Regulation Section 1.704-1(b)(4)(i), as the case may
be. Specifically, the allocation of all Section 704(c) Tax Items shall be made
in accordance with the
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"traditional method" set forth in Regulation Section 1.704-3(b)(1) and thus
shall be subject to the ceiling rule stated in said section of the Regulations.
F-5
EXHIBIT R
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WEEKS REALTY, L.P.
DESIGNATION OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS AND QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS
The following are the terms of the Series A Preferred Partnership Units
established pursuant to this Amendment:
1. NUMBER. The maximum number of authorized units of the Series A
Preferred Partnership Units shall be 6,000,000.
2. RELATIVE SENIORITY. In respect of rights to receive quarterly
distributions and to participate in distributions of payments in the event of
any liquidation, dissolution or winding up of the Partnership, the Series A
Preferred Partnership Units shall rank (a) senior to any class or series of
Partnership Units of the Partnership ranking, as to the payment of quarterly
distributions or as to the distribution of assets upon liquidation, dissolution
or winding up, junior to the Series A Preferred Partnership Units (collectively,
"Junior Partnership Units"), (b) senior to any class or series of Partnership
Units of the Partnership ranking, as to the payment of quarterly distributions
and as to the distribution of assets upon liquidation, dissolution or winding
up, junior to the Series A Preferred Partnership Units (collectively, "Fully
Junior Partnership Units"), and (c) on a parity with any class or series of
Partnership Units of the Partnership ranking, as to the payment of quarterly
distributions and as to the distribution of assets upon liquidation, dissolution
or winding up, whether or not the quarterly distribution rates, quarterly
distribution payment dates or redemption or liquidation prices per unit thereof
are different from those of the Series A Preferred Partnership Units, if the
holders of such class or series of Partnership Units and the Series A Preferred
Partnership Units shall be entitled to the receipt of quarterly distributions
and of amounts distributable upon liquidation, dissolution or winding up in
proportion to their respective amounts of accrued and unpaid quarterly
distributions per unit or liquidation preferences, without preference or
priority one over the other (collectively, "Parity Partnership Units").
3. QUARTERLY DISTRIBUTIONS.
a. The holders of the then outstanding Series A Preferred Partnership
Units shall be entitled to receive, when, as and if declared by the General
Partner out of funds legally available therefor, cumulative quarterly
distributions at the rate of $2.00 per unit per year, payable in equal
amounts of $0.50 per unit quarterly in cash on the last day of each
January, April, July and October or, if not a Business Day (as hereinafter
defined), the next succeeding Business Day. Quarterly distributions shall
begin to accrue and shall be fully cumulative from the first date on which
the pertinent units of the Series A Preferred Partnership Units are
R-1
issued and sold and shall first be payable on October 31, 1997 (each such
payment date being hereafter called a "Quarterly Distribution Date" and each
period ending on a Quarterly Distribution Date being hereinafter called a
"Quarterly Distribution Period"). Quarterly distributions shall be payable to
holders of record as they appear in the records of the Partnership at the close
of business on the applicable record date (the "Record Date"), which shall be
the 15th day of the calendar month in which the applicable Quarterly
Distribution Date falls on or such other date designated by the General Partner
for the payment of quarterly distributions that is not more than 50 nor less
than 10 days prior to such Quarterly Distribution Date. The amount of any
quarterly distribution payable for any Quarterly Distribution Period shorter
than a full Quarterly Distribution Period shall be prorated and computed on the
basis of the actual number of days in such period. Quarterly distributions paid
on the Series A Preferred Partnership Units in an amount less than the total
amount of such quarterly distributions at the time accrued and payable on such
units shall be allocated pro rata on a per unit basis among all such units at
the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
b. The amount of any quarterly distributions accrued on any Series A
Preferred Partnership Units at any Quarterly Distribution Date shall be the
amount of any unpaid quarterly distributions accumulated thereon, to and
including such Quarterly Distribution Date, whether or not earned or declared,
and the amount of quarterly distributions accrued on any Series A Preferred
Partnership Units at any date other than a Quarterly Distribution Date shall be
equal to the sum of the amount of any unpaid quarterly distributions accumulated
thereon, to and including the last preceding Quarterly Distribution Date,
whether or not earned or declared, plus an amount calculated on the basis of the
annual quarterly distribution rate of $2.00 per unit for the period after such
last preceding Quarterly Distribution Date to and including the date as of which
the calculation is made based on the actual number of days in such period.
c. Except as provided herein, the Series A Preferred Partnership Units
will not be entitled to any quarterly distributions in excess of full cumulative
quarterly distributions as described above and shall not be entitled to
participate in the earnings or assets of the Partnership, and no interest, or
sum of money in lieu of interest, shall be payable in respect of any quarterly
distribution payment or payments on the Series A Preferred Partnership Units
which may be in arrears.
d. Any quarterly distribution payment made on the Series A Preferred
Partnership Units shall first be credited against the earliest accrued but
unpaid quarterly distribution due with respect to such units which remains
payable.
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e. No quarterly distributions on the Series A Preferred Partnership
Units shall be authorized by the General Partner or be paid or set apart for
payment by the Partnership at such time as the terms and provisions of any
agreement of the Partnership, including any agreement relating to its
indebtedness, prohibit such authorization, payment or setting apart for payment
or provide that such authorization, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such authorization or
payment shall be restricted or prohibited by law. Notwithstanding the
foregoing, quarterly distributions on the Series A Preferred Partnership Units
will accrue whether or not the Partnership has earnings, whether or not there
are funds legally available for the payment of such quarterly distributions and
whether or not such quarterly distributions are authorized.
f. So long as any Series A Preferred Partnership Units remain
outstanding, no quarterly distributions, except as described in the immediately
following sentence, shall be declared or paid or set apart for payment on any
class or series of Parity Units for any period unless full cumulative quarterly
distributions have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on the
Series A Preferred Partnership Units for all Quarterly Distribution Periods
terminating on or prior to the quarterly distribution payment date for such
class or series of Parity Units. When quarterly distributions are not paid in
full or a sum sufficient for such payment is not set apart, as aforesaid, all
quarterly distributions declared upon Series A Preferred Partnership Units and
all quarterly distributions declared upon any other class or series of Parity
Units shall be declared ratably in proportion to the respective amounts of
quarterly distributions accumulated and unpaid on the Series A Preferred
Partnership Units and accumulated and unpaid on such Parity Units.
g. So long as any Series A Preferred Partnership Units remain
outstanding, no quarterly distributions (other than quarterly distributions or
distributions paid solely in units of, or options, warrants or rights to
subscribe for or purchase, Fully Junior Units) shall be declared or paid or set
apart for payment or other distribution declared or made upon Junior Units or
Fully Junior Units, nor shall any Junior Units or Fully Junior Units be
redeemed, purchased or otherwise acquired (other than a redemption, purchase or
other acquisition of Common Units made for purposes of any employee incentive or
benefit plan of the Partnership or any subsidiary) for any consideration (or any
monies be paid to or made available for a sinking fund for the redemption of any
such units) by the Partnership, directly or indirectly (except by conversion
into or exchange for Fully Junior Units), unless in each case (i) the full
cumulative quarterly distributions on all outstanding Series A Preferred
Partnership Units and any other Parity Units of the Partnership shall have been
or contemporaneously are declared and paid or declared and set apart for payment
for all past Quarterly Distribution Periods with respect to the Series A
Preferred Partnership Units and all past quarterly distribution periods with
respect to such Parity Units and (ii) sufficient funds shall have been or
contemporaneously are declared and paid or declared and set apart for the
payment of the quarterly distribution for the current Quarterly Distribution
Period with
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respect to the Series A Preferred Partnership Units and the current quarterly
distribution period with respect to such Parity Units.
4. LIQUIDATION RIGHTS.
a. Upon the voluntary or involuntary liquidation, dissolution or winding
up of the Partnership, the holders of the Series A Preferred Partnership Units
then outstanding shall be entitled to receive and to be paid out of the assets
of the Partnership available for distribution to its Partners, before any
payment or distribution shall be made on any Junior Units, the amount of $25.00
per unit, plus accrued and unpaid quarterly distributions thereon.
b. After the payment to the holders of the Series A Preferred Partnership
Units of the full preferential amounts provided for herein, any other series or
class of Junior Units or Fully Junior Units shall, subject to the respective
terms and provisions (if any) applying thereto, be entitled to receive any and
all assets remaining to be paid, and the holders of the Series A Preferred
Partnership Units, as such, shall have no right or claim to any of the remaining
assets of the Partnership.
c. If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Partnership, the assets of the Partnership, or proceeds
thereof, distributable among the holders of the Series A Preferred Partnership
Units shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other units of any class or series of Parity Units,
then such assets, or the proceeds thereof, shall be distributed among the
holders of the Series A Preferred Partnership Units and any such other Parity
Units ratably in accordance with the respective amounts that would be payable on
such Series A Preferred Partnership Units and any such other Parity Units if all
amounts payable thereon were paid in full.
d. Neither a consolidation nor a merger of any other entity into or with
the Partnership or a sale, lease, transfer or conveyance of all or substantially
all of the property or business of the Partnership, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes hereof.
5. REDEMPTION.
a. OPTIONAL REDEMPTION. On and after October 10, 2002, the Partnership
may, at its option, redeem at any time all or, from time to time, any part of
the Series A Preferred Partnership Units at a price per unit, payable in cash,
of $25.00, together with all accrued and unpaid quarterly distributions to and
including the date fixed for redemption, without interest, to the full extent
the Company has funds legally available therefor. The Series A Preferred
Partnership Units shall have no stated maturity and will not be subject to any
sinking fund or mandatory redemption provisions.
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b. PROCEDURES OF REDEMPTION.
(1) At any time that Weeks exercises its right to redeem all or any of
the shares of Series A Preferred Stock, the General Partner shall exercise
its right to cause the Partnership to redeem an equal number of Series A
Preferred Partnership Units in the manner set forth herein.
(2) No Series A Preferred Partnership Units may be redeemed except
from proceeds from the sale of capital stock of Weeks, including but not
limited to common stock, preferred stock, depositary shares, interests,
participations or other ownership interests (however designated) and any
rights (other than debt securities convertible into or exchangeable for
equity securities) or options to purchase any of the foregoing. The
proceeds from such sale of such equity securities shall be contributed to
the General Partner or Weeks LP Holdings (as determined by the General
Partner in its sole discretion, and the General Partner and/or Weeks LP
Holdings (as applicable) shall contribute to the capital of the Partnership
the proceeds of the sale of such equity securities pursuant to the
requirements of Section 4.3(b) of the Partnership Agreement.
6. VOTING RIGHTS. Except as required by law, Weeks LP Holdings, in its
capacity as the holder of Series A Preferred Partnership Units, shall not be
entitled to vote at any meeting of the Partners or for any other purpose or
otherwise to participate in any action taken by the Partnership or the Partners,
or to receive notice of any meeting of the Partners.
7. CONVERSION. The Series A Preferred Partnership Units are not
convertible into or exchangeable for any other property or securities of the
Partnership.
8. RESTRICTIONS ON OWNERSHIP. The Series A Preferred Partnership Units
shall be owned and held solely by Weeks LP Holdings.
9. GENERAL. The rights of Weeks LP Holdings, in its capacity as holder of
the Series A Preferred Partnership Units, are in addition to and not in
limitation on any other rights or authority of Weeks LP Holdings, in any other
capacity, under the Partnership Agreement. In addition, nothing contained herein
shall be deemed to limit or otherwise restrict any rights or authority of Weeks
LP Holdings under the Partnership Agreement, other than in its capacity as the
holder of the Series A Preferred Partnership Units.
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