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CONTRIBUTION AGREEMENT
BY AND BETWEEN
XXXXXX X. XXXXXXX
AND
WEEKS REALTY, L.P.
DATED AS OF DECEMBER 31, 1996
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TABLE OF CONTENTS
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PAGE
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ARTICLE I CONTRIBUTION................................................................... 1
Section 1.01 Contribution of Assets............................................. 1
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Section 1.02 Excluded Assets.................................................... 1
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Section 1.03 Assumed Obligations................................................ 1
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Section 1.04 Excluded Liabilities............................................... 1
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ARTICLE II CONSIDERATION................................................................ 2
Section 2.01 Form and Amount of Consideration................................... 2
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Section 2.02 The Closing........................................................ 2
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF LICHTIN................................... 2
Section 3.01 Power; Authority................................................... 2
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Section 3.02 Due Authorization; Binding Agreement............................... 3
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Section 3.03 Governmental Consents.............................................. 3
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Section 3.04 Other Consents..................................................... 3
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Section 3.05 No Violation....................................................... 3
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Section 3.06 Compliance with Laws............................................... 3
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Section 3.07 Absence of Undisclosed Liabilities and Contractual Obligations.... 3
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Section 3.08 Contracts in Force................................................. 4
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Section 3.09 Litigation......................................................... 4
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Section 3.10 Financial Status................................................... 4
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Section 3.11 Taxes.............................................................. 4
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Section 3.12 Title to Assets.................................................... 4
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF WEEKS...................................... 4
Section 4.01 Organization; Authority............................................ 4
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Section 4.02 Due Authorization; Binding Agreement............................... 4
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Section 4.03. No Violation....................................................... 5
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Section 4.04 Litigation......................................................... 5
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ARTICLE V COVENANTS AND AGREEMENTS...................................................... 5
Section 5.01. Further Assurances................................................. 5
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ARTICLE VI INDEMNIFICATION............................................................... 5
Section 6.01. Survival; Reliance.................................................. 5
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Section 6.02. Indemnification..................................................... 6
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ARTICLE VII MISCELLANEOUS................................................................ 6
Section 7.01. Fees and Expenses; Transfer Taxes................................... 6
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Section 7.02. Notices............................................................. 6
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Section 7.03. Entire Agreement.................................................... 7
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Section 7.04. Waivers and Amendments.............................................. 7
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Section 7.05. Governing Law....................................................... 7
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Section 7.06. Binding Effect; Benefit............................................. 7
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Section 7.07. No Assignment....................................................... 7
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Section 7.08. Counterparts........................................................ 8
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Section 7.09. Headings............................................................ 8
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CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT (the "Agreement") dated as of December 31, 1996 (the
"Contribution Date"), by and between Xxxxxx X. Xxxxxxx, an individual resident
of the State of North Carolina ("Lichtin"), and Weeks Realty, L.P., a Georgia
limited partnership authorized to do business in the State of North Carolina as
Weeks Realty Limited Partnership ("Weeks").
W I T N E S S E T H:
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
CONTRIBUTION
Section 1.01. Contribution of Assets. Lichtin hereby contributes to the
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capital of Weeks, effective as of the Contribution Date, and Weeks hereby
accepts from Lichtin, effective as of the Contribution Date (the
"Contribution"), the right, title and interest in and to certain personal
property of Lichtin (the "Personal Property"); it being the intention of Lichtin
to contribute and it being the intention of Weeks to accept and receive the
Personal Property, free and clear of all liens other than those liens specified
in Section 1.03 hereof. The Personal Property shall consist only of those items
expressly identified on Schedule 1.01, attached hereto.
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Section 1.02. Excluded Assets. Notwithstanding anything to the contrary
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contained in Section 1.01 hereof, the parties to this Agreement expressly
understand and agree that Lichtin is not, pursuant to this Agreement, conveying
or contributing to Weeks any assets, rights or properties other than those
identified in Section 1.01 hereof.
Section 1.03. Assumed Obligations . Weeks hereby assumes, and agrees to
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pay, as soon as practicable following the Closing, those liabilities and
obligations, and only those liabilities and obligations, expressly identified on
Schedule 1.03, attached hereto (the "Assumed Obligations").
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Section 1.04. Excluded Liabilities. Except for the Assumed Obligations, no
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obligation or liability of Lichtin, whether or not relating to or arising out of
the ownership of the Personal Property, of any nature whatsoever (whether
expressed or implied, fixed or contingent, liquidated or unliquidated, known or
unknown, accrued, due or to become due), is being assumed by Weeks, nor shall
Weeks be liable to pay, perform or discharge any such obligation or liability,
nor shall any of the property or assets being contributed to Weeks pursuant
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hereto be subject to any such obligation or liability. Lichtin shall pay,
perform, and discharge all of the Excluded Liabilities consistent with present
practice.
ARTICLE II
CONSIDERATION
Section 2.01. Form and Amount of Consideration. In consideration of
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Lichtin's transfer and delivery of the Personal Property, Weeks does hereby
assume, and agree to pay, perform and discharge those liabilities and
obligations identified on Schedule 1.03.
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Section 2.02. The Closing.
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(a) The Contribution will occur simultaneously with the execution and
delivery hereof and shall commence at 9:00 a.m., EST, on the Contribution
Date at the offices of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.,
NationsBank Corporate Center, Suite 4200, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, or at such other place as may be
agreed by Lichtin and Weeks (the "Closing").
(b) At the Closing, Lichtin will execute and deliver to Weeks the
following:
(i) Assignments, bills of sale or other documents or instruments
of transfer, in form and substance reasonably acceptable to Weeks, to
transfer to Weeks all tangible and intangible property included in the
Personal Property; and
(ii) Such other instruments or documents, in form and substance
reasonably acceptable to Weeks, as may be necessary to effect the
Closing or evidence the Contribution.
(c) At the Closing, Weeks has entered into the Transaction Documents
(as defined in the Second Amendment to the Second Amended and Restated
Agreement of Limited Partnership of Weeks Realty, L.P. dated as of the date
hereof) and delivered such other instruments and documents, in form and
substance reasonably acceptable to Lichtin, as may be necessary to effect
the Closing or evidence the Contribution.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LICHTIN
Section 3.01. Power; Authority. Lichtin has all the necessary power and
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authority to enter into and perform his obligations under this Agreement.
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Section 3.02. Due Authorization; Binding Agreement. This Agreement has
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been duly executed and delivered by Lichtin and constitutes a legal, valid and
binding obligation of Lichtin, enforceable against Lichtin 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).
Section 3.03. Governmental Consents. Except as has been obtained or is
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being effected as part of the consummation of the transactions contemplated by
this Agreement, no consent, waiver, approval or authorization of, or filing,
registration (except for registration of titles to motor vehicles) or
qualification with, or notice to, any governmental unit or any other regulatory
body is required to be made, obtained or given by Lichtin in connection with the
execution, delivery and performance of this Agreement.
Section 3.04. Other Consents . Except for waivers and consents that have
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been obtained prior to the date hereof, no consent of any party to any
agreement, contract, mortgage, indenture, lease, reciprocal easement or
operating agreement or other arrangement, to which Lichtin is a party, or, by
which Lichtin is bound, is required in connection with the execution, delivery
or performance by Lichtin of this Agreement or the consummation of the
transactions provided for herein; provided, however, no consent to the
assumption of the Assumed Obligations has been secured from First Union National
Bank and such Assumed Obligations will be paid as set forth in Section 1.03.
Section 3.05. No Violation. Except for waivers and consents that have been
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obtained prior to the date hereof, none of the execution, delivery and
performance of this Agreement by Lichtin 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 any term or provision of any
judgment, decree, order, statute, injunction, rule or regulation of a
governmental unit applicable to Lichtin or any agreement, contract, mortgage,
indenture, lease, reciprocal easement or operating agreement or other
arrangement to which Lichtin is a party or by which he is bound or to which any
of his assets is subject, except in the case where appropriate waivers and
consents have been obtained prior to the date hereof, or (ii) result in the
creation of any lien or other encumbrance upon the Personal Property, except as
may be contemplated by this Agreement.
Section 3.06. Compliance with Laws. Lichtin has complied with all laws
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applicable to the ownership, use and operation of the Personal Property and has
obtained all licenses and permits required for the conduct thereof. To
Lichtin's knowledge, such licenses and permits are in full force and effect,
Lichtin 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 Lichtin 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 Personal Property, that in each case has not
been cured or otherwise resolved to the satisfaction of such government entity.
Section 3.07. Absence of Undisclosed Liabilities and Contractual
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Obligations. The consummation of the transactions effected hereby will not
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subject Weeks or any of its assets, including, without limitation, those
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contributed pursuant hereto, to any liability or obligation whatsoever, except
for the Assumed Obligations.
Section 3.08. Contracts in Force. Each of the agreements related to the
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Personal Property are 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).
To Lichtin's knowledge, no other party to any contract being transferred
pursuant to this Agreement is in default under such contract in any material
respect. The contracts, if any, being transferred pursuant to this Agreement
constitute all of the agreements which are related to the Personal Property.
Section 3.09. Litigation. There are no claims, actions, suits, proceedings
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or investigations pending, or, to Lichtin's knowledge, threatened, before any
court, governmental unit, agency, arbitrator, or other forum or tribunal with
respect to the Personal Property.
Section 3.10. Financial Status . Lichtin is solvent, has not made a
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general assignment for the benefit of his creditors, and has not admitted in
writing his inability to pay his debts as they become due, nor has Lichtin
filed, nor does he 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 Lichtin, nor is any such proceeding to Lichtin's knowledge threatened
or contemplated.
Section 3.11. Taxes. Lichtin has filed in a timely manner all tax returns
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required to be filed by him or on his behalf. All such tax returns are true,
correct and complete in all material respects, and taxes due with respect to
such tax returns have been timely paid in full.
Section 3.12. Title to Assets. Lichtin is the sole owner of and holds
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good, valid and marketable title to all of the assets being transferred to Weeks
pursuant to this Agreement, free and clear of any and all claims, liens,
pledges, security interests, and other encumbrances of any kind except as
otherwise described on Schedule 1.03, attached hereto.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WEEKS
Section 4.01. Organization; Authority. Weeks is a limited partnership duly
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formed, validly existing and in good standing under the laws of the State of
Georgia and has all the necessary power and authority to enter into and perform
its obligations under this Agreement.
Section 4.02. Due Authorization; Binding Agreement. The execution,
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delivery and performance of this Agreement by Weeks has been duly and validly
authorized by all necessary action of Weeks. This Agreement has been duly
executed and delivered by Weeks and constitutes a legal, valid and binding
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obligation of Weeks, enforceable against Weeks 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).
Section 4.03. No Violation. None of the execution, delivery and
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performance of this Agreement by Weeks 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 Second Amended and Restated
Agreement of Limited Partnership of Weeks Realty, L.P., as amended, of Weeks, or
(B) any term or provision of any judgment, decree, order, statute, injunction,
rule or regulation of a governmental unit applicable to Weeks or any agreement,
contract, mortgage, indenture, lease, reciprocal easement or operating agreement
or other arrangement to which Weeks is a party or by which it is bound or to
which any of its assets 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 Weeks, or (ii) result in the creation of
any lien or other encumbrance upon the assets of Weeks, except as may be
contemplated by this Agreement, and except as would not have a material adverse
effect on Weeks or its assets.
Section 4.04. Litigation. Except as disclosed on Schedule 4.04, attached
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hereto, there are no claims, actions, suits, proceedings or investigations
pending, or, to Weeks' knowledge, threatened, before any court, governmental
unit, agency, arbitrator, or other forum or tribunal with respect to the assets
of Weeks which, if adversely determined, would have a material adverse effect on
the assets of Weeks.
ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.01. Further Assurances. In addition to the actions, contracts
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and other agreements and documents and other papers specifically required to be
taken or delivered pursuant to this Agreement, each of the parties hereto shall
execute such contracts and other agreements and documents and take such further
actions as may be reasonably required or desirable to carry out the provisions
hereof and the Contribution.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Survival; Reliance. The representations, warranties,
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covenants and agreements made by each of the parties hereto shall survive until
the third anniversary of the Contribution Date, and each party hereto has the
right to fully rely on the representations, warranties, covenants and agreements
made by the other party.
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Section 6.02. Indemnification. In the event Weeks breaches any
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representation, warranty, covenant or agreement contained herein, Weeks agrees
to indemnify and hold harmless Lichtin from all liabilities, demands, claims,
actions, assessments, losses, fines, penalties, costs, damages and expenses
(including, without limitation, reasonable attorneys' and accountants' fees and
expenses) sustained or incurred by Lichtin as a result of such breach. The
liability of Lichtin for a breach of any representation, warranty, covenant or
agreement contained herein shall be governed by Paragraphs 9, 10, 11 and 12 of
the Second Amendment.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Fees and Expenses; Transfer Taxes. Fees and expenses
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incident to the negotiation, preparation and execution of this Agreement and the
performance of the Contribution (including attorneys', accountants', financial
advisors' and other advisors' fees and disbursements) shall be borne by the
party incurring the expense.
Section 7.02. Notices. Any notice or other communication required or
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that may be given hereunder shall be in writing and shall be delivered
personally, or sent by certified, registered, or express mail, postage prepaid,
to the parties at the following addresses or such other addresses as shall be
specified by the parties by like notice, and shall be deemed given when so
delivered personally, or if mailed, three days after the date of mailing, as
follows:
(i) If to Weeks:
Weeks Realty, L.P.
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Vice Chairman and Chief Investment Officer
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
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(ii) If to Lichtin:
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Two Hanover Square
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxx, Esq.
Section 7.03. Entire Agreement. This Agreement and the Transaction
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Documents (as defined in the Second Amendment to the Second Amended and Restated
Agreement of Limited Partnership of Weeks Realty, L.P. dated as of the date
hereof) constitute the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior contracts, agreements
undertakings and understandings, express or implied, written or oral, between
the parties, or any of them, with respect to the subject matter hereof and,
except as otherwise expressly provided herein, is not intended to confer upon
any other person any rights or remedies hereunder.
Section 7.04. Waivers and Amendments. This Agreement may be amended,
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modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties hereto.
Section 7.05. Governing Law. This Agreement shall be governed by, and
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construed and enforce in accordance with and subject to, the laws of the State
of North Carolina, without regard to principles of conflicts of law.
Section 7.06. Binding Effect; Benefit. This Agreement shall inure to the
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benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 7.07. No Assignment. This Agreement is not assignable (by
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of law or otherwise) without the prior written consent of the other party.
Section 7.08. Counterparts . This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and same instrument.
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Section 7.09. Headings. The headings in this Agreement are for reference
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purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXX X. XXXXXXX
___________________________
WEEKS REALTY, L.P., a Georgia limited
partnership authorized to do business in the
State of North Carolina as Weeks Realty Limited
Partnership
By: Weeks GP Holdings, Inc.
a Georgia corporation, its
Sole General Partner
By: ______________________
Name:
Title:
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SCHEDULE 4.04
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On December 12, 1996, Gwinco-Xxxx Joint Venture, a Georgia partnership,
filed a complaint in the Superior Court of Gwinnett County. The complaint names
Weeks Horizon Corporation and the Company as defendants. The action stems from
the development of property in Gwinnett County, Georgia, known as the Horizon
Industrial Park. Gwinco-Xxxx alleges breaches of fiduciary duty for an alleged
failure to consummate sales with ready, willing and able buyers, and seeks $17.2
million in damages, an unknown amount of profits to be disgorged, and $10
million in punitive damages. The Company intends vigorously to contest the
claims asserted in the complaint.
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