SECOND AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WEEKS REALTY, L.P.
THIS SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WEEKS REALTY, L.P. is entered into as of the 31st day of
December, 1996, by and among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual resident of North
Carolina, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual resident of North Carolina, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an individual resident of Texas, ▇▇▇ ▇. ▇▇▇▇▇▇, an
individual resident of Texas, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual resident of
Texas, and PERIMETER PARK WEST ASSOCIATES LIMITED PARTNERSHIP, a North Carolina
limited partnership (▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and Perimeter Park West Associates
Limited Partnership are collectively referred to hereafter as the "Contributors"
and "Contributor" shall hereafter mean any one of the Contributors, WEEKS GP
HOLDINGS, INC., a Georgia corporation (the "General Partner"), and WEEKS
CORPORATION, a Georgia corporation (the "Company"). The Company is executing
and delivering this Second Amendment solely for purposes of paragraphs 8, 9, 10,
11 and 12 hereof and to confirm the Company's undertakings set forth in Exhibit
D hereto.
RECITALS
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Weeks Realty, L.P. (the "Partnership") is a Georgia limited partnership
authorized to do business in the State of North Carolina as Weeks Realty Limited
Partnership. The General Partner is the sole general partner of the Partnership
and is a wholly owned subsidiary of the Company. The partnership agreement of
the Partnership is that certain Second Amended and Restated Agreement of Limited
Partnership of Weeks Realty, L.P., dated as of October 30, 1996 (the
"Partnership Agreement") as amended by the First Amendment to the Partnership
Agreement dated November 1, 1996. Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Partnership
Agreement.
Pursuant to the agreements and instruments listed or referred to on Exhibit
A hereto (the ("Transaction Documents"), and the transactions effected by the
Transaction Documents, effective as of the date hereof the Contributors have
contributed, directly or indirectly, certain assets, properties and businesses
to the capital of the Partnership, including the Completed Properties which are
further described on Exhibit F hereto. The Contributors have 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.
Immediately following the issuance of Partnership Interests to the
Contributors, Perimeter Park West Associates Limited Partnership will distribute
a portion of its Partnership Interests to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, each of whom is a partner
therein, as reflected in Exhibit B hereto.
Pursuant to the Partnership Agreement (including, without limitation,
Section 9.3 and Section 15.7(b)(ii) thereof), the General Partner is authorized
(without the consent of any Limited Partner) to admit additional Limited
Partners to the Partnership for such Capital Contributions as are determined by
the General Partner to be appropriate, and to amend the Partnership Agreement to
reflect such admissions.
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The General Partner wishes to amend the Partnership Agreement as set forth
herein to reflect the admission of the Contributors as Limited Partners of the
Partnership, and the Contributors wish to enter into this Second 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. The Contributors are hereby admitted to the Partnership as
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Limited Partners, effective as of the date hereof, and each of the Contributors
hereby agrees to be bound by the Partnership Agreement, including, but not
limited to, the transfer restrictions contained in Article IX thereof.
2. Capital Contributions. The Contributors are agreed to have made, as of
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the date hereof, the Capital Contributions set forth on Exhibit B hereto. The
agreed to gross fair market values of any property other than money contributed
by each of the Contributors, which shall be such property's initial Gross Asset
Value, are shown on Exhibit B.
3. Initial Partnership Units; Rights.
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(a) The Partnership Units attributable to the Partnership Interests of
the Contributors, effective upon their admission as Limited Partners at the
date hereof, are as set forth on Exhibit B hereto, and the Partnership
Agreement is hereby amended to reflect the Contributors' having such
Partnership Units.
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(b) The Partnership does hereby grant to each of the Contributors, and
each of them does hereby accept, the right, but not the obligation (herein
such rights being sometimes referred to as the "Rights"), to require the
Partnership to redeem all or a portion of the Partnership Units issued to
them pursuant to the Transaction Documents, on the terms and subject to the
conditions and restrictions contained in Exhibit D hereto. The Rights are
governed solely by this Second Amendment and Exhibit D hereto, and none of
the Contributors shall have any rights with respect to the "Rights"
provided for in Section 11.1 and Exhibit B-1 to the Partnership Agreement.
The Rights granted hereunder may be exercised by any one or more of the
Contributors, on the terms and subject to the conditions and restrictions
contained in Exhibit D hereto, upon delivery to the Partnership of a
Conversion Exercise Notice, in the form of Schedule 1 attached to Exhibit
D, which notice shall specify the Partnership Units with respect to which
the Rights are being exercised. Once delivered, the Conversion Exercise
Notice shall be irrevocable, subject to compliance by the General Partner
and the Partnership with the terms of the Rights.
4. Restated Percentage Interests. After giving effect to the admission of
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the Contributors as Limited Partners at the date hereof, the Percentage
Interests of all of the Partners have been revised and are as reflected on
Exhibit C hereto, and the Partnership Agreement is hereby amended accordingly.
The parties acknowledge that Exhibit C reflects the distribution by Perimeter
Park West Associates Limited Partnership of a portion of its Partnership
Interests to certain of the Contributors who hold partnership interests in
Perimeter Park West Associates Limited Partnership.
5. Future Contributions. The parties acknowledge that, pursuant to and
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subject to the terms and conditions of the Transaction Documents, the
Contributors will make additional Capital Contributions. Concurrently with each
such additional Capital Contribution, the General Partner shall supplement this
Second Amendment by executing and attaching hereto supplements to Exhibits B and
C (which shall be captioned "Exhibit B-1," "Exhibit ▇-▇," "▇▇▇▇▇▇▇ ▇-▇,"
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"▇▇▇▇▇▇▇ ▇-▇," and so on and shall identify the Capital Contribution to which
each relates) that will, respectively, reflect (to the extent determinable at
such time) the Capital Contribution made by the Contributors at that time, the
initial Gross Asset Value of any property other than money included in such
Capital Contribution, the additional Partnership Units attributable to the
Partnership Interest associated with such Capital Contribution, and the
resulting restated Percentage Interests of all of the Partners. Such
supplements shall be in accordance with the terms of the Transaction Documents.
The Partnership Agreement shall be deemed to be amended as reflected in each
such supplement to this Second Amendment.
6. Adjustments to Partnership Units. The parties acknowledge that the
--------------------------------
Transaction Documents provide for adjustments to the Partnership Units of the
Contributors in certain circumstances, and further provide that the
Contributors' Partnership Interests 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 Second 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 Second
Amendment.
7. Proration of Distributions. Notwithstanding any contrary provision of
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the Partnership Agreement, including, without limitation, Section 6.2 thereof,
the Contributors agree that the distribution of Net Operating Cash Flow made for
the calendar quarter in which Partnership Units are issued by reason of each
Capital Contribution made pursuant to the Transaction Documents shall be equal
to the amount of Net Operating Cash Flow otherwise distributable with respect to
such 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
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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) Contributors' Representations. The Contributors hereby acknowledge
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that they have made and will make representations, warranties, covenants
and agreements with and to the Partnership, the General Partner and the
Company in the Transaction Documents, including, without limitation, that
certain Contribution Agreement for Completed Properties Lichtin Portfolio,
of even date herewith, between the Partnership and the Contributors; that
certain Contribution Agreement for Development Properties and Regency
Forest Land, of even date herewith, between the Partnership and the
Contributors; that certain Contribution Agreement for Northern Telecom
Properties, of even dated herewith, between the Partnership and the
Contributors; that certain Contribution Agreement (Perimeter Park West
Land) between the Partnership and the Contributors; and that certain
Contribution Agreement between the Partnership and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(collectively, the "Contribution Agreements"); and that certain Agreement
and Plan of Merger, of even date herewith, by and among the Company,
Lichtin Properties, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Merger Agreement").
(b) No Liens. The Contributors represent and warrant to the Partnership
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and the General Partner that at the date hereof none of the issued or
issuable to them pursuant to the Transaction Documents, and none of the
shares of Common Stock that may be acquired by them upon exercise of
Rights, is subject to any Lien, other than the security interest created by
paragraph 11 hereof.
(c) Definition. All of the representations, warranties, covenants and
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agreements of the Contributors referred to in this paragraph 8 are referred
to collectively as the "Representations and Warranties."
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(d) General Partner Representations. The General Partner represents and
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warrants to the Contributors 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 Second Amendment by the General
Partner have been duly and validly authorized by all necessary action
of the General Partner and the Partnership. This Second Amendment has
been duly executed and delivered by the General Partner and
constitutes a legal, valid and binding obligation of the General
Partner and the Partnership, enforceable against the General Partner
and the Partnership 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 Second Amendment, other
than consents, waivers, approvals or authorizations that have been
obtained prior to the date hereof.
(iv) The issued and 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
nonassessable and will be unencumbered except for the security
interest created by paragraph 11 hereof.
9. Survival of Representations and Warranties. All of the Representations
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and Warranties shall survive the consummation of the transactions contemplated
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by the Transaction Documents; provided, however, that no claim for a breach of
any Representation or Warranty may be maintained by the Partnership, the General
Partner or the Company unless the General Partner or the Company shall have
delivered a written notice ("Notice of Breach") specifying the details of such
claimed breach to the Contributors on or before the third anniversary of the
date hereof (the "Survival Period"); provided further, however, that (i) with
respect to a claim for a breach of any Representation or Warranty relating to
any property contributed to the Partnership subsequent to the date hereof as
contemplated under paragraph 5 of this Second Amendment, the Survival Period
shall extend until the later of (A) the third anniversary of the date hereof or
(B) the first anniversary of the date on which such property is contributed to
the Partnership, (ii) with respect to a claim for a breach of any Representation
or Warranty made by the Lichtin Parties (as defined in the Merger Agreement) in
the Merger Agreement (other than any Representation or Warranty set forth in
Sections 2.11 or 2.12 of the Merger Agreement), the Survival Period shall extend
until the last day of the Survival Period provided under clause (i) above
relating to the last property contribution made to the Partnership pursuant to
the Transaction Documents, and (iii) with respect to a claim for a breach of any
Representation or Warranty set forth in Sections 2.11 or 2.12 of the Merger
Agreement, the Survival Period shall be indefinite.
10. Indemnification.
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(a) The Contributors, jointly and severally, indemnify and hold
harmless the Partnership, the General Partner and the Company 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,
the General Partner or the Company as a result of or arising out of any
inaccuracy in or breach of a Representation or Warranty.
(b) The Partnership, the General Partner and the Company shall not be
entitled to indemnification hereunder unless a Notice of Breach has been
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delivered by the Partnership, the General Partner or the Company to the
Contributors within the time period specified in paragraph 9 hereof.
(c) Subject to the further provisions hereof (including subparagraph
(f) of this paragraph 10), the Contributors shall not be liable under this
paragraph 10 unless and until the total amount recoverable from the
Contributors under this paragraph 10 exceeds, in the aggregate, $250,000;
provided, however, that if the Contributors' obligation under this
paragraph 10 exceeds, in the aggregate, such limit, their obligation under
this paragraph 10 shall be for the full amount of such obligation, subject,
however, in all respects to the limitations set forth in paragraph 11
hereof.
(d) If a claim for indemnification is asserted by the Partnership, the
General Partner or the Company against the Contributors, the Contributors
shall have the right, at their own expense, to participate in the defense
of any claim, action or proceeding asserted against the Partnership, the
General Partner or the Company 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) Subject to subparagraph (f) of this paragraph 10 and subparagraph
(b) of paragraph 12 hereof, indemnification of the Partnership, the General
Partner and the Company 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, the General Partner and the Company for any
breach of any Representation or Warranty, and the only legal action that
may be asserted against the Contributors 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
Agreements, including, without limitation, the remedy of specific
performance for any failure by any of the Contributors to contribute a
Development Property, a Northern Telecom Property or land pursuant to the
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Contribution Agreements, or otherwise limit any remedy the Partnership may
have for any commission of fraud made by any of the Contributors.
(f) Notwithstanding any other provision of this Second Amendment to
the contrary, the limitations set forth in subparagraphs (c) and (e) of
this paragraph 10 shall not apply to a claim for a breach of any
Representation or Warranty set forth in Sections 2.11 and 2.12 of the
Merger Agreement.
11. Security and Remedies.
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(a) Each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇") hereby grants to the Partnership a lien upon and a
continuing security interest in 97,129 and 62,361, respectively, of the
Partnership Units issued to each of them pursuant to the Transaction
Documents at the date hereof (including the Partnership Units issued to
each of them pursuant to the distribution made by Perimeter Park West
Associates Limited Partnership described in paragraph 4 hereof) and the
shares of Common Stock acquired by them upon exercise of Rights with
respect to such Partnership Units (the "Collateral"), which shall be
security for the indemnification obligations of the Contributors under
paragraph 10 hereof. At the time of each Capital Contribution pursuant to
the Contribution Agreements, the number of shares of Common Stock and
Partnership Units constituting the Collateral shall be increased
proportionally between Lichtin and ▇▇▇▇▇▇▇▇▇ in the same ratio as the
Collateral is allocated between them in the preceding sentence (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 E 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
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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
Lichtin or ▇▇▇▇▇▇▇▇▇), 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 (proportionally
between Lichtin and ▇▇▇▇▇▇▇▇▇ as provided above) 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 Lichtin or ▇▇▇▇▇▇▇▇▇), and,
in the case of shares of Common Stock, on the Current Per Share Market
Price at such time) is equal to the sum of (i) $5,000,000 plus (ii) all
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amounts previously taken into account from Exhibit E (the "Aggregate
Maximum Liability"); provided, however, that in no event shall the
aggregate amount of the Collateral at any time exceed one-half of the total
number of shares of Common Stock and Partnership Units that all of the
Contributors own at that time. To the maximum extent possible under the
terms hereof, the Collateral shall consist of Partnership Units, rather
than shares of Common Stock. Except as otherwise provided in this Second
Amendment, the joint and several indemnification obligation of the
Contributors hereunder with respect to breaches of Representations and
Warranties shall be payable out of, and only out of, the entire Collateral;
provided, however, that the Contributors may satisfy all or any part of any
indemnification obligation of the Contributors in cash if the Contributors
unanimously so elect (in which case the Collateral shall be reduced
(proportionally between Lichtin and ▇▇▇▇▇▇▇▇▇ as provided above) by the
amount of cash so paid in satisfaction of any such indemnification
obligation). Any Transfer by Lichtin or ▇▇▇▇▇▇▇▇▇ of their respective
portion of the Collateral shall be subject to the lien and security
interest granted hereby. Whenever the amount of Collateral hereunder is to
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be increased or decreased, each of the Partnership, Lichtin and ▇▇▇▇▇▇▇▇▇
will execute, deliver, record or file such documentation as may be
reasonably deemed necessary by the Partnership or Lichtin and ▇▇▇▇▇▇▇▇▇ to
effect the increase or decrease in such Collateral.
(b) In the event the General Partner or the Company asserts, within
the time period set forth in paragraph 9 hereof, that the Contributors have
an indemnification obligation to the Partnership, the General Partner or
the Company under paragraph 10 hereof, the General Partner or the Company,
as applicable, shall deliver written notice (the "Indemnification Notice")
to the Contributors describing in reasonable detail the circumstances
giving rise to such obligation and the amount thereof. If, within thirty
(30) days after the receipt of an Indemnification Notice, the Contributors
deliver written notice to the General Partner or the Company, as
applicable, indicating that the Contributors dispute the circumstances
giving rise to or the amount of such claimed indemnification obligation,
the General Partner or the Company, as applicable, 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 the Contributors
pursuant to such Article XIV. If, after receiving timely notice of a
dispute hereunder from the Contributors, the General Partner or the
Company, as applicable, fails to so submit the matter for arbitration
within twenty (20) days after receipt of such notice from the Contributors,
then the Contributors shall be relieved of the claimed indemnification
obligation described in the Indemnification Notice. In the event the
Contributors (i) receive an Indemnification Notice and fail to timely
deliver notice to the General Partner or the Company, as applicable, of
their dispute as to the indemnification obligation and fail to make payment
within thirty (30) days after delivery of an Indemnification Notice or (ii)
have an indemnification obligation to the Partnership, the General Partner
or the Company under paragraph 10 hereof as determined pursuant to Article
XIV of the Partnership Agreement, and do not satisfy such obligation within
ten (10) days after the decision rendered in the arbitration, then, in
either event, the Partnership or the Company, as applicable, shall have any
and all remedies of a secured creditor under the Uniform Commercial Code,
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and, in addition thereto, at the election of the Partnership or the
Company, as applicable, the Partnership or the Company, as applicable,
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
the Contributors, to have acquired from the Contributors 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 Lichtin or
▇▇▇▇▇▇▇▇▇), 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 the Contributors under
paragraph 10 hereof. In the event the Partnership or the Company shall have
acquired from Lichtin or ▇▇▇▇▇▇▇▇▇ any Collateral pursuant to this
paragraph 11, the General Partner shall deliver written notice to the
Contributors within ten (10) days thereafter identifying the specific
Collateral acquired and, if such Collateral consists of Partnership Units,
the Percentage Interests of the Contributors following such acquisition.
Unless and until the Partnership shall have acquired from Lichtin or
▇▇▇▇▇▇▇▇▇ any Collateral pursuant to this paragraph 11, Lichtin and
▇▇▇▇▇▇▇▇▇ 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. Lichtin and
▇▇▇▇▇▇▇▇▇ hereby agree 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 Second Amendment, including delivering
the certificates representing the Partnership Units or shares of Common
Stock to the General Partner. The lien and security interest provided for
by this paragraph 11 shall terminate on the first day following the
third anniversary of the date hereof; provided, however, that such lien and
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security interest imposed by this paragraph 11 shall be extended if there
has been delivered to the Contributors 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 this paragraph
11.
12. Non-Recourse.
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(a) Notwithstanding anything contained in this Second Amendment or in
the Partnership Agreement to the contrary, but subject to subparagraph (b)
of this paragraph 12, the sole recourse of the General Partner, the
Partnership or the Company under paragraph 10 hereof with respect to
breaches of Representations and Warranties shall be against the Collateral,
and the Contributors shall have no personal liability with respect thereto.
However, nothing contained herein shall limit any remedy the Partnership
may have under the Contribution Agreements, including, without limitation,
the remedy of specific performance for any failure by the Contributors to
contribute a Development Property, a Northern Telecom Property or land
pursuant to the Contribution Agreements, or otherwise limit any remedy the
Partnership may have for any commission of fraud made by any of the
Contributors.
(b) Notwithstanding anything contained in subparagraph (a) of this
paragraph 12 or paragraphs 10 or 11 of this Second Amendment to the
contrary, (i) the recourse of the Company and the personal liability of the
Contributors with respect to a claim for a breach of any Representation or
Warranty set forth in Sections 2.11 or 2.12 of the Merger Agreement shall
not be limited to the Collateral, and (ii) following the termination of the
lien and security interest provided for under paragraph 11 of this Second
Amendment, the Contributors shall remain liable under paragraph 10 of this
Second Amendment for any claim for a breach of (A) any Representation or
Warranty relating to any property contributed to the Partnership subsequent
to the date hereof as contemplated under paragraph 5 of this Second
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Amendment and (B) any Representation or Warranty contained in the Merger
Agreement (other than any Representation or Warranty set forth in Sections
2.11 or 2.12 of the Merger Agreement), in each case until the expiration of
the Survival Period applicable to a claim for a breach of any such
Representation or Warranty; provided, however, that the liability of the
Contributors under this clause (ii) shall be limited to the Aggregate
Maximum Liability (reduced by the amount of any cash previously paid or
Collateral previously acquired in satisfaction of any indemnification
obligation under paragraphs 10 and 11 hereof) as if such lien and security
interest had not terminated.
13. Restriction on Transfer. In connection with the security interest
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granted by Lichtin and ▇▇▇▇▇▇▇▇▇ under paragraph 11 hereof, each of Lichtin and
▇▇▇▇▇▇▇▇▇ agrees that any shares of Common Stock and any portion of Lichtin's
and ▇▇▇▇▇▇▇▇▇'▇ Partnership Interests 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 Lichtin or ▇▇▇▇▇▇▇▇▇ may
Transfer all or any portion of such shares of Common Stock or Partnership
Interests to an Affiliate of such person (so long as such Affiliate remains an
Affiliate of such person), 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 13 shall be extended with respect to Lichtin and ▇▇▇▇▇▇▇▇▇ if
there has been delivered to the Contributors 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, Lichtin and ▇▇▇▇▇▇▇▇▇ 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 13 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 Second Amendment in form and substance reasonably satisfactory to the
-15-
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
Lichtin and ▇▇▇▇▇▇▇▇▇ are relieved of the restrictions on transferability in
accordance with the terms of this paragraph 13, the security interest in the
Partnership Interests and Common Stock granted to the General Partner, the
Partnership and the Company pursuant to paragraph 11 hereof shall terminate
without further action, and the Partnership and the Company, at the request of
Lichtin or ▇▇▇▇▇▇▇▇▇, shall promptly execute and deliver any document or
instrument reasonably requested by Lichtin or ▇▇▇▇▇▇▇▇▇ 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; provided, however, that any such certificate shall be
returned to Lichtin and ▇▇▇▇▇▇▇▇▇ upon termination of the security interest in
accordance with the terms of this Second Amendment. If any portion of the
Partnership Interests of the Contributors included in the Collateral is
represented by certificates, the Partnership shall retain such certificates in
perfection of the security interest herein granted; provided, however, that any
such certificate shall be returned to Lichtin and ▇▇▇▇▇▇▇▇▇ upon termination of
the security interest in accordance with the terms of this Second Amendment.
14. Tax Considerations. During the five-year period commencing on the date
------------------
hereof, the General Partner agrees that (i) in the event it elects to cause the
Partnership to sell or otherwise convey any of the properties contributed to the
Partnership pursuant to this Second Amendment (each, a "Contributed Property"),
the General Partner will endeavor to structure any such sale or conveyance of a
Contributed Property as a tax-deferred like-kind exchange under section 1031 of
the Code to the extent such sale or conveyance would result in the recognition
of gain for federal income tax purposes by one or more of the Contributors, and
(ii) the General Partner will endeavor not to pay down or otherwise reduce
(other than through regularly scheduled payments of principal and interest) the
amount of nonrecourse indebtedness to which a Contributed Property is subject,
to the extent that such reduction would cause one or more of the Contributors to
-16-
recognize gain for federal income tax purposes. The foregoing sentence shall not
apply to gain recognized by a Contributor as a result of cash distributions made
by the Partnership in the ordinary course of its operations subsequent to any
such reduction in nonrecourse indebtedness. Notwithstanding the foregoing, the
General Partner shall have the right to sell Contributed Properties in one or
more transactions taxable in whole or in part, or to pay down or refinance
nonrecourse debt secured by a Contributed Property, if the General Partner
determines, in good faith, that such action is in the best economic interest of
the Partnership and the Partners (without taking into account the tax
consequences of such action on the Contributors), and, in such event, the
General Partner agrees to provide reasonable advance notice to the Contributors
of such actions and to cooperate with the Contributors in avoiding, to the
extent feasible, any substantial adverse federal income tax consequences to the
Contributors resulting from such actions (including, for example, by allowing
the Contributors to assume deficit capital account responsibility or by
facilitating guarantees of other Partnership nonrecourse indebtedness by the
Contributors).
15. Indemnification for Assumed Indebtedness. The Partnership shall, as
----------------------------------------
soon as practicable, pay and discharge in full the following loans assumed by
the Partnership in connection with the contribution of property to the
Partnership pursuant to the Transaction Documents: (i) First Union National
Bank of North Carolina ("FUNB") loan number 373894 having a pay-off as of the
date hereof of $2,651,532.87; (ii) FUNB loan number 394973 respecting building
1500 of Perimeter Park West having a pay-off as of the date hereof of
$6,276,323.50; (iii) FUNB loan number 416727 respecting Enterprise II having a
pay-off as of the date hereof of $5,877,783.81; and (iv) those liabilities set
forth in Schedule 1.03 to that certain Contribution Agreement of even date
herewith between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Partnership. The Partnership shall
indemnify and hold harmless each of the Contributors 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 any such Contributor as
a consequence of circumstances arising after the date hereof under any loan,
capitalized lease, credit line, or other indebtedness relating to any property
-17-
or asset contributed to the Partnership pursuant to any Transaction Document,
including, without limitation, any Existing Loan Document or Existing Loan
assumed by the Partnership pursuant to Section 7.1 of that certain Contribution
Agreement for Completed Properties Lichtin Portfolio of even date herewith among
the Partnership and the Contributors.
16. Miscellaneous. This Amendment shall be governed by and 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 the
Contributors 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 Second 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.
-18-
IN WITNESS WHEREOF, the parties have executed and delivered this Second
Amendment as of the date first above written.
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:
CONTRIBUTORS:
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: c/o First Rock, Inc.
1525 The ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-19-
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Address: c/o First Rock, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: c/o First Rock, Inc.
1525 The ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PERIMETER PARK WEST ASSOCIATES LIMITED
PARTNERSHIP
By:
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
By:
-------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Partner
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-20-
Solely for purposes of paragraphs 8, 9, 10,
11 and 12 and Exhibit D hereto:
WEEKS CORPORATION
By:
---------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
-21-
Exhibit A
---------
TRANSACTION DOCUMENTS
Exhibit B
---------
CAPITAL CONTRIBUTION:
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Capital Contribution: All assets, properties and businesses
transferred from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ at
December 31, 1996, to the Partnership
pursuant to the Transaction Documents
(as defined in the foregoing Second
Amendment)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ All assets, properties and businesses
Capital Contribution: transferred from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ at December 31, 1996, to
the Partnership pursuant to the
Transaction Documents (as defined in
the foregoing Second Amendment)
▇▇▇ ▇. ▇▇▇▇▇▇ Capital Contribution: All assets, properties and businesses
transferred from ▇▇▇ ▇. ▇▇▇▇▇▇ at
December 31, 1996, to the Partnership
pursuant to the Transaction Documents
(as defined in the foregoing Second
Amendment)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Capital Contribution: All assets, properties and businesses
transferred from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
at December 31, 1996, to the
Partnership pursuant to the
Transaction Documents (as defined in
the foregoing Second Amendment)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Capital Contribution: All assets, properties and
businesses transferred from ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ at December 31, 1996, to the
Partnership pursuant to the
Transaction Documents (as defined in
the foregoing Second Amendment)
Perimeter Park West Associates All assets, properties and businesses
Limited Partnership Contribution transferred from Perimeter Park West
Associates Limited Partnership at
December 31, 1996, to the Partnership
pursuant to the Transaction Documents
(as defined in the foregoing Second
Amendment)
B-1
GROSS FAIR MARKET VALUE OF PROPERTY CONTRIBUTIONS:
-------------------------------------------------
Gross Fair Market Value of all
property other than money included in
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Capital Contribution: $ 1,652,107.50/1/
Gross Fair Market Value of all
property other than money included in
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Capital
Contribution: 69,336.50/1/
Gross Fair Market Value of all
property other than money included in
▇▇▇ ▇. ▇▇▇▇▇▇ Capital Contribution: 0.00/1/
Gross Fair Market Value of all
property other than money included in
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Capital Contribution: 0.00/1/
Gross Fair Market Value of all
property other than money included in
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Capital Contribution: 31,007.00/1/
Gross Fair Market Value of all
property other than money included in
Perimeter Park West Associates
Limited Partnership Capital Contribution: 12,525,388.75/1/
---------------------
/1/Gross Fair Market Value of property contributed by each Contributor does
not reflect the value attributable to the Partnership Interests distributed
to certain partners of Perimeter Park West Associates Limited Partnership.
B-2
ALLOCATION OF PARTNERSHIP UNITS:
-------------------------------
Partnership Units Issued to Contributors:
----------------------------------------
Contributor No. of Units
----------- ------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 65,430
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 2,746
▇▇▇ ▇. ▇▇▇▇▇▇ -0-
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ -0-
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,228
Perimeter Park West Associates
Limited Partnership 496,055
Partnership Units Held Following Distribution by Perimeter Park West Associates
-------------------------------------------------------------------------------
Limited Partnership:
-------------------
Contributor No. of Units
----------- ------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 226,076
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 241,352
▇▇▇ ▇. ▇▇▇▇▇▇ 2,053
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,053
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,228
Perimeter Park West Associates
Limited Partnership 92,697
B-3
Exhibit C
---------
PARTNERSHIP UNITS/PERCENTAGE INTERESTS
All Partners
Partner Units Percentage Interest/1/
------- ----- ----------------------
Weeks GP Holdings, Inc. 237,503 1.282%
Weeks LP Holdings, Inc. 13,805,088 74.510%
NWI Warehouse Group, L.P. 1,332,261 7.191%
A. ▇▇▇ ▇▇▇▇▇, ▇▇. 774,685 4.181%
▇▇▇▇ ▇. ▇▇▇▇▇ 239,791 1.294%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 228,047 1.231%
Trust U/W/2/ 212,663 1.148%
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 206,607 1.115%
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 198,339 1.070%
Trust B/3/ 187,492 1.012%
Weeks Horizon Corp. 116,012 0.626%
Oakdale Land Management, Inc. 110,493 0.596%
Weeks Hillside Corp. 78,145 0.422%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 52,817 0.285%
Weeks Southridge Corp. 42,993 0.232%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 28,877 0.156%
▇▇▇▇▇ ▇. Weeks 27,535 0.149%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 20,016 0.108%
▇▇▇▇▇▇▇ & Company Real Estate, Inc. 20,000 0.108%
HV, Inc. 17,074 0.092%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 5,627 0.030%
▇▇▇▇ ▇. ▇▇▇▇▇▇ 5,627 0.030%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 5,138 0.028%
-------------------
/1/ Reflects distribution of a portion of the Partnership Units held by
Perimeter Park West Associates Limited Partnership to certain of its partners.
/2/ A. R. Weeks, Jr., as Trustee U/W of ▇▇▇▇▇ ▇▇▇ Weeks dated March 1,
1983, f/b/o ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, A. R. Weeks, Jr., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇.
/3/ ▇▇▇▇▇ ▇. Weeks, A. R. Weeks, Jr., and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Weeks as
Trustees under Trust Agreement dated 10/27/76, as amended, f/b/o ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, A. R. Weeks, Jr., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇.
C-1
Partner Units Percentage Interest/1/
------- ----- ----------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,110 0.022%
▇▇▇▇▇ ▇. ▇▇▇▇▇ 2,442 0.013%
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,541 0.008%
Weeks Management Corp. 1,142 0.006%
RTF Management Corp. 257 0.001%
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 241,352 1.303%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 226,076 1.220%
Perimeter Park West Associates
Limited Partnership 92,697 0.500%
▇▇▇ ▇. ▇▇▇▇▇▇ 2,053 0.011%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,053 0.011%
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,228 0.007%
Total __________ ________
18,527,781 100.000%
========== ========
C-2
Exhibit D
---------
RIGHTS TERMS
------------
The Rights granted by the Partnership to the Contributors (referred to
in this Exhibit as "Limited Partners"), pursuant to paragraph 3(b) of the
foregoing Second Amendment shall be subject to the following terms and
conditions:
1. Definitions. Capitalized terms used in this Exhibit without
-----------
definition shall have the meanings given to them in the Partnership Agreement or
the foregoing Second Amendment, as applicable, and the following terms and
phrases shall, for purposes of this Exhibit D, the Partnership Agreement and the
foregoing Second Amendment, have the meanings set forth below:
"Cash Purchase Price" shall have the meaning set forth in Paragraph 4
-------------------
hereof.
"Closing Notice" shall mean the written notice to be given by the
--------------
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
----------------
Notice is delivered to the General Partner.
"Conversion Exercise Notice" shall have the meaning set forth in
--------------------------
Paragraph 2 hereof.
"Conversion Factor" shall mean 100%, provided that such factor shall
-----------------
be adjusted in accordance with the provisions of paragraph 10 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended, or any successor statute.
"Exercising Partners" shall have the meaning set forth in Paragraph 2
-------------------
hereof.
"Offered Partnership Units" shall mean the Partnership Units of the
-------------------------
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.
"Redemption Price" shall mean the Cash Purchase Price or the Stock
----------------
Purchase Price.
"Rights" shall have the meaning set forth in paragraph 3(b) of the
------
foregoing Second 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.
2. 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.
3. Limitations on Exercise of Rights; Deemed Exercise.
--------------------------------------------------
(a) No Conversion Exercise Notice, with respect to any Unit
(except for those Units described in the immediately following
subparagraph (b)), may be delivered to the General Partner by a
Limited Partner until the later of (i) the date which is the later of
(A) one year following the issuance of the last Units which are issued
with respect to the Development Properties or the Northern Telecom
Properties or (B) the third anniversary of the date hereof, 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.
(b) With respect to Units issued in exchange for Perimeter Park
West, Metro Center and Perimeter Park Land, no Conversion Exercise
Notice may be delivered to the General Partner by a Limited Partner
until the later of (i) the date which is the later of (A) one year
following the closing date for the acquisition of such Perimeter Park
West, Metro Center and Perimeter Park Land or (B) the expiration of
the last lock-up period described in Paragraph 3(a)(i) above, 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
-2-
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.
(c) 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.
(d) Neither the General Partner nor the Partnership shall have
any obligation or authority to redeem or purchase Offered Partnership
Units to the extent that 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 stock ownership test of Section 856(a)(6) of
the Code, or (iii) would otherwise cause Weeks to fail to qualify as a
REIT; provided that in any such case, the General Partner or the
Partnership shall purchase for cash those offered Partnership Units
which may not be redeemed with shares of Common Stock. 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.
(e) If, after complying with all applicable provisions of the
Partnership Agreement, any Person with an ownership interest in any of
the Contributors becomes the owner of any Partnership Units previously
owned by the any of the Contributors, such Person may exercise the
Rights granted with respect to such Partnership Units in accordance
with the terms hereof.
4. 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
-3-
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.
5. 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 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 ▇▇▇▇-▇▇▇▇▇ 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.
6. 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; provided,
however, that the Partnership shall remain liable to the Exercising Partner to
the extent that any such Exercising Partner's Right is not fully satisfied; 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
-4-
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.
7. 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.
8. 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.
9. 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.
-5-
10. 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.
(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, 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 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
-6-
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, absent manifest error by the General Partner in taking such
action.
11. 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 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.
12. 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.
13. 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
-7-
(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 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.
14. 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
(which shall be at least as long as the period for which the Rights can be
exercised under the other provisions of this Agreement), 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
-8-
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.
-9-
SCHEDULE 1
CONVERSION EXERCISE NOTICE
--------------------------
To: Weeks Realty, L.P.
Reference is made to that certain Second Amendment (the "Second 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 Second Amendment. Pursuant to Exhibit D to
the Second 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:
----------------------------------
SCHEDULE 2
CLOSING NOTICE
--------------
To: Exercising Limited Partner(s)
Reference is made to that certain Second Amendment (the "Second
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 Second Amendment. The
closing of the redemption of the Offered Partnership Units shall occur at
, , Georgia, on . Pursuant to Exhibit D to the Second
------- -------- -----------
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:
---------------------------------------
Exhibit E
---------
Amount by which the value (determined as provided in the foregoing Second
Amendment) of the Collateral is to be increased upon the contribution of each
Development Property and each Northern Telecom Property:
Woodlake III $200,000
Regency - Sprint $200,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ $200,000
Enterprise III $200,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ $200,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ $200,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ $200,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ $200,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ $200,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ $200,000