SETTLEMENT AGREEMENT AND MUTUAL RELEASE
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This Release, entered into and delivered by Weeks Corporation, a Georgia
corporation, and its affiliated and related companies listed in Attachment I
(all of the foregoing are hereinafter collectively referred to as "Releasees"),
on the one hand, and Xxxxxx X. Xxxxxxx, a North Carolina resident (hereinafter
referred to as "Employee"), on the other hand, as of December 30, 1997,
effective as of October 1, 1997.
W I T N E S S E T H:
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For and in consideration of the covenants and agreements set forth in this
Release and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this Release agree as follows:
COVENANTS OF RELEASEES:
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1. Consulting Agreement. Releasees agree to execute and enter into a
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consulting agreement with Employee on such terms and conditions as are set forth
in the Consulting Agreement (the "Consulting Agreement") attached hereto as
Exhibit A.
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2. Stock Options. Releasees agree that the options granted to Employee as
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of December 31, 1996, to purchase 40,000 shares of Weeks Corporation common
stock shall remain fully vested and exercisable for so long as Employee
continues to serve as a member of the Board of Directors of Weeks Corporation
and shall be governed by such terms and conditions as are set forth in the
Amended and Restated Option Certificate attached hereto as Exhibit B.
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3. References and Announcements. The parties agree that neither party
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shall defame, disparage, or malign the other. The parties agree to direct all
requests for references concerning Employee to Mr. A. Xxx Xxxxx, Xx.
4. Non-Employee Director Compensation. Releasees agree that if Employee
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shall cease to be engaged by Weeks Corporation pursuant to the Consulting
Agreement and Employee is still a member of the Board of Directors of Weeks
Corporation, Employee shall be entitled to continue to receive the same
compensation which is made available to other non-employee directors of Weeks
Corporation during the remainder of his service on the Board of Directors of
Weeks Corporation.
5. Release and Covenant Not to Assert Claims. Releasees for themselves,
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their subsidiaries, affiliates, successors in interest and assigns do hereby
unconditionally, absolutely and irrevocably waive, release and forever discharge
and covenant not to xxx (or request arbitration in any court or other tribunal)
the Employee from any and all claims, demands, actions, causes of action of any
kind or nature, whether past or present, known or unknown, arising up to the
date of this Release from or in any way related to Employee's employment,
termination of employment or in any other way involving Employee, except any
fraudulent or "wilful misconduct" by Employee; provided, however, that Releasees
do not release Employee from any claims, demands, actions, causes of action of
any kind or nature, whether past or present, known or unknown, contingent or
incurred, arising up to or after the date of this Release under those agreements
set forth on Attachment II; and, provided further, that Employee does not waive
any of his defenses to the foregoing claims, demands or actions. For purposes
of this Release, "wilful misconduct" shall mean any volitional, intentional or
deliberate actions taken by Employee which involve illegality, violation of law,
discrimination, moral turpitude or other similar actions.
COVENANTS OF EMPLOYEE:
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6. Resignation. Employee agrees that he has voluntarily resigned as of
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the date hereof ("Resignation Date") as an officer and employee of Releasees, as
a member of the Investment Committee of Weeks Corporation and as a member of the
Chairman's Office of Weeks Corporation.
7. Release and Covenant Not to Assert Claims. Employee hereby
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knowingly and voluntarily releases and forever discharges and covenants not to
xxx (or request arbitration in any court or other tribunal) each and all of the
Releasees, including all officers, directors, employees, agents, and attorneys,
including those listed on Attachment I to this Release (also referred to in this
Release as "Releasees"), collectively and severally, from any and all charges,
claims, allegations, causes of action and liability whatsoever, which might or
could have been filed in any state or federal court or with any administrative
agency or commission, whether known or unknown, suspected or unsuspected,
including any claim arising under the Age Discrimination in Employment Act of
1967 ("ADEA"), 29 U.S.C. (S)621, et seq., the Employee Retirement Income
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Security Act of 1974, as amended, and any other federal or state statute or
regulation, for any and all legal and equitable remedies, relief, and results,
including but not limited to salary, benefits, allowances, back pay, front pay,
liquidated damages, punitive damages, compensatory damages, tort damages,
contract damages, interest, restitution, attorneys' fees, expenses, costs,
declaratory judgments, injunctive relief, hiring, employment, reemployment,
recall, and reinstatement; provided, however, that Employee does not release
Releasees from any claims, demands, actions, causes of action of any kind or
nature, whether past or present, known or unknown, contingent or incurred,
arising up to or after the date of this Release (i) under those agreements set
forth on Attachment II, and (ii) under the 401(k) Plan maintained by Releasees;
and, provided further, that Releasees do not waive any of their defenses to the
foregoing claims, demands and actions. Employee also does not hereby waive any
rights or claims under the ADEA that may arise after the date this Release is
executed. In the event Employee institutes or is a party to any charge, claim,
allegation or cause of action with respect to a released claim, the same will be
dismissed immediately upon presentation of this Release.
8. Joint and Several Release. Employee understands and agrees that the
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term "Releasees" as used in this Release shall be deemed to mean and have
reference collectively, separately, and severally to each and all of the
entities and persons defined as Releasees.
9. Release of Claims. Employee understands and agrees that this Release
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constitutes a complete, final, and binding settlement, release and covenant not
to xxx with respect to all claims he has against Releasees, including but not
limited to all claims arising out of any oral or written contracts, agreements,
partnerships, joint ventures, or employment relationships, currently in force,
contemplated, or concluded between Employee and Releasees (including any
officers, directors or employees of Releasees); provided, however, that Employee
does not release Releasees from any claims, demands, actions, causes of action
of any kind or nature, whether past or present, known or unknown, contingent or
incurred, arising up to or after the date of this Release under those agreements
set forth on Attachment II; and, provided further, that Releasees do not waive
any of their defenses to the foregoing claims, demands and actions.
10. No Coercion. Employee acknowledges he has had an opportunity to
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consult with his own attorney, and Employee acknowledges and agrees that he
executed this Release knowingly and voluntarily and not as the result of duress,
coercion, or mistake of law or fact.
11. Covenant Not to Assist Others Pursuing Claims. Employee covenants
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that he will not affirmatively counsel or assist others in the prosecution of
claims against Releasees (which have been released pursuant to the terms of this
Release) whether on behalf of himself or others; although Employee may provide
truthful testimony in response to a valid subpoena.
12. ADEA Waiver. Employee hereby acknowledges and represents that he has
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had the opportunity to take a period of at least twenty-one (21) days to
consider the terms of this Release; Releasees have advised Employee in writing
to consult with an attorney prior to executing this Release; Employee has had an
opportunity to seek the advice of an attorney of his choosing prior to executing
this Release; and Employee has received good and valuable consideration to which
he is otherwise not entitled in exchange for his execution of this Release,
including, without limitation, the agreements and accommodations provided for in
Sections 1 and 2 of this Release.
13. Revocation Period. Employee and Releasees hereby acknowledge that
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Employee may revoke this Release within seven (7) days from the date of the
execution of this Release, and that this Release shall not become effective or
enforceable until the eighth day after the Release has been executed, or January
6, 1997 ("Effective Date"). In the event Employee chooses to exercise his
option to revoke this Release, Employee shall deliver a written revocation
notice to A. Xxx Xxxxx, Xx., Weeks Corporation, 0000 Xxxx Xxxxx, Xxxxxxxx,
Xxxxxxx 00000 (Fax No. 770/000-0000) which must be received no later than 5:00
pm. on the day before the Effective Date.
14. All Claims Waived. Employee understands and agrees that the
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agreements and accommodations provided for in Sections 1 and 2 of this Release
include and encompass therein any and all claims with respect to attorneys'
fees, costs, and expenses for or by any and all attorneys who have represented
him, with whom he has consulted, or who have done anything in connection with
the subject matter of this Release or any and all claims released herein.
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15. Agreement to Cooperate. Employee agrees that he will provide
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reasonable cooperation to and assist Releasees as reasonably requested so long
as he is receiving payments pursuant to the Consulting Agreement regarding
business matters as to which he has knowledge, including providing timely
assistance in response to questions regarding projects and matters in which he
was involved and documents and reports he created.
16. Understanding; Consultation with Attorney. Employee hereby covenants
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and agrees that he has read and fully understands the contents and the effect of
this Release. Employee warrants and agrees that he has had an opportunity to
seek the advice of his own attorney as to such content and effect and to have
the terms of the Release explained to him by an attorney. Employee accepts each
and all of the terms, provisions, and conditions of this Release, and does so
voluntarily and with full knowledge and understanding of the contents, nature,
and effect of this Release.
MUTUAL COVENANTS:
----------------
17. Amendments to Noncompetition Agreement. Each of Employee and the
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Releasees which are parties to that certain Noncompetition Agreement dated as of
December 31, 1996 (the "Noncompetition Agreement"), a copy of which is attached
hereto as Exhibit C, hereby agree to the following amendments and modifications
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to the Noncompetition Agreement:
(a) Each and every reference in the Noncompetition Agreement to
"Executive" is hereby deleted and replaced with "Consultant".
(b) Section 1 of the Noncompetition Agreement is hereby amended by
adding the following definition immediately after the defined term
"Company":
"Consulting Agreement" shall mean the Consulting Agreement, of even
date herewith, between Consultant and Weeks Corporation.
(c) Section 1 of the Noncompetition Agreement is hereby amended by
deleting the definition of "Managerial Responsibilities" in its entirety
and replacing it with the following:
"Managerial Responsibilities" means managerial and supervisory
responsibilities and duties of the kind contemplated by the Consulting
Agreement, the Employment Agreement or otherwise substantially similar
to those that Consultant has performed for the Company at any time
during his employment by the Company or, in the event that
Consultant's engagement by the Company is terminated, within two years
immediately prior thereto.
(d) Section 1 of the Noncompetition Agreement is hereby amended by
deleting the definition of "Restricted Period" in its entirety and
replacing it with the following:
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"Restricted Period" means from the Effective Date until the later of
(a) December 31, 1999 or (b) one year following the end of
Consultant's engagement by the Company, subject to the provisions of
Section 4 hereof.
(e) Section 3(d) of the Noncompetition Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
(d) At the termination of Consultant's engagement under the
Consulting Agreement, Consultant shall return to the Company all
documentation and other tangible materials in his possession
containing the Company's Trade Secrets or Confidential Information.
(f) Section 4 of the Noncompetition Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
4. Adjustments to Restricted Period. If Consultant's engagement
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under the Consulting Agreement is terminated and such termination is a
No Cause Termination or an Employee-Initiated Termination (as defined
in the Consulting Agreement), the Restricted Period shall continue
until what would have been (absent such termination) the end of
Consultant's then current term of engagement under such Consulting
Agreement.
(g) Section 6 of the Noncompetition Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
6. Restrictions In Addition to Consulting Agreement. Consultant
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acknowledges that the restrictions, prohibitions and other provisions
hereof shall be in addition to and not in substitution of the
restrictions, prohibitions and other provisions of the Consulting
Agreement, as such agreement shall be amended and supplemented from
time to time.
(h) Section 9 of the Noncompetition Agreement is hereby amended by
adding the following provision immediately after Section 9(j):
(k) Each of the parties hereto agrees that each and every
reference in this Agreement to "employment by the Company" shall be
deemed to include within its coverage both employment by the Company
pursuant to the Employment Agreement and engagement by the Company
pursuant to the Consulting Agreement.
(i) Schedule A to the Noncompetition Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
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Consultant will be permitted to continue to (i) serve as an officer
and director of Lichtin, Inc., the general partner of the Xxxxxx X.
Xxxxxxx Family Limited Partnership, the purposes for which are limited
to investment activities, (ii) serve as an officer and director of
First Class Child Development Center, Inc., and (iii) develop an
approximately 40,000 square foot office building on the site located
on Xxxxxxx Mill Road, Raleigh, North Carolina.
18. Waiver Valid Notwithstanding Discovery of New Facts. Employee and
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Releasees further acknowledge that they may hereafter discover facts different
from or in addition to those which they now know or believe to be true with
respect to the potential claims released by each other and they agree that, in
such event, this Release shall nevertheless be and remain effective in all
respects, notwithstanding such different or additional facts, or the discovery
thereof.
19. Agreement to Hold Harmless. Employee and Releasees agree and covenant
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that, in the event this Release is breached by either party, the breaching party
agrees to hold the nonbreaching party harmless, subject, in each case, to the
arbitration provisions contained in Section 26 hereof.
20. No Liability and Confidentiality. Employee and Releasees acknowledge
--------------------------------
and recognize that the terms set forth in this Release are based on their mutual
desire to resolve certain claims, contentions, and causes of action without the
time and expense of contested litigation and the terms of this Release are in no
way an admission or implication of any wrongdoing by either party. Accordingly,
Employee and Releasees agree not to disclose any information whatsoever
regarding either the substance or existence of any claims governed by the
Release, or to disclose the existence or terms of the Release to anyone,
including but not limited to any news media, other than his immediate family and
legal and tax advisors, unless compelled to do so by a valid subpoena or
government tax audit. Releasees further agree to provide Employee with copies
of all press releases or other public announcements made with respect to
Employee's termination of employment. If Employee or Releasees are subpoenaed
or audited regarding this Release or Employee's employment with any of the
Releasees, Employee and Releasees agree to give the other immediate written
notice of the same. Employee shall provide such written notice to A. R. Weeks,
Jr., or his successor.
21. Construction. Each party has reviewed this Release, and, accordingly,
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agrees that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party will not be employed in any
interpretation of this Release.
22. Choice of Law and Jurisdiction. The parties mutually agree and
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stipulate that this Release, and other documents incorporated by reference
herein, including their validity and interpretation, shall be governed by the
law of North Carolina.
23. Attorneys' Fees and Costs. Except as expressly provided in this
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Release, each party will bear his or its own attorneys' fees and costs.
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24. Severability. In the event any provision of this Release should
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be held to be unenforceable, each and all of the other provisions of this
Release shall remain in full force and effect.
25. No Assignment. Employee represents and warrants that he has not
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heretofore assigned or transferred or purported to assign or transfer to any
person or entity not a signatory to this Release any claim or matter herein
released, disclaimed, discharged or terminated. In the event of such assignment
or transfer of any claims or other matters herein released, discharged,
terminated or disclaimed herein, Employee agrees to indemnify and hold harmless
Releasees from and against any liability or loss, and for any cost or expense,
including attorneys' fees, or judgment or settlement arising out of or
occasioned by any such assignment or transfer.
26. Arbitration. If a dispute arises between the parties, then the parties
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agree that their respective representatives shall meet and consult in good faith
and attempt to settle the dispute, within thirty (30) days of written notice
thereof, as a condition precedent to the initiation of arbitration proceedings
as set forth below.
Any dispute, controversy, or claim arising out of or relating to this
Release or the breach, termination or invalidity thereof, including claims of
tortious interference or other tort or statutory claims, and including without
limitation any dispute concerning the scope of this arbitration clause, shall be
settled by arbitration in accordance with the Employment Dispute Arbitration
Rules of the American Arbitrators Association then in effect. The judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitration under this Release shall be held in
Raleigh, North Carolina, or at such other place as may be selected by mutual
agreement of the parties.
The arbitrator shall be mutually acceptable to the parties, or failing
agreement, selected pursuant to the Employment Dispute Arbitration Rules of the
American Arbitrators Association. The parties intend that the arbitrator shall
be independent and impartial. To this end, the arbitrator shall disclose to the
parties any professional, family, or social relationships, past or present, with
any party or counsel.
Strict rules of evidence shall not apply in any arbitration conducted
pursuant to this Release. The parties may offer such evidence as they desire
and the arbitrator shall accept such evidence as the arbitrator deems relevant
to the issues and accord it such weight as the arbitrator deems appropriate.
The arbitrator shall have the discretion to order a prehearing exchange of
information by the parties, including without limitation, production of
requested documents, exchange of summaries of testimony of proposed witnesses,
and examination by deposition of parties. No party shall be allowed, however,
to take more than one deposition of the opposing party and no deposition shall
last longer than six (6) hours. All disputes regarding discovery shall be
decided by the arbitrator.
The arbitrator award shall be in writing and shall specify the factual and
legal bases for the award. In rendering the award, the arbitrator shall
determine the respective rights and obligations of the parties according to the
laws of the State of North Carolina or, if applicable, federal law. The
arbitrator shall have the authority to award any remedy or relief that a federal
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or state court within the State of North Carolina could order or grant.
Any provisional remedy that would be available from a court of law shall be
available from the arbitrator to the parties, pending the arbitrator's
determination of the merits of the parties' dispute. This shall include orders
of attachment, temporary restraining orders, injunctions, and appointment of a
receiver. If the arbitrator issues such an order, either party may immediately
apply to a court of competent jurisdiction for enforcement of the order, even
though the arbitrator may not have rendered a final award.
All fees and expenses of the arbitration, including the fees of the
arbitrator and the expense of each parties' counsel, experts, witnesses and
preparation and presentation of proofs, shall be paid by Releasees.
Unless legally required to do so, neither party may disclose the existence,
content, or results of any arbitration under this Release without the prior
written consent of the other party, nor may the arbitrator disclose any such
information without the consent of both parties. This provision shall apply to
all aspects of the arbitration proceeding, including without limitation,
discovery, testimony, other evidence, briefs, and the award.
It is the specific intent of the parties that this arbitration clause be
governed by the Federal Arbitration Act, 9 U.S.C. Section 1 et. seq. ("FAA");
however, if this cause is unenforceable for any reason under the FAA, then the
parties intend that it be governed by the provisions of the Uniform Arbitration
Act, N.C. Gen. Stat. (SS) 1-567.1 through 1-567.20.
Both Employee and Releasees represent and warrant they have read the
foregoing Section 26, that they have had an opportunity to consult with and
receive advice from legal counsel regarding the foregoing Section 26, and that
they hereby forever waive all rights to assert that this Section 26 was the
result of duress, coercion, or mistake of law or fact.
_____ _____ (Initial of both parties in each space).
27. Whole Agreement. This Release and the Attachments and Exhibits
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annexed hereto constitute a single integrated contract expressing the entire
agreement of the parties hereto. There are no agreements, written or oral,
express or implied, between the parties hereto, concerning the subject matter
hereof, except the agreements set forth in this Release. Employee hereby agrees
that he has not relied on any representations, promises, or agreements of any
kind made to Employee in connection with this Release except those expressly set
forth in this Release.
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GIVEN under my hand and seal on this ______ day of December, 1997.
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XXXXXX X. XXXXXXX
WEEKS CORPORATION
By:
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Name:
Title:
SOLELY TO EVIDENCE ITS AGREEMENT
TO SECTION 17 HEREOF:
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.,
General Partner
By:
---------------------------------
Name:
Title:
WEEKS REALTY SERVICES, INC.
By:
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Name:
Title:
WEEKS CONSTRUCTION SERVICES, INC.
By:
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Name:
Title:
WEEKS LP HOLDINGS, INC.
By:
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Name:
Title:
WEEKS GP HOLDINGS, INC.
By:
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Name:
Title:
VERIFICATION
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Before me, the undersigned Notary Public, personally appeared XXXXXX X.
XXXXXXX, who being known to me to be the said Employee and who by me being first
duly sworn, deposes and says under oath that he has read the aforesaid Release;
he is hereby signing such Release in my presence; and he has acknowledged to me
before signing the same that he fully understands the terms, provisions, and
conditions of such Release and voluntarily agrees and accepts such terms,
provisions, and conditions.
Sworn to and subscribed before me, this ___ day of December, 1997.
Sworn to and subscribed before me
this ___ day of December, 1997.
Notary Public
My commission expires:__________________
ATTACHMENT I
Entities
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Weeks Corporation
Weeks GP Holdings, Inc.
Weeks LP Holdings, Inc.
Weeks Realty, L.P.
Weeks Construction Services, Inc.
Weeks Realty Services, Inc.
Weeks Development Partnership
Weeks Financing Limited Partnership
Weeks Tradeport Limited Partnership
Weeks Special Purpose, LLC
Weeks SPV Financing, LLC
Weeks NC Financing Limited Partnership
Weeks Highland Oaks Limited Partnership
Weeks/Skyland Joint Venture, L.P.
