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ACQUISITION ADVISORY AGREEMENT

Asset Purchase Agreement

ACQUISITION ADVISORY AGREEMENT | Document Parties: WELLS CAPITAL, INC.,  | WELLS REAL ESTATE INVESTMENT TRUST, INC., You are currently viewing:
This Asset Purchase Agreement involves

WELLS CAPITAL, INC., | WELLS REAL ESTATE INVESTMENT TRUST, INC.,

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Title: ACQUISITION ADVISORY AGREEMENT
Governing Law: Georgia     Date: 3/15/2005

ACQUISITION ADVISORY AGREEMENT, Parties: wells capital  inc.   , wells real estate investment trust  inc.
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Exhibit 10.67

 

ACQUISITION ADVISORY AGREEMENT

 

THIS ACQUISITION ADVISORY AGREEMENT (“Agreement”) is made and entered into as of the 1 st day of January, 2005, by and between WELLS REAL ESTATE INVESTMENT TRUST, INC., a Maryland corporation (the “Wells REIT”), and WELLS CAPITAL, INC., a Georgia corporation (the “Acquisition Advisor”).

 

W I T N E S S E T H

 

WHEREAS, Wells REIT has issued shares of its common stock, par value $.01, to the public, has registered with the Securities and Exchange Commission certain additional shares of its common stock to be offered to the public (“Shares”) and may subsequently issue securities other than such Shares (“Securities”);

 

WHEREAS, Wells REIT intends to continue to qualify as a REIT (as defined below), and to invest its funds in investments permitted by the terms of Wells REIT’s Articles of Incorporation and Sections 856 through 860 of the Code (as defined below);

 

WHEREAS, Wells OP was organized to acquire, own, operate, lease and manage real estate properties on behalf of Wells REIT;

 

WHEREAS, Wells REIT desires to avail itself of the experience, sources of information, advice, assistance and certain facilities available to the Acquisition Advisor and to have the Acquisition Advisor undertake the duties and responsibilities hereinafter set forth, on behalf of, and subject to the supervision of, the Board of Directors of Wells REIT all as provided herein; and

 

WHEREAS, Acquisition Advisor is willing to undertake to render such services, subject to the supervision of the Board of Directors, on the terms and conditions hereinafter set forth.

 

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, do hereby agree as follows:

 

1. Definitions. Except as otherwise specified or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Agreement, and the definitions of such terms are equally applicable both to the singular and plural forms thereof:

 

Acquisition Advisor . Wells Capital, Inc., a Georgia corporation, or any person or entity to which Wells Capital, Inc. or any successor advisor assigns or subcontracts substantially all of its functions hereunder.

 

Acquisition and Advisory Fees . Any and all fees and commissions, exclusive of Acquisition Expenses, paid by any person or entity to any other person or entity (including any fees or commissions paid by or to any Affiliate of Wells REIT or the Acquisition Advisor) in connection with purchase, development or construction of any Property, including, without limitation, real estate commissions, acquisition fees, finder’s fees, selection fees, nonrecurring management fees, consulting fees, loan fees, points, or any other fees or commissions of a similar nature.


Acquisition Expenses . Any and all expenses incurred by Wells REIT, the Acquisition Advisor, or any Affiliate of either in connection with the selection, acquisition or development of any Property, whether or not acquired, including, without limitation, legal fees and expenses, travel and communications expenses, costs of appraisals, nonrefundable option payments on property not acquired, accounting fees and expenses, and title insurance premiums.

 

Affiliate or Affiliated. As to any individual, corporation, partnership, trust, limited liability company or other legal entity, (i) any Person or entity directly or indirectly through one or more intermediaries controlling, controlled by, or under common control with another Person or entity; (ii) any Person or entity, directly or indirectly owning, controlling, or holding with power to vote ten percent (10%) or more of the outstanding voting securities of another Person or entity; (iii) any officer, director, general partner or trustee of such Person or entity; (iv) any Person ten percent (10%) or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with power to vote, by such other Person; and (v) if such other Person or entity is an officer, director, general partner, or trustee of a Person or entity, the Person or entity for which such Person or entity acts in any such capacity.

 

Articles of Incorporation . The Articles of Incorporation of Wells REIT under Title 2 of the Corporations and Associations Article of the Annotated Code of Maryland, as amended from time to time.

 

Average Invested Assets . For a specified period, the average of the aggregate book value of the assets of Wells REIT invested, directly or indirectly, in Properties and loans secured by real estate before reserves for depreciation or bad debts or other similar non-cash reserves, computed by taking the average of such values at the end of each month during such period.

 

Board of Directors or Board . The persons holding such office, as of any particular time, under the Articles of Incorporation of Wells REIT, whether they be the Directors named therein or additional or successor Directors.

 

Bylaws . The bylaws of Wells REIT, as the same are in effect from time to time.

 

Cause . With respect to the termination of this Agreement, fraud, criminal conduct, willful misconduct or willful or negligent breach of fiduciary duty by the Acquisition Advisor or material breach of this Agreement.

 

Code . Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto. Reference to any provision of the Code shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto, as interpreted by any applicable regulations as in effect from time to time.

 

Competitive Real Estate Commission . A real estate or brokerage commission for the purchase of property which is reasonable, customary, and competitive in light of the size, type, and location of the property.

 

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Director . A member of the Board of Directors of Wells REIT.

 

Employee Expenses. Employee Expenses is defined in Section 9(a)(vi).

 

Equity Interest . The stock of or other interests in, or warrants or other rights to purchase the stock of or other interests in, any entity that has borrowed money from Wells REIT or that is a tenant of Wells REIT or that is a parent or controlling Person of any such borrower or tenant.

 

Equity Shares . Transferable shares of beneficial interest of Wells REIT of any class or series, including common shares or preferred shares.

 

Existing Portfolio Properties. All Properties owned by Wells REIT, Wells OP or any subsidiary thereof, or in which any such entity owns an interest, on December 31, 2004.

 

Gross Proceeds . The aggregate purchase price of all Shares sold for the account of Wells REIT through an Offering, without deduction for selling commissions, volume discounts, any dealer manager or marketing support fees, due diligence expense reimbursements or Organization and Offering Expenses.

 

Improvements . Buildings, structures, equipment from time to time located on the Properties and all parking and common areas located on the Properties.

 

Independent Director . A Director who is not and within the last two years has not been directly or indirectly associated with the Acquisition Advisor by virtue of (i) ownership of an interest in the Acquisition Advisor or its Affiliates, (ii) employment by the Acquisition Advisor or its Affiliates, (iii) service as an officer or director of the Acquisition Advisor or its Affiliates, (iv) performance of services, other than as a Director, for Wells REIT, (v) service as a director or trustee of more than three real estate investment trusts advised by the Acquisition Advisor, or (vi) maintenance of a material business or professional relationship with the Acquisition Advisor or any of its Affiliates. A business or professional relationship is considered material if the gross revenue derived by the Director from the Acquisition Advisor and Affiliates exceeds 5.0% of either the Director’s annual gross revenue during either of the last two years or the Director’s net worth on a fair market value basis. An indirect relationship shall include circumstances in which a Director’s spouse, parents, children, siblings, mothers- or fathers-in-law, sons- or daughters-in-law, or brothers- or sisters-in-law is or has been associated with the Acquisition Advisor, any of its Affiliates, or Wells REIT.

 

Joint Ventures . Any joint venture or general partnership arrangements established to acquire Properties in which Wells REIT or Wells OP, or any subsidiary thereof, is a co-venturer, general partner or joint venture partner with another Person.

 

Listing . The listing of the Shares of Wells REIT on a national securities exchange or over-the-counter market.

 

Managing Dealer . Wells Investment Securities, Inc., an Affiliate of Wells REIT, or such entity selected by the Board of Directors to act as the managing dealer for an Offering. Wells Investment Securities, Inc. is a member of NASD, Inc.

 

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Net Income . For any period, the total revenues applicable to such period, less the total expenses applicable to such period excluding additions to reserves for depreciation, bad debts or other similar non-cash reserves; provided, however, Net Income for purposes of calculating total allowable Operating Expenses (as defined herein) shall exclude the gain from the sale of Wells REIT’s assets.

 

Offering . Any public offering of Shares which is registered with the Securities and Exchange Commission, including Shares offered and sold pursuant to Wells REIT’s dividend reinvestment plan.

 

Operating Expenses . All costs and expenses incurred by Wells REIT, as determined under generally accepted accounting principles, which in any way are related to the operation of Wells REIT or to Wells REIT business, including advisory fees, but excluding (i) the expenses of raising capital such as Organizational and Offering Expenses, legal, audit, accounting, underwriting, brokerage, listing, registration, and other fees, printing and other such expenses and tax incurred in connection with the issuance, distribution, transfer, registration and Listing of the Shares, (ii) interest payments, (iii) taxes, (iv) non-cash expenditures such as depreciation, amortization and bad loan reserves, (v) Acquisition and Advisory Fees and Acquisition Expenses, and other expenses connected with the acquisition of real estate interests, mortgage loans or other property and (vi) real estate commissions on the sale of Property, and other expenses connected with the acquisition and ownership of real estate interests, mortgage loans, or other property (such as the costs of foreclosure, insurance premiums, legal services, maintenance, repair, and improvement of property).

 

Organizational and Offering Expenses . Any and all actual legal, accounting, printing and other accountable Offering costs and expenses, other than selling commissions and the dealer manager fee, including amounts to reimburse the Acquisition Advisor for all marketing related costs and expenses, including, but not limited to, salaries and direct expenses of the Acquisition Advisor’s employees while engaged in registering and marketing the Shares and other marketing and organization costs, technology costs and expenses attributable to an Offering, costs and expenses of conducting educational conferences and seminars, payment or reimbursement of bona fide due diligence expenses, and costs and expenses incurred by the Acquisition Advisor or any Affiliate for attending retail seminars conducted by broker-dealers. The Organizational and Offering Expenses paid by Wells REIT in connection with any Offering will not exceed 3.0% of the Gross Proceeds raised in such Offering.

 

Person . An individual, corporation, partnership, estate, trust (including a trust qualified under Section 401(a) or 501(c) (17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity, or any government or any agency or political subdivision thereof.

 

Property or Properties . All real estate properties, or interests in real estate properties, owned by Wells OP or Wells REIT, or any subsidiary thereof, or in which Wells OP, Wells REIT or any subsidiary thereof owns an interest, and all tracts acquired by Wells OP or Wells REIT, or any subsidiary thereof in the future or in which Wells OP, Wells REIT or any subsidiary thereof owns an interest, containing income-producing Improvements or on which Wells OP or Wells REIT, or any subsidiary thereof, will construct income-producing Improvements.

 

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Prospectus . “Prospectus” has the meaning set forth in Section 2(10) of the Securities Act of 1933, as amended (the “Securities Act”), including a preliminary Prospectus, an offering circular as described in Rule 256 of the General Rules and Regulations under the Securities Act or, in the case of an intrastate offering, any document by whatever name known, utilized for the purpose of offering and selling securities to the public.

 

Registration Statement . The most currently filed Registration Statement on Form S-11, or other applicable Form, with the Securities and Exchange Commission, of which the Prospectus is a part.

 

REIT . A “real estate investment trust” under Sections 856 through 860 of the Code.

 

Securities . Any Equity Shares, as such term is defined in Wells REIT’s Articles of Incorporation, any other stock, shares or other evidences of equity or beneficial or other interests, voting trust certificates, bonds, debentures, notes or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in, temporary or interim certificates for, receipts for, guarantees of, or warrants, options or rights to subscribe to, purchase or acquire, any of the foregoing.

 

Shares . Any shares of Wells REIT’s common stock, par value $.01 per share, which are issued and currently outstanding.

 

Stockholders . The record holders of Wells REIT’s Shares as maintained in Wells REIT’s books and records.

 

Termination Date . The date of termination of the Agreement.

 

2%/25% Guidelines . The requirement pursuant to the guidelines of the North American Securities Administrators Association, Inc. that, in any 12 month period, total Operating Expenses not exceed the greater of 2% of Wells REIT’s Average Invested Assets during such 12 month period or 25% of Wells REIT’s Net Income over the same 12 month period.

 

Wells OP . Wells Operating Partnership, L.P., a Delaware limited partnership formed to own and operate properties on behalf of Wells REIT.

 

Wells REIT . Wells Real Estate Investment Trust, Inc., a corporation organized under the laws of the State of Maryland.

 

2. Appointment of Acquisition Advisor. Wells REIT hereby appoints the Acquisition Advisor to serve as its advisor on the terms and conditions set forth in this Agreement, and the Acquisition Advisor hereby accepts such appointment on the terms and conditions hereinafter set forth.

 

3. Duties of the Acquisition Advisor. The Acquisition Advisor undertakes to use its best efforts to present to Wells REIT potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of Wells REIT as determined and adopted from time to time by the Board. In

 

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performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Prospectus, Articles of Incorporation and Bylaws of Wells REIT, the Acquisition Advisor shall, either directly or by engaging an Affiliate engage in the following activities:

 

 

(a)

Capital Raising Functions.

 

 

(i)

Manage and supervise any Offering;

 

 

(ii)

Manage and supervise the preparation of all Offering and related registrations and documents, and obtain all required regulatory approvals of such documents, including but not limited to approvals from the Securities and Exchange Commission, the NASD and any other applicable regulatory agencies;

 

 

(iii)

Manage and supervise the coordination of the due diligence process relating to participating broker-dealers and their review of the Prospectus and other Offering documents;

 

 

(iv)

Coordinate with Wells Investment Securities, Inc., or any successor dealer manager, under any applicable dealer manager agreement;

 

 

(v)

Review and accept subscription agreements from investors on behalf of Wells REIT; and

 

 

(vi)

Prepare confirmations of sales of Shares to Stockholders.

 

 

(b)

Property Related Functions.

 

 

(i)

Investigate, select, and, on behalf of Wells REIT, engage and conduct business with such Persons as the Acquisition Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, and any and all agents for any of the foregoing, including Affiliates of the Acquisition Advisor, and Persons acting in any other capacity deemed by the Acquisition Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of Wells REIT with any of the foregoing;

 

 

(ii)

Consult with the officers and the Board of Wells REIT and assist the Board in the formulation and implementation of Wells REIT’s

 

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financial policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of Wells REIT and in connection with any borrowings proposed to be undertaken by Wells REIT;

 

 

(iii)

Locate, analyze and select potential investments in Properties; structure and negotiate the terms and conditions of transactions pursuant to which investment in Properties will be made; recommend investments in Properties on behalf of Wells REIT or Wells OP in compliance with the investment objectives and policies of Wells REIT; and arrange for financing, loan assumptions or loan modifications relating to the acquisition of Properties and make other changes in the asset or capital structure of Properties;

 

 

(iv)

Provide the Board with periodic reports regarding prospective investments in Properties;

 

 

(v)

Obtain reports (which may be prepared by the Acquisition Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of Wells REIT in Properties;

 

 

(vi)

Obtain the prior approval of the Board (including a majority of the Independent Directors) for investments in Properties;

 

 

(vii)

Deliver to or maintain on behalf of Wells REIT copies of all appraisals obtained in connection with the investments in Properties; and

 

 

(viii)

Notify the Board of all proposed material transactions before they are completed.

 

 

(c)

Transfer Agent Functions.

 

 

(i)

Maintain and preserve the stock books and records of Wells REIT, reflecting a record of the Stockholders and their ownership of Wells REIT’s uncertificated Shares and acting as transfer agent for Wells REIT’s uncertificated Shares; and

 

 

(ii)

Administer, manage and maintain stock transfers in a diligent, careful and vigilant manner in accordance with the Exchange Act rules and regulations applicable to registered transfer agents, and the services shall be of the sco


 
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