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:
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(a)
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Capital
Raising Functions.
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(i)
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Manage and
supervise any Offering;
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(ii)
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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;
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(iii)
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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;
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(iv)
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Coordinate with
Wells Investment Securities, Inc., or any successor dealer manager,
under any applicable dealer manager agreement;
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(v)
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Review and
accept subscription agreements from investors on behalf of Wells
REIT; and
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(vi)
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Prepare
confirmations of sales of Shares to Stockholders.
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(b)
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Property
Related Functions.
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(i)
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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;
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(ii)
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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;
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(iii)
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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;
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(iv)
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Provide the
Board with periodic reports regarding prospective investments in
Properties;
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(v)
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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;
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(vi)
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Obtain the
prior approval of the Board (including a majority of the
Independent Directors) for investments in Properties;
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(vii)
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Deliver to or
maintain on behalf of Wells REIT copies of all appraisals obtained
in connection with the investments in Properties; and
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(viii)
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Notify the
Board of all proposed material transactions before they are
completed.
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(c)
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Transfer
Agent Functions.
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(i)
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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
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(ii)
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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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