<PAGE>
As filed with the Securities and Exchange Commission on June 17, 1997
Registration No. 333-7979
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------------
POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-11
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-------------------------------------------
WELLS REAL ESTATE FUND X, L.P.
and
WELLS REAL ESTATE FUND XI, L.P.
(Exact name of registrant as specified in governing instruments)
3885 Holcomb Bridge Road
Norcross, Georgia 30092
(Address of principal executive offices)
Donald Kennicott, Esq.
Holland & Knight LLP
One Atlantic Center, Suite 2000
1201 West Peachtree Street, N.E.
Atlanta, Georgia 30309-3400
(Name and address of agent for service)
-------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
CROSS REFERENCE SHEET PURSUANT TO RULE 404(A)
Form Number and Caption Location of Heading in Prospectus
------------------------------------------------ ----------------------------------------------------------------
<C> <S> <C>
1. Forepart of Registration Statement and Outside
Front Cover Page of Prospectus.................. Facing Page, Cover Page
2. Inside Front and Outside Back Cover Pages of Inside Front Cover and Outside Back Cover Page of Prospectus
Prospectus......................................
3. Summary Information, Risk Factors and Ratio of Outside Front Cover Page; Summary of the Offering; Risk
Earnings to Fixed Charges....................... Factors; Compensation of the General Partners and Affiliates;
Estimated Use of Proceeds
4. Determination of Offering Price................. Risk Factors
5. Dilution........................................ Risk Factors
6. Selling Security Holders........................ *
7. Plan of Distribution............................ Outside Front Cover Page; Summary of the Offering; Estimated
Use of Proceeds; Plan of Distribution
8. Use of Proceeds................................. Estimated Use of Proceeds; Investment Objectives and Criteria
9. Selected Financial Data......................... *
10. Management's Discussion and Analysis of Management's Discussions and Analysis of Financial Conditions
Financial Condition and Results of Operations... and Results of Operations
11. General Information as to Registrant............ Summary of the Offering; Summary of Partnership Agreement;
Management
12. Policy with Respect to Certain Activities....... Investment Objectives and Criteria; Reports to Investors
13. Investment Policies of Registrant............... Investment Objectives and Criteria; Real Property Investments;
Conflicts of Interest
14. Description of Real Estate...................... Investment Objectives and Criteria; Real Property Investments
15. Operating Data.................................. *
16. Tax Treatment of Registrant and its Security Federal Income Tax Consequences; Investment by Tax-Exempt
Holders......................................... Entities and ERISA Considerations
17. Market Price of and Dividends on the *
Registrant's Common Entry and Related
Stockholder Matters.............................
18. Description of Registrant's Securities.......... Description of the Units; Distributions and Allocations;
Summary of the Partnership Agreement
19. Legal Proceedings............................... Management
20. Security Ownership of Certain Beneficial Owners Management; Compensation of the General Partners and Affiliates
and Management..................................
21. Directors and Executive Officers................ Management
22. Executive Compensation.......................... Conflicts of Interest; Compensation of the General Partners and
Affiliates; Management
23. Certain Relationships and Related Transactions.. Conflicts of Interest; Compensation of the General Partners and
Affiliates; Management
24. Selection, Management and Custody of Management; Compensation of the General Partners and
Registrant's Investments........................ Affiliates; Conflicts of Interest; Custodial Agency Agreement;
Investment Objectives and Criteria; Real Property Investments
25. Policies with Respect to Certain Transactions... Conflicts of Interest; Compensation of the General Partners and
Affiliates; Management
26. Limitations of Liability........................ Fiduciary Duty of the General Partners; Summary of Partnership
Agreement
27. Financial Statements and Information............ Appendix I; Exhibit A
28. Interests of Named Experts and Counsel.......... Conflicts of Interest, Experts, Legal Opinions
29. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities.. Fiduciary Duty of the General Partners
*Not Applicable.
</TABLE>
<PAGE>
[THE FOLLOWING IS TEXT TO A STICKER TO BE ATTACHED TO THE FRONT COVER PAGE OF
THE PROSPECTUS IN A MANNER THAT WILL NOT OBSCURE THE RISK FACTORS:]
SUPPLEMENTAL INFORMATION - The Prospectus of Wells Real Estate Fund X, L.P.
and Wells Real Estate Fund XI, L.P. consists of this sticker, the Prospectus
dated December 31, 1996, Supplement No. 1 dated March 27, 1997, and
Supplement No. 2 dated June 17, 1997 (the Supplements are contained inside the
back cover page of the Prospectus). Supplement No. 1 includes updated financial
statements and Prior Performance Tables and describes the acquisition by a joint
venture between Wells Real Estate Fund X, L.P. and Wells Real Estate Fund IX,
L.P. (the "Fund IX-X Joint Venture") of a property being developed in Knox
County, Tennessee. Supplement No. 2 describes a contract recently entered into
between the Fund IX-X Joint Venture and Wells Development Corporation for the
acquisition of an office building to be developed on property located in
Oklahoma City, Oklahoma.
<PAGE>
WELLS REAL ESTATE FUND X, L.P. WELLS REAL ESTATE FUND XI, L.P.
$1,250,000 MINIMUM OFFERING $1,250,000 MINIMUM OFFERING
- ---------------------------------------- --------------------------------------
Class A and Class B Status Units Class A and Class B Status Units
at a purchase price of $10.00 per Unit at a purchase price of $10.00 per Unit
- ---------------------------------------- --------------------------------------
Wells Real Estate Fund X, L.P. and Wells Real Estate Fund XI, L.P. are
separate, newly organized Georgia limited partnerships which have been formed to
acquire and operate commercial properties on an all cash basis, including
properties which are under development or construction, are newly constructed or
have been constructed and have operating histories. The General Partners of
each partnership are Leo F. Wells, III ("Wells") and Wells Partners, L.P., a
Georgia limited partnership ("Wells Partners"; Wells and Wells Partners are
collectively referred to as the "General Partners").
Wells Real Estate Fund X, L.P. and Wells Real Estate Fund XI, L.P. will each
have the same purpose, business plan, investment objectives and management and
will each be organized and conduct its business pursuant to its limited
partnership agreement, a form of which is included in this Prospectus as Exhibit
"B." The acquisition of Units in one partnership will not give an investor any
ownership interest in the other partnership or its properties. Each of the
partnerships is referred to in this Prospectus as the "Partnership."
Each Partnership hereby offers for sale to the public 3,500,000 units of
limited partnership interest (the "Units") with respect to which each holder
thereof may elect to have treated as Class A Status Units (entitled to
distributions of cash flow from operations) or Class B Status Units (entitled to
a higher percentage of appreciation of the Partnership's real property
investments and tax allocations). The Partnership will offer the Class A Status
Units and Class B Status Units in combination, such that the Partnership will
not sell more than an aggregate of 3,500,000 Units. The minimum purchase is 100
Units ($1,000) (except in certain states as described herein). The purchasers
of the Units will become the Limited Partners of the Partnership. It is
estimated that approximately 81% of the proceeds from the sale of Units will be
used to acquire properties and the balance will be used to pay fees and
expenses.
AN INVESTMENT IN UNITS INVOLVES SIGNIFICANT RISKS INCLUDING THE FOLLOWING:
. The Partnership Agreement imposes restrictions on transfers of Units. No
public market for the Units currently exists or is likely to develop. If
investors are able to sell their Units at all, they will likely be able to
sell their Units only at a discount. (See "SUMMARY OF PARTNERSHIP AGREEMENT--
Transferability of Units.")
. The number of properties that the Partnership will acquire and diversification
of its investments will be reduced to the extent that less than the maximum
number of Units are sold.
. This Offering involves payment of substantial fees to the General Partners and
their Affiliates, which will be payable regardless of the success or failure
of the Partnership.
. Certain real estate programs previously sponsored by the General Partners and
their Affiliates have experienced fluctuating financial performance.
. The Partnership does not own any real property, and the General Partners have
not identified any properties in which there is a reasonable probability that
the Partnership will invest. Accordingly, investors will not have the
opportunity to evaluate the properties that the Partnership will acquire and
must rely totally upon the ability of the General Partners with respect to the
acquisition of properties. The unspecified nature of the offering may impair
the ability of investors to make an informed decision as to whether to elect
Class A Status or Class B Status for their Units in light of the different
features of Class A Status Units and Class B Status Units.
. It is anticipated that the Partnership will not be liquidated until at least
ten to twelve years after the date the Partnership invests in its final
property.
. There are no restrictions as to the mix of Class A Status Units and Class B
Status Units, and, accordingly, holders of Class A Status Units may receive
lower cash distributions than otherwise anticipated if the percentage of Class
A Status Units outstanding is substantially greater than the percentage of
Class B Status Units, and holders of Class B Status Units may receive smaller
tax allocations and a lesser amount of appreciation on investments than
otherwise anticipated if the percentage of Class B Status Units outstanding is
substantially greater than the percentage of Class A Status Units.
. The effect of any advantage associated with the election of Class A Status
Units or Class B Status Units may be significantly reduced (or eliminated),
depending upon the ratio of each class outstanding.
. Some or all of the proceeds available for investment in real properties may be
invested in the acquisition and construction of undeveloped properties, which
would involve risks relating to the builder's ability to control construction
costs, failure to perform, or failure to build in conformity with plan
specifications and timetables.
. The General Partners are involved in other partnerships and activities, and,
accordingly, will face certain conflicts of interest in managing the
Partnership's operations.
FOR A DISCUSSION OF THE RISK FACTORS CONCERNING THIS INVESTMENT, SEE "RISK
FACTORS" (PAGE 7).
WELLS REAL ESTATE FUND X, L.P. AND WELLS REAL ESTATE FUND XI, L.P. ARE NOT
MUTUAL FUNDS OR ANY OTHER TYPE OF INVESTMENT COMPANY AND ARE NOT REGISTERED OR
SUBJECT TO REGULATION UNDER THE INVESTMENT COMPANY ACT OF 1940.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
SELLING COMMISSIONS
PRICE TO AND DEALER PROCEEDS TO
PUBLIC (1) MANAGER FEE (1) PARTNERSHIP (2)
--------------- --------------- ---------------
<S> <C> <C> <C>
PER UNIT....................... $ 10.00 $ 1.00 $ 9.00
TOTAL MINIMUM PER PARTNERSHIP.. $ 1,250,000.00 $ 125,000.00 $ 1,125,000.00
TOTAL MAXIMUM PER PARTNERSHIP.. $35,000,000.00 $3,500,000.00 $31,500,000.00
TOTAL MAXIMUM.................. $70,000,000.00 $7,000,000.00 $63,000,000.00
- -----------------------------------------------------------------------------------
</TABLE>
(See footnotes on following page)
____________________________________________
WELLS INVESTMENT SECURITIES, INC.
____________________________________________
THE DATE OF THIS PROSPECTUS IS DECEMBER 31, 1996.
<PAGE>
(Cover Page Continued From Previous Page)
Footnotes:
(1) Price to Public and Selling Commissions may be reduced in connection with
certain large volume purchases and under other circumstances described
herein; however, in no event will the proceeds to the Partnership be reduced
thereby. In addition to Selling Commissions in the amount of up to 8% of
the Gross Offering Proceeds, the Partnership will pay a dealer manager fee
in the amount of 2% of the Gross Offering Proceeds and may reimburse
nonaffiliated broker-dealers participating in this Offering expenses paid
for due diligence purposes up to a maximum of .5% of the Gross Offering
Proceeds. Selling commissions are payable to Wells Investment Securities,
Inc., the Dealer Manager of the Offering and an Affiliate of the General
Partners, except to the extent reallowed to other broker-dealers
participating in the Offering. (See "PLAN OF DISTRIBUTION.")
(2) These figures are before deducting other expenses of the Offering to be paid
by the Partnerships in the estimated amount of $2,450,000, assuming the sale
of all 7,000,000 Units. The General Partners or their Affiliates will pay
Organization and Offering Expenses (not including underwriting compensation)
in excess of 5% of Gross Offering Proceeds. (See "ESTIMATED USE OF PROCEEDS"
and footnote 3 thereto.)
The offering of Units of Wells Real Estate Fund X, L.P. will commence upon
the effective date of this Prospectus and will continue until and terminate upon
the earlier of (i) December 30, 1997, or (ii) the date on which all
$35,000,000 in Units of Wells Real Estate Fund X, L.P. have been sold. The
offering of Units of Wells Real Estate Fund XI, L.P. will commence immediately
upon the termination of the offering of Units of Wells Real Estate Fund X, L.P.
and will continue until and terminate upon the earlier of (i) December 30,
1998 , or (ii) the date on which all $35,000,000 in Units of Wells Real Estate
Fund XI, L.P. have been sold, provided that the General Partners may elect to
terminate the offering of Wells Real Estate Fund XI, L.P. at any time subsequent
to one year after its effective date in the event that the offering of Units of
Wells Real Estate Fund XI, L.P. commences prior to December 31, 1997.
Subscription proceeds will be placed in an interest-bearing escrow account with
The Bank of New York, Atlanta, Georgia until subscriptions aggregating at least
$1,250,000 (125,000 Units) (the "Minimum Offering") have been received and
accepted by the General Partners, at which time the proceeds will be released to
the Partnership to be held in trust for the benefit of investors. If the
Minimum Offering is not met by June 30, 1997, the Offering will be
terminated and subscribers' funds (plus interest net of escrow expenses) will be
promptly refunded.
PROSPECTIVE INVESTORS ARE ENCOURAGED TO READ THE ENTIRE PROSPECTUS WHICH
CONTAINS A COMPLETE COPY OF THE PARTNERSHIP AGREEMENT AND WHICH INCLUDES THE
CURRENT SUPPLEMENT, IF ANY, INSIDE THE BACK COVER PAGE.
THE USE OF PROJECTIONS OR FORECASTS IN THIS OFFERING IS PROHIBITED. ANY
REPRESENTATIONS TO THE CONTRARY AND ANY PREDICTIONS, WRITTEN OR ORAL, AS TO THE
AMOUNT OR CERTAINTY OF ANY PRESENT OR FUTURE CASH BENEFIT OR TAX CONSEQUENCE
WHICH MAY FLOW FROM AN INVESTMENT IN THIS PROGRAM ARE NOT PERMITTED.
FOR FLORIDA RESIDENTS
DISTRIBUTION REINVESTMENT PLAN. UNITS PURCHASED PURSUANT TO THE
------------------------------
DISTRIBUTION REINVESTMENT PLAN WHICH ARE UNITS OF A SUBSEQUENT REAL ESTATE
LIMITED PARTNERSHIP MUST BE REGISTERED OR EXEMPT FROM REGISTRATION IN FLORIDA.
OFFERS AND SALES OF SUCH UNITS MUST BE CONDUCTED THROUGH BROKER-DEALERS WHICH
ARE REGISTERED IN FLORIDA OR EXEMPT FROM REGISTRATION IN FLORIDA. (SEE "SUMMARY
OF PARTNERSHIP AGREEMENT - DISTRIBUTION REINVESTMENT PLAN.")
INDETERMINATE MIX OF UNITS. LIMITED PARTNERS MUST ELECT TO HAVE EACH UNIT
--------------------------
TREATED EITHER AS A CLASS A STATUS UNIT OR CLASS B STATUS UNIT. THERE ARE NO
RESTRICTIONS AS TO THE MIX OF THE CLASS A STATUS UNITS AND CLASS B STATUS UNITS
AND, THEREFORE, THERE CAN BE NO ASSURANCE AS TO THE ACTUAL IMPACT OF THE SPECIAL
RIGHTS AND PRIORITIES TO WHICH HOLDERS OF THE TWO CLASSES OF UNITS ARE
RESPECTIVELY ENTITLED. THE EFFECT OF ANY ADVANTAGE ASSOCIATED WITH THE ELECTION
OF CLASS A OR CLASS B STATUS UNITS MAY BE SIGNIFICANTLY REDUCED (OR ELIMINATED),
DEPENDING UPON THE RATIO OF CLASS A STATUS UNITS TO CLASS B STATUS UNITS WHICH
ARE OUTSTANDING. (SEE "RISK FACTORS.")
FOR PENNSYLVANIA RESIDENTS
BECAUSE THE MINIMUM OFFERING IS LESS THAN $5,000,000, YOU ARE CAUTIONED TO
CAREFULLY EVALUATE THE PARTNERSHIP'S ABILITY TO FULLY ACCOMPLISH ITS STATED
OBJECTIVES AND INQUIRE AS TO THE CURRENT DOLLAR VOLUME OF PARTNERSHIP
SUBSCRIPTIONS.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
SUMMARY OF THE OFFERING........................... 1
RISK FACTORS...................................... 7
Investment Risks.............................. 7
Limited Transferability and Lack
of Liquidity of the Units................. 7
Substantial Reliance on the
General Partners.......................... 8
Limited and Illiquid Net Worth
of the General Partners................... 8
Limitations of Rights of the
Limited Partners.......................... 8
Possible Lack of Diversification
Resulting from Subscriptions
for Less than the Maximum Number
of Units.................................. 8
Potential Conflict Relating to the
General Partners' Right to
Purchase Units............................ 8
Restrictions and Limitations on
Repurchase Reserve........................ 9
Potential Liability of Limited
Partners.................................. 9
Offering Price Arbitrarily
Established............................... 9
Substantial Management
Compensation.............................. 9
No Assurance of Cash
Distributions............................. 10
No Identified Sources for
Funding of Future Capital Needs........... 10
Consequences of Joint Venture Investments... 10
Special Risks Regarding Classes of Units...... 11
Special Risks Relating to an
Election of Class A Status Units.......... 10
Special Risks Relating to an
Election of Class B Status Units.......... 11
Effect of Unspecified Nature of
Offering on Relative Performance
of Class A Status Units and
Class B Status Units...................... 11
Indeterminate Ratio of Class A Status Units
to Class B Status Units................... 11
Real Estate Risks............................. 12
Fluctuating Financial
Performance of Previously
Sponsored Partnerships.................... 12
Potential Adverse Economic and
Regulatory Changes........................ 12
Unspecified Property Offering............... 12
Development and Construction of
Unimproved Properties..................... 12
Competition for Investments............... 13
Potential Adverse Effects of
Delays in Investments..................... 13
Uncertainty of Timing of and
Market Conditions on Future
Disposition of Properties................ 13
Environmental Matters....................... 13
<PAGE>
Federal Income Tax Risks...................... 14
Failure of Counsel to
Form an Opinion on Certain
Material Tax Issues....................... 14
Potential Adverse Income Tax
Effects relating to Limited Partners
holding Class A Status Units.............. 14
Potential Loss of Partnership Tax
Status.................................... 15
Potential Publicly Traded
Partnership Classification................ 15
Limitations on Deductibility of
Losses.................................... 15
Possibility of IRS Challenge to Allocations
of Profit and Loss........................ 15
Potential Dealer Status..................... 15
Possibility of Disallowance of Deductibility
of the Fees and Expenses Paid by
the Partnership........................... 16
Allocation of Taxable Income Without
Cash Distributions........................ 16
Characterization of Sale-Leaseback
Transactions.............................. 16
Applicability of
Anti-Abuse Rules.......................... 16
Potential Applicability of
Alternative Minimum Tax................... 16
Audit Risk, Interest and
Penalties................................. 16
State and Local Taxation and Requirements
to Withhold State Taxes................... 17
Potential Legislative or Regulatory
Action.................................... 17
Risks Relating to Retirement Plan Investors... 17
Plan Assets Risk............................ 17
Minimum Distribution Requirements........... 18
Unrelated Business Taxable
Income ("UBTI")........................... 18
WHO SHOULD INVEST - SUITABILITY
STANDARDS........................................ 19
DESCRIPTION OF THE UNITS.......................... 22
Election of Class A Status or Class B Status.. 22
Summary of Distributions....................... 24
Summary of Allocations........................ 25
Class A Status Units.......................... 25
Class B Status Units........................... 26
Effect of Change of Status of Units........... 26
ESTIMATED USE OF PROCEEDS......................... 27
COMPENSATION OF THE GENERAL PARTNERS
AND AFFILIATES................................... 29
CONFLICTS OF INTEREST............................. 31
FIDUCIARY DUTY OF THE GENERAL
PARTNERS......................................... 35
PRIOR PERFORMANCE SUMMARY......................... 36
Publicly Offered Unspecified Property
Partnerships................................. 37
MANAGEMENT........................................ 41
The General Partners............................ 41
Management.................................... 43
INVESTMENT OBJECTIVES AND CRITERIA................ 45
General....................................... 45
Acquisition and Investment Policies........... 45
Development and Construction of
Properties................................... 47
Terms of Leases and Lessee
Creditworthiness............................. 48
Borrowing Policies............................ 48
Joint Venture Investments..................... 49
Disposition Policies.......................... 50
Other Policies................................ 51
<PAGE>
CUSTODIAL AGENCY AGREEMENT........................ 52
REAL PROPERTY INVESTMENTS......................... 53
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS............................ 53
INVESTMENT BY TAX-EXEMPT ENTITIES AND
ERISA CONSIDERATIONS............................. 54
Plan Assets - Generally....................... 55
Plan Assets - Current Law..................... 55
Exemptions Under Plan Asset Regulations....... 56
Plan Asset Consequences -
Prohibited Transaction Excise Tax............ 57
Annual Valuation.............................. 58
FEDERAL INCOME TAX CONSEQUENCES................... 59
Tax Opinion................................... 59
Partnership Status Generally.................. 61
Publicly Traded Partnerships.................... 62
General Principles of Partnership Taxation..... 63
Anti-Abuse Rules.............................. 64
Basis Limitations............................. 64
Passive Loss Limitations...................... 64
At Risk Limitations........................... 65
Allocations of Profit and Loss................ 65
Risk of Taxable Income Without Cash
Distributions................................ 67
Investment by Qualified Plans and Other
Tax-Exempt Entities.......................... 68
Investment by Charitable Remainder Trusts..... 69
Depreciation and Cost Recovery................ 69
Syndication and Organizational Expenses....... 70
Activities Not Engaged in for Profit.......... 70
Federal Income Tax Consequences Relating
to the Custodial Agency Agreement and
Other Potential Uses of Nominee
Corporations................................ 70
Characterization of Leases.................... 71
Property Held Primarily for Sale............... 72
Sales of Partnership Properties............... 72
Sales of Limited Partnership Units............. 72
Dissolution and Liquidation of the
Partnership.................................. 73
Capital Gains and Losses...................... 73
Election for Basis Adjustments................ 73
Alternative Minimum Tax....................... 73
Penalties..................................... 74
Tax Shelter Registration...................... 74
Audits......................................... 75
Foreign Investors as Limited Partners......... 75
Proposed Tax Legislation and Regulatory
Proposals.................................... 75
State and Local Taxes......................... 75
<PAGE>
SUMMARY OF PARTNERSHIP AGREEMENT.................. 76
Powers of the General Partners................ 77
Liabilities of the Limited Partners........... 77
Other Activities of the General Partners...... 77
Rights and Obligations of Limited Partners;
Nonassessability of Units.................... 77
Voting Rights of the Limited Partners......... 77
Mergers and Consolidations.................... 78
Special Partnership Provisions................ 78
Removal of General Partners................... 78
Assignability of General Partners' Interests.. 79
Books and Records; Rights to Information;
Annual Audits................................ 79
Meetings of Limited Partners.................. 79
Transferability of Units...................... 79
Partnership Borrowing......................... 80
Repurchase of Units........................... 80
Distribution Reinvestment Plan................ 82
Proxy to Liquidate............................ 84
Dissolution and Termination................... 84
DISTRIBUTIONS AND ALLOCATIONS..................... 85
Distributions of Net Cash From Operations...... 85
Distribution of Net Sale Proceeds............. 85
Liquidating Distributions..................... 86
Return of Unused Capital Contributions........ 87
Partnership Allocations....................... 87
Monthly Distributions......................... 89
REPORTS TO INVESTORS.............................. 90
PLAN OF DISTRIBUTION.............................. 91
SUPPLEMENTAL SALES MATERIAL....................... 96
LEGAL OPINIONS.................................... 97
EXPERTS........................................... 97
INDEPENDENT AUDITORS.............................. 97
ADDITIONAL INFORMATION............................ 98
GLOSSARY.......................................... 98
--------------------------------------
</TABLE>
FINANCIAL STATEMENTS...................... APPENDIX I
PRIOR PERFORMANCE TABLES.................. EXHIBIT A
FORM OF AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF WELLS REAL ESTATE
FUND X/XI, L.P........................... EXHIBIT B
FORM OF SUBSCRIPTION AGREEMENT
AND SUBSCRIPTION AGREEMENT
SIGNATURE PAGE........................... EXHIBIT C
(i)
<PAGE>
SUMMARY OF THE OFFERING
THIS SECTION SUMMARIZES CERTAIN INFORMATION CONTAINED ELSEWHERE IN THIS
PROSPECTUS AND IS INTENDED FOR QUICK REFERENCE ONLY. THIS IS NOT A COMPLETE
DESCRIPTION OF THE INVESTMENT. POTENTIAL INVESTORS MUST READ AND EVALUATE THE
FULL TEXT OF THIS PROSPECTUS IN ORDER TO EVALUATE AN INVESTMENT IN THE
PARTNERSHIP. THE FOLLOWING SUMMARY THEREFORE IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE FULL TEXT OF THIS PROSPECTUS AND THE SUPPORTING DOCUMENTS. ALL
MATERIAL TERMS OF THE SUPPORTING DOCUMENTS ARE DESCRIBED IN THE PROSPECTUS.
TERMS THAT APPEAR WITH AN INITIAL CAPITAL LETTER ARE MORE FULLY DEFINED IN THE
GLOSSARY.
WELLS REAL ESTATE Wells Real Estate Fund X, L.P. and Wells Real Estate Fund
FUND X, L.P. AND XI, L.P. are each newly formed Georgia limited partnerships
WELLS REAL ESTATE whose principal place of business and registered office is
FUND XI, L.P.: located at the office of its General Partners, 3885 Holcomb
Bridge Road, Norcross, Georgia 30092. (Telephone: 770-449-
7800 or 800-448-1010 - outside of Georgia.) AN INVESTOR WHO
PURCHASES UNITS IN ONE PARTNERSHIP WILL NOT THEREBY ACQUIRE
ANY OWNERSHIP INTEREST IN THE OTHER PARTNERSHIP OR ITS
PROPERTIES. However, the Partnerships may acquire interests
in the same property through joint ventures, and either or
both of the Partnerships may form joint ventures with prior
or future public real estate limited partnership programs
sponsored by the General Partners or their Affiliates. Each
Partnership is referred to in this Prospectus as the
"Partnership."
GENERAL PARTNERS: Leo F. Wells, III and Wells Partners, L.P., a Georgia
limited partnership, are the General Partners and will make
all investment decisions for the Partnership. (See
"MANAGEMENT - The General Partners.") For information
regarding the previous experience of the General Partners
and their Affiliates in the management of real estate
limited partnerships, see "PRIOR PERFORMANCE SUMMARY."
SECURITIES OFFERED: A minimum of 125,000 Units (the "Minimum Offering") and a
maximum of 3,500,000 Units in each Partnership are being
offered at $10 per Unit. Upon subscription for Units,
investors will elect to have their Units treated as either
Class A Status Units or Class B Status Units.
DIFFERENCES BETWEEN Class A Status Units and Class B Status Units are entitled
CLASS A STATUS to different rights and priorities as to allocations of
UNITS AND CLASS B depreciation, amortization, cost recovery and net loss
STATUS UNITS: deductions and cash distributions. Holders of Class A Status
Units will be entitled to receive annual distributions of
operating cash flow but will be allocated a lower percentage
return on the potential appreciation of the Partnership's
real estate investments. However, since Class A Status Units
will be allocated substantially all of the Partnership's net
income without being allocated any deductions for
depreciation, amortization, cost recovery or net losses, it
is expected that Limited Partners holding Class A Status
Units will be allocated taxable income in excess of
distributions of cash flow from operations received.
Although holders of Class B Status Units will not be
allocated any current cash distributions, they will be
allocated a disproportionately larger share of the
Partnership's deductions for depreciation, amortization,
cost recovery and net loss, and will be allocated a higher
percentage return on the potential appreciation of the
Partnership's real estate investments. However, since all
such losses allocated to holders of Class B Status Units
will be treated as "passive" losses, which may only be used
to offset "passive" income and, thus, may not be used to
offset active or portfolio income, such allocation of losses
may have no current benefit to holders of Class B Status
Units unless such holders of Class B Status Units are being
allocated passive income from other sources with respect to
such year. The effect of any advantage associated with the
election of Class A Status or Class B Status may be
significantly reduced (or eliminated), depending upon the
ratio of Class A Status Units to Class B Status Units
outstanding during any given period. There are no
restrictions as to the mix of Class A Status Units to Class
B Status Units, and the General Partners will not attempt to
establish or maintain any particular ratio. Therefore, there
can be no assurance as to the actual impact of the special
rights and priorities to which holders of the two classes of
Units are respectively entitled. To the extent that there
are fewer Class A Status Units outstanding in relation to
the number of Class B Status Units outstanding, in the event
that the General Partners or their Affiliates purchase
Units, they would benefit, along with other Class A Limited
Partners, in terms of increased distributions of operating
cash flow, due to the fact that the General Partners and
their Affiliates may only acquire and own Class A Status
Units. Limited Partners will have the right to change their
prior election to have some or all of their Units treated as
Class A Status Units or Class B Status Units one time during
each quarterly accounting period, unless prohibited by
applicable state law. Any such changed election shall be
effective commencing as of the first day of the next
succeeding accounting period following notice to the
Partnership. Limited Partners converting from Class A Status
to Class B Status will be entitled from the effective date
of the changed election to deductions for depreciation,
amortization, cost recovery and net losses but no
distributions of cash flow from operations, and Limited
Partners converting from Class B Status to Class A Status
will be entitled from the effective date of the changed
election to receive annual distributions of net cash flow
from operations. Distributions of proceeds from the sale of
properties will be prorated to Limited Partners based on the
number of days during which such Units were treated as Class
A Status Units and the number of days during which such
Units were treated as Class B Status Units (Class B Status
Units being allocated a higher percentage return on the
potential appreciation of the Partnership's real estate
investments). (See "DESCRIPTION OF THE UNITS," "RISK
FACTORS" and "DISTRIBUTIONS AND ALLOCATIONS.")
<PAGE>
RISK FACTORS:
Investment in the Units involves various risks including
the following:
. The Partnership Agreement imposes restrictions on
transfers of Units. No public market for the Units
currently exists or is likely to develop. If investors are
able to sell their Units at all, they will likely be able
to sell their Units only at a discount. (See "SUMMARY OF
PARTNERSHIP AGREEMENT--Transferability of Units.")
. Limited Partners will have limited voting rights and, therefore, will
have minimal control over the Partnership's operations.
. The Limited Partners must rely on the General Partners and their
Affiliates, who will have full responsibility for the day-to-day
management of the Partnership.
. The net worth of the General Partners is limited in amount,
substantially illiquid and not readily marketable. Accordingly, there
can be no guarantee that the General Partners will be able to fulfill
their financial obligations and responsibilities to the Partnership.
. The number of properties that the Partnership will acquire and
diversification of its investments will be reduced to the extent that
less than the maximum number of Units are sold. Lack of diversification
of the Partnership's investments will have the effect of increasing the
risks associated with an investment in the Units.
. This Offering involves payment of substantial fees to the General
Partners and their Affiliates, which will be payable regardless of the
success or failure of the Partnership.
. Holders of Class A Status Units will be allocated substantially all of
the Partnership's net income, while substantially all deductions for
depreciation, amortization, cost recovery and net losses will be
allocated to holders of Class B Status Units. As a result, it is
expected that Limited Partners holding Class A Status Units will be
allocated taxable income in excess of distributions of Cash Flow From
Operations received, although the General Partners expect that cash
distributions will be sufficient to cover the income tax liability
resulting from such allocations.
. Potential investors who plan to elect Class B Status for their Units
should be aware that they will not receive any distributions of Cash
Flow From Operations from the Partnership, but will be allocated a
disproportionately larger share of the Partnership's deductions for
depreciation, amortization, cost recovery and net losses.
. Certain real estate programs previously sponsored by the General
Partners and their Affiliates have experienced fluctuating financial
performance, and there are no assurances that properties acquired by the
Partnership will be profitable.
. The Partnership will be subject to market risks associated with
investments in real estate, which means that both the amount of cash the
Partnership will receive from the lessees of its properties and the
future value of its properties cannot be predicted. Accordingly, the
extent to which investors will receive cash distributions and realize
potential appreciation on real estate investments will be dependent upon
fluctuating market conditions.
. The Partnership does not own any real property and the General Partners
have not identified any properties in which there is a reasonable
probability that the Partnership will invest. Accordingly, investors
will not have the opportunity to evaluate the properties that the
Partnership will acquire and must rely totally upon the ability of the
General Partners with respect to the acquisition of properties.
. Some or all of the proceeds available for investment in real properties
may be invested in the acquisition and construction of undeveloped
properties, which would involve risks relating to the builder's ability
to control construction costs, failure to perform, or failure to build
in conformity with plan specifications and timetables, thus potentially
subjecting the Partnership to cost overruns and time delays for
properties under construction. Increased costs of newly constructed
properties may have the effect of reducing returns to Limited Partners,
while construction delays may have the effect of delaying distributions
of cash flow from operations.
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. As a result of the fact that the General Partners are also general
partners of other real estate limited partnerships and will continue to
engage in other business activities, the General Partners will have
conflicts of interest in allocating their time between the Partnership
and other partnerships and activities. They will also have conflicts of
interest when evaluating potential investments for the Partnership in
deciding which entity will acquire a particular property, and in leasing
properties in the event that the Partnership and another program managed
by the General Partners were to compete for the same tenants in
negotiating leases.
. The Partnership is authorized to borrow amounts up to 25% of the total
purchase price of Partnership Properties in order to finance the
maintenance and repair or improvement of Partnership Properties under
certain conditions; provided, however, that (i) the Partnership will be
acquiring properties only on an all cash basis and the General Partners
do not intend to cause the Partnership to borrow any funds and (ii) the
Partnership will not borrow any funds until it first obtains an opinion
of counsel that more likely than not the indebtedness to be obtained
will not cause its income to be taxed as unrelated business taxable
income (UBTI). (See "INVESTMENT OBJECTIVES AND CRITERIA--Borrowing
Policies.")
See the "RISK FACTORS" section of this Prospectus for a discussion of
the risk factors relating to an investment in the Units.
TERMS OF THE OFFERING:
The offering of Units of Wells Real Estate Fund X, L.P.
will commence upon the date of this Prospectus and will
continue until and terminate upon the earlier of (i)
December 30, 1997, or (ii) the date on which all
$35,000,000 in Units of Wells Real Estate Fund X, L.P. have
been sold. The offering of Units of Wells Real Estate Fund
XI, L.P. will commence immediately upon the termination of
the offering of Units of Wells Real Estate Fund X, L.P. and
will continue until and terminate upon the earlier of (i)
December 30, 1998, or (ii) the date on which all
$35,000,000 in Units of Wells Real Estate Fund XI, L.P. have
been sold, provided that in the event that the offering of
Units of Wells Real Estate Fund XI, L.P. commenced prior to
December 31, 1997, the General Partners may elect to
terminate the offering of Wells Real Estate Fund XI, L.P. at
any time subsequent to one year after the commencement date
of the offering. For each of the Partnerships' Offerings,
subscription proceeds will be held in escrow until
subscriptions for at least $1,250,000 (125,000 Units) have
been received and accepted by the General Partners.
PROPERTIES:
The Partnership will seek to acquire and operate commercial properties,
including without limitation, office buildings, shopping centers,
business and industrial parks and other commercial and industrial
properties, on an all cash basis, including properties which are under
construction or development, are newly constructed, or have been
constructed and have operating histories. All such properties may be
acquired, developed and operated by the Partnership alone or jointly
with another party. The Partnership is likely to enter into one or more
joint ventures with Affiliated entities for the acquisition of
properties. In this connection, the Partnerships may enter into joint
ventures for the acquisition of properties with each other, and either
or both of the Partnerships may enter into joint ventures for the
acquisition of properties with prior or future real estate limited
partnership programs sponsored by the General Partners or their
Affiliates. As of the date of this Prospectus, the Partnership has
neither purchased nor contracted to purchase any properties, nor have
the General Partners identified any properties in which there is a
reasonable probability that the Partnership will invest. (See "REAL
PROPERTY INVESTMENTS," "INVESTMENT OBJECTIVES AND CRITERIA" and
"CONFLICTS OF INTEREST.")
ESTIMATED USE OF
PROCEEDS OF OFFERING:
It is anticipated that approximately 81% of the proceeds of this
Offering will actually be invested in Partnership Properties, and the
remainder will be used to pay selling commissions and fees and expenses
relating to the selection and acquisition of properties and the costs of
organizing the Partnership and the Offering. (See "ESTIMATED USE OF
PROCEEDS" for a breakdown of the Partnership's estimated use of the
capital raised in the Offering. See also "COMPENSATION OF THE GENERAL
PARTNERS AND AFFILIATES" regarding the compensation and fees to be paid
to the General Partners and their Affiliates.)
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INVESTMENT OBJECTIVES:
The Partnership's objectives are: (i) to maximize Net Cash From
Operations; (ii) to preserve, protect and return the Capital
Contributions of the Partners; and (iii) to realize capital appreciation
upon the ultimate sale of Partnership Properties. These investment
objectives may not be changed except upon approval of a majority in
interest of the Limited Partners. Certain real estate programs
previously sponsored by the General Partners and their Affiliates, each
of which have investment objectives similar to those of the Partnership,
have experienced fluctuating financial performance, as shown in the
tables included in Exhibit "A" hereto. Many of the real properties in
which such prior programs have invested have experienced the same
economic problems as other real estate investments in recent years,
including without limitation, general over-building and an excess of
supply in many markets, along with increased operating costs and a
general downturn in the real estate industry. These prior programs have
not yet sold any real property investments and thus no evaluation can be
made as to whether these prior programs will achieve their objectives of
returning Capital Contributions or realizing capital appreciation upon
the sale of such properties. (See "INVESTMENT OBJECTIVES AND CRITERIA"
and "PRIOR PERFORMANCE SUMMARY.")
CONFLICTS OF INTEREST:
The General Partners and their Affiliates will experience conflicts of
interest in connection with the management of the Partnership, including
the following:
. The General Partners and their Affiliates are also general partners of
other real estate limited partnerships and expect that they will
organize additional real estate partnerships in the future. As a
result, investors should be aware that the General Partners and their
Affiliates will have to allocate their time between the Partnership
and other such partnerships and activities and may have conflicts of
interest in deciding which partnership will acquire a particular
property.
. The Partnership may acquire properties in the same geographic areas
where other properties owned or managed by the General Partners and
their Affiliates are located, resulting in potential conflicts in the
leasing or resale of the Partnership's properties in the event that
the Partnership and another program managed by the General Partners or
their Affiliates were to attempt to compete for the same tenants in
negotiating leases or to sell similar properties at the same time.
. Since it is anticipated that the Partnership's properties will be
managed by an Affiliate of the General Partners, the Partnership will
not have the benefit of independent property management, and investors
must rely on the General Partners and their Affiliates for management
of the Partnership's properties.
. The Partnership is likely to enter into one or more joint ventures for
the acquisition and operation of specific properties with Affiliates
of the General Partners, resulting in potential conflicts of interest
in determining which partnership should enter into a particular joint
venture, in structuring the terms of the relationship and in managing
the joint venture.
. Fees payable to the General Partners and their Affiliates in
connection with Partnership transactions involving the purchase,
management and sale of Partnership Properties are not the result of
arm's-length negotiations and will be payable regardless of the
quality of the property acquired or the services provided to the
Partnership.
See the "CONFLICTS OF INTEREST" section of this Prospectus for a
discussion of the various conflicts of interest relating to an
investment in the Units.
PRIOR OFFERING SUMMARY:
The General Partners and their Affiliates have previously sponsored ten
publicly offered real estate limited partnerships on an unspecified
property or "blind pool" basis. The total amount of funds raised from the
approximately 22,130 investors in these limited partnerships as of
September 30, 1996 was approximately $225,837,498, and the amount of such
funds invested in properties as of September 30, 1996 was approximately
$149,703,830. Certain of these previously sponsored real estate programs
have experienced fluctuating financial performance in recent years. The
"PRIOR PERFORMANCE SUMMARY" section of this Prospectus contains a
discussion of the public as well as private real estate limited
partnerships sponsored by the General Partners and their Affiliates
during the past ten years. Certain statistical data relating to prior
public limited partnerships with investment objectives similar to those
of the Partnership are contained in the "PRIOR PERFORMANCE TABLES"
included as Exhibit "A" to this Prospectus.
COMPENSATION TO GENERAL PARTNERS AND AFFILIATES:
The General Partners and their Affiliates will receive compensation and
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<PAGE>
fees for services relating to this Offering and in connection with the
investment and management of the Partnership's assets which are not
the result of arm's-length negotiations and will be paid regardless of
the quality of the property acquired or the services provided to the
Partnership. The most significant items of compensation are:
Offering Stage: Sales commissions of 8% of Gross Offering Proceeds
payable to an Affiliate of the General Partners, all or a part of
which may be reallowed to unaffiliated participating broker-dealers; a
dealer manager fee of 2% of Gross Offering Proceeds payable to an
Affiliate of the General Partners, a portion of which may be reallowed
to unaffiliated participating broker-dealers as a marketing fee; and
up to 5% of Gross Offering Proceeds as a reimbursement of costs and
expenses of organizing the Partnership, including legal, accounting,
printing, marketing and other offering expenses, a majority of which
will be paid to third parties unaffiliated with the General Partners.
Acquisition Stage: A fee of up to 5% of Gross Offering Proceeds in
connection with the selection, valuation and acquisition of properties
(subject to certain overall limitations), which is payable regardless
of the quality of the properties acquired by the Partnership; and
reimbursement of costs and expenses for the acquisition of properties.
Operational Stage: A property management and leasing fee in the amount
of up to 6% of gross revenues plus a one-time initial rent-up or
leasing-up fee for the leasing of newly constructed properties, in an
amount not to exceed the customary fee payable in an arm's-length
transaction; and, after Limited Partners holding Class A Status Units
have received cash distributions equal to 10% of their remaining
capital invested in the Partnership, 10% of current cash flow
distributions of the Partnership.
Liquidation Stage: After (i) each Limited Partner holding Units which
at any time have been treated as Class B Status Units has received
cash distributions in an amount which, when added to any cash
previously distributed to such Limited Partner, will equal the amount
of cash distributions previously paid to Limited Partners holding
Units which at all times have been treated as Class A Status Units,
(ii) Limited Partners have received a return of their invested
capital, and (iii) Limited Partners holding Class A Status Units have
received a 10% per annum return on their invested capital and Limited
Partners holding Class B Status Units have received a 15% per annum
return on their invested capital, then the General Partners are
entitled to receive the following amounts of Nonliquidating Net Sale
Proceeds and Liquidating Distributions: (a) an amount equal to their
Capital Contributions, and (b) 20% of remaining amounts of
Nonliquidating Net Sale Proceeds and Liquidating Distributions
available for distribution (provided, however, that in no event will
the General Partners receive in the aggregate more than the NASAA
Guidelines Resale Proceeds Maximum Amount); and a real estate
brokerage commission of up to 3% of the sale price of properties sold
by the Partnership, the payment of which is subordinated to
distributions to Limited Partners in aggregate amounts so that Limited
Partners will receive a return of their remaining capital invested in
the Partnership plus a 6% per annum return on their remaining capital
invested in the Partnership.
There may be a number of other smaller items of incidental expense
reimbursement that the General Partners and their Affiliates may
receive during the operation and liquidation stages of the
Partnership. (See "COMPENSATION OF THE GENERAL PARTNERS AND
AFFILIATES" and "CONFLICTS OF INTEREST.")
DEPRECIATION AND COST
RECOVERY METHOD:
For income tax purposes, the Partnership intends to use the straight-
line method of depreciation for the real properties to be acquired.
(See "FEDERAL INCOME TAX CONSEQUENCES.")
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PARTNERSHIP TERM:
Each Partnership was formed on June 20, 1996, and will continue in
existence until all the Partnership's properties have been sold or the
occurrence of certain other events but, in any event, will terminate no
later than December 31, 2026. The Partnership will be liquidated upon
the ultimate disposition of the Partnership's Properties, which the
General Partners currently anticipate will occur a minimum of ten to
twelve years after acquisition and development of the last Partnership
Property acquired. (See "SUMMARY OF PARTNERSHIP AGREEMENT - Dissolution
and Termination.")
REPURCHASE RESERVE:
One year following the termination of this Offering, the General
Partners will have the option, in their sole discretion, of establishing
a Repurchase Reserve in an amount of up to 5% of Cash Flow on an annual
basis, pursuant to which the Limited Partners may be able to resell
their Units to the Partnership at a discount. The General Partners may
also terminate the Repurchase Reserve at any time in their sole
discretion. (See "SUMMARY OF PARTNERSHIP AGREEMENT.")
DISTRIBUTION
REINVESTMENT PLAN:
The General Partners may establish a Distribution Reinvestment Plan
which will be available for Limited Partners who wish to participate,
pursuant to which distributions of Net Cash From Operations from the
Partnership may be automatically invested in (a) Units of the
Partnership during the Offering period of each respective Partnership,
or (b) units of subsequent real estate limited partnerships sponsored by
the General Partners or their Affiliates which have substantially
identical investment objectives as the Partnership following the
expiration of the Offering period. The General Partners in their
discretion may elect not to provide a Distribution Reinvestment Plan.
Limited Partners who participate in the Distribution Reinvestment Plan
will be allocated their share of the Partnership's taxable income even
though such Partners will receive no cash distributions from the
Partnership, which may result in tax liability for such participants
even though they would receive no cash distributions with which to pay
such tax liability. (See "SUMMARY OF PARTNERSHIP AGREEMENT -
Distribution Reinvestment Plan" and "RISK FACTORS - Federal Income Tax
Risks.")
DISTRIBUTIONS AND
ALLOCATIONS:
See the "DESCRIPTION OF THE UNITS" and "DISTRIBUTIONS AND ALLOCATIONS"
sections of this Prospectus for a description of the allocation and
distribution of current cash flow from operations and the net proceeds
from the sale or exchange of Partnership Properties and the allocation
of taxable income and loss of the Partnership.
Distributions of cash flow from operations to Limited Partners holding
Class A Status Units are expected to commence no later than the end of
the sixth full quarter of Partnership operations. No distributions of
cash flow from operations will be allocated to Limited Partners holding
Class B Status Units.
PARTNERSHIP AGREEMENT:
The respective rights and obligations of the Partners and the
relationship between the Limited Partners and the General Partners will
be governed by the Partnership's Amended and Restated Agreement of
Limited Partnership (the "Partnership Agreement"). Some of the
significant features of the Partnership Agreement include the following:
. Voting Rights. Limited Partners owning a majority of the Units may
vote to: (a) amend the Partnership Agreement, subject to certain
limitations, (b) change the business purpose or investment objectives
of the Partnership, and (c) remove a General Partner. In the event of
any such vote, Limited Partners not voting with the majority will
nonetheless be bound by the majority vote.
. Mergers and Consolidations. The Partnership Agreement prohibits the
General Partners from initiating any transaction wherein the
Partnership is merged or consolidated with any other partnership or
corporation, and the General Partners are not authorized to merge or
consolidate the Partnership with any other partnership or corporation
unless such action is approved by Limited Partners owning a majority
of the Units.
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. Restrictions on Transferability of Units. While the Partnership
Agreement does allow certain transfers, there are a number of
significant restrictions on the transferability of Units, including:
(a) securities laws restrictions, (b) the application of suitability
standards to the proposed transferees of Units, (c) restrictions
regarding the potential of the Partnership becoming a "publicly traded
partnership" (generally a partnership whose interests are publicly
traded or frequently transferred), and (d) restrictions regarding
potential termination of the Partnership for tax purposes. No public
market for the Units currently exists or is expected to develop.
For a more detailed discussion concerning the terms of the Partnership
Agreement, please refer to the "SUMMARY OF PARTNERSHIP AGREEMENT"
section of this Prospectus. All statements made herein and elsewhere
in this Prospectus are qualified in their entirety by reference to the
Partnership Agreement which is set forth in its entirety as Exhibit
"B" to this Prospectus.
GLOSSARY:
Certain terms which have initial capital letters in
this Prospectus are defined under the caption "GLOSSARY."
RISK FACTORS
The purchase of Units involves a number of risk factors. In addition
to the factors set forth elsewhere in this Prospectus, prospective investors
should consider specifically the following:
INVESTMENT RISKS
LIMITED TRANSFERABILITY AND LACK OF LIQUIDITY OF THE UNITS. Except
for intra-family transfers by gift or inheritance, the Units have limited
transferability, including transfer limitations under the provisions of the
Partnership Agreement relating to the Repurchase Reserve. The Partnership and
certain state regulatory agencies have imposed certain restrictions relating to
the number of Units which may be transferred by a Limited Partner and, with the
exception of intra-family transfers or transfers made by gift, inheritance or
family dissolution, the suitability standards applied to initial purchasers of
the Units may also be applied to assignees as a condition to their substitution
as Limited Partners. It is not anticipated that a public trading market will
develop for the Units and, in fact, the Partnership Agreement restricts the
ability of the Partnership to participate in a public trading market or the
substantial equivalent thereof. Specifically, the Partnership Agreement
provides that any transfer which may cause the Partnership to be classified as a
"publicly traded partnership" shall be deemed void and shall not be recognized
by the Partnership. Because of the fact that the classification of the
Partnership as a "publicly traded partnership" would significantly decrease the
value of the Units, the General Partners intend to exercise fully their rights
to prohibit transfers of Units which could cause the Partnership to be
classified as a "publicly traded partnership." Limited Partners may not,
therefore, be able to liquidate their investment in the event of an emergency,
and the Units may not be readily accepted as collateral for a loan.
Consequently, Units in the Partnership should be considered only as a long-term
investment. (See "SUMMARY OF PARTNERSHIP AGREEMENT - Transferability of
Units.")
SUBSTANTIAL RELIANCE ON THE GENERAL PARTNERS. All decisions with
respect to the management of the Partnership will be made exclusively by the
General Partners. The Limited Partners will have no right or power to take part
in the management of the Partnership except through the exercise of their voting
rights, which are limited. The General Partners may be removed under certain
conditions, as set forth in the Partnership Agreement, subject to their receipt
of payment equal to the fair market value of their interests in the Partnership.
(See "SUMMARY OF PARTNERSHIP AGREEMENT.")
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LIMITED AND ILLIQUID NET WORTH OF THE GENERAL PARTNERS. The General
Partners have represented that, as of September 30, 1996, they have a combined
net worth on an estimated fair market value basis in excess of $2,591,000
(exclusive of home, automobiles and home furnishings). When the net worth of
Wells Partners is calculated on a generally accepted accounting principles
(GAAP) basis (i.e., Wells Partners' investments are valued at cost instead of
estimated fair market value) as of September 30, 1996, the combined net worth of
the General Partners is approximately $1,691,000. The net worth of the General
Partners, however, consists primarily of interests in real estate and interests
in retirement plans and closely-held businesses, and thus such net worth is
substantially illiquid and not readily marketable. The limited net worth of the
General Partners and illiquid nature of such net worth, together with the other
commitments of the General Partners, may be relevant in evaluating the ability
of the General Partners to fulfill their financial obligations and
responsibilities to the Partnership, including but not limited to, the General
Partners' obligation to advance on an interest-free basis an amount of up to 1%
of Gross Offering Proceeds for maintenance and repairs of Partnership Properties
to the extent that the Partnership has insufficient funds for such purposes.
Such commitments include those relating to other limited partnerships which have
been formed in the past and other limited partnerships which the General
Partners may organize in the future. (See "CONFLICTS OF INTEREST - Interests in
Other Partnerships," "PRIOR PERFORMANCE SUMMARY" and "MANAGEMENT.")
LIMITATIONS OF RIGHTS OF THE LIMITED PARTNERS. The Partnership is a
limited partnership formed under the Georgia Revised Uniform Limited Partnership
Act ("GRULPA"), and accordingly, the rights of the Limited Partners are limited
to rights provided either under GRULPA or contained in the Partnership
Agreement. In this regard, the Partnership Agreement provides that Limited
Partners owning a majority of the outstanding Units may exercise certain voting
rights, including the right to amend the Partnership Agreement, to change the
business purpose or investment objectives of the Partnership, to remove the
General Partners, or to authorize a merger or a consolidation of the Partnership
under certain circumstances. Because Limited Partners owning a majority of the
Units may approve any of the foregoing actions, Limited Partners not voting with
the majority will nonetheless be bound by the majority vote. (See "SUMMARY OF
LIMITED PARTNERSHIP AGREEMENT.")
POSSIBLE LACK OF DIVERSIFICATION RESULTING FROM SUBSCRIPTIONS FOR LESS
THAN THE MAXIMUM NUMBER OF UNITS. To the extent that less than the maximum
number of Units are sold, the diversification of the Partnership's investments
will be decreased and the extent to which the Partnership's profitability will
be affected by any one of its investments will increase. For example, in the
event that the gross proceeds from the Offering of Units of the Partnership
total only $1,250,000 (the minimum amount needed for the Partnership to release
initial funds from escrow and commence operations), the Partnership may acquire
an interest in only one property and, therefore, would not achieve
diversification of its investments. Lack of diversification of the
Partnership's investments will have the effect of increasing the risks
associated with an investment in the Units.
POTENTIAL CONFLICT RELATING TO THE GENERAL PARTNERS' RIGHT TO PURCHASE
UNITS. Pursuant to the terms of the Offering, the General Partners or their
Affiliates may purchase Units for their own account. In addition, as set forth
above, the General Partners have broad discretion in choosing between
investments in various types of income-producing and non-income-producing
properties, which will affect the relative performance between the Class A
Status Units and the Class B Status Units. Units acquired and held by the
General Partners or their Affiliates shall at all times be treated as Class A
Status Units. Accordingly, in the event the General Partners or their
Affiliates do purchase Units, they would then have an incentive to acquire
properties which would produce more favorable results for the Class A Status
Units, which could adversely affect Limited Partners electing Class B Status for
their Units. (See "INVESTMENT OBJECTIVES AND CRITERIA" and "PLAN OF
DISTRIBUTION.")
RESTRICTIONS AND LIMITATIONS ON REPURCHASE RESERVE. The Partnership
may establish a Repurchase Reserve of up to 5% of Cash Flow annually, whereby
the Partnership may, in the sole discretion of the General Partners and upon the
request of a Limited Partner, repurchase the Units held by such Limited Partner.
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The Repurchase Reserve may be established only after the expiration of one year
following the termination of the Offering, and if established, the Repurchase
Reserve may be terminated at any time in the sole discretion of the General
Partners. Since the establishment of a Repurchase Reserve is in the sole
discretion of the General Partners, the Partnership is under no obligation to
establish a Repurchase Reserve or to repurchase Units from any Limited Partner.
In addition, even if a Repurchase Reserve is established, the Partnership
Agreement limits repurchases out of the Repurchase Reserve to an aggregate of
not more than 2% of Gross Offering Proceeds throughout the life of the
Partnership (excluding repurchases relating to death or legal incapacity of the
owner and repurchases relating to a substantial reduction in the owner's net
worth or income). Accordingly, in considering an investment in the Partnership,
prospective investors should not assume that they will be able to sell any of
their Units back to the Partnership. However, in the event that the Partnership
does establish a Repurchase Reserve, the purchase price per Unit will be equal
to 85% of the fair market value of the Units until three years from the
effective date of the Registration Statement and 90% of the fair market value of
the Units thereafter. Fair market value will be determined by the General
Partners based upon an estimate of the amount the Limited Partners would receive
if the Partnership's real estate investments were sold for their estimated value
and if such proceeds were distributed in a liquidation of the Partnership.
Accordingly, Limited Partners liquidating their Units by selling them back to
the Partnership may receive less than they would receive if the Partnership's
real estate investments were sold for their estimated value and such proceeds
were distributed in a liquidation of the Partnership. (See "SUMMARY OF
PARTNERSHIP AGREEMENT - Repurchase of Units.")
POTENTIAL LIABILITY OF LIMITED PARTNERS. A Limited Partner's
liability, in general, will be limited to the amount he agrees to contribute to
the capital of the Partnership plus his share of any undistributed profits and
assets. While GRULPA provides that Limited Partners would retain their limited
liability even if they exercise their rights under the Partnership Agreement,
including without limitation, the right to vote on certain matters such as the
right to remove General Partners and elect successor general partners, this
provision of GRULPA has not yet been interpreted by a court, and accordingly, no
assurance can be given that courts will ultimately uphold the limited liability
of Limited Partners in this regard. (See "SUMMARY OF PARTNERSHIP AGREEMENT -
Voting Rights of the Limited Partners.")
OFFERING PRICE ARBITRARILY ESTABLISHED. The selling price of the
Units offered hereby was determined arbitrarily by the General Partners and
bears no relationship to any established criteria for valuing issued or
outstanding units of limited partnership interest or other ownership interests
at the present time.
SUBSTANTIAL MANAGEMENT COMPENSATION. The General Partners and their
Affiliates will perform services for the Partnership in connection with the
offer and sale of Units, the selection and acquisition of the Partnership's
properties, and the management and leasing of the Partnership's properties, and
will receive substantial compensation from the Partnership in consideration for
these services. The amount of such compensation has not been determined in
arm's-length negotiations, and such amounts will be payable regardless of the
quality of services provided to the Partnership and prior to any distributions
to Limited Partners. (See "COMPENSATION OF THE GENERAL PARTNERS AND AFFILIATES"
and "CONFLICTS OF INTEREST.")
NO ASSURANCE OF CASH DISTRIBUTIONS. There is no assurance as to when
or whether sufficient cash will be available for distributions to the Limited
Partners from either Net Cash From Operations or Sale Proceeds. The Partnership
bears all expenses incurred in its operations, which are deducted from cash
funds generated by operations prior to computing the amount of Net Cash From
Operations to be distributed to the General and Limited Partners. In addition,
the General Partners, in their discretion, may retain any portion of such funds
for working capital purposes of the Partnership. Although gains from the sales
of properties typically represent a substantial portion of any profits
attributable to a real estate investment, there can be no assurance as to the
ability of the Partnership to realize gains on the resales of its properties,
and, in any event, distribution of such proceeds should not be expected to occur
during the early years of Partnership operations. Sales of properties developed
by the Partnership generally will not occur until after completion of the
development and construction of the properties and a period of ownership of at
least ten years thereafter. Further, receipt of the full proceeds of such sales
may be extended over a substantial period of time following the sales. In
addition, the amount of taxable gain allocated to a Limited Partner with respect
to the sale of a Partnership Property could exceed the cash proceeds received
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from such sale. While Sale Proceeds will generally be distributed to Partners,
Sale Proceeds need not be distributed to the Partners if such proceeds are, in
the discretion of the General Partners, (i) used to purchase land underlying any
of the Partnership's Properties, (ii) used to buy out the interest of any co-
venturer or joint venture partner in a property which is jointly owned, (iii)
held as working capital reserves, or (iv) used to make capital improvements in
existing Partnership Properties. Notwithstanding the foregoing, reinvestment of
Sale Proceeds will not occur unless sufficient cash will be distributed to pay
any federal or state income tax (assuming Limited Partners will be subject to a
35% combined federal and state tax bracket) created by the sale of the property.
(See "INVESTMENT OBJECTIVES AND CRITERIA - Disposition Policies" and "FEDERAL
INCOME TAX CONSEQUENCES - Sales of Partnership Properties.")
NO IDENTIFIED SOURCES FOR FUNDING OF FUTURE CAPITAL NEEDS. As the
Partnership raises capital from investors, substantially all of the gross
proceeds of the Offering will be used for investment in Partnership Properties
and for payment of various fees and expenses. (See "ESTIMATED USE OF
PROCEEDS.") In addition, it is not anticipated that the Partnership will
maintain any permanent working capital reserves. Accordingly, in the event that
the Partnership develops a need for additional capital in the future for the
improvement of its properties or for any other reason, no sources for such
funding have been identified, and no assurance can be made that such sources of
funding will be available to the Partnership for potential capital needs in the
future.
CONSEQUENCES OF JOINT VENTURES INVESTMENTS. The Partnership is
likely to enter into one or more joint ventures with Affiliated entities for the
acquisition, development or improvement of properties. In this regard, the
Partnerships may enter into joint ventures with each other, and either or both
of the Partnerships may enter into joint ventures with future programs sponsored
by the General Partners or their Affiliates or Prior Wells Public Programs. The
Partnership may purchase and develop properties in joint ventures or in
partnerships, co-tenancies or other co-ownership arrangements with Affiliates of
the General Partners, the sellers of the properties, affiliates of the sellers,
developers or other persons. Such investments may under certain circumstances
involve risks not otherwise present, including, for example, the possibility
that the Partnership's co-venturer, co-tenant or partner in an investment might
become bankrupt, that such co-venturer, co-tenant or partner may at any time
have economic or business interests or goals which are inconsistent with the
business interests or goals of the Partnership, or that such co-venturer, co-
tenant or partner may be in a position to take action contrary to the
instructions or the requests of the Partnership or contrary to the Partnership's
policies or objectives. Actions by such a co-venturer, co-tenant or partner
might have the result of subjecting the property to liabilities in excess of
those contemplated and may have the effect of reducing returns to Limited
Partners. In addition, since there is no requirement that any joint venture
partner, co-tenant or other co-owner of properties purchased jointly with the
Partnership be subject to a custodial agency agreement, such investments may not
be afforded the same protections as investments in properties made directly by
the Partnership or in joint ventures with Affiliates of the General Partners.
Under certain joint venture arrangements, neither co-venturer may have the power
to control the venture, and an impasse could be reached regarding matters
pertaining to the joint venture, possibly detrimentally impacting the success of
the joint venture and decreasing potential returns to Limited Partners. In the
event a co-venturer has a right of first refusal to buy out the other co-
venturer, it may be unable to finance such buy-out at that time. It may also be
difficult for the Partnership to sell its interest in any such joint venture or
partnership or as a co-tenant in property. In addition, to the extent that the
Partnership's co-venturer or partner is an Affiliate of the General Partners,
certain conflicts of interest will exist. (See "CONFLICTS OF INTEREST - Joint
Ventures with Affiliates of the General Partners.")
SPECIAL RISKS REGARDING CLASSES OF UNITS
SPECIAL RISKS RELATING TO AN ELECTION OF CLASS A STATUS UNITS. Since
holders of Class A Status Units will be allocated substantially all of the
Partnership's net income, while substantially all deductions for depreciation,
amortization, cost recovery and net losses will be allocated to holders of Class
B Status Units, it is expected that Limited Partners holding Class A Status
Units will be allocated taxable income in excess of distributions of cash flow
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from operations received. However, while there is no assurance that cash flow
will be available for distribution to Class A Limited Partners in any year,
based upon the cash distributions and taxable income allocations to Class A
Limited Partners in Prior Wells Public Programs, the General Partners expect
that cash distributions to Limited Partners holding Class A Status Units will be
sufficient to cover the income tax liability resulting from allocations of
taxable income of the Partnership. In addition, potential investors who plan to
elect Class A Status for their Units should be aware that, in the event that the
Partnership sells substantially more Class A Status Units than Class B Status
Units, Limited Partners purchasing Class A Status Units in the Partnership may
not receive appreciably greater cash flow distributions from the Partnership due
to the capital raised from the sale of Class B Status Units. There are no
restrictions as to the mix between Class A Status Units and Class B Status
Units, and the General Partners will not attempt to establish or maintain any
particular ratio between Class A Status Units and Class B Status Units.
SPECIAL RISKS RELATING TO AN ELECTION OF CLASS B STATUS UNITS.
Potential investors who plan to elect Class B Status for their Units should be
aware that they will not receive any distributions of cash flow from operations
from the Partnership. Further, although Limited Partners holding Class B Status
Units will be allocated a disproportionately larger share of the Partnership's
deductions for depreciation, amortization, cost recovery and net losses, all
such losses will be treated as "passive" losses, which may only be used to
offset "passive" income and may not be used to offset active or portfolio
income. Accordingly, a Class B Status Limited Partner's pro rata share of the
Partnership's passive losses may have no current benefit to such Class B Status
Limited Partner unless he is being allocated passive income from other sources
with respect to such year. Further, there are no assurances that any such
losses will be available to be allocated to Class B Status Limited
Partners.
EFFECT OF UNSPECIFIED NATURE OF OFFERING ON RELATIVE PERFORMANCE OF
CLASS A STATUS UNITS AND CLASS B STATUS UNITS. As set forth above, the General
Partners have not identified any properties in which there is a reasonable
probability that the Partnership will invest. In addition, the General Partners
have broad discretion in choosing between investments in various types of
income-producing and non-income-producing properties, which will have an effect
on the relative performance between Class A Status Units and Class B Status
Units. It is anticipated that holders of Class A Status Units would potentially
benefit to a greater extent than holders of Class B Status Units if the majority
of the Partnership's investments are in properties which generate relatively
high cash flows but have lower potential for appreciation; conversely, a greater
percentage of investments in properties generating less current cash flow but
having greater potential for appreciation in value may benefit holders of Class
B Status Units to a greater extent than holders of Class A Status Units. The
unspecified nature of the Offering may impair the ability of investors to make
an informed decision as to whether to elect Class A Status or Class B Status in
light of the different features of Class A Status Units and Class B Status
Units. (See "INVESTMENT OBJECTIVES AND CRITERIA.")
INDETERMINATE RATIO OF CLASS A STATUS UNITS TO CLASS B STATUS UNITS.
Class A Status Units and Class B Status Units each entitle the holder thereof to
different rights and priorities as to allocation of depreciation, amortization
and cost recovery deductions and as to Net Cash From Operations. However, the
effect of any advantage associated with the election of Class A Status or Class
B Status may be significantly reduced (or eliminated), depending upon the ratio
of Class A Status Units to Class B Status Units outstanding during any given
period. There are no restrictions as to the mix of Class A Status Units to Class
B Status Units, and the General Partners will not attempt to establish or
maintain any particular ratio. Therefore, there can be no assurance as to the
actual impact of the special rights and priorities to which holders of the two
classes of Units are respectively entitled.
REAL ESTATE RISKS
FLUCTUATING FINANCIAL PERFORMANCE OF PREVIOUSLY SPONSORED PARTNERSHIPS
. The real properties in which partnerships previously sponsored by the General
Partners and their Affiliates have invested have experienced the same economic
problems as other real estate investments in recent years, including without
limitation, general over-building and an excess of supply in many markets, along
with increased operating costs and a general downturn in the real estate
industry. The historical fluctuations in net income of partnerships previously
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sponsored by the General Partners and their Affiliates were primarily due to
tenant turnover, resulting in increased vacancies and the requirement to expend
funds for tenant refurbishments, and increases in administrative and other
operating expenses. Specifically, certain of the prior public partnerships
suffered decreases in net income during the real estate recession of the late
1980s and early 1990s, which decreases were generally attributable to the
overall downturn in the economy and in real estate markets in particular.
Because of the cyclical nature of the real estate market, such decreases in net
income of the public partnerships could occur at any time in the future when
economic conditions decline. None of these prior programs has liquidated or
sold any of its real properties to date and, accordingly, no assurance can be
made that prior programs will ultimately be successful in meeting their
investment objectives. There are no assurances that properties acquired by the
Partnership will not also experience fluctuating financial performance. (See
"PRIOR PERFORMANCE SUMMARY" and the "PRIOR PERFORMANCE TABLES" included in
Exhibit "A" hereto.)
POTENTIAL ADVERSE ECONOMIC AND REGULATORY CHANGES. The Partnership
will be subject to risks generally incident to the ownership of real estate,
including changes in general economic or local conditions, changes in supply of
or demand for similar or competing properties in an area, changes in interest
rates and availability of permanent mortgage funds which may render the sale of
a property difficult or unattractive, and changes in tax, real estate,
environmental and zoning laws. Periods of high interest rates and tight money
supply may make the sale of properties more difficult. For these and other
reasons, no assurance of profitable operation or realization of gains from the
sales of Partnership Properties can be given.
UNSPECIFIED PROPERTY OFFERING. This offering is commonly referred to
as a "blind pool" offering in that the General Partners have not identified any
properties in which there is a reasonable probability that the Partnership will
invest. Investors must rely upon the ability of the General Partners with
respect to the investment and management of the unspecified properties and will
not have an opportunity to evaluate for themselves the relevant economic,
financial and other information regarding the specific properties in which the
proceeds of this Offering will be invested. Accordingly, the risk of investing
in the Units may be increased. While the Partnership is required to obtain an
independent appraisal for each property purchased reflecting an appraised value
at least equal to the purchase price paid for such property, it should be noted
that appraisals are merely estimates of value and should not be relied upon as
precise measures of true worth or realizable value. No assurance can be given
that the Partnership will be successful in obtaining suitable investments or
that, if investments are made, the objectives of the Partnership will be
achieved.
DEVELOPMENT AND CONSTRUCTION OF UNIMPROVED PROPERTIES. The Partnership
may invest some or all of the net proceeds available for investment in the
acquisition and development of properties upon which it will develop and
construct improvements at a fixed contract price, provided that the Partnership
may not invest more than 15% of the net offering proceeds available for
Investment in Properties in properties which are not expected to produce income
within two years of their acquisition. In this regard, the Partnership will be
subject to risks relating to the builder's ability to control construction costs
or to build in conformity with plans, specifications and timetables. The
builder's failure to perform may necessitate legal action by the Partnership to
rescind its purchase or the construction contract or to compel performance.
Performance may also be affected or delayed by conditions beyond the builder's
control. Delays in completion of construction could also give lessees the right
to terminate preconstruction leases for space at a newly developed project.
Additional risks may be incurred where the Partnership makes periodic progress
payments or other advances to such builders prior to completion of construction.
However, the Partnership will make such payments only after having received a
certification from an independent architect or an independent engineer, or both,
as to the percentage of the project which has been completed and as to the
dollar amount of the construction then completed. Factors such as those
discussed above can result in increased costs of a project and a corresponding
depletion of the Partnership's working capital reserves or loss of the
Partnership's investment. In addition, the Partnership will be subject to normal
lease-up risks relating to newly constructed projects. Furthermore, the price to
be paid for a property upon which improvements are to be constructed or
completed, which price is normally agreed upon at the time of acquisition, of
necessity must be based upon projections of rental income and expenses or fair
market value of the property upon completion of construction which are not
certain until after a number of months of actual operation.
COMPETITION FOR INVESTMENTS. The Partnership will experience
competition for real property investments from individuals, corporations and
bank and insurance company investment accounts, as well as other real estate
investment partnerships, real estate investment trusts and other entities
engaged in real estate investment activities. Competition for investments may
have the effect of increasing costs and reducing returns to Limited
Partners.
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POTENTIAL ADVERSE EFFECTS OF DELAYS IN INVESTMENTS. Delays which may
take place in the selection, acquisition and development of properties could
adversely affect the return to an investor as a result of corresponding delays
in the commencement of distributions to Limited Partners holding Class A Status
Units and in the availability to the holders of Class B Status Units of income
tax deductions for depreciation, amortization and cost recovery. Also, where
properties are acquired prior to the commencement of construction or during the
early stages of construction, it will typically take several months to complete
construction and rent available space.
UNCERTAINTY OF TIMING OF AND MARKET CONDITIONS ON FUTURE DISPOSITION
OF PROPERTIES. The Partnership generally will hold the various real properties
in which it invests until such time as the General Partners determine that the
sale or other disposition appears to be advantageous to achieve the
Partnership's investment objectives or until it appears that such objectives
will not be met. The General Partners intend to sell properties acquired for
development after holding such properties for a minimum period of ten years from
the date the development is completed, and intend to sell existing income-
producing properties within ten to twelve years after their acquisition, or as
soon thereafter as market conditions permit. However, the General Partners may
exercise their discretion as to whether and when to sell a property, and the
Partnership will have no obligation to sell properties at any particular time,
except in the event that Limited Partners holding a majority of the Units vote
to liquidate the Partnership in response to a formal proxy to liquidate. (See
"SUMMARY OF PARTNERSHIP AGREEMENT - Proxy to Liquidate.") It is impossible to
predict with any certainty the various market conditions affecting real estate
investments which will exist at any particular time in the future. Due to the
uncertainty of market conditions which may affect the future disposition of the
Partnership's properties, there are no assurances that the Partnership will be
able to sell its properties at a profit in the future. Accordingly, the timing
of liquidation of the Partnership and the extent to which Limited Partners will
receive cash distributions and realize potential appreciation on real estate
investments will be dependent upon fluctuating market conditions.
ENVIRONMENTAL MATTERS. Under various federal, state and local
environmental laws, ordinances and regulations, a current or previous owner or
operator of real property may be liable for the cost of removal or remediation
of hazardous or toxic substances on, under or in such property. Such laws often
impose liability whether or not the owner or operator knew of, or was
responsible for, the presence of such hazardous or toxic substances.
Environmental laws also may impose restrictions on the manner in which property
may be used or businesses may be operated, and these restrictions may require
expenditures. Environmental laws provide for sanctions in the event of
noncompliance and may be enforced by governmental agencies or, in certain
circumstances, by private parties. In connection with the acquisition and
ownership of the Partnership Properties, the Partnership may be potentially
liable for such costs. The cost of defending against claims of liability, of
compliance with environmental regulatory requirements or of remediating any
contaminated property could materially adversely affect the business, assets or
results of operations of the Partnership and, consequently, amounts available
for distribution to the Limited Partners.
FEDERAL INCOME TAX RISKS
An investment in Units involves certain material income tax risks, the
character and extent of which are, to some extent, a function of whether an
investor elects Class A Status or Class B Status. Each prospective purchaser of
Units is urged to consult with his own tax advisor with respect to the federal
(as well as state and foreign) tax consequences of an investment in either class
of Units. The Partnership will not seek any rulings from the Internal Revenue
Service (the "IRS") regarding any of the tax issues discussed herein. Although,
as described in the "FEDERAL INCOME TAX CONSEQUENCES" section of this
Prospectus, the Partnership has obtained an opinion from Holland & Knight
("Counsel") regarding the material federal income tax issues relating to an
investment in the Partnership, investors should be aware that an opinion of
Counsel represents only Counsel's best legal judgment. The Tax Opinion has no
binding effect on the IRS or any court, is based upon representations and
assumptions referred to therein and is conditioned upon the existence of certain
facts. No assurance can be given that the conclusions reached in the Tax
Opinion, if contested, would be sustained by any court. In addition, as set
forth below, Counsel in the Tax Opinion is unable to form an opinion as to the
probable outcome of certain material tax aspects of the transactions described
in this Prospectus if challenged by the IRS, litigated and judicially decided.
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Moreover, Counsel in the Tax Opinion gives no opinion or conclusion as to the
tax consequences to Limited Partners with regard to tax issues which impact at
the individual or partner level. Accordingly, potential investors are urged to
consult with and rely upon their own tax advisors with respect to tax issues
which impact at the partner or individual level. (For a more complete
discussion of the tax risks and tax consequences associated with an investment
in the Partnership, see "FEDERAL INCOME TAX CONSEQUENCES.")
FAILURE OF COUNSEL TO FORM AN OPINION ON CERTAIN MATERIAL TAX ISSUES.
As set forth above, Counsel in the Tax Opinion is unable to form an opinion as
to the probable outcome of certain material tax aspects of the transactions
described in this Prospectus if challenged by the IRS, litigated and judicially
decided, including (i) the deductibility of and timing of deductions for certain
payments made by the Partnership, (ii) the issue of whether the Partnership will
be considered to hold any or all of its properties primarily for sale to
customers in the ordinary course of business, and (iii) whether the Partnership
will be classified as a "tax shelter" for purposes of determining certain
potential exemptions from the applicability of the accuracy-related penalty
provisions of the Code. An adverse outcome of an IRS challenge to one or more of
the foregoing material tax issues attributable to the transactions contemplated
by the Partnership could have the effect of reducing returns to Limited Partners
from an investment in the Partnership.
POTENTIAL ADVERSE INCOME TAX EFFECTS RELATING TO LIMITED PARTNERS
HOLDING CLASS A STATUS UNITS. Since items of depreciation, amortization and
cost recovery will be specially allocated to Limited Partners holding Class B
Status Units, and Partnership Net Income (defined in the Partnership Agreement
to mean generally the net income of the Partnership for federal income tax
purposes, including any income exempt from tax, but excluding all deductions for
depreciation, amortization and cost recovery and Gain on Sale) in excess of the
amount of Net Cash From Operations distributed will be allocated to the Limited
Partners on a per Unit basis, Limited Partners holding Class A Status Units may
be allocated Net Income, and thus be subject to income tax liability, without
receiving any distributions of Net Cash From Operations from the Partnership.
Furthermore, it is likely that Limited Partners holding Class A Status Units
will be allocated taxable Net Income in excess of any distributions of Net Cash
From Operations to such Limited Partners. Such adverse income tax effects to
Limited Partners holding Class A Status Units may vary significantly depending
on the ratio of Class A Status Units to Class B Status Units outstanding. As
set forth above, there are no restrictions as to the mix of Class A Status Units
to Class B Status Units, and the General Partners will not attempt to establish
or maintain any particular ratio.
POTENTIAL LOSS OF PARTNERSHIP TAX STATUS. Even though Counsel in the
Tax Opinion has given its opinion that it is more likely than not that the
Partnership will be classified as a partnership for federal income tax purposes
and not as an association taxable as a corporation, this opinion is based upon
certain representations made by the General Partners and other matters, and it
is possible that the IRS could challenge the conclusion that the Partnership
should be treated as a partnership for tax purposes. Any contest by the
Partnership of such an IRS determination may impose representation expenses
payable from Partnership funds otherwise available for investment or
distribution to Limited Partners. The ability to obtain the income tax
attributes anticipated from an investment in Units of the Partnership depends
upon the classification of the Partnership as a partnership for federal income
tax purposes and not as an association taxable as a corporation. If the
Partnership were reclassified as an association taxable as a corporation, its
net income would be taxable (at rates up to 35% under current tax law), all
items of income, gain, loss, deduction and credit would be reflected only on its
tax returns and would not be passed through to the Limited Partners, and
distributions to the Limited Partners would be treated as ordinary dividend
income to the extent of earnings and profits of the Partnership. In such event,
cash distributions to Limited Partners would be reduced and the potential tax
liability of Limited Partners with respect to distributions received from the
Partnership would be increased.
POTENTIAL PUBLICLY TRADED PARTNERSHIP CLASSIFICATION. Even though
Counsel in the Tax Opinion has given its opinion that it is more likely than not
that the Partnership will not be classified as a "publicly traded partnership"
(generally a partnership whose interests are publicly traded or frequently
transferred) based in part upon certain representations of the General Partners
and the provisions in the Partnership Agreement attempting to comply with
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certain safe harbor provisions adopted by the IRS, due to the complex nature of
such safe harbor provisions and the lack of interpretive guidance with respect
to such provisions and because any determination in this regard will necessarily
be based upon future facts not yet in existence at this time, no assurances can
be given that the IRS will not challenge this conclusion in the future or that
the Partnership will not, at some time in the future, be treated as a publicly
traded partnership. Classification of the Partnership as a "publicly traded
partnership" could result in the Partnership being taxable as a corporation and
the treatment of net income of the Partnership as portfolio income rather than
passive income.
LIMITATIONS ON DEDUCTIBILITY OF LOSSES. Provisions of the Code
enacted as part of the Tax Reform Act of 1986 limit the allowance of deductions
for losses attributable to "passive activities" (generally activities in which
the taxpayer does not materially participate). Since tax losses from the
Partnership, if any, allocated to Limited Partners holding Class B Status Units
will be characterized as passive losses, the deductibility of such losses will
be subject to these and other limitations.
POSSIBILITY OF IRS CHALLENGE TO ALLOCATIONS OF PROFIT AND LOSS. Even
though Counsel in the Tax Opinion has given its opinion that it is more likely
than not that Partnership items of income, gain, loss, deduction and credit will
be allocated among the General Partners and the Limited Partners substantially
in accordance with the allocation provisions of the Partnership Agreement, no
assurance can be given that the IRS will not successfully challenge the
allocations in the Partnership Agreement and reallocate items of income, gain,
loss, deduction and credit in a manner which reduces the anticipated tax
benefits to Limited Partners electing Class B Status or increases the income
allocated to Limited Partners electing Class A Status.
POTENTIAL DEALER STATUS. In the event the Partnership were deemed for
tax purposes to be a "dealer" (one who holds property primarily for sale to
customers in the ordinary course of business) with respect to one or more
Partnership Properties, any gain recognized upon a sale of such real property
would be taxable as ordinary income and would constitute UBTI to Limited
Partners who are tax-exempt entities. Because the issue is dependent upon facts
which will not be known until the time a property is sold or held for sale,
Counsel in the Tax Opinion is unable to render an opinion as to whether the
Partnership will be considered to hold any or all of its properties primarily
for sale to customers in the ordinary course of business.
POSSIBILITY OF DISALLOWANCE OF DEDUCTIBILITY OF FEES AND EXPENSES PAID
BY THE PARTNERSHIP. Disallowance by the IRS of any material portion of the fees
and expenses payable by the Partnership would result in an increase in the
taxable income of the Partnership allocable to its Partners with no associated
increase in Net Cash From Operations. Since the appropriate classification of
fees and expenses paid by the Partnership into proper categories and the
determination of whether certain fees and expenses are ordinary and necessary
and reasonable in amount depends upon facts relating to and existing at the
times the services are to be rendered to the Partnership, Counsel in the Tax
Opinion is unable to render an opinion as to the probable outcome if the IRS
were to challenge the deductibility or timing of deduction or amortization of
those fees and expenses.
ALLOCATION OF TAXABLE INCOME WITHOUT CASH DISTRIBUTIONS. A partner in
a partnership is required to report his allocable share of the partnership's
taxable income on his personal income tax return regardless of whether or not he
has received any cash distributions from the partnership. For example, a Limited
Partner electing Class A Status who participates in the Distribution
Reinvestment Plan will be allocated his share of the Partnership's Net Income
and Gain on Sale (including Net Income and Gain on Sale allocable to Units
acquired pursuant to the Distribution Reinvestment Plan) even though such
Partner would receive no cash distributions from the Partnership. In addition, a
Limited Partner electing Class A Status who purchases Units pursuant to the
Deferred Commission Option will be allocated his share of the Partnership's Net
Income with respect to such Units even though Net Cash From Operations otherwise
distributable to such Limited Partner will instead be paid to third parties to
satisfy the deferred commission obligations with respect to such Units for a
period of seven years after the termination of the Offering. (See "PLAN OF
DISTRIBUTION.")
CHARACTERIZATION OF SALE-LEASEBACK TRANSACTIONS. In the event that the
Partnership enters into any sale-leaseback transaction which
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is characterized as a financing, the Partnership would likely lose depreciation
and cost recovery deductions with respect to the property purchased and income
generated from such property would be deemed portfolio income which could not be
offset by passive losses. Although the General Partners will use their best
efforts to structure any such sale-leaseback transaction such that the lease
will be characterized as a "true lease" and the Partnership will be treated as
the owner of the property in question for federal income tax purposes, the
Partnership will not seek an advance ruling from the IRS or obtain an opinion of
counsel that it will be treated as the owner of any leased properties for
federal income tax purposes. Accordingly, no assurance can be given that any
such transaction would not be recharacterized as a financing transaction for
federal income tax purposes, which would have the result of depriving Limited
Partners holding Class B Status Units of potential deductions for depreciation
and cost recovery with respect to the property in question.
APPLICABILITY OF ANTI-ABUSE RULES. In December 1994, the IRS
adopted Regulations setting forth "anti-abuse" rules under Code provisions
applicable to partnerships which rules authorize the Commissioner of Internal
Revenue to recast transactions involving the use of partnerships to either
reflect the underlying economic arrangement or to prevent the use of a
partnership to circumvent the intended purpose of a provision of the Code.
These rules generally apply to all transactions relating to a partnership
occurring on and after May 12, 1994, and thus would be applicable to the
Partnership's activities. In this regard, the General Partners are unaware of
any facts or circumstances which would cause the IRS to exercise its authority
to recast any transaction entered into by the Partnership; however, the
applicability of such rules to the Partnership's activities is very uncertain,
and no assurance can be given that the Commissioner would not, in the future,
attempt to recast or restructure certain of the Partnership's activities or
transactions.
POTENTIAL APPLICATION OF ALTERNATIVE MINIMUM TAX. The application of
the alternative minimum tax to a Limited Partner could reduce certain tax
benefits associated with the purchase of Units in the Partnership. The effect
of the alternative minimum tax upon a Limited Partner depends upon his
particular overall tax situation, and each Limited Partner should consult with
and must rely upon his own tax advisor with respect to the possible application
of the alternative minimum tax provisions of the Code.
AUDIT RISK, INTEREST AND PENALTIES. The federal income tax returns
of the Partnership may be audited by the IRS. In this regard, the Commissioner
of Internal Revenue has recently announced that increased emphasis is being
placed on partnership audit activities. Any audit of the Partnership could also
result in an audit of a Limited Partner's own tax return causing adjustments of
items unrelated to an investment in the Partnership, as well as an adjustment to
various Partnership items. In the event of any such adjustments, a Limited
Partner might incur attorneys' fees, court costs and other expenses contesting
protested deficiencies asserted by the IRS, in addition to interest on the
underpayment and certain penalties from the date the tax originally was due. In
addition, in the event of an audit, the tax treatment of all Partnership items
would be determined at the Partnership level in a single proceeding rather than
in separate proceedings with each Partner, and the General Partners are
primarily responsible for contesting federal income tax adjustments proposed by
the IRS. In this connection, the General Partners may extend the statute of
limitations as to all Partners and, in certain circumstances, may bind the
Limited Partners to a settlement with the IRS.
STATE AND LOCAL TAXATION AND REQUIREMENTS TO WITHHOLD STATE TAXES. The
state in which a Limited Partner is a resident may impose an income tax upon his
share of taxable income of the Partnership. Further, states in which the
Partnership will own Partnership Properties may impose income taxes upon a
Limited Partner's share of the Partnership's taxable income allocable to any
Partnership Property located in that state. In addition, many states have
implemented or are implementing programs to require partnerships to withhold and
pay state income taxes owed by non-resident partners relating to income-
producing properties located in their states, and the Partnership may be
required to withhold state taxes from cash distributions otherwise payable to
Limited Partners. In the event the Partnership is required to withhold state
taxes from cash distributions otherwise payable to Limited Partners, the amount
of the Net Cash From Operations otherwise payable to such Limited Partners may
be reduced. In addition, such collection and filing requirements at the state
level may result in increases in the Partnership's administrative expenses which
would have the effect of reducing cash available for distribution to the
Limited
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Partners. Prospective Limited Partners are urged to consult with their own tax
advisors with respect to the impact of applicable state and local taxes and
state tax withholding requirements on an investment in the Partnership.
POTENTIAL LEGISLATIVE OR REGULATORY ACTION. In recent years, numerous
legislative, judicial and administrative changes have been made in the
provisions of the federal income tax laws applicable to investments similar to
an investment in Units in the Partnership. Such changes are likely to continue
to occur in the future, and no assurances can be given that any such changes
will not adversely affect the taxation of a Limited Partner. Any such changes
could have an adverse effect on an investment in Units in the Partnership or on
the market value or the resale potential of Partnership Properties. Each
potential investor is urged to consult with his own tax advisor with respect to
the status of legislative, regulatory or administrative developments and
proposals and their potential effect on an investment in the Units. It should
also be noted that the Tax Opinion assumes that no legislation will be enacted
which will be applicable to an investment in Units in the Partnership.
RISKS RELATING TO RETIREMENT PLAN INVESTORS
In considering an investment in Units of a portion of the assets of a
Retirement Plan, the plan fiduciary should consider applicable provisions of the
Code and the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), including in particular the following factors: (i) whether the
investment is made in accordance with the plan documents and instruments
governing such plan, including the plan's investment policy; (ii) whether the
investment satisfies the prudence and diversification requirements of Sections
404(a)(1)(B) and 404(a)(1)(C) of ERISA; (iii) whether the investment will result
in sufficient liquidity for the plan; (iv) the need to value the assets of the
plan annually; and (v) whether the investment would constitute a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code. For a more
complete discussion of the foregoing issues and other risks associated with an
investment in the Units by Retirement Plans, see "INVESTMENT BY TAX-EXEMPT
ENTITIES AND ERISA CONSIDERATIONS."
PLAN ASSETS RISK. While the General Partners do not intend that the
assets of the Partnership will be deemed to be assets of the Qualified Plans
investing as Limited Partners ("Plan Assets") and have used their best efforts
to structure the Partnership so that the assets of the Partnership will not be
deemed to be Plan Assets, in the event that the assets of the Partnership were
deemed to be Plan Assets, the General Partners would be considered to be plan
fiduciaries and certain contemplated transactions described herein may be deemed
to be "prohibited transactions" subject to excise taxation under the Code.
Additionally, if the assets of the Partnership were deemed to be Plan Assets,
the standards of prudence and other provisions of ERISA would extend (as to all
plan fiduciaries) to the General Partners with respect to investments made by
the Partnership. The Partnership has not requested an opinion of counsel
regarding whether or not the assets of the Partnership would constitute Plan
Assets under ERISA nor has it obtained or sought any rulings from the U.S.
Department of Labor regarding classification of the Partnership's assets as Plan
Assets. However, existing U.S. Department of Labor Regulations defining Plan
Assets for purposes of ERISA contain exemptions from the treatment of assets of
a limited partnership as Plan Assets. While there can be no assurance that the
Partnership Agreement and the Offering have been structured so that the
exemptions in such regulations would apply to the Partnership, the General
Partners intend to use their best efforts to take such actions as may be
required to insure that the assets of the Partnership will not be deemed to be
Plan Assets. Accordingly, an investment by a Qualified Plan in Units should not
be deemed an investment in the assets of the Partnership, but no representations
or warranties of any kind can be made regarding the consequences of an
investment in Units by Qualified Plans in this regard. Plan fiduciaries are
urged to consult with and rely upon their own advisors with respect to ERISA
issues which, if decided adversely to the Partnership, could result in
prohibited transactions, the imposition of excise taxation and the imposition of
co-fiduciary liability under the provisions of ERISA in the event of actions
undertaken by the Partnership which are deemed to be non-prudent investments or
prohibited transactions. In the event the Partnership's assets constitute Plan
Assets or certain transactions of the Partnership constitute "prohibited
transactions" under ERISA or the Code and no exemption for such transactions is
obtainable by the Partnership, the General Partners have the right, but not the
obligation (upon notice to all Limited Partners, but without the consent of any
Limited Partner), to (i) terminate the Offering of Units, (ii) compel a
termination and dissolution of the Partnership or (iii) restructure the
Partnership's activities to the extent necessary to comply with any exception in
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the Department of Labor Regulations or any prohibited transaction exemption
granted by the Department of Labor or any condition which the Department of
Labor might impose as a condition to granting a prohibited transaction
exemption. (See "INVESTMENT BY TAX-EXEMPT ENTITIES AND ERISA CONSIDERATIONS.")
MINIMUM DISTRIBUTION REQUIREMENTS. Any potential investor who intends
to purchase Units in his Individual Retirement Account ("IRA") and any trustee
of an IRA or other fiduciary of a Retirement Plan considering an investment in
Units should consider particularly the limited liquidity of an investment in the
Units as it relates to applicable minimum distribution requirements under the
Code. If the Units are still held and the Partnership Properties have not yet
been sold at such time as mandatory distributions are required to commence to an
IRA beneficiary or Qualified Plan participant, applicable provisions of the Code
and Regulations will likely require that a distribution in kind of the Units be
made to the IRA beneficiary or Qualified Plan participant. Any such distribution
in kind of Units must be included in the taxable income of the IRA beneficiary
or Qualified Plan participant for the year in which the Units are received at
the fair market value of the Units without any corresponding cash distributions
with which to pay the income tax liability arising out of any such
distribution.
UNRELATED BUSINESS TAXABLE INCOME ("UBTI"). The Partnership will
under no circumstances incur indebtedness to acquire Partnership Properties.
Accordingly, it is not intended or anticipated that the Partnership will
generate income derived from an unrelated trade or business, which is generally
referred to as "UBTI." Notwithstanding the foregoing, the General Partners have
limited authority to borrow funds deemed necessary to finance improvements of
its properties to protect capital previously invested in a property, to protect
the value of the Partnership's investment in a property, or to make a property
more attractive for sale or lease; however, the General Partners have
represented that they will not cause the Partnership to incur indebtedness
unless the Partnership obtains an opinion of counsel that the proposed
indebtedness more likely than not will not cause the income of the Partnership
to be characterized as UBTI. It should be noted, however, that an opinion of
counsel has no binding effect on the IRS or any court and, accordingly, although
the General Partners will use their best efforts to avoid characterization of
the Partnership's income as UBTI, some risk remains that the Partnership may
generate UBTI in connection with any such financing (or in the event that the
Partnership were deemed to be a "dealer" in real property (one who holds real
estate primarily for sale to customers in the ordinary course of business)).
(See "FEDERAL INCOME TAX CONSEQUENCES - Investment by Qualified Plans and Other
Tax-Exempt Entities.")
WHO SHOULD INVEST - SUITABILITY STANDARDS
Investment in the Partnership involves some degree of risk. It may be
difficult to resell Units due to the restrictions on transferability contained
in the Partnership Agreement and because no public market for the Units
currently exists or is likely to develop. Investors who are able to sell their
Units at all will likely be able to sell such Units only at a discount. (See
"SUMMARY OF THE PARTNERSHIP AGREEMENT - Limited Transferability of Units.") In
addition, it is contemplated that properties to be purchased by the Partnership
will be held for at least ten years. Accordingly, the Units are suitable only
for persons who have adequate financial means and desire a relatively long-term
investment with respect to which they do not anticipate any need for immediate
liquidity. Further, because the Class A Status Units and the Class B Status
Units have different rights and priorities with respect to tax allocations and
cash distributions from operations and on sale of the Partnership Properties,
prospective investors should consider carefully the information set forth under
"DESCRIPTION OF THE UNITS" in determining whether to elect Class A Status or
Class B Status, or some combination of each, with respect to the Units to be
purchased.
If the investor is an individual (including an individual beneficiary
of a purchasing IRA), or if the investor is a fiduciary (such as a trustee of a
trust or corporate pension or profit sharing plan, or other tax-exempt
organization, or a custodian under a Uniform Gifts to Minors Act), such
individual or fiduciary, as the case may be, must represent that he meets
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certain requirements, as set forth in the Subscription Agreement attached as
Exhibit "C" to this Prospectus, including the following:
(i) that such individual (or, in the case of a fiduciary, that the
fiduciary account or the donor who directly or indirectly supplies the funds to
purchase the Units) has a minimum annual gross income of $45,000 and a net worth
(excluding home, furnishings and automobiles) of not less than $45,000; or
(ii) that such individual (or, in the case of a fiduciary, that the
fiduciary account or the donor who directly or indirectly supplies the funds to
purchase the Units) has a net worth (excluding home, furnishings and
automobiles) of not less than $150,000.
Transferees will also be required to comply with applicable standards,
except for intra-family transfers and transfers made by gift, inheritance or
family dissolution. In the case of purchases of Units by fiduciary accounts in
California, the suitability standards must be met by the beneficiary of the
account or, in those instances where the fiduciary directly or indirectly
supplies the funds for the purchase of Units, by such fiduciary.
The minimum purchase is 100 Units ($1,000) (except in certain states
as described below). No transfers will be permitted of less than the minimum
required purchase, nor (except in very limited circumstances) may an investor
transfer, fractionalize or subdivide such Units so as to retain less than such
minimum number thereof. For purposes of satisfying the minimum investment
requirement for Retirement Plans, unless otherwise prohibited by state law, a
husband and wife may jointly contribute funds from their separate Individual
Retirement Accounts ("IRAs"), provided that each such contribution is made in
increments of at least $25. It should be noted, however, that an investment in
the Partnership will not, in itself, create a Retirement Plan for any investor
and that, in order to create a Retirement Plan, an investor must comply with all
applicable provisions of the Code. Except in Maine, Minnesota and Washington,
investors who have satisfied the minimum purchase requirements and have
purchased units in Prior Wells Public Programs may purchase less than the
minimum number of Units set forth above, but in no event less than 2.5 Units
($25). After an investor has purchased the minimum investment, any additional
investments must be made in increments of at least 2.5 Units ($25), except for
(i) those made by investors in Maine, who must still meet the minimum investment
requirement for Maine residents of $1,000 for IRAs and $2,500 for non-IRAs, and
(ii) purchases of Units pursuant to the Distribution Reinvestment Plan, which
may be in lesser amounts.
Various states have established suitability standards for individual
investors and subsequent transferees different from those set by the
Partnership. Those requirements are set forth below.
ARIZONA - Investors shall have either (i) a net worth (excluding home,
furnishings and automobiles) of at least $225,000, or (ii) a net worth
(excluding home, furnishings and automobiles) of at least $60,000 and current
annual gross income of at least $60,000.
CALIFORNIA - California requires the following legend to be placed on
each certificate evidencing the Units:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR
ANY INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE
PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
IOWA - A husband and wife may not jointly contribute funds from their
separate IRAs in satisfaction of the minimum investment requirement. IRAs
investing in the Partnership must purchase a minimum of 250 Units ($2,500).
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MAINE - Investors shall have either (i) current annual gross income of
at least $50,000 and a net worth (excluding home, furnishings and automobiles)
of at least $50,000, or (ii) a net worth (excluding home, furnishings and
automobiles) of at least $200,000.
A husband and wife may not jointly contribute funds from separate IRAs
in satisfaction of the minimum investment requirement. Investors must satisfy
the minimum purchase requirements whether or not they were also investors in
Prior Wells Public Programs.
Investors other than IRAs must purchase a minimum of 250 Units
($2,500).
MASSACHUSETTS - Investors shall have either (i) a net worth (excluding
home, furnishings and automobiles) of at least $225,000, or (ii) a net worth
(excluding home, furnishings and automobiles) of at least $60,000 and current
annual gross income of at least $60,000.
MICHIGAN - An investor may not invest in excess of 10% of his, her or
its net worth (excluding home, furnishings and automobiles).
MINNESOTA - A husband and wife may not jointly contribute funds from
their separate IRAs in satisfaction of the minimum investment requirement.
Investors must satisfy the minimum purchase requirements whether or not they
were also investors in Prior Wells Public Programs.
Investors other than IRAs and Qualified Plans must purchase a minimum
of 250 Units ($2,500). IRAs and Qualified Plans must purchase a minimum of 200
Units ($2,000).
Investors must satisfy the minimum purchase requirements whether or
not they were also investors in Prior Wells Public Programs.
MISSISSIPPI - Investors shall have either (i) current annual gross
income of at least $60,000 and a net worth (excluding home, furnishings and
automobiles) of at least $60,000, or (ii) a net worth (excluding home,
furnishings and automobiles) of at least $225,000.
MISSOURI - Investors shall have either (i) current annual gross income
of at least $60,000 and a net worth (excluding home, furnishings and
automobiles) of at least $60,000, or (ii) a net worth (excluding home,
furnishings and automobiles) of at least $225,000. A husband and wife may not
jointly contribute funds from their separate IRAs in satisfaction of the minimum
investment requirement.
NEBRASKA - Investors other than IRAs, Keogh and Qualified Plans must
purchase a minimum of 500 Units ($5,000). Investments in additional Units
pursuant to the Distribution Reinvestment Plan must be made in minimum amounts
of $50 in any one year and must be made through a Nebraska registered broker-
dealer.
Investors who require assistance in completing the Subscription
Agreement should not contact Wells Investment Securities, Inc., as directed on
page C-6 of the Subscription Agreement, but should contact a Nebraska registered
broker-dealer.
NEW HAMPSHIRE - Investors shall have either (i) a net worth (excluding
home, furnishings and automobiles) of at least $250,000, or (ii) a net worth
(excluding home, furnishings and automobiles) of at least $125,000 and current
annual gross income of at least $50,000.
NEW YORK - No subscription proceeds from New York investors will be
released from the escrow account until $2,500,000 has been raised in the
Offering. Investors shall have either (i) a net worth (excluding home,
furnishings and automobiles) of at least $50,000 and an annual gross income of
at least $50,000, or (ii) irrespective of annual gross income, a net worth
(excluding home, furnishings and automobiles) of at least $150,000.
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The proceeds of this Offering will be received and held in trust for
the benefit of purchasers of Units and will be retained in trust after closing
to be used only for the purposes set forth in the "ESTIMATED USE OF PROCEEDS"
section.
Investors other than IRAs must purchase a minimum of 250 Units
($2,500).
NORTH CAROLINA - Investors other than IRAs, Keogh and Qualified Plans
must purchase a minimum of 250 Units ($2,500).
OHIO - Investors other than IRAs must purchase a minimum of 250 Units
($2,500).
OKLAHOMA - A husband and wife may not jointly contribute funds from
their separate IRAs in satisfaction of the minimum investment requirement.
OREGON - Investors shall have either (i) a net worth (excluding home,
furnishings and automobiles) of at least $225,000, or (ii) a net worth
(excluding home, furnishings and automobiles) of at least $60,000 and current
annual gross income of at least $60,000.
PENNSYLVANIA - Each Pennsylvania investor must meet the added
suitability requirement that such investor has a net worth of ten times the
amount of his, her or its investment in the Partnership. In addition,
subscriptions for Units from Pennsylvania investors will be held in escrow until
the Partnership has raised $2,500,000 from all sources including Pennsylvania
investors, and subscriptions held in such escrow more than 120 days will be
returned to investors unless an investor at the end of each 120 day period
chooses to reinvest.
SOUTH CAROLINA - Investors shall have either (i) a net worth
(excluding home, furnishings and automobiles) of at least $150,000, or (ii)
state and federal income subject to the maximum rate of income tax.
Investors other than IRAs, Keogh and Qualified Plans must purchase a
minimum of 250 Units ($2,500).
SOUTH DAKOTA - Investors shall have either (i) current annual gross
income of at least $60,000 and a net worth (excluding home, furnishings and
automobiles) of at least $60,000, or (ii) a net worth (excluding home,
furnishings and automobiles) of at least $225,000.
TENNESSEE - Investors shall have either (i) current annual gross
income of at least $60,000 and a net worth (excluding home, furnishings and
automobiles) of at least $60,000, or (ii) a net worth (excluding home,
furnishings and automobiles) of at least $225,000.
TEXAS - Investments in additional Units pursuant to the Distribution
Reinvestment Plan must be made through a Texas registered broker-dealer.
WASHINGTON - Investors must satisfy the minimum purchase requirements
whether or not they were also investors in Prior Wells Public Programs.
WISCONSIN - A husband and wife may not jointly contribute funds from
their separate IRAs in satisfaction of the minimum investment requirement.
NET WORTH IN ALL CASES EXCLUDES HOME, FURNISHINGS AND AUTOMOBILES.
By executing the Subscription Agreement and Subscription Agreement
Signature Page (collectively, the "Subscription Agreement"), which is attached
as Exhibit "C" to this Prospectus, an investor represents to the General
Partners that he meets the foregoing applicable suitability standards for the
state in which he resides. The General Partners will not accept subscriptions
from any person or entity which does not represent that it meets such standards.
The General Partners have the unconditional right to accept or reject any
subscription in whole or in part.
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The General Partners and each person selling Units on behalf of the
Partnership are required to (i) make reasonable efforts to assure that each
person purchasing Units in the Partnership is suitable in light of such person's
age, educational level, knowledge of investments, financial means and other
pertinent factors and (ii) maintain records for at least six years of the
information used to determine that an investment in Units is suitable and
appropriate for each investor. The agreements with the selling broker-dealers
require such broker-dealers to (i) make inquiries diligently as required by law
of all prospective investors in order to ascertain whether a purchase of the
Units is suitable for the investor, and (ii) transmit promptly to the
Partnership all fully completed and duly executed Subscription Agreements.
DESCRIPTION OF THE UNITS
ELECTION OF CLASS A STATUS OR CLASS B STATUS
Initial Election. Upon subscription for Units being offered hereby,
investors must elect whether such Units will be initially treated as Class A
Status Units or Class B Status Units. Regardless of which class status is
selected for the Unit, each Unit shall have a purchase price of $10.00 per Unit,
less any discounts which are specifically authorized by the "PLAN OF
DISTRIBUTION" section of this Prospectus. Class A Status Units and Class B
Status Units entitle the holders thereof to different rights and priorities as
to cash distributions and liquidating distributions and as to the allocation of
deductions for depreciation, amortization, cost recovery and Net Losses. In all
other respects, the Units have the same rights and privileges. Each Unit, when
issued, will be fully paid and nonassessable.
Right to Change Election. Limited Partners' elections of Class A Status or
Class B Status made in the initial Subscription Agreements shall be effective
immediately upon acceptance. Thereafter, unless prohibited by applicable state
law or otherwise limited as set forth below, Limited Partners have the right to
change their prior election to have some or all of their Units treated as Class
A Status Units or Class B Status Units one time during each quarterly accounting
period by mailing or delivering written notice to the Partnership (executed by
the trustee or authorized agent in the case of Retirement Plans). Any such
changed election shall be effective commencing as of the first day of the next
succeeding quarterly accounting period following the receipt by the Partnership
of written notice of such election. Any election to have Units treated as Class
A Status Units or Class B Status Units shall be binding upon the Limited
Partner's successors and assigns. In order to assist Limited Partners in
determining whether to change their election of Class A Status or Class B
Status, Limited Partners may obtain information as to the current levels of
Class A Status Units and Class B Status Units outstanding at any time from the
General Partners at the address or toll free telephone number set forth on the
first page of this Prospectus. Units acquired and held by the General Partners
or their Affiliates shall at all times be treated as Class A Status Units, and
neither the General Partners nor their Affiliates shall have the right to make
an election to have Units beneficially owned by them treated as Class B Status
Units.
Limitations Imposed in Connection with Deferred Commission Option.
Subscribers for Units may agree with their participating broker-dealers and the
Dealer Manager to have sales commissions due with respect to the purchase of
their Units paid over an eight year period pursuant to a deferred commission
arrangement (the "Deferred Commission Option"). Any Limited Partner purchasing
Units pursuant to the Deferred Commission Option must elect upon subscription to
have a sufficient number of Units treated as Class A Status Units, in the
discretion of the General Partners, to generate at least the amount of Net Cash
From Operations distributable with respect to such Units needed to satisfy the
deferred commission obligations each year with respect to the total number of
Units purchased by such Limited Partner. In addition, Limited Partners
purchasing Units pursuant to the Deferred Commission Option will have limited
rights to elect to have their Class A Status Units treated as Class B Status
Units for a period of seven years after the termination of the Offering since
Limited Partners owning Units purchased pursuant to the Deferred Commission
Option must at all times own a sufficient number of Class A Status Units, in the
discretion of the General Partners, to generate enough Net Cash From Operations
to allow the Partnership to satisfy the deferred commission obligations with
respect to the total number of Units purchased pursuant to the Deferred
Commission Option. (See "PLAN OF DISTRIBUTION.")
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General Characteristics of Class A Status Units. Holders of Class A Status
Units will be entitled to receive annual distributions of Net Cash From
Operations generated by the Partnership following the payment of certain fees
and expenses to the General Partners and their Affiliates. Because deductions
for depreciation, amortization, cost recovery and Net Losses will initially be
allocated to holders of Class B Status Units, Class A Status Units will be
generally more suitable for investors which are Retirement Plans, including
IRAs, or are otherwise not income tax sensitive and which are primarily
interested in current distributions of Net Cash From Operations and the
potential appreciation in value of the Partnership's real estate investments.
General Characteristics of Class B Status Units. Although holders of Class
B Status Units will not be allocated any Net Cash From Operations, they will be
allocated a disproportionately larger share of the Partnership's deductions for
depreciation, amortization, cost recovery and Net Losses, and will be allocated
a higher percentage return on the potential appreciation of the Partnership's
real estate investments. Accordingly, Class B Status Units will be generally
more suitable for investors who are not seeking current cash flow distributions
but have a desire to participate to a greater extent in "passive" losses
expected to be generated by the Partnership's operations or have a desire to
participate to a greater extent in the potential appreciation of the
Partnership's real estate investments. (See "FEDERAL INCOME TAX CONSEQUENCES -
Passive Loss Limitations.") Each prospective investor should carefully consider
the following information in the context of his own particular financial
situation in determining whether to elect Class A Status or Class B Status, or
some combination of each.
SUMMARY OF DISTRIBUTIONS
Following is a summary of the Partnership's allocation of current cash flow
distributions and the net proceeds from the sale or exchange of Partnership
Properties:
CASH DISTRIBUTIONS. Distributions of Net Cash From Operations (defined
generally as the Partnership's cash flow from operations less any reserves and
after payment of the 6% property management and leasing fees to Affiliates of
the General Partners) will be distributed as follows:
1. First, to Limited Partners holding Class A Status Units until they have
received distributions in each year equal to 10% of their Net Capital
Contributions (defined in the Partnership Agreement to mean generally Capital
Contributions less prior distributions of Sale Proceeds);
2. Next, to the extent any Net Cash From Operations remains available for
distribution, to the General Partners until they receive an amount equal to one-
tenth of the total amount of Net Cash From Operations distributed in such year;
and
3. Although there can be no assurance that Net Cash From Operations will be
sufficient to make additional distributions, any remaining Net Cash From
Operations will be distributed 90% to Limited Partners holding Class A Status
Units and 10% to the General Partners.
Notwithstanding the foregoing, Limited Partners holding Class A Status Units
who have purchased Units pursuant to the Deferred Commission Option shall for a
period of seven years after termination of the Offering have deducted and
withheld from distributions of Net Cash From Operations otherwise payable to
such Limited Partners an annual amount equal to $0.10 per Unit purchased
pursuant to the Deferred Commission Option, which amounts shall instead be used
by the Partnership to pay deferred commissions due with respect to such Units.
(See "PLAN OF DISTRIBUTION.")
No Net Cash From Operations will be distributed with respect to Class B
Status Units. (See "SUMMARY OF PARTNERSHIP AGREEMENT," "DISTRIBUTIONS AND
ALLOCATIONS" and "RISK FACTORS.")
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SALE PROCEEDS. Sale Proceeds (generally the net proceeds from any sale or
exchange of Partnership Properties) will be distributed as follows:
1. First, to Limited Partners holding Units which at any time have been
treated as Class B Status Units on a per Unit basis until each such Limited
Partner has received an amount which, when added to any Net Cash From Operations
previously distributed to such Limited Partner, will equal the amount of Net
Cash From Operations previously paid to Limited Partners holding Units which at
all times have been treated as Class A Status Units;
2. Then, to the Limited Partners on a per Unit basis until each Limited
Partner has received an amount equal to his Net Capital Contribution (defined in
the Partnership Agreement to mean generally Capital Contributions less prior
distributions of Sale Proceeds);
3. Then, to the Limited Partners on a per Unit basis until each Limited
Partner has received aggregate distributions equal to a cumulative
(noncompounded) 10% per annum return on his Net Capital Contribution;
4. Then, to the Limited Partners on a per Unit basis until each Limited
Partner has received aggregate distributions equal to his Preferential Limited
Partner Return (defined as the sum of (a) a 10% per annum cumulative
(noncompounded) return on his Net Capital Contribution for all periods during
which such Unit was treated as a Class A Status Unit and (b) a 15% per annum
cumulative (noncompounded) return on his Net Capital Contribution for all
periods during which such Unit was treated as a Class B Status Unit);
5. Then, to the General Partners until they have received an amount equal
to their Capital Contributions;
6. Then, if and only in the event that Limited Partners have received any
Excess Limited Partner Distributions (defined as distributions to Limited
Partners over the life of their investment in excess of their Net Capital
Contribution plus their Preferential Limited Partner Return), to the General
Partners until they have received an amount equal to 20% of the sum of any such
Excess Limited Partner Distributions plus the amount distributed to the General
Partners pursuant to this provision; and
7. Then, to the extent any Sale Proceeds remain, 80% to the Limited
Partners on a per Unit basis and 20% to the General Partners. However, in no
event shall the General Partners receive in the aggregate in excess of the NASAA
Guidelines Resale Proceeds Maximum Amount (defined as an amount equal to 15% of
Sale Proceeds remaining after payments to Limited Partners from such proceeds of
amounts equal to the sum of their Net Capital Contributions plus a 6% per annum
return on their Net Capital Contributions calculated on a cumulative,
noncompounded basis). It is the intent of the foregoing limitation that the
General Partners receive no more of the net proceeds from the sale or financing
of Partnership Properties than is allowed pursuant to applicable provisions of
the NASAA Guidelines. Any such excess amounts otherwise distributable to the
General Partners would instead be reallocated and distributed to the Limited
Partners on a per Unit basis.
Notwithstanding the foregoing, the amount of Sale Proceeds distributable to
the Limited Partners holding Class B Status Units may be adjusted in favor of
Limited Partners holding Class A Status Units in the event that the Partnership
sells any Partnership Property at a sale price which is less than the purchase
price originally paid for such property. (See "SUMMARY OF PARTNERSHIP
AGREEMENT," "DISTRIBUTIONS AND ALLOCATIONS," "RISK FACTORS" and "FEDERAL INCOME
TAX CONSEQUENCES - Allocations of Profit and Loss.")
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NO ASSURANCE CAN BE GIVEN AS TO THE TIMING OR AMOUNT OF ANY CASH
DISTRIBUTIONS TO THE LIMITED PARTNERS. (SEE "RISK FACTORS" and "DISTRIBUTIONS
AND ALLOCATIONS.")
SUMMARY OF ALLOCATIONS
Following is a summary of the allocation of the Partnership's taxable
income, loss and gain on sale of Partnership Properties:
NET INCOME. The Partnership's Net Income (defined generally as the net
income of the Partnership for federal income tax purposes, including any income
exempt from tax, but excluding all deductions for depreciation, amortization and
cost recovery and any net gain on the sale of assets) will be allocated each
year in the same proportions that Net Cash From Operations is distributed or
deemed distributed to the Partners. To the extent the Partnership's Net Income
in any year exceeds Net Cash From Operations, such excess Net Income will be
allocated 99% to Limited Partners holding Class A Status Units during such year
and 1% to the General Partners. (See "DISTRIBUTIONS AND ALLOCATIONS" and
"FEDERAL INCOME TAX CONSEQUENCES - Allocations of Profit and Loss.")
NET LOSS, DEPRECIATION, AMORTIZATION AND COST RECOVERY DEDUCTIONS.
Deductions for depreciation, amortization and cost recovery and the
Partnership's Net Loss (defined generally as the net loss of the Partnership for
federal income tax purposes, but excluding all deductions for depreciation,
amortization and cost recovery) for each fiscal year will be allocated as
follows:
1. 99% to Limited Partners holding Class B Status Units during such year
and 1% to the General Partners until their Capital Accounts (defined generally
as the sum of Capital Contributions and income allocated to a Partner less the
sum of distributions paid and losses allocated to a Partner) are reduced to
zero;
2. Then, to any Partner having a positive balance in his Capital Account in
an amount not to exceed such positive balance; and
3. Thereafter, all such deductions will be allocated to the General
Partners, who, at that time, would be the only Partners having any economic risk
of loss. (See "DISTRIBUTIONS AND ALLOCATIONS" and "FEDERAL INCOME TAX
CONSEQUENCES - Allocations of Profit and Loss.")
GAIN ON SALE. Gain on Sale (defined generally as the taxable income or gain
from a sale or exchange of Partnership Properties) will be allocated, first,
pursuant to the qualified income offset provision contained in the Partnership
Agreement, if applicable, then, to Partners having negative capital accounts, if
any, until negative capital accounts have been restored to zero, and,
thereafter, generally in accordance with the priorities for the distribution of
Sale Proceeds, as described above. (See "DISTRIBUTIONS AND ALLOCATIONS.")
CLASS A STATUS UNITS
As set forth above, Class A Status Limited Partners are entitled to an
annual 10% noncumulative distribution preference as to distributions of Net Cash
From Operations. However, holders of Class A Status Units will, except in
limited circumstances, be allocated none of the Partnership's Net Loss,
depreciation, amortization and cost recovery deductions for tax purposes. Thus,
tax benefits resulting from deductions for Net Loss, depreciation, amortization
and cost recovery will not be available to holders of Class A Status Units
during the initial period of Partnership operations.
Upon a distribution of Sale Proceeds, each Class B Status Limited Partner is
first entitled to a distribution of an amount which, when added to any Net Cash
From Operations previously distributed to such Limited Partner,
25
<PAGE>
will equal the amount of Net Cash From Operations previously paid to the holders
of Class A Status Units. Thereafter, both Class A Status Limited Partners and
Class B Status Limited Partners are entitled to an amount equal to their Net
Capital Contributions. Thereafter, Class A Status Limited Partners are entitled
to a 10% cumulative (noncompounded) return on their Net Capital Contributions
(as opposed to the 15% cumulative return on Net Capital Contributions payable to
Class B Status Limited Partners). (See "DISTRIBUTIONS AND ALLOCATIONS.")
CLASS B STATUS UNITS
Class B Status Limited Partners will receive a disproportionately larger
share of Partnership income tax deductions because all of the Limited Partners'
share of Partnership Net Loss, depreciation, amortization and cost recovery
deductions will be allocated to holders of Class B Status Units until their
Capital Account balances have been reduced to zero. Since the allocations of
Net Loss, depreciation, amortization and cost recovery deductions to holders of
Class B Status Units will reduce their Capital Account balances, and since
liquidation proceeds of the Partnership will be distributed among the Partners
in accordance with their Capital Account balances, holders of Class B Status
Units bear substantially greater risk of loss of their Capital Contributions
than do holders of Class A Status Units.
Class B Status Limited Partners will not receive any Net Cash From
Operations. On distributions of Sale Proceeds, since the preferential
allocation of Net Cash From Operations to holders of Class A Status Units is
intended to be a timing preference only, each holder of Class B Status Units is
entitled to a distribution of Sale Proceeds in an amount which, when added to
any Net Cash From Operations previously distributed to such Limited Partner,
will equal the amount of Net Cash From Operations previously paid to the holders
of Class A Status Units. Following such distributions to holders of Class B
Status Units, both Class A Status Limited Partners and Class B Status Limited
Partners are entitled to a return of their Net Capital Contributions. Then,
Class B Status Limited Partners are entitled to a 15% cumulative (noncompounded)
return on their Net Capital Contributions (as opposed to the 10% cumulative
return on Net Capital Contributions payable to Class A Status Limited Partners).
(See "DISTRIBUTIONS AND ALLOCATIONS.")
EFFECT OF CHANGE OF STATUS OF UNITS
As described above, Limited Partners shall have the right to change their
prior election to have some or all of their Units treated as Class A Status
Units or Class B Status Units one time during each accounting period, unless
prohibited by applicable state law or limited, as set forth above, by election
of the Deferred Commission Option. Any such changed election shall be effective
commencing as of the first day of the next succeeding accounting period
following receipt by the Partnership of written notice of such election. A
Limited Partner who changes his Units from Class A Status to Class B Status
will, upon the effective date of such change and until the Limited Partner
changes back to Class A Status, be entitled to a disproportionately larger share
of the Partnership's deductions for depreciation, amortization, cost recovery
and Net Losses, and no longer be entitled to receive annual distributions of Net
Cash From Operations during such period. A Limited Partner who changes his
Units from Class B Status to Class A Status will, from the effective date of
such change until the Limited Partner changes back to Class B Status, be
entitled to receive annual distributions of Net Cash From Operations and no
longer be allocated deductions for depreciation, amortization and cost recovery
and Net Loss. Distributions of Sale Proceeds will be prorated to each Limited
Partner based on the number of days during which his Units were treated as Class
A Status Units (and entitled to a return of 10% per annum on his Net Capital
Contribution) and the number days during which such Units were treated as Class
B Status Units (and entitled to a return of 15% per annum on his Net Capital
Contribution).
26
<PAGE>
ESTIMATED USE OF PROCEEDS
The following table sets forth information concerning the estimated use of
the gross proceeds of the Offering of Units made hereby. Many of the figures
set forth below represent the best estimate of the General Partners since they
cannot be precisely calculated at this time. The percentage of the gross
proceeds of the Offering of Units to be invested in Partnership Properties is
estimated to be approximately 81%.
WELLS REAL ESTATE FUND X, L.P.
<TABLE>
<CAPTION>
MINIMUM OFFERING MAXIMUM OFFERING
--------------------- ----------------------
Amount Percent Amount Percent
----------- -------- ------------ --------
<S> <C> <C> <C> <C>
Gross Offering Proceeds (1) $1,250,000 100% $35,000,000 100%
Less Public Offering Expenses:
Selling Commissions and Dealer Manager Fee (2) 125,000 10% 3,500,000 10%
Organization and Offering Expenses (3) 62,500 5% 1,225,000 3.5%
---------- --- ----------- ----
Amount Available for Investment (4) $1,062,500 85% $30,275,000 86.5%
========== === =========== ====
Acquisition and Development:
Acquisition and Advisory Fees (5) $ 43,750 3.5% $ 1,750,000 5%
Acquisition Expenses (6) 6,250 .5% 175,000 .5%
Initial Working Capital Reserve (7) (7) - (7) -
Amount Invested in Properties (4)(8) $1,012,500 81% $28,350,000 81%
========== === =========== ====
</TABLE>
WELLS REAL ESTATE FUND XI, L.P.
<TABLE>
<CAPTION>
MINIMUM OFFERING MAXIMUM OFFERING
--------------------- ----------------------
Amount Percent Amount Percent
----------- -------- ------------ --------
<S> <C> <C> <C> <C>
Gross Offering Proceeds (1) $1,250,000 100% $35,000,000 100%
Less Public Offering Expenses:
Selling Commissions and Dealer Manager Fee (2) 125,000 10% 3,500,000 10%
Organization and Offering Expenses (3) 62,500 5% 1,225,000 3.5%
---------- --- ----------- ----
Amount Available for Investment (4) $1,062,500 85% $30,275,000 86.5%
========== === =========== ====
Acquisition and Development:
Acquisition and Advisory Fees (5) $ 43,750 3.5% $ 1,750,000 5%
Acquisition Expenses (6) 6,250 .5% 175,000 .5%
Initial Working Capital Reserve (7) (7) - (7) -
Amount Invested in Properties (4)(8) $1,012,500 81% $28,350,000 81%
========== === =========== ====
</TABLE>
_________________________
(Footnotes to "ESTIMATED USE OF PROCEEDS")
(1) The amounts shown for Gross Offering Proceeds do not reflect the possible
discounts in commissions and other fees as described in "PLAN OF
DISTRIBUTION."
(2) Includes Selling Commissions equal to 8% of aggregate Gross Offering
Proceeds (which commissions may be reduced under certain circumstances) and
a dealer manager fee equal to 2% of aggregate Gross Offering Proceeds, both
of which are payable to the Dealer Manager, an Affiliate of the General
Partners. The Dealer Manager, in its sole discretion, may reallow Selling
Commissions of up to 8% of Gross Offering Proceeds to other broker-dealers
participating in this Offering attributable to the Units sold by them and
may reallow out of its dealer manager fee up to 1% of Gross Offering
Proceeds in marketing fees to broker-dealers participating in this Offering
based on such factors as the volume of Units sold by such participating
broker-dealers, marketing support provided by such participating broker-
dealers and bona fide conference fees incurred. In no event shall the total
underwriting compensation, including Selling Commissions, the dealer manager
fee and expense reimbursements, exceed 10% of Gross Offering Proceeds,
except for an additional .5% of Gross Offering Proceeds which may be paid as
a reimbursement
27
<PAGE>
of expenses incurred for due diligence purposes and which is included in the
Organization and Offering Expenses described in Footnote 3 below. (See
"PLAN OF DISTRIBUTION.")
(3) Organization and Offering Expenses consist of estimated legal, accounting,
printing and other accountable offering expenses (other than Selling
Commissions and the dealer manager fee) and reimbursements to the General
Partners and their Affiliates for payments to nonaffiliated broker-dealers
of certain bona fide due diligence expenses in an amount not to exceed .5%
of Gross Offering Proceeds. The General Partners and their Affiliates will
be responsible for the payment of Organization and Offering Expenses (other
than Selling Commissions and the dealer manager fee) to the extent they
exceed 5% of Gross Offering Proceeds without recourse against or
reimbursement by the Partnership.
(4) Until required in connection with the acquisition and development of
properties, substantially all of the net proceeds of the Offering and,
thereafter, the working capital reserves of the Partnership, may be invested
in short-term, highly-liquid investments including government obligations,
bank certificates of deposit, short-term debt obligations and interest-
bearing accounts.
(5) The Partnership will pay Acquisition and Advisory Fees to the General
Partners or their Affiliates in connection with the acquisition of the
Partnership's Properties up to a maximum amount of 5% of Gross Offering
Proceeds; however, since it is estimated that approximately 81% of the
proceeds from the sale of Units will be used to acquire properties, the
amount of Acquistion and Advisory Fees paid to the General Partners may be
reduced to a minimum of 3.5% of Gross Offering Proceeds to the extent
necessary to achieve this objective. In no event shall the Partnership
commit less than 80% of Capital Contributions to Investment in Properties,
as required under the NASAA Guidelines.
(6) Includes legal fees and expenses, travel and communication expenses, costs
of appraisals, nonrefundable option payments on property not acquired,
accounting fees and expenses, title insurance premiums and other closing
costs and miscellaneous expenses relating to the selection, acquisition and
development of Partnership Properties. It is anticipated that substantially
all of such items will be directly related to the acquisition of specific
Partnership Properties and will be capitalized rather than currently
deducted by the Partnership.
(7) Because the Partnership will purchase properties on an all cash basis and
the vast majority of leases for the properties acquired by the Partnership
will provide for tenant reimbursement of operating expenses, it is not
anticipated that a permanent reserve for maintenance and repairs of
Partnership Properties will be established. However, to the extent that the
Partnership has insufficient funds for such purposes, the General Partners
will advance to the Partnership on an interest-free basis an aggregate
amount of up to 1% of Gross Offering Proceeds for maintenance and repairs of
Partnership Properties. The General Partners also may, but are not required
to, establish reserves from Gross Offering Proceeds, out of Cash Flow
generated by operating properties or out of Nonliquidating Net Sale
Proceeds.
(8) Includes amounts anticipated to be invested in Partnership Properties net of
fees and expenses. It is estimated that approximately 81% of the proceeds
from the sale of Units will be used to acquire properties, and in no event
shall the Partnership commit less than 80% of Capital Contributions to
Investment in Properties, as required under the NASAA Guidelines.
28
<PAGE>
COMPENSATION OF THE GENERAL PARTNERS AND AFFILIATES
The following table summarizes and discloses all of the compensation and
fees (including reimbursement of expenses) to be paid by each Partnership to the
General Partners and their Affiliates during the various phases of the
organization and operation of each Partnership.
<TABLE>
<CAPTION>
Form of Compensation Determination Estimated Maximum
and Entity Receiving of Amount Dollar Amount (1)
- --------------------------- ------------------------------------------------------------------------------ ----------------------
<S> <C> <C>
Organizational and Offering Stage
Selling Commissions - Up to 8% of Gross Offering Proceeds before reallowance of commissions earned $2,800,000
The Dealer Manager by participating broker-dealers. The Dealer Manager intends to reallow 100% ($100,000 in the
of commissions earned by participating broker-dealers. event the Partner-
ship sells only the
minimum of
125,000 Units)
Dealer Manager Fee - Up to 2% of Gross Offering Proceeds before reallowance to participating $700,000
The Dealer Manager broker-dealers. The Dealer Manager, in its sole discretion, may reallow a ($25,000 in the
portion of its dealer manager fee of up to 1% of the Gross Offering Proceeds event the Partner-
to be paid to such participating broker-dealers as a marketing fee, based on ship sells only the
such factors as the volume of Units sold by such participating minimum of
broker-dealers, marketing support and bona fide conference fees incurred. 125,000 Units)
Reimbursement of Up to 5% of Gross Offering Proceeds. All Organization and Offering Expenses $1,225,000
Organization and Offering (excluding Selling Commissions and the dealer manager fee) will be advanced ($62,500 in the
Expenses - The General by the General Partner and their Affiliates and reimbursed by the event the Partner-
Partners and their Partnership.(2) ship sells only the
Affiliates minimum of
125,000 Units)
Acquisition and Development Stage
Acquisition and Advisory For the review and evaluation of potential real property acquisitions, a fee $1,750,000
Fees - The General Partners of up to 5% of Gross Offering Proceeds, plus reimbursement of costs and (A maximum of
or their Affiliates expenses for the acquisition of properties. $62,500 in the
event the
Partnership sells
only the minimum
of 125,000 Units)
Operational Stage
Property Management and For supervising the management of the Partnership Properties, a fee equal to Actual amounts are
Leasing Fees - Wells the lesser of: (A)(i) in the case of commercial properties which are leased dependent upon
Management Company, for less than ten years, 3% of the gross revenues for management and 3% of results of operations
Inc. the gross revenues for leasing (aggregate maximum of 6%), and (ii) in the and therefore
case of commercial properties which are leased on a long-term net basis (ten cannot be
or more years), 1% of the gross revenues plus, in the case of leases to new determined at
tenants, initial leasing fees equal to 3% of the gross revenues over the the present time.
first five years of the lease term, or (B) the amounts charged by
unaffiliated persons rendering comparable services in the same geographic
area; plus, a separate fee for the one-time initial rent-up or leasing-up of
newly constructed properties in an amount not to exceed the fee customarily
charged in arm's-length transactions by others rendering similar services in
the same geographic area for similar properties.
</TABLE>
29
<PAGE>
<TABLE>
<S> <C> <C>
Share of Net Cash From A noncumulative amount equal to one-tenth of Net Cash From Operations Actual amounts are
Operations - The subordinated in each fiscal year to distributions of Net Cash From Operations dependent upon
General Partners to Limited Partners holding Class A Status Units equal to 10% of their Net results of operations
Capital Contributions. and therefore
cannot be
determined at
the present time.
Liquidation Stage
Subordinated Participation After (i) each Limited Partner holding Units which at any time have been Actual amounts are
in Nonliquidating Net Sale treated as Class B Status Units has received an amount which, when added to dependent upon
Proceeds and Liquidating any Net Cash From Operations previously distributed to such Limited Partner, results of operations
Distributions - The will equal the amount of Net Cash From Operations previously paid to Limited and therefore
General Partners Partners holding Units which at all times have been treated as Class A Status cannot be
Units, (ii) Limited Partners have received a return of their Net Capital determined at
Contributions, and (iii) Limited Partners have received their Preferential the present time.
Limited Partner Return, then the General Partners are entitled to receive the
following amounts: (a) an amount equal to their Capital Contributions, (b)
then, if and only in the event that Limited Partners have received any Excess
Limited Partner Distributions, 20% of the sum of any such Excess Limited
Partner Distributions plus the amount distributed to the General Partners
pursuant to this provision, plus (c) 20% of remaining Residual Proceeds
available for distribution; provided, however, that in no event will the
General Partners receive in the aggregate more than the NASAA Guidelines
Resale Proceeds Maximum Amount (defined as 15% of Sale Proceeds remaining
after Limited Partners have received a return of their Net Capital
Contributions plus a 6% per annum cumulative (noncompounded) return on their
Net Capital Contributions). (See Sections 9.2, 9.3 and 9.4 of the
Partnership Agreement.)
Real Estate Commissions - In connection with the sale of Partnership Properties, an amount not Actual amounts are
The General Partners or exceeding the lesser of: (A) 50% of the reasonable, customary and dependent upon
Their Affiliates competitive real estate brokerage commissions customarily paid for the sale results of operations
of a comparable property in light of the size, type and location of the and therefore
property, or (B) 3% of the gross sales price of each property, subordinated cannot be
to distributions to Limited Partners from Sale Proceeds of an amount which, determined at
together with prior distributions to the Limited Partners, will equal (i) the present time.
100% of their Capital Contributions plus (ii) a 6% per annum cumulative
(noncompounded) return on their Net Capital Contributions. (See Section 12.6
of the Partnership Agreement.)
- -------------------------
</TABLE>
(Footnotes to "COMPENSATION OF THE GENERAL PARTNERS AND AFFILIATES")
(1) The estimated maximum dollar amounts are based on the sale of a maximum of
3,500,000 Units.
(2) In the event that reimbursements of Organization and Offering Expenses by
Wells Real Estate Fund X, L.P. are made for organization, registration and
offering expenses relating to both of the Partnerships, it is anticipated
that Wells Real Estate Fund XI, L.P. would reimburse Wells Real Estate Fund
X, L.P. for its pro rata share of such expenses, subject to the 5% of Gross
Offering Proceeds limitation.
In addition, the General Partners and their Affiliates will be reimbursed
only for the actual cost of goods, services and materials used for or by the
Partnership as set forth in Section 11.4 of the Partnership Agreement. The
General Partners may be reimbursed for the administrative services necessary to
the prudent operation of the Partnership provided that the reimbursement shall
be at the lower of the General Partners' actual cost or the amount the
Partnership would be required to pay to independent parties for comparable
administrative services in the same geographic location. No payment or
reimbursement will be made for services for which the General Partners are
entitled to compensation by way of a separate fee. Excluded from allowable
reimbursement shall be: (i) rent or depreciation, utilities, capital equipment,
other administrative items; and (ii) salaries, fringe benefits, travel expenses
30
<PAGE>
and other administrative items incurred by or allocated to any controlling
persons of the General Partners or their Affiliates.
Since the General Partners and their Affiliates are entitled to differing
levels of compensation for undertaking different transactions on behalf of the
Partnership, such as the property management fees for operating the Partnership
Properties and the subordinated participation in proceeds from the sale of
Partnership Properties, the General Partners have the ability to affect the
nature of the compensation they receive by undertaking different transactions.
However, the General Partners are obligated to exercise good faith and integrity
in all their dealings with respect to Partnership Affairs pursuant to their
fiduciary duties to the Limited Partners. (See "FIDUCIARY DUTY OF THE GENERAL
PARTNERS.") As noted above, there are ceilings on certain categories of fees or
expenses payable to the General Partners and their Affiliates. Because these
fees or expenses are payable only with respect to certain transactions or
services, they may not be recovered by the General Partners or their Affiliates
by reclassifying them under a different category.
CONFLICTS OF INTEREST
The Partnership is subject to various conflicts of interest arising out of
its relationship with the General Partners and their Affiliates, including
conflicts related to the arrangements pursuant to which the General Partners and
their Affiliates will be compensated by the Partnership. (See "COMPENSATION OF
THE GENERAL PARTNERS AND AFFILIATES.")
The General Partners of the Partnership are Leo F. Wells, III and Wells
Partners, L.P., a Georgia limited partnership having Wells Capital, Inc., a
Georgia corporation, as its sole general partner. Leo F. Wells, III owns all of
the outstanding capital stock of Wells Capital, Inc., Wells Investment
Securities, Inc. (the Dealer Manager), and Wells Management Company, Inc. (the
Property Manager). (See "MANAGEMENT.")
The following chart indicates the relationship between the General Partners
and their Affiliates which will be providing services to the Partnership.
=========================================================================
LEO F. WELLS, III
(GENERAL PARTNER)
=========================================================================
| | |
| 100% | 100% | 100%
| | |
=================== ========================= ====================
WELLS CAPITAL, INC. WELLS INVESTMENT WELLS MANAGEMENT
SECURITIES, INC. COMPANY, INC.
(DEALER MANAGER) (PROPERTY MANAGER)
=================== ========================= ====================
|
| General Partner
|
====================
WELLS PARTNERS, L.P.
(GENERAL PARTNER)
====================
31
<PAGE>
Because the Partnership was organized and will be operated by the General
Partners, these conflicts will not be resolved through arm's-length negotiations
but through the exercise of the General Partners' judgment consistent with their
fiduciary responsibility to the Limited Partners and the Partnership's
investment objectives and policies. (See "FIDUCIARY DUTY OF THE GENERAL
PARTNERS" and "INVESTMENT OBJECTIVES AND CRITERIA.") These conflicts include,
but are not limited to, the following:
1. INTERESTS IN OTHER PARTNERSHIPS. The General Partners and their
Affiliates are also general partners of other real estate limited partnerships,
including partnerships which have investment objectives similar to those of the
Partnership, and it is expected that they will organize other such partnerships
in the future. The General Partners and such Affiliates have legal and
financial obligations with respect to these other partnerships which are similar
to their obligations to the Partnership. As general partners, they may have
contingent liability for the obligations of such partnerships as well as those
of the Partnership which, if such obligations were enforced against the General
Partners, could result in substantial reduction of the net worth of the General
Partners.
As described in the "PRIOR PERFORMANCE SUMMARY," the General Partners have
sponsored the following ten other public partnerships with substantially
identical investment objectives as those of the Partnership: (i) Wells Real
Estate Fund I ("Wells Fund I"), (ii) Wells Real Estate Fund II ("Wells Fund
II"), (iii) Wells Real Estate Fund II-OW ("Wells Fund II-OW"), (iv) Wells Real
Estate Fund III, L.P. ("Wells Fund III"), (v) Wells Real Estate Fund IV, L.P.
("Wells Fund IV"), (vi) Wells Real Estate Fund V, L.P. ("Wells Fund V"), (vii)
Wells Real Estate Fund VI, L.P. ("Wells Fund VI"), (viii) Wells Real Estate Fund
VII, L.P. ("Wells Fund VII"), (ix) Wells Real Estate Fund VIII, L.P. ("Wells
Fund VIII") and (x) Wells Real Estate Fund IX, L.P. ("Wells Fund IX"). All of
the proceeds of the offerings of Wells Fund I, Wells Fund II, Wells Fund II-OW,
Wells Fund III, Wells Fund IV, Wells Fund V and Wells Fund VI available for
investment in real properties have been invested. In addition, all of the
proceeds of the offering of Wells Fund VII available for investment in real
properties have either been invested in properties or are currently committed
for investment in properties. As of June 30, 1996, approximately 56% and 50% of
the proceeds of the offerings of Wells Fund VIII and Wells Fund IX,
respectively, available for investment in real properties had either been
invested in properties or were committed for investment in properties.
In the event that the Partnership, the General Partners or any Affiliate or
any entity formed or managed by the General Partners or their Affiliates is in
the market for similar properties, the General Partners will review the
investment portfolio of the Partnership and each such affiliated entity and will
decide which entity will acquire a particular property on the basis of such
factors as, among others, cash flow, the effect of the purchase on
diversification of the portfolio of each such entity, the estimated income tax
effects of the purchase on each such entity, the amount of funds available to
each and the length of time such funds have been available for investment. The
General Partners may acquire, for their own account or for private placement,
properties which they deem not suitable for purchase by the Partnership, whether
because of the greater degree of risk, the complexity of structuring inherent in
such transactions, financing considerations or for other reasons, including
properties with potential for attractive investment returns.
2. OTHER ACTIVITIES OF THE GENERAL PARTNERS AND THEIR AFFILIATES. The
Partnership will rely on the General Partners and their Affiliates for the day-
to-day operation of the Partnership and the management of its assets. As a
result of their interests in other partnerships and the fact that they have also
engaged and will continue to engage in other business activities, the General
Partners and their Affiliates will have conflicts of interest in allocating
their time between the Partnership and other partnerships and activities in
which they are involved. However, the General Partners believe that they and
their Affiliates have sufficient personnel to discharge fully their
responsibilities to all partnerships and ventures in which they are involved.
The Partnership will not purchase or lease any property in which the
General Partners or any of their Affiliates have an interest; provided, however,
that the General Partners or any of their Affiliates may temporarily enter into
contracts relating to investment in properties to be assigned to the Partnership
32
<PAGE>
prior to closing or may purchase property in their own name and temporarily hold
title for the Partnership, provided that such property is purchased by the
Partnership at a price no greater than the cost of such property (including
acquisition and carrying costs) to the General Partners or the Affiliate, and
further provided that the General Partners or such Affiliate may not hold title
to any such property on behalf of the Partnership for more than 12 months, that
the General Partners or their Affiliates shall not sell property to the
Partnership if the cost of the property exceeds the funds reasonably anticipated
to be available for the Partnership to purchase any such property, and that all
profits and losses during the period any such property is held by the General
Partners or the Affiliate will accrue to the Partnership. In no event may the
Partnership (i) sell or lease real property to the General Partners or any of
their Affiliates; (ii) loan Partnership funds to the General Partners or any of
their Affiliates; (iii) obtain appraisals of real properties from the General
Partners or any of their Affiliates; or (iv) enter into agreements with the
General Partners or their Affiliates for the provision of insurance covering the
Partnership or any Partnership Property.
3. COMPETITION. Conflicts of interest will exist to the extent that the
Partnership may acquire properties in the same geographic areas where other
properties owned by the General Partners and their Affiliates are located. In
such a case, a conflict could arise in the leasing of Partnership Properties in
the event that the Partnership and another program managed by the General
Partners or their Affiliates were to compete for the same tenants in negotiating
leases, or a conflict could arise in connection with the resale of Partnership
Properties in the event that the Partnership and another program managed by the
General Partners or their Affiliates were to attempt to sell similar properties
at the same time. Conflicts of interest may also exist at such time as the
Partnership or Affiliates of the General Partners managing property on behalf of
the Partnership seek to employ developers, contractors or building managers as
well as under other circumstances. The General Partners will seek to reduce
conflicts relating to the employment of developers, contractors or building
managers by making prospective employees aware of all such properties seeking to
employ such persons. In addition, the General Partners will seek to reduce
conflicts which may arise with respect to properties available for sale or rent
by making prospective purchasers or lessees aware of all such properties.
However, these conflicts cannot be fully avoided in that the General Partners
may establish differing compensation arrangements for employees at different
properties or differing terms for resales or leasing of the various properties.
4. AFFILIATED DEALER MANAGER. Since Wells Investment Securities, Inc.,
the Dealer Manager, is an Affiliate of the General Partners, the Partnership
will not have the benefit of an independent due diligence review and
investigation of the type normally performed by an unaffiliated, independent
underwriter in connection with the offering of securities. (See "PLAN OF
DISTRIBUTION.")
5. AFFILIATED PROPERTY MANAGER. Since it is anticipated that Partnership
Properties will be managed and leased by Wells Management Company, Inc., an
Affiliate of the General Partners, the Partnership will not have the benefit of
independent property management. (See "MANAGEMENT" and "COMPENSATION OF THE
GENERAL PARTNERS AND AFFILIATES.")
6. LACK OF SEPARATE REPRESENTATION. Holland & Knight is counsel to the
Partnership, the General Partners, the Dealer Manager and their Affiliates in
connection with this Offering and may in the future act as counsel to the
Partnership, the General Partners, the Dealer Manager and their Affiliates.
There is a possibility that in the future the interests of the various parties
may become adverse. In the event that a dispute were to arise between the
Partnership, the General Partners, the Dealer Manager or their Affiliates, the
General Partners will cause the Partnership to retain separate counsel for such
matters as and when appropriate.
7. JOINT VENTURES WITH AFFILIATES OF THE GENERAL PARTNERS. The
Partnership is likely to enter into one or more joint venture agreements with
Affiliates of the General Partners for the acquisition, development or
improvement of properties. (See "INVESTMENT OBJECTIVES AND CRITERIA - Joint
Venture Investments.") The General Partners and their Affiliates may have
conflicts of interest in determining which partnerships should enter into any
joint venture agreement. Should any such joint venture be consummated, the
General Partners may face a conflict in structuring the terms of the
relationship between the interest of the Partnership and the interest of the
33
<PAGE>
affiliated co-venturer. Since the General Partners and their Affiliates will
control both the Partnership and the affiliated co-venturer, agreements and
transactions between the co-venturers with respect to any such joint
venture will not have the benefit of arm's-length negotiation of the type
normally conducted between unrelated co-venturers.
8. RECEIPT OF FEES AND OTHER COMPENSATION BY GENERAL PARTNERS AND
AFFILIATES. Partnership transactions involving the purchase and sale of
Partnership Properties may result in the receipt of commissions, fees and other
compensation by the General Partners and their Affiliates, including Acquisition
and Advisory Fees, the dealer manager fee, property management and leasing fees,
real estate brokerage commissions, and participation in distributions of Net
Cash From Operations, Nonliquidating Net Sale Proceeds and Liquidating
Distributions. However, the fees and compensation payable to the General
Partners and their Affiliates relating to sale of Partnership Properties are
subordinated to the return to the Limited Partners of their Capital
Contributions plus cumulative returns thereon. Subject to their fiduciary
duties and specific restrictions set forth in the Partnership Agreement, the
General Partners have considerable discretion with respect to all decisions
relating to the terms and timing of all Partnership transactions. Therefore,
the General Partners may have conflicts of interest concerning certain actions
taken on behalf of the Partnership, particularly due to the fact that such fees
will generally be payable to the General Partners and their Affiliates
regardless of the quality of the Partnership Properties acquired or the services
provided to the Partnership. (See "COMPENSATION OF THE GENERAL PARTNERS AND
AFFILIATES.")
9. TAX AUDIT PROCEEDING. In the event of an audit of the federal income
tax returns of the Partnership by the IRS, it is possible that the interests of
the General Partners in such tax audit could become inconsistent with or adverse
to the interests of Limited Partners. Further, it is possible that federal
income tax adjustments proposed by the IRS could be adverse to Limited Partners
holding Class B Status Units while being neutral or potentially advantageous to
Limited Partners holding Class A Status Units. Expenses of contesting any such
audit incurred by the Partnership may reduce the amount of Net Cash From
Operations available for distribution to Limited Partners holding Class A Status
Units, which could also result in a conflict of interest. In this regard, the
General Partners who are primarily responsible for contesting federal income tax
adjustments proposed by the IRS may be subject to various conflicts of interest
in connection with the negotiation and settlement of issues raised by the IRS in
a federal income tax audit. (See "FEDERAL INCOME TAX CONSEQUENCES.")
The agreements and arrangements among the Partnership, the General Partners
and their Affiliates have been established by the General Partners, and the
General Partners believe the amounts to be paid thereunder to be reasonable and
customary under the circumstances. In an effort to establish standards for
minimizing and resolving these potential conflicts, the General Partners have
agreed to the guidelines and limitations set forth in Section 11.3 of the
Partnership Agreement entitled "Limitations on Powers of the General Partners"
and in Article XIII of the Partnership Agreement entitled "Transactions Between
General Partners and the Partnership." Among other things, these provisions (i)
set forth the specific conditions under which the Partnership may own or lease
property jointly or in a partnership with an Affiliate of the General Partners,
(ii) prohibit the Partnership from purchasing or leasing an investment property
from the General Partners or their Affiliates, (iii) prohibit loans by the
Partnership to the General Partners or their Affiliates, (iv) prohibit the
commingling of Partnership funds, and (v) prohibit the General Partners from
merging or consolidating the Partnership with another partnership or a
corporation or converting the Partnership to a real estate investment trust
unless the transaction complies with certain terms and conditions (including
first obtaining a Majority Vote of the Limited Partners). In addition, as
described below, the General Partners have a fiduciary obligation to act in the
best interests of both the Limited Partners and the investors in other programs
in which they act as general partners and will use their best efforts to assure
that the Partnership will be treated at least as favorably as any other such
program.
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FIDUCIARY DUTY OF THE GENERAL PARTNERS
The General Partners will be accountable to the Partnership as fiduciaries
and, consequently, will be required to exercise good faith and integrity in all
their dealings with respect to Partnership affairs. Where the question has
arisen, courts have held that a limited partner may institute legal action on
behalf of himself or all other similarly situated limited partners (a class
action) to recover damages for a breach by a general partner of his fiduciary
duty or on behalf of the partnership (a partnership derivative action) to
recover damages from third parties. The Georgia Revised Uniform Limited
Partnership Act ("GRULPA") specifically permits a limited partner of a Georgia
limited partnership to bring a derivative action on behalf of the partnership if
(i) the general partner or partners of the partnership have refused to bring the
action on behalf of the partnership or it is apparent that an effort to cause
such general partner or partners to bring the action would not be likely to
succeed, and (ii) the limited partner was a partner at the time the transaction
complained of occurred or such partner became a partner by operation of law or
pursuant to the terms of the partnership agreement by assignment from a person
who was a partner at the time of such transaction.
Under GRULPA, a general partner of a Georgia limited partnership has the
same liabilities to the partnership and the other partners as a partner in a
partnership without limited partners. Accordingly, in any action alleging a
breach of fiduciary duty by the General Partners to either the Limited Partners
or the Partnership, it is not anticipated that the General Partners would be
able to successfully assert as a defense the general presumption which is often
referred to as the "business judgment rule" that actions taken by the directors
of a corporation on behalf of the corporation are reasonable. However, since
any such action would involve a rapidly developing and changing area of the law,
investors who believe that a breach of fiduciary duty by the General Partners
may have occurred should consult with their own counsel.
Under GRULPA, except to the extent of acceptable limitations in the
partnership agreement, a general partner of a limited partnership generally owes
a duty of loyalty and a duty of care to his partners. The Partnership Agreement
provides that the General Partners shall not be liable to the Partnership or any
Partner arising out of any act or failure to act which the General Partners in
good faith determined was in the best interest of the Partnership, provided that
the General Partners shall be liable for any liabilities resulting from a
General Partner's (i) own fraud, negligence, misconduct or knowing violation of
law, (ii) breach of fiduciary duty to the Partnership or any Partner, or (iii)
breach of the Partnership Agreement, regardless of whether or not any such act
was first determined by such General Partner, in good faith, to be in the best
interest of the Partnership. Since absent limitations in the Partnership
Agreement such as the foregoing, a General Partner of a limited partnership
would generally be liable under state law for damages caused by breach of
fiduciary duty or a breach of the Partnership Agreement, regardless of whether
or not such person received any personal benefit therefrom, Limited Partners may
have a more limited right of action than they would otherwise have absent the
foregoing provisions in the Partnership Agreement.
In addition, the Partnership Agreement provides that the Partnership shall
indemnify the General Partners and their Affiliates from and against liabilities
and related expenses (including attorneys' fees) incurred in dealing with third
parties while acting on behalf of or performing services for the Partnership
arising out of any act or failure to act which the General Partners in good
faith determined was in the best interest of the Partnership, provided that the
General Partners shall not be indemnified by the Partnership for any liabilities
resulting from a General Partner's (i) own fraud, negligence, misconduct or
knowing violation of law, (ii) breach of fiduciary duty to the Partnership or
any Partner, or (iii) breach of the Partnership Agreement, regardless of whether
or not any such act was first determined by such General Partner, in good faith,
to be in the best interest of the Partnership. Any indemnification of the
General Partners is recoverable only out of the assets of the Partnership and
not from the Limited Partners. The indemnification provisions contained in the
Partnership Agreement are generally consistent with the provisions of GRULPA,
and the General Partners will not be indemnified for a violation of the duty of
care to their Partners to the extent any such violation constitutes negligence
or misconduct.
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<PAGE>
Notwithstanding the foregoing, the Partnership will not indemnify the
General Partners or any person acting as a broker-dealer with respect to the
Units from any liabilities incurred by them arising under federal and state
securities laws unless (i) there has been a successful adjudication on the
merits of each count involving alleged securities law violations as to the
particular person seeking indemnification, or (ii) such claims have been
dismissed with prejudice on the merits by a court of competent jurisdiction as
to the particular person seeking indemnification, or (iii) a court of competent
jurisdiction approves a settlement of the claims against the particular person
seeking indemnification and finds that indemnification of the settlement and
related costs should be made. In addition, prior to seeking a court approval for
indemnification, the General Partners are required to apprise the court of the
position of the Securities and Exchange Commission and various securities
regulatory authorities with respect to indemnification for securities
violations.
IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION, INDEMNIFICATION
FOR LIABILITIES ARISING OUT OF THE SECURITIES ACT OF 1933 IS AGAINST PUBLIC
POLICY AND IS THEREFORE UNENFORCEABLE.
PRIOR PERFORMANCE SUMMARY
THE INFORMATION PRESENTED IN THIS SECTION REPRESENTS THE HISTORICAL
EXPERIENCE OF REAL ESTATE PROGRAMS MANAGED BY THE GENERAL PARTNERS AND THEIR
AFFILIATES. INVESTORS IN THE PARTNERSHIP SHOULD NOT ASSUME THAT THEY WILL
EXPERIENCE RETURNS, IF ANY, COMPARABLE TO THOSE EXPERIENCED BY INVESTORS IN SUCH
PRIOR REAL ESTATE PROGRAMS.
The individual General Partner, Leo F. Wells, III, has served as a general
partner of a total of ten real estate limited partnerships for which offerings
have been completed within the last 10 years. These ten limited partnerships
and the year in which their offerings were completed are:
1. Wells Real Estate Fund I (1986)
2. Wells Real Estate Fund II (1988)
3. Wells Real Estate Fund II-OW (1988)
4. Wells Real Estate Fund III, L.P. (1990)
5. Wells Real Estate Fund IV, L.P. (1992)
6. Wells Real Estate Fund V, L.P. (1993)
7. Wells Real Estate Fund VI, L.P. (1994)
8. Wells Real Estate Fund VII, L.P. (1995)
9. Wells Real Estate Fund VIII, L.P. (1996)
10. Wells Real Estate Fund IX, L.P. (1996)
The tables included in Exhibit "A" attached hereto set forth information as
of the dates indicated regarding certain of these prior programs as to (i)
experience in raising and investing funds (Table I); (ii) compensation to
sponsor (Table II); and (iii) annual operating results of prior programs (Table
III). No information is given as to results of completed programs or sales or
disposals of property because, to date, none of the prior programs have sold any
of their properties.
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<PAGE>
PUBLICLY OFFERED UNSPECIFIED PROPERTY PARTNERSHIPS
The General Partners and their Affiliates have previously sponsored ten
publicly offered real estate limited partnerships which were offered on an
unspecified property or "blind pool" basis: Wells Fund I, Wells Fund II, Wells
Fund II-OW, Wells Fund III, Wells Fund IV, Wells Fund V, Wells Fund VI, Wells
Fund VII, Wells Fund VIII and Wells Fund IX. The total amount of funds raised
from investors in the offerings of these ten publicly offered partnerships, as
of September 30, 1996, was approximately $225,837,498, and the total number of
investors in such partnerships was approximately 22,130.
The investment objectives of Wells Fund I, Wells Fund II, Wells Fund II-OW,
Wells Fund III, Wells Fund IV, Wells Fund V, Wells Fund VI, Wells Fund VII,
Wells Fund VIII and Wells Fund IX are substantially identical to the investment
objectives of the Partnership. All of the proceeds of the offerings of Wells
Fund I, Wells Fund II, Wells Fund II-OW, Wells Fund III, Wells Fund IV, Wells
Fund V and Wells Fund VI available for investment in real properties have been
invested in properties. In addition, all of the proceeds of the offering of
Wells Fund VII available for investment in real properties have either been
invested or are committed for investment in properties. As of June 30, 1996,
approximately 56% and 50% of the proceeds of the offerings of Wells Fund VIII
and Wells Fund IX, respectively, available for investment in real properties had
either been invested in properties or were committed for investment in
properties. For the fiscal year ended December 31, 1995, approximately three-
quarters of the aggregate gross rental income of nine of these ten publicly
offered partnerships (Wells Fund IX had not yet commenced its offering) was
derived from tenants which are U.S. corporations, each of which has net worth of
at least $100,000,000 or whose lease obligations are guaranteed by another
corporation with a net worth of at least $100,000,000.
Certain real estate programs previously sponsored by the General Partners
and their Affiliates have experienced fluctuating financial performance, as
indicated in the prior performance tables included in Exhibit "A" hereto. The
real properties in which partnerships previously sponsored by the General
Partners and their Affiliates have invested have experienced the same economic
problems as other real estate investments in recent years, including without
limitation, general over-building and an excess supply in many markets, along
with increased operating costs and a general downturn in the real estate
industry. As a result, certain of these public partnerships have experienced
fluctuations in expenses and net income. These fluctuations were primarily due
to tenant turnover, resulting in increased vacancies and the requirement to
expend funds for tenant refurbishments, and increases in administrative and
other operating expenses. (See the "PRIOR PERFORMANCE TABLES" included as
Exhibit "A" hereto.) Additionally, while overall occupancy rates have not
decreased significantly at the properties owned by partnerships sponsored by the
General Partners and their Affiliates, some of these properties have experienced
high tenant turnover, and the partnerships owning these properties have
generally been unable to raise rental rates and have been required to make
expenditures for tenant improvements and to grant free rent and other
concessions in order to attract new tenants. Specifically, certain of the prior
public partnerships suffered decreases in net income during the real estate
recession of the late 1980s and early 1990s, which decreases were generally
attributable to the overall downturn in the economy and in the real estate
market in particular. Because of the cyclical nature of the real estate market,
such decreases in net income of the public partnerships could occur at any time
in the future when economic conditions decline. None of these prior programs
has liquidated or sold any of its real properties to date and, accordingly, no
assurance can be made that prior programs will ultimately be successful in
meeting their investment objectives. (See "RISK FACTORS.")
The aggregate dollar amount of the acquisition and development costs of the
properties purchased by these ten publicly offered partnerships, as of September
30, 1996, was approximately $169,419,439, of which $8,953,422 (or approximately
5.28%) had not yet been expended on the development of certain of the projects
which are still under construction. Of the aggregate amount, approximately
59.65% was or will be spent on acquiring or developing office buildings, and
approximately 40.35% was or will be spent on acquiring or developing shopping
centers. Of the aggregate amount, approximately 2.16% was or will be spent on
new properties, 39.08% on existing or used properties and 58.76% on construction
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<PAGE>
properties. Following is a table showing a breakdown of the aggregate amount of
the acquisition and development costs of the properties purchased by these ten
publicly offered partnerships as of September 30, 1996:
<TABLE>
<CAPTION>
Type of Property New Used Construction
- --------------------- ---- ----- -------------
<S> <C> <C> <C>
Office Buildings 2% 26% 32%
Shopping Centers 0% 13% 27%
</TABLE>
Wells Fund I terminated its offering on September 5, 1986, and received
gross proceeds of $35,321,000 representing subscriptions from 4,895 limited
partners. $24,679,000 of the gross proceeds were attributable to sales of Class
A Units, and $10,642,000 of the gross proceeds were attributable to sales of
Class B Units. Limited partners in Wells Fund I have no right to change the
status of their Units from Class A to Class B or vice versa. Wells Fund I owns
interests in the following properties: (i) a medical office building in Atlanta,
Georgia; (ii) two commercial office buildings in Atlanta, Georgia; (iii) a
shopping center in DeKalb County, Georgia; (iv) a shopping center in Knoxville,
Tennessee; (v) a shopping center in Cherokee County, Georgia; and (vi) a project
consisting of seven office buildings and a shopping center in Tucker, Georgia.
The prospectus of Wells Fund I provided that the properties purchased by Wells
Fund I would typically be held for a period of eight to twelve years, but that
the general partners may exercise their discretion as to whether and when to
sell the properties owned by Wells Fund I and that the partnership will have no
obligation to sell properties at any time. Wells Fund I acquired its properties
between 1985 and 1987, and has not yet liquidated or sold any of its properties.
Further, the properties of Wells Fund I may not be sold for some time in the
future.
Wells Fund II and Wells Fund II-OW terminated their offerings on September
7, 1988, and received aggregate gross proceeds of $36,870,250 representing
subscriptions from 4,659 limited partners. $28,829,000 of the gross proceeds
were attributable to sales of Class A Units, and $8,041,250 of the gross
proceeds were attributable to sales of Class B Units. Limited partners in Wells
Fund II and Wells Fund II-OW have no right to change the status of their Units
from Class A to Class B or vice versa. Wells Fund II and Wells Fund II-OW own
all of their properties through a joint venture, which owns interests in the
following properties: (i) a shopping center in Cherokee County, Georgia; (ii) a
project consisting of seven office buildings and a shopping center in Tucker,
Georgia; (iii) a two story office building in Charlotte, North Carolina; (iv) a
four story office building in Houston, Texas; (v) a restaurant in Roswell,
Georgia; and (vi) a combined retail and office development in Roswell, Georgia.
Wells Fund III terminated its offering on October 23, 1990, and received
gross proceeds of $22,206,310 representing subscriptions from 2,700 limited
partners. $19,661,770 of the gross proceeds were attributable to sales of Class
A Units, and $2,544,540 of the gross proceeds were attributable to sales of
Class B Units. Limited partners in Wells Fund III have no right to change the
status of their Units from Class A to Class B or vice versa. Wells Fund III
owns interests in the following properties: (i) a four story office building in
Houston, Texas; (ii) a restaurant in Roswell, Georgia; (iii) a combined retail
and office development in Roswell, Georgia; (iv) a two story office building in
Greenville, North Carolina; (v) a shopping center in Stockbridge, Georgia; and
(vi) a two story office building in Richmond, Virginia.
Wells Fund IV terminated its offering on February 29, 1992, and received
gross proceeds of $13,614,655 representing subscriptions from 1,286 limited
partners. $13,229,150 of the gross proceeds were attributable to sales of Class
A Units, and $385,505 of the gross proceeds were attributable to sales of Class
B Units. Limited partners in Wells Fund IV have no right to change the status
of their Units from Class A to Class B or vice versa. Wells Fund IV owns
interests in the following properties: (i) a shopping center in Stockbridge,
Georgia; (ii) a four story office building in Jacksonville, Florida; (iii) a two
story office building in Richmond, Virginia; and (iv) two two-story office
buildings in Stockbridge, Georgia. Wells Fund IV recognized net income of
$10,045 in 1991 (at which time it had not invested in any property), $200,942 in
1992 (at which time it only owned interests in the shopping center in
Stockbridge, Georgia, the property in Jacksonville, Florida which was under
construction, and the first office building in Stockbridge, Georgia which was
under construction), $496,911 in 1993 (at which time the second office building
in Stockbridge, Georgia was under construction), $605,011 in 1994 and $623,867
in 1995.
Wells Fund V terminated its offering on March 3, 1993, and received gross
proceeds of $17,006,020 representing subscriptions from 1,667 limited partners.
$15,209,666 of the gross proceeds were attributable to sales of Class A Units,
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<PAGE>
and $1,796,354 of the gross proceeds were attributable to sales of Class B
Units. Limited partners in Wells Fund V who purchased Class B Units are
entitled to change the status of their Units to Class A, but limited partners
who purchased Class A Units are not entitled to change the status of their Units
to Class B. After taking into effect conversion elections made by limited
partners subsequent to their subscription for Units, as of September 30, 1996,
$15,464,165 of Units of Wells Fund V were treated as Class A Units, and
$1,541,855 of Units were treated as Class B Units. Wells Fund V owns interests
in the following properties: (i) a four story office building in Jacksonville,
Florida; (ii) two two-story office buildings in Stockbridge, Georgia; (iii) a
four story office building in Hartford, Connecticut; (iv) two restaurants in
Stockbridge, Georgia; and (v) a three story office building in Appleton,
Wisconsin. Wells Fund V experienced an operating loss of $18,089 in 1992 (at
which time it only owned interests in the Jacksonville, Florida property which
was under construction and the first office building in Stockbridge, Georgia
which was under construction), recognized net income of $354,999 in 1993 (at
which time it had also acquired an interest in the Hartford, Connecticut
property and the second office building in Stockbridge, Georgia was under
construction), recognized net income of $561,721 in 1994 (at which time it owned
interests in all of the properties listed above for which it currently holds an
ownership interest, with the exception that only one of the two restaurants had
been developed on the tract of land in Stockbridge, Georgia) and recognized net
income of $689,639 in 1995.
Wells Fund VI terminated its offering on April 4, 1994, and received gross
proceeds of $25,000,000 representing subscriptions from 1,793 limited partners.
$19,332,176 of the gross proceeds were attributable to sales of Class A Units,
and $5,667,824 of the gross proceeds were attributable to sales of Class B
Units. Limited partners in Wells Fund VI are entitled to change the status of
their Units from Class A to Class B and vice versa. After taking into effect
conversion elections made by limited partners subsequent to their subscription
for Units, as of September 30, 1996, $21,047,576 of Units of Wells Fund VI were
treated as Class A Units, and $3,952,424 of Units were treated as Class B Units.
Wells Fund VI owns interests in the following properties: (i) a four story
office building in Hartford, Connecticut; (ii) two restaurants in Stockbridge,
Georgia; (iii) another restaurant and a retail building in Stockbridge, Georgia;
(iv) a shopping center in Stockbridge, Georgia; (v) a three story office
building in Appleton, Wisconsin; (vi) a shopping center in Cherokee County,
Georgia; (vii) a combined retail and office development in Roswell, Georgia;
(viii) a four story office building in Jacksonville, Florida; and (ix) a tract
of land in Clemmons, North Carolina upon which a shopping center is being
developed. Wells Fund VI recognized net income of $31,428 in 1993 (at which
time it only owned an interest in the Hartford, Connecticut property), $700,896
in 1994 (at which time it owned only interests in (i) the four story office
building in Hartford, Connecticut; (ii) the retail building and an undeveloped
tract of land in Stockbridge, Georgia; and (iii) the three story office building
in Appleton, Wisconsin) and $901,828 in 1995 (at which time each of the
following properties was under construction: (i) one of the retail buildings in
Stockbridge, Georgia, (ii) the combined retail and office development in
Roswell, Georgia, (iii) the office building in Jacksonville, Florida, and (iv)
the shopping center in Clemmons, North Carolina).
Wells Fund VII terminated its offering on January 5, 1995, and received
gross proceeds of $24,180,174 representing subscriptions from 1,910 limited
partners. $16,788,095 of the gross proceeds were attributable to sales of Class
A Units, and $7,392,079 of the gross proceeds were attributable to sales of
Class B Units. Limited partners in Wells Fund VII are entitled to change the
status of their Units from Class A to Class B and vice versa. After taking into
effect conversion elections made by limited partners subsequent to their
subscriptions for Units, as of September 30, 1996, $18,140,800 of Units in Wells
Fund VII were treated as Class A Units, and $6,039,374 of Units were treated as
Class B Units. Wells Fund VII owns interests in the following properties: (i) a
three story office building in Appleton, Wisconsin; (ii) a restaurant and a
retail building in Stockbridge, Georgia; (iii) a shopping center in Stockbridge,
Georgia; (iv) a shopping center in Cherokee County, Georgia; (v) a combined
retail and office development in Roswell, Georgia; (vi) a two story office
building in Alachua County, Florida near Gainesville; (vii) a four story office
building in Jacksonville, Florida; (viii) a tract of land in Clemmons, North
Carolina upon which a shopping center is being developed; and (ix) a retail
development in Clayton County, Georgia. Wells Fund VII recognized net income of
$203,263 in 1994 (at which time it only owned an interest in the three story
office building in Appleton, Wisconsin and an undeveloped tract of land in
Stockbridge, Georgia) and $804,043 in 1995 (at which time it only owned
interests in the office building in Appleton, Wisconsin, the developments in
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<PAGE>
Stockbridge, Georgia, the office building in Alachua County, Florida, the office
building in Jacksonville, Florida, the tract of land in Clemmons, North
Carolina, which was under construction, and the retail building in Stockbridge,
Georgia, which was under construction).
Wells Fund VIII terminated its offering on January 4, 1996, and received
gross proceeds of $32,042,689 (3,204,269 Units) representing subscriptions from
2,241 limited partners. $26,135,339 of the gross proceeds were attributable to
sales of Class A Status Units, and $5,907,350 were attributable to sales of
Class B Status Units. Limited partners in Wells Fund VIII are entitled to
change the status of their Units from Class A to Class B and vice versa. After
taking into effect conversion elections made by limited partners subsequent to
their subscriptions for Units, as of September 30, 1996, $26,197,580 of Units in
Wells Fund VIII were treated as Class A Status Units, and $5,845,109 of Units
were treated as Class B Status Units. Wells Fund VIII owns interests in the
following properties: (i) a two story office building in Alachua County, Florida
near Gainesville; (ii) a four story office building in Jacksonville, Florida;
(iii) a tract of land in Clemmons, North Carolina, upon which a shopping center
is being developed; (iv) a retail development in Clayton County, Georgia; (v) a
tract of land in Madison, Wisconsin, upon which a four story office building is
being developed; and (vi) a one-story office building in Farmers Branch, Texas.
Wells Fund VIII recognized net income of $273,914 in 1995 (at which time it only
owned interests in the office building in Alachua County, Florida, the office
building in Jacksonville, Florida, which was under construction, and the tract
of land in Clemmons, North Carolina, which was under construction).
Wells Fund IX terminated its offering on December 30, 1996, and received
gross proceeds of $35,000,000 (3,500,000 Units) representing subscriptions from
2,095 limited partners. $29,359,270 of the gross proceeds were attributable to
sales of Class A Status Units and $5,640,730 were attributable to sales of
Class B Status Units. Wells Fund IX owns interests in (i) a tract of land in
Madison, Wisconsin, upon which a four story office building is being developed,
(ii) a one-story office building in Farmers Branch, Texas and (iii) a tract of
land in Knox County, Tennessee in the Knoxville metropolitan area, upon which a
three story office building is being developed.
THE INFORMATION SET FORTH ABOVE SHOULD NOT BE CONSIDERED INDICATIVE OF
RESULTS TO BE EXPECTED FROM THE PARTNERSHIP.
The foregoing properties in which the above ten limited partnerships have
invested have all been acquired and developed on an all cash basis.
The General Partners of the Partnership, Leo F. Wells, III and Wells
Partners, L.P. ("Wells Partners"), are also the general partners of Wells Fund
IV, Wells Fund V, Wells Fund VI, Wells Fund VII, Wells Fund VIII and Wells Fund
IX. Wells Capital, Inc., the general partner of Wells Partners, and Leo F.
Wells, III are the general partners of Wells Fund I, Wells Fund II, Wells Fund
II-OW and Wells Fund III.
Potential investors are encouraged to examine the Prior Performance Tables
attached as Exhibit "A" hereto for more detailed information regarding the prior
experience of the General Partners. In addition, upon request, prospective
investors may obtain from the General Partners without charge copies of offering
materials and any reports prepared in connection with any of the ten publicly
offered partnerships previously sponsored by the General Partners and their
Affiliates, including a copy of the most recent Annual Report on Form 10-K filed
with the Securities and Exchange Commission. For a reasonable fee, the
Partnership will also furnish upon request copies of the exhibits to any such
Form 10-K. Any such request should be directed to the General Partners.
Additionally, Table VI contained in Part II of the Registration Statement (which
is not part of this Prospectus) gives certain additional information relating to
properties acquired by prior partnerships affiliated with the General Partners.
The Partnership will furnish, without charge, copies of such table upon
request.
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<PAGE>
MANAGEMENT
THE GENERAL PARTNERS
The General Partners of the Partnership are: Wells Partners, L.P., a
Georgia limited partnership, and Mr. Leo F. Wells, III, individually.
WELLS PARTNERS, L.P. Wells Partners, L.P. ("Wells Partners") has Wells
Capital, Inc. ("Wells Capital"), a Georgia corporation formed in April 1984, as
its sole general partner. The executive offices of both Wells Partners and
Wells Capital are located at 3885 Holcomb Bridge Road, Norcross, Georgia 30092.
Financial statements of Wells Partners and Wells Capital are included in this
Prospectus at Appendix I. Leo F. Wells, III is the sole shareholder, sole
Director and the President of Wells Capital. (See "CONFLICTS OF INTEREST.")
As of September 30, 1996, the net worth of Wells Partners was in excess of
$1,029,000 on an estimated fair market value basis, and in excess of $129,000 on
a generally accepted accounting principles (GAAP) basis; however, the net worth
of Wells Partners consists almost entirely of partnership interests in real
estate limited partnerships and, therefore, does not represent liquid assets.
The principal officers and directors of Wells Capital are as follows:
Name Positions
- ---- ---------
Leo F. Wells, III President and Sole Director
Brian M. Conlon Executive Vice President
Louis A. Trahant Vice President of Sales and Operations
Edna B. King Vice President of Investor Services
Luther M. Boggs, Jr. Vice President of Marketing
LEO F. WELLS, III (age 52) is the President and sole Director of Wells
Capital. In addition, he is President of Wells & Associates, Inc., a real
estate brokerage and investment company formed in 1976 and incorporated in 1978,
for which he serves as principal broker. He is also the sole Director and
President of Wells Management Company, Inc., a property management company he
founded in 1983; Wells Investment Securities, Inc., a registered securities
broker-dealer he formed in 1984; and Wells Advisors, Inc., a company he
organized in 1991 to act as a non-bank custodian for IRAs. Mr. Wells was a real
estate salesman and property manager from 1970 to 1973 for Roy D. Warren &
Company, an Atlanta real estate company, and he was associated from 1973 to 1976
with Sax Gaskin Real Estate Company, during which time he became a Life Member
of the Atlanta Board of Realtors Million Dollar Club. From 1980 to February
1985, he served as Vice President of Hill-Johnson, Inc., a Georgia corporation
engaged in the construction business. Mr. Wells holds a Bachelor of Business
Administration degree in Economics from the University of Georgia. Mr. Wells is
a member of the International Association for Financial Planning and a
registered NASD principal.
Mr. Wells has over 25 years of experience in real estate sales, management
and brokerage services. He is currently a co-general partner in a total of 23
real estate limited partnerships formed for the purpose of acquiring, developing
and operating office buildings and other commercial properties, a majority of
which are located in suburban areas of metropolitan Atlanta, Georgia. As of
September 30, 1996, these 23 real estate limited partnerships represented
investments totaling $233,073,875 from 22,599 investors. (See "PRIOR
PERFORMANCE SUMMARY.")
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As of September 30, 1996, Mr. Wells' net worth (exclusive of home,
automobiles and home furnishings) was approximately $1,562,000 on an estimated
fair market value basis. Mr. Wells' net worth consists principally of
investments in real estate, interests in retirement plans, notes receivable and
his stock in Wells Capital and other closely held corporations and, therefore,
does not represent liquid assets or assets which are readily marketable. (See
"RISK FACTORS.")
The combined net worth of the General Partners as of September 30, 1996, on
an estimated fair market value basis, was in excess of $2,571,000. When the net
worth of Wells Partners is calculated on a generally accepted accounting
principles (GAAP) basis (i.e. Wells Partners' investments are valued at cost
instead of estimated fair market value), the combined net worth of the General
Partners as of September 30, 1996 was approximately $1,691,000. However, the
General Partners' net worth consists primarily of interests in real estate and
closely-held businesses, and thus such net worth is substantially illiquid and
not readily marketable. (See "RISK FACTORS.")
BRIAN M. CONLON (age 38) is the Executive Vice President of Wells Capital.
Mr. Conlon joined Wells Capital in 1985 as a Regional Vice President, and served
as Vice President and National Marketing Director from 1991 until April 1996
when he assumed his current position. Previously, Mr. Conlon was Director of
Business Development for Tishman Midwest Management & Leasing Services Corp.
where he was responsible for marketing the firm's property management and
leasing services to institutions. Mr. Conlon also spent two years as an
Investment Property Specialist with Carter & Associates where he specialized in
acquisitions and dispositions of office and retail properties for institutional
clients. Mr. Conlon received a Bachelor of Business Administration degree from
Georgia State University and a Master of Business Administration degree from the
University of Dallas. Mr. Conlon is a member of the International Association
for Financial Planning (IAFP), a general securities principal and a Georgia real
estate broker. Mr. Conlon also holds the certified commercial investment member
(CCIM) designation of the Commercial Investment Real Estate Institute and the
certified financial planner (CFP) designation of the Certified Financial Planner
Board of Standards, Inc.
LOUIS A. TRAHANT (age 50) is Vice President of Sales and Operations for
Wells Capital. He is responsible for the internal sales support provided to
regional vice presidents and to registered representatives of broker-dealers
participating in offerings of the public partnerships. Mr. Trahant is also
responsible for statistical analysis of sales-related activities, development of
office and communication systems, and hiring of administrative personnel. Mr.
Trahant joined Wells Capital in 1993 as Vice President for Marketing of the
Southern Region and assumed his current position in 1995. Prior to joining
Wells Capital, Mr. Trahant had extensive sales and marketing experience in the
commercial lighting industry. He is a graduate of Southeastern Louisiana
University, a member of the International Association for Financial Planning
(IAFP) and holds a Series 22 license.
EDNA B. KING (age 60) is the Vice President of Investor Services for Wells
Capital. She is responsible for processing new investments, sales reporting and
investors communications. Prior to joining Wells Capital in 1985, Ms. King
served as the Southeast Service Coordinator for Beckman Instruments and an
office manager for a regional office of Commerce Clearing House. Ms. King holds
an Associate Degree in Business Administration from DeKalb Community College in
Atlanta, Georgia and has completed various courses at the University of North
Carolina at Wilmington.
LUTHER M. BOGGS, JR. (age 28) is Vice President of Marketing for Wells
Capital. He coordinates the development of marketing and sales materials
promoting the public partnerships. Prior to joining Wells Capital in 1995, Mr.
Boggs was a marketing and public relations consultant. He is a graduate of the
University of Georgia and completed a post-graduate course of study at Ohio
University.
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MANAGEMENT
The General Partners of the Partnership, Mr. Wells and Wells Partners, will
be responsible for the direction and management of the Partnership, including
acquisition, construction and property management. Any action required to be
taken by the General Partners shall be taken only if it is approved, in writing
or otherwise, by both General Partners, unless the General Partners agree
between themselves to a different arrangement for the approval of action of the
General Partners. The powers and duties of the General Partners are described
in Article XI of the Partnership Agreement. The compensation payable to the
General Partners for performance of their duties is set forth in "COMPENSATION
OF THE GENERAL PARTNERS AND AFFILIATES."
A change in management of the Partnership may be accomplished by removal of
the General Partners or the designation of a successor or additional General
Partner, in each case in accordance with the provisions of the Partnership
Agreement. The Partnership Agreement provides that a General Partner may be
removed and a new General Partner elected upon the written consent or
affirmative vote of Limited Partners owning more than 50% of the Units. The
Partnership Agreement further provides that a General Partner may designate a
successor or additional General Partner with the consent of all other General
Partners and Limited Partners holding more than 50% of the Units, after
providing 90 days written notice to the General Partners and Limited Partners
and provided that the interests of the Limited Partners are not affected
adversely thereby. Generally, except in connection with such a designation, no
General Partner shall have the right to retire or withdraw voluntarily from the
Partnership or to sell, transfer or assign his or its interest without the
consent of the Limited Partners holding more than 50% of the Units. (See
"SUMMARY OF PARTNERSHIP AGREEMENT.")
PROPERTY MANAGER. Partnership Properties will be managed and leased
initially by Wells Management Company, Inc., a Georgia corporation which is
owned by Mr. Wells. Its compensation for management of commercial properties
will be a 3% leasing fee and a 3% management fee (totalling 6% of the gross
revenues from the operations of each property). A special one-time leasing fee
may be paid on the first leases for newly constructed properties. This fee must
be competitive, and the amount of this fee received by Wells Management Company,
Inc. will be reduced by any amount paid to an outside broker. The General
Partners believe these terms will be no less favorable to the Partnership than
those customary for similar services in the relevant geographic area. Depending
upon the location of certain Partnership Properties and other circumstances,
unaffiliated property management companies may be retained to render property
management services for some Partnership Properties. (See "COMPENSATION OF THE
GENERAL PARTNERS AND AFFILIATES.")
In the event that Wells Management Company, Inc. assists a tenant with
tenant improvements, a separate fee may be charged to the tenant and paid by the
tenant. This fee will not exceed 5% of the cost of the tenant improvements.
Wells Management Company, Inc. is engaged in the business of real estate
management. It was organized and commenced active operations in 1983 to lease
and manage real estate projects which the General Partners and their Affiliates
operate or in which Mr. Wells owns an interest. Wells Management Company, Inc.
currently manages in excess of 1,500,000 square feet of office buildings and
shopping centers.
Mr. Wells is the sole shareholder, sole Director and President of Wells
Management Company, Inc. (See "CONFLICTS OF INTEREST.") The other principal
officers of Wells Management Company, Inc. are Michael C. Berndt, Vice President
and Chief Financial Officer, Annakay Warden, Vice President and Director of
National Leasing and Tenant Relations, M. Scott Meadows, Vice President of
Property Management, Robert H. Stroud, Vice President of Leasing, and Michael L.
Watson, Vice President of Development.
The property manager will hire, direct and establish policies for the
Partnership's employees who will have direct responsibility for each property's
operations, including resident managers and assistant managers, as well as
building and maintenance personnel. Some or all of the other Partnership
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employees may be employed on a part-time basis and may also be employed by one
or more of the following: (i) the General Partners; (ii) the property manager;
(iii) other partnerships organized by the General Partners and their Affiliates;
and (iv) other persons or entities owning properties managed by the property
manager. The property manager will also direct the purchase of equipment and
supplies and will supervise all maintenance activity.
The management fees to be paid to Wells Management Company, Inc. will
cover, without additional expense to the Partnership, the property manager's
general overhead costs such as its expenses for rent and utilities. However,
certain salaries and other employee-related expenses, travel and other out-of-
pocket expenses of personnel of Wells Management Company, Inc. (other than
controlling persons of the General Partners or their Affiliates) may be
reimbursed by the Partnership to the extent such expenses are directly related
to the management of a specific Partnership Property.
The principal office of Wells Management Company, Inc. is located at 3885
Holcomb Bridge Road, Norcross, Georgia 30092.
DEALER MANAGER. Wells Investment Securities, Inc. (the "Dealer Manager"),
a member firm of the National Association of Securities Dealers, Inc. ("NASD"),
was organized in May 1984 for the purpose of participating in and facilitating
the distribution of securities of real estate limited partnerships which may
from time to time be sponsored by the General Partners and their Affiliates.
The Dealer Manager will provide certain wholesaling, sales promotional and
marketing assistance services to the Partnership in connection with the
distribution of the Units offered hereby. It may also sell a limited number of
Units at the retail level. (See "PLAN OF DISTRIBUTION.")
Mr. Wells is the sole shareholder, the sole Director and President of Wells
Investment Securities, Inc. (See "CONFLICTS OF INTEREST.") Brian M. Conlon
serves as Vice President of Wells Investment Securities, Inc.
IRA CUSTODIAN. Wells Advisors, Inc. was organized in 1991 for the purpose
of acting as a non-bank custodian for IRAs investing in the securities of real
estate limited partnerships sponsored by the General Partners and their
Affiliates. Wells Advisors, Inc. charges no fees for such services. Wells
Advisors, Inc. was approved by the Internal Revenue Service to act as a
qualified non-bank custodian for IRAs on March 20, 1992. In circumstances where
Wells Advisors, Inc. acts as an IRA custodian, the authority of Wells Advisors,
Inc. is limited to holding the Units on behalf of the beneficiary of the IRA and
making distributions or reinvestments in Units solely at the discretion of the
beneficiary of the IRA. Wells Advisors, Inc. is not authorized to vote any of
the Units held in any IRA except in accordance with the written instructions of
the beneficiary of the IRA. Mr. Wells is the sole Director and President and
owns 50% of the common stock and all of the preferred stock of Wells Advisors,
Inc.
CERTAIN LEGAL PROCEEDINGS. On December 5, 1996, litigation was instituted
in the Superior Court of Fulton County, Georgia against Wells Fund Ii, Wells
Fund III, Wells Capital, Inc. and Leo F. Wells, III, who are the general
partners of Wells Fund II and Wells Fund III, in connection with a request by a
limited partner in Wells Fund II and Wells Fund III for a list of the names,
addresses and ownership interests of the limited partners of each of Wells Fund
II and Wells Fund III which to date the defendants have refused to furnish to
the plaintiff. The case is styled Gramercy Park Investments L.P. v. Wells Real
Estate Fund II, Wells Real Estate Fund III, L.P., Wells Capital, Inc. and Leo F.
Wells, III. The plaintiff alleges that it is entitled to a copy of the limited
partner list under applicable provisions of Georgia partnership law and the
partnership agreements of Wells Fund II and Wells Fund III and is seeking an
order directing the defendants to furnish to the plaintiff a current list of the
names, addresses and ownership interests of the limited partners in Wells Fund
II and Wells Fund III, as well as an award of certain damages, including its
costs and attorneys' fees and such other relief as the court deems just and
proper. The defendants have 30 days after service of the complaint within which
to respond. As of the date of this Prospectus, the defendants have not
responded to the plaintiff's complaint.
INVESTMENT OBJECTIVES AND CRITERIA
GENERAL
The Partnership is a limited partnership which was organized to invest in
commercial real properties, including properties which are under development or
construction, are newly constructed or have been constructed and have operating
histories. The Partnership's objectives are: (i) to maximize Net Cash From
Operations; (ii) to preserve, protect and return the Capital Contributions of
the Partners; and (iii) to realize capital appreciation upon the ultimate sale
of Partnership Properties. No assurance can be given that these objectives will
be attained or that the Partnership's capital will not decrease. The investment
objectives of the Partnership may not be changed except upon approval of a
majority-in-interest of the Limited Partners.
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Decisions relating to the purchase or sale of Partnership Properties will
be made by the General Partners. See "MANAGEMENT" for a description of the
background and experience of the General Partners.
ACQUISITION AND INVESTMENT POLICIES
The Partnership will seek to invest substantially all of the net Offering
proceeds available for investment on an all cash basis in the acquisition of
commercial real properties, which are under development or construction, are
newly constructed or which have been previously constructed and have operating
histories. While not limited to such investments, the General Partners will
generally seek to invest in commercial properties such as office buildings,
shopping centers and industrial properties which are less than five years old,
the space in which has been leased or preleased to one or more large corporate
tenants who satisfy the General Partners' standards of creditworthiness. It is
anticipated that a majority of the tenants of the Partnership Properties will be
top U.S. corporations or other entities each of which has a net worth in excess
of $100,000,000 or whose lease obligations are guaranteed by another corporation
or entity with a net worth in excess of $100,000,000. The Partnership may,
however, invest in office buildings, shopping centers or industrial properties
which are not preleased to such tenants or in other types of commercial or
industrial properties such as hotels, motels or business or industrial parks.
Notwithstanding the foregoing, the Partnership will not be actively engaged in
the business of operating hotels, motels or similar properties.
While the Partnership will seek to invest in properties that will satisfy
the primary objective of providing distributions of current cash flow to
investors, due to the fact that a significant factor in the valuation of income-
producing real properties is their potential for future income, the General
Partners anticipate that the majority of properties acquired by the Partnership
will satisfy both attributes of providing potential for capital appreciation and
providing distributions of current cash flow to investors. To the extent
feasible, the General Partners will strive to invest in a diversified portfolio
of properties that will satisfy the Partnership's investment objectives of
maximizing Net Cash From Operations, preserving investors' capital and realizing
capital appreciation upon the ultimate sale of Partnership Properties.
It is anticipated that approximately 81% of the proceeds from the sale of
Units will be used to acquire Partnership Properties and the balance will be
used to pay various fees and expenses. (See "ESTIMATED USE OF PROCEEDS.")
Unimproved or non-income producing property shall not be acquired except in
amounts and on terms which can be financed by the Offering proceeds or Cash
Flow. Investment in unimproved or non-income producing property may not exceed
15% of the net offering proceeds available for Investment in Properties. A
property which is expected to produce income within two years of its acquisition
will not be considered a non-income producing property. The Partnership will
not acquire property in exchange for Units.
Investment in property generally will take the form of fee title or of a
leasehold estate having a term, including renewal periods, of at least 40 years,
and may be made either directly or indirectly through investments in joint
ventures, general partnerships, co-tenancies or other co-ownership arrangements
with the developers of the properties, Affiliates of the General Partners or
other persons. (See "Joint Venture Investments" below.) In addition, the
Partnership may purchase properties and lease them back to the sellers of such
properties. While the General Partners will use their best efforts to structure
any such sale-leaseback transaction such that the lease will be characterized as
a "true lease" and so that the Partnership will be treated as the owner of the
property for federal income tax purposes, no assurance can be given that the IRS
will not challenge such characterization. In the event that any such sale-
leaseback transaction is recharacterized as a financing transaction for federal
income tax purposes, deductions for depreciation and cost recovery relating to
such property would be disallowed or significantly reduced. (See "FEDERAL
INCOME TAX CONSEQUENCES - Characterization of Leases.")
The Partnership is not limited as to the geographic area where it may
conduct its operations, but the General Partners intend to invest in properties
located in the United States.
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There are no specific limitations on the number or size of properties to be
acquired by the Partnership or on the percentage of net proceeds of this
Offering which may be invested in a single property. The number and mix of
properties acquired will depend upon real estate and market conditions and other
circumstances existing at the time the Partnership is acquiring its properties
and the amount of the net proceeds of this Offering.
In making investment decisions for the Partnership, the General Partners
will consider relevant real property and financial factors, including the
location of the property, its suitability for any development contemplated or in
progress, its income-producing capacity, the prospects for long-range
appreciation, its liquidity and income tax considerations. In this regard, the
General Partners will have substantial discretion with respect to the selection
of specific Partnership investments.
The Partnership will obtain independent appraisals for each property in
which it invests, and the purchase price of each such property will not exceed
its appraised value. However, the General Partners will rely on their
own independent analysis and not on such appraisals in determining whether to
invest in a particular property. It should be noted that appraisals are
estimates of value and should not be relied upon as measures of true worth or
realizable value. Copies of these appraisals will be available for review and
duplication by Limited Partners at the office of the Partnership and will be
retained for at least five years.
The Partnership's obligation to close the purchase of any investment will
generally be conditioned upon the delivery and verification of certain documents
from the seller or developer, including, where appropriate, plans and
specifications, environmental reports, surveys, evidence of marketable title
(subject only to such liens and encumbrances as are acceptable to the General
Partners), audited financial statements covering recent operations of any
properties having operating histories (unless such statements are not required
to be filed with the Securities and Exchange Commission and delivered to
investors), title and liability insurance policies and opinions of counsel in
certain circumstances. The Partnership will not close the purchase of any
property unless and until it obtains an environmental assessment (a minimum of a
Phase I review) for each property purchased and the General Partners are
generally satisfied with the environmental status of the property.
The Partnership may also enter into arrangements with the seller or
developer of a property whereby the seller or developer agrees that if during a
stated period the property does not generate a specified cash flow, the seller
or developer will pay in cash to the Partnership a sum necessary to reach the
specified cash flow level, subject in some cases to negotiated dollar
limitations.
In determining whether to purchase a particular property, the Partnership
may, in accordance with customary practices, obtain an option on such property.
The amount paid for an option, if any, is normally surrendered if the property
is not purchased and is normally credited against the purchase price if the
property is purchased.
In purchasing, leasing and developing real properties, the Partnership will
be subject to risks generally incident to the ownership of real estate,
including changes in general economic or local conditions, changes in supply of
or demand for similar or competing properties in an area, changes in interest
rates and availability of permanent mortgage funds which may render the sale of
a property difficult or unattractive, and changes in tax, real estate,
environmental and zoning laws. Periods of high interest rates and tight money
supply may make the sale of properties more difficult. The Partnership may
experience difficulty in keeping the properties fully leased due to tenant
turnover, general overbuilding or excess supply in the market area. Development
of real properties is subject to risks relating to the builders' ability to
control construction costs or to build in conformity with plans, specifications
and timetables. (See "RISK FACTORS - Real Estate Risks.")
DEVELOPMENT AND CONSTRUCTION OF PROPERTIES
The Partnership may invest substantially all of the net proceeds available
for investment in properties on which improvements are to be constructed or
completed although the Partnership may not invest in excess of 15% of the net
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offering proceeds available for Investment in Properties in properties which are
not expected to produce income within two years of their acquisition. To help
ensure performance by the builders of properties which are under construction,
completion of properties under construction shall be guaranteed at the price
contracted either by an adequate completion bond or performance bond, or, in
appropriate circumstances, the General Partners may rely upon the substantial
net worth of the contractor or developer or a personal guarantee accompanied by
financial statements showing a substantial net worth provided by an Affiliate of
the person entering into the construction or development contract as an
alternative to a completion bond or performance bond.
The Partnership may make periodic progress payments or other cash advances
to developers and builders of its properties prior to completion of construction
only upon receipt of an architect's certification as to the percentage of the
project then completed and as to the dollar amount of the construction then
completed. The Partnership intends to use such additional controls on its
disbursements to builders and developers as it deems necessary or prudent.
The Partnership may directly employ one or more project managers to plan,
supervise and implement the development of any unimproved properties which it
may acquire. Such persons would be compensated directly by the Partnership and,
other than through such employment, will not be affiliated with the General
Partners.
TERMS OF LEASES AND LESSEE CREDITWORTHINESS
The terms and conditions of any lease entered into by the Partnership with
regard to a tenant may vary substantially from those described herein. However,
a majority of leases are expected to be what is generally referred to as "triple
net" leases, which means that the lessee will be required to pay or reimburse
the Partnership for all real estate taxes, sales and use taxes, special
assessments, utilities, insurance and building repairs as well as lease
payments.
The General Partners have developed specific standards for determining the
creditworthiness of potential lessees of Partnership Properties. While
authorized to enter into leases with any type of lessee, the General Partners
anticipate that a majority of the tenants of the Partnership Properties will be
top U.S. corporations or other entities each of which has a net worth in excess
of $100,000,000 or whose lease obligations are guaranteed by another corporation
or entity with a net worth in excess of $100,000,000.
BORROWING POLICIES
The Partnership will acquire properties on an all cash basis, and the
General Partners do not intend to cause the Partnership to borrow any funds.
However, in order to give the General Partners flexibility in the management of
the Partnership, the Partnership Agreement authorizes the Partnership to borrow
funds (a) for Partnership operating purposes in the event of unexpected
circumstances in which the Partnership's working capital reserves and other cash
resources available to the Partnership become insufficient for the maintenance
and repair of Partnership Properties or for the protection or replacement of the
Partnership's assets, and (b) in order to finance improvement of and
improvements to properties, when the General Partners deem such improvements to
be necessary or appropriate to protect the capital previously invested in the
properties, to protect the value of the Partnership's investment in a particular
property, or to make a particular property more attractive for sale or lease.
The Partnership cannot borrow funds for any other purposes. The aggregate
amount of Partnership borrowings at any given time may not exceed 25% of the
total purchase price of Partnership Properties. The General Partners have
represented that they will not cause the Partnership to incur indebtedness
unless the Partnership first obtains an opinion of counsel that the indebtedness
to be obtained more likely than not will not cause the income of the Partnership
to be characterized as UBTI. Investors should be aware, however, that an
opinion of counsel is based upon various representations and assumptions, and
has no binding effect on the IRS or any court. Accordingly, no assurance can be
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given that the conclusions reached in any such opinion of counsel, if contested,
would be sustained by a court, or that any such indebtedness to be obtained by
the Partnership in the future would not cause the income allocated to Limited
Partners that are tax-exempt entities to be taxed as UBTI. (See "FEDERAL INCOME
TAX CONSEQUENCES - Investment by Qualified Plans and Other Tax-Exempt
Entitles.")
If the Partnership does incur indebtedness the repayment of which is
secured by Partnership Properties, it intends to incur only non-recourse
indebtedness in connection with such borrowings, meaning that neither the
Partnership nor any Partner will be personally liable therefor. The lender's
rights on default generally would be limited to foreclosure on the property
which secured the obligation. There is no limitation on the maximum amount of
mortgage indebtedness which may be incurred with respect to any single property;
however, the Partnership anticipates that mortgage indebtedness with respect to
any single property would not exceed 10% of the property's fair market value and
that aggregate borrowings relating to all properties would not exceed 10% of
their combined fair market value. The Partnership will not incur debt to fund
distributions to Limited Partners. If the Partnership incurs mortgage
indebtedness, it would endeavor to obtain level payment financing, meaning that
the amount of debt service payable would be substantially the same each year,
although some mortgages might provide for a so-called "balloon" payment.
The Partnership may borrow funds from the General Partners or their
Affiliates in such situations only if the following qualifications are met: (a)
any such borrowing cannot constitute a "financing" as that term is defined under
the NASAA Guidelines, i.e., all indebtedness encumbering Partnership Properties
or incurred by the Partnership, the principal amount of which is scheduled to be
paid over a period of not less than 48 months, and not more than 50% of the
principal amount of which is scheduled to be paid during the first 24 months;
(b) interest and other financing charges or fees must not exceed the amounts
which would be charged by unrelated lending institutions on comparable financing
for the same purpose in the same locality as the Partnership's principal place
of business; and (c) no prepayment charge or penalty shall be required.
Except in connection with a potential borrowing as described above, the
Partnership will not issue senior securities.
JOINT VENTURE INVESTMENTS
The Partnership is likely to enter into one or more joint ventures with
Affiliated entities for the acquisition, development or improvement of
properties, under the conditions described below. The Partnership may invest
some or all of the proceeds of the Offering in such joint ventures. In this
connection, the Partnerships may enter into joint ventures with each other, and
either or both of the Partnerships may enter into joint ventures with future
programs sponsored by the General Partners or their Affiliates or Prior Wells
Public Programs. The General Partners also have the authority to enter into
joint ventures, general partnerships, co-tenancies and other participations with
real estate developers, owners and others for the purpose of developing, owning
and operating properties in accordance with the Partnership's investment
policies. (See "RISK FACTORS" and "CONFLICTS OF INTEREST.") In determining
whether to invest in a particular joint venture, the General Partners will
evaluate the real property which such joint venture owns or is being formed to
own under the same criteria described herein for the selection of real property
investments of the Partnership. (See "Acquisition and Investment Policies,"
Development and Construction of Properties," Terms of Leases and Lessee
Creditworthiness," and "Borrowing Practices.")
At such time as the General Partners believe that a reasonable probability
exists that the Partnership will enter into a joint venture with a Prior Wells
Public Program for the acquisition or development of a specific property, this
Prospectus will be supplemented to disclose the terms of such proposed
investment transaction. Based upon the General Partners' experience, in
connection with the development of a property which is currently owned by a
Prior Wells Public Program, this would normally occur upon the signing of
legally binding leases with one or more major tenants for commercial space to be
developed on such property, but may occur before or after any such signing,
depending upon the particular circumstances surrounding each potential
investment. It should be understood that the initial disclosure of any such
proposed transaction cannot be relied upon as an assurance that the Partnership
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will ultimately consummate such proposed transaction nor that the information
provided in any such Supplement to this Prospectus concerning any such proposed
transaction will not change after the date of the Supplement. The only
undeveloped property which is currently owned by any of the Prior Wells Public
Programs in which the General Partners believe that there is a realistic
possibility that the Partnership may invest are the undeveloped portions of the
tract of land located in Clemmons, North Carolina, upon a portion of which a
shopping center is being developed by a joint venture among Wells Fund VI, Wells
Fund VII and Wells Fund VIII. (See "PRIOR PERFORMANCE SUMMARY.")
The Partnership may enter into a partnership, joint venture or co-tenancy
with unrelated parties if (i) the management of such partnership, joint venture
or co-tenancy is under the control of the Partnership; (ii) the Partnership, as
a result of such joint ownership or partnership ownership of a property, is not
charged, directly or indirectly, more than once for the same services; (iii) the
joint ownership, partnership or co-tenancy agreement does not authorize or
require the Partnership to do anything as a partner, joint venturer or co-tenant
with respect to the property which the Partnership or the General Partners could
not do directly because of the Partnership Agreement; and (iv) the General
Partners and their Affiliates are prohibited from receiving any compensation,
fees or expenses which are not permitted to be paid under the Partnership
Agreement. In the event that any such co-ownership arrangement contains a
provision giving each party a right of first refusal to purchase the other
party's interest, the Partnership may not have sufficient capital to finance any
such buy-out. (See "RISK FACTORS.")
The Partnership intends to enter into joint ventures with other publicly
registered Affiliated entities for the acquisition of properties, but may only
do so provided that (i) each such co-venturer has substantially identical
investment objectives as those of the Partnership; (ii) the Partnership, as a
result of such joint ownership or partnership ownership of a property, is not
charged, directly or indirectly, more than once for the same services; (iii)
compensation payable to the Partnership by such Affiliate is substantially
identical to that payable to the General Partners by the Partnership; (iv) the
Partnership will have a right of first refusal to buy if such co-venturer elects
to sell its interest in the property held by the joint venture; and (v) the
investment by the Partnership and such Affiliate are on substantially the same
terms and conditions, and each such entity's ownership interest in such joint
venture or partnership shall be based upon the respective proportion of funds
invested in such joint venture or partnership by the Partnership and such
Affiliate. In the event that the co-venturer were to elect to sell property
held in any such joint venture, however, the Partnership may not have sufficient
funds to exercise its right of first refusal to buy the other co-venturer's
interest in the property held by the joint venture. In the event that any joint
venture with an Affiliated entity holds interests in more than one property, the
interest in each such property may be specially allocated based upon the
respective proportion of funds invested by each co-venturer in each such
property. Entering into such joint ventures with Affiliated entities will
result in certain conflicts of interest. (See "RISK FACTORS" and "CONFLICTS OF
INTEREST - Joint Ventures with Affiliates of the General Partners.")
DISPOSITION POLICIES
The Partnership anticipates that prior to its termination and dissolution,
all of the Partnership's properties will be sold. The Partnership intends to
hold the various real properties in which it invests until such time as sale or
other disposition appears to be advantageous to achieve the Partnership's
investment objectives or until it appears that such objectives will not be met.
In deciding whether to sell properties, the Partnership will consider factors
such as potential capital appreciation, Cash Flow and federal income tax
considerations, including possible adverse federal income tax consequences to
the Limited Partners. The General Partners anticipate that the Partnership will
sell existing income-producing properties within ten to 12 years after
acquisition and will sell property acquired for development within ten to 12
years from the date of completion of such development. However, the General
Partners may exercise their discretion as to whether and when to sell a
property, and the Partnership will have no obligation to sell properties at any
particular time, except in the event that Limited Partners holding a majority of
the Units vote to liquidate the Partnership in response to a formal proxy to
liquidate. (See "SUMMARY OF PARTNERSHIP AGREEMENT - Proxy to Liquidate.")
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Cash Flow will not be reinvested in newly acquired Partnership Properties,
however, in the discretion of the General Partners, may be held as working
capital reserves, or used to make capital improvements to existing Partnership
Properties. In addition, Sale Proceeds generally will not be reinvested but
will be distributed to the Partners. Thus, the Partnership is intended to be
self-liquidating in nature. However, Sale Proceeds need not be so distributed
if such proceeds are, in the discretion of the General Partners, (i) used to
purchase land underlying any of the Partnership's Properties, (ii) used to buy
out the interest of any co-venturer or joint venture partner in a property which
is jointly owned, (iii) held as working capital reserves, or (iv) used to make
capital improvements to existing Partnership Properties. Notwithstanding the
above, reinvestment of Sale Proceeds will not occur unless sufficient cash will
be distributed to pay any federal or state income tax (assuming Limited Partners
will be subject to a 35% combined federal and state tax bracket) created by the
sale of the property.
Although not required to do so, the Partnership will generally seek to sell
its properties for all cash. The Partnership may, however, accept terms of
payment from a buyer which include purchase money obligations secured by
mortgages as partial payment, depending upon then prevailing economic conditions
customary in the area in which the property being sold is located, credit of the
buyer and available financing alternatives. Some properties sold by the
Partnership may be sold on the installment basis under which only a portion of
the sales price will be received in the year of sale, with subsequent payments
spread over a number of years. In such event, the full distribution by the
Partnership of the net proceeds of any sale may be delayed until the notes are
paid, sold or financed.
OTHER POLICIES
The Partnership will not invest as a limited partner in other limited
partnerships.
Except in connection with sales of properties by the Partnership where
purchase money obligations may be taken by the Partnership as partial payment,
the Partnership will not make loans to any person, nor will the Partnership
underwrite securities of other issuers, offer securities (except potentially for
purchase money obligations to sellers) in exchange for property, or invest in
securities of other issuers for the purpose of exercising control.
Notwithstanding the foregoing, the Partnership may invest in joint ventures or
partnerships as described above and in a corporation where real estate is the
principal asset and its acquisition can best be effected by the acquisition of
the stock of such corporation, subject to the limitations set forth below.
In an attempt to comply with the "real estate operating company" exemption
under the Plan Asset Regulations (see "INVESTMENT BY TAX-EXEMPT ENTITIES AND
ERISA CONSIDERATIONS"), the General Partners intend to invest more than 50% of
the Partnership's assets in real estate which is managed or developed and with
respect to which the Partnership will have the right to participate
substantially in the management or development activities. Specifically, the
General Partners intend to structure the management and development activities
of the Partnership such that at all times more than 50% of the Partnership's
assets are invested in multi-tenant properties with individually negotiated
leases whereby maintenance of the common areas and general maintenance
activities with respect to such properties will be the Partnership's
responsibility and not passed through to the lessees of such properties.
In addition, in an attempt to qualify for the 90% qualified income
exception to the treatment of the Partnership as a publicly traded partnership
taxable as a corporation under Section 7704 of the Code, the General Partners
intend to operate the Partnership such that at all times more than 90% of the
gross income of the Partnership will be derived from interest, real property
rents (excluding rents which are contingent on the profits of the lessees and
rents from rental of personal property) and gains from the sale of real
property. (See "FEDERAL INCOME TAX CONSEQUENCES - Publicly Traded
Partnerships.")
The Partnership will not: (i) issue any Units after the termination of the
Offering or issue Units in exchange for property; (ii) make investments in real
estate mortgages (except in connection with the sale or other disposition of a
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property); (iii) make loans to the General Partners or their Affiliates; (iv)
invest in or underwrite the securities of other issuers, including any publicly
offered or traded limited partnership interests, except for permitted temporary
investments pending utilization of Partnership funds as described below in
"CUSTODIAL AGENCY AGREEMENT," provided that following one year after the
commencement of operations of the Partnership no more than 45% of the value of
the Partnership's total assets (exclusive of Government securities and cash
items) will consist of, and no more than 45% of the Partnership's net income
after taxes (for the last four fiscal quarters combined) will be derived from,
securities other than (i) Government securities, or (ii) securities in a
corporation where real estate is the principal asset and the acquisition of such
real estate can best be effected by the acquisition of the stock of such
corporation, provided that any such corporation is either (A) a corporation
which is a majority owned subsidiary of the Partnership and which is not an
investment company, or (B) a corporation which is controlled primarily by the
Partnership, through which corporation the Partnership engages in the business
of acquisition and operation of real estate and which is not an investment
company.
CUSTODIAL AGENCY AGREEMENT
The Partnership entered into a Custodial Agency Agreement (the "Custodial
Agency Agreement") with The Bank of New York (the "Agent"), whereby all proceeds
of this Offering obtained from Limited Partners, all Partnership Properties to
be acquired by the Partnership, and the net proceeds from any sale of a
Partnership Property will be placed in the custody of the Agent, which will hold
such funds and properties as agent for the Partnership. The purpose for
entering into the Custodial Agency Agreement is to ensure that Partnership funds
and Partnership Properties are protected against fraud and theft. The Agent is
not in any way affiliated with the General Partners or their Affiliates.
The Agent will initially act as the Escrow Agent until the closing of the
Minimum Offering. Thereafter, under the terms of the Custodial Agency
Agreement, cash obtained from investors representing proceeds of this Offering
will continue to be delivered to the Agent and will be deposited into a
custodial account. Twenty percent of such Offering proceeds (representing
selling commissions, organizational and offering expenses, acquisition advisory
fees and initial working capital reserves) will immediately be redeposited into
a separate account in the name of the Partnership. The remaining 80% of such
proceeds will be invested in certificates of deposit, short-term debt
obligations and interest-bearing accounts. All interest and other income earned
on the proceeds held by the Agent in the custodial account, less the applicable
fees described below, will accrue to the benefit of the Partnership and be
deposited into the Partnership's account on a monthly basis.
When a property to be acquired by the Partnership is identified, upon
written instructions from the Partnership and receipt of an appraisal from an
independent appraiser, the Agent is authorized and directed under the Custodial
Agency Agreement to disburse funds held in the custodial account for the
acquisition of such property. The purchase price for any property shall not
exceed its appraised value. Title to properties acquired on behalf of the
Partnership or, in certain instances, title to joint venture or partnership
interests in which the Partnership may invest, will be held in the name of the
Agent, as agent for the Partnership. Title to properties may be held in any
legally recognized form, including in fee simple, undivided interest, as a co-
tenant or as a lessee. There is no requirement that any joint venture partner,
co-tenant or other co-owner of properties purchased jointly with the Partnership
also be subject to a custodial agency agreement.
All properties acquired will be managed by Wells Management Company, Inc.
or by such other management companies that may be designated by the Partnership.
All rents, revenues and other income relating to Partnership Properties shall be
payable to the Partnership, and the Partnership will be responsible for paying
all operating expenses, maintenance, repairs, taxes, insurance and liabilities
relating to such properties and for making distributions of Net Cash From
Operations, if any.
When the Partnership decides to sell any of its properties, upon written
instruction from the Partnership and the receipt of an appraisal from an
independent appraiser evidencing that the sales price of the property to be sold
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is not less than 90% of the appraised value of such property, the Agent will be
authorized to execute such real estate transfer documents as may be necessary to
effect any such sale of a Partnership property. After the closing, the
Partnership's allocable share of Sale Proceeds shall be paid to the Agent and
deposited into the custodial account. All such Sale Proceeds will be disbursed
to the Limited Partners and the General Partners of the Partnership directly by
the Agent upon receipt of and pursuant to a list obtained from the General
Partners setting forth the names, amounts to be disbursed and addresses of the
Limited Partners of the Partnership.
The Custodial Agency Agreement provides that the Agent shall in all
instances hold itself out as agent of the Partnership and not as principal in
all dealings with third parties. The Custodial Agency Agreement prohibits the
Agent from applying funds or properties held on behalf of the Partnership in any
manner except for the exclusive benefit of the Partnership. While the Agent
will have certain fiduciary duties to the Partnership pursuant to the Custodial
Agency Agreement, the General Partners will not be contracting away their
fiduciary duties under common law, and the existence of the Custodial Agency
Agreement between the Agent and the Partnership will not in any way reduce or
eliminate the fiduciary duties the General Partners have to the Partnership and
the Limited Partners. Under the Custodial Agency Agreement, the Partnership
agrees to indemnify and hold the agent harmless from any liabilities, losses,
claims, damages and expenses which the Agent might sustain as a result of acting
as agent for the Partnership, provided that any such liability is not the result
of gross negligence or willful misconduct by the Agent.
The Custodial Agency Agreement provides that the Agent shall be paid during
the term of the Custodial Agency Agreement an annual administrative fee equal to
five basis points ($500 per $1,000,000 held) and an automated cash management
fee of .25% per annum, each of which fees are calculated based on the market
value of assets held as agent for the Partnership.
REAL PROPERTY INVESTMENTS
As of the date of this Prospectus, the Partnership has not acquired nor
contracted to acquire any specific real properties. The General Partners are
continually evaluating various potential property investments and engaging in
discussions and negotiations with sellers, developers and potential tenants
regarding the purchase and development of properties for the Partnership and
prior programs. At such time during the negotiations for a specific property as
the General Partners believe that a reasonable probability exists that the
Partnership will acquire such property, this Prospectus will be supplemented to
disclose the negotiations and pending acquisition. Based upon the General
Partners' experience and acquisition methods, this will normally occur on the
signing of a legally binding purchase agreement for the acquisition of a
specific property, but may occur before or after such signing or upon the
satisfaction or expiration of major contingencies in any such purchase
agreement, depending on the particular circumstances surrounding each potential
investment. A supplement to this Prospectus will describe any improvements
proposed to be constructed thereon and other information considered appropriate
for an understanding of the transaction. Further data will be made available
after any pending acquisition is consummated, also by means of a supplement to
this Prospectus, if appropriate. IT SHOULD BE UNDERSTOOD THAT THE INITIAL
DISCLOSURE OF ANY PROPOSED ACQUISITION CANNOT BE RELIED UPON AS AN ASSURANCE
THAT THE PARTNERSHIP WILL ULTIMATELY CONSUMMATE SUCH PROPOSED ACQUISITION NOR
THAT THE INFORMATION PROVIDED CONCERNING THE PROPOSED ACQUISITION WILL NOT
CHANGE BETWEEN THE DATE OF SUCH SUPPLEMENT AND ACTUAL PURCHASE.
It is intended that the proceeds of this Offering will be invested in
properties in accordance with the Partnership's investment policies. In the
event that all of the Units offered hereby are sold, it is anticipated that the
Partnership will invest in four to six properties. Funds available for
investment in Partnership Properties which are not expended or committed to the
acquisition or development of specific real properties on or before the later of
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the second anniversary of the effective date of the Registration Statement or
one year after the termination of the Offering and not reserved for working
capital purposes will be returned to the Limited Partners. (See "DISTRIBUTIONS
AND ALLOCATIONS" as to when funds shall be deemed committed for this purpose.)
Adequate insurance coverage will be obtained for all properties in which
the Partnership will invest.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
As of the date of this Prospectus, the Partnership had not yet commenced
active operations. The Partnership will not commence active operations until it
has received and accepted subscriptions for a minimum of 125,000 Units
($1,250,000).
Following achievement of such funding level, subscription proceeds may be
released to the Partnership from escrow and applied to the payment or
reimbursement of selling commissions and other Organization and Offering
Expenses, leaving estimated net proceeds available for investment and operations
of approximately $1,062,500. (See "ESTIMATED USE OF PROCEEDS.") Thereafter,
the Partnership will experience a relative increase in liquidity as additional
subscriptions for Units are received, and a relative decrease in liquidity as
net Offering proceeds are expended in connection with the acquisition,
development and operation of Partnership Properties.
As of the initial date of this Prospectus, the Partnership has not entered
into any arrangements creating a reasonable probability that any specific
property will be acquired by the Partnership. The number of Partnership
Properties to be acquired by the Partnership will depend upon the number of
Units sold and the resulting amount of the net proceeds available for investment
in properties available to the Partnership. (See "RISK FACTORS.")
The General Partners are not aware of any material trends or uncertainties,
favorable or unfavorable, other than national economic conditions affecting real
estate generally, which may be reasonably anticipated to have a material impact
on either capital resources or the revenues or income to be derived from the
operation of Partnership Properties.
Until required for the acquisition, development or operation of properties,
net Offering proceeds will be kept in short-term, liquid investments. Because
the Partnership will purchase properties on an all cash basis and the vast
majority of leases for the properties acquired by the Partnership will provide
for tenant reimbursement of operating expenses, it is not anticipated that a
permanent reserve for maintenance and repairs of Partnership properties will be
established. However, to the extent that the Partnership has insufficient funds
for such purposes, the General Partners will advance to the Partnership an
aggregate amount of up to 1% of Gross Offering Proceeds for maintenance and
repairs of Partnership Properties. The General Partners also may, but are not
required to, establish reserves from Gross Offering Proceeds, out of Cash Flow
generated by operating properties or out of Nonliquidating Net Sale Proceeds.
INVESTMENT BY TAX-EXEMPT ENTITIES AND
ERISA CONSIDERATIONS
While the General Partners have attempted to structure the Partnership in
such a manner that it will be an attractive investment vehicle for Qualified
Plans, IRAs and other tax-exempt entities, in considering an investment in the
Partnership of a portion of the assets of a Retirement Plan, the plan's
fiduciary should consider all applicable provisions of the Code and ERISA. In
this regard, IRAs which are not sponsored or endorsed by an employer or by an
employee organization and Keogh Plans under which only partners or a sole
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proprietor are participants generally are not subject to the provisions of
ERISA; however, fiduciaries of such accounts should review carefully the
exceptions set forth below. In general, Qualified Plan fiduciaries should
consider: (i) whether the investment is in accordance with the documents and
instruments governing such Qualified Plan; (ii) whether the investment satisfies
the prudence and diversification requirements of Sections 404(a)(1)(B) and
404(a)(1)(C) of ERISA; (iii) whether the investment will result in UBTI to the
Qualified Plan (or to an investing IRA, Keogh Plan or other tax-exempt entity)
(see "FEDERAL INCOME TAX CONSEQUENCES - INVESTMENT BY QUALIFIED PLANS AND OTHER
TAX-EXEMPT ENTITIES"); (iv) whether there is sufficient liquidity for the
Qualified Plan after taking this investment into account; (v) the need to value
the assets of the Qualified Plan annually; and (vi) whether the investment would
constitute or give rise to a prohibited transaction under either Section 406 of
ERISA or Section 4975 of the Code.
ERISA also requires generally that the assets of employee benefit plans be
held in trust and that the trustee, or a duly authorized investment manager
(within the meaning of Section 3(38) of ERISA), have exclusive authority and
discretion to manage and control the assets of the plan. Persons who are
fiduciaries of employee benefit plans subject to ERISA have certain duties
imposed on them by ERISA and, as noted above, certain transactions between an
employee benefit plan and the parties in interest with respect to such plan
(including fiduciaries) are prohibited. Similar prohibitions apply to Retirement
Plans under the Code, and IRAs and Keogh Plans covering only self-employed
individuals which are not subject to ERISA are, nevertheless, subject to the
prohibited transaction rules under the Code. For purposes of both ERISA and the
Code, any person who exercises any authority or control with respect to the
management or disposition of the assets of a Retirement Plan is considered to be
a fiduciary of such Retirement Plan (subject to certain exceptions not here
relevant).
Potential investors who intend to purchase Units in their IRAs and any
trustee of an IRA or other fiduciary of a Retirement Plan considering an
investment in Units should take into consideration the limited liquidity of an
investment in the Units as it relates to applicable minimum distribution
requirements under the Code for the IRA or other Retirement Plan. If the Units
are still held in the IRA or Retirement Plan and the Partnership Properties have
not yet been sold at such time as mandatory distributions are required to
commence to the IRA beneficiary or Qualified Plan participant, applicable
provisions of the Code and Regulations will likely require that a distribution
in kind of the Units be made to the IRA beneficiary or Qualified Plan
participant. Any such distribution in kind of Units must be included in the
taxable income of the IRA beneficiary or Qualified Plan participant for the year
in which the Units are received at the then current fair market value of the
Units without any corresponding cash distributions with which to pay the income
tax liability arising out of any such distribution. (See "RISK FACTORS.")
PLAN ASSETS - GENERALLY
ERISA provides a comprehensive statutory scheme regarding the investment in
and management of a plan's assets. While the General Partners have used their
best efforts to structure the Partnership so that the assets of the Partnership
will not be deemed to be assets of the Retirement Plans investing as Limited
Partners ("Plan Assets"), in the event that the assets of the Partnership were
deemed to be Plan Assets, the General Partners would be considered to be plan
fiduciaries under ERISA (and the Code), and certain contemplated transactions
between the Partnership and the General Partners may be deemed to be "prohibited
transactions." Additionally, if the assets of the Partnership are deemed to be
Plan Assets, the standards of prudence and other provisions of Title I of ERISA
applicable to investments by Retirement Plans would extend (as to all plan
fiduciaries) to the General Partners with respect to investments made by the
Partnership.
PLAN ASSETS - CURRENT LAW
The definition of Plan Assets was addressed initially by the Department of
Labor in 1975 by the adoption of Interpretive Bulletin 75-2, which provided that
the assets of a corporation or partnership in which an employee benefit plan
invested would not generally be treated as assets of such plan. The Department
stated that:
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Generally, investment by a plan in securities (within the meaning of
section 3(20) of the Employee Retirement Income Security Act of 1974) of a
corporation or partnership will not, solely by reason of such investment,
be considered to be an investment in the underlying assets of such
corporation or partnership so as to make such assets of the entity "plan
assets" and thereby make a subsequent transaction between the party in
interest and the corporation or partnership a prohibited transaction under
Section 406 of the Act.
On November 13, 1986, the Department of Labor issued final regulations (the
"Plan Asset Regulations") relating to the definition of Plan Assets, which
became effective generally for the characterization of assets in investments
made after March 13, 1987. The Plan Asset Regulations adopt the general
statement regarding Plan Assets set forth in Interpretive Bulletin 75-2;
however, the Plan Asset Regulations further provide that assets of investment
entities in which Retirement Plans make equity investments will be treated as
assets of such plans unless such investments are in publicly offered securities,
are in securities offered by an investment company registered under the
Investment Company Act of 1940, or come within one of the specific exemptions
set forth below. As the Partnership is not a registered investment company, the
exemptions contained in the Plan Asset Regulations which may apply to the
Partnership include: (i) investments in "publicly offered securities" (generally
interests which are freely transferable, widely-held and registered with the
Securities and Exchange Commission); (ii) investments in interests in "real
estate operating companies;" and (iii) investments in which equity participation
by "benefit plan investors" is not significant. The Plan Asset Regulations
provide that equity participation in an entity would be "significant" if at any
time 25% or more of the value of any class of equity interest is held by benefit
plan investors. The term "benefit plan investors" is broadly defined to include
any employee pension or welfare benefit plan, whether or not subject to ERISA,
any plan described in Section 4975(e)(1) of the Code and any entity whose
underlying assets include Plan Assets by reason of plan investment in the
entity. The General Partners do not anticipate that the Partnership will qualify
for the exemption described in (iii) above.
EXEMPTIONS UNDER PLAN ASSET REGULATIONS
As noted above, if a Retirement Plan acquires "publicly offered
securities," the assets of the issuer of the securities are not deemed to be
Plan Assets. Under the Plan Asset Regulations, the definition of publicly
offered securities requires that such securities must be "widely-held," "freely
transferable" and must satisfy certain registration requirements under federal
securities laws. Although the Partnership should satisfy the registration
requirements under this definition, the determinations of whether a security is
"widely-held" and "freely transferable" are inherently factual matters. The
Plan Asset Regulations provide that a class of securities will be "widely-held"
if it is held by 100 or more persons. Accordingly, to preserve the ability of
the Partnership to qualify for this exemption, the General Partners may suspend
the offering of Units to Retirement Plans, if upon the closing of the Minimum
Offering less than 100 persons have acquired each class of Units and, in such
case, would continue the offering to Retirement Plans only after at least 100
persons have acquired each class of Units.
With respect to the "freely transferable" requirement, the Plan Asset
Regulations provide several examples of restrictions on transferability with
respect to offerings in which the minimum investment is $10,000 or less which,
absent unusual circumstances, will not, either alone or in any combination,
cause the rights of ownership to be considered not "freely transferable." The
allowed restrictions are based upon restrictions commonly found in public real
estate limited partnerships which are imposed to comply with state and federal
law, to assure continued eligibility for favorable tax treatment and to avoid
certain practical administrative problems. The Partnership Agreement is
intended to satisfy the freely transferable requirement with respect to the
Units. It should be noted in this regard, however, that because certain adverse
tax consequences can result if the Partnership were to be characterized as a
"publicly traded partnership" under Section 7704 of the Code (see "FEDERAL
INCOME TAX CONSEQUENCES - Publicly Traded Partnerships"), certain additional
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restrictions on the transferability of Units have been incorporated into the
Partnership Agreement which are intended to prevent such reclassification of the
Partnership as a publicly traded partnership (the "Section 7704 Restrictions").
In this regard, the Plan Asset Regulations provide specifically that any
"restriction on, or prohibition against, any transfer or assignment which would
either result in a termination or reclassification of the entity for federal or
state tax purposes" will ordinarily not alone or in combination with other
restrictions affect a finding that securities are "freely transferable." The
Plan Asset Regulations were promulgated prior to the enactment of Section 7704
of the Code, however, and accordingly, the incorporation of the Section 7704
Restrictions into the Partnership Agreement may have the effect of making the
"publicly offered securities" exemption unavailable to the Partnership.
On the other hand, if the Department of Labor interprets the Section 7704
Restrictions in the Partnership Agreement consistently with the specific
exemption language in the Plan Asset Regulations set forth above, the
Partnership should qualify for the publicly offered securities exemption
contained in the Plan Asset Regulations. However, because of the factual nature
of the determination and lack of guidance as to the meaning of the term "freely
transferable," particularly in light of the Section 7704 Restrictions, there can
be no assurance that the Partnership will, in fact, qualify for this exemption.
Even if the Partnership were not to qualify for the "publicly offered
securities" exemption, the Plan Asset Regulations also provide an exemption from
the Plan Assets definition with respect to securities issued by a "real
estate operating company." An entity is a real estate operating company if,
during the relevant valuation periods defined in the Plan Asset Regulations, at
least 50% of its assets (other than short-term investments pending long-term
commitment or distribution to investors) valued at cost, are invested in real
estate which is managed or developed and with respect to which the Partnership
has the right to participate substantially in the management or development
activities. The Partnership intends to devote more than 50% of its assets to
management and development of real estate; however, an example contained in the
Plan Asset Regulations indicates that, although some management and development
activities may be performed by independent contractors rather than by the entity
itself, if over one-half of the entity's properties are acquired subject to
long-term leases under which substantially all management and maintenance
activities with respect to the properties are the responsibility of the lessees
thereof, then the entity is not eligible for the real estate operating company
exemption.
In an attempt to comply with the real estate operating company exemption
under the Plan Asset Regulations, the General Partners intend to structure the
management and development activities of the Partnership such that at all times
more than 50% of the Partnership's assets are invested in multi-tenant
properties with individually negotiated leases whereby maintenance of the common
areas and general maintenance activities with respect to such properties will be
the Partnership's responsibility and not passed through to the lessees of such
properties. (See "INVESTMENT OBJECTIVES AND CRITERIA.") Due to the uncertainty
of the application of the standards set forth in the examples in the Plan Asset
Regulations, however, there can be no assurance as to the Partnership's ability
to qualify for the real estate operating company exemption.
PLAN ASSET CONSEQUENCES - PROHIBITED TRANSACTION EXCISE TAX
If the Partnership were deemed to hold Plan Assets, additional issues
relating to the "Plan Assets" and "prohibited transaction" concepts of ERISA and
the Code arise by virtue of the General Partners' ownership of interests in the
Partnership and the possible relationship between the General Partners or the
Partnership and any Retirement Plan which may purchase Units. Section 406 of
ERISA and Section 4975 of the Code prohibit Retirement Plans from engaging in
certain transactions with specified parties involving Plan Assets. These
parties are referred to as "parties in interest," as defined in Section 3(14) of
ERISA, and as "disqualified persons," as defined in Section 4975(e)(2) of the
Code. These definitions include "persons providing services to the plan" and
certain of their affiliates. Thus, if the General Partners' interest in the
Partnership were deemed to exceed certain threshold levels set forth in the Code
and ERISA, the Partnership, itself, could be deemed to be a disqualified person
and an investment in Units could be a prohibited transaction; however, the
General Partners do not believe such thresholds have been exceeded with respect
to their interest in the Partnership or that the Partnership should otherwise be
deemed to be a party in interest or a disqualified person. Further, any
transaction between the Partnership and a party in interest or disqualified
person with respect to an investing Retirement Plan could be a prohibited
transaction if the Partnership were deemed to hold Plan Assets.
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In addition, if the Partnership is deemed to hold Plan Assets, each General
Partner could be characterized as a "fiduciary" with respect to such assets, and
would thus be a "party in interest" under ERISA and a "disqualified person"
under the Code with respect to investing Retirement Plans. If such relationship
were to exist, various transactions between the General Partners or their
Affiliates and the Partnership could constitute prohibited transactions because
a fiduciary may not deal with Plan Assets in its own interest or represent a
person whose interests are adverse to those of the plan in a transaction
involving Plan Assets. In addition, it could be argued that, because the
General Partners share in certain Partnership distributions and tax allocations
in a manner disproportionate to their Capital Contributions to the Partnership,
the General Partners are being compensated directly out of Plan Assets rather
than the Partnership assets in exchange for the provision of services, i.e.,
establishment of the Partnership and making it available as an investment to
Retirement Plans. If this were the case, absent a specific exemption applicable
to the transaction, a prohibited transaction could be deemed to have occurred
between investing Retirement Plans and the General Partners.
If it is determined by the Department of Labor or the IRS that a prohibited
transaction has occurred, the General Partners and any party in interest that
has engaged in any such prohibited transaction would be required to eliminate
the prohibited transaction by reversing the transaction and make good to the
Retirement Plan any loss resulting from the prohibited transaction. In
addition, each party in interest would be liable to pay an excise tax equal to
5% of the amount involved in the transaction for each year in which the
transaction remains uncorrected. Moreover, if the fiduciary or party in
interest does not correct the transaction within a specified period, the party
in interest could also be liable for an additional excise tax in an amount equal
to 100% of the amount involved. Plan fiduciaries who make the decision to
invest in Units could, under certain circumstances, be liable as co-fiduciaries
for actions taken by the Partnership or the General Partners.
Special rules apply to an investing IRA. If the Partnership were deemed to
be a party in interest or disqualified person, as described above, the tax-
exempt status of the IRA could be lost by reason of such investment because a
transaction between the Partnership and the account would be deemed under
Section 4975 of the Code to constitute a prohibited transaction.
It should be noted that even if the assets of the Partnership are deemed,
as the General Partners anticipate, not to be Plan Assets under the Plan Asset
Regulations, Interpretive Bulletin 75-2 indicates that in certain circumstances
an investment in the Partnership by a Retirement Plan may still be a prohibited
transaction. For example, if a Retirement Plan may, by reason of its
investment, compel the Partnership to invest in a property or engage in
transactions which such Retirement Plan could not enter into directly under the
prohibited transaction rules, then the provisions of Interpretive Bulletin 75-2
and the Plan Asset Regulations would not preclude recharacterization of such
investment as a prohibited transaction. The General Partners have represented
in this regard that no such arrangements will be entered into with investing
Retirement Plans, and therefore it is unlikely that these provisions of
Interpretive Bulletin 75-2 would be invoked by the Department of Labor.
ANNUAL VALUATION
Fiduciaries of Retirement Plans are required to determine annually the fair
market value of the assets of such Retirement Plans, typically, as of the close
of a plan's fiscal year. To enable the fiduciaries of Retirement Plans subject
to the annual reporting requirements of ERISA to prepare reports relating to an
investment in the Partnership, Limited Partners will be furnished with an annual
statement of estimated Unit value. This annual statement will report the
estimated value of each Unit based upon the estimated amount a Unit holder would
receive if all Partnership assets were sold as of the close of the Partnership's
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fiscal year for their estimated values and if such proceeds (without reduction
for selling expenses), together with the other funds of the Partnership, were
distributed in liquidation of the Partnership. Such estimated values will be
based upon annual appraisals of Partnership Properties performed by the General
Partners, and no independent appraisals will be obtained. However, the General
Partners are required to obtain the opinion of an independent third party
stating that their estimates of value are reasonable and were prepared in
accordance with appropriate methods for valuing real estate. For the first
three full fiscal years following the termination of the Offering, the value of
a Unit will be deemed to be $10.00, and no valuations will be performed. The
estimated value per Unit will be reported to Limited Partners in the
Partnership's next annual or quarterly report on Form 10-K or 10-Q sent to the
Limited Partners for the period immediately following completion of the
valuation process. There can be no assurance that: (i) the estimated value per
Unit will actually be realized by the Partnership or by the Limited Partners
upon liquidation (in part because estimates do not necessarily indicate the
price at which properties could be sold and because no attempt will be made to
estimate the expenses of selling any property); or (ii) Limited Partners could
realize estimated net asset value if they were to attempt to sell their Units,
because no public market may exist for such Units.
FEDERAL INCOME TAX CONSEQUENCES
The following discussion is intended to summarize all of the federal income
tax considerations material to an investment in the Partnership. This summary
is based upon the Code, Treasury Regulations (including Temporary and Proposed
Regulations) promulgated thereunder ("Regulations"), current positions of the
Internal Revenue Service (the "IRS") contained in revenue rulings and revenue
procedures, other current administrative positions of the IRS and existing
judicial decisions in effect as of the date of this Prospectus. Investors
should note that it is not feasible to comment on all aspects of federal, state
and local tax laws that may affect each Limited Partner in the Partnership. The
federal income tax considerations discussed below are necessarily general in
nature, and their application may vary depending upon a Limited Partner's
particular circumstances. No representations are made as to state and local tax
consequences. Further, the Partnership does not intend to request a ruling from
the IRS with respect to any of the federal income tax matters discussed below,
and on certain matters no ruling could be obtained even if requested.
Investors should also note that a great deal of uncertainty exists with
respect to certain recently enacted and amended provisions of the Code. There
can be no assurance that the present federal income tax laws applicable to
Limited Partners and the operation of the Partnership will not be further
changed prospectively or retroactively by additional legislation, by new
Regulations, by judicial decisions or by administrative interpretations, any of
which could adversely affect a Limited Partner, nor is there any assurance that
there will not be a difference of opinion as to the interpretation or
application of current federal income tax laws as discussed herein.
FOR THE FOREGOING REASONS, EACH PROSPECTIVE INVESTOR IS URGED TO CONSULT
WITH HIS OWN TAX ADVISOR WITH RESPECT TO THE FEDERAL, STATE AND LOCAL INCOME TAX
CONSEQUENCES ARISING FROM THE PURCHASE OF UNITS. NOTHING IN THIS PROSPECTUS (OR
ANY PRIOR OR SUBSEQUENT COMMUNICATION FROM THE GENERAL PARTNERS, THEIR
AFFILIATES, EMPLOYEES OR ANY PROFESSIONAL ASSOCIATED WITH THIS OFFERING) IS OR
SHOULD BE CONSTRUED AS LEGAL OR TAX ADVICE TO A POTENTIAL INVESTOR IN THE
PARTNERSHIP. INVESTORS SHOULD BE AWARE THAT THE IRS MAY NOT AGREE WITH ALL TAX
POSITIONS TAKEN BY THE PARTNERSHIP AND THAT LEGISLATIVE, ADMINISTRATIVE OR
JUDICIAL DECISIONS MAY REDUCE OR ELIMINATE ANTICIPATED TAX BENEFITS OF AN
INVESTMENT IN THE PARTNERSHIP.
IT IS NOT ANTICIPATED THAT LIMITED PARTNERS HOLDING CLASS A STATUS UNITS
WILL RECEIVE ANY TAX BENEFITS WHATSOEVER. THEREFORE, ANY DISCUSSION HEREIN OF
THE AVAILABILITY AND EXTENT OF INCOME TAX BENEFITS TO LIMITED PARTNERS WILL
APPLY PRINCIPALLY TO LIMITED PARTNERS HOLDING CLASS B STATUS UNITS.
PROSPECTIVE INVESTORS WHO ARE FIDUCIARIES OF RETIREMENT PLANS SHOULD
CAREFULLY READ "INVESTMENT BY TAX-EXEMPT ENTITIES AND ERISA CONSIDERATIONS" AND
"INVESTMENT BY QUALIFIED PLANS AND OTHER TAX-EXEMPT ENTITIES" IN THIS SECTION.
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The discussion below is directed primarily to individual taxpayers who are
citizens of the United States. Accordingly, persons who are trusts, corporate
investors in general, corporate investors that are subject to specialized rules
(such as Subchapter S corporations) and any potential investor who is not a
United States citizen are cautioned to consult their own personal tax advisors
before investing in the Partnership.
TAX OPINION
The Partnership retained Holland & Knight ("Counsel") to render an opinion
concerning the material federal income tax issues relating to an investment in
the Partnership (the "Tax Opinion"). Potential investors should be aware that
the opinions of Counsel in the Tax Opinion are based upon the accuracy of the
facts described in this Prospectus and facts represented to Counsel by the
General Partners, and assume that the Partnership will be operated strictly in
accordance with the Partnership Agreement. The accuracy of such facts and
representations is absolutely critical to the accuracy of the Tax Opinion, and
any alteration of the facts may adversely affect the opinions rendered.
Furthermore, the opinions of Counsel in the Tax Opinion are based upon existing
law, applicable Regulations and current published administrative positions of
the IRS contained in revenue rulings, revenue procedures and judicial decisions,
all of which are subject to change either prospectively or retroactively.
Changes in the Code and the Regulations subsequent to the date of the Tax
Opinion are not addressed therein, and any such changes could have a material
adverse effect upon the tax treatment of an investment in the Partnership.
In reliance on certain representations and assumptions described herein and
in the Tax Opinion, and subject to the qualifications set forth herein and in
the Tax Opinion, Counsel in the Tax Opinion concludes that, in the aggregate,
substantially more than half of the material federal income tax benefits, in
terms of their financial impact on a typical investor, will more likely than not
be realized by an investor in the Partnership, and that the following material
tax issues are more likely than not to have a favorable outcome on the merits
for federal income tax purposes if challenged by the IRS, litigated and
judicially decided:
(1) The Partnership will be classified as a partnership for federal income
tax purposes and not as an association taxable as a corporation;
(2) The Partnership will not be classified as a "publicly traded
partnership" under Section 7704 of the Code since the Partnership Agreement
limits transfers of Units, except for transfers of Units which satisfy
applicable safe harbors from "publicly traded partnership" status adopted by the
IRS;
(3) A Limited Partner's interest in the Partnership will be treated as a
passive activity;
(4) Partnership items of income, gain, loss, deduction and credit will be
allocated among the General Partners and the Limited Partners substantially in
accordance with the allocation provisions of the Partnership Agreement;
(5) The Partnership will be treated for income tax purposes as the owner of
Partnership Properties, title to which is held in the name of the Agent under
the terms of the Custodial Agency Agreement;
(6) The activities contemplated by the Partnership will be considered
activities entered into for profit by the Partnership; and
(7) The Partnership is not currently required to register as a tax shelter
with the IRS under Section 6111 of the Code prior to the offer and sale of the
Units based upon the General Partners' representation that the "tax shelter
ratio" (which is generally determined by dividing an investor's share of
aggregate deductions from the investment, determined without regard to income,
by the amount of the investor's capital contributions) with respect to an
investment in the Partnership will not exceed 2 to 1 for any investor as of the
close of any year in the Partnership's first five calendar years.
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Investors should note that any statement that it is "more likely than not"
that a tax position would be sustained means that in Counsel's judgment at least
a 51% chance of prevailing exists if the IRS were to challenge the allowability
of such tax position and such challenge were to be litigated and judicially
decided.
It should be further noted that Counsel in the Tax Opinion is unable to
form opinions as to the probable outcome of certain material tax aspects of the
transactions described in this Prospectus if challenged by the IRS, litigated
and judicially decided, including (i) the deductibility of and timing of
deductions for certain payments made by the Partnership, including but not
limited to fees paid to the General Partners and their Affiliates, (ii) the
issue of whether the Partnership will be considered to hold any or all of its
properties primarily for sale to customers in the ordinary course of business,
and (iii) whether the Partnership will be classified as a "tax shelter" under
Section 6662(d) of the Code for purposes of determining certain potential
exemptions from the applicability of the accuracy-related penalty provisions.
(See "RISK FACTORS.")
In addition, potential investors should note that the IRS may also attempt
to disallow or limit some of the tax benefits derived from an investment in the
Partnership by applying certain provisions of the Code at the individual or
partner level rather than at the partnership level. In this connection, Counsel
in the Tax Opinion gives no opinion or conclusion as to the tax consequences to
Limited Partners with regard to any material tax issue which impacts at the
individual or partner level and is dependent upon an individual Limited
Partner's tax circumstances, including but not limited to, issues relating to
the alternative minimum tax, investment interest limitations or the application
of Section 183 of the Code at the partner level. Accordingly, potential
investors are urged to consult with and rely upon their own tax advisors with
respect to all tax issues which impact at the partner or individual level.
As of the date of the Tax Opinion, no properties have been acquired by the
Partnership, nor has the Partnership entered into any contracts to acquire any
properties. Therefore, it is impossible at this time for Counsel to opine on
the application of the federal income tax law to the specific facts which will
exist when properties are acquired by the Partnership.
Neither the Tax Opinion nor this description of the tax consequences of an
investment in the Partnership is a guarantee of the tax results of an investment
in the Partnership, nor does either have any binding effect or official status
of any kind. No assurance can be given that the conclusions reached in the Tax
Opinion would be sustained by a court if such were contested by the IRS. The
Tax Opinion should not be viewed as a guarantee that the income tax effects
described in this Prospectus will be achieved or that a court would hold that
there is "substantial authority" for the positions taken by the Partnership with
respect to any income tax issues.
PARTNERSHIP STATUS GENERALLY
The ability to obtain the income tax attributes anticipated from an
investment in Units of the Partnership depends upon the classification of the
Partnership as a partnership for federal income tax purposes and not as an
association taxable as a corporation. The General Partners do not intend to
request a ruling from the IRS as to the classification of the Partnership as a
partnership for income tax purposes.
The current Regulations provide that an organization that qualifies as a
limited partnership under state law such as the Partnership will be classified
as a partnership unless it has more corporate characteristics than noncorporate
characteristics. For this purpose, four major corporate characteristics are
identified in applicable Regulations. Of these major corporate characteristics,
the Partnership will have the corporate characteristic of centralized
management; however, it should not be deemed to have the corporate
characteristics of: (i) continuity of life (because the retirement, withdrawal
or removal of both General Partners or the last remaining General Partner will
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cause a dissolution of the Partnership unless a majority in interest of the
Limited Partners elect to continue the business of the Partnership); (ii)
limited liability (because the General Partners have "substantial assets" in
addition to their interests in the Partnership and will be exposed to general
liability to creditors of the Partnership); and (iii) free transferability of
interests (because the Partnership Agreement contains substantial restrictions
on the transferability of the Units, which are intended to avoid termination or
reclassification of the Partnership, to effect compliance with federal and state
securities laws and to facilitate administration of Partnership affairs).
Based upon the current Regulations, IRS rulings and judicial decisions
under Section 7701(a) of the Code, all of which are subject to change, and based
upon certain representations of the General Partners and other assumptions,
Counsel in the Tax Opinion has concluded that the Partnership will more likely
than not be treated as a partnership for federal income tax purposes and not as
an association taxable as a corporation, if such issue were challenged by the
IRS, litigated and judicially decided. In rendering such opinion, Counsel has
also relied upon the fact that the Partnership is duly organized as a limited
partnership under the laws of the State of Georgia and upon the representation
by the General Partners that the Partnership will be organized and operated
strictly in accordance with the provisions of the Partnership Agreement.
It should be noted in this regard that the IRS has issued proposed
regulations regarding entity classification which would supersede the current
Regulations regarding partnership tax status upon which the Tax Opinion is
based. The proposed regulations define a "partnership" to include any business
entity that has at least two members and that is not required to be classified
as a corporation. In effect, the proposed regulations permit an "eligible
entity" to elect its status for federal income tax purposes. Under the
proposal, the Partnership would be an "eligible entity," provided that the
Partnership were not deemed to be taxable as a corporation pursuant to the
application of the publicly traded partnership rules discussed below.
Accordingly, if the proposed regulations regarding entity classification were to
be adopted substantially in the form issued, the Partnership should be eligible
to elect partnership status for federal income tax purposes. Further, under
proposed transition rules, even if the Partnership were deemed not to be an
"eligible entity" under any final version of such regulations, the IRS would not
challenge the tax status of an existing entity, such as the Partnership, so long
as such entity had a reasonable basis for its classification and had not
received notice that its classification was under examination by the IRS.
In the event that the Partnership, for any reason, were to be treated for
federal income tax purposes as an association taxable as a corporation, the
Partners of the Partnership would be treated as stockholders with the following
results, among others: (i) the Partnership would become a taxable entity subject
to the federal income tax imposed on corporations; (ii) items of income, gain,
loss, deduction and credit would be accounted for by the Partnership on its
federal income tax return and would not flow through to the Partners; and (iii)
distributions of cash would generally be treated as dividends taxable to the
Partners at ordinary income rates, to the extent of current or accumulated
earnings and profits, and would not be deductible by the Partnership in
computing its income tax.
The remaining summary of federal income tax consequences in this Section
assumes that the Partnership will be classified as a partnership for federal
income tax purposes.
PUBLICLY TRADED PARTNERSHIPS
Classification of the Partnership as a "publicly traded partnership" could
result in (a) the Partnership being taxable as a corporation (see "Partnership
Status Generally" above), and (b) the treatment of net income of the Partnership
as portfolio income rather than passive income (see "Passive Loss Limitations"
below).
A publicly traded partnership is generally defined under Section 7704 of
the Code as any partnership whose interests are traded on an established
securities market or are readily tradeable on a secondary market or the
substantial equivalent thereof. In this regard, in June 1988, the IRS issued
Notice 88-75 to provide certain interim safe harbor exclusions from
classification as a publicly traded partnership prior to the issuance of
Regulations giving final guidance on such classification. On November 29, 1995,
the IRS issued final Regulations (the "Section 7704 Regulations") which are
effective for taxable years of a partnership beginning after 1995.
The Section 7704 Regulations contain definitions of what constitutes an
established securities market and a secondary market or the substantial
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equivalent thereof and what transfers may be disregarded in determining whether
such definitions are satisfied with respect to the activities of a partnership.
The Section 7704 Regulations further provide certain safe harbors (the
"secondary market safe harbors") which, after taking into consideration all
transfers other than those deemed disregarded, may be satisfied in order to
avoid classification of such transfers as being made on a secondary market or
the substantial equivalent thereof. One of the secondary market safe harbors
provides that interests in a partnership will not be considered tradeable on a
secondary market or the substantial equivalent thereof if the sum of the
partnership interests transferred during any taxable year, other than certain
disregarded transfers, does not exceed 2% of the total interest in the
partnership's capital or profits. Disregarded transfers include, among other
things, transfers by gift, transfers at death, transfers between family members,
distributions from a qualified retirement plan and block transfers, which are
defined as transfers by a partner during any 30 calendar day period of
partnership units representing more than 2% of the total interest in
a partnership's capital or profits. Another safe harbor from the definition of
a publicly traded partnership dealing with redemption and repurchase agreements
is also provided in the Section 7704 Regulations. Unlike Notice 88-75, however,
the Section 7704 Regulations provide that the failure to satisfy a safe harbor
provision under the Regulations will not cause a partnership to be treated as a
publicly traded partnership if, after taking into account all facts and
circumstances, partners are not readily able to buy, sell or exchange their
partnership interests in a manner that is comparable, economically, to trading
on an established securities market.
The General Partners do not believe that Units in the Partnership are
traded on an established securities market or a secondary market or a
substantial equivalent thereof as defined in the Section 7704 Regulations. The
General Partners have further represented that they do not intend to cause the
Units to be traded on an established securities market or a secondary market in
the future. Further, the Partnership Agreement limits Unit transfers of all
types to transfers of Units which satisfy an applicable safe harbor contained in
the Section 7704 Regulations (or any other applicable safe harbor from "publicly
traded partnership" status which may be adopted by the IRS). The General
Partners have represented that the Partnership will be operated strictly in
accordance with the Partnership Agreement and that they will void any transfers
or assignments of Units if they believe that such transfers or assignments will
cause the Partnership to be treated as a publicly traded partnership under the
Section 7704 Regulations or any Regulations adopted by the IRS in the future.
Based upon representations of the General Partners, and assuming the
Partnership will be operated strictly in accordance with the terms of the
Partnership Agreement, Counsel in the Tax Opinion has concluded that it is more
likely than not the Partnership will not be classified as a publicly traded
partnership under Section 7704 of the Code, if such issue were challenged by the
IRS, litigated and judicially decided. However, due to the complex nature of
the safe harbor provisions contained in the Section 7704 Regulations with
respect to such provisions and because any determination in this regard will
necessarily be based upon future facts not yet in existence at this time, no
assurance can be given that the IRS will not challenge this conclusion or that
the Partnership will not, at some time in the future, be deemed to be a publicly
traded partnership.
Even if the Partnership were deemed to be a publicly traded partnership,
Section 7704(c) of the Code provides an exception to taxation of an entity as a
corporation if 90% or more of the gross income of such entity for each taxable
year consists of "qualifying income." Qualifying income includes interest, real
property rents and gain from the sale or other disposition of real property.
According to the legislative history of Section 7704, qualifying income does not
include real property rents which are contingent on the profits of the lessees
or income from the rental or lease of personal property. The General Partners
intend to operate the Partnership in such a manner as to qualify for the 90%
qualifying income exception. (See "INVESTMENT OBJECTIVES AND CRITERIA.")
Investors should note, however, that even if the Partnership satisfies the
qualifying income exception, being deemed to be a publicly traded partnership
would result in certain other material adverse tax consequences to Limited
Partners, including the treatment of net income of the Partnership as portfolio
income rather than passive income. (See "Passive Loss Limitations" below.)
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GENERAL PRINCIPLES OF PARTNERSHIP TAXATION
Under the Code, no federal income tax is paid by a partnership.
Accordingly, if as anticipated the Partnership is treated as a partnership for
federal income tax purposes, the Partnership will not be treated as a separate
taxable entity subject to federal income tax, but instead each Partner will be
required to report on his federal income tax return for each year his
distributive share of the Partnership's items of income, gain, loss, deduction
or credit for that year, without regard to whether any actual cash distributions
have been made to him. Investors should note that a Partner's share of the
taxable income of the Partnership, and a Partner's income tax liability
resulting therefrom, may exceed a Partner's cash distributions from the
Partnership.
The Partnership will furnish to each Partner and any assignee of Units on
an annual basis the information necessary for preparation of his federal income
tax return. Investors should note that information returns filed by the
Partnership will be subject to audit by the IRS and that the Commissioner of the
IRS has announced that the IRS will devote greater attention to the proper
application of the tax laws to partnerships. (See "Audits" below.)
ANTI-ABUSE RULES
As noted under "General Principles of Partnership Taxation" above,
partnerships as such are not liable for income taxes imposed by the Code. In
December 1994, however, the IRS adopted final Regulations setting forth "anti-
abuse" rules under the Code provisions applicable to partnerships, which rules
authorize the Commissioner of Internal Revenue to recast transactions involving
the use of partnerships either to reflect the underlying economic arrangement or
to prevent the use of a partnership to circumvent the intended purpose of any
provision of the Code. These rules generally apply to all transactions relating
to a partnership occurring on or after May 12, 1994, and thus would be
applicable to the Partnership's activities. If any of the transactions entered
into by the Partnership were to be recharacterized under these rules, or the
Partnership, itself, were to be recast as a taxable entity under these rules,
material adverse tax consequences to all of the Partners would occur as
otherwise described herein. In this regard, the General Partners are not aware
of any fact or circumstance which could cause the IRS to exercise its authority
under these rules to recast any of the transactions to be entered into by the
Partnership or to restructure the Partnership itself.
BASIS LIMITATIONS
A Limited Partner may not deduct his share of Partnership losses and
deductions in excess of the adjusted basis of his Partnership interest
determined as of the end of the taxable year. Losses which exceed a Limited
Partner's basis will not be allowed but may be carried over indefinitely and
claimed as a deduction in a subsequent year to the extent that such Limited
Partner's adjusted basis in his Units has increased above zero. A Limited
Partner's adjusted basis in his Units will include his cash investment in the
Partnership along with his pro rata share of any Partnership liabilities as to
which no Partner is personally liable. A Limited Partner's basis in his Units
will be increased by his distributive share of the Partnership's taxable income
and decreased (but not below zero) by his distributive share of the
Partnership's losses and by the amount of any cash distributions which are made
to him. A cash distribution to a Limited Partner will generally constitute a
return of capital to the extent of the basis of his Units but, in the event that
a Limited Partner has no remaining basis in his Units, will generally be taxable
to him as gain from the sale of his Units. (See "Sales of Limited Partnership
Units" below.)
PASSIVE LOSS LIMITATIONS
The Code substantially restricts the ability of many taxpayers (including
individuals, estates, trusts, certain closely-held corporations and certain
personal service corporations) to deduct losses derived from so-called "passive
activities." Passive activities generally include any activity involving the
conduct of a trade or business in which the taxpayer does not materially
participate (including the activity of a limited partnership in which the
taxpayer is a limited partner) and certain rental activities (including the
rental of real estate). In the opinion of Counsel, it is more likely than not
that a Limited Partner's interest in the Partnership will be treated as a
passive activity, if such issue were challenged by the IRS, litigated and
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judicially decided. Accordingly, income and loss of the Partnership, other than
interest or other similar income earned on temporary investments and working
capital reserves (which would constitute portfolio income), will constitute
passive activity income and passive activity loss, as the case may be, to
Limited Partners.
Generally, losses from passive activities are deductible only to the extent
of a taxpayer's income or gains from passive activities and will not be allowed
as an offset against other income, including salary or other compensation for
personal services, active business income or "portfolio income," which includes
nonbusiness income derived from dividends, interest, royalties, annuities and
gains from the sale of property held for investment. Passive activity losses
that are not allowed in any taxable year are suspended and carried forward
indefinitely and allowed in subsequent years as an offset against passive
activity income in future years.
Upon a taxable disposition of a taxpayer's entire interest in a passive
activity to an unrelated party, suspended losses with respect to that activity
will then be allowed as a deduction against: (i) first, any remaining income or
gain from that activity including gain recognized on such disposition; (ii)
then, net income or gain for the taxable year from other passive activities; and
(iii) finally, any other non-passive income or gain. Temporary Regulations
provide, however, that similar undertakings which are under common control and
owned by pass-through entities such as partnerships are generally aggregated
into a single activity. Accordingly, it is unlikely that suspended passive
activity losses derived from a specific Partnership Property would be available
to Limited Partners to offset non-passive income from other sources until the
sale or other disposition of all Partnership Properties has been consummated.
The Code provides that the passive activity loss rules will be applied
separately with respect to items attributable to each publicly traded
partnership. Accordingly, if the Partnership were deemed to be a publicly
traded partnership, Partnership losses, if any, would be available only to
offset future non-portfolio income of the Partnership. In addition, if the
Partnership were deemed to be a publicly traded partnership which is not treated
as a corporation because of the qualifying income exception, Partnership income
would generally be treated as portfolio income rather than passive income. (See
"Publicly Traded Partnerships" above.)
AT RISK LIMITATIONS
The deductibility of Partnership losses is limited further by the "at risk"
limitations in the Code. Limited Partners who are individuals, estates, trusts
and certain closely-held corporations are not allowed to deduct Partnership
losses in excess of the amounts which such Limited Partners are determined to
have "at risk" at the close of the Partnership's year. Generally, a Limited
Partner's amount "at risk" will include the amount of his cash Capital
Contribution to the Partnership. A Limited Partner's amount "at risk" will be
reduced by his allocable share of Partnership losses and by Partnership
distributions and increased by his allocable share of Partnership income. Any
deductions which are disallowed under this limitation may be carried forward
indefinitely and utilized in subsequent years to the extent that a Limited
Partner's amount "at risk" is increased in those years.
ALLOCATIONS OF PROFIT AND LOSS
Allocations of Net Income, Net Loss, depreciation, amortization and cost
recovery deductions and Gain on Sale are described in this Prospectus in the
Section entitled "DISTRIBUTIONS AND ALLOCATIONS." Investors should note in this
regard that the Partnership Agreement defines the terms "Net Income" and "Net
Loss" to mean the net income or loss realized or recognized by the Partnership
for a fiscal year, as determined for federal income tax purposes, including any
income exempt from tax, but excluding all deductions for depreciation,
amortization and cost recovery and Gain on Sale. (See "GLOSSARY.")
Generally, partnership items of income, gain, loss, deduction and credit
are allocated among partners as set forth in the relevant partnership agreement
pursuant to Section 704(a) of the Code. Section 704(b) provides, however, that
if an allocation to a partner under the partnership agreement of income, gain,
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loss, deduction or credit (or items thereof) does not have substantial economic
effect, such allocation will instead be made in accordance with the partner's
interest in the partnership (determined by taking into account all facts and
circumstances).
The Partnership has not received an advance ruling with respect to whether
its allocations of profits and losses will be recognized for federal income tax
purposes, and the IRS may attempt to challenge the allocations of profits and
losses made by the Partnership, which challenge, if successful, could adversely
affect the Limited Partners by changing their respective shares of taxable
income or loss. No assurance can be given that the IRS will not challenge one
or more of the special allocation provisions contained in the Partnership
Agreement.
Regulations under Section 704(b) of the Code (the "Section 704(b)
Regulations") provide complex rules for determining whether allocations will be
deemed to have economic effect, whether the economic effect of allocations will
be deemed to be substantial and whether allocations not having substantial
economic effect will be deemed to be made in accordance with a partner's
interest in the partnership.
The relevant portions of the Section 704(b) Regulations provide generally
that an allocation will be considered to have economic effect if: (i) partners'
capital accounts are determined and maintained in accordance with the
Regulations; (ii) upon the liquidation of the partnership, liquidating
distributions are made in accordance with the positive capital account balances
of the partners after taking into account all capital account adjustments for
the year during which such liquidation occurs; and (iii) the partnership
agreement contains a "qualified income offset" provision and the allocation in
question does not cause or increase a deficit balance in a partner's capital
account at the end of the partnership's taxable year. A partnership agreement
contains a "qualified income offset" if it provides that a partner who
unexpectedly receives an adjustment, allocation or distribution of certain items
which causes a deficit or negative capital account balance (which means
generally that the sum of losses allocated and cash distributed to a partner
exceeds the sum of his capital contributions to the partnership and any income
allocated to such partner), will be allocated items of income and gain in an
amount and manner sufficient to eliminate the deficit balance as quickly as
possible.
The Partnership Agreement (i) provides for the determination and
maintenance of Capital Accounts pursuant to the Section 704(b) Regulations, (ii)
provides that liquidation proceeds are to be distributed in accordance with
Capital Accounts, and (iii) contains a qualified income offset provision. (See
"DISTRIBUTIONS AND ALLOCATIONS.") The qualified income offset provision in the
Partnership Agreement has the effect of prohibiting a Limited Partner from being
allocated items of loss or deduction which would cause his Capital Account to be
reduced below zero.
It should be further noted, however, that the Partnership Agreement
contains a provision specially allocating deductions for depreciation,
amortization and cost recovery to Limited Partners holding Class B Status Units
up to the amount which would reduce their Capital Accounts to zero. In an
attempt to ensure that Limited Partners holding Class B Status Units will bear
the risk of actual economic loss in the event that a Partnership Property is
sold at a loss, the Partnership Agreement also provides for a special allocation
of Nonliquidating Net Sale Proceeds in favor of Limited Partners holding Class A
Status Units which applies only if a Partnership Property is sold for less than
its original purchase price. Under this provision, Limited Partners holding
Class A Status Units are allocated the first Sale Proceeds generated from any
such sale in an amount equal to the excess of the original purchase price of
such Partnership Property over the sale price of the Partnership Property sold
but not in excess of the amount of the special allocation to Limited Partners
holding Class B Status Units of deductions for depreciation, amortization and
cost recovery with respect to the specific Partnership Property sold.
A Limited Partner who acquires Units from a prior owner should note that
the foregoing allocation of Gain on Sale to Limited Partners holding Class B
Status Units in an amount equal to the deductions for depreciation, amortization
and cost recovery which were previously allocated to them could have the effect
of allocating substantial income to such Limited Partner upon a sale or other
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disposition of a Partnership Property caused by the special allocation of
deductions for depreciation, amortization and cost recovery previously allocated
to the prior owner even though such new Limited Partner would not have received
any benefit from such prior allocation of deductions.
Even if the allocations of profits and losses of a partnership are deemed
to have economic effect under the Section 704(b) Regulations, however, an
allocation will not be upheld unless the economic effect of such allocation is
"substantial." In this regard, the Section 704(b) Regulations generally provide
that the economic effect of an allocation is "substantial" if there is a
reasonable possibility that the allocation will affect the dollar amounts to be
received by partners from a partnership, independent of tax consequences. The
economic effect of an allocation is presumed not to be substantial if there is a
strong likelihood that the net adjustments to the partner's capital account for
any taxable year will not differ substantially from the net adjustments which
would have been made for such year in the absence of such allocation and the
total tax liability of the partners for such year is less than it would have
been in the absence of such allocations. The economic effect will also be
presumed not to be substantial where: (i) the partnership agreement provides for
the possibility that the allocation will be largely offset by one or more other
allocations; (ii) the net adjustments to the partners' capital accounts for the
taxable years to which the allocations relate will not differ substantially from
the net adjustments which would have been recorded in such partners' respective
capital accounts for such years if the original allocations and the offsetting
allocations were not contained in the partnership agreement; and (iii) the total
tax liability of the partners for such year is less than it would have been in
the absence of such allocations. With respect to the foregoing provision, the
Section 704(b) Regulations state that original allocations and offsetting
allocations will not be deemed to not be substantial if, at the time the
allocations become part of the partnership agreement, there is a strong
likelihood that the offsetting allocations will not, in large part, be made
within five years after the original allocations are made. The Section 704(b)
Regulations further state that for purposes of testing substantiality, the
adjusted tax basis of partnership property will be presumed to be the fair
market value of such property, and adjustments to the adjusted tax basis of
partnership property (such as depreciation or cost recovery deductions) will be
presumed to be matched by corresponding changes in the property's fair market
value.
There are no assurances that the IRS will not challenge the special
allocation of Partnership deductions for depreciation, amortization and cost
recovery to Limited Partners holding Class B Status Units or other allocations
set forth in the Partnership Agreement on the basis that such allocations are
either "insubstantial," within the meaning of the Section 704(b) Regulations, or
otherwise fail to comply with the Section 704(b) Regulations.
If the allocations of profits and losses set forth in a partnership
agreement are deemed not to have substantial economic effect, the allocations
are then to be made in accordance with the partners' interests in the
partnership as determined by taking into account all facts and circumstances.
The Section 704(b) Regulations provide in this regard that a partner's interest
in a partnership will be determined by taking into account all facts and
circumstances relating to the economic arrangement of the partners, including:
(i) the partners' relative contributions to the partnership; (ii) the interests
of the partners in economic profits and losses (if different from those in
taxable income or loss); (iii) the interests of the partners in cash flow and
other nonliquidating distributions; and (iv) the rights of the partners to
distributions of capital upon liquidation.
Since the Partnership Agreement: (i) provides for the determination and
maintenance of Capital Accounts in accordance with the Section 704(b)
Regulations; (ii) provides that liquidation proceeds will be distributed to the
Partners in accordance with Capital Accounts; (iii) contains a qualified income
offset provision; and (iv) shifts the economic risk of loss to the Limited
Partners holding Class B Status Units, assuming the allocations of deductions
for depreciation, amortization and cost recovery to such Limited Partners were
matched by corresponding reductions in the fair market value of the
Partnership's Property; and assuming the accuracy of the representations of the
General Partners, including that the Partnership will be operated strictly in
accordance with the terms of the Partnership Agreement, Counsel has concluded
that it is more likely than not that Partnership items of income, gain, loss,
deduction and credit will be allocated among the General Partners and the
Limited Partners substantially in accordance with the allocation provisions of
the Partnership Agreement.
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RISK OF TAXABLE INCOME WITHOUT CASH DISTRIBUTIONS
A partner in a partnership is required to report his allocable share of the
partnership's taxable income on his personal income tax return regardless of
whether or not he has received any cash distributions from the partnership. For
example, a Limited Partner electing Class A Status Units who participates in the
Distribution Reinvestment Plan will be allocated his share of the Partnership's
Net Income and Gain on Sale (including Net Income and Gain on Sale allocable to
Units acquired pursuant to the Distribution Reinvestment Plan) even though such
Partner would receive no cash distributions from the Partnership. In addition,
a Limited Partner electing Class A Status who purchases Units pursuant to the
Deferred Commission Option will be allocated his share of the Partnership's Net
Income with respect to such Units even though Net Cash From Operations otherwise
distributable to such Limited Partner will instead be paid to third parties to
satisfy the deferred commission obligations with respect to such Units for a
period of seven years after the termination of the Offering. (See "PLAN OF
DISTRIBUTION.") The Partnership Agreement also provides for a "qualified income
offset," as described hereinabove, which could result in the allocation of
income or gain to a Limited Partner in the absence of cash distributions from
the Partnership. There are no assurances that a Limited Partner will not be
allocated items of Partnership income or gain in an amount which gives rise to
an income tax liability in excess of cash, if any, received from the Partnership
for the tax year in question, and investors are urged to consult with their
personal tax advisors in this regard.
INVESTMENT BY QUALIFIED PLANS AND OTHER TAX-EXEMPT ENTITIES
Although the General Partners have used their best efforts to structure the
Partnership's activities to avoid having the Partnership's income characterized
as UBTI, any person who is a fiduciary of an IRA, Keogh Plan, Qualified Plan or
other tax-exempt entity (collectively referred to as "Exempt Organizations")
considering an investment in the Units should be aware that some risk remains
that income derived from ownership of Units may be subject to federal income tax
in the event that any portion of the Partnership's income is deemed to be UBTI
(generally defined as income derived from any unrelated trade or business
carried on by a tax-exempt entity or by a partnership of which it is a member).
A trustee of a charitable remainder trust should be aware that if any portion of
the income derived from its ownership of Units is deemed to be UBTI, the trust
will lose its exemption from income taxation with respect to all of its income
for the tax year in question. (See "Investment by Charitable Remainder Trusts"
below.) A tax-exempt Limited Partner (other than a charitable remainder trust)
which has UBTI in any tax year from all sources of more than $1,000 will be
subject to taxation on such income.
While the types of Partnership income and gain which should be realized by
investing Exempt Organizations would not generally constitute UBTI, such income
would constitute UBTI if the Partnership were to own "debt-financed property"
which is subject to "acquisition indebtedness." The portion of income or gain
from "debt-financed property" that will constitute UBTI is based on the ratio of
the "average acquisition indebtedness" to the basis of the property. In
computing the portion of gain from a sale which constitutes UBTI, "average
acquisition indebtedness" means the highest amount of the acquisition
indebtedness with respect to such property during the 12 month period ending on
the date of sale while, for determining the portion of income from sources other
than a sale, "average acquisition indebtedness" means the average monthly level
of acquisition indebtedness during the taxable year for the year in which such
income was recognized. Acquisition indebtedness includes: (i) indebtedness
incurred in acquiring or improving property; (ii) indebtedness incurred before
the acquisition or improvement of property if such indebtedness would not have
been incurred but for such acquisition or improvement; and (iii) indebtedness
incurred after the acquisition or improvement of property if such indebtedness
would not have been incurred but for such acquisition or improvement and the
incurrence of such indebtedness was reasonably foreseeable at the time of such
acquisition or improvement.
The Partnership will under no circumstances incur indebtedness to acquire
Partnership Properties. The Partnership's authority to incur indebtedness
thereafter may be exercised only in limited circumstances. Specifically, the
General Partners have the authority to incur indebtedness only in the event that
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they deem such borrowing necessary to finance improvements of its properties, to
protect the capital previously invested in a property, to protect the value of
the Partnership's investment in a property or to make a property more attractive
for sale or lease. (See "INVESTMENT OBJECTIVES AND CRITERIA - Borrowing
Policies.") The General Partners have represented, however, that they will not
cause the Partnership to incur indebtedness unless the Partnership first
receives an opinion of counsel that the proposed indebtedness more likely than
not will not cause income of the Partnership to be characterized as UBTI.
Investors should be aware, however, that an opinion of counsel is based upon
various representations and assumptions, and has no binding effect on the IRS or
any court. Accordingly, no assurance can be given that the conclusions reached
in any such opinion of counsel, if contested, would be sustained by a court, or
that any such indebtedness to be incurred by the Partnership in the future would
not cause the income allocated to Limited Partners that are tax-exempt entities
to be taxed as UBTI. In addition, Partnership income could also constitute UBTI
in the event that the Partnership were deemed to hold Partnership Properties
primarily for sale to customers in the ordinary course of business. (See
"Property Held Primarily for Sale" below.)
Any person who is a fiduciary of an Exempt Organization considering an
investment in Units should also consider the impact of minimum distribution
requirements under the Code. The Code provides that certain minimum
distributions from Retirement Plans must be made commencing no later than the
April 1st following the calendar year during which the recipient attains age 70
1/2. Accordingly, if Units are still held by Retirement Plans and Partnership
Properties have not yet been sold at such time as mandatory distributions are
required to commence to an IRA beneficiary or a Qualified Plan participant, it
is likely that a distribution in kind of the Units will be required to be made,
which distribution will be includable in the taxable income of said IRA
beneficiary or Qualified Plan participant for the year in which the Units are
received at the fair market value of the Units without any corresponding cash
distributions with which to pay the income tax liability arising out of any such
distribution. In certain circumstances, a distribution in kind of the Units may
be deferred beyond the date for required distributions, but only upon a showing
of compliance with the minimum distribution requirements of the Code by reason
of distributions from other Retirement Plans established for the benefit of the
recipient. Compliance with these requirements is complex, however, and
potential investors are urged to consult with and rely upon their individual tax
advisors with regard to all matters concerning the tax effects of distributions
from Retirement Plans. No assurances can be given that Partnership Properties
will be sold or otherwise disposed of in a fashion which would permit sufficient
liquidity in any Retirement Plan holding Units for the Retirement Plan to be
able to avoid making a mandatory distribution in kind of Units. ("See "RISK
FACTORS.")
INVESTMENT BY CHARITABLE REMAINDER TRUSTS
A charitable remainder trust ("CRT") is a trust created to provide income
for the benefit of at least one non-charitable beneficiary for life or a term of
up to 20 years, with the property comprising the trust corpus then transferred
to a charitable beneficiary upon the expiration of the trust. Upon the creation
of a CRT, the grantor would normally be entitled to a charitable income tax
deduction equal to the current fair market value of the remainder interest which
will ultimately pass to charity. A CRT is also exempt from federal income
taxation if the trust is established and maintained in compliance with highly
complex rules contained in the Code and underlying Treasury Regulations. Among
these rules is a provision that if any portion of income derived by a CRT is
deemed to be UBTI, all of the CRT's income for the taxable year in which UBTI is
incurred, from whatever sources derived, will be subject to income taxes at the
trust level. As set forth above in "Investment by Qualified Plans and Other
Tax-Exempt Entities," the General Partners have used their best efforts to
structure the Partnership's activities to avoid having the Partnership's income
characterized as UBTI. In summary, unless the Partnership incurs indebtedness
for the purpose of acquiring or improving real properties, and hence is deemed
to be holding property subject to "acquisition indebtedness," or is deemed to
hold its properties primarily for sale to customers in the ordinary course of
business, under current law the Partnership's income should not be deemed to
constitute UBTI. (See "Investment by Qualified Plans and Other Tax-Exempt
Entities" above.)
DEPRECIATION AND COST RECOVERY
It is currently anticipated that the real property improvements acquired or
constructed by the Partnership and any personal property acquired by the
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Partnership will be depreciated for tax purposes using the Alternative
Depreciation System set forth in the Code for partnerships (such as the
Partnership) having both taxable and tax-exempt partners; i.e., real property
improvements on a straight-line basis over a recovery period of 40 years, and
personal property acquired by the Partnership over a recovery period of 12 years
on a straight-line basis.
SYNDICATION AND ORGANIZATIONAL EXPENSES
No deduction is allowed for expenses incurred in connection with organizing
the Partnership or syndicating the Partnership. Syndication expenses include
costs and expenses incurred in connection with promoting and marketing the Units
such as sales commissions, professional fees and printing costs and are neither
deductible nor amortizable. Amounts which qualify as organizational expenses,
however, as well as other start-up expenditures, may, if so elected, be
amortized ratably over 60 months. There are no assurances that the IRS will not
attempt to recharacterize as nondeductible syndication expenses certain costs
and expenses which the Partnership attempts to deduct or amortize over 60
months.
Since the appropriate classification of fees and expenses paid by the
Partnership into their proper categories and a determination of whether certain
fees and expenses are ordinary and necessary and reasonable in amount depends
upon facts relating to and existing at the time the services are to be rendered
to the Partnership, Counsel is unable to render an opinion as to the probable
outcome if the IRS were to challenge the deductibility or the timing of
deduction or amortization of those fees and expenses, if such challenge to any
or all of such fees and expenses were to be litigated and judicially decided.
Disallowance by the IRS of any of these fees and expenses would result in an
increase in the taxable income of the Partnership and its Partners with no
associated increase in Net Cash From Operations.
ACTIVITIES NOT ENGAGED IN FOR PROFIT
Section 183 of the Code provides for the disallowance of deductions
attributable to activities "not engaged in for profit." The term "not engaged
in for profit" is defined as any activity other than an activity that
constitutes a trade or business or an activity that is engaged in for the
production or collection of income. In general, an activity will be considered
as entered into for profit where there is a reasonable expectation of profit in
the future. The determination of whether an activity is engaged in for profit
is based upon the facts and circumstances of each case.
Based upon the investment objectives of the Partnership and the
representation of the General Partners that the Partnership will be operated in
a business-like manner in all material respects and strictly in accordance with
the Partnership Agreement and this Prospectus, and assuming the determination as
to whether the activities of the Partnership are activities entered into for
profit under Section 183 is made at the partnership level, Counsel in the Tax
Opinion has concluded that it is more likely than not that the activities
contemplated by the Partnership will be considered activities entered into for
profit by the Partnership, if such issue were challenged by the IRS, litigated
and judicially decided. However, the IRS may also apply Section 183 to Limited
Partners notwithstanding any determination made with respect to the Partnership
in this regard, and since the test of whether an activity is deemed to be
engaged in for profit is based upon facts and circumstances that exist from time
to time, no assurance can be given that Section 183 of the Code may not be
applied in the future to disallow deductions allocable to Limited Partners from
Partnership operations. Investors should also be aware that Counsel in the Tax
Opinion gives no opinion as to the application of Section 183 of the Code at the
partner level. Accordingly, prospective investors should consult with their own
tax advisors regarding the impact of Section 183 on their particular situations.
FEDERAL INCOME TAX CONSEQUENCES RELATING TO THE CUSTODIAL AGENCY AGREEMENT AND
OTHER POTENTIAL USES OF NOMINEE CORPORATIONS
As previously discussed, title to properties acquired on behalf of the
Partnership will be held in the name of The Bank of New York (the "Agent"), as
agent for the Partnership. (See "CUSTODIAL AGENCY AGREEMENT.") In addition,
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the Partnership may be required to utilize other nominee corporations or land
trusts to hold title to property by reason of local, state or other
jurisdiction's laws. The use of the Agent to hold legal title to a Partnership
Property and the use of any other nominee corporation or land trust to hold
legal title to properties for the benefit of the Partnership will be with the
intention that for tax purposes the entity would be disregarded and the
Partnership would be treated as the owner of the property.
In the event the Partnership is not treated as the owner of a Partnership
Property, the Partnership would lose the benefit of depreciation and other
deductions ordinarily claimed by the equitable owner of a property.
Accordingly, a determination by the IRS that the Partnership is not the owner of
a Partnership Property for tax purposes could result in substantial adverse tax
consequences, including depriving Limited Partners holding Class B Status Units
of deductions for depreciation and cost recovery. In this connection, however,
recent judicial decisions have held that in instances where an agent, pursuant
to a written agency agreement, holds title to real property as an agent for
limited purposes, holds itself out as an agent and not as a principal in all
dealings with third parties, has no obligation to maintain the property, and is
indemnified and held harmless by the principal from and against liabilities
which it might sustain as agent, the principal rather than the agent will be
treated as the owner of the real property for federal income tax purposes.
Under the terms of the Custodial Agency Agreement, the Agent will hold
title to properties as agent for the Partnership, the Agent is required to hold
itself out as agent for the Partnership and not as principal in all dealings
with third parties, the Agent has no obligation to maintain Partnership
Properties, and the Partnership and the General Partners have agreed to
indemnify and hold the Agent harmless from and against liabilities which it
might sustain as agent under the Custodial Agency Agreement. Based upon
Counsel's review of the judicial decisions in this area and the Custodial Agency
Agreement between the Partnership and the Agent, Counsel has concluded that it
is more likely than not the Partnership will be treated for income tax purposes
as the owner of Partnership Properties, title to which is held in the name of
the Agent under the terms of the Custodial Agency Agreement.
In other instances where nominee corporations are deemed necessary in
connection with a particular Partnership Property, it is the Partnership's
intention, if and to the extent practical, and on advice of counsel (although
the Partnership will not be required to obtain an opinion of counsel with
respect to such matter) (i) to contract on an arm's-length basis with the
nominee corporation which will not be controlled by either the Partnership or a
majority in interest of its Partners, and (ii) to seek to provide real estate
documentation of the arrangement between the nominee corporation and the
Partnership in a manner which, under applicable tax law principles, will result
in the Partnership being treated as the owner of the property for tax purposes.
No assurances can be given, however, that such efforts will be successful, and
in the event a nominee corporation or land trust is deemed to be the equitable
owner of a Partnership Property for tax purposes, items of income, gain, loss,
deduction or credit attributable to any such property would be required to be
reported by the corporation or trust and would not flow through to the Limited
Partners.
CHARACTERIZATION OF LEASES
The Partnership has the authority to purchase properties and lease them
back to the sellers of such properties pursuant to "sale-leaseback" transactions
as described in "INVESTMENT OBJECTIVES AND CRITERIA." The tax benefits
described herein associated with ownership of a property, such as depreciation
or cost recovery deductions, depend on having the lease in any such leaseback
transaction treated as a "true lease" under which the Partnership is treated as
the owner of the property for federal income tax purposes, rather than having
such transaction treated as a conditional sale of the property or a financing
transaction entered into with the seller.
While the General Partners will use their best efforts to structure any
such sale-leaseback transaction to insure that the lease will be characterized
as a "true lease," so that the Partnership will be treated as the owner of the
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property in question for federal income tax purposes, the Partnership will not
seek an advance ruling from the IRS or obtain an opinion of counsel that it will
be treated as the owner of any leased properties for federal income tax
purposes. A determination by the IRS that the Partnership is not the owner of
leased properties could result in substantial adverse tax consequences,
including depriving Limited Partners holding Class B Status Units of deductions
for depreciation and cost recovery. In addition, if a sale-leaseback
transaction is recharacterized as a financing for federal income tax purposes,
any Partnership income derived from such leaseback would be treated as interest
which is portfolio income, rather than passive activity income which may be
offset by passive activity losses generated by the Partnership or from
investments in other passive activities. (See "Passive Loss Limitations"
above.)
PROPERTY HELD PRIMARILY FOR SALE
The Partnership has been organized for the purpose of acquiring and
developing real estate for investment and rental purposes. However, if the
Partnership were at any time deemed for tax purposes to be a "dealer" in real
property (one who holds real estate primarily for sale to customers in the
ordinary course of business), any gain recognized upon a sale of such real
property would be taxable as ordinary income, rather than as capital gain, and
would constitute UBTI to Limited Partners which are tax-exempt entities.
Under existing law, whether property is or was held primarily for sale to
customers in the ordinary course of business must be determined from all the
facts and circumstances surrounding the particular property and sale in
question. The Partnership intends to acquire real estate and construct
improvements thereon for investment and rental only and to engage in the
business of owning and operating such improvements. The Partnership will make
sales thereof only as, in the opinion of the General Partners, are consistent
with the Partnership's investment objectives. Although the General Partners do
not anticipate that the Partnership will be treated as a dealer with respect to
any of its properties, there is no assurance that the IRS will not take a
contrary position. Because the issue is dependent upon facts which will not be
known until the time a property is sold or held for sale and due to the lack of
judicial authority in this area, Counsel is unable to render an opinion as to
whether the Partnership will be considered to hold any or all of its properties
primarily for sale to customers in the ordinary course of business.
SALES OF PARTNERSHIP PROPERTIES
Upon the sale of Partnership Properties, the Partnership will recognize
gain or loss to the extent that the amount realized is more or less than the
adjusted basis of the Partnership Property sold. The amount realized upon the
sale of a Partnership Property will generally be equal to the sum of the cash
received plus the amount of indebtedness encumbering the property, if any,
assumed by the purchaser or to which the property remains subject upon the
transfer of the property to the purchaser. The adjusted basis of Partnership
Property will in general be equal to the original cost of the property less
depreciation and cost recovery allowances allowed to the Partnership with
respect to such property.
Assuming that the Partnership is not deemed to be a dealer with respect to
its properties (see "Property Held Primarily for Sale" above), such gain or loss
will generally be taxable under Section 1231 of the Code. A Limited Partner's
share of the gains or losses resulting from the sale of Partnership Properties
would generally be combined with any other Section 1231 gains or losses realized
by the Limited Partner in that year from sources other than the Partnership, and
the net Section 1231 gain or loss is generally treated as long-term capital gain
(subject to depreciation or cost recovery allowance recapture, if any) or
ordinary loss, as the case may be. Investors should be aware that the amount of
taxable gain allocated to a Limited Partner with respect to the sale of a
Partnership Property may exceed the cash proceeds received by such Limited
Partner with respect to such sale. (See "RISK FACTORS.")
SALES OF LIMITED PARTNERSHIP UNITS
A Limited Partner may be unable to sell any of his Units by reason of the
nonexistence of any market therefor. In the event that Units are sold, however,
the selling Limited Partner will realize gain or loss equal to the difference
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between the gross sale price or proceeds received from sale and the Limited
Partner's adjusted tax basis in his Units. Assuming the Limited Partner is not
a "dealer" with respect to such Units and has held the Units for more than one
year, his gain or loss will be long-term capital gain or loss, except for that
portion of any gain attributable to such Limited Partner's share of the
Partnership's "unrealized receivables" and "substantially appreciated
inventory," as defined in Section 751 of the Code, which would be taxable as
ordinary income. Any recapture of cost recovery allowance taken previously by
the Partnership with respect to personal property associated with Partnership
Properties will be treated as "unrealized receivables" for this purpose.
Investors should note in this regard that the Code requires the Partnership to
report any sale of Units to the IRS if any portion of the gain realized upon
such sale is attributable to the transferor's share of the Partnership's Section
751 property.
DISSOLUTION AND LIQUIDATION OF THE PARTNERSHIP
The dissolution and liquidation of the Partnership will involve the
distribution to the Partners of the cash remaining after the sale of its assets,
if any, and after payment of all the Partnership's debts and liabilities. If a
Limited Partner receives cash in excess of the basis of his Units, such excess
will be taxable as a gain. If a Limited Partner were to receive only cash upon
dissolution and liquidation, he would recognize a loss to the extent, if any,
that the adjusted basis of his Units exceeded the amount of cash received. No
loss would be recognized if a Limited Partner were to receive property other
than money, unrealized receivables and substantially appreciated inventory (as
defined in Section 751 of the Code). There are a number of exceptions to these
general rules, including but not limited to, the effect of a special basis
election under Section 732(d) of the Code for a Limited Partner who may have
acquired his Partnership interest within the two years prior to the dissolution,
and the effects of distributing one kind of property to some Partners and a
different kind of property to others as determined under Section 751(b) of the
Code.
CAPITAL GAINS AND LOSSES
Ordinary income for individual taxpayers is currently taxed at a maximum
marginal rate of 39.6%, while capital gains are currently taxed at a maximum
marginal rate of 28%. It should be noted in this regard, however, that the
phase-out of personal exemptions and itemized deductions for taxpayers having
adjusted gross incomes in excess of $100,000 ($50,000 in the case of a married
individual filing a separate return) may reduce the impact of such preferential
rate. Capital losses may generally be used to offset capital gains and, in
addition, may be deductible against ordinary income on a dollar-for-dollar basis
up to a maximum annual deduction of $3,000 ($1,500 in the case of a married
individual filing a separate return).
ELECTION FOR BASIS ADJUSTMENTS
Under Section 754 of the Code, partnerships may elect to adjust the basis
of partnership property upon the transfer of an interest in the partnership so
that the transferee of a partnership interest will be treated for purposes of
calculating depreciation and realizing gain as though he had acquired a direct
interest in the partnership's assets. However, as a result of the complexities
and added expense of the tax accounting required to implement such an election,
the General Partners do not intend to cause the Partnership to make any such
election on behalf of the Partnership. As a consequence, depreciation available
to a transferee of Units will be limited to the transferor's share of the
remaining depreciable basis of Partnership Properties, and upon a sale of a
Partnership Property, taxable income or loss to the transferee of the Units will
be measured by the difference between his share of the amount realized upon such
sale and his share of the Partnership's tax basis in the property, which may
result in greater tax liability to him than if a Section 754 election had been
made. In addition, the absence of such an election by the Partnership may
result in Limited Partners having greater difficulty in selling their Units.
ALTERNATIVE MINIMUM TAX
Alternative minimum tax is payable to the extent that a taxpayer's
alternative minimum tax exceeds his regular federal income tax liability for the
taxable year. Alternative minimum tax for individual taxpayers is a percentage
of "alternative minimum taxable income" ("AMTI") in excess of certain exemption
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amounts. The first $175,000 of AMTI in excess of the exemption amount is taxed
currently at 26%, and AMTI in excess of $175,000 over the exemption amount is
taxed currently at 28%. Alternative minimum taxable income is generally
computed by adding what are called "tax preference items" to the taxpayer's
regular taxable income, with certain adjustments. While it is not anticipated
that an investment in the Partnership will give rise to any specific tax
preference items, the amount of alternative minimum tax imposed depends upon
various factors unique to each particular taxpayer. Accordingly, each Limited
Partner should consult with his own personal tax advisor regarding the possible
application of the alternative minimum tax.
PENALTIES
Under Section 6662 of the Code, a 20% penalty is imposed on any portion of
an underpayment of tax attributable to a "substantial understatement of income
tax." In general, a "substantial understatement of income tax" will exist if
the actual income tax liability of the taxpayer exceeds the income tax liability
shown on his return by the greater of 10% of the actual income tax liability or
$5,000. Unless the understatement is attributable to a "tax shelter," the
amount of an understatement is reduced by any portion of such understatement
which is attributable to (i) the income tax treatment of any item shown on the
return if there is "substantial authority" for the taxpayer's treatment of such
item on his return or (ii) any item with respect to which the taxpayer
adequately discloses on his return the relevant facts affecting the item's
income tax treatment. In the case of a "tax shelter," which is defined in
Section 6662 of the Code as a partnership or other entity that has as its
principal purpose the avoidance or evasion of federal income tax, this reduction
in the understatement only will apply in cases where, in addition to having
"substantial authority" for treatment of the item in question, the taxpayer
reasonably believed that the income tax treatment of that item was more likely
than not the proper treatment.
Although the Partnership is not intended to be a so-called "tax shelter,"
it is possible that it may be considered a tax shelter for purposes of Section
6662 of the Code and that certain Partnership tax items could be considered tax
shelter items within the meaning of Section 6662. The Regulations under Section
6662 provide that an entity will be deemed to be a tax shelter if the tax
avoidance or evasion motive exceeds all other motives. Based on the investment
objectives of the Partnership, the General Partners believe there are
substantial grounds for a determination that the Partnership does not constitute
a tax shelter; however, because the issue is dependent upon facts relating to
future Partnership operations, the acquisition and disposition of Partnership
Properties and other factual determinations which are not known at this time,
Counsel is unable to render an opinion as to whether an investment in the
Partnership will be considered a tax shelter for purposes of Section 6662 of the
Code.
In addition to the substantial understatement penalty, Section 6662 of the
Code also imposes a 20% penalty on any portion of an underpayment of tax (i)
attributable to any substantial valuation misstatement (generally where the
value or adjusted basis of a property claimed on a return is 200% or more of the
correct value or adjusted basis), or (ii) attributable to negligence, defined as
any failure to make a reasonable attempt to comply with the Code, or a careless,
reckless or intentional disregard of federal income tax rules or regulations.
TAX SHELTER REGISTRATION
Any entity deemed to be a "tax shelter," as defined in Section 6111 of the
Code, is required to register with the IRS. Regulations under Section 6111
define a "tax shelter" as an investment in connection with which an investor can
reasonably infer from the representations made that the "tax shelter ratio" may
be greater than 2 to 1 as of the close of any of the first five years ending
after the date in which the investment is offered for sale. The "tax shelter
ratio" is generally determined by dividing the investor's share of the aggregate
deductions derived from the investment, determined without regard to income, by
the amount of the investor's capital contributions.
The Partnership is not intended to constitute a "tax shelter." Further,
the General Partners have represented that, in the absence of events which are
unlikely to occur, the aggregate amount of deductions derived from any Limited
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Partner's investment in the Partnership, determined without regard to income,
will not exceed twice the amount of any such Limited Partner's investment in the
Partnership as of the close of any year in the Partnership's first five calendar
years.
Based upon the authority of the Regulations under Section 6111 and the
representations of the General Partners that, in the absence of events which are
unlikely to occur, the "tax shelter ratio" with respect to an investment in the
Partnership will not exceed 2 to 1 for any investor as of the close of any year
in the Partnership's first five calendar years, Counsel in the Tax Opinion has
concluded that it is more likely than not the Partnership is not currently
required to register as a tax shelter with the IRS under Section 6111 of the
Code prior to the offer and sale of the Units.
AUDITS
The IRS has recently undertaken an intensified audit program with respect
to partnerships and partnership returns. While this should generally not affect
Units which are being treated as Class A Status Units, prospective investors in
Class B Status Units should be aware that deductions which are claimed on the
Partnership's return may be challenged and disallowed by the IRS. Any such
disallowance may deprive Limited Partners holding Units treated as Class B
Status Units of some or all of the tax benefits incidental to an investment in
the Partnership.
In the event of an audit of the Partnership's tax return, the General
Partners will take primary responsibility for contesting federal income tax
adjustments proposed by the IRS, to extend the statute of limitations as to all
Partners and, in certain circumstances, to bind the Limited Partners to such
adjustments. Although the General Partners will attempt to inform each Limited
Partner of the commencement and disposition of any such audit or subsequent
proceedings, Limited Partners should be aware that their participation in
administrative or judicial proceedings relating to Partnership items will be
substantially restricted. An audit of the Partnership could result in
substantial legal and accounting fees required to be paid to substantiate the
reporting positions taken, and any such fees would reduce the cash otherwise
available for distribution to the Limited Partners. Any such audit may result
in adjustments to the tax returns of the Partnership which would require
adjustments to each Limited Partner's personal income tax return and may require
such Limited Partners to pay additional taxes plus interest, compounded daily.
In addition, any audit of a Limited Partner's return could result in adjustments
of other items of income and deductions not related to the Partnership.
FOREIGN INVESTORS AS LIMITED PARTNERS
As a general matter, foreign investors may purchase Units in the
Partnership. A foreign investor who purchases Units and becomes a Limited
Partner in the Partnership will generally be required to file a United States
tax return on which he must report his distributive share of the Partnership's
items of income, gain, loss, deduction and credit, and pay United States federal
income tax at regular United States tax rates on his share of any net income,
whether ordinary or capital gains. A foreign investor may also be subject to
tax on his distributive share of the Partnership's income and gain in his
country of nationality or residence or elsewhere. In addition, cash
distributions of Net Cash From Operations or Sale Proceeds otherwise payable to
a foreign investor from the Partnership or amounts payable upon the sale of a
foreign investor's Units may be reduced by United States tax withholdings made
pursuant to applicable provisions of the Code.
FOREIGN INVESTORS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH REGARD TO THE
EFFECT OF BOTH THE UNITED STATES TAX LAWS AND FOREIGN LAWS ON AN INVESTMENT IN
THE PARTNERSHIP AND THE POTENTIAL THAT THE PARTNERSHIP WILL BE REQUIRED TO
WITHHOLD FEDERAL INCOME TAXES FROM AMOUNTS OTHERWISE PAYABLE TO FOREIGN
INVESTORS.
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PROPOSED TAX LEGISLATION AND REGULATORY PROPOSALS
Legislative proposals have been made which could significantly change the
federal income tax laws as they relate to an investment in the Partnership. It
is impossible at this time, however, to predict whether or in what form any such
legislation will be enacted. EACH PROSPECTIVE INVESTOR IS URGED TO CONSULT HIS
OWN TAX ADVISOR WITH RESPECT TO HIS OWN TAX SITUATION, THE EFFECT OF ANY
LEGISLATIVE, REGULATORY OR ADMINISTRATIVE DEVELOPMENTS OR PROPOSALS ON AN
INVESTMENT IN UNITS IN THE PARTNERSHIP, OR OTHER POTENTIAL CHANGES IN APPLICABLE
TAX LAWS.
STATE AND LOCAL TAXES
In addition to the federal income tax aspects described above, prospective
investors should consider potential state and local tax consequences of an
investment in the Partnership. This Prospectus makes no attempt to summarize the
state and local tax consequences to an investor in those states in which the
Partnership may own properties or carry on activities, and each investor is
urged to consult his own tax advisor on all matters relating to state and local
taxation, including the following: (i) whether the state in which he resides
will impose a tax upon his share of the taxable income of the Partnership, (ii)
whether an income tax or other return must also be filed in those states where
the Partnership will own properties, and (iii) whether he will be subject to
state income tax withholding in states where the Partnership will own
properties.
Because the Partnership will conduct its activities and own properties in
different taxing jurisdictions, an investment in the Partnership may impose upon
a Limited Partner the obligation to file annual tax returns in a number of
different states or localities, as well as the obligation to pay taxes to a
number of different states or localities. Additional costs incurred in having
to prepare various state and local tax returns, as well as the additional state
and local tax which may be payable, should be considered by prospective
investors in deciding whether to make an investment in the Partnership.
It should be noted that many states have implemented or are in the process
of implementing programs to require partnerships to withhold and pay state
income taxes owed by non-resident partners relating to income-producing
properties located in their states. Effective January 1, 1994, all partnerships
which own property or do business within the State of Georgia are subject to a
withholding tax in the amount of 4% of distributions paid to non-resident
partners receiving annual distributions of $1,000 or more. The new Georgia
withholding requirements apply to all cash distributions except distributions
constituting a return of capital and may have the effect of reducing the amount
of cash which the Partnership would otherwise be able to distribute to non-
resident Limited Partners receiving distributions from the Partnership. In
addition, the State of North Carolina has required certain of the Prior Wells
Public Programs to withhold and pay state taxes relating to income-producing
properties located in North Carolina. In the event that the Partnership is
required to withhold state taxes from cash distributions otherwise payable to
Limited Partners, the amount of the Net Cash From Operations otherwise payable
to such Limited Partners would likely be reduced. In addition, such collection
and filing requirements at the state level may result in increases in the
Partnership's administrative expenses which would likely have the effect of
reducing returns to the Limited Partners. (See "RISK FACTORS.")
EACH PROSPECTIVE PURCHASER OF UNITS IS URGED TO CONSULT WITH HIS OWN TAX
ADVISOR WITH RESPECT TO THE IMPACT OF APPLICABLE STATE AND LOCAL TAXES ON HIS
PROPOSED INVESTMENT IN THE PARTNERSHIP.
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SUMMARY OF PARTNERSHIP AGREEMENT
The Partnership is a Georgia limited partnership whose General Partners are
Leo F. Wells, III and Wells Partners, L.P., a Georgia limited partnership having
Wells Capital, Inc., a Georgia corporation, as its sole General Partner. (See
"MANAGEMENT.")
The rights and obligations of the Partners in the Partnership will be
governed by the Partnership Agreement, the form of which is set out in its
entirety as Exhibit "B" to this Prospectus. The Amended and Restated Agreement
of Limited Partnership of Wells Real Estate Fund X, L.P. will be executed and
become effective as of the effective date of this Prospectus, and the Amended
and Restated Agreement of Limited Partnership of Wells Real Estate Fund XI, L.P.
will be executed and become effective immediately upon the effective date of the
commencement of the offering of Units of Wells Real Estate Fund XI, L.P..
Prospective investors should study carefully the Partnership Agreement before
making any investment decision with regard to the Units. The following
statements are intended to supplement other statements in this Prospectus
concerning the Partnership Agreement and related matters, are intended to be a
summary only and, since they do not purport to be complete, are qualified in
their entirety by reference to the Partnership Agreement.
POWERS OF THE GENERAL PARTNERS
The General Partners have full, exclusive and complete authority and
discretion in the management and control of the business of the Partnership.
Limited Partners have no right or power to take part in the management of, or to
bind, the Partnership. (Articles XI and XVI.)
LIABILITIES OF THE LIMITED PARTNERS
The Partnership was organized as a limited partnership under the Georgia
Revised Uniform Limited Partnership Act ("GRULPA"). Investors whose
subscriptions are accepted by the General Partners will be admitted as Limited
Partners. Under GRULPA, Limited Partners have no personal liability for
Partnership debts or obligations in excess of their Capital Contributions.
OTHER ACTIVITIES OF THE GENERAL PARTNERS
The General Partners may engage in or possess interests in other business
ventures of every kind and description for their own account, including, without
limitation, the syndication, ownership or management of other real estate. They
shall incur no liability to the Partnership, or to the Limited Partners, as a
result of engaging in any other business or venture.
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS;
NONASSESSABILITY OF UNITS
Limited Partners are not permitted to participate in the management and
control of the business of the Partnership and may not transact any business in
the name of the Partnership. Pursuant to the Partnership Agreement, each
Limited Partner appoints the General Partners, with full power and substitution,
as his lawful attorneys-in-fact to act in his name, place and stead: (i) to
amend the Certificate of Limited Partnership and the Partnership Agreement,
including amendments necessary to properly reflect allocations of profits and
losses as may be required for tax purposes; and (ii) to take any further action
which the General Partners deem necessary or advisable in connection with the
foregoing.
Units acquired by Limited Partners pursuant to the Partnership Agreement
will be fully paid and nonassessable. (Section 8.5(d).) No Limited Partner has
the right to withdraw all or any portion of his Capital Contribution until the
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full and complete winding up and liquidation of the business of the Partnership,
except as otherwise provided by law. (Section 8.10(b).) No Limited Partner
will be liable for any debts or obligations of the Partnership in excess of his
Capital Contribution. (Section 16.3.)
VOTING RIGHTS OF THE LIMITED PARTNERS
Limited Partners may, with the affirmative vote of those holding more than
50% of the Units in the aggregate, take action on the following matters: (i) the
approval or disapproval of any sale, exchange or pledge of all or substantially
all of the Partnership's real properties; (ii) dissolution of the Partnership;
(iii) removal of a General Partner or any successor general partner; (iv)
election of a new General Partner upon the retirement, withdrawal or removal of
a General Partner or upon the death or the occurrence of another Event of
Withdrawal of a General Partner; (v) change in the business purpose or
investment objectives of the Partnership; and (vi) amendment to the Partnership
Agreement, except as to certain matters specified in Section 11.2(b) which the
General Partners alone may amend without a vote of the Limited Partners.
(Section 16.1.) In addition, Limited Partners holding a majority of the Units
have the right to authorize a proposed merger or consolidation of the
Partnership under certain circumstances. (Section 11.3(u).) Accordingly,
Limited Partners holding a majority of the Units may amend the Partnership
Agreement, change the business purpose or investment objectives of the
Partnership, remove a General Partner and authorize a merger or consolidation of
the Partnership. Except as otherwise provided in the Partnership Agreement in
connection with a "partnership roll-up" transaction as described
below, Limited Partners not voting with the majority on such transactions will
nonetheless be bound by the majority vote and will have no right to dissent from
the majority vote and obtain fair value for their Units. (See "RISK FACTORS.")
Notwithstanding the foregoing, the Partnership Agreement may not be amended
to change the limited liability of the Limited Partners without the vote or
consent of all Limited Partners or to diminish the rights or benefits to which
the General Partners or Limited Partners are entitled without the consent of the
Limited Partners holding a majority of the Units who would be adversely
effected, in the case of diminishing the rights or benefits of the Limited
Partners, or the majority vote of the General Partners, in the case of
diminishing the rights or benefits of the General Partners. (Section 16.2.)
Amendments to the Partnership Agreement receiving the requisite vote will
be executed by a General Partner on behalf of all Limited Partners acting
pursuant to the power of attorney contained in the Partnership Agreement.
(Section 19.1.)
MERGERS AND CONSOLIDATIONS
The Partnership Agreement prohibits the General Partners from initiating
any transaction wherein the Partnership is merged or consolidated with any other
partnership or corporation, which type of transaction is commonly referred to as
a "partnership roll-up," and further provides that the General Partners shall
not be authorized to merge or consolidate the Partnership with any other
partnership or corporation or to convert the Partnership into a real estate
investment trust, which is often referred to as an "REIT," unless Limited
Partners owning more than 50% of the Units consent in writing to such
transaction. (Section 11.3(u).)
In addition, the Partnership Agreement contains a further provision
prohibiting the General Partners from entering into any acquisition, merger,
conversion or consolidation unless the Partnership obtains a current appraisal
of the Partnership's assets by an independent appraiser and Limited Partners who
vote against or dissent from the proposal have the choice of: (a) accepting the
securities offered in the proposed roll-up; or (b) one of the following: (i)
remaining as Limited Partners in the Partnership and preserving their interests
in the Partnership on the same terms and conditions as existed previously, or
(ii) receiving cash in an amount equal to the Limited Partners' pro rata share
of the appraised value of the net assets of the Partnership. (Section 11.3(u).)
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SPECIAL PARTNERSHIP PROVISIONS
Leo F. Wells, III, who owns 100% of the issued and outstanding common stock
of Wells Capital, Inc. ("Wells Capital"), the sole general partner of Wells
Partners, L.P., has agreed that he will not sell or otherwise voluntarily
transfer or convey a majority or controlling interest in the outstanding common
stock of Wells Capital to any non-affiliated person or entity unless Limited
Partners owning more than 50% of the Units consent in writing to any such sale,
transfer or conveyance. (Section 17.1(a).)
The Partnership Agreement also prohibits the General Partners and their
Affiliates from receiving any rebates or give-ups or participating in any
reciprocal business arrangements which would circumvent the provisions of the
Partnership Agreement. (Section 12.7(a).)
REMOVAL OF GENERAL PARTNERS
The Partnership Agreement provides that a General Partner may be removed
and a new General Partner elected upon the written consent or affirmative vote
of Limited Partners owning more than 50% of the Units. (Section 17.1(d).) If a
General Partner is removed, the fair market value of the interest of the removed
General Partner in the Partnership will be determined by independent appraisers
and will be paid to him or it as provided in Section 20.4 of the Partnership
Agreement. Payment of this amount may be made by the delivery of a promissory
note of the Partnership for such fair market value payable in equal consecutive
annual installments over a period of not less than five years commencing on the
first anniversary of the date of such note. Such promissory note shall bear
interest at the rate of 9% per annum. Within 120 days after the determination of
the fair market value of the former General Partner's interest, the Partnership
may, with the consent of a majority in interest of the Limited Partners, sell
such interest to one or more persons who may be Affiliates of the remaining
General Partner or General Partners, and admit such person or persons to the
Partnership as substitute General Partners; provided, however, that the purchase
price to be paid to the Partnership for the Partnership interest of the former
General Partner shall not be less than its fair market value as determined by
the appraisal described above. Such substitute General Partner or Partners may
pay said purchase price in installments in the manner set forth above.
ASSIGNABILITY OF GENERAL PARTNERS' INTERESTS
With the consent of all other General Partners and Limited Partners holding
more than 50% of the Units, after providing 90 days written notice to the other
General Partners and Limited Partners, a General Partner may designate a
successor or additional general partner, in each case with such participation in
such General Partner's interest as such General Partner and such successor or
additional General Partner may agree upon, provided that the interests of the
Limited Partners are not adversely affected thereby. Generally, except in
connection with such a designation, no General Partner shall have the right to
retire or withdraw voluntarily from the Partnership or to sell, transfer or
assign his or its interest without the consent of the Limited Partners holding
more than 50% of the Units. (Section 17.1.)
BOOKS AND RECORDS; RIGHTS TO INFORMATION; ANNUAL AUDITS
The General Partners are required to maintain at the Partnership's
principal office full and accurate books and records for the Partnership. All
Limited Partners have the right to inspect, examine and obtain copies at their
reasonable cost of such books and records at all reasonable times. In addition,
an alphabetical list of the names, addresses and business telephone numbers of
all Limited Partners, along with the number of Units owned by each of them,
shall be available for inspection and copying by the Limited Partners or their
designated representatives. (Section 15.1.) Annual audits of the Partnership's
affairs will be conducted by such firm of independent certified public
accountants as may from time to time be engaged by the Partnership. (Section
15.2(b).)
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MEETINGS OF LIMITED PARTNERS
There will generally be no annual or periodic meetings of Limited Partners.
However, the General Partners shall be required to call a meeting of the Limited
Partners upon the written request of Limited Partners holding 10% or more of the
outstanding Units. In such event, a detailed statement of the action proposed,
including a verbatim statement of the wording of any resolution proposed for
adoption by the Limited Partners and any proposed amendment to the Partnership
Agreement, shall be included with the notice of the meeting. (Section 16.4.)
TRANSFERABILITY OF UNITS
There are a number of restrictions on the transferability of Units. Except
for intra-family transfers and transfers by gift, inheritance or family
dissolution, no Units may be transferred unless the proposed transferee meets
the minimum suitability standards set forth in this Prospectus. Investors
transferring less than all of their Units must transfer a number of Units such
that, after the transfer, both the transferor and transferee shall own no less
than the minimum number of Units required to be purchased by an investor, unless
such transfer is made on behalf of a Retirement Plan, or by gift, inheritance,
intra-family transfer, family dissolution or to an affiliate. Payment of a
transfer fee in an amount sufficient to cover transfer costs, as established by
the General Partners, is a condition to effectiveness of a transfer. All
transfers of Units must be pursuant to documentation satisfactory in form and
substance to the General Partners, including, without limitation, confirmation
by the transferee that the transferee has been informed of all pertinent facts
relating to the liquidity and marketability of the Units. Additional
restrictions on transfers of Units are imposed under the securities laws of
various states upon the residents of such states. Further, no Unit may be sold,
assigned or exchanged if the sale of such Unit, when added to the total of
all other sales or exchanges of Units within the period of 12 consecutive months
prior to the proposed date of sale or exchange, would, in the opinion of counsel
for the Partnership, result in the termination of the Partnership under Section
708 of the Code (dealing with transfers of 50% or more of the outstanding
interests of a partnership) unless the Partnership and the transferring holder
shall have received a ruling from the IRS that the proposed sale or exchange
will not cause such a termination. (Section 17.3(a).)
In addition to the foregoing restrictions, the Partnership Agreement
contains substantial restrictions on the transfer or assignment of Units in
order to prevent the Partnership from being deemed a "publicly traded
partnership." These restrictions are those described in the Section 7704
Regulations, the most significant of which prohibits the transfer during any
taxable year of more than 2% of the total interest in the Partnership's capital
or profits excluding transfers by gift, transfers at death, transfers between
family members, distributions from a qualified retirement plan and block
transfers, which are defined as transfers by a partner during any 30 calendar
day period of partnership interests representing more than 2% of the total
interest in a partnership's capital or profits. Further, the Partnership
Agreement provides that any transfer or assignment of Units which the General
Partners believe will cause the Partnership to be treated as a publicly traded
partnership will be void ab initio and will not be recognized by the
Partnership. (See "FEDERAL INCOME TAX CONSEQUENCES - Publicly Traded
Partnerships" and Section 17.3(g) of the Partnership Agreement.)
Transferees of Units are not eligible to participate in the Partnership's
Distribution Reinvestment Plan with respect to investment of their distributions
from the Partnership in additional Units of the same Partnership. However, such
transferees are not disqualified from participation in the Distribution
Reinvestment Plan with respect to investment of their distributions from the
Partnership in Units issued by subsequent limited partnerships sponsored by the
General Partners, if such Plan is established and the transferee meets the
Plan's requirements for participation. (See "Distribution Reinvestment Plan.")
An assignee of Units shall not become a substituted Limited Partner in
place of his assignor unless the assignee shall have expressly agreed to become
a party to the Partnership Agreement. (Section 17.4.) An assignee of Units who
does not become a substituted Limited Partner shall be entitled to receive
distributions attributable to the Units properly transferred to him (Section
17.5), but shall not have any of the other rights of a Limited Partner,
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including the right to vote as a Limited Partner and the right to inspect and
copy the Partnership's books. Assignments of Units are restricted similarly to
transfers of Units.
PARTNERSHIP BORROWING
The General Partners are prohibited from borrowing to finance the
acquisition, construction or ownership of the Partnership's properties.
However, the Partnership may incur debt for the following limited purposes:
(a) in the event of unforseen circumstances in which the Partnership's working
capital reserves and other cash resources available to the Partnership are
insufficient for operating purposes; and (b) in order to finance property
improvements, when the General Partners deem such improvements to be necessary
or appropriate to protect the capital previously invested in the properties, to
protect the value of the Partnership's investment in a particular property or to
make a particular property more attractive for sale or lease. The aggregate
amount of Partnership borrowings at any given time may not exceed 25% of the
total purchase price of Partnership Properties. (See "INVESTMENT OBJECTIVES AND
CRITERIA - Borrowing Policies" and Section 11.3(e) of the Partnership
Agreement.)
REPURCHASE OF UNITS
After a period of one year following the termination of the Offering of
Units, the Partnership may establish a Repurchase Reserve of up to 5% of Cash
Flow in any year, subject to the various restrictions and limitations set forth
below. (Sections 8.11 and 11.3(h).) The establishment of the Repurchase Reserve
is in the sole discretion of the General Partners, and if established, the
Repurchase Reserve may be terminated at any time in the sole discretion of the
General Partners. The Partnership Agreement provides that under certain
circumstances the Partnership may, in the sole discretion of the General
Partners and upon the request of a Limited Partner, repurchase the Units held by
such Limited Partner, provided that no such repurchase may be made if either (i)
following the repurchase such Limited Partner's interests would not be fully
redeemed but such Limited Partner would hold less than the minimum investment in
the Offering (100 Units) or (ii) such repurchase would impair the capital or
operations of the Partnership. In no event will a Limited Partner be permitted
to have his Units repurchased prior to termination of the Offering. Units owned
by the General Partners or their Affiliates may not be repurchased by the
Partnership. Further, in order to prevent the classification of the Partnership
as an investment company under the Investment Company Act of 1940 and to prevent
the Partnership from being deemed a "publicly traded partnership" under the
Code, the opportunity of Limited Partners to have their Units repurchased has
been substantially restricted under the Partnership Agreement.
A Limited Partner wishing to have Units repurchased must mail or deliver a
written request to the Partnership, executed by his or its trustee or authorized
agent in the case of qualified profit sharing, pension and other retirement
trusts, indicating his or its desire to have such Units repurchased. Such
requests will be considered by the General Partners in the order in which they
are received. Except for the fact that the Repurchase Reserve will not be
established, if at all, until at least one year after the termination of the
Offering, Limited Partners are not required to hold Units for any specified
period of time prior to making such a redemption request.
In the event that the General Partners decide to honor a request, they will
notify the requesting Limited Partner in writing of such fact, of the purchase
price for the repurchased Units and of the effective date of the repurchase
transaction (which will be not less than 60 nor more than 75 calendar days
following the receipt of the written request by the Partnership) and will
forward to such Limited Partner the documents necessary to effect such
repurchase transaction. The purchase price per Unit will be equal to 85% of the
fair market value of the Units until three years from the effective date of the
Registration Statement and 90% of the fair market value of the Units thereafter.
Fair market value shall be determined by the General Partners based upon an
estimate of the amount the Limited Partners would receive if the Partnership's
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real estate investments were sold for their estimated value and if such proceeds
were distributed in a liquidation of the Partnership. For the first three full
fiscal years following the year in which the Offering of Units terminates, the
fair market value of the Units will be deemed to be their initial purchase price
of $10.00. Thereafter, the fair market value will be based on annual appraisals
of Partnership Properties performed by the General Partners and not by an
independent appraiser. However, the General Partners will obtain an opinion of
an independent third party annually that their estimate of the fair market value
of each Unit for such year is reasonable and was prepared in accordance with
appropriate methods for valuing real estate. Fully executed documents must be
returned to the Partnership at least 30 days prior to the effective date. The
Partnership will, as soon as possible following return of such documents from
the Limited Partner, repurchase the Units of the Limited Partner, provided, that
if insufficient amounts are then available in the Repurchase Reserve to
repurchase all of such Units, only a portion of such Units will be repurchased;
and provided further, that the Partnership may not repurchase less than all of
the Units of such Limited Partner if as a result thereof the Limited Partner
would own less than the minimum investment in the Offering (100 Units). Units
repurchased by the Partnership will be canceled. In the event that insufficient
funds are available in the Repurchase Reserve to repurchase all of such Units,
the Limited Partner will be deemed to have priority for subsequent Partnership
repurchases over other Limited Partners who subsequently request repurchases.
In addition to the other restrictions described herein, the Partnership
Agreement provides that (i) repurchases out of the Repurchase Reserve may not
exceed in the aggregate more than 2% of total Gross Offering Proceeds throughout
the life of the Partnership excluding repurchases of Units relating to the death
or legal incapacity of the owner or a substantial reduction in the owner's net
worth or income (defined to mean an involuntary loss of not less than 50% in
income or net worth during the year in which such repurchase occurs), and (ii)
not more than 2% of the outstanding Units may be purchased in any year, provided
in each case that the Partnership has sufficient cash to make the purchase and
that the purchase will not be in violation of any other applicable legal
requirements. (Section 8.11(k).) Due to the various restrictions and limitations
relating to the potential establishment of a Repurchase Reserve by the
Partnership, in considering an investment in the Partnership, prospective
investors should not assume that they will be able to resell their Units to the
Partnership. (See "RISK FACTORS.") In addition, prospective investors should
consider that a resale of their Units to the Partnership may result in adverse
tax consequences to the Limited Partner. (See "FEDERAL INCOME TAX CONSEQUENCES -
Sales of Limited Partnership Units.")
DISTRIBUTION REINVESTMENT PLAN
It is anticipated that a Distribution Reinvestment Plan (the "Distribution
Reinvestment Plan") will be available which will be designed to enable Limited
Partners holding Class A Status Units to have their distributions of Net Cash
From Operations from the Partnership invested in additional Units of the
Partnership during the Offering or in units issued by subsequent limited
partnerships sponsored by the General Partners or their Affiliates which have
substantially identical investment objectives as the Partnership. (Section
8.15.) In addition, in the event the Distribution Reinvestment Plan is
effected, it is anticipated that Limited Partners in Wells Fund III and Limited
Partners holding Class A Units (or Class A Status Units) in Wells Fund IV, Wells
Fund V, Wells Fund VI, Wells Fund VII, Wells Fund VIII and Wells Fund IX will
have the opportunity to have their distributions of Net Cash From Operations
from Wells Fund III, Wells Fund IV, Wells Fund V, Wells Fund VI, Wells Fund VII,
Wells Fund VIII and Wells Fund IX invested in Units in the Partnership during
the Offering period. Units issued by Wells Real Estate Fund X, L.P. pursuant to
the Distribution Reinvestment Plan will be available only until the termination
of its Offering, and Units issued by Wells Real Estate Fund XI, L.P. pursuant to
the Distribution Reinvestment Plan will be available only until the expiration
of its Offering. The General Partners in their discretion may elect not to
provide a Distribution Reinvestment Plan or to terminate any existing
Distribution Reinvestment Plan. Limited Partners will not be eligible to
participate in the Distribution Reinvestment Plan with respect to Class B Status
Units since no distributions of Net Cash From Operations are payable with
respect to Class B Status Units. Limited Partners who acquire their Units
outside the Offering (i.e., transferees of Units) may not participate in the
Distribution Reinvestment Plan with respect to Units in the Partnership in which
they are Limited Partners, but may have their distributions from the Partnership
invested in Units of a subsequent limited partnership sponsored by the General
Partners or their Affiliates if such a distribution reinvestment plan is made
available by the General Partners in their discretion.
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Limited Partners participating in the Distribution Reinvestment Plan may
purchase fractional Units and shall not be subject to minimum investment
requirements, although the General Partners may, at their option, impose certain
minimum investment requirements and other restrictions with respect to purchases
of Units pursuant to the Distribution Reinvestment Plan. Limited Partners
electing to participate in the Distribution Reinvestment Plan will receive with
each confirmation a notice advising such Limited Partner that he is entitled to
change his election with respect to subsequent distributions by returning a
notice to the Partnership. If sufficient Units are not available for purchase
pursuant to the Distribution Reinvestment Plan, the Partnership will remit all
excess distributions of Net Cash From Operations to the participants.
Net Cash From Operations may only be reinvested in units issued by
subsequent limited partnerships sponsored by the General Partners or their
Affiliates if: (i) prior to the time of such reinvestment, the Limited Partner
has received the final prospectus (and any supplements thereto) offering
interests in the subsequent limited partnership and such prospectus allows
investment pursuant to a distribution reinvestment plan; (ii) a registration
statement covering the interests in the subsequent limited partnership has been
declared effective under the Securities Act of 1933; (iii) the offer and sale of
such interests is qualified for sale under the applicable state securities laws;
(iv) the participant executes the subscription agreement included with the
prospectus for the subsequent limited partnership; (v) the participant qualifies
under applicable investor suitability standards as contained in the prospectus
for the subsequent limited partnership; and (vi) the subsequent limited
partnership has substantially identical investment objectives as the
Partnership.
EACH LIMITED PARTNER ELECTING TO PARTICIPATE IN THE DISTRIBUTION
REINVESTMENT PLAN AGREES THAT IF AT ANY TIME HE FAILS TO MEET THE APPLICABLE
REAL ESTATE LIMITED PARTNERSHIP INVESTOR SUITABILITY STANDARDS OR CANNOT MAKE
THE OTHER INVESTOR REPRESENTATIONS OR WARRANTIES SET FORTH IN THE THEN CURRENT
REAL ESTATE LIMITED PARTNERSHIP PROSPECTUS, THE SUBSCRIPTION AGREEMENT OR
PARTNERSHIP AGREEMENT RELATING THERETO, HE WILL PROMPTLY NOTIFY THE GENERAL
PARTNERS IN WRITING.
Subscribers should note that affirmative action must be taken to change or
withdraw from participation in the Distribution Reinvestment Plan. Change in or
withdrawal from participation in the Distribution Reinvestment Plan shall be
effective only with respect to distributions made more than 30 days following
receipt by the General Partners of written notice of such change or withdrawal.
In the event a Limited Partner transfers his Units, such transfer shall
terminate the Limited Partner's participation in the Distribution Reinvestment
Plan as of the first day of the quarter in which such transfer is effective.
Selling Commissions not to exceed 8% and dealer management fees not to
exceed 2% may be paid by the Partnership with respect to Units purchased
pursuant to the Distribution Reinvestment Plan. Payment of selling commissions
may be subject to certain minimum levels of additional investment. Each holder
of Units is permitted to identify, change or eliminate the name of his account
executive at a participating dealer. Identification of such account executive
may be retained, changed or eliminated for subsequent distributions. In the
event that no account executive is identified at any time during the Offering,
or in the event that the account executive is not employed by a broker-dealer
having a valid selling agreement with the Dealer Manager, no selling commission
will be paid with respect to distributions which are then being reinvested, and
the Partnership will retain for additional investments in real estate any
amounts otherwise payable as selling commissions. All holders of Units, based
on the number of Units owned by each of them, will receive the benefit of
savings realized by the Partnership from investors who do not identify account
executives. Accordingly, the economic benefit to investors who do not identify
account executives will be diluted and shared with all holders, including those
for whose contributions the Partnership has paid selling commissions.
Unless the General Partners are otherwise notified in writing, Units issued
pursuant to the Distribution Reinvestment Plan will initially be treated as
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Class A Status Units. Units purchased pursuant to the Distribution Reinvestment
Plan will entitle participants to the same rights and to be treated in the same
manner as Units issued pursuant to the Offering.
Following the reinvestment, each participant will be sent a statement and
accounting showing the distributions received, the number and price of Units
purchased, and the total amount of Units acquired under the Distribution
Reinvestment Plan. Taxable participants will incur tax liability for
Partnership income allocated to them even though they have elected not to
receive their distributions in cash but rather to have their distributions held
in their account under the Distribution Reinvestment Plan. (See "RISK FACTORS -
Federal Income Tax Risks - Risk of Taxable Income Without Cash Distributions.")
The Partnership reserves the right to amend any aspect of the Distribution
Reinvestment Plan effective with respect to any distribution paid subsequent to
the notice, provided that the notice is sent to participants in the Distribution
Reinvestment Plan at least ten days before the record date for a distribution.
The Partnership also reserves the right to terminate the Distribution
Reinvestment Plan for any reason at any time, by sending written notice of
termination to all participants.
Nothing contained herein shall be construed as obligating the General
Partners or their Affiliates to continue to offer units in subsequent real
estate limited partnerships or to include a distribution reinvestment plan as
part of the offering of such partnerships or to permit reinvestment of
distributions therein.
PROXY TO LIQUIDATE
At any time commencing eight years after the termination of the Offering,
if the General Partners receive written requests from Limited Partners holding
10% or more of the outstanding Units directing that the General Partners
formally proxy the Limited Partners to determine whether the assets of the
Partnership should be liquidated (the "Proxy to Liquidate"), the General
Partners will send a Proxy to Liquidate to each Limited Partner. The General
Partners shall not be required to send Proxies to Liquidate to the Limited
Partners more frequently than once during every two year period. If the Proxy
to Liquidate results in Limited Partners owing more than 50% of the Units
(without regard to Units owned or otherwise controlled by the General Partners)
voting in favor of a liquidation of the Partnership, the assets of the
Partnership will be fully liquidated within 30 months from the close of the 45-
day deadline applicable to the Proxy to Liquidate. (Section 20.2.)
DISSOLUTION AND TERMINATION
The Partnership is to continue until December 31, 2026, but may be
dissolved earlier as provided in the Partnership Agreement or by law. (Article
VI.) The Partnership will also be dissolved upon: (a) the decision by holders
of more than 50% of the Units to dissolve and terminate the Partnership; (b) the
retirement or withdrawal of a General Partner unless within 90 days from the
date of such event, (i) the remaining General Partner, if any, elects to
continue the business of the Partnership, or (ii) if there is no remaining
General Partner, a majority in interest of the Limited Partners elect to
continue the business of the Partnership; (c) the removal of a General Partner
unless within 90 days from the date of such removal, (i) the remaining General
Partner, if any, elects to continue the business of the Partnership, or (ii) if
there is no remaining General Partner, a majority in interest of the Limited
Partners elect to continue the business of the Partnership; (d) the sale or
disposition of all interests in real property and other assets of the
Partnership; (e) the effective date of the occurrence of an Event of Withdrawal
of the last remaining General Partner unless, within 120 days from such event, a
majority in interest of the Limited Partners elect to continue the business of
the Partnership; or (f) the happening of any other event causing the dissolution
of the Partnership under the laws of Georgia. (Section 20.1.) However, the
retirement or withdrawal of a General Partner will not dissolve the Partnership
if any remaining General Partner or General Partners, within 90 days of the date
of such event, elect to continue the business of the Partnership, or in the
event that there is no remaining General Partner within 120 days, a majority in
interest of the Limited Partners elect to continue the business of the
Partnership and elect a successor General Partner or General Partners. (Section
20.3.)
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In addition to the foregoing events, the General Partners may also
terminate the Offering, compel a termination and dissolution of the Partnership,
or restructure the Partnership's affairs, upon notice to all Limited Partners
but without the consent of any Limited Partner, if upon the advice of counsel to
the Partnership, either (a) the Partnership's assets constitute "Plan Assets,"
as such term is defined for purposes of ERISA, or (b) any of the transactions
contemplated in the Partnership Agreement constitute "prohibited transactions"
under ERISA.
In the event the Partnership is dissolved, the assets of the Partnership
shall be converted to cash. The General Partners shall be given a reasonable
amount of time to collect any notes receivable with respect to the sale of
Partnership assets and to collect any other outstanding debts. All cash on hand
shall be distributed first to creditors to satisfy debts and liabilities of the
Partnership other than loans or advances made by Partners to the Partnership,
including the establishment of reserves deemed reasonably necessary to satisfy
contingent or unforeseen liabilities or obligations of the Partnership. Any
remaining cash will then be used to repay loans or advances made by any of the
Partners to the Partnership and to pay any fees due the General Partners. The
balance, if any, shall be distributed among the Partners in accordance with the
positive balance in their Capital Accounts as of the date of distribution. Upon
completion of the foregoing distributions, the Partnership shall be terminated.
(Section 9.3.)
DISTRIBUTIONS AND ALLOCATIONS
DISTRIBUTIONS OF NET CASH FROM OPERATIONS
Net Cash From Operations (defined in the Partnership Agreement to mean
generally the Partnership's cash flow from operations, after payment of all
operating expenses and adjustments for reserves), if any, will be distributed in
each year as follows and in the following priority:
(i) First, to Limited Partners holding Class A Status Units on a per
Unit basis until they have received a 10% annual return on their Net Capital
Contributions (defined in the Partnership Agreement to mean generally the amount
of cash contributed to the Partnership reduced by prior distributions of net
proceeds from any sale or exchange of Partnership Properties);
(ii) Then, to the General Partners until they have received an amount
equal to 10% of the total amount thus far distributed; and
(iii) Then, 90% to Limited Partners holding Class A Status Units and 10%
to the General Partners.
Notwithstanding the foregoing, Limited Partners holding Class A Status
Units who have purchased Units pursuant to the Deferred Commission Option shall
for a period of seven years after termination of the Offering have deducted and
withheld from distributions of Net Cash From Operations otherwise payable to
such Limited Partners an annual amount equal to $0.10 per Unit purchased
pursuant to the Deferred Commission Option, which amounts shall instead be used
by the Partnership to pay deferred commissions due with respect to such Units.
(See "PLAN OF DISTRIBUTION.")
No distributions of Net Cash From Operations shall be made out of
Capital Contributions, and no Net Cash From Operations will be distributed with
respect to Class B Status Units.
The Partnership Agreement prohibits the General Partners from making
any distributions of Net Cash From Operations out of Capital Contributions.
Distributions of Net Cash From Operations will be allocated among the Limited
Partners on a daily basis based on the ratio which the number of Units owned by
each Limited Partner as of the last day of the preceding quarter bears to the
total number of Units outstanding. A transferee of Units will be deemed the
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owner of such Units as of the first day of the quarter following the quarter
during which the transfer occurred and, therefore, will not participate in
distributions made with respect to the quarter in which such transfer occurs.
It is anticipated that distributions of Net Cash From Operations will be made on
a quarterly basis, unless Limited Partners elect to receive distributions on a
monthly basis. (See "Monthly Distributions" below.)
DISTRIBUTION OF NET SALE PROCEEDS
Nonliquidating Net Sale Proceeds (defined in the Partnership Agreement
to mean generally the net proceeds from any sale or exchange of Partnership
Properties) will be distributed generally as follows and in the following
priority:
(i) First, to Limited Partners holding Units which have at any time
been treated as Class B Status Units on a per Unit basis until each such Limited
Partner has received an amount which, when added to any Net Cash From Operations
previously distributed to such Limited Partner, will equal the amount of Net
Cash From Operations previously paid or deemed paid to Limited Partners holding
Units which at all times have been treated as Class A Status Units;
(ii) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has received or has been deemed to have received an amount equal
to his Net Capital Contribution;
(iii) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has received or has been deemed to have received aggregate
distributions equal to a 10% per annum cumulative (noncompounded) return on his
Net Capital Contribution;
(iv) Then, to Limited Partners on a per Unit basis until each Limited
Partner has received or has been deemed to have received aggregate distributions
equal to his Preferential Limited Partner Return (defined as the sum of (a) a
10% per annum cumulative return on his Net Capital Contribution with respect to
such Unit for all periods during which such Unit was treated as a Class A Status
Unit, and (b) a 15% per annum cumulative return on his Net Capital Contribution
with respect to such Unit for all periods during which such Unit was treated as
a Class B Status Unit);
(v) Then, to the General Partners until they have received an amount equal
to their Capital Contributions;
(vi) Then, if and only in the event that Limited Partners have received any
Excess Limited Partner Distributions, to the General Partners until they have
received an amount equal to 20% of the sum of any such Excess Limited Partner
Distributions plus the amount distributed to the General Partners pursuant to
this provision; and
(vii) Then, 80% to the Limited Partners on a per Unit basis and 20%
to the General Partners; provided, however, that in no event will the General
Partners receive in the aggregate in excess of the NASAA Guidelines Resale
Proceeds Maximum Amount. It is the intent of the foregoing limitation that the
General Partners receive no more of the net proceeds from the sale or financing
of Partnership Properties than is allowed pursuant to applicable provisions of
the NASAA Guidelines. Any such excess amounts otherwise distributable to the
General Partners will instead be reallocated and distributed to the Limited
Partners on a per Unit basis.
Potential investors should be aware that their share of distributions
of Sale Proceeds may be less than their Net Capital Contributions unless the
Partnership's aggregate Sale Proceeds are sufficient to fund the sum of (i) the
required payments to each Limited Partner holding Units which have been treated
as Class B Status Units in an amount which, when added to any Net Cash From
Operations previously distributed to such Limited Partner, will equal the amount
of Net Cash From Operations previously paid to Limited Partners holding Units
which at all times were treated as Class A Status Units, plus (ii) the amount
required to repay aggregate Net Capital Contributions to all Limited Partners.
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Notwithstanding the foregoing, in the event the Partnership sells any
Partnership Property at a net sale price which is less than the purchase price
originally paid for such property, prior to the foregoing distribution of
Nonliquidating Net Sale Proceeds, Limited Partners holding Class A Status Units
shall first receive distributions of Nonliquidating Net Sale Proceeds in an
amount equal to the following: the excess of the original purchase price of the
Partnership Property sold over the sale price of such Partnership Property, but
not greater than the amount of special allocations of deductions for
depreciation, amortization and cost recovery with respect to such Partnership
Property previously made to Limited Partners holding Class B Status Units. The
General Partners have included the foregoing provision in the Partnership
Agreement for distributions of Nonliquidating Net Sale Proceeds in favor of
Limited Partners holding Class A Status Units in order to ensure that Limited
Partners holding Class B Status Units will bear the actual economic risk of loss
in the event a Partnership Property is sold at a loss, in order to support the
special allocation of depreciation, amortization and cost recovery deductions to
such Limited Partners.
LIQUIDATING DISTRIBUTIONS
Liquidating Distributions (defined in the Partnership Agreement to mean
generally the distribution of the net proceeds from a dissolution and
termination of the Partnership or from the sale of substantially all of the last
remaining assets of the Partnership) will be distributed among the General
Partners and the Limited Partners in accordance with each such Partner's
positive Capital Account balance, after the allocation of Gain on Sale and other
appropriate Capital Account adjustments.
RETURN OF UNUSED CAPITAL CONTRIBUTIONS
Funds not expended, committed or reserved for working capital purposes
by the later of the second anniversary of the effective date of the Registration
Statement or one year after the termination of the Offering will be returned to
Limited Partners, without reduction for Front-End Fees or Selling Commissions
relating to such uncommitted funds and without interest thereon. For purposes
of the foregoing, funds will be deemed to have been committed and will not be
returned to the extent that such funds would be required to complete the
acquisition of Partnership Properties with respect to which contracts,
agreements in principle or letters of understanding have been executed,
regardless of whether such property is actually acquired. Any funds reserved in
order to make contingent payments in connection with the acquisition of any
Partnership Property will be treated as committed whether or not any such
payments are actually made.
PARTNERSHIP ALLOCATIONS
Since the Partnership does not intend to borrow funds, no Partner's
Capital Account will be allocated items that will cause the Capital Account to
have a deficit balance. This means that, although holders of Class B Status
Units may receive allocations of certain deductions over the life of the
Partnership equal to their Capital Contributions, they cannot be allocated
additional deductions.
NET LOSS. Net Loss (defined in the Partnership Agreement to mean
generally the net losses of the Partnership for federal income tax purposes, but
excluding deductions for depreciation, amortization and cost recovery, which
will be allocated separately as set forth below) for each fiscal year shall be
allocated as follows:
(i) 99% to Limited Partners holding Class B Status Units and 1% to the
General Partners until the Capital Accounts of all such Partners have been
reduced to zero;
(ii) Then, to any Partner having a positive balance in his Capital
Account in an amount not to exceed such positive balance as of the last day of
the fiscal year; and
(iii) Then, 100% to the General Partners.
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Notwithstanding the foregoing, in any fiscal year with respect to
which the Partnership incurs an aggregate Net Loss, interest income of the
Partnership shall be specially allocated to Limited Partners holding Class A
Status Units and the Net Loss of the Partnership for such fiscal year shall be
determined without regard to such interest income.
All deductions for depreciation, amortization and cost recovery for each
fiscal year shall be allocated as follows:
(i) 99% to Limited Partners holding Class B Status Units and 1% to the
General Partners until the Capital Accounts of all such Partners have been
reduced to zero;
(ii) Then, to any Partner having a positive balance in his Capital
Account in an amount not to exceed such positive balance as of the last day of
the fiscal year; and
(iii) Then, 100% to the General Partners.
NET INCOME. Net Income (defined in the Partnership Agreement to mean
generally the net income of the Partnership for federal income tax purposes,
including any income exempt from tax, but excluding all deductions for
depreciation, amortization and cost recovery and Gain on Sale) for each fiscal
year shall be allocated as follows:
(i) To Limited Partners holding Class A Status Units and to the
General Partners in the same proportion as and to the extent that Net Cash From
Operations is distributed or deemed distributed; and
(ii) To the extent Net Income exceeds Net Cash From Operations with
respect to such fiscal year, such excess Net Income shall be allocated 99% to
Limited Partners holding Class A Status Units and 1% to the General Partners.
GAIN ON SALE. Gain on Sale (defined in the Partnership Agreement to
mean generally the taxable income or gain from the sale or exchange of
Partnership Properties) for each fiscal year shall be allocated as follows:
(i) First, pursuant to the qualified income offset provision described
below;
(ii) Then, to Partners having negative Capital Accounts until all
negative Capital Accounts have been restored to zero;
(iii) Then, to Limited Partners holding Units which at any time have
been treated as Class B Status Units, in amounts equal to the deductions for
depreciation, amortization and cost recovery previously allocated to them with
respect to the specific Partnership Property, the sale or other disposition of
which resulted in Gain on Sale being allocated, but not in excess of the amount
of Gain on Sale recognized by the Partnership pursuant to the sale or other
disposition of said Partnership Property;
(iv) Then, to the Limited Partners in amounts equal to the deductions
for depreciation, amortization and cost recovery previously allocated to said
Limited Partners with respect to the specific Partnership Property, the sale or
other disposition of which resulted in Gain on Sale being allocated;
(v) Then, to Limited Partners holding Units which at any time have
been treated as Class B Status Units on a per Unit basis until each such Limited
Partner has received an amount which, when added to any Net Cash From Operations
previously distributed to such Limited Partner, will equal the amount of Net
Cash From Operations previously paid to Limited Partners holding Units which at
all times have been treated as Class A Status Units;
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(vi) Then, to Limited Partners on a per Unit basis in amounts equal to
the excess of each Limited Partner's Net Capital Contribution over all prior
distributions to such Limited Partner of net proceeds from the sale of
Partnership Properties;
(vii) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has been allocated an amount equal to the excess of a 10%
cumulative (noncompounded) return on his Net Capital Contribution over prior
distributions to such Limited Partner of Net Cash From Operations;
(viii) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has been allocated an aggregate amount equal to the excess of
his Preferential Limited Partner Return over prior distributions to such Limited
Partner of Net Cash From Operations;
(ix) Then, to the General Partners in an amount equal to their Capital
Contributions;
(x) Then if and only to the extent that Limited Partners have received any
Excess Limited Partner Distributions, to the General Partners until the General
Partners have been allocated Gain on Sale equal to 20% of the sum of any such
Excess Limited Partner Distributions plus any Gain on Sale allocated to the
General Partners pursuant to this provision; and
(xi) Then, 80% to the Limited Partners and 20% to the General
Partners; provided, however, that in no event will the General Partners be
allocated Gain on Sale which would result in distributions to the General
Partners in excess of the NASAA Guidelines Resale Proceeds Maximum Amount. Any
such excess allocations of Gain on Sale will instead be reallocated to the
Limited Partners on a per Unit basis.
The Partnership Agreement contains a "qualified income offset"
provision which provides that in the event that any Partner receives an
adjustment, allocation or distribution of certain items which causes a deficit
or negative balance in such Partner's Capital Account, such Partner will be
allocated items of income or gain (consisting of a pro rata portion of each item
of Partnership income, including gross income, and gain for such year) in an
amount and manner sufficient to eliminate such deficit balance as quickly as
possible. The intent of the foregoing provision is to prohibit allocations of
losses or distributions of cash to a Limited Partner which would cause his
Capital Account to become negative (which would occur in the event that the
aggregate amount of losses allocated and cash distributed to such Limited
Partner exceeded the sum of his Capital Contributions plus any income allocated
to him) or, in the event such allocation or distribution did cause his Capital
Account to become negative, such Limited Partner would be allocated income or
gain in an amount necessary to bring his Capital Account back to zero. (See
"FEDERAL INCOME TAX CONSEQUENCES - Allocations of Profit and Loss.")
THE QUALIFIED INCOME OFFSET PROVISION MAY RESULT IN INCOME BEING
SPECIALLY ALLOCATED TO LIMITED PARTNERS EVEN IN A FISCAL YEAR WHEN THE
PARTNERSHIP HAS A NET LOSS FROM OPERATIONS OR FROM THE SALE OF PROPERTY.
Income, losses and distributions of cash relating to Units which are
acquired directly from the Partnership during the Offering will be allocated
among the Limited Partners on a pro rata basis based on the number of days such
Units have been owned by such Limited Partner.
MONTHLY DISTRIBUTIONS
Limited Partners holding Class A Status Units may, at their option,
elect to receive distributions of Net Cash From Operations, if any, on a monthly
basis. This program is called the Monthly Distribution Option (the "MDO"). It
should be understood, however, that Limited Partners electing the MDO will in
all likelihood receive lower distributions per Unit, on an annual basis, than
Limited Partners receiving their distributions on a quarterly basis due to the
fact that income received by the Partnership during the early portion of a
quarter will be invested and will earn interest until distribution shortly after
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the end of the quarter. This compounding effect will be available to Limited
Partners selecting the MDO to a lesser degree due to the greater frequency of
their distributions.
Limited Partners holding Class A Status Units who elect the MDO will
begin receiving their distributions on a monthly basis with respect to the
calendar quarter following the calendar quarter in which the General Partners
receive the Limited Partner's written election along with a check for the MDO
fee, described below. Monthly distributions will be paid to the Limited Partner
during the month following the month to which the distribution is attributable.
For example, if a Limited Partner elects the MDO during the first calendar
quarter of a year, his election is effective at the beginning of the second
calendar quarter (i.e., April 1). Accordingly, the Limited Partner would
receive a distribution, if at all, for the first calendar quarter of the year,
and beginning in April, the Limited Partner electing the MDO would receive
monthly distributions for the remainder of the year, with the first monthly
distribution being paid during the month of May.
There is an annual fee of $20 per Limited Partner electing the MDO.
This annual fee is designed to cover additional administrative expenses, postage
and handling costs associated with more frequent distributions and will
in no event result in any additional compensation to the General Partners or
their Affiliates. In the event the actual administrative expenses, postage and
handling costs are less than $20 per Limited Partner per year, which is not
anticipated, any such savings will be reimbursed to Limited Partners electing
the MDO. The first fee payment is due at the time of the initial election, and
each subsequent fee payment is due by each December 31. Each Limited Partner
electing the MDO will receive a bill for the annual fee in conjunction with his
November distribution. Limited Partners may elect to have the Partnership
deduct subsequent annual MDO fees from the distributions.
A Limited Partner holding Class A Status Units may withdraw from the
MDO by either notifying the General Partners in writing or by simply failing to
pay the annual fee on a timely basis. A Limited Partner will then begin to
receive his distributions on a quarterly basis at the beginning of the following
calendar year. If payment is not received by the due date, then the MDO with
respect to that Limited Partner is canceled. To reinstate the MDO, the Limited
Partner may make his $20 payment, and the MDO will again be effective at the
beginning of the calendar quarter following the calendar quarter in which
payment is made. A Limited Partner holding Class A Status Units may elect the
MDO by sending a completed MDO form to the Partnership (which form may be
obtained by calling or writing the Partnership).
REPORTS TO INVESTORS
Within 75 days after the end of each fiscal year of the Partnership, the
General Partners will deliver to each Limited Partner and any assignee such
information as is necessary for the preparation of his federal income tax return
and state income or other tax returns with regard to jurisdictions in which
Partnership Properties are located. Within 120 days after the end of the
Partnership's fiscal year, the General Partners will deliver to each Limited
Partner and any assignee an annual report which includes financial statements of
the Partnership, audited by independent certified public accountants and
prepared in accordance with generally accepted accounting principles. Such
financial statements will include a profit and loss statement, a balance sheet
of the Partnership, a cash flow statement and a statement of changes in
Partners' capital. The notes to the annual financial statements will contain a
detailed reconciliation of the Partnership's net income for financial reporting
purposes to net income for tax purposes for the periods covered by the report.
The annual report for each year will report on the Partnership's activities for
that year, identify the source of Partnership distributions, set forth the
compensation paid to the General Partners and their Affiliates and a statement
of the services performed in consideration therefor, provide a category-by-
category breakdown of the general and administrative expenses incurred,
including a breakdown of all costs reimbursed to the General Partners and their
Affiliates in accordance with Section 11.4(b) of the Partnership Agreement, and
contain such other information as is deemed reasonably necessary by the General
Partners to advise the Limited Partners of the affairs of the Partnership.
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For as long as the Partnership is required to file quarterly reports on
Form 10-Q with the Securities and Exchange Commission, financial information
substantially similar to the financial informed contained in each such report
shall be sent to the Limited Partners within 60 days after the end of such
quarter. Whether or not such reports are required to be filed, each Limited
Partner will be furnished, within 60 days after the end of each of the first
three quarters of the Partnership's fiscal year, an unaudited financial report
for that period including a profit and loss statement, a balance sheet and a
cash flow statement. The foregoing reports for any period in which fees are paid
to the General Partners or their Affiliates for services shall set forth the
fees paid and the services rendered. In addition, until all of the net proceeds
from the Offering are expended or committed (or used to establish a working
capital reserve) or returned to the Partners, each Limited Partner shall be
furnished, at least quarterly within 60 days after the end of each quarter
during which the Partnership has acquired real property, an acquisition report
describing the properties acquired since the prior special report and including
a description of locations and of the market upon which the General Partners are
relying in projecting successful operation of the properties. The acquisition
report shall include a description of the present or proposed use of the
property and its suitability or adequacy for such use and the terms of any
material lease affecting the property, a statement of the appraised value,
purchase price, terms of purchase, all costs related to the acquisition, and an
estimate of all proposed subsequent expenditures for development or other
improvements of the property, a statement that title insurance and any required
performance bonds or other assurances in accordance with Section 11.3(k) of the
Partnership Agreement with respect to builders have been or will be obtained on
the property, and a statement regarding the amount of proceeds (in both dollar
amount and as a percentage of the total amount of the Offering) to the
Partnership which remain unexpended or uncommitted. In addition, the acquisition
report will identify any real property which the General Partners presently
intend to be acquired by or leased to the Partnership, providing its location
and a description of its general character.
The appraisal received by the Partnership at the time of each acquisition
of property shall be maintained in its records for at least five years
thereafter and, during such time, shall be made available to the Limited
Partners for inspection and duplication at reasonable times.
The Partnership will distribute annually to Limited Partners a report on
the estimated value of each Unit in the next annual or quarterly report on Form
10-K or Form 10-Q sent to Limited Partners following the valuation process.
Such estimated value will be based upon annual appraisals of Partnership
Properties performed by the General Partners and not by an independent
appraiser. The General Partners are, however, required to obtain the opinion of
an independent third party that their estimate of the value of each Unit is
reasonable and was prepared in accordance with appropriate methods for valuing
real estate. For the first three full fiscal years following the year in which
the Offering of Units terminates, the value of the Units will be deemed to be
their initial purchase price of $10.00, and no valuation of Partnership
Properties will be performed. (See "INVESTMENT BY TAX-EXEMPT ENTITIES AND ERISA
CONSIDERATIONS - Annual Valuation.")
In addition, upon request from any prospective investor or Limited Partner,
the Partnership will provide without charge a copy of the NASAA Guidelines (as
referred to elsewhere herein).
PLAN OF DISTRIBUTION
This Prospectus relates to two offerings -- the offering of Units of both
Wells Real Estate Fund X, L.P. and Wells Real Estate Fund XI, L.P. A minimum of
125,000 Units and a maximum of 3,500,000 Units per Partnership are being offered
to the public through Wells Investment Securities, Inc. (the "Dealer Manager"),
a registered broker-dealer affiliated with the General Partners. (See
"CONFLICTS OF INTEREST" and "MANAGEMENT.") The Units are being offered at a per
Unit price of $10.00 per Unit on a "best efforts" basis (which means generally
that the Dealer Manager will be required to use only its best efforts to sell
the Units and has no firm commitment or obligation to purchase any of the
Units).
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Except as provided below, the Dealer Manager will receive commissions of 8%
of the Gross Offering Proceeds. The Dealer Manager will also receive 2% of the
Gross Offering Proceeds in the form of a dealer manager fee as compensation for
acting as the Dealer Manager and for expenses incurred in connection with
coordinating sales efforts, training of personnel and generally performing
"wholesaling" functions. In addition, the Partnership may reimburse the
expenses incurred by nonaffiliated dealers for actual due diligence purposes in
the maximum amount of .5% of the Gross Offering Proceeds. The Partnership will
not pay referral or similar fees to any accountants, attorneys or other persons
in connection with the distribution of the Units. Limited Partners who elect to
participate in the Distribution Reinvestment Plan will be charged Selling
Commissions and dealer manager fees on Units purchased pursuant to the
Distribution Reinvestment Plan on the same basis as Limited Partners purchasing
Units other than pursuant to the Distribution Reinvestment Plan. Units issued
by the Partnership under the Distribution Reinvestment Plan will be available
only until the termination of the Offering, as described above.
The Dealer Manager may authorize certain other broker-dealers who are
members of the NASD to sell Units. In the event of the sale of Units by such
other broker-dealers, the Dealer Manager may reallow its commissions in the
amount of up to 8% of the Gross Offering Proceeds to such participating broker-
dealers. In addition, the Dealer Manager, in its sole discretion, may reallocate
to any broker-dealer participating in the Offering a portion of its dealer
manager fee in the aggregate amount of up to 1% of Gross Offering Proceeds to be
paid to such participating broker-dealer as a marketing fee, based on such
factors as the number of Units sold by such participating broker-dealer, the
assistance of such participating broker-dealer in marketing the Offering and
bona fide conference fees incurred.
In no event shall the total underwriting compensation, including sales
commissions, the dealer manager fee and expense reimbursements, exceed 10% of
Gross Offering Proceeds, except for the additional .5% of Gross Offering
Proceeds which may be paid by the Partnership in connection with due diligence
activities.
The General Partners have agreed to indemnify the participating broker-
dealers, including the Dealer Manager, against certain liabilities arising under
the Securities Act of 1933, as amended.
The broker-dealers are not obligated to obtain any subscriptions, and there
is no assurance that any Units will be sold.
The General Partners may at their option purchase Units offered hereby at
the public offering price, in which case they would expect to hold such Units as
Limited Partners for investment and not for distribution. Units purchased by
the General Partners or their Affiliates shall not be entitled to vote on any
matter presented to the Limited Partners for a vote. No selling commissions
will be payable by the Partnership in connection with any Units purchased by the
General Partners. (See "RISK FACTORS.")
Payment for Units should be made by check payable to "The Bank of New York,
as Agent." Subscriptions will be effective only upon acceptance by the General
Partners, and the General Partners reserve the right to reject any subscription
in whole or in part. In no event may a subscription for Units be accepted until
at least five business days after the date the subscriber receives this
Prospectus. Each subscriber will receive a confirmation of the investor's
purchase. Except for purchases pursuant to the Distribution Reinvestment Plan,
all accepted subscriptions will be for whole Units and for not less than 100
Units ($1,000). (See "WHO SHOULD INVEST - SUITABILITY STANDARDS.") Except in
Maine, Minnesota and Washington, investors who have satisfied the minimum
purchase requirement and have purchased units in Prior Wells Public Programs may
purchase less than the minimum number of Units discussed above, provided that
such investors purchase a minimum of 2.5 Units ($25). After investors have
satisfied the minimum purchase requirement, minimum additional purchases must be
in increments of at least 2.5 Units ($25), except for purchases pursuant to the
Distribution Reinvestment Plan.
Subscription proceeds will be placed in an interest-bearing account with
The Bank of New York, Atlanta, Georgia (the "Escrow Agent") until such
subscriptions aggregating at least $1,250,000 (exclusive of any subscriptions
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for Units by the General Partners or their Affiliates) have been received and
accepted by the General Partners (the "Minimum Offering"). Any Units purchased
by the General Partners or their Affiliates will not be counted in calculating
the Minimum Offering. Subscription proceeds held in the escrow account will be
invested in obligations of, or obligations guaranteed by, the United States
government or bank money-market accounts or certificates of deposit of national
or state banks that have deposits insured by the Federal Deposit Insurance
Corporation (including certificates of deposit of any bank acting as depository
or custodian for any such funds), as directed by the General Partners.
Subscribers may not withdraw funds from the escrow account.
Investors who desire to establish an IRA for purposes of investing in Units
may do so by having Wells Advisors, Inc., a qualified non-bank IRA custodian
affiliated with the General Partners, act as their IRA custodian. In the event
that an IRA is established having Wells Advisors, Inc. as the IRA custodian, the
authority of Wells Advisors, Inc. will be limited to holding the Units on behalf
of the beneficiary of the IRA and making distributions or reinvestments in Units
solely at the discretion of the beneficiary of the IRA. Wells Advisors, Inc.
will not have the authority to vote any of the Units held in an IRA except
strictly in accordance with the written instructions of the beneficiary of the
IRA. (See "MANAGEMENT.")
If the Minimum Offering of Wells Real Estate Fund X, L.P. has not been
received and accepted by June 30, 1997, the Escrow Agent will promptly so notify
the Partnership and this Offering will be terminated. In such event, the Escrow
Agent is obligated to use its best efforts to obtain an executed IRS Form W-9
from each subscriber. No later than five business days after termination of the
Offering, the Escrow Agent will refund and return all monies to subscribers and
any interest earned thereon after deducting escrow expenses (except for Maine,
Missouri, Ohio and Pennsylvania residents). In the event that a subscriber fails
to remit an executed IRS Form W-9 to the Escrow Agent prior to the date the
Escrow Agent returns the subscriber's funds, the Escrow Agent will be required
to withhold from such funds 31% of the earnings attributable to such subscriber
in accordance with IRS Regulations. Units purchased by the General Partners will
not be counted for the purpose of achieving the Minimum Offering. During the
period in which subscription proceeds are held in escrow, interest earned
thereon will be allocated among subscribers on the basis of the respective
amounts of their subscriptions and the number of days that such amounts were on
deposit. Such interest net of escrow expenses will be paid to subscribers upon
the termination of the escrow period.
Initial subscribers may be admitted to the Partnership and the payments
transferred from escrow to the Partnership at any time after the Partnership has
received and accepted the Minimum Offering, except that subscribers residing in
New York and Pennsylvania may not be admitted to the Partnership until
subscriptions have been received and accepted for 250,000 Units ($2,500,000)
from all sources. The funds representing subscriptions for Units from New York
and Pennsylvania residents will not be released from the escrow account until
subscriptions for at least $2,500,000 have been received from all sources.
Subscriptions from New York residents may not be included in determining whether
subscriptions for the Minimum Offering have been obtained. In addition, certain
other states may impose different requirements than those set forth herein. Any
such additional requirements will be set forth in a supplement to this
Prospectus.
The offering of Units of Wells Real Estate Fund X, L.P. will commence upon
the effective date of this Prospectus and will continue until and terminate upon
the earlier of (i) December 30, 1997, or (ii) the date on which all $35,000,000
in Units of Wells Real Estate Fund X, L.P. have been sold. The offering of Units
of Wells Real Estate Fund XI, L.P. will commence immediately upon the
termination of the offering of Units of Wells Real Estate Fund X, L.P. and will
continue until and terminate upon the earlier of (i) December 30, 1998, or (ii)
the date on which all $35,000,000 in Units of Wells Real Estate Fund XI, L.P.
have been sold, provided that in the event that the offering of Units of Wells
Real Estate Fund XI, L.P. commences prior to December 31, 1997, the General
Partners may elect to terminate the offering of Wells Real Estate Fund XI, L.P.
at any time subsequent to one year after the commencement date of such offering
due to the fact that certain states may limit the offering period of Wells Real
Estate Fund XI, L.P. to a maximum of one year.
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Upon the termination of the offering in Units of Wells Real Estate Fund X,
L.P., the foregoing provisions relating to escrowing of subscription proceeds
shall also apply with respect to the offering of Units in Wells Real Estate Fund
XI, L.P., which will remain in escrow with the Escrow Agent until subscriptions
aggregating at least $1,250,000 (the "Minimum Offering") have been received and
accepted by the General Partners, except again that subscribers residing in New
York and Pennsylvania will not be admitted to Wells Real Estate Fund XI, L.P.
until subscriptions have been received and accepted for 250,000 Units
($2,500,000) in Wells Real Estate Fund XI, L.P. If subscriptions for at least
the Minimum Offering have not been received and accepted on or before six months
after the commencement of the offering of Units in Wells Real Estate Fund XI,
L.P., the offering of Wells Real Estate Fund XI, L.P. will be terminated, and in
such event, all monies will be promptly refunded and returned to investors in
the same manner as previously described in connection with the offering of Units
in Wells Real Estate Fund X, L.P.
The proceeds of this Offering will be received and held in trust for the
benefit of purchasers of Units and will be retained in trust after closing to be
used only for the purposes set forth in the "ESTIMATED USE OF PROCEEDS" section.
After the close of the Minimum Offering, subscriptions will be accepted or
rejected within 30 days of receipt by the Partnership, and if rejected, all
funds shall be returned to subscribers within 10 business days. Investors whose
subscriptions are accepted will be deemed admitted as Limited Partners of the
Partnership on the day on which their subscriptions are accepted.
The General Partners may sell Units to Retirement Plans of broker-dealers
participating in the Offering, to broker-dealers in their individual capacities,
to IRAs and Qualified Plans of their registered representatives or to any one of
their registered representatives in their individual capacities for 92% of the
Unit's public offering price in consideration of the services rendered by such
broker-dealers and registered representatives in the distribution. The net
proceeds to the Partnership from such sales will be identical to the
Partnership's net proceeds from other sales of Units.
In connection with sales of 25,000 or more Units ($250,000) to a
"purchaser" (as defined below), investors may agree with their registered
representatives to reduce the amount of selling commissions payable to
participating broker-dealers. Such reduction will be credited to the purchaser
by reducing the total purchase price payable by such purchaser. The following
table illustrates the various discount levels:
<TABLE>
<CAPTION>
DOLLAR SALES COMMISSIONS NET
VOLUME -------------------------- PURCHASE PROCEEDS TO
OF UNITS PRICE PARTNERSHIP
PURCHASED PERCENT PER UNIT PER UNIT PER UNIT
- -------------------------- ------------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Under $250,000 8.0% $ 0.80 $ 10.00 $9.20
$250,000-$499,999 7.0% $0.6925 $9.8925 $9.20
$500,000-$749,999 6.0% $0.5872 $9.7872 $9.20
$750,000-$999,999 3.0% $0.2845 $9.4845 $9.20
$1,000,000-$1,999,999 1.0% $0.0929 $9.2929 $9.20
Over $2,000,000 0.5% $0.0462 $9.2462 $9.20
</TABLE>
For example, if an investor purchases 100,000 Units in the Partnership, he
could pay as little as $929,290 rather than $1,000,000 for the Units, in which
event the commission on the sale of such Units would be $9,290 ($0.0929 per
Unit), and the Partnership would receive net proceeds of $920,000 ($9.20 per
Unit). The net proceeds to the Partnership will not be affected by volume
discounts.
Because all investors will be deemed to have contributed the same amount
per Unit to the Partnership for purposes of tax allocations and distributions of
Net Cash From Operations and Sale Proceeds, an investor qualifying for a volume
discount will receive a higher return on his investment in the Partnership than
investors who do not qualify for such discount.
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Subscriptions may be combined for the purpose of determining the volume
discounts in the case of subscriptions made by any "purchaser," as that term is
defined below, provided all such Units are purchased through the same broker-
dealer. The volume discount shall be prorated among the separate subscribers
considered to be a single "purchaser." Any request to combine more than one
subscription must be made in writing, and must set forth the basis for such
request. Any such request will be subject to verification by the General
Partners that all of such subscriptions were made by a single "purchaser."
For the purposes of such volume discounts, the term "purchaser" includes
(i) an individual, his or her spouse and their children under the age of 21 who
purchase the Units for his, her or their own accounts; (ii) a corporation,
partnership, association, joint-stock company, trust fund or any organized group
of persons, whether incorporated or not; (iii) an employees' trust, pension,
profit sharing or other employee benefit plan qualified under Section 401(a) of
the Code; and (iv) all commingled trust funds maintained by a given bank.
Notwithstanding the above, in connection with volume sales made to
investors in the Partnership, the General Partners may, in their sole
discretion, waive the "purchaser" requirements and aggregate subscriptions
(including subscriptions to Prior Wells Public Programs) as part of a combined
order for purposes of determining the number of Units purchased, provided that
any aggregate group of subscriptions must be received from the same broker-
dealer, including the Dealer Manager. Any such reduction in selling commission
will be prorated among the separate subscribers except that, in the case of
purchases through the Dealer Manager, the Dealer Manager may allocate such
reduction among separate subscribers considered to be a single "purchaser" as it
deems appropriate. An investor may reduce the amount of his purchase price to
the net amount shown in the foregoing table, if applicable. If such investor
does not reduce the purchase price, the excess amount submitted over the
discounted purchase price shall be returned to the actual separate subscribers
for Units. Except as provided in this paragraph, separate subscriptions will
not be cumulated, combined or aggregated.
In addition, in order to encourage purchases in amounts of 500,000 or more
Units, a potential purchaser who proposes to purchase at least 500,000 Units in
the Partnership may agree with the General Partners and the Dealer Manager to
have the Acquisition and Advisory Fees payable to the General Partners with
respect to the sale of such Units reduced to 0.5%, to have the dealer manager
fee payable to the Dealer Manager with respect to the sale of such Units reduced
to 0.5%, and to have the selling commissions payable with respect to the sale of
such Units reduced to 0.5%, in which event the aggregate fees payable with
respect to the sale of such Units would be reduced by $1.35 per Unit, and the
purchaser of such Units would be required to pay a total of $8.65 per Unit
purchased, rather than $10.00 per Unit. The net proceeds to the Partnership
would not be affected by such fee reductions. Of the $8.65 paid per Unit, it is
anticipated that approximately $8.15 per Unit (or approximately 94%) will be
used to acquire Partnership Properties and pay required acquisition expenses
relating to the acquisition of Partnership Properties. All such sales must be
made through registered broker-dealers.
California residents should be aware that volume discounts will not be
available in connection with the sale of Units made to California residents to
the extent such discounts do not comply with the provisions of Rule 260.140.51
adopted pursuant to the California Corporate Securities Law of 1968. Pursuant
to this Rule, volume discounts can be made available to California residents
only in accordance with the following conditions: (i) there can be no variance
in the net proceeds to the Partnership from the sale of the Units to different
purchasers of the same offering, (ii) all purchasers of the Units must be
informed of the availability of quantity discounts, (iii) the same volume
discounts must be allowed to all purchasers of Units which are part of the
offering, (iv) the minimum amount of Units as to which volume discounts are
allowed cannot be less than $10,000, (v) the variance in the price of the Units
must result solely from a different range of commissions, and all discounts
allowed must be based on a uniform scale of commissions, and (vi) no discounts
are allowed to any group of purchasers. Accordingly, volume discounts for
California residents will be available in accordance with the foregoing table of
uniform discount levels based on dollar volume of Units purchased, but no
discounts are allowed to any group of purchasers, and no subscriptions may be
aggregated as part of a combined order for purposes of determining the number of
Units purchased.
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Investors who, in connection with their purchase of Units, have engaged the
services of a registered investment advisor with whom the investor has agreed to
pay a fee for investment advisory services in lieu of normal commissions based
on the volume of securities sold may agree with the participating broker-dealer
selling such Units and the Dealer Manager to reduce the amount of selling
commissions payable with respect to such sale to zero. The net proceeds to the
Partnership will not be affected by eliminating the commissions payable in
connection with sales to investors purchasing through such investment advisors.
All such sales must be made through registered broker-dealers.
Neither the Dealer Manager nor its Affiliates will directly or indirectly
compensate any person engaged as an investment advisor by a potential investor
as an inducement for such investment advisor to advise favorably for investment
in the Partnership.
In addition, subscribers for Units may agree with their participating
broker-dealers and the Dealer Manager to have sales commissions due with respect
to the purchase of their Units paid over an eight year period pursuant to a
deferred commission arrangement (the "Deferred Commission Option"). Limited
Partners electing the Deferred Commission Option will be required to pay a total
of $9.30 per Unit purchased upon subscription, rather than $10.00 per Unit, with
respect to which $0.10 per Unit will be payable as commissions due upon
subscription. For each of the seven years following termination of the Offering,
$0.10 per Unit will be paid by the Partnership as deferred commissions with
respect to Units sold pursuant to the Deferred Commission Option, which amounts
will be deducted from and paid out of distributions of Net Cash From Operations
otherwise payable to Limited Partners holding such Units. The net proceeds to
the Partnership will not be affected by the election of the Deferred Commission
Option. Under this arrangement, a Limited Partner electing the Deferred
Commission Option will pay a 1% commission upon subscription, rather than an 8%
commission, and an amount equal to a 1% commission per year thereafter for the
next seven years will be deducted from and paid by the Partnership out of Net
Cash From Operations otherwise distributable to such Limited Partner. (See
"DISTRIBUTIONS AND ALLOCATIONS -Distributions of Net Cash From Operations.")
Each Limited Partner purchasing Units pursuant to the Deferred Commission
Option must elect upon subscription to have a sufficient number of Units treated
as Class A Status Units, in the discretion of the General Partners, to generate
at least the amount of Net Cash From Operations distributable with respect to
such Units needed to satisfy the deferred commission obligations each year with
respect to the total number of Units purchased. In addition, Limited Partners
electing the Deferred Commission Option will have limited rights to elect to
have their Class A Status Units treated as Class B Status Units during the
initial seven years following termination of the Offering since Limited Partners
owning Units purchased pursuant to the Deferred Commission Option must own a
sufficient number of Class A Status Units during the initial seven years of the
Partnership to generate enough Net Cash From Operations to allow the Partnership
to satisfy the deferred commission obligations with respect to the total number
of Class A and Class B Status Units purchased. (See "DESCRIPTION OF THE UNITS -
Election of Class A or Class B Status.") Further, taxable participants electing
the Deferred Commission Option will incur tax liability for Partnership income
allocated to them with respect to their Units even though distributions of Net
Cash From Operations otherwise distributable to such Limited Partners will
instead be paid to third parties to satisfy the deferred commission obligations
with respect to such Units for a period of seven years after the termination of
the Offering. (SEE "RISK FACTORS - Federal Tax Risks - Risk of Taxable Income
Without Cash Distributions.")
As set forth above, in no event shall the total underwriting compensation,
including sales commissions, the dealer manager fee and expense reimbursements,
exceed 10% of Gross Offering Proceeds, except for the additional .5% of Gross
Offering Proceeds which may be paid by the Partnership in connection with due
diligence activities.
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SUPPLEMENTAL SALES MATERIAL
In addition to this Prospectus, the Partnership may utilize certain sales
material in connection with the Offering of the Units, although only when
accompanied by or preceded by the delivery of this Prospectus. In certain
jurisdictions, some or all of such sales material may not be available. This
material may include information relating to this Offering, the past performance
of the General Partners and their Affiliates, property brochures and articles
and publications concerning real estate. In addition, the sales material may
contain certain quotes from various publications without obtaining the consent
of the author or the publication for use of the quoted material in the sales
material.
The Offering of Units in the Partnership is made only by means of this
Prospectus. Although the information contained in such sales material does not
conflict with any of the information contained in this Prospectus, such material
does not purport to be complete, and should not be considered a part of this
Prospectus or the Registration Statement of which this Prospectus is a part, or
as incorporated by reference in this Prospectus or said Registration Statement
or as forming the basis of the Offering of the Units.
LEGAL OPINIONS
The legality of the Units being offered hereby has been passed upon for the
Partnership by Holland & Knight, Atlanta, Georgia ("Counsel"). The statements
under the caption "FEDERAL INCOME TAX CONSEQUENCES" as they relate to federal
income tax matters have been reviewed by Counsel, and Counsel has opined as to
certain income tax matters relating to an investment in the Partnership.
Counsel has represented the General Partners, as well as Affiliates of the
General Partners, in other matters and may continue to do so in the future.
(See "CONFLICTS OF INTEREST.")
EXPERTS
The balance sheet of Wells Real Estate Fund X, L.P. as of July 31, 1996,
the balance sheet of Wells Real Estate Fund XI, L.P. as of July 31, 1996, the
financial statements of Wells Partners, L.P. as of December 31, 1995 and 1994,
and for each of the years in the two year period ended December 31, 1995, and
the financial statements of Wells Capital, Inc. as of December 31, 1995 and
1994, and for each of the years in the two year period ended December 31, 1995,
included in Appendix I to this Prospectus, to the extent and for the periods
indicated in their reports, have been audited by Arthur Andersen LLP and KPMG
Peat Marwick LLP, independent certified public accountants, and are included
herein in reliance upon the authority of said firms as experts in giving said
reports. The interim financial information of Wells Partners, L.P. and Wells
Capital, Inc. as of September 30, 1996 and for the nine-month periods ended
September 30, 1996 and 1995, the balance sheet of Wells Real Estate Fund X, L.P.
as of September 30, 1996 and the balance sheet of Wells Real Estate Fund XI,
L.P. as of September 30, 1996 included in Appendix I to this Prospectus have not
been audited.
INDEPENDENT AUDITORS
Effective September 11, 1995, each of Wells Partners, L.P. ("Wells
Partners") and Wells Capital, Inc. ("Wells Capital") dismissed KPMG Peat Marwick
LLP ("KPMG"), the independent accounting firm which was previously engaged as
the principal accountant to audit its financial statements. KPMG's report on
the financial statements of each of Wells Partners and Wells Capital did not
contain, for either of the past two fiscal years preceding KPMG's dismissal, an
adverse opinion or a disclaimer of opinion, nor was it qualified or modified as
to uncertainty, audit scope, or accounting principles. Wells Partners' decision
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to change accountants was recommended and approved by Wells Capital and its
board of directors, and Wells Capital's decision to change accountants was
recommended and approved by its board of directors. During the two most recent
fiscal years and all subsequent interim periods preceding KPMG's dismissal,
there was no disagreement between either Wells Partners or Wells Capital and
KPMG on any matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedure, which disagreement, if not resolved
to the satisfaction of KPMG, would have caused KPMG to make reference to the
subject of the disagreement in connection with its report. During the two most
recent fiscal years and all subsequent interim periods preceding KPMG's
dismissal, no events occurred which would be required to be disclosed in this
Prospectus under applicable securities regulations in connection with the change
in accountants.
Effective September 11, 1995, each of Wells Partners and Wells Capital
engaged Arthur Andersen LLP ("Arthur Andersen") as the principal accountant to
audit its financial statements. During the two most recent fiscal years and any
subsequent interim periods prior to engaging Arthur Andersen, neither Wells
Partners or Wells Capital nor anyone on their behalf consulted Arthur Andersen
regarding any matter which would be required to be disclosed in this Prospectus
under applicable securities regulations in connection with the change in
accountants.
ADDITIONAL INFORMATION
The Partnership has filed with the Securities and Exchange Commission (the
"Commission"), Washington, D.C., a Registration Statement under the Securities
Act of 1933, as amended, with respect to the Units offered pursuant to this
Prospectus. This Prospectus does not contain all the information set forth in
the Registration Statement and the exhibits related thereto filed with the
Commission, reference to which is hereby made. Copies of the Registration
Statement and exhibits related thereto, as well as periodic reports and
information filed by the Partnership, may be obtained upon payment of the fees
prescribed by the Commission, or may be examined at the offices of the
Commission without charge, at (i) the public reference facilities in Washington,
D.C. at Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, (ii) the Northeast Regional Office in New York at 7 World Trade Center,
Suite 1300, New York, New York 10048, and (iii) the Midwest Regional Office in
Chicago, Illinois at 500 West Madison Street, Suite 1400, Chicago, Illinois
66661-2511. The Commission maintains a Web site that contains reports, proxy
and information statements and other information regarding registrants that file
electronically with the Commission (the address of such site is
http://www.sec.gov).
GLOSSARY
The following are definitions of certain terms used in this Prospectus and
not otherwise defined herein or in the Partnership Agreement:
"ACQUISITION EXPENSES" means expenses incurred in connection with the
selection and acquisition of properties, whether or not acquired, including, but
not limited to, 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 and other miscellaneous costs
and expenses relating to the selection and acquisition of properties.
"ACQUISITION FEES" means the total of all fees and commissions paid by any
party to any person in connection with the purchase, development or construction
of property by the Partnership, including Acquisition and Advisory Fees payable
to the General Partners or their Affiliates, real estate brokerage commissions,
investment advisory fees, finder's fees, selection fees, development fees,
construction fees, nonrecurring management fees, or any other fees of a similar
nature, however designated, except development fees and construction fees paid
to a person not affiliated with the Sponsor in connection with the actual
development or construction of a Partnership Property.
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"AFFILIATE" means (i) any person directly or indirectly controlling,
controlled by or under common control with a General Partner, (ii) any person
owning or controlling 10% or more of the outstanding voting securities of a
General Partner, (iii) any officer, director or partner of a General Partner,
and (iv) if such other person is an officer, director or partner, any company
for which such person acts in any such capacity.
"CAPITAL ACCOUNT" means the account established for each Partner pursuant
to Section 8.1 of the Partnership Agreement. Each Partner's Capital Account
shall be determined in accordance with Treasury Regulations Section 1.704-1(b).
Capital Accounts generally will be adjusted as follows. Each Partner's Capital
Account shall be credited with: (i) the amount of the cash contributed to the
Partnership by him; and (ii) his distributive share of Partnership income and
gain; and each Partner's Capital Account shall be debited with: (iii) his
distributive share of Partnership losses and deductions or items thereof; and
(iv) the cash distributed to him.
"CAPITAL CONTRIBUTION" means the amount of cash contributed to the capital
of the Partnership by a Partner.
"CASH FLOW" means cash funds derived from operations of the Partnership,
including without limitation interest and investment income, but excluding
Capital Contributions, and without deduction for depreciation or amortization,
after deducting funds used to pay or to provide for the payment of all operating
expenses of the Partnership and each Partnership Property and debt service, if
any, capital improvements and replacements.
"CLASS A STATUS UNIT" means a Unit with respect to which the Limited
Partner holding such Unit has made an effective election pursuant to Section
8.16 of the Partnership Agreement to be treated as a Class A Status Unit for the
applicable accounting period.
"CLASS B STATUS UNIT" means a Unit with respect to which the Limited
Partner holding such Unit has made an effective election pursuant to Section
8.16 of the Partnership Agreement to be treated as a Class B Status Unit for the
applicable accounting period.
"CODE" means the Internal Revenue Code of 1986, as amended.
"DEFERRED COMMISSION OPTION" means an agreement among a subscriber for
Units in the Partnership, such subscriber's participating broker-dealer and the
Dealer Manager to have sales commissions due with respect to the purchase of the
subscriber's Units paid over an eight year period, in the manner described in
the "PLAN OF DISTRIBUTION" section of the Prospectus.
"EXCESS LIMITED PARTNER DISTRIBUTIONS" means any distributions to Limited
Partners over the life of their investment in the Partnership in excess of the
sum of their Net Capital Contributions plus their Preferential Limited Partner
Return.
"FRONT-END FEES" means fees and expenses paid by any party for any services
rendered during the Partnership's organizational or acquisition phase including
Organization and Offering Expenses, Acquisition Fees, Acquisition Expenses,
interest on deferred fees and expenses, if applicable, and any other similar
fees, however designated.
"GAIN ON SALE" means the taxable income or gain for federal income tax
purposes in the aggregate for each fiscal year from the sale or exchange of all
or any portion of a Partnership asset after netting losses from such sales or
exchanges against the gains from such transactions.
"GROSS OFFERING PROCEEDS" means the total gross proceeds from the sale of
the Units.
"GRULPA" means the Georgia Revised Uniform Limited Partnership Act,
O.C.G.A. (S) 14-9-100, et seq.
98
<PAGE>
"INITIAL LIMITED PARTNER" means Brian M. Conlon.
"INVESTMENT IN PROPERTIES" means the amount of Capital Contributions
actually paid or allocated to the purchase, development, construction or
improvement of properties acquired by the Partnership, including the purchase of
properties, working capital reserves allocable thereto (except that working
capital reserves in excess of 5% shall not be included) and other cash payments
such as interest and taxes, but excluding Front-End Fees.
"IRA" means an Individual Retirement Account established pursuant to
Section 408 of the Code.
"LIQUIDATING DISTRIBUTIONS" means the net cash proceeds received by the
Partnership from (a) the sale, exchange, condemnation, eminent domain taking,
casualty or other disposition of substantially all of the assets of the
Partnership or the last remaining assets of the Partnership or (b) a liquidation
of the Partnership's assets in connection with a dissolution of the Partnership,
after (i) payment of all expenses of such sale, exchange, condemnation, eminent
domain taking, casualty, other disposition or liquidation, including real estate
commissions, if applicable, (ii) the payment of any outstanding indebtedness and
other liabilities of the Partnership, (iii) any amounts used to restore any such
assets of the Partnership, and (iv) any amounts set aside as reserves which the
General Partners in their sole discretion may deem necessary or desirable.
"MINIMUM OFFERING" means the receipt and acceptance by the General Partners
of subscriptions for Units aggregating at least $1,250,000 in offering proceeds.
"NASAA GUIDELINES" means the Statement of Policy Regarding Real Estate
Programs of the North American Securities Administrators Association, Inc.
adopted on October 9 and 12, 1988, effective January 1, 1989, as amended.
"NASAA GUIDELINES RESALE PROCEEDS MAXIMUM AMOUNT" means an amount equal to
15% of Sale Proceeds remaining after payments to Limited Partners from such
proceeds of amounts equal to the sum of 100% of their Net Capital Contributions
plus a 6% per annum return on their Net Capital Contributions, calculated on a
cumulative (noncompounded) basis.
"NET CAPITAL CONTRIBUTION" means, with respect to any Partner, the
Partner's Capital Contribution as reduced from time to time by distributions
constituting a return of unused capital or of Nonliquidating Net Sale Proceeds,
but not reduced by (i) distributions of Sale Proceeds made to each Limited
Partner holding Units which at any time were treated as Class B Status Units in
an amount which, when added to any Net Cash From Operations previously
distributed to such Limited Partner, will equal the amount of Net Cash From
Operations previously paid to Limited Partners holding Units which at all times
have been treated as Class A Status Units, or (ii) distributions of Net Cash
From Operations. (See "DISTRIBUTIONS AND ALLOCATIONS.")
"NET CASH FROM OPERATIONS" means Cash Flow, less adequate cash reserves for
other obligations of the Partnership for which there is no provision, and the
Repurchase Reserve, if any.
"NET INCOME" or "NET LOSS" means the net income or loss realized or
recognized by the Partnership for a fiscal year, as determined for federal
income tax purposes, including any income exempt from tax, but excluding all
deductions for depreciation, amortization and cost recovery and Gain on Sale.
"NET WORTH" means, except where otherwise provided herein, the excess of
total assets over total liabilities as determined by generally accepted
accounting principles, except that if any of such assets have been depreciated,
then the amount of depreciation relative to any particular asset may be added to
the depreciated cost of such asset to compute total assets, provided that the
amount of depreciation may be added only to the extent that the amount resulting
after adding such depreciation does not exceed the fair market value of such
asset.
99
<PAGE>
"NONLIQUIDATING NET SALE PROCEEDS" means the net cash proceeds received by
the Partnership from a sale, exchange, condemnation, eminent domain taking,
casualty or other disposition of assets of the Partnership, which does not
constitute substantially all of the remaining assets of the Partnership, after
(i) the payment of all expenses of such sale, exchange, condemnation, eminent
domain taking, casualty, sale or other disposition, including real estate
commissions, if applicable, (ii) the payment of any outstanding indebtedness and
other Partnership liabilities relating to such assets, (iii) any amounts used to
restore any such assets of the Partnership, and (iv) any amounts set aside as
reserves which the General Partners in their sole discretion may deem necessary
or desirable.
"OFFERING" means the offering and sale of the Units pursuant to the terms
and conditions of this Prospectus.
"ORGANIZATION AND OFFERING EXPENSES" means those expenses incurred in
connection with organizing the Partnership, preparing the Partnership for
registration and subsequently offering and distributing the Units to the
public, including without limitation, legal and accounting fees, sales
commissions paid to broker-dealers in connection with the distribution of the
Units and all advertising expenses.
"PARTNERS" means, collectively, the General Partners and the Limited
Partners.
"PARTNERSHIP" means Wells Real Estate Fund X, L.P. and/or Wells Real Estate
Fund XI, L.P., the Georgia limited partnerships which will be organized pursuant
to the Partnership Agreement.
"PARTNERSHIP AGREEMENT" means the Amended and Restated Agreement of Limited
Partnership in the form attached hereto as Exhibit "B" entered into by the
General Partners and the Initial Limited Partner and to be adopted by the
Limited Partners.
"PARTNERSHIP PROPERTY" or "PARTNERSHIP PROPERTIES" means any and all land
and improvements as may be purchased or constructed by the Partnership and all
repairs, replacements or renewals thereof, together with all personal property
acquired by the Partnership which is from time to time located thereon or
specifically used in connection therewith.
"PREFERENTIAL LIMITED PARTNER RETURN" means with respect to each Limited
Partner Unit the sum of (i) a cumulative (noncompounded) 10% per annum on a
Limited Partner's Net Capital Contribution with respect to such Unit for all
periods during which such Unit was treated as a Class A Status Unit, and (ii) a
cumulative (noncompounded) 15% return on such Limited Partner's Net Capital
Contribution with respect to such Unit for all periods during which such Unit
was treated as a Class B Status Unit. Each Limited Partner's Preferential
Limited Partner Return shall be calculated from the date on which such Limited
Partner's Capital Contribution was made to the Partnership.
"PRIOR WELLS PUBLIC PROGRAMS" means the prior public real estate limited
partnership programs sponsored by the General Partners or their Affiliates
having substantially identical investment objectives as the Partnership,
specifically, Wells Real Estate Fund I, Wells Real Estate Fund II, Wells Real
Estate Fund II-OW, Wells Real Estate Fund III, L.P., Wells Real Estate Fund IV,
L.P., Wells Real Estate Fund V, L.P., Wells Real Estate Fund VI, L.P., Wells
Real Estate Fund VII, L.P., Wells Real Estate Fund VIII, L.P., Wells Real Estate
Fund IX, L.P. and, in the case of Wells Real Estate Fund XI, L.P., including
Wells Real Estate Fund X, L.P.
"PROPERTY MANAGEMENT AND LEASING FEE" means the fee payable for day-to-day
professional property management services rendered in connection with the
Partnership Properties, initially payable to Wells Management Company, Inc.
"QUALIFIED PLAN" means a qualified sole proprietorship, partnership or
corporate pension or profit sharing plan established under Section 401(a) of the
Code.
100
<PAGE>
"REGISTRATION STATEMENT" means the Registration Statement filed by the
Partnership with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, in order to register the Units for sale to
the public.
"RESIDUAL PROCEEDS" means any Sale Proceeds available for distribution to
the Partners after the Limited Partners have first received distributions of
Sale Proceeds in an amount equal to 100% of their Capital Contributions plus
their Preferential Limited Partner Return (reduced by all prior distributions of
Net Cash From Operations) and after the General Partners have received
distributions of Sale Proceeds in an amount equal to 100% of their Capital
Contributions.
"RETIREMENT PLANS" means Individual Retirement Accounts ("IRAs")
established under Section 408 of the Code and Qualified Plans.
"SALE PROCEEDS" means, collectively, Nonliquidating Net Sale Proceeds and
Liquidating Distributions.
"SPONSOR" means any individual, partnership, corporation or other legal
entity which (i) is directly or indirectly instrumental in organizing, wholly or
in part, the Partnership, (ii) will manage or participate in the management of
the Partnership, and any Affiliate of any such person, other than a person whose
only relationship with the Partnership is that of an independent property
manager, whose only compensation is as such, (iii) takes the initiative,
directly or indirectly, in founding or organizing the Partnership, either alone
or in conjunction with one or more other persons, (iv) receives a material
participation in the Partnership in connection with the founding or organizing
of the business of the Partnership, in consideration of services or property, or
both services and property, (v) has a substantial number of relationships and
contacts with the Partnership, (vi) possesses significant rights to control
Partnership Properties, (vii) receives fees for providing services to the
Partnership which are paid on a basis that is not customary in the industry, or
(viii) provides goods or services to the Partnership on a basis which was not
negotiated at arm's-length with the Partnership. Based upon the foregoing,
Sponsors of the Partnership include the General Partners, Wells Capital, Inc.,
Wells Investment Securities, Inc., Wells Management Company, Inc. and Prior
Wells Public Programs.
"UBTI" means unrelated business taxable income, as that term is defined in
Sections 511 through 514 of the Code.
"UNUSED CAPITAL CONTRIBUTIONS" means so much of the Capital Contributions
of Partners which are not required to acquire property and improvements thereon
with respect to which contracts, agreements in principle or letters of
understanding have been executed within the later of two years following the
effective date of the Registration Statement or one year after the termination
of the Offering of the Units.
"WELLS CAPITAL" means Wells Capital, Inc., a Georgia corporation which is
the sole general partner of Wells Partners, L.P.
"WELLS PARTNERS" means Wells Partners, L.P., a Georgia limited partnership
which has Wells Capital, Inc. as its sole general partner and is a General
Partner of the Partnership.
For additional definitions, see Article III of the Partnership Agreement.
101
<PAGE>
APPENDIX I
FINANCIAL STATEMENTS
<PAGE>
INDEX TO AUDITED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
WELLS PARTNERS, L.P.
Audited Financial Statements
Independent Auditors' Reports I-1
Balance Sheets as of December 31, 1995 and 1994 I-3
Statements of Operations for the years ended December 31, 1995 and 1994 I-4
Statements of Partners' Capital for the years ended December 31, 1995 and 1994 I-5
Statements of Cash Flows for the years ended December 31, 1995 and 1994 I-6
Notes to Financial Statements I-7
Schedule I - Market Value of Investments I-10
WELLS CAPITAL, INC.
Audited Financial Statements
Independent Auditors' Reports I-11
Balance Sheets as of December 31, 1995 and 1994 I-13
Statements of Income for the years ended December 31, 1995 and 1994 I-14
Statements of Stockholder's Equity for the years ended December 31, 1995 and 1994 I-15
Statements of Cash Flows for the years ended December 31, 1995 and 1994 I-16
Notes to Financial Statements I-17
WELLS REAL ESTATE FUND X, L.P.
Audited Balance Sheet
Independent Auditors' Report I-21
Balance Sheet as of July 31, 1996 I-22
Notes to Balance Sheet I-23
WELLS REAL ESTATE FUND XI, L.P.
Audited Balance Sheet
Independent Auditors' Report I-27
Balance Sheet as of July 31, 1996 I-28
Notes to Balance Sheet I-29
</TABLE>
<PAGE>
(LETTERHEAD OF ARTHUR ANDERSEN LLP)
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Partners of
Wells Partners, L.P.:
We have audited the accompanying balance sheet of WELLS PARTNERS, L.P. (a
Georgia limited partnership) as of December 31, 1995 and the related statement
of operations, partners' capital, and cash flows for the year then ended. These
financial statements are the responsibility of the Partnership's management.
Our responsibility is to express an opinion on these financial statements based
on our audit. The financial statements of Wells Partners, L.P. as of December
31, 1994 were audited by other auditors whose report dated January 13, 1995,
expressed an unqualified opinion on those statements.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Wells Partners, L.P. as of
December 31, 1995 and the results of their operations and their cash flows for
the year then ended in conformity with generally accepted accounting principles.
Our audit was made for the purpose of forming an opinion on the basic financial
statements taken as a whole. Schedule I, market value of investments in
partnerships, is presented for purposes of additional analysis and is not a
required part of the basic financial statements. This information has not been
subjected to the auditing procedures applied in our audit of the basic financial
statements and, accordingly, we express no opinion on it.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
January 12, 1996
I-1
<PAGE>
[LETTER HEAD OF KPMG PEAT MARWICK LLP]
INDEPENDENT AUDITORS' REPORT
The Partners
Wells Partners, L.P.:
We have audited the accompanying balance sheet of Wells Partners, L.P., a
limited partnership, as of December 31, 1994, and the related statements of
operations, partners' capital, and cash flows for the year then ended. These
financial statements are the responsibility of the Partnership's management. Our
responsibility is to express an opinion on these financial statements based on
our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Wells Partners, L.P. as of
December 31, 1994, and the results of its operations and its cash flows for the
year then ended in conformity with generally accepted accounting principles.
/s/ KPMG Peat Marwick LLP
January 13, 1995
I-2
<PAGE>
WELLS PARTNERS, L.P.
(A GEORGIA LIMITED PARTNERSHIP)
BALANCE SHEETS
DECEMBER 31, 1995 AND 1994
<TABLE>
<CAPTION>
ASSETS
1995 1994
-------- --------
<S> <C> <C>
CASH $ 70 $ 70
INVESTMENT IN PARTNERSHIPS (NOTE 2) 128,944 125,914
-------- --------
Total assets $129,014 $125,984
======== ========
PARTNERS' CAPITAL
GENERAL PARTNER $ 5,982 $ 2,477
LIMITED PARTNERS 123,032 123,507
-------- --------
Total partners' capital $129,014 $125,984
======== ========
</TABLE>
The accompanying notes are an integral part of these balance sheets.
I-3
<PAGE>
WELLS PARTNERS, L.P.
(A GEORGIA LIMITED PARTNERSHIP)
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1995 AND 1994
<TABLE>
<CAPTION>
1995 1994
===== ====
<S> <C> <C>
EQUITY IN LOSS OF PARTNERSHIPS AND NET
LOSS (NOTE 2) $ 480 $ 868
===== =====
</TABLE>
The accompanying notes are an integral part of these statements.
I-4
<PAGE>
WELLS PARTNERS, L.P.
(A GEORGIA LIMITED PARTNERSHIP)
STATEMENTS OF PARTNERS' CAPITAL
FOR THE YEARS ENDED DECEMBER 31, 1995 AND 1994
<TABLE>
<CAPTION>
General Limited
Partner Partners Total
------- -------- ------
<S> <C> <C> <C>
BALANCE AT DECEMBER 31, 1993 $1,686 $124,366 $126,052
Capital contribution 800 0 800
Net loss (9) (859) (868)
------ -------- --------
BALANCE AT DECEMBER 31, 1994 2,477 123,507 125,984
Capital contribution 3,510 0 3,510
Net loss (5) (475) (480)
------ -------- --------
BALANCE AT DECEMBER 31, 1995 $5,982 $123,032 $129,014
====== ======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
I-5
<PAGE>
WELLS PARTNERS, L.P.
(A GEORGIA LIMITED PARTNERSHIP)
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1995 AND 1994
<TABLE>
<CAPTION>
1995 1994
------- -----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ 480 $ 868
Adjustment to reconcile net loss to net
cash used by operating activities:
Equity in loss of partnership (480) (868)
------- -----
Net cash used by operating activitie 0 0
CASH FLOWS USED IN INVESTING ACTIVITIES:
Investment in limited partnership (3,510) (800)
CASH FLOWS PROVIDED BY FINANCING
ACTIVITIES:
General partner contributions 3,510 800
------- -----
Net change in cash 0 0
CASH AT BEGINNING OF YEAR 70 70
------- -----
CASH AT END OF YEAR $ 70 $ 70
======= =====
</TABLE>
The accompanying notes are an integral part of these statements.
I-6
<PAGE>
WELLS PARTNERS, L.P.
(A GEORGIA LIMITED PARTNERSHIP)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1995 AND 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Partners (the "Partnership") is a limited partnership under the laws of
the state of Georgia. The general partner is Wells Capital, Inc., a Georgia
corporation. The Partnership serves as the general partner in several
affiliated limited partnerships. The Partnership is currently a general
partner in Wells Real Estate Fund IV, L.P. ("Fund IV"), Wells Real Estate
Fund V, L.P. ("Fund V"), Wells Real Estate Fund VI, L.P. ("Fund VI"), Wells
Real Estate Fund VII, L.P. ("Fund VII"), Wells Real Estate Fund VIII, L.P.
("Fund VIII"), and Wells Real Estate Fund IX, L.P. ("Fund IX"), collectively
referred to as the "Funds". The Partnership also owns limited partnership
interests in Beaver Ruin--Arc Way, Ltd. ("Beaver Ruin") and Carter Boulevard,
Ltd. ("Carter Boulevard").
Although, as set forth above, the Partnership is a general partner in the
Funds, the Partnership's general partner, Wells Capital, Inc., has acted as
the general partner for the Funds on behalf of the Partnership.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
INCOME TAXES
The Partnership is not subject to federal or state income taxes, and
therefore, none have been provided for in the accompanying financial
statements. The partners are required to include their respective share of
profits and losses in their individual income tax returns.
2. INVESTMENT IN PARTNERSHIPS
The Partnership does not control the Funds, Beaver Ruin, or Carter Boulevard;
however, it does exercise significant influence. Accordingly, investments in
partnerships are recorded using the equity method of accounting. Each of the
partnerships, except for Beaver Ruin
I-7
<PAGE>
and Carter Boulevard, has been formed to acquire and operate commercial real
properties, including both properties which are to be developed or are under
development and properties which are newly constructed or have operating
histories. Beaver Ruin and Carter Boulevard were formed to acquire and
eventually sell the Beaver Ruin and Carter Boulevard properties. The
Partnership's investment in partnerships at December 31, 1995 and 1994 is as
follows:
<TABLE>
<CAPTION>
1995 1994
--------- --------
<S> <C> <C>
19.2% ownership interest in Beaver Ruin $ 81,910 $ 77,452
51.27% ownership interest in Carter Boulevard 46,284 45,976
Wells Real Estate Fund VI 0 1,462
Wells Real Estate Fund VII 0 224
Wells Real Estate Fund VIII 350 400
Wells Real Estate Fund IX 400 400
$128,944 $125,914
</TABLE>
The assets of Beaver Ruin and Carter Boulevard are comprised primarily of an
investment in a parcel of undeveloped land. The general partner of the
Partnership is also the general partner of Beaver Ruin.
Fund VI owns all of its properties through an investment in five joint
ventures which, as of December 31, 1995, owned an interest in three
commercial office buildings, a shopping center, four retail buildings, two
retail centers under construction, and an office/retail center under
construction.
Fund VII owns a retail/office building directly. In addition, Fund VII owns
properties through investments in five joint ventures which, as of December
31, 1995, owned an interest in two commercial office buildings, a shopping
center, two retail buildings, two retail centers under construction, and an
office/retail center under construction.
In addition, the Partnership owns interests in Fund IV and Fund V. Fund IV
owns all of its properties through investments in two joint ventures which,
as of December 31, 1995, owned interests in a retail shopping center, two
commercial office buildings, and a medical center development. Fund V owns
all of its properties through investments in three joint ventures which, as
of December 31, 1995, owned interests in three commercial office buildings,
two retail buildings, and a medical center development. The Partnership's
investments in Fund IV and Fund V were $0 at December 31, 1995 and 1994.
The Partnership is entitled to share in the allocation of cash distributions
and net income (losses) based on ownership percentages outlined in the
partnership agreements.
3. INCOME TAXES
The Partnership will not request a ruling from the Internal Revenue Service
to the effect that it will be treated as a partnership and not an association
taxable as a corporation for federal income tax purposes. The Partnership has
requested an opinion of legal counsel as to its tax status but such an
opinion is not binding upon the internal Revenue Service.
I-8
<PAGE>
4. COMMITMENTS AND CONTINGENCIES
Management, after consultation with counsel, is not aware of any significant
litigation or claims against the Partnership. In the normal course of
business, the Partnership may be subject to litigation or claims.
I-9
<PAGE>
SCHEDULE I
WELLS PARTNERS, L.P.
(A GEORGIA LIMITED PARTNERSHIP)
MARKET VALUE OF INVESTMENTS IN PARTNERSHIPS
AS OF DECEMBER 31, 1995
(Unaudited)
<TABLE>
<CAPTION>
<S> <C>
* 19.2% OWNERSHIP INTEREST IN BEAVER RUIN ARC WAY, LTD. $ 869,000
* 51.27% OWNERSHIP INTEREST IN CARTER BOULEVARD, LTD. 299,000
OWNERSHIP INTEREST IN WELLS REAL ESTATE FUND VIII, L.P. 350
OWNERSHIP INTEREST IN WELLS REAL ESTATE FUND IX, L.P. 400
----------
$1,168,750
==========
</TABLE>
*The market value of the undeveloped land owned by Beaver Ruin and Carter
Boulevard is based on an appraisal by an outside party.
The accompanying notes are an integral part of this schedule.
I-10
<PAGE>
(LETTERHEAD OF ARTHUR ANDERSEN LLP)
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholder of
Wells Capital, Inc.:
We have audited the accompanying balance sheet of WELLS CAPITAL, INC. (a Georgia
corporation) as of December 31, 1995 and the related statements of income,
stockholder's equity, and cash flows for the year then ended. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Wells Capital, Inc. as of
December 31, 1995 and the results of its operations and its cash flows for the
year then ended in conformity with generally accepted accounting principles.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
January 12, 1996
I-11
<PAGE>
[LETTERHEAD OF KPMG PEAT MARWICK LLP]
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Wells Capital, Inc.:
We have audited the accompanying balance sheet of Wells Capital, Inc. as of
December 31, 1994, and the related statements of earnings, stockholder's equity,
and cash flows for the year then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.]
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Wells Capital, Inc. as of
December 31, 1994, and the results of its operations and its cash flows for the
year then ended in conformity with generally accepted accounting principles.
/s/ KPMG Peat Marwick LLP
January 13, 1995
I-12
<PAGE>
WELLS CAPITAL, INC.
BALANCE SHEETS
DECEMBER 31, 1995 AND 1994
ASSETS
<TABLE>
<CAPTION>
1995 1994
--------- --------
<S> <C> <C>
CURRENT ASSETS:
Cash $130,457 $ 3,863
Due from affiliates (Note 2) 306,229 401,977
Other receivables 8,533 9,562
-------- --------
Total current assets 445,219 415,402
INVESTMENT IN PARTNERSHIPS (NOTE 3) 16,483 20,035
-------- --------
Total assets $461,702 $435,437
======== ========
LIABILITIES AND STOCKHOLDER'S EQUITY
ACCOUNTS PAYABLE $ 84,893 $ 88,656
-------- --------
COMMITMENTS AND CONTINGENCIES (NOTE 5)
STOCKHOLDER'S EQUITY:
Common stock, $1 par value; 100,000 shares authorized, 600
shares issued 600 600
Contributed capital 306,541 306,541
Retained earnings 69,668 39,640
-------- --------
Total stockholder's equity 376,809 346,781
-------- --------
Total liabilities and stockholder's equity $461,702 $435,437
======== ========
</TABLE>
The accompanying notes are an integral part of these balance sheets.
I-13
<PAGE>
WELLS CAPITAL, INC.
STATEMENTS OF INCOME
FOR THE YEARS ENDED DECEMBER 31, 1995 AND 1994
<TABLE>
<CAPTION>
1995 1994
---------- ----------
<S> <C> <C>
REVENUES:
Acquisition and advisory fees (Note 4) $1,083,281 $1,301,061
Equity in income of limited partnerships (Note 3) 11,984 0
---------- ----------
1,095,265 1,301,061
---------- ----------
EXPENSES:
Salaries and wages 725,274 953,999
Occupancy 26,484 26,484
General and administrative 313,479 217,093
Equity in loss of limited partnerships (Note 3) 0 5,312
---------- ----------
1,065,237 1,202,888
---------- ----------
NET INCOME $ 30,028 $ 98,173
========== ==========
</TABLE>
The accompanying notes are an integral part of these statements.
I-14
<PAGE>
WELLS CAPITAL, INC.
STATEMENTS OF STOCKHOLDER'S EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1995 AND 1994
<TABLE>
<CAPTION>
(Accumulated
Deficit) Total
Common Contributed Retained Stockholder's
Stock Capital Earnings Equity
------ ----------- ------------- -------------
<S> <C> <C> <C> <C>
$100 $100,000 $(10,000) $100,000
BALANCE, DECEMBER 31, 1993 $600 $306,541 $(58,533) $248,608
Net income 0 0 98,173 98,173
BALANCE, DECEMBER 31, 1994 600 306,541 39,640 346,781
Net income 0 0 30,028 30,028
BALANCE, DECEMBER 31, 1995 $600 $306,541 $ 69,668 $376,809
</TABLE>
The accompanying notes are an integral part of these statements.
I-15
<PAGE>
WELLS CAPITAL, INC.
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1995 AND 1994
<TABLE>
<CAPTION>
1995 1994
--------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 30,028 $ 98,173
Adjustments to reconcile net income to net cash provided
by (used in) operating activities:
Equity in (income) loss from limited partnerships (11,984) 5,312
Changes in assets and liabilities:
Due from affiliates 95,748 (109,092)
Other receivables 1,029 (5,777)
Accounts payable (3,763) (36,318)
--------- --------
Total adjustments 81,030 (145,875)
========= ========
Net cash provided by (used in) operating activities 111,058 (47,702)
CASH FLOWS FROM INVESTING ACTIVITIES:
Additional investment in limited partnerships 0 (800)
Distributions from limited partnerships 15,536 252
Net cash provided by (used in) investing activities 15,536 (548)
Net increase (decrease) in cash 126,594 (48,250)
CASH AT BEGINNING OF YEAR 3,863 52,113
CASH AT END OF YEAR $130,457 $ 3,863
</TABLE>
The accompanying notes are an integral part of these statements.
I-16
<PAGE>
WELLS CAPITAL, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1995 AND 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Capital, Inc. (the "Company") was organized on April 18, 1984 as a
corporation under the Georgia Business Corporation Code. The Company is in the
business of serving as a general partner in public limited partnerships. As a
general partner, the Company performs certain administrative services for the
Wells Real Estate funds, such as accounting and other administration, and incurs
the related expenses. Such expenses are allocated among the various Wells Real
Estate funds based on time spent on each fund by individual administrative
personnel. The sole stockholder of the Company is Leo F. Wells III.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
INCOME TAXES
The Company elected to be treated as an S corporation effective January 1, 1987.
No provision for income taxes is recorded, because any income tax liability is
the responsibility of the stockholder.
2. RELATED-PARTY TRANSACTIONS
Due from affiliates at December 31, 1995 and 1994 represents primarily
organizational and offering expenses paid by the company on behalf of the Wells
Real Estate Funds VII, L.P., VIII, L.P. and IX, L.P. The remaining due from
affiliates represents operating expenses paid by the Company on behalf of the
affiliates. The following is a detail of due from affiliates:
I-17
<PAGE>
<TABLE>
<CAPTION>
1995 1994
------- ------
<S> <C> <C>
Wells Real Estate Fund VII, L.P. $ 0 $ 14,829
Wells Real Estate Fund VIII, L.P. 136,436 133,494
Wells Real Estate Fund IX, L.P. 142,229 42,409
Wells Management Company, Inc. 6,709 209,137
Other affiliates 20,855 2,108
-------- --------
$306,229 $401,977
======== ========
</TABLE>
Offering costs paid by the Company on behalf of and reimbursed by Wells Real
Estate Fund VIII, L.P. of approximately $126,000 were paid to related parties.
3. INVESTMENT IN PARTNERSHIPS
The following is a reconciliation of the Company's investment in partnerships as
of December 31, 1995 and 1994:
<TABLE>
<CAPTION>
1995 1994
-------- --------
<S> <C> <C>
Investment in partnerships, beginning of period $ 20,035 $24,799
Contribution to partnerships 0 800
Equity in income (loss) of partnerships 11,984 (5,312)
Distributions from partnerships (15,536) (252)
-------- -------
Investment in partnerships, end of period $ 16,483 $20,035
======== =======
</TABLE>
The Company is a general partner in Wells Real Estate Fund I ("Fund I"), Wells
Real Estate Fund II ("Fund II"), Wells Real Estate Fund II-OW ("Fund II-OW"),
and Wells Real Estate Fund III, L.P. ("Fund III"), all of which are Georgia
public limited partnerships and Wells Partners, L.P. ("Wells Partners"), a
Georgia limited partnership. The Company does not have control over the
operations of the partnerships; however, it does exercise significant influence.
Accordingly, the investment in the partnerships is recorded using the equity
method of accounting. Each of the partnerships, except for Wells Partners, has
been formed to acquire and operate commercial real properties, including both
properties which are to be developed or are under development and properties
which are newly constructed or have operating histories. Wells Partners was
formed during 1990 to act as a general partner for Wells Real Estate Fund IV,
L.P. ("Fund IV") and Wells Real Estate Fund V, L.P. ("Fund V"). In December
1992, Wells Partners became the general partner for Wells Real Estate Fund VI,
L.P. ("Fund VI") and Wells Real Estate Fund VII, L.P. ("Fund VII"). In August
1994, Wells Partners became the general partner for Wells Real Estate Fund VIII,
L.P. ("Fund VIII") and Wells Real Estate Fund IX, L.P. ("Fund IX"). Funds IV,
V, VI, VII, VIII, and IX have the same investment objectives as Funds I, II, II-
OW, and III. The Company's investment in each partnership at December 31, 1995
and 1994 is as follows:
I-18
<PAGE>
<TABLE>
<CAPTION>
1995 1994
------- -------
<S> <C> <C>
Fund I $11,027 $13,236
Fund II 3,096 4,322
Wells Partners 2,360 2,477
------- -------
$16,483 $20,035
======= =======
</TABLE>
As of December 31, 1995, Fund I owned interests in a medical office building,
two commercial office buildings, three retail shopping centers, and a project
consisting of seven office buildings and a shopping center.
Fund II and Fund II-OW own all of their properties through a joint venture,
which, as of December 31, 1995, owned interests in a retail shopping center, a
project consisting of seven office buildings and a shopping center, two office
buildings, a parcel of land upon which a restaurant was developed and a retail
shopping center is currently under development. The Partnership's investment in
Fund II-OW was $0 at December 31, 1995 and 1994.
As of December 31, 1995, Fund III owned interests in three office buildings, a
retail shopping center, a parcel of land upon part of which a restaurant was
developed and a retail shopping center is currently under development. The
Partnership's investment in Fund III was $0 at December 31, 1995 and 1994.
The Company is entitled to share in the allocation of cash distributions and net
income (loss) based on percentages outlined in the partnership agreements. The
Company, as general partner, paid all the organization and offering expenses for
Fund I, Fund II, Fund II-OW, and Fund III and was reimbursed pursuant to the
partnership agreements, which provided that the partnerships could reimburse the
Company up to 5% of total limited partners' contributions in organization and
offering expenses. The Company also paid, or is currently paying, on behalf of
Wells Partners the organization and offering expenses for Fund IV, Fund V, Fund
VI, Fund VII, Fund VIII, and Fund IX. Pursuant to the partnership agreements of
Fund IV and Fund V, these two partnerships can only pay up to 3% of total
limited partners' contributions in organization and offering expenses. Pursuant
to the partnership agreements of Fund VI, Fund VII, Fund VIII, and Fund IX,
these partnerships can reimburse the Company up to 5% of total limited partners'
contributions in organization and offering costs.
During the year ended December 31, 1995, the Company paid and was reimbursed for
organization and offering costs related to Fund VII totaling approximately
$40,260, which did not exceed the 5% reimbursement limitation. During 1995, the
Company expensed approximately $40,432 of organizational and offering costs
related to Fund VII, which exceeded the 5% reimbursement limitation.
As of December 31, 1995, the Company had a receivable for unreimbursed
organization and offering costs related to Fund VIII totaling $96,972 which is
included in due from affiliates (Note 2). During 1995, the Company expensed
approximately $38,000 of organization and offering costs related to Fund VIII
which exceeded the 5% reimbursement limitation.
I-19
<PAGE>
As of December 31, 1995, the Company paid organizational and offering costs
related to Fund IX of $142,229. Fund IX filed a registration statement with the
Securities and Exchange Commission for the offering and sale of its limited
partnership units, which became effective on January 6, 1995. In order for the
Company to be reimbursed for these expenses, Fund IX will need to receive
approximately $1,250,000 in limited partners' contributions. At this time, the
Company believes that all of the foregoing organization and offering expenses
will be reimbursed. The Company's receivable for the aforementioned expenses is
included in due from affiliates (Note 2).
4. ACQUISITION AND ADVISORY FEES
Acquisition and advisory fees were earned from Fund VII and Fund viii in 1995
and from Fund VI and Fund VII in 1994. Pursuant to the partnership agreements
of Fund VI, Fund VII, and Fund VIII, total fees earned may not exceed 3 1/2% of
limited partners' contributions. As of December 31, 1995 and 1994, all fees
were collected for limited partners' contributions received by Fund VI, fund
VII, and Fund VIII.
5. COMMITMENTS AND CONTINGENCIES
The Company has guaranteed the indebtedness of an affiliate, Wells Management
Company, Inc., for an amount not to exceed $200,000.
Management, after consultation with counsel, is not aware of any significant
litigation or claims against the Company. In the normal course of business, the
Company may be subject to litigation or claims.
I-20
<PAGE>
(LETTERHEAD OF ARTHUR ANDERSEN LLP)
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Partners of
Wells Real Estate Fund X, L.P.:
We have audited the accompanying balance sheet of WELLS REAL ESTATE FUND X, L.P.
(a Georgia public limited partnership) as of July 31, 1996. This financial
statement is the responsibility of the Partnership's management. Our
responsibility is to express an opinion on this financial statement based on our
audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statement is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statement. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statement referred to above presents fairly, in
all material respects, the financial position of Wells Real Estate Fund X, L.P.
as of July 31, 1996 in conformity with generally accepted accounting principles.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
August 19, 1996
I-21
<PAGE>
WELLS REAL ESTATE FUND X, L.P.
(A GEORGIA PUBLIC LIMITED PARTNERSHIP)
BALANCE SHEET
JULY 31, 1996
ASSETS
<TABLE>
<CAPTION>
<S> <C>
CASH $ 600
DEFERRED OFFERING COSTS (NOTE 2) 53,154
-------
Total assets $53,754
=======
LIABILITIES AND PARTNERS' CAPITAL
LIABILITIES, DUE TO AFFILIATE (NOTE 2) $53,154
-------
COMMITMENTS AND CONTINGENCIES (NOTE 5)
PARTNERS' CAPITAL:
General partners 500
Limited partner 100
-------
Total partners' capital 600
-------
Total liabilities and partners' capital $53,754
=======
</TABLE>
I-22
<PAGE>
WELLS REAL ESTATE FUND X, L.P.
(A GEORGIA PUBLIC LIMITED PARTNERSHIP)
NOTES TO FINANCIAL STATEMENT
JULY 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Real Estate Fund X, L.P. (the "Partnership") is a public limited
partnership organized on June 20, 1996, under the laws of the State of Georgia.
The general partners are Leo F. Wells III and Wells Partners, L.P., a Georgia
nonpublic limited partnership. The Partnership has one class of limited
partnership units. Upon subscription for units, each limited partner must elect
whether to have their units treated as Class A Status Units (entitled to
allocation of substantially all of the Partnership's net income without
allocation of any deductions for depreciation, amortization, cost recovery, or
net losses) or Class B Status Units (entitled to a larger share of deductions
for depreciation, amortization, cost recovery and net loss, and a higher
percentage return on appreciation (if any) of real estate investments, but no
current cash distributions). Thereafter, limited partners shall have the right
to change their prior election to have some or all of their Units treated as
Class A Status Units or Class B Status Units one time during each quarterly
accounting period. Limited partners owning a majority of the Units may vote to,
among other things: (a) amend the partnership agreement, subject to certain
limitations, (b) change the business purpose or investment objectives of the
Partnership, (c) remove a general partner, (d) elect a new general partner, (e)
dissolve the Partnership, and (f) approve a sale of assets, subject to certain
limitations. Each limited partnership unit has equal voting rights, regardless
of class. The Partnership had no operations as of July 31, 1996.
The Partnership intends to acquire on an all cash basis and operate commercial
real estate properties, including properties which are either to be developed,
currently under development or construction, newly constructed, or have
operating histories.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
I-23
<PAGE>
INCOME TAXES
The Partnership is not subject to federal or state income tax, and therefore,
none have been provided for in the accompanying financial statement. The
partners are required to include their respective share of profits and losses in
their individual income tax returns.
DISTRIBUTIONS OF NET CASH FROM OPERATIONS
Cash available for distribution, as defined by the partnership agreement, will
be distributed to the limited partners on a quarterly basis. In accordance with
the partnership agreement, such distributions first are paid to limited partners
holding Class A Status Units until they have received a 10% annual return on
their net capital contributions, as defined. Then such distributions are paid
to the general partners until they have received 10% of the total amount thus
far distributed. Any remaining cash available for distribution is split between
the limited partners holding Class A Status Units and the general partners on a
basis of 90% and 10%, respectively. No such distributions will be made to the
limited partners holding Class B Status Units.
ALLOCATION OF NET INCOME, NET LOSS, AND GAIN ON SALE
Net income of the Partnership will be allocated each year in the same
proportions that net cash from operations is distributed to the partners. To
the extent the Partnership's net income in any year exceeds net cash from
operations, it will be allocated 99% to the limited partners holding Class A
Status units and 1% to the general partners.
Net loss, depreciation, amortization, and cost recovery deductions for each
fiscal year will be allocated as follows: (a) 99% to the limited partners
holding Class B Status Units and 1% to the general partners until their capital
accounts are reduced to zero; (b) then to any partner having a positive balance
in his capital account in an amount not to exceed such positive balance; and (c)
thereafter to the general partners.
Gain on the sale or exchange of the Partnership's properties will be allocated
generally in the same manner that the net proceeds from such sale are
distributed to partners after the following allocations are made, if applicable:
(a) allocations made pursuant to the qualified income offset provisions of the
partnership agreement; (b) allocations to partners having negative capital
accounts until all negative capital accounts have been restored to zero; and (c)
allocations to limited partners holding Class B Status Units in amounts equal to
the deductions for depreciation, amortization, and cost recovery previously
allocated to them with respect to the specific partnership property sold, but
not in excess of the amount of gain on sale recognized by the Partnership with
respect to the sale of such property.
DISTRIBUTION OF SALES PROCEEDS
Upon sales of properties, the net sales proceeds will be distributed in the
following order:
. To limited partners holding units which at any time have been treated
as Class B Status Units until they receive an amount necessary to equal
the net cash available for distribution received by the limited
partners holding Class A Status Units;
I-24
<PAGE>
. To limited partners on a per unit basis until each limited partner has
received 100% of their net capital contribution, as defined;
. To all limited partners on a per unit basis until they receive a
cumulative 10% per annum return on their net capital contribution, as
defined;
. To limited partners on a per unit basis until they receive an amount
equal to their Preferential Limited Partner Return (defined as the sum
of a 10% per annum cumulative return on net capital contributions for
all periods during which the units were treated as Class A Status Units
and a 15% per annum cumulative return on net capital contributions for
all periods during which the units were treated as Class B Status
Units);
. To the general partners until they have received 100% of their capital
contributions;
. Then, if and only in the event that limited partners have received any
Excess Limited Partner Distributions (defined as distributions to
limited partners over the life of their investment in the Partnership
in excess of their net capital contributions, as defined, plus their
Preferential Limited Partner Return), to the general partners until
they have received distributions equal to 20% of the sum of any such
Excess Limited Partner Distributions plus distributions made to the
general partners pursuant to this provision; and
. Thereafter 80% to the limited partners on a per unit basis and 20% to
the general partners.
2. DEFERRED OFFERING COSTS
Organization and offering expenses, to the extent they exceed 5% of gross
proceeds, will be paid by Wells Capital, Inc. (the "Company"), an affiliate of
the general partners, and not by the Partnership. Organization and offering
expenses do not include sales or underwriting commissions but do include such
costs as legal and accounting fees, printing costs, and other offering expenses.
As of July 31, 1996, the Company had paid organization and offering expenses
related to the Partnership of $53,154. A registration statement covering both
the Partnership and Wells Real Estate Fund XI, L.P. was filed with the
Securities and Exchange Commission ("SEC") on July 11, 1996. The registration
statement of the Partnership has to be declared effective by the SEC, and the
Partnership needs to receive approximately $1,250,000 in limited partners'
contributions before the liability to the Company will be paid. At this time,
the general partners believe that the registration statement for the Partnership
will be declared effective and that all of the foregoing organization and
offering expenses will be reimbursed by the Partnership.
I-25
<PAGE>
3. RELATED-PARTY TRANSACTIONS
The Partnership may enter into a property management agreement with Wells
Management Company, Inc. ("Wells Management"), an affiliate of the general
partners. In consideration for supervising the management of the Partnership's
properties, the Partnership will pay Wells Management management and leasing
fees equal to the lesser of (a) fees paid to a comparable outside firm, or (b)
3% of the gross revenues for management and 3% of the gross revenues for leasing
(aggregate maximum of 6%) generally paid over the life of the lease, plus a
separate competitive fee for the one-time initial lease-up of newly constructed
properties generally paid in conjunction with the receipt of the first month's
rent. In the case of commercial properties which are leased on a long-term net
basis (ten or more years), the maximum property management fee from such leases
shall be 1% of the gross revenues generally paid over the life of the lease,
except for a one-time initial leasing fee of 3% of the gross revenues on each
lease payable over the first five full years of the original lease term.
The general partners are also general partners in other Wells Real Estate Funds.
As such, there may exist conflicts of interest where the general partners while
serving in the capacity as general partners for other Wells Real Estate Funds
may be in competition with the Partnership for tenants in similar geographic
markets.
4. INCOME TAXES
The Partnership will not request a ruling from the Internal Revenue Service to
the effect that it will be treated as a partnership and not an association
taxable as a corporation for Federal income tax purposes. The Partnership has
requested an opinion of legal counsel as to its tax status prior to its
effectiveness for the offering of limited partnership units, but such an opinion
is not binding upon the Internal Revenue Service.
5. COMMITMENTS AND CONTINGENCIES
Management, after consultation with legal counsel, is not aware of any
significant litigation or claims against the Partnership. In the normal course
of business, the Partnership may become subject to such litigation or claims.
I-26
<PAGE>
(LETTERHEAD OF ARTHUR ANDERSEN LLP)
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Partners of
Wells Real Estate Fund XI, L.P.:
We have audited the accompanying balance sheet of WELLS REAL ESTATE FUND XI,
L.P. (a Georgia public limited partnership) as of July 31, 1996. This financial
statement is the responsibility of the Partnership's management. Our
responsibility is to express an opinion on this financial statement based on our
audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statement is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statement. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statement referred to above presents fairly, in
all material respects, the financial position of Wells Real Estate Fund XI, L.P.
as of July 31, 1996 in conformity with generally accepted accounting principles.
/s/ARTHUR ANDERSEN LLP
Atlanta, Georgia
August 19, 1996
I-27
<PAGE>
WELLS REAL ESTATE FUND XI, L.P.
(A GEORGIA PUBLIC LIMITED PARTNERSHIP)
BALANCE SHEET
JULY 31, 1996
ASSETS
<TABLE>
<CAPTION>
<S> <C>
CASH $ 600
DEFERRED OFFERING COSTS (NOTE 2) 53,154
-------
Total assets $53,754
=======
LIABILITIES AND PARTNERS' CAPITAL
LIABILITIES, DUE TO AFFILIATE (NOTE 2) $53,154
-------
COMMITMENTS AND CONTINGENCIES (NOTE 5)
PARTNERS' CAPITAL:
General partners 500
Limited partner 100
-------
Total partners' capital 600
-------
Total liabilities and partners' capital $53,754
=======
</TABLE>
The accompanying notes are an integral part of this balance sheet.
I-28
<PAGE>
WELLS REAL ESTATE FUND XI, L.P.
(A GEORGIA PUBLIC LIMITED PARTNERSHIP)
NOTES TO FINANCIAL STATEMENT
JULY 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Real Estate Fund XI, L.P. (the "Partnership") is a public limited
partnership organized on June 20, 1996, under the laws of the State of Georgia.
The general partners are Leo F. Wells III and Wells Partners, L.P., a Georgia
nonpublic limited partnership. The Partnership has one class of limited
partnership units. Upon subscription for units, each limited partner must elect
whether to have their units treated as Class A Status Units (entitled to
allocation of substantially all of the Partnership's net income without
allocation of any deductions for depreciation, amortization, cost recovery, or
net losses) or Class B Status Units (entitled to a larger share of deductions
for depreciation, amortization, cost recovery and net loss, and a higher
percentage return on appreciation (if any) of real estate investments, but no
current cash distributions). Thereafter, limited partners shall have the right
to change their prior election to have some or all of their Units treated as
Class A Status Units or Class B Status Units one time during each quarterly
accounting period. Limited partners owning a majority of the Units may vote to,
among other things: (a) amend the partnership agreement, subject to certain
limitations, (b) change the business purpose or investment objectives of the
Partnership, (c) remove a general partner, (d) elect a new general partner, (e)
dissolve the Partnership, and (f) approve a sale of assets, subject to certain
limitations. Each limited partnership unit has equal voting rights, regardless
of class. The Partnership had no operations as of July 31, 1996.
The Partnership intends to acquire on an all cash basis and operate commercial
real estate properties, including properties which are either to be developed,
currently under development or construction, newly constructed, or have
operating histories.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
I-29
<PAGE>
INCOME TAXES
The Partnership is not subject to federal or state income taxes, and therefore,
none have been provided for in the accompanying financial statement. The
partners are required to include their respective share of profits and losses in
their individual income tax returns.
DISTRIBUTIONS OF NET CASH FROM OPERATIONS
Cash available for distribution, as defined by the partnership agreement, will
be distributed to the limited partners on a quarterly basis. In accordance with
the partnership agreement, such distributions first are paid to limited partners
holding Class A Status Units until they have received a 10% annual return on
their net capital contributions, as defined. Then such distributions are paid
to the general partners until they have received 10% of the total amount thus
far distributed. Any remaining cash available for distribution is split between
the limited partners holding Class A Status Units and the general partners on a
basis of 90% and 10%, respectively. No such distributions will be made to the
limited partners holding Class B Status Units.
ALLOCATION OF NET INCOME, NET LOSS, AND GAIN ON SALE
Net income of the Partnership will be allocated each year in the same
proportions that net cash from operations is distributed to the partners. To
the extent the partnership's net income in any year exceeds net cash from
operations, it will be allocated 99% to the limited partners holding Class A
Status Units and 1% to the general partners.
Net loss, depreciation, amortization, and cost recovery deductions for each
fiscal year will be allocated as follows: (a) 99% to the limited partners
holding Class B Status units and 1% to the general partners until their capital
accounts are reduced to zero; (b) then to any partner having a positive balance
in his capital account in an amount not to exceed such positive balance; and (c)
thereafter to the general partners.
Gain on the sale or exchange of the Partnership's properties will be allocated
generally in the same manner that the net proceeds from such sale are
distributed to partners after the following allocations are made, if applicable:
(a) allocations made pursuant to the qualified income offset provisions of the
partnership agreement; (b) allocations to partners having negative capital
accounts until all negative capital accounts have been restored to zero; and (c)
allocations to limited partners holding Class B Status Units in amounts equal to
the deductions for depreciation, amortization, and cost recovery previously
allocated to them with respect to the specific partnership property sold, but
not in excess of the amount of gain on sale recognized by the Partnership with
respect to the sale of such property.
DISTRIBUTION OF SALES PROCEEDS
Upon sales of properties, the net sales proceeds will be distributed in the
following order:
. To limited partners holding units which at any time have been treated as Class
B Status Units until they receive an amount necessary to equal the net cash
available for distribution received by the limited partners holding Class A
Status Units;
I-30
<PAGE>
. To limited partners on a per unit basis until each limited partner has
received 100% of their net capital contribution, as defined;
. To all limited partners on a per unit basis until they receive a cumulative
10% per annum return on their net capital contribution, as defined;
. To limited partners on a per unit basis until they receive an amount equal to
their Preferential Limited Partner Return (defined as the sum of a 10% per
annum cumulative return on net capital contributions for all periods during
which the units were treated as Class A Status Units and a 15% per annum
cumulative return on net capital contributions for all periods during which
the units were treated as Class B Status Units);
. To the general partners until they have received 100% of their capital
contributions;
. Then, if and only in the event that limited partners have received any Excess
Limited Partner Distributions (defined as distributions to limited partners
over the life of their investment in the Partnership in excess of their net
capital contributions, as defined, plus their Preferential Limited Partner
Return), to the general partners until they have received distributions equal
to 20% of the sum of any such Excess Limited Partner Distributions plus
distributions made to the general partners pursuant to this provision; and
. Thereafter 80% to the limited partners on a per unit basis and 20% to the
general partners.
2. DEFERRED OFFERING COSTS
Organization and offering expenses, to the extent they exceed 5% of gross
proceeds, will be paid by Wells Capital, Inc. (the "Company"), an affiliate of
the general partners, and not by the Partnership. Organization and offering
expenses do not include sales or underwriting commissions but do include such
costs as legal and accounting fees, printing costs, and other offering expenses.
As of July 31, 1996, the Company had paid organization and offering expenses
related to the Partnership of $53,154. A registration statement covering both
the Partnership and Wells Real Estate Fund XI, L.P. was filed with the
Securities and Exchange Commission ("SEC") on July 11, 1996. The registration
statement of the Partnership has to be declared effective by the SEC, and the
Partnership needs to receive approximately $1,250,000 in limited partners'
contributions before the liability to the Company will be paid. At this time,
the general partners believe that the registration statement for the Partnership
will be declared effective and that all of the foregoing organization and
offering expenses will be reimbursed by the Partnership.
I-31
<PAGE>
3. RELATED-PARTY TRANSACTIONS
The Partnership may enter into a property management agreement with Wells
Management Company, Inc. ("Wells Management"), an affiliate of the general
partners. In consideration for supervising the management of the Partnership's
properties, the Partnership will pay Wells Management management and leasing
fees equal to the lesser of (a) fees that would be paid to a comparable outside
firm, or (b) 3% of the gross revenues for management and 3% of the gross
revenues for leasing (aggregate maximum of 6%) generally paid over the life of
the lease plus a separate competitive fee for the one-time initial lease-up of
newly constructed properties generally paid in conjunction with the receipt of
the first month's rent. In the case of commercial properties which are leased
on a long-term net basis (ten or more years), the maximum property management
fee from such leases shall be 1% of the gross revenues generally paid over the
life of the leases except for a one-time initial leasing fee of 3% of the gross
revenues on each lease payable over the first five full years of the original
lease term.
The general partners are also general partners in other Wells Real Estate Funds.
As such, there may exist conflicts of interest where the general partners while
serving in the capacity as general partners for other Wells Real Estate Funds
may be in competition with the Partnership for tenants in similar geographic
markets.
4. INCOME TAXES
The Partnership will not request a ruling from the Internal Revenue Service to
the effect that it will be treated as a partnership and not an association
taxable as a corporation for Federal income tax purposes. The Partnership has
requested an opinion of legal counsel as to its tax status prior to its
effectiveness for the offering of limited partnership units, but such an opinion
is not binding upon the Internal Revenue Service.
5. COMMITMENTS AND CONTINGENCIES
Management, after consultation with legal counsel, is not aware of any
significant litigation or claims against the Partnership. In the normal course
of business, the Partnership may become subject to such litigation or claims.
I-32
<PAGE>
INDEX TO UNAUDITED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
- ----------------------------------------------------------------------------------------------------
<S> <C>
WELLS PARTNERS, L.P.
Unaudited Financial Statements
Balance Sheets as of September 30, 1996 and December 31, 1995.......................... I-34
Statements of Operations for the seven months ended September 30, 1996 and 1995........ I-35
Statements of Partners' Capital for the nine months ended September 30, 1996 and 1995.. I-36
Statements of Cash Flows for the nine months ended September 30, 1996 and 1995......... I-37
Notes to Financial Statements.......................................................... I-38
WELLS CAPITAL, INC.
Unaudited Financial Statements
Balance Sheets as of September 30, 1996 and December 31, 1995.......................... I-41
Statements of Earnings for the nine months ended September 30, 1996 and 1995........... I-42
Statements of Stockholder's Equity for the nine months ended September 30, 1996
and the year ended December 31, 1995................................................ I-43
Statements of Cash Flows for the nine months ended September 30, 1996 and 1995......... I-44
Notes to Financial Statements.......................................................... I-45
WELLS REAL ESTATE FUND X, L.P.
Unaudited Balance Sheet
Balance Sheet as of September 30, 1996................................................. I-46
Notes to Balance Sheet................................................................. I-47
WELLS REAL ESTATE FUND XI, L.P.
Unaudited Balance Sheet
Balance Sheet as of September 30, 1996................................................. I-51
Notes to Balance Sheet................................................................. I-52
</TABLE>
I-33
<PAGE>
WELLS PARTNERS, L.P.
(a Limited Partnership)
Balance Sheets
<TABLE>
<CAPTION>
(Unaudited) (Audited)
Sept. 30, 1996 Dec. 31, 1995
--------------- --------------
<S> <C> <C>
Assets
------
Cash $ 70 $ 70
Investments in limited partnerships 129,265 128,944
(note 2) -------- --------
Total Assets $129,335 $129,014
-------- --------
Partners' Capital
-----------------
General Partner $ 6,777 $ 5,982
Limited Partners 122,558 123,032
-------- --------
Total Partners' Capital $129,335 $129,014
-------- --------
</TABLE>
See accompanying notes to financial statements.
I-34
<PAGE>
WELLS PARTNERS, L.P.
(a Limited Partnership)
Statements of Operations
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
--------------------------------------
September 30, 1996 September 30, 1995
------------------ ------------------
<S> <C> <C>
Equity in loss of partnership $479 $70
---- ---
Net loss $479 $70
==== ===
</TABLE>
See accompanying notes to financial statements.
I-35
<PAGE>
WELLS PARTNERS, L.P.
(a Limited Partnership)
Statement of Partners' Capital
For the Year Ended December 31, 1995
and the Nine Months Ended September 30, 1996
(Unaudited)
<TABLE>
<CAPTION>
General Limited
Partner Partners Total
-------- ---------- ----------
<S> <C> <C> <C>
Balance at December 31,1995 $5,982 $123,032 $129,014
Capital Contribution 800 0 800
Net Loss (5) (474) (479)
------ -------- --------
Balance at September 30, 1996 $6,777 $122,558 $129,335
------ -------- --------
</TABLE>
I-36
<PAGE>
WELLS PARTNERS, L.P.
(a Limited Partnership)
Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
----------------------------------------
September 30, 1996 September 30, 1995
------------------- -------------------
<S> <C> <C>
Cash flows from operating activities:
Net loss $(479) $(70)
Adjustments to reconcile net loss to net
cash used by operating activities-equity
in loss of limited partnership 479 70
----- ----
Net cash used by operating activities 0 0
----- ----
Net change in cash 0 0
Cash at beginning of year 70 70
----- ----
Cash at end of year $ 70 $ 70
----- ----
</TABLE>
See accompanying notes to financial statements.
I-37
<PAGE>
WELLS PARTNERS, L.P.
Condensed Notes to Financial Statements
(Unaudited)
(1) General
-------
The financial statements of Wells Partners, L.P. (the Partnership) do not
include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. These interim
statements have not been examined by independent accountants, but in the
opinion of the General Partner of the Partnership, the statements for the
unaudited interim periods presented include only adjustments, which are of a
normal and recurring nature, necessary to present a fair presentation of the
results for such periods. For further information, refer to the financial
statements and footnotes included in the audited Partnership report for the
year ended December 31, 1995.
Although the Partnership is a general partner in Wells Real Estate Fund IV,
L.P. (Fund IV), Wells Real Estate Fund V, L.P. (Fund V), Wells Real Estate Fund
VI, L.P. (Fund VI), Wells Real Estate Fund VII, L.P. (Fund VII), Wells Real
Estate Fund VIII, L.P. (Fund VIII), Wells Real Estate Fund IX, L.P. (Fund IX),
Wells Real Estate Fund X, L.P. (Fund X), and Wells Real Estate Fund XI, L.P.
(Fund XI) (collectively, the "Funds"), its general partner, Wells Capital,
Inc., has acted on behalf of the Partnership as the general partner of such
partnerships. Accordingly, all revenues and expenses relating to the offering
of the limited partnership units of the Funds were recorded by Wells Capital,
Inc. The Partnership also owns limited partnership interests in Beaver Ruin -
Arc Way, Ltd. (Beaver Ruin) and Carter Boulevard, Ltd. (Carter Boulevard).
(2) Investment in Partnerships
--------------------------
The Partnership does not control the Funds, Beaver Ruin, or Carter Boulevard;
however, it does exercise significant influence. Accordingly, investments in
partnerships are recorded using the equity method of accounting. Each of the
Funds has been formed to acquire and operate commercial real properties,
including both properties which are to be developed or are under development
and properties which are newly constructed or have operating histories. Beaver
Ruin and Carter Boulevard were formed to acquire and eventually sell the Beaver
Ruin and Carter Boulevard properties. The Partnership's investment in
partnerships at September 30, 1996 and December 31, 1995 is as follows:
I-38
<PAGE>
<TABLE>
<CAPTION>
September 30, 1996 December 31, 1995
-------------------- ------------------
Cost Market Cost Market
--------- --------- ------- ---------
<S> <C> <C> <C> <C>
19.2% ownership interest in Beaver
Ruin - Arc Way, Ltd. $ 81,781 768,000 81,910 869,000
51.27% ownership interest in Carter
Boulevard, Ltd. 46,284 260,000 45,976 299,000
Wells Real Estate Fund VI, L.P. 0 0 668 668
Wells Real Estate Fund VII, L.P. 0 0 0 0
Wells Real Estate Fund VIII, L.P. 0 0 350 350
Wells Real Estate Fund IX, L.P. 400 400 400 400
Wells Real Estate Fund X, L.P. 400 400 0 0
Wells Real Estate Fund XI, L.P. 400 400 0 0
-------- --------- ------- ---------
$129,265 1,029,200 129,304 1,169,418
-------- --------- ------- ---------
</TABLE>
The assets of Beaver Ruin and Carter Boulevard are comprised primarily of an
investment in a parcel of undeveloped land. The general partner of the
Partnership is also the general partner of Beaver Ruin. The market value of
this land was based on an appraisal dated June, 1996, and has decreased as
compared to December 31, 1995 which was based on an appraisal originally
obtained June, 1988 which was updated December, 1994 to reflect estimated
economic and market conditions.
Fund VI owns all of its properties through an investment in six joint ventures
which, as of September 30, 1996, owned an interest in three commercial office
buildings, four retail centers, one retail center under construction, and an
office/retail center under construction.
Fund VII owns all of its properties through investment in five joint ventures
which, as of September 30, 1996, owned an interest in three commercial office
buildings, three retail centers, two office/retail centers, and a retail center
under construction.
Fund VIII owns all of its properties through an investment in three joint
ventures which, as of September 30, 1996, owned an interest in two commercial
office buildings, one office/retail center, one retail center under construction
and one commercial office building under construction.
Fund IX owns a property through an investment in a joint venture which, as of
September 30, 1996, owned one commercial office building under construction.
In addition, the Partnership owns interests in Fund IV and Fund V. Fund IV owns
all of its properties through investments in two joint ventures which, as of
September 30, 1996, owned
I-39
<PAGE>
interests in a retail shopping center, two commercial office buildings, and a
medical center development comprising two office buildings. Fund V owns all of
its properties through investments in three joint ventures which, as of
September 30, 1996, owned interests in three commercial office buildings, two
retail buildings, and a medical center development comprising two office
buildings. The Partnership's investments in Fund IV and Fund V were $0 at
September 30, 1996 and December 31, 1995.
The Partnership is entitled to share in the allocation of cash distributions and
net income (losses) of the foregoing partnership investments based on ownership
percentages outlined in the partnership agreements.
[Remainder of page intentionally left blank.]
I-40
<PAGE>
WELLS CAPITAL, INC.
Balance Sheets
<TABLE>
<CAPTION>
(Unaudited) (Audited)
Sept. 30, 1996 Dec. 31, 1995
--------------- --------------
<S> <C> <C>
Assets
------
Current Assets:
Cash $ 6,891 $130,457
Due from Affiliates 398,818 306,229
Other Receivables 39 8,533
-------- --------
Total Current Assets 405,748 445,219
-------- --------
Investments in partnerships 17,022 16,483
-------- --------
Total Assets $422,770 $461,702
======== ========
Liabilities and Stockholder's Equity
------------------------------------
Current Liabilities - Accounts Payable $ 54,653 $ 84,893
Stockholder's Equity:
Common Stock, $1 par value. Authorized
100,000 shares; issued 600 shares 600 600
Contributed capital 306,541 306,541
Accumulated retained earnings 60,976 69,668
-------- --------
Total Stockholder's Equity 368,117 376,809
-------- --------
Total Liabilities and Stockholder's Equity $422,770 $461,702
======== ========
</TABLE>
See accompanying condensed notes to financial statements.
I-41
<PAGE>
WELLS CAPITAL, INC.
Statements of Earnings
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
----------------------------------------
September 30, 1996 September 30, 1995
------------------- -------------------
<S> <C> <C>
Revenues - Acquisition and Advisory Fees $752,270 $746,636
Expenses:
Legal and Accounting 12,479 2,778
Salaries and Wages 665,420 737,729
Rent 17,656 17,656
General and Administrative 65,407 83,672
-------- --------
Total Expenses 760,962 841,835
-------- --------
Net Loss $ (8,692) $(95,199)
======== ========
</TABLE>
See accompanying condensed notes to financial statements.
I-42
<PAGE>
WELLS CAPITAL, INC.
Statement of Stockholder's Equity
(Unaudited)
<TABLE>
<CAPTION>
For the Nine Months Ended September 30, 1996 and the Year Ended December 31, 1995
Total
Common Contributed Accumulated Stockholder's
Stock Capital Earnings Equity
------- ------------ ------------ --------------
<S> <C> <C> <C> <C>
Balance at December 31, 1994 $600 306,541 39,640 346,781
Net Earnings -- -- 30,028 30,028
---- ------- ------ -------
Balance at December 31, 1995 600 306,541 69,668 376,809
---- ------- ------ -------
Net Loss -- -- (8,692) (8,692)
---- ------- ------ -------
Balance at September 30, 1996 $600 306,541 60,976 368,117
==== ======= ====== =======
</TABLE>
See accompanying condensed notes to financial statements.
I-43
<PAGE>
WELLS CAPITAL, INC.
Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
--------------------------------
Sept. 30, 1996 Sept. 30, 1995
--------------- ---------------
<S> <C> <C>
Cash flows from operating activities:
Net Loss $ (8,692) $(95,199)
Adjustments to reconcile net earnings to net cash used
in operating activities:
Changes in assets and liabilities:
Due from Affiliates (92,589) 98,078
Other Receivables 8,494 (1,100)
Accounts Payable (30,240) (2,174)
Total Adjustments --------- --------
(114,335) 94,804
Net Cash used in Operating Activities --------- --------
(123,027) (395)
Cash flows from investing activities:
Additional investment in limited partnerships (800) --
Distribution from limited partnerships 261 244
Net cash (used in) provided by investing --------- --------
activities
(539) 244
--------- --------
Net decrease in cash (123,566) (151)
Cash at beginning of year 130,457 3,863
--------- --------
Cash at end of period $ 6,891 $ 3,712
========= ========
</TABLE>
See accompanying condensed notes to financial statements.
I-44
<PAGE>
WELLS CAPITAL, INC.
Condensed Notes to Financial Statements
(Unaudited)
(1) General
-------
The financial statements of Wells Capital, Inc. (the Company) do not include
all of the information and footnotes required by generally accepted accounting
principles for complete financial statements. These interim statements have
not been examined by independent accountants, but in the opinion of the
management, the statements for the unaudited interim periods presented include
only adjustments, which are of normal and recurring nature, necessary to
present a fair presentation of the results for such periods. For further
information, refer to the financial statements and footnotes included in the
audited report of the Company for the year ended December 31, 1995.
The Company is a general partner in Wells Real Estate Fund I (Fund I), Wells
Real Estate Fund II (Fund II), Wells Real Estate Fund II-OW (Fund II-OW),
Wells Real Estate Fund III, L.P. (Fund III), and Wells Partners, L.P., each a
Georgia limited partnership. The Company, as general partner, paid all the
organizational and offering expenses for Fund I, Fund II, Fund II-OW, and Fund
III and was reimbursed pursuant to such partnerships' respective partnership
agreements, each of which provided that the partnerships could reimburse the
Company up to 5% of total limited partners' contributions in organizational
and offering expenses. The Company is the sole general partner of Wells
Partners, L.P., which is a general partner of Wells Real Estate Fund IV, L.P.
(Fund IV), Wells Real Estate Fund V, L.P. (Fund V), Wells Real Estate Fund VI,
L.P. (Fund VI), Wells Real Estate Fund VII, L.P. (Fund VII), Wells Real Estate
Fund VIII, L.P. (Fund VIII), Wells Real Estate Fund IX, L.P. (Fund IX), Wells
Real Estate Fund X, L.P. (Fund X) and Wells Real Estate Fund XI, L.P. (Fund
XI) and as such, the Company also paid or is currently paying on behalf of
Wells Partners, L.P. the offering and organizational expenses for Fund IV,
Fund V, Fund VI, Fund VII, Fund VIII, Fund IX, Fund X and Fund XI. Pursuant
to the partnership agreements of Fund IV and Fund V, these two partnerships
can only reimburse the Company for up to 3% of total limited partners'
contributions in offering and organizational expenses. Pursuant to the
partnership agreements of Fund VI, Fund VII, Fund VIII, Fund IX, Fund X and
Fund XI, these partnerships can reimburse the Company for up to 5% of total
limited partners' contributions in offering and organizational expenses.
I-45
<PAGE>
WELLS REAL ESTATE FUND X, L.P.
(a Georgia limited partnership)
Balance Sheet
(Unaudited)
September 30, 1996
<TABLE>
<CAPTION>
Assets
- ------
<S> <C>
Cash $ 600
Deferred offering costs (note 2) 82,593
-------
Total Assets $83,193
=======
Liabilities and Partners' Capital
- ---------------------------------
Liabilities, due to Affiliate (note 2) $82,593
Partners' Capital:
General Partner 500
Limited Partner 100
-------
Total Partners' Capital 600
-------
Total Liabilities and Partners' Capital $83,193
=======
</TABLE>
See accompanying notes to the balance sheet.
I-46
<PAGE>
WELLS REAL ESTATE FUND X, L.P.
(a Georgia limited partnership)
Notes to Financial Statement
(Unaudited)
September 30, 1996
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Real Estate Fund X, L.P. (the Partnership) is a limited partnership
organized on June 20, 1996, under the laws of the State of Georgia. The
general partners are Leo F. Wells III and Wells Partners, L.P., a Georgia
limited partnership. The Partnership has one class of limited partnership
units. Upon subscription for units, each limited partner must elect whether
to have his units treated as Class A Status Units (entitled to allocation of
substantially all of the Partnership's net income without allocation of any
deductions for depreciation, amortization, cost recovery, or net losses) or
Class B Status Units (entitled to a larger share of deductions for
depreciation, amortization, cost recovery and net loss, and a higher
percentage return on appreciation (if any) of real estate investments, but no
current cash distributions). Thereafter, limited partners shall have the
right to change their prior election to have some or all of their Units
treated as Class A Status Units or Class B Status Units one time during each
quarterly accounting period. Limited partners owning a majority of the Units
may vote to, among other things: (a) amend the partnership agreement, subject
to certain limitations, (b) change the business purpose or investment
objectives of the Partnership, (c) remove a general partner, (d) elect a new
general partner, (e) dissolve the Partnership, and (f) approve a sale of
assets, subject to certain limitations. Each limited partnership unit has
equal voting rights, regardless of class. The Partnership had no operations
as of September 30, 1996.
The Partnership intends to acquire on an all cash basis and operate commercial
real estate properties, including properties which are either to be developed,
currently under development or construction, newly constructed, or have
operating histories.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
I-47
<PAGE>
INCOME TAXES
The Partnership is not subject to federal or state income tax, and therefore,
none have been provided for in the accompanying financial statement. The
partners are required to include their respective share of profits and losses
in their individual income tax returns.
DISTRIBUTIONS OF NET CASH FROM OPERATIONS
Cash available for distribution, as defined by the partnership agreement, will
be distributed to the limited partners on a quarterly basis. In accordance
with the partnership agreement, such distributions first are paid to limited
partners holding Class A Status Units until they have received a 10% annual
return on their net capital contributions, as defined. Then such
distributions are paid to the general partners until they have received 10% of
the total amount thus far distributed. Any remaining cash available for
distribution is split between the limited partners holding Class A Status
Units and the general partners on a basis of 90% and 10%, respectively. No
such distributions will be made to the limited partners holding Class B Status
Units.
ALLOCATION OF NET INCOME, NET LOSS, AND GAIN ON SALE
Net income of the Partnership will be allocated each year in the same
proportions that net cash from operations is distributed to the partners. To
the extent the Partnership's net income in any year exceeds net cash from
operations, it will be allocated 99% to the limited partners holding Class A
Status Units and 1% to the general partners.
Net loss, depreciation, amortization, and cost recovery deductions for each
fiscal year will be allocated as follows: (a) 99% to the limited partners
holding Class B Status Units and 1% to the general partners until their
capital accounts are reduced to zero; (b) then to any partner having a
positive balance in his capital account in an amount not to exceed such
positive balance; and (c) thereafter to the general partners.
Gain on the sale or exchange of the Partnership's properties will be allocated
generally in the same manner that the net proceeds from such sale are
distributed to partners after the following allocations are made, if
applicable: (a) allocations made pursuant to the qualified income offset
provisions of the partnership agreement; (b) allocations to partners having
negative capital accounts until all negative capital accounts have been
restored to zero; and (c) allocations to limited partners holding Class B
Status Units in amounts equal to the deductions for depreciation,
amortization, and cost recovery previously allocated to them with respect to
the specific partnership property sold, but not in excess of the amount of
gain on sale recognized by the Partnership with respect to the sale of such
property.
I-48
<PAGE>
DISTRIBUTION OF SALES PROCEEDS
Upon sales of properties, the net sales proceeds will be distributed in the
following order:
. To limited partners holding units which at any time have been treated as
Class B Status Units until they receive an amount necessary to equal the
net cash available for distribution received by the limited partners
holding Class A Status Units;
. To limited partners on a per unit basis until each limited partner has
received 100% of their net capital contribution, as defined;
. To all limited partners on a per unit basis until they receive a
cumulative 10% per annum return on their net capital contribution, as
defined;
. To limited partners on a per unit basis until they receive an amount
equal to their Preferential Limited Partner Return (defined as the sum of
a 10% per annum cumulative return on net capital contributions for all
periods during which the units were treated as Class A Status Units and a
15% per annum cumulative return on net capital contributions for all
periods during which the units were treated as Class B Status Units);
. To the general partners until they have received 100% of their capital
contributions;
. Then, if and only in the event that limited partners have received any
Excess Limited Partner Distributions (defined as distributions to limited
partners over the life of their investment in the Partnership in excess
of their net capital contributions, as defined, plus their Preferential
Limited Partner Return), to the general partners until they have received
distributions equal to 20% of the sum of any such Excess Limited Partner
Distributions plus distributions made to the general partners pursuant to
this provision; and
. Thereafter 80% to the limited partners on a per unit basis and 20% to the
general partners.
(2) DEFERRED OFFERING COSTS
Organization and offering expenses, to the extent they exceed 5% of gross
proceeds, will be paid by Wells Capital, Inc. (the "Company"), an affiliate of
the general partners, and not by the Partnership. Organization and offering
expenses do not include sales or underwriting commissions but do include such
costs as legal and accounting fees, printing costs, and other offering
expenses.
I-49
<PAGE>
As of September 30, 1996, the Company had paid organization and offering
expenses related to the Partnership of $82,593. A registration statement
covering both the Partnership and Wells Real Estate Fund XI, L.P. was filed
with the Securities and Exchange Commission ("SEC") on July 11, 1996. The
registration statement of the Partnership has to be declared effective by the
SEC, and the Partnership needs to receive approximately $1,651,860 in limited
partners' contributions before the liability to the Company will be paid. At
this time, the general partners believe that the registration statement for
the Partnership will be declared effective and that all of the foregoing
organization and offering expenses will be reimbursed by the Partnership.
(3) RELATED-PARTY TRANSACTIONS
The Partnership may enter into a property management agreement with Wells
Management Company, Inc. ("Wells Management"), an affiliate of the general
partners. In consideration for supervising the management of the
Partnership's properties, the Partnership will pay Wells Management management
and leasing fees equal to the lesser of (a) fees paid to a comparable outside
firm, or (b) 3% of the gross revenues for management and 3% of the gross
revenues for leasing (aggregate maximum of 6%) generally paid over the life of
the lease, plus a separate competitive fee for the one-time initial lease-up
of newly constructed properties generally paid in conjunction with the receipt
of the first month's rent. In the case of commercial properties which are
leased on a long-term net basis (ten or more years), the maximum property
management fee from such leases shall be 1% of the gross revenues generally
paid over the life of the lease, except for a one-time initial leasing fee of
3% of the gross revenues on each lease payable over the first five full years
of the original lease term.
The general partners are also general partners in other Wells Real Estate
Funds. As such, there may exist conflicts of interest where the general
partners while serving in the capacity as general partners for other Wells
Real Estate Funds may be in competition with the Partnership for tenants in
similar geographic markets.
(4) INCOME TAXES
The Partnership will not request a ruling from the Internal Revenue Service to
the effect that it will be treated as a partnership and not an association
taxable as a corporation for Federal income tax purposes. The Partnership has
requested an opinion of legal counsel as to its tax status prior to its
effectiveness for the offering of limited partnership units, but such an
opinion is not binding upon the Internal Revenue Service.
(5) COMMITMENTS AND CONTINGENCIES
Management, after consultation with legal counsel, is not aware of any
significant litigation or claims against the Partnership. In the normal
course of business, the Partnership may become subject to such litigation or
claims.
I-50
<PAGE>
WELLS REAL ESTATE FUND XI, L.P.
(a Georgia limited partnership)
Balance Sheet
(Unaudited)
September 30, 1996
<TABLE>
<CAPTION>
Assets
- ------
<S> <C>
Cash $ 600
Deferred offering costs (note 2) 81,663
-------
Total Assets $82,263
=======
Liabilities and Partners' Capital
- ---------------------------------
Liabilities, due to Affiliate (note 2) $81,663
Partners' Capital:
General Partner 500
Limited Partner 100
-------
Total Partners' Capital 600
-------
Total Liabilities and Partners' Capital $82,263
=======
</TABLE>
See accompanying notes to the balance sheet.
I-51
<PAGE>
WELLS REAL ESTATE FUND XI, L.P.
(a Georgia limited partnership)
Notes to Financial Statement
(Unaudited)
September 30, 1996
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Real Estate Fund XI, L.P. (the Partnership) is a limited partnership
organized on June 20, 1996, under the laws of the State of Georgia. The
general partners are Leo F. Wells III and Wells Partners, L.P., a Georgia
limited partnership. The Partnership has one class of limited partnership
units. Upon subscription for units, each limited partner must elect whether
to have his units treated as Class A Status Units (entitled to allocation of
substantially all of the Partnership's net income without allocation of any
deductions for depreciation, amortization, cost recovery, or net losses) or
Class B Status Units (entitled to a larger share of deductions for
depreciation, amortization, cost recovery and net loss, and a higher
percentage return on appreciation (if any) of real estate investments, but no
current cash distributions). Thereafter, limited partners shall have the
right to change their prior election to have some or all of their Units
treated as Class A Status Units or Class B Status Units one time during each
quarterly accounting period. Limited partners owning a majority of the Units
may vote to, among other things: (a) amend the partnership agreement, subject
to certain limitations, (b) change the business purpose or investment
objectives of the Partnership, (c) remove a general partner, (d) elect a new
general partner, (e) dissolve the Partnership, and (f) approve a sale of
assets, subject to certain limitations. Each limited partnership unit has
equal voting rights, regardless of class. The Partnership had no operations
as of September 30, 1996.
The Partnership intends to acquire on an all cash basis and operate commercial
real estate properties, including properties which are either to be developed,
currently under development or construction, newly constructed, or have
operating histories.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
I-52
<PAGE>
INCOME TAXES
The Partnership is not subject to federal or state income tax, and therefore,
none have been provided for in the accompanying financial statement. The
partners are required to include their respective share of profits and losses
in their individual income tax returns.
DISTRIBUTIONS OF NET CASH FROM OPERATIONS
Cash available for distribution, as defined by the partnership agreement, will
be distributed to the limited partners on a quarterly basis. In accordance
with the partnership agreement, such distributions first are paid to limited
partners holding Class A Status Units until they have received a 10% annual
return on their net capital contributions, as defined. Then such
distributions are paid to the general partners until they have received 10% of
the total amount thus far distributed. Any remaining cash available for
distribution is split between the limited partners holding Class A Status
Units and the general partners on a basis of 90% and 10%, respectively. No
such distributions will be made to the limited partners holding Class B Status
Units.
ALLOCATION OF NET INCOME, NET LOSS, AND GAIN ON SALE
Net income of the Partnership will be allocated each year in the same
proportions that net cash from operations is distributed to the partners. To
the extent the Partnership's net income in any year exceeds net cash from
operations, it will be allocated 99% to the limited partners holding Class A
Status Units and 1% to the general partners.
Net loss, depreciation, amortization, and cost recovery deductions for each
fiscal year will be allocated as follows: (a) 99% to the limited partners
holding Class B Status Units and 1% to the general partners until their
capital accounts are reduced to zero; (b) then to any partner having a
positive balance in his capital account in an amount not to exceed such
positive balance; and (c) thereafter to the general partners.
Gain on the sale or exchange of the Partnership's properties will be allocated
generally in the same manner that the net proceeds from such sale are
distributed to partners after the following allocations are made, if
applicable: (a) allocations made pursuant to the qualified income offset
provisions of the partnership agreement; (b) allocations to partners having
negative capital accounts until all negative capital accounts have been
restored to zero; and (c) allocations to limited partners holding Class B
Status Units in amounts equal to the deductions for depreciation,
amortization, and cost recovery previously allocated to them with respect to
the specific partnership property sold, but not in excess of the amount of
gain on sale recognized by the Partnership with respect to the sale of such
property.
I-53
<PAGE>
DISTRIBUTION OF SALES PROCEEDS
Upon sales of properties, the net sales proceeds will be distributed in the
following order:
. To limited partners holding units which at any time have been treated as
Class B Status Units until they receive an amount necessary to equal the
net cash available for distribution received by the limited partners
holding Class A Status Units;
. To limited partners on a per unit basis until each limited partner has
received 100% of their net capital contribution, as defined;
. To all limited partners on a per unit basis until they receive a
cumulative 10% per annum return on their net capital contribution, as
defined;
. To limited partners on a per unit basis until they receive an amount
equal to their Preferential Limited Partner Return (defined as the sum of
a 10% per annum cumulative return on net capital contributions for all
periods during which the units were treated as Class A Status Units and a
15% per annum cumulative return on net capital contributions for all
periods during which the units were treated as Class B Status Units);
. To the general partners until they have received 100% of their capital
contributions;
. Then, if and only in the event that limited partners have received any
Excess Limited Partner Distributions (defined as distributions to limited
partners over the life of their investment in the Partnership in excess
of their net capital contributions, as defined, plus their Preferential
Limited Partner Return), to the general partners until they have received
distributions equal to 20% of the sum of any such Excess Limited Partner
Distributions plus distributions made to the general partners pursuant to
this provision; and
. Thereafter 80% to the limited partners on a per unit basis and 20% to the
general partners.
(2) DEFERRED OFFERING COSTS
Organization and offering expenses, to the extent they exceed 5% of gross
proceeds, will be paid by Wells Capital, Inc. (the "Company"), an affiliate of
the general partners, and not by the Partnership. Organization and offering
expenses do not include sales or underwriting commissions but do include such
costs as legal and accounting fees, printing costs, and other offering
expenses.
I-54
<PAGE>
As of September 30, 1996, the Company had paid organization and offering
expenses related to the Partnership of $81,663. A registration statement
covering both the Partnership and Wells Real Estate Fund X, L.P. was filed
with the Securities and Exchange Commission ("SEC") on July 11, 1996. The
registration statement of the Partnership has to be declared effective by the
SEC, and the Partnership needs to receive approximately $1,633,260 in limited
partners' contributions before the liability to the Company will be paid. At
this time, the general partners believe that the registration statement for
the Partnership will be declared effective and that all of the foregoing
organization and offering expenses will be reimbursed by the Partnership.
(3) RELATED-PARTY TRANSACTIONS
The Partnership may enter into a property management agreement with Wells
Management Company, Inc. ("Wells Management"), an affiliate of the general
partners. In consideration for supervising the management of the
Partnership's properties, the Partnership will pay Wells Management management
and leasing fees equal to the lesser of (a) fees that would be paid to a
comparable outside firm, or (b) 3% of the gross revenues for management and 3%
of the gross revenues for leasing (aggregate maximum of 6%) generally paid
over the life of the lease plus a separate competitive fee for the one-time
initial lease-up of newly constructed properties generally paid in conjunction
with the receipt of the first month's rent. In the case of commercial
properties which are leased on a long-term net basis (ten or more years), the
maximum property management fee from such leases shall be 1% of the gross
revenues generally paid over the life of the leases except for a one-time
initial leasing fee of 3% of the gross revenues on each lease payable over the
first five full years of the original lease term.
The general partners are also general partners in other Wells Real Estate
Funds. As such, there may exist conflicts of interest where the general
partners while serving in the capacity as general partners for other Wells
Real Estate Funds may be in competition with the Partnership for tenants in
similar geographic markets.
(4) INCOME TAXES
The Partnership will not request a ruling from the Internal Revenue Service to
the effect that it will be treated as a partnership and not an association
taxable as a corporation for Federal income tax purposes. The Partnership has
requested an opinion of legal counsel as to its tax status prior to its
effectiveness for the offering of limited partnership units, but such an
opinion is not binding upon the Internal Revenue Service.
(5) COMMITMENTS AND CONTINGENCIES
Management, after consultation with legal counsel, is not aware of any
significant litigation or claims against the Partnership. In the normal
course of business, the Partnership may become subject to such litigation or
claims.
I-55
<PAGE>
EXHIBIT A
PRIOR PERFORMANCE TABLES
<PAGE>
EXHIBIT A
PRIOR PERFORMANCE TABLES
The following Prior Performance Tables (the "Tables") provide information
relating to real estate investment programs sponsored by the General Partners or
their Affiliates ("Prior Programs") which have investment objectives similar to
the Partnership.
Prospective investors should read these Tables carefully together with the
summary information concerning the Prior Programs as set forth in "PRIOR
PERFORMANCE SUMMARY" elsewhere in this Prospectus.
INVESTORS IN THE PARTNERSHIP WILL NOT OWN ANY INTEREST IN THE PRIOR PROGRAMS
AND SHOULD NOT ASSUME THAT THEY WILL EXPERIENCE RETURNS, IF ANY, COMPARABLE TO
THOSE EXPERIENCED BY INVESTORS IN THE PRIOR PROGRAMS.
These Tables present actual results of Prior Programs that have investment
objectives similar to those of the Partnership. The Partnership's investment
objectives are to maximize Net Cash From Operations; to preserve original
Capital Contributions; and to realize capital appreciation over a period of
time. All of the General Partners' Prior Programs have used a substantial
amount of capital and not acquisition indebtedness to acquire their properties.
The General Partners are responsible for the acquisition, operation,
maintenance and resale of the Partnership Properties. The financial results of
the Prior Programs thus provide an indication of the General Partners'
performance of their obligations during the periods covered. However, general
economic conditions affecting the real estate industry and other factors
contribute significantly to financial results.
The following tables are included herein:
TABLE I - Experience in Raising and Investing Funds (As a Percentage of
Investment)
TABLE II - Compensation to Sponsor (in Dollars)
TABLE III - Annual Operating Results of Prior Programs
TABLE IV (Results of completed programs) and TABLE V (sales or disposals of
property) have been omitted since none of the Prior Programs have sold any of
their properties to date.
Additional information relating to the acquisition of properties by the Prior
Programs is contained in TABLE VI, which is included in the Registration
Statement which the Partnership has filed with the Securities and Exchange
Commission. As described above, no Prior Program has sold or disposed of any
property held by it. Copies of any or all information will be provided to
prospective investors at no charge upon request.
The following are definitions of certain terms used in the Tables:
"ACQUISITION FEES" shall mean fees and commissions paid by a partnership in
connection with its purchase or development of a property, except development
fees paid to a person not affiliated with the partnership or with a general
partner of the partnership in connection with the actual development of a
project after acquisition of the land by the partnership.
"ORGANIZATION EXPENSES" shall include legal fees, accounting fees, securities
filing fees, printing and reproduction expenses and fees paid to the general
partners or their affiliates in connection with the planning and formation of
the partnership.
"UNDERWRITING FEES" shall include selling commissions and wholesaling fees
paid to broker-dealers for services provided by the broker-dealers during the
offering.
A-1
<PAGE>
TABLE I
(UNAUDITED)
EXPERIENCE IN RAISING AND INVESTING FUNDS
This Table provides a summary of the experience of the General Partners and
their Affiliates in Prior Programs for which offerings have been completed since
December 31, 1992. Information is provided with regard to the manner in which
the proceeds of the offerings have been applied. Also set forth is information
pertaining to the timing and length of these offerings and the time period over
which the proceeds have been invested in the properties.
<TABLE>
<CAPTION>
Wells Real Wells Real Wells Real Wells Real
Estate Fund Estate Fund Estate Fund Estate Fund
V, L.P. VI, L.P. VII, L.P. VIII, L.P.
----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Dollar Amount Raised $17,006,020/(3)/ $25,000,000/(4)/ $23,374,961/(5)/ $30,144,542/(6)/
================ ================ ================ ================
Percentage Amount Raised 100.0%/(3)/ 100.0%/(4)/ 100.0%/(5)/ 100.0%/(6)/
Less Offering Expenses
Underwriting Fees 10.0% 10.0% 10.0% 10.0%
Organizational Expenses 3.0% 5.0% 5.0% 5.0%
Reserves/(1)/ 1.0% 1.0% 1.0% 0.0%
---- ---- ---- ----
Percent Available for Investment 86.0% 84.0% 84.0% 85.0%
Acquisition and Development Costs
Prepaid Items and Fees related to Purchase
of Property 1.2% 0.3% 0.0% 0.0%
Cash Down Payment 36.1% 40.4% 16.3% 0.0%
Acquisition Fees/(2)/ 5.5% 3.7% 3.5% 3.5%
Development and Construction Costs 43.2% 39.6% 64.2% 24.2%
Reserve for Payment of Indebtedness 0.0% 0.0% 0.0% 0.0%
---- ---- ---- ----
Total Acquisition and Development Cost 86.0% 84.0% 84.0% 27.7%
---- ---- ---- ----
Percent Leveraged 0.0% 0.0% 0.0% 0.0%
==== ==== ==== ====
Date Offering Began 03/06/92 04/05/93 04/24/94 01/06/95
Length of Offering 12 mo./(3)/ 12 mo./(4)/ 12 mo. 12 mo.
Months to Invest 90% of Amount Available for
Investment (Measured from Beginning of Offering) 22 mo. 15 mo. 12 mo. /(7)/
Number of Investors 1,665 1,791 1,865 2,086
- --------------------
</TABLE>
(1) Does not include General Partner contributions held as part of reserves.
(2) Includes development fees, real estate commissions, general contractor fees
and/or architectural fees paid to Affiliates of the General Partners.
(3) Total dollar amount registered and available to be offered was $25,000,000.
Wells Real Estate Fund V, L.P. closed its offering on March 3, 1993 and the
total dollar amount raised was $17,006,020.
(4) Total dollar amount registered and available to be offered was $25,000,000.
Wells Real Estate Fund VI, L.P. closed its offering on April 4, 1994 and the
total dollar amount raised was $25,000,000.
(5) Total dollar amount registered and available to be offered was $25,000,000.
Wells Real Estate Fund VII, L.P. closed its offering on January 5, 1995 and
the total dollar amount raised was $24,180,174.
(6) Total dollar amount registered and available to be offered was $35,000,000.
As of December 31, 1995, Wells Real Estate Fund VIII, L.P. had not yet
completed its offering. The total dollar amount received as of that date
was $30,144,542.
(7) As of December 31, 1995, Wells Real Estate Fund VIII, L.P. had not yet
invested 90% of the amount available for investment. The amount invested in
properties (including Acquisition Fees paid but not yet associated with a
specific property) at December 31, 1995 was 23% of the total dollar amount
raised.
A-2
<PAGE>
TABLE II
(UNAUDITED)
COMPENSATION TO SPONSOR
The following sets forth the compensation received by General Partners or
Affiliates of the General Partners, including compensation paid out of offering
proceeds and compensation paid in connection with the ongoing operations of
Prior Programs having similar or identical investment objectives the offerings
of which have been completed since December 31, 1992. These partnerships have
not sold or refinanced any of their properties to date. All figures are as of
December 31, 1995.
<TABLE>
<CAPTION>
Wells Real Wells Real Wells Real Wells Real Other
Estate Fund Estate Fund Estate Fund Estate Fund Public
V, L.P. VI, L.P. VII, L.P. VIII, L.P. Programs/(1)/
------------ ------------ ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Date Offering Commenced 03/06/92 04/05/93 04/06/94 01/06/95
Dollar Amount Raised /(2)/ $17,006,020 $25,000,000 $24,180,174 $30,144,542 $108,012,212
to Sponsor from Proceeds of Offering:
Underwriting Fees/(3)/ $ 200,432 $ 119,936 $ 178,122 $ 172,929 $ 251,371
Acquisition Fees
Real Estate Commissions -- -- -- -- --
Acquisition and Advisory Fees/(4)/ $ 935,331 $ 932,216 $ 846,306 $ 1,055,059 $ 6,163,838
Dollar Amount of Cash Generated from Operations
Before Deducting Payments to Sponsor/(5)/ $ 2,272,483 $ 1,644,885 $ 971,752 $ 236,953 $ 21,059,211
Amount Paid to Sponsor from Operations:
Property Management Fee/(1)/ $ 238,457 $ 36,712 $ 15,574 $ 373 $ 682,201
Partnership Management Fee -- -- -- -- --
Reimbursements $ 168,481 $ 70,146 $ 31,674 $ 11,130 $ 1,095,919
Leasing Commissions $ 80,793 $ 15,646 $ 6,634 $ 373 $ 785,840
General Partner Distributions -- -- -- -- 15,205
Other -- -- -- -- --
Dollar Amount of Property Sales and Refinancing
Payments to Sponsors:
Cash -- -- -- -- --
Notes -- -- -- -- --
Amount Paid to Sponsor from Property Sales
and Refinancing:
Real Estate Commissions -- -- -- -- --
Incentive Fees -- -- -- -- --
Other -- -- -- -- --
- ----------------
</TABLE>
(1) Includes compensation paid to General Partners from Wells Real Estate Fund
I, Wells Real Estate Fund II, Wells Real Estate Fund II-OW, Wells Real
Estate Fund III, L.P. and Wells Real Estate Fund IV, L.P. during the past
three years. General Partners of Wells Real Estate Fund I are entitled to
certain property management and leasing fees but have elected to defer the
payment of such fees until a later year on properties owned by Fund I and
properties owned jointly by Fund I and Fund II. At December 31, 1995, the
amount of such fees due the General Partners totaled $1,170,611.
(2) Represents amount raised as of December 31, 1995. Wells Real Estate Fund
VIII, L.P. had not yet completed its offering of Limited Partnership Units
as of that date.
(3) Includes net underwriting compensation and commissions paid to Wells
Investment Securities, Inc. in connection with the offerings of Wells Real
Estate Funds V, VI, VII and VIII, which were not reallowed to participating
broker-dealers.
(4) Fees paid to the General Partners or their Affiliates for acquisition
advisory services in connection with the review and evaluation of potential
real property acquisitions.
(5) Includes $38,628 in net cash used by operating activities, $1,823,380 in
distributions paid to limited partners and $487,731 in payments to sponsors
for Wells Real Estate Fund V, L.P.; $15,549 in net cash provided by
operating activities, $1,506,832 in distributions paid to limited partners
and $122,504 in payments to sponsor for Wells Real Estate Fund VI, L.P.;
$22,064 in net cash used by operating activities, $939,934 in distributions
paid to limited partners and $53,882 in payments to sponsor for Wells Real
Estate Fund VII, L.P.; $225,077 in net cash provided by operating activities
and $11,876 in payments to sponsor for Wells Real Estate Fund VIII, L.P.;
and $1,140,651 in net cash provided by operating activities, $17,339,395 in
distributions paid to limited partners and $2,579,165 in payments to sponsor
for other public programs.
A-3
<PAGE>
TABLE III
(UNAUDITED)
The tables on the following five (5) pages set forth operating results
of prior programs sponsored by the General Partners the offerings of which have
been completed since December 31, 1990. The information relates only to public
programs with investment objectives similar to those of the Partnership. All
figures are as of December 31 of the year indicated.
A-4
<PAGE>
TABLE III
(UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND IV, L.P.
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
----------- ----------- ------------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $694,521 $ 678,591 $ 570,709 $ 421,532 $ 94,279
Profit on Sale of Properties -- -- -- -- --
Less: Operating Expenses/(2)/ 64,404 67,330 67,548 214,340 79,026
Depreciation and Amortization/(3)/ 6,250 6,250 6,250 6,250 5,208
-------- --------- ----------- ---------- ----------
Net Income GAAP Basis/(4)/ $623,867 $ 605,011 $ 496,911 $ 200,942 $ 10,045
======== ========= =========== ========== ==========
Taxable Income: Operations $655,474 $ 541,939 $ 420,649 $ 179,790 $ 12,983
======== ========= =========== ========== ==========
Cash Generated (Used By):
Operations (56,817) (58,610) (22,444) 29,139 (28,635)
Joint Ventures 975,911 864,771 465,951 124,696 --
-------- --------- ----------- ---------- ----------
$919,094 $ 806,161 $ 443,507 $ 153,835 $ (28,635)
Less Cash Distributions to Investors:
Operating Cash Flow 919,094 787,029 443,507 153,835 --
Return of Capital -- -- 20,271 80,567 --
Undistributed Cash Flow from Prior
Year Operations 3,613
--------
Cash Generated (Deficiency) after Cash Distributions $ (3,613) $ 19,132 $ (20,271) $ (80,567) $ (28,635)
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions -- -- -- -- 500
Increase in Limited Partner Contributions -- -- -- 4,572,355 9,042,297
-------- --------- ----------- ---------- ----------
$ (3,613) $ 19,132 $ (20,271) $4,491,788 $9,014,162
Use of Funds:
Sales Commissions and Offering Expenses -- -- 667,701 1,067,372
Property Acquisitions and Deferred Project Costs 13,541 289,608 3,627,673 4,949,701 2,737,108
-------- --------- ----------- ---------- ----------
Cash Generated (Deficiency) after Cash Distributions
and Special Items $(17,154) $(270,476) $(3,647,944) $1,125,614 $5,209,682
======== ========= =========== ========== ==========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 47 47 54 23 5
- Operations Class B Units 0 (27) (561) (262) (54)
Capital Gain (Loss) 0 0 0 0 0
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 53 42 48 21 3
- Operations Class B Units (126) (11) (565) (262) (40)
Capital Gain (Loss) -- -- -- -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 47 47 35 18 --
- Return of Capital Class A Units 23 13 -- -- --
- Return of Capital Class B Units -- -- -- -- --
Source (on Cash Basis)
- Operations Class A Units 70 60 33 12 --
- Return of Capital Class A Units -- -- 2 6 --
- Operations Class B Units -- -- -- -- --
Amount (in Percentage Terms) Remaining Invested in
Program Properties at the end of the Last Year Reported
in the Table 100%
</TABLE>
- -------------------
(1) Includes $4,105 in equity in earnings of joint ventures and $90,174 from
investment of reserve funds in 1991; $194,776 in equity in earnings of
joint ventures and $226,756 from investment of reserve funds in 1992;
$522,210 in equity in earnings of joint ventures and $48,499 from
investment of reserve funds in 1993; $668,076 in equity in earnings of
joint ventures and $10,515 from investment of reserve funds in 1994; and
$683,934 in equity in earnings of joint ventures and $10,587 from
investment of reserve funds in 1995. At December 31, 1995, the leasing
status of all developed property was 93.17% including developed property in
initial lease-up.
(2) Includes partnership administrative expenses and property taxes.
(3) Included in equity in earnings of joint ventures in gross revenue is
depreciation and amortization of $5,484 for 1991, $95,155 for 1992,
$218,173 for 1993, $309,421 for 1994, and $368,943 for 1995.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated as follows: $20,738 to Class A
Limited Partners, $(10,586) to Class B Limited Partners and $(107) to
General Partners for 1991; $302,347 to Class A Limited Partners, $(101,012)
to Class B Limited Partners and $(393) to General Partners for 1992;
$713,069 to Class A Limited Partners and $(216,158) to Class B Limited
Partners for 1993; $615,309 to Class A Limited Partners and $(10,298) to
Class B Limited Partners for 1994; and $623,867 to Class A Limited
Partners, $0 to Class B Limited Partners and $0 to General Partners for
1995.
A-5
<PAGE>
TABLE III
(UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND V, L.P.
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
----------- ------------- ------------ ------------- ----
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $ 764,624 $ 656,958 $ 458,213 $ 58,640 N/A
Profit on Sale of Properties -- -- -- --
Less: Operating Expenses/(2)/ 68,735 88,987 96,964 71,521
Depreciation and Amortization/(3)/ 6,250 6,250 6,250 5,208
---------- ----------- ----------- -----------
Net Income (Loss) GAAP Basis/(4)/ $ 689,639 $ 561,721 $ 354,999 $ (18,089)
========== =========== =========== ===========
Taxable Income (Loss): Operations $ 676,367 $ 528,025 $ 280,000 $ (18,089)
========== =========== =========== ===========
Cash Generated (Used By):
Operations (46,235) (10,395) 112,594 (33,006)
Joint Ventures 1,020,905 653,729 54,154 --
---------- ----------- ----------- -----------
$ 974,670 $ 643,334 $ 166,748 $ (33,006)
Less Cash Distributions to Investors:
Operating Cash Flow 969,011 643,334 151,336 --
Return of Capital -- 44,257 -- --
Undistributed Cash Flow from Prior Year Operations -- 15,412
---------- ----------- ----------- -----------
Cash Generated (Deficiency) after Cash Distributions $ 5,659 $ (59,669) $ 15,412 $ (33,006)
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions -- -- -- --
Increase in Limited Partner Contributions -- -- 5,589,786 11,416,234
---------- ----------- ----------- -----------
$ 5,659 $ (59,699) $ 5,605,198 $11,383,228
Use of Funds:
Sales Commissions and Offering Expenses -- -- 764,599 1,377,645
Return of Original Limited Partner's Investment -- -- -- 100
Property Acquisitions and Deferred Project Costs (233,501) 2,366,507 7,755,116 4,181,338
---------- ----------- ----------- -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $ (227,842) $(2,426,206) $(2,914,517) $ 5,824,145
========== =========== =========== ===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 73 58 29 0
- Operations Class B Units (272) (180) (54) (65)
Capital Gain (Loss) 0 0 0
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 69 55 36 --
- Operations Class B Units (246) (181) (58) (21)
Capital Gain (Loss) -- -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 63 46 10 --
- Return of Capital Class A Units -- -- -- --
- Return of Capital Class B Units -- -- -- --
Source (on Cash Basis)
- Operations Class A Units 63 43 10 --
- Return of Capital Class A Units -- 3 -- --
- Operations Class B Units -- -- -- --
Amount (in Percentage Terms) Remaining Invested in Program
Properties at the end of the Last Year Reported in the Table 100%
</TABLE>
- -------------------
(1) Includes $19,125 in equity in loss of joint ventures and $77,765 from
investment of reserve funds in 1992; $207,234 in equity in earnings of
joint ventures and $250,979 from investment of reserve funds in 1993;
$592,902 in equity in earnings of joint ventures and $64,056 from
investment of reserve funds in 1994; and $745,173 in equity in earnings of
joint ventures and $19,451 from investment of reserve funds in 1995. At
December 31, 1995, the leasing status of all developed property was 92.32%
including developed property in initial lease-up.
(2) Includes partnership administrative expenses.
(3) Included in equity in earnings (loss) of joint ventures in gross revenue is
depreciation and amortization of $100,796 for 1993, $324,578 for 1994, and
$440,333 for 1995.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated as follows: $(17,908) to Class
B Limited Partners and $(181) to General Partners for 1992; $442,135 to
Class A Limited Partners, $(87,868) to Class B Limited Partners and $732 to
General Partners for 1993; $879,232 to Class A Limited Partners, $(316,460)
to Class B Limited Partners and $(1,051) to General Partners for 1994; and
$1,124,203 to Class A Limited Partners and $(434,564) to Class B Limited
Partners and $0 for 1995.
A-6
<PAGE>
TABLE III
(UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND VI, L.P.
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
-------------- ------------- ------------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $ 1,002,567 $ 819,535 $ 82,723 N/A N/A
Profit on Sale of Properties -- -- --
Less: Operating Expenses/(2)/ 94,489 112,389 46,608
Depreciation and Amortization/(3)/ 6,250 6,250 4,687
------------ ----------- -----------
Net Income GAAP Basis/(4)/ $ 901,828 $ 700,896 $ 31,428
============ =========== ===========
Taxable Loss: Operations $ 916,531 $ 667,682 $ 31,428
============ =========== ===========
Cash Generated (Used By):
Operations 278,728 276,376 (2,478)
Joint Ventures 766,212 203,543 --
------------ ----------- -----------
$ 1,044,940 $ 479,919 $ (2,478)
Less Cash Distributions to Investors:
Operating Cash Flow 1,044,940 245,800 --
Return of Capital -- -- --
Undistributed Cash Flow from Prior Year Operations 216,092 -- --
------------ ----------- -----------
Cash Generated (Deficiency) after Cash Distributions $ (216,092) $ 234,119 $ (2,478)
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions -- -- --
Increase in Limited Partner Contributions -- 12,163,461 12,836,539
------------ ----------- -----------
$ -- $12,397,580 $12,834,061
Use of Funds:
Sales Commissions and Offering Expenses -- 1,776,909 1,781,724
Return of Original Limited Partner's Investment -- -- 100
Property Acquisitions and Deferred Project Costs 10,721,376 5,912,454 3,856,239
------------ ----------- -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $(10,937,468) $ 4,708,217 $ 7,195,998
============ =========== ===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 57 43 9
- Operations Class B Units (60) (12) (5)
Capital Gain (Loss) -- -- 0
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 56 41 1
- Operations Class B Units (51) (22) --
Capital Gain (Loss) -- -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 57 14 --
- Return of Capital Class A Units 4 -- --
- Return of Capital Class B Units -- -- --
Source (on Cash Basis)
- Operations Class A Units 61 14 --
- Operations Class B Units -- -- --
Amount (in Percentage Terms) Remaining Invested in
Program Properties at the end of the Last Year Reported in
the Table 100%
</TABLE>
- -----------------
(1) Includes $3,436 in equity in loss of joint ventures and $86,159 from
investment of reserve funds in 1993, $285,711 in equity in earnings of
joint ventures and $533,824 from investment of reserve funds in 1994, and
$681,033 in equity in earnings of joint ventures and $321,534 from
investment of reserve funds in 1995. At December 31, 1995, the leasing
status was 94%.
(2) Includes partnership administrative expenses.
(3) Included in equity in loss of joint ventures in gross revenues is
depreciation of $3,436 for 1993, $107,807 for 1994, and $264,866 for 1995.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated $39,551 to Class A Limited
Partners, $(8,042) to Class B Limited Partners and $(81) to the General
Partner for 1993; $762,218 to Class A Limited Partners, $(62,731) to Class
B Limited Partners and $1,409 to the General Partners for 1994; and
$1,172,944 to Class A Limited Partners and $(269,288) to Class B Limited
Partners and $(1,828) to the General Partners for 1995.
A-7
<PAGE>
TABLE III
(UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND VII, L.P.
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
-------------- ------------ ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $ 925,246 $ 286,371 N/A N/A N/A
Profit on Sale of Properties --
Less: Operating Expenses/(2)/ 114,953 78,420
Depreciation and Amortization/(3)/ 6,250 4,688
------------ -----------
Net Income GAAP Basis/(4)/ $ 804,043 $ 203,263
============ ===========
Taxable Income: Operations $ 812,402 $ 195,067
============ ===========
Cash Generated (Used By):
Operations 431,728 47,595
Joint Ventures 424,304 14,243
------------ -----------
$ 856,032 $ 61,838
Less Cash Distributions to Investors:
Operating Cash Flow 856,032 52,195
Return of Capital 22,064 --
Undistributed Cash Flow from Prior Year Operations 9,643 --
------------ -----------
Cash Generated (Deficiency) after Cash Distributions $ (31,707) $ 9,643
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions -- --
Increase in Limited Partner Contributions $ 805,212 $23,374,961
------------ -----------
$ 773,505 $23,384,604
Use of Funds:
Sales Commissions and Offering Expenses 244,207 3,351,569
Return of Original Limited Partner's Investment 100 --
Property Acquisitions and Deferred Project Costs 14,971,002 4,477,765
------------ -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $(14,441,804) $15,555,270
============ ===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 57 29
- Operations Class B Units (20) 9
Capital Gain (Loss) --
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 55 28
- Operations Class B Units (16) 17
Capital Gain (Loss) -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 52 7
- Return of Capital Class A Units -- --
- Return of Capital Class B Units -- --
Source (on Cash Basis)
- Operations Class A Units 51 7
- Return of Capital Class A Units 1 --
- Operations Class B Units -- --
Source (on a Priority Distribution Basis)/5/
- Investment income Class A Units 30 4
- Return of Capital Class A Units 22 3
- Return of Capital Class B Units -- --
Amount (in Percentage Terms) Remaining Invested in
Program Properties at the end of the Last Year Reported in
the Table 100%
</TABLE>
- -------------------
(1) Includes $78,799 in equity in earnings of joint ventures and $207,572 from
investment of reserve funds in 1994, and $403,325 in equity in earnings of
joint ventures and $521,921 from investment of reserve funds in 1995. At
December 31, 1995, the leasing status was 89.6%.
(2) Includes partnership administrative expenses.
(3) Included in equity in earnings of joint ventures in gross revenues is
depreciation of $25,468 for 1994, and $140,533 for 1995.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated $233,337 to Class A Limited
Partners, $(29,854) to Class B Limited Partners and $(220) to the General
Partner for 1994; and $950,826 to Class A Limited Partners, $(146,503) to
Class B Limited Partners and $(280) to the General Partners for 1995.
(5) Pursuant to the terms of the partnership agreement, an amount equal to the
cash distributions paid to Class A Limited Partners is payable as priority
distributions out of the first available net proceeds from the sale of
partnership properties to Class B Limited Partners. The amount of cash
distributions paid per Unit to Class A Limited Partners is shown as a
return of capital to the extent of such priority distributions payable to
Class B Limited Partners. As of December 31, 1995, the aggregate amount of
such priority distributions payable to Class B Limited Partners totalled
$380,770.
A-8
<PAGE>
TABLE III
(UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND VIII, L.P.
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
------------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $ 402,428 N/A N/A N/A N/A
Profit on Sale of Properties
Less: Operating Expenses/(2)/ 122,264
Depreciation and Amortization/(3)/ 6,250
-----------
Net Income GAAP Basis/(4)/ $ 273,914
===========
Taxable Income: Operations $ 404,348
===========
Cash Generated (Used By):
Operations 204,790
Joint Ventures 20,287
-----------
$ 225,077
Less Cash Distributions to Investors:
Operating Cash Flow --
-----------
Cash Generated (Deficiency) after Cash Distributions $ 225,077
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions
Increase in Limited Partner Contributions/(5)/ 30,144,542
-----------
$30,369,619
Use of Funds:
Sales Commissions and Offering Expenses 4,310,028
Return of Original Limited Partner's Investment --
Property Acquisitions and Deferred Project Costs 6,618,273
-----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $19,441,318
===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 28
- Operations Class B Units (7)
Capital Gain (Loss)
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 17
- Operations Class B Units (3)
Capital Gain (Loss)
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units --
- Return of Capital Class A Units --
- Return of Capital Class B Units --
Source (on Cash Basis)
- Operations Class A Units --
- Operations Class B Units --
Amount (in Percentage Terms) Remaining Invested in
Program Properties at the end of the Last Year Reported in
the Table 100%
</TABLE>
- ---------------
(1) Includes $28,377 in equity in earnings of joint ventures and $374,051 from
investment of reserve funds in 1995. At December 31, 1995, the leasing
status was 93.7%.
(2) Includes partnership administrative expenses.
(3) Included in equity in earnings of joint ventures in gross revenues is
depreciation of $14,058 for 1995.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated $294,221 to Class A Limited
Partners, $(20,104) to Class B Limited Partners and $(203) to the General
Partners for 1995.
(5) At December 31, 1995, Wells Real Estate Fund VIII, L.P. had not yet
completed its offering of Limited Partnership Units.
A-9
<PAGE>
EXHIBIT B
FORM OF AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
WELLS REAL ESTATE FUND X/XI, L.P.
<PAGE>
WELLS REAL ESTATE FUND X/XI, L.P.
TABLE OF CONTENTS TO PARTNERSHIP AGREEMENT
Page
----
I FORMATION................................................ B-1
II NAME..................................................... B-1
III DEFINITIONS.............................................. B-1
IV BUSINESS................................................. B-7
V NAMES AND ADDRESSES OF PARTNERS.......................... B-7
VI TERM..................................................... B-8
VII PRINCIPAL AND REGISTERED OFFICE AND REGISTERED AGENT..... B-8
VIII CAPITAL CONTRIBUTIONS.................................... B-8
IX DISTRIBUTIONS............................................ B-13
X ALLOCATIONS.............................................. B-16
XI MANAGEMENT OF THE PARTNERSHIP............................ B-19
XII SERVICES TO PARTNERSHIP BY GENERAL PARTNERS.............. B-29
XIII TRANSACTIONS BETWEEN GENERAL PARTNERS AND THE PARTNERSHIP B-31
XIV INDEPENDENT ACTIVITIES OF PARTNERS....................... B-31
XV BOOKS, REPORTS, FISCAL AND TAX MATTERS................... B-32
XVI RIGHTS AND LIABILITIES OF THE LIMITED PARTNERS........... B-35
XVII WITHDRAWAL OR REMOVAL OF GENERAL PARTNERS;
ASSIGNABILITY OF GENERAL PARTNERS'
AND LIMITED PARTNERS' INTERESTS......................... B-37
XVIII LOANS TO PARTNERSHIP..................................... B-40
XIX POWER OF ATTORNEY, CERTIFICATES AND OTHER DOCUMENTS...... B-40
XX DISSOLUTION AND TERMINATION OF THE PARTNERSHIP........... B-42
XXI DISTRIBUTION ON TERMINATION OF PARTNERSHIP............... B-45
XXII GENERAL PROVISIONS....................................... B-46
<PAGE>
FORM OF AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WELLS REAL ESTATE FUND X/XI, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is made and entered
into effective as of the _____ day of ___________, 199__, by and among LEO F.
WELLS, III, a Georgia resident, and WELLS PARTNERS, L.P., a Georgia limited
partnership, as the General Partners, and Brian M. Conlon, a Georgia resident,
as the Initial Limited Partner, and those parties who from time to time become
Limited Partners as provided in this Agreement, as the Limited Partners.
WHEREAS, on June 20, 1996, a Certificate of Limited Partnership was filed with
the Secretary of State of the State of Georgia, pursuant to which the General
Partners and the Initial Limited Partner formed a limited partnership (the
"Partnership") under the Georgia Revised Uniform Limited Partnership Act,
O.C.G.A. (S) 14-9-100, et seq. (the "Act"); and
WHEREAS, the parties hereto desire to amend, restate and supersede in its
entirety the original partnership agreement pursuant to the terms and provisions
of this Amended and Restated Agreement of Limited Partnership.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
conditions herein contained, the parties hereto hereby agree, and the limited
partnership agreement of the Partnership shall hereafter be restated and amended
in its entirety, as follows:
ARTICLE I
FORMATION
The General Partners have executed and filed a Certificate of Limited
Partnership dated June 20, 1996, with the Secretary of State of the State of
Georgia in accordance with the provisions of Section 14-9-201 of the Act,
pursuant to which the parties hereto have previously formed the Partnership.
ARTICLE II
NAME
The business of the Partnership shall be conducted under the name of "WELLS
REAL ESTATE FUND __, L.P." or such other name as the General Partners shall
hereafter designate in their discretion from time to time.
ARTICLE III
DEFINITIONS
3.1 "ACT" shall mean the provisions of the Georgia Revised Uniform Limited
Partnership Act, O.C.G.A. (S)14-9-100, et seq.
3.2 "ACQUISITION EXPENSES" shall mean expenses, including, but not limited
to, legal fees and expenses, travel and communications expenses, costs of
appraisals, nonrefundable option payments on property not acquired, accounting
fees
B-1
<PAGE>
and expenses, title insurance and miscellaneous expenses related to selection
and acquisition of properties, whether or not acquired.
3.3 "ACQUISITION FEES" shall mean the total of all fees and commissions paid
by any party to any Person in connection with the purchase, development or
construction of property by the Partnership, including the Acquisition and
Advisory Fees payable to the General Partners or their Affiliates, real estate
brokerage commissions, investment advisory fees, finder's fees, selection fees,
Development Fees, Construction Fees, nonrecurring management fees, or any other
fees of a similar nature, however designated, but excluding any Development Fees
and Construction Fees paid to a Person not affiliated with the Sponsor in
connection with the actual development or construction of a property.
3.4 "ACQUISITION AND ADVISORY FEE" shall mean the fee payable to the General
Partners or their Affiliates pursuant to Section 12.1 hereof for performing
acquisition advisory services in connection with the review and evaluation of
potential real property acquisitions for the Partnership.
3.5 "ADDITIONAL LIMITED PARTNERS" shall refer to all persons who are admitted
as Limited Partners pursuant to the provisions hereof.
3.6 "AFFILIATE" shall mean (a) any Person directly or indirectly controlling,
controlled by or under common control with a General Partner, (b) any Person
owning or controlling 10% or more of the outstanding voting securities of a
General Partner, (c) any officer, director or partner of a General Partner, and
(d) if such other Person is an officer, director or partner, any company for
which a General Partner acts in any such capacity.
3.7 "AGREEMENT" shall mean this Agreement of Limited Partnership as amended,
modified or supplemented from time to time.
3.8 "ASSIGNEE" shall mean a Person who has acquired a Limited Partner's
beneficial interest in one or more Units and has not become a substituted
Limited Partner.
3.9 "CAPITAL ACCOUNT" shall mean the account established and maintained for
each Partner pursuant to Section 8.1 hereof.
3.10 "CAPITAL CONTRIBUTION" shall mean, in the case of the General Partners,
the aggregate amount of cash contributed by the General Partners to the
Partnership and, in the case of a Limited Partner, the gross amount of
investment in the Partnership by such Limited Partner, which shall be an amount
equal to $10.00 multiplied by the number of Units purchased by such Limited
Partner.
3.11 "CASH FLOW" shall mean cash funds from operations of the Partnership,
including without limitation interest and other investment income but excluding
Capital Contributions and without deduction for depreciation or amortization,
after deducting funds used to pay or to provide for the payment of all operating
expenses of the Partnership and each Partnership Property and debt service, if
any, capital improvements and replacements.
3.12 "CERTIFICATE" shall mean the Certificate of Limited Partnership filed by
the General Partners with the Secretary of State of Georgia dated June 20, 1996.
3.13 "CLASS A STATUS UNIT" shall mean a Unit with respect to which the
Limited Partner holding such Unit has made an effective election pursuant to
Section 8.16 hereof to be treated as a Class A Status Unit for the applicable
accounting period.
3.14 "CLASS B STATUS UNIT" shall mean a Unit with respect to which the
Limited Partner holding such Unit has made an effective election pursuant to
Section 8.16 hereof to be treated as a Class B Status Unit for the applicable
accounting period.
B-2
<PAGE>
3.15 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
3.16 "CONSTRUCTION FEES" shall mean any fees or other remuneration for acting
as general contractor and/or construction manager to construct, supervise and/or
coordinate improvements in connection with the actual development or
construction of a Partnership Property.
3.17 "DEVELOPMENT FEES" shall mean any fees or other remuneration for the
packaging of a Partnership Property, including negotiating and approving plans,
assisting in obtaining zoning and necessary variances for a specific property,
and related matters.
3.18 "DISSENTING LIMITED PARTNER" shall mean any Limited Partner who casts a
vote against a Roll-Up; except that, for purposes of a transaction constituting
a Roll-Up which involves an exchange or a tender offer, Dissenting Limited
Partner shall mean any person who files a dissent from the terms of the
transaction with the party responsible for tabulating the votes or tenders to be
received in connection with the transaction during the period in which the offer
is outstanding.
3.19 "DISTRIBUTION REINVESTMENT PLAN" shall mean the plan established
pursuant to Section 8.15 hereof.
3.20 "EVENT OF WITHDRAWAL" shall mean, as to the General Partners (a) the
dissolution, death or permanent disability of a General Partner; (b) if such
General Partner (i) makes an assignment for the benefit of the creditors; (ii)
files a voluntary petition in bankruptcy; (iii) is adjudicated a bankrupt or
insolvent; (iv) files a petition or answer speaking for himself or itself in the
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any statute, law or regulation; (v) files an answer or
other pleading admitting or failing to contest the material allegations of the
petition filed against him or it in any proceeding of this nature; (vi) seeks,
consents to or acquiesces in the appointment of a trustee, receiver or
liquidator of such General Partner of all or a substantial part of his or its
property; or (c) upon (i) the filing of a certificate of dissolution of a
General Partner or the revocation of a General Partner's charter and lapse of 90
days after notice to the General Partner of revocation without reinstatement of
its charter; (ii) 120 days after the commencement of any proceeding against a
General Partner seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or regulation,
if the proceeding has not been dismissed; or (iii) the expiration of 90 days
after the appointment without such General Partner's consent or acquiescence of
a trustee, receiver or liquidator of such General Partner or of all or any
substantial part of its properties, the appointment of which is not vacated or
stayed within 90 days after the expiration of any stay or, if within 90 days
after the expiration of any stay the appointment is not vacated. If there is at
least one remaining General Partner, an Event of Withdrawal of a General Partner
shall be effective as of the date of any such event; however, if an Event of
Withdrawal shall occur with respect to the last remaining General Partner, the
Event of Withdrawal shall not be effective until 120 days after the event giving
rise to the Event of Withdrawal has occurred.
3.21 "EXPIRATION DATE" shall mean the date on which the Offering terminates
as provided in the Prospectus.
3.22 "FRONT-END FEES" shall mean fees and expenses paid by any party for any
services rendered during the Partnership's organizational or acquisition phase
including Organization and Offering Expenses, Acquisition Fees (including
Acquisition and Advisory Fees), Acquisition Expenses, interest on deferred fees
and expenses, if applicable, and any other similar fees, however designated.
3.23 "GAIN ON SALE" shall mean the taxable income or gain for federal income
tax purposes (including gain exempt from tax) in the aggregate for each fiscal
year from the sale, exchange or other disposition of all or any portion of a
Partnership asset after netting losses from such sales, exchanges or other
dispositions against the gains from such transactions.
3.24 "GENERAL PARTNERS" shall refer collectively to Leo F. Wells, III and
Wells Partners, or any other Person or Persons who succeed any or all of them in
that capacity.
B-3
<PAGE>
3.25 "GROSS REVENUES" shall mean all amounts actually collected as rents or
other charges for the use and occupancy of Partnership Properties, but shall
exclude interest and other investment income of the Partnership and proceeds
received by the Partnership from a sale, exchange, condemnation, eminent domain
taking, casualty or other disposition of assets of the Partnership.
3.26 "IRS" means Internal Revenue Service.
3.27 "INITIAL LIMITED PARTNER" shall mean Brian M.
Conlon.
3.28 "INDEPENDENT EXPERT" shall mean a Person with no material current or
prior business or personal relationship with the Sponsor who is engaged to a
substantial extent in the business of rendering opinions regarding the value of
assets of the type held by the Partnership and who is qualified to perform such
work.
3.29 "INVESTMENT IN PROPERTIES" shall mean the amount of Capital
Contributions actually paid or allocated to the purchase, development,
construction or improvement of properties acquired by the Partnership (including
the purchase of properties, working capital reserves allocable thereto [except
that working capital reserves in excess of 5% shall not be included] and other
cash payments such as interest and taxes, but excluding Front-End Fees).
3.30 "LIMITED PARTNERS" shall refer to the Initial Limited Partner, the
Additional Limited Partners and to all other Persons who are admitted to the
Partnership as additional or substituted Limited Partners.
3.31 "LIQUIDATING DISTRIBUTIONS" shall mean the net cash proceeds received by
the Partnership from (a) the sale, exchange, condemnation, eminent domain
taking, casualty or other disposition of substantially all of the assets of the
Partnership or the last remaining assets of the Partnership or (b) a liquidation
of the Partnership's assets in connection with a dissolution of the Partnership,
after (i) payment of all expenses of such sale, exchange, condemnation, eminent
domain taking, casualty or other disposition or liquidation, including real
estate commissions, if applicable, (ii) the payment of any outstanding
indebtedness and other liabilities of the Partnership, (iii) any amounts used to
restore any such assets of the Partnership, and (iv) any amounts set aside as
reserves which the General Partners in their sole discretion may deem necessary
or desirable.
3.32 "MAJORITY VOTE" shall mean the affirmative vote or written consent of
Limited Partners then owning of record more than 50% of the outstanding Units of
the Partnership, without distinction as to the class of such Units; provided,
however, that any Units owned or otherwise controlled by the General Partners or
their Affiliates may not be voted and will not be included in the total number
of outstanding Units for purposes of this definition.
3.33 "MINIMUM GAIN" shall have the meaning set forth in Treasury Regulations
Section 1.704-2(d).
3.34 "MINIMUM OFFERING" shall mean the receipt and acceptance by the General
Partners of subscriptions for Units aggregating at least $1,250,000 in offering
proceeds.
3.35 "MINIMUM OFFERING EXPIRATION DATE" shall mean six (6) months after the
commencement of the Offering of the Units.
3.36 "NASAA GUIDELINES" shall mean the Statement of Policy Regarding Real
Estate Programs of the North American Securities Administrators Association,
Inc. adopted on October 9 and 12, 1988, effective January 1, 1989, as amended.
3.37 "NET CAPITAL CONTRIBUTION" shall mean, with respect to any Partner, the
Partner's Capital Contribution as reduced from time to time by distributions to
such Partner constituting a return of unused capital pursuant to Section 8.10
hereof or by distributions to such Partner of Nonliquidating Net Sale Proceeds
and Liquidating Distributions pursuant to
B-4
<PAGE>
Sections 9.2 and 9.4 hereof, but excluding distributions made to Limited
Partners pursuant to Section 9.2(a) hereof, and without reduction for
distributions of Net Cash From Operations made pursuant to Section 9.1 hereof.
3.38 "NET CASH FROM OPERATIONS" shall mean Cash Flow, less adequate cash
reserves for other obligations of the Partnership for which there is no
provision and the Repurchase Reserve, if any.
3.39 "NET INCOME" or "NET LOSS" shall mean the net income or loss realized or
recognized by the Partnership for a fiscal year, as determined for federal
income tax purposes, including any income exempt from tax, but excluding all
deductions for depreciation, amortization and cost recovery and Gain on Sale.
3.40 "NONLIQUIDATING NET SALE PROCEEDS" shall mean the net cash proceeds
received by the Partnership from a sale, exchange, condemnation, eminent domain
taking, casualty or other disposition of assets of the Partnership, which does
not constitute substantially all of the remaining assets of the Partnership,
after (a) payment of all expenses of such sale, exchange, condemnation, eminent
domain taking, casualty or other disposition, including real estate commissions,
if applicable, (b) the payment of any outstanding indebtedness and other
Partnership liabilities relating to such assets, (c) any amounts used to restore
any such assets of the Partnership, and (d) any amounts set aside as reserves
which the General Partners in their sole discretion may deem necessary or
desirable.
3.41 "OFFERING" shall mean the offering and sale of Units to the public
pursuant to the terms and conditions set forth in the Prospectus.
3.42 "ORGANIZATION AND OFFERING EXPENSES" shall mean those expenses incurred
in connection with organizing the Partnership, preparing the Partnership for
registration and subsequently offering and distributing the Units to the public,
including without limitation, legal and accounting fees, sales commissions paid
to broker-dealers in connection with the distribution of the Units and all
advertising expenses.
3.43 "PARTICIPATING PERCENTAGE" shall mean at any given time, as to each
holder of a Unit or Units, the percentage of that Person's Unit or Units to the
total Units being measured and shall be determined by dividing the total number
of Units held by such Person by the total number of outstanding Units in the
class or classes being measured and multiplying the quotient thereof by 100.
3.44 "PARTNERS" shall refer collectively to the General Partners and to the
Limited Partners, and reference to a "Partner" shall be to any one of the
Partners.
3.45 "PARTNERSHIP" shall refer to the limited partnership created under this
Agreement.
3.46 "PARTNERSHIP PROPERTY" or "PARTNERSHIP PROPERTIES" shall mean any and
all land and improvements purchased or constructed by the Partnership and all
repairs, replacements or renewals thereof, together with all personal property
acquired by the Partnership which is from time to time located thereon or
specifically used in connection therewith.
3.47 "PERSON" shall mean any natural person, partnership, corporation,
association, or other legal entity, including without limitation, qualified
pension and profit sharing trusts.
3.48 "PREFERENTIAL LIMITED PARTNER RETURN" shall mean with respect to each
Limited Partner Unit the sum of (a) a cumulative (but not compounded) 10% per
annum return on a Limited Partner's Net Capital Contribution with respect to
such Unit for all periods during which such Unit was treated as a Class A Status
Unit, and (b) a cumulative (but not compounded) 15% per annum return on such
Limited Partner's Net Capital Contribution with respect to such Unit for all
periods during which such Unit was treated as a Class B Status Unit. Each
Limited Partner's Preferential Limited Partner Return shall be calculated from
the date on which such Limited Partner's initial Capital Contribution was made
to the Partnership.
B-5
<PAGE>
3.49 "PRIOR WELLS PUBLIC PROGRAMS" shall mean the prior public real estate
limited partnerships sponsored by the General Partners or their Affiliates
having substantially identical investment objectives as the Partnership.
3.50 "PROSPECTUS" shall mean the prospectus used by the Partnership in
connection with its offer and sale of Units pursuant to a Registration Statement
filed under the Securities Act of 1933, as amended.
3.51 "PURCHASE PRICE" shall mean the sum of the prices paid for all
properties by the Partnership (including all Acquisition Fees, liens and
mortgages on the properties, but excluding points and prepaid interest) plus all
costs of improvements, if any, reasonably and properly allocable to the
properties.
3.52 "REGISTRATION STATEMENT" shall mean the registration statement filed by
the Partnership with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, in order to register the Units for sale to
the public.
3.53 "REPURCHASE RESERVE" shall mean the cash reserve established under
Section 11.3(h) hereof, which may be used to repurchase Units from the Limited
Partners in accordance with Section 8.11 hereof.
3.54 "RETIREMENT PLANS" shall mean Individual Retirement Accounts established
under Section 408 of the Code and Keogh or corporate pension or profit sharing
plans established under Section 401(a) of the Code.
3.55 "ROLL-UP" shall mean any transaction or series of transactions that
through acquisition or otherwise involves the combination, reorganization,
merger, conversion or consolidation, either directly or indirectly, of the
Partnership and either the offer, sale or issuance of securities of a Roll-Up
Entity or the acquisition of the Roll-Up Entity's securities by the Partnership;
provided, however, that such term does not include a transaction that (a)
involves securities of the Partnership that have been listed for at least 12
months on a national securities exchange or traded through the National
Association of Securities Dealers Automated Quotation National Market System; or
(b) involves the conversion to corporate, trust or association form of only the
Partnership if, as a consequence of the transaction, there will be no
significant adverse change in any of the following: (i) Limited Partners' voting
rights, (ii) the term of existence of the Partnership, (iii) compensation to the
General Partners or their Affiliates, or (iv) the Partnership's investment
objectives.
3.56 "ROLL-UP ENTITY" shall mean a partnership, real estate investment trust,
corporation, trust or other entity that would be created or would survive after
the successful completion of a proposed Roll-Up.
3.57 "ROLL-UP TRANSACTION COSTS" shall mean the costs of printing and mailing
the proxy, prospectus, or other documents; legal fees; financial advisory fees;
investment banking fees; appraisal fees; accounting fees; independent committee
expenses; travel expenses; and all other fees relating to the preparatory work
of the transaction, but not including costs that would have otherwise been
incurred by the subject limited partnerships in the ordinary course of business.
3.58 "SALE DATE" shall mean the day on which the Partnership realizes any
gain or loss from the sale, exchange or other disposition of Partnership assets
which it is required to allocate to the Partners under Section 10.4 hereof.
3.59 "SPONSOR" shall mean any individual, partnership, corporation or other
legal entity which (i) is directly or indirectly instrumental in organizing,
wholly or in part, the Partnership, (ii) will manage or participate in the
management of the Partnership, and any Affiliate of any such Person, other than
a Person whose only relationship with the Partnership is that of an independent
property manager, whose only compensation is as such, (iii) takes the
initiative, directly or indirectly, in founding or organizing the Partnership,
either alone or in conjunction with one or more other Persons, (iv) receives a
material participation in the Partnership in connection with the founding or
organizing of the business of the Partnership, in consideration of services or
property, or both services and property, (v) has a substantial number of
relationships and contacts with the Partnership, (vi) possesses significant
rights to control Partnership Properties, (vii) receives fees for providing
services to the Partnership which are paid on a basis that is not customary in
the industry, or (viii) provides goods or services to the Partnership on a basis
which was not negotiated at arm's-length with the Partnership.
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3.60 "TREASURY REGULATIONS" shall mean the Income Tax Regulations promulgated
under the Code by the United States Treasury Department.
3.61 "UNIT" shall mean the limited partnership interest entitling the holder
thereof to all rights and benefits under this Agreement including, but not
limited to, an interest in the income, loss, distributions and capital of the
Partnership to be allocated to holders of Units, as set forth in Articles IX and
X hereof. Limited Partners holding Units shall have the right to elect to have
their Units treated as Class A Status Units or Class B Status Units pursuant to
the provisions of Section 8.16 hereof. All Units, whether they be treated as
Class A Status Units or Class B Status Units, shall represent a Capital
Contribution of $10.00 each (irrespective of the fact that because of discounts
in sales commissions and other fees under certain circumstances, certain Units
may be sold and issued for a gross consideration of less than $10.00 per Unit),
shall be issued as fully paid and nonassessable and shall have the same rights,
privileges and preferences except as expressly provided herein.
3.62 "WELLS CAPITAL" shall mean Wells Capital, Inc., a Georgia corporation.
3.63 "WELLS PARTNERS" shall mean Wells Partners, L.P., a Georgia
limited partnership.
ARTICLE IV
BUSINESS
4.1 PURPOSE. The principal purpose of the Partnership is to acquire,
-------
develop, construct, own, operate, improve, lease and otherwise manage for
investment purposes, either alone or in association with others, a diversified
portfolio of income-producing commercial or industrial properties as shall from
time to time be acquired by the Partnership and to engage in any or all general
business activities related to or incidental to such principal purpose.
4.2 OBJECTIVES. The business of the Partnership shall be conducted with
----------
the following objectives:
(a) To maximize Net Cash From Operations;
(b) To preserve, protect and return the Partners' investment in the
Partnership; and
(c) To realize appreciation in value of Partnership Properties.
ARTICLE V
NAMES AND ADDRESSES OF PARTNERS
The names of the General Partners are Wells Partners, L.P., a Georgia limited
partnership, and Leo F. Wells, III. The name of the Initial Limited Partner is
Brian M. Conlon. The business address of the General Partners and the Initial
Limited Partner is 3885 Holcomb Bridge Road, Norcross, Georgia 30092. The names
and addresses of all the Additional Limited Partners shall be set forth in the
books and records of the Partnership.
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ARTICLE VI
TERM
The Partnership term commenced upon the filing of the Certificate and
shall continue until December 31, 2026, unless sooner terminated as hereinafter
provided.
ARTICLE VII
PRINCIPAL AND REGISTERED OFFICE AND REGISTERED AGENT
The principal and registered office of the Partnership shall be 3885
Holcomb Bridge Road, Norcross, Georgia 30092. The General Partners may from
time to time change the principal place of business and, in such event, shall
notify the Limited Partners in writing of the change and the effective date of
such change. The registered agent for the Partnership at such address shall be
Wells Capital, Inc.
ARTICLE VIII
CAPITAL CONTRIBUTIONS
8.1 CAPITAL ACCOUNTS. A separate Capital Account shall be maintained
----------------
for each Partner. The Capital Accounts of the Partners shall be determined and
maintained throughout the term of the Partnership in accordance with the capital
accounting rules of Treasury Regulations Section 1.704-1(b), as it may be
amended or revised from time to time.
8.2 GENERAL PARTNERS. The General Partners shall make Capital
----------------
Contributions to the Partnership as follows:
Name Dollar Amount
---- -------------
Wells Partners, L.P. $400
Leo F. Wells, III 100
----
Total $500
8.3 GENERAL PARTNER PURCHASE OF UNITS. The Capital Contributions
---------------------------------
of General Partners, together with the Capital Contribution of the Initial
Limited Partner, shall constitute the initial capital of the Partnership and
shall not entitle the General Partners to any Units. The General Partners may,
in their discretion, make additional Capital Contributions to the capital of the
Partnership in exchange for the purchase of Units. Any General Partner who
purchases Units shall continue, in all respects, to be treated as a General
Partner but shall receive the income, losses and cash distributions with respect
to any Units purchased by such General Partner on the same basis as other
Partners may receive with respect to their Units. Units purchased by the General
Partners or their Affiliates shall not be entitled to vote on any transaction
requiring Limited Partner approval.
8.4 INITIAL LIMITED PARTNER. The Initial Limited Partner shall
-----------------------
contribute $100 in cash to the Partnership and agrees that his interest shall
automatically be redeemed for $100 upon the admission of any Additional Limited
Partners to the Partnership.
8.5 LIMITED PARTNER CONTRIBUTIONS. The General Partners are
-----------------------------
authorized and directed to raise capital for the Partnership as provided in the
Prospectus by offering and selling not more than an aggregate of 3,500,000 Units
as follows:
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(a) Each Unit shall be issued for a purchase price of $10.00 less
any discounts authorized in the Prospectus.
(b) Except as set forth below, the minimum purchase of either
class or combination of Units shall be 100 Units (or such greater minimum number
of Units as may be required under applicable state or federal laws). Except in
certain states, subscribers who have satisfied the minimum purchase requirements
and have purchased units in Prior Wells Public Programs may purchase less than
the minimum number of Units described above, but in no event less than 2.5
Units. In addition, after subscribers have satisfied the minimum purchase
requirements, the minimum additional investment in the Partnership shall not be
less than 2.5 Units. Fractional Units may be sold at the discretion of the
General Partners. Notwithstanding the foregoing, the provisions set forth above
relating to the minimum number of Units which may be purchased shall not apply
to purchases of Units pursuant to the Distribution Reinvestment Plan described
in Section 8.15 hereof or a qualified Distribution Reinvestment Plan authorized
by the partnership agreement of one of the Prior Wells Public Programs. The
suitability standards set forth in the Prospectus will not be decreased with
respect to any investment in Units of the Partnership.
(c) The General Partners may refuse to accept subscriptions for
Units and contributions tendered therewith for any reason whatsoever.
Subscriptions shall be so accepted or rejected by the General Partners within 30
days of their receipt. If rejected, all funds will be returned to the subscriber
within ten business days. Once accepted, such subscription amounts shall be
deposited in escrow within 48 hours or deposited to the Partnership's account,
as may then be appropriate under this Agreement.
(d) Each Unit sold to a subscriber shall be fully paid and
nonassessable.
8.6 ADMISSION OF LIMITED PARTNERS. No action or consent by any
-----------------------------
Limited Partners shall be required for the admission of Additional Limited
Partners to the Partnership, provided that the Partnership may not issue more
than 3,500,000 Units. Funds of subscribers for Units shall be held in the escrow
account described in Section 8.8 below. Such funds shall not be released from
escrow, and no subscribers for Units shall be admitted to the Partnership unless
and until the receipt and acceptance by the Partnership of the Minimum Offering.
At any time thereafter, the Capital Contributions of such subscribers may be
released directly to the Partnership, provided that such subscribers shall be
admitted to the Partnership within 15 days after such release. Subscriptions
from subsequent subscribers shall be accepted or rejected within 30 days of
receipt by the Partnership, and if rejected, all funds shall be returned to
subscribers within 10 business days. Subsequent subscribers shall be deemed
admitted as Limited Partners of the Partnership on the day on which the
subscriptions from such Persons are accepted by the Partnership.
No Person shall be admitted as a Limited Partner who has not executed
and delivered to the Partnership the Subscription Agreement specified in the
Prospectus, together with such other documents and instruments as the General
Partners may deem necessary or desirable to effect such admission, including,
but not limited to, the written acceptance and agreement by such Person to be
bound by the terms and conditions of this Agreement.
8.7 MINIMUM CAPITALIZATION. The Offering will terminate if the
----------------------
Partnership has not received and accepted subscriptions for the Minimum Offering
on or before the Minimum Offering Expiration Date.
8.8 ESCROW. Until subscriptions for the Minimum Offering are
------
received and accepted by the General Partners, or until the Minimum Offering
Expiration Date, whichever first occurs, all subscription proceeds shall be held
in an escrow account separate and apart from all other funds and invested in
obligations of, or obligations guaranteed by, the United States government, or
bank money-market accounts or certificates of deposit of national or state banks
that have deposits insured by the Federal Deposit Insurance Corporation
(including certificates of deposit of any bank acting as a depository or
custodian for any such funds), which mature on or before the Minimum Offering
Expiration Date, unless such instrument cannot be readily sold or otherwise
disposed of for cash by the Minimum Offering Expiration Date without any
dissipation of the subscription proceeds invested, all in the discretion of such
escrow agent or agents appointed by the General Partners. All moneys tendered by
Persons whose subscriptions are rejected shall be returned, without interest, to
such Persons
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promptly after such rejection. If subscriptions for the Minimum Offering are
not received and accepted before the Minimum Offering Expiration Date, those
subscriptions and funds in escrow on such date shall be returned to the
subscribers, together with any interest earned thereon after deducting escrow
expenses (except for Maine, Missouri, Ohio and Pennsylvania residents).
Notwithstanding the above, subscriptions from residents of New York and
Pennsylvania may not be released from escrow to the Partnership until the
receipt and acceptance by the General Partners of subscriptions from all sources
for not less than 250,000 Units.
8.9 PUBLIC OFFERING. Except as otherwise
---------------
provided in this Agreement, the General Partners shall have sole and complete
discretion in determining the terms and conditions of the offer and sale of
Units and are hereby authorized and directed to do all things which they deem to
be necessary, convenient, appropriate and advisable in connection therewith,
including, but not limited to, the preparation and filing of the Registration
Statement with the Securities and Exchange Commission and the securities
commissioners (or similar agencies or officers) of such jurisdictions as the
General Partners shall determine, and the execution or performance of agreements
with selling agents and others concerning the marketing of the Units, all on
such basis and upon such terms as the General Partners shall determine.
8.10 RETURN AND WITHDRAWAL OF CAPITAL.
--------------------------------
(a) Any proceeds of the Offering of the Units not invested or
committed to the acquisition or development of specific real properties within
the later of two years from the effective date of the Registration Statement or
one year after the termination of the Offering (except for necessary operating
expenses and any reserves under Section 11.3(h) of this Agreement) shall be
distributed pro rata to the Limited Partners as a return of capital. In such
event, the amount paid to the Limited Partners shall include Front-End Fees but
only to the extent such fees exceed the adjusted allowable Front-End Fees based
on the obligation of the General Partners pursuant to Section 12.2(b) hereof to
commit at least 80% of the remaining Capital Contributions to Investment in
Properties. For purposes of the foregoing, funds will be deemed to have been
committed and will not be distributed to the extent such funds would be required
to acquire property with respect to which contracts, agreements in principle or
letters of understanding have been executed, regardless of whether such property
is actually acquired, and to the extent such funds have been reserved to make
contingent payments in connection with the acquisition, development or
improvement of any property, whether or not any such payments are made. No such
return shall be made until this Agreement has been amended to reflect such
reduction of capital. Any distribution pursuant to this Section 8.10(a) shall
be deemed to have been consented to by the Limited Partners.
(b) No Partner, including a withdrawing Partner, shall have any right
to withdraw or make a demand for withdrawal of any such Partner's Capital
Contribution (or the capital interest reflected in such Partner's Capital
Account) until the full and complete winding up and liquidation of the business
of the Partnership unless such withdrawal is provided for herein.
8.11 REPURCHASE OF UNITS. After one year
-------------------
following the termination of the Offering of Units, the Partnership shall have
the right, in the sole discretion of the General Partners, to use funds held in
the Repurchase Reserve to purchase Units upon written request of a Limited
Partner. The establishment of a Repurchase Reserve is in the sole discretion of
the General Partners, and if established, the Repurchase Reserve may be
terminated and/or reestablished at any time in the sole discretion of the
General Partners.
(a) In no event shall the Repurchase Reserve exceed 5% of the Cash
Flow in any given year.
(b) A Limited Partner wishing to have his Units repurchased must mail
or deliver a written request to the Partnership (executed by the trustee or
authorized agent in the case of Retirement Plans) indicating his desire to have
such Units repurchased. Such requests will be considered by the General
Partners in the order in which they are received.
(c) In the event that the General Partners decide to honor a request,
they will notify the requesting Limited Partner in writing of such fact, of the
purchase price for the repurchased Units and of the effective date of the
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repurchase transaction (which shall be not less than 60 nor more than 75
calendar days following the receipt of the written request by the Partnership)
and will forward to such Limited Partner the documents necessary to effect such
repurchase transaction.
(d) Fully executed documents to effect the repurchase transaction must
be returned to the Partnership at least 30 days prior to the effective date of
the repurchase transaction.
(e) The purchase price for the repurchased Units shall be established
by the Partnership no more often than on a quarterly basis.
(f) The purchase price for repurchased Units will be equal to 85% of
the fair market value of the Units until three years from the effective date of
the Registration Statement, and 90% of the fair market value of the Units
thereafter. Fair market value shall be determined by the General Partners based
upon an estimate of the amount the Limited Partners would receive if the
Partnership's real estate investments were sold for their estimated value and if
such proceeds were distributed in a liquidation of the Partnership.
(g) Only amounts then held in the Repurchase Reserve may be used to
repurchase Units.
(h) Upon receipt of the required documentation, the Partnership will,
on the effective date of the repurchase transaction, repurchase the Units of the
Limited Partner, provided that if sufficient amounts are not then available in
the Repurchase Reserve to repurchase all of such Units, only a portion of such
Units will be repurchased; and provided further, that the Partnership may not
repurchase any Units of such Limited Partner if, as a result thereof, the
Limited Partner would own less than the minimum investment. Units repurchased
by the Partnership pursuant to this Section 8.11 shall be promptly canceled.
(i) In the event that insufficient funds are available in the
Repurchase Reserve to repurchase all of such Units, the Limited Partner will be
deemed to have priority for subsequent Partnership repurchases over Limited
Partners who subsequently request repurchases.
(j) Repurchases of Units out of the Repurchase Reserve shall be
subject to the restrictions set forth in Section 17.3(g) hereof.
(k) In addition to the restrictions set forth in Section 17.3(g)
hereof, (i) repurchases out of the Repurchase Reserve may not exceed in the
aggregate more than 2% of total Capital Contributions throughout the life of the
Partnership excluding repurchases of Units relating to the death or legal
incapacity of the owner or a substantial reduction in the owner's net worth or
income (defined to mean an involuntary loss of not less than 50% of income or
net worth during the year in which such repurchase occurs); and (ii) not more
than 2% of the outstanding Units may be purchased in any year, provided in each
case that the Partnership has sufficient cash to make the purchase and that the
purchase will not be in violation of any other applicable legal requirements.
(l) In no event shall Units owned by the
General Partners or their Affiliates be repurchased by the Partnership.
8.12 INTEREST ON CAPITAL CONTRIBUTIONS. No
---------------------------------
interest shall be paid on any Capital Contributions.
8.13 OWNERSHIP BY LIMITED PARTNER OF INTEREST IN AFFILIATES OF
---------------------------------------------------------
GENERAL PARTNERS. No Limited Partner (other than a General Partner, in the event
- ----------------
that he or it is also a Limited Partner) shall at any time, either directly or
indirectly, own any stock or other interest in any Affiliate of any General
Partner if such ownership, by itself or in conjunction with the stock or other
interest owned by other Limited Partners would, in the opinion of counsel for
the Partnership, jeopardize the classification of the Partnership as a
partnership for federal income tax purposes. The General Partners shall be
entitled
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to make such reasonable inquiry of the Limited Partners and prospective Limited
Partners as is required to establish compliance by the Limited Partners with the
provisions of this Section 8.13.
8.14 DEFICIT CAPITAL ACCOUNTS. The Limited Partners shall not be
------------------------
required to reimburse the Partnership or any other Partner for deficiencies in
their Capital Accounts. In addition, except as may be required under state law,
the General Partners shall not be required to reimburse the Partnership or the
Limited Partners for deficiencies in their Capital Accounts.
8.15 DISTRIBUTION REINVESTMENT PLAN.
------------------------------
(a) A Limited Partner who acquired his Units in the Offering may elect
to participate in a program for the reinvestment of his distributions (the
"Distribution Reinvestment Plan") and have his distributions of Net Cash From
Operations reinvested in Units of the Partnership during the offering period or
in units issued by a subsequent limited partnership sponsored by the General
Partners or their Affiliates which has substantially identical investment
objectives as the Partnership. A Limited Partner who acquired his Units by
transfer from a former Limited Partner is not eligible to have his distributions
of Net Cash From Operations reinvested in Units of the Partnership, but may
participate in the Distribution Reinvestment Plan with respect to reinvestment
in units issued by a subsequent limited partnership sponsored by the General
Partners or their Affiliates which has substantially identical investment
objectives as the Partnership. Limited Partners participating in the
Distribution Reinvestment Plan may purchase fractional Units and shall not be
subject to minimum investment requirements, although the General Partners may,
at their option, impose certain minimum investment requirements or restrictions
with respect to purchases of Units pursuant to the Distribution Reinvestment
Plan. Each Limited Partner electing to have such distributions of Net Cash From
Operations reinvested will receive, with each confirmation of distributions, a
notice advising such Limited Partner that he is entitled to change his election
with respect to subsequent distributions by return of a notice to the
Partnership by a date to be specified by the General Partners.
(b) If a Limited Partner withdraws from participation in the
Distribution Reinvestment Plan, such withdrawal shall be effective only with
respect to distributions made more than 30 days following receipt by the General
Partners of written notice of such withdrawal. In the event a Limited Partner
transfers his Units, such transfer shall terminate the Limited Partner's
participation in the plan as of the first day of the quarter in which such
transfer is effective.
(c) Distributions may be reinvested in a subsequent limited
partnership only if (i) prior to the time of such reinvestment, the Limited
Partner has received the final prospectus (and any supplements thereto) offering
interests in the subsequent limited partnership and such prospectus allows
investment pursuant to a distribution reinvestment plan; (ii) a registration
statement covering the interests in the subsequent limited partnership has been
declared effective under the Securities Act of 1933; (iii) the offer or sale of
such interests is qualified for sale under the applicable state securities laws;
(iv) the participant executes the subscription agreement included with the
prospectus for the subsequent limited partnership; (v) the participant qualifies
under the applicable investor suitability standards as contained in the
prospectus for the subsequent limited partnership; and (vi) the subsequent
limited partnership has substantially identical investment objectives as the
Partnership. If (A) any of the foregoing conditions are not satisfied at the
time of a distribution or (B) no interests are available to be purchased, such
distributions will be paid in cash.
(d) Each Limited Partner electing to participate in the Distribution
Reinvestment Plan hereby agrees that his investment in this Partnership or any
subsequent limited partnership sponsored by the General Partners or their
Affiliates shall be deemed to constitute his agreement to be a limited partner
of the partnership in which such investment is made and to be bound by the terms
and conditions of the agreement of limited partnership of such partnership, and
if, at any time, he fails to meet the applicable limited partnership investor
suitability standards or cannot make the other investor representations or
warranties set forth in the then current limited partnership prospectus,
partnership agreement or subscription agreement relating thereto, he will
promptly notify the General Partners in writing.
(e) The General Partners may, at their option, elect not to provide
the Distribution Reinvestment Plan or terminate any such plan at any time
without notice to the Limited Partners.
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8.16 CLASS A STATUS UNITS AND CLASS B STATUS UNITS.
---------------------------------------------
Upon subscription for Units, each Limited Partner shall elect to have
his Units treated either as Class A Status Units or Class B Status Units, or a
combination thereof. Notwithstanding the foregoing, each Limited Partner
purchasing Units pursuant to the Deferred Commission Option, as defined in the
Prospectus, must elect upon subscription to have a sufficient number of Units
treated as Class A Status Units, in the discretion of the General Partners, to
generate at least the amount of Net Cash From Operations distributable with
respect to such Units needed to satisfy the deferred commission obligations each
year with respect to the total number of Units purchased by such Limited Partner
pursuant to the Deferred Commission Option. Elections to be treated as Class A
Status Units or Class B Status Units will be in effect for each fiscal year of
the Partnership, or such shorter applicable accounting period as the General
Partners, in their sole discretion, may determine and use for accounting
purposes. Units with respect to which the Limited Partner owning such Units has
elected to be treated as Class A Status Units with respect to an accounting
period shall be referred to as herein as "Class A Status Units" for such
accounting period, and Units with respect to which the Limited Partner owning
such Units has elected to have treated as Class B Status Units with respect to
an accounting period shall be referred to herein as "Class B Status Units" for
such accounting period. Limited Partners holding Class A Status Units and
Limited Partners holding Class B Status Units shall have such interests in the
income, distributions, allocations and capital of the Partnership as are
described in Articles IX and X below. Except as specifically described in
Articles IX and X below, all Limited Partners shall have the same rights under
this Agreement as all other Limited Partners regardless of whether their Units
are treated as Class A Status Units or Class B Status Units. Limited Partners
shall initially elect to have their Units treated as Class A Status Units or
Class B Status Units in their Subscription Agreement for Units. Thereafter,
except as set forth below or as may be otherwise limited or prohibited by
applicable state law, Limited Partners may change their election by mailing or
delivering written notice to the Partnership (executed by the trustee or
authorized agent in the case of Retirement Plans). Elections made in
Subscription Agreements shall be effective immediately upon acceptance.
Thereafter, Limited Partners shall have the right to change their prior election
with respect to the Class A Status or Class B Status treatment of their Units
(except where prohibited by applicable state law) one time during each
accounting period, and any such election shall be effective commencing as of the
first day of the next succeeding accounting period following the receipt by the
Partnership of written notice of such election. Any such election to be treated
as Class A Status Units or Class B Status Units shall remain in effect until the
first day of the next succeeding accounting period following receipt by the
Partnership of written notice to change such election, and all such elections
shall be binding upon the Limited Partner's successors and assigns.
Notwithstanding the foregoing, during the initial seven years following
termination of the Offering, Limited Partners purchasing Units pursuant to the
Deferred Commission Option, as defined in the Prospectus, will be permitted to
elect to have their Class A Status Units treated as Class B Status Units only to
the extent that such Limited Partners at all times maintain a sufficient number
of Class A Status Units during such initial seven year period, in the discretion
of the General Partners, to generate enough Net Cash From Operations to allow
the Partnership to satisfy the deferred commission obligations relating to the
total number of Units purchased by such Limited Partners pursuant to the
Deferred Commission Option. Notwithstanding anything to the contrary contained
herein, Units acquired and held by the General Partners or their Affiliates
shall at all times be treated as Class A Status Units, and neither the General
Partners nor their Affiliates shall have the right to make an election to have
Units beneficially owned by them treated as Class B Status Units.
ARTICLE IX
----------
DISTRIBUTIONS
9.1 NET CASH FROM OPERATIONS. Except as otherwise provided for in a
------------------------
liquidation in Sections 9.3 and 9.4 hereof, Net Cash From Operations for each
applicable accounting period shall be distributed to the Partners as follows:
(a) First, to the Limited Partners holding Class A Status Units on a
per Unit basis until each of such Limited Partners has received distributions of
Net Cash From Operations with respect to such fiscal year, or applicable portion
thereof, equal to 10% per annum of his Net Capital Contribution;
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(b) Then, to the General Partners until they have received
distributions of Net Cash From Operations with respect to such fiscal year equal
to 10% of the total distributions under Section 9.1(a) above and this Section
9.1(b) with respect to such fiscal year; and
(c) Thereafter, 90% to the Limited Partners holding Class A Status
Units on a per Unit basis, and 10% to the General Partners.
Notwithstanding the foregoing, Limited Partners holding Class A Status
Units who purchased Units pursuant to the Deferred Commission Option, as defined
in the Prospectus, shall for a period of seven years following termination of
the Offering have deducted and withheld from distributions of Net Cash From
Operations otherwise payable to such Limited Partners an annual amount equal to
$0.10 per Unit purchased pursuant to said Deferred Commission Option, which
amounts shall be used by the Partnership to pay deferred commissions due with
respect to such Units. All such amounts withheld from Net Cash From Operations
shall be deemed to have been distributed to, and be deemed to have been received
by, such Limited Partners as Net Cash From Operations.
The General Partners shall be prohibited from making any distributions
of Net Cash From Operations out of Capital Contributions, and distributions of
Net Cash From Operations shall not reduce Partners' Net Capital Contributions.
No distributions of Net Cash From Operations will be made with respect to Class
B Status Units.
The General Partners shall not incur any liability as a result of
their determination to distribute Net Cash From Operations, even though such
distribution may result in the Partnership's retaining insufficient funds for
the operation of its business, provided their determination was made in good
faith and not as a result of their negligence or misconduct.
9.2 NONLIQUIDATING NET SALE PROCEEDS.
--------------------------------
Except as otherwise provided for in Sections 9.3 and 9.4 hereof and except for
the potential reinvestment of Nonliquidating Net Sale Proceeds as provided in
Section 11.3(f) hereof, Nonliquidating Net Sale Proceeds, after the payment of
all Partnership debts and liabilities and the establishment of any reserves
which the General Partners in their sole discretion may deem reasonably
necessary or desirable, shall be distributed to the Partners as follows:
(a) To Limited Partners holding Units which at any time have been
treated as Class B Status Units on a per Unit basis, such amounts as may be
necessary to give each such Limited Partner an amount of Nonliquidating Net Sale
Proceeds which, when added to distributions received or deemed received by such
Limited Partner with respect to any period during which his Units were treated
as Class A Status Units, would be equal on a per Unit basis to the Net Cash From
Operations allocated and distributed pursuant to Section 9.1 hereof received or
deemed received by Limited Partners holding Units which at all times have been
treated as Class A Status Units, assuming such Limited Partners purchased an
equivalent number of Units on the same date (it being the intent of the Partners
that the distribution preference provided by Section 9.1 hereof be only a timing
preference on distributions and that this provision have the effect of
equalizing distributions to Limited Partners on a per Unit basis so that, after
receipt of distributions under this Section 9.2(a), all Limited Partners, to the
extent possible, be in the receipt of the same aggregate amount of distributions
under this Article IX on a per Unit basis);
(b) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has received or has been deemed to have received distributions
under Section 8.10 hereof, this Section 9.2(b) and Section 9.4 hereof totalling
100% of his Net Capital Contribution;
(c) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has received or has been deemed to have received aggregate
distributions under Sections 9.1, 9.2(a) and this 9.2(c) equal to a cumulative
(but not compounded) 10% per annum return on his Net Capital Contribution;
(d) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has received or has been deemed to have received aggregate
distributions under Sections 9.1, 9.2(a), 9.2(c) and this 9.2(d) equal to his
Preferential Limited Partner Return, as defined in Section 3.48 hereof;
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(e) Then, to the General Partners until the General Partners have
received distributions totalling 100% of their Capital Contributions;
(f) Then, if and only in the event that Limited Partners have received
Excess Limited Partner Distributions, as hereinafter defined, to the General
Partners until they have received distributions of Nonliquidating Net Sale
Proceeds equal to 20% of the sum of any such Excess Limited Partner
Distributions and distributions to the General Partners pursuant to this Section
9.2(f) (the term "Excess Limited Partner Distributions" means any distributions
to Limited Partners over the life of their investment in the Partnership in
excess of the sum of their Net Capital Contributions plus their Preferential
Limited Partner Return); and
(g) Thereafter, 80% to the Limited Partners on a per Unit basis and
20% to the General Partners; provided, however, that in no event will the
General Partners be allocated or receive distributions in excess of the NASAA
Guidelines Resale Proceeds Maximum Amount, as defined herein. It is the intent
of the foregoing proviso that the General Partners receive no more of the net
proceeds from the sale or financing of Partnership Properties than is allowed
pursuant to Article IV, Section E.2.b. of the NASAA Guidelines, and in the event
the allocations pursuant to this Article IX would otherwise result in the
General Partners receiving any such excess distributions, such excess
distributions otherwise distributable to the General Partners will instead be
reallocated in favor of and distributed to the Limited Partners on a per Unit
basis. As used herein, the term "NASAA Guidelines Resale Proceeds Maximum
Amount" means an amount equal to 15% of aggregate Nonliquidating Net Sale
Proceeds and Liquidating Distributions remaining after payments to all Limited
Partners from such proceeds of amounts equal to 100% of their Net Capital
Contributions plus amounts equal to a 6% per annum return on their Net Capital
Contributions, calculated on a cumulative (noncompounded) basis.
Notwithstanding the foregoing, in the event that the Partnership sells
any Partnership Property at a sale price which is less than the Purchase Price
originally paid for such Partnership Property, then prior to the distribution of
Nonliquidating Net Sale Proceeds under Section 9.2(a) above, the Limited
Partners holding Class A Status Units shall first receive distributions of
Nonliquidating Net Sale Proceeds in an amount equal to the excess of the
original Purchase Price of such Partnership Property sold over the sale price of
such Partnership Property, but not in excess of the amount of the special
allocations of deductions for depreciation, amortization and cost recovery with
respect to such Partnership Property previously made to the Limited Partners
holding Class B Status Units made pursuant to Sections 10.2(a) and 10.2(b)
hereof.
9.3 DISSOLUTION. Upon dissolution, the Partnership shall proceed
-----------
to liquidate its assets as follows:
(a) Subject to any applicable limitations of law, upon dissolution of
the Partnership, the assets of the Partnership shall be converted to cash. The
Partnership shall be given adequate time to collect any notes received with
respect to the sale of such assets and collect any other debts outstanding. All
cash on hand, including all cash received after the happening of an event of
dissolution set forth in Section 20.1 hereof, shall be applied and distributed
as follows:
(i) All of the debts and liabilities of the Partnership, except
indebtedness to Partners, shall first be paid and satisfied or adequate
provision, including the setting up of any reserves which the General Partners
in their sole discretion deem reasonably necessary or desirable, shall be made
for the payment or satisfaction thereof;
(ii) All debts of the Partnership to Partners shall next be paid on a
pro rata basis without respect to the date on which such debts were incurred;
(iii) Any fees due to the General Partners shall next be paid; and
(iv) The balance of the assets of the Partnership shall be distributed
to each Partner in accordance with the positive balance in his Capital Account
as of the date of distribution, as provided in Section 9.4 below.
(b) Upon dissolution, each Limited Partner shall look solely to the
assets of the Partnership for the return of his investment, and if the
Partnership Property remaining after payment or discharge of the debts and
liabilities
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of the Partnership, including debts and liabilities owed to one or more of the
Partners, is insufficient to return the aggregate Capital Contributions of each
Limited Partner, such Limited Partners shall have no recourse against the
General Partners or any other Limited Partner.
9.4 LIQUIDATING DISTRIBUTIONS. After the
-------------------------
payment of all Partnership debts and liabilities and the establishment of any
reserves which the General Partners in their sole discretion may deem reasonably
necessary or desirable, Liquidating Distributions shall be distributed to each
Partner in accordance with the positive balance in his Capital Account as of the
date of distribution (after allocation of the Gain on Sale as provided in
Section 10.4 hereof).
9.5 DISTRIBUTION DATES. Partnership
------------------
distributions under this Article IX will be made at least quarterly, but no more
often than monthly, in the discretion of the General Partners (the "Distribution
Period").
9.6 ALLOCATION AMONG GENERAL PARTNERS. All
---------------------------------
amounts distributed to the General Partners under this Article IX shall be
apportioned among the General Partners in such percentages as they may from time
to time agree upon among themselves.
9.7 ALLOCATION AMONG LIMITED PARTNERS. All
---------------------------------
allocations and distributions made to the Limited Partners pursuant to this
Article IX shall be paid to those Persons who were Limited Partners or Assignees
as of the last day of the Distribution Period preceding the time of the
distribution (the "Allocation Date") on a pro rata basis according to the number
of Units held on the Allocation Date; provided, however, with respect to any
Unit issued by the Partnership during such Distribution Period, allocations and
distributions made with respect to such Unit for such Distribution Period shall
be equal to the pro rata share for such Unit determined in accordance with the
first clause of this Section 9.7 multiplied by a fraction, the numerator of
which is the number of days contained in the Distribution Period during which
the Unit in question was issued, and the denominator of which is the total
number of days contained in such Distribution Period.
ARTICLE X
ALLOCATIONS
10.1 NET LOSS. Net Loss for each applicable
--------
accounting period shall be allocated to the Partners as follows:
(a) 99% to the Limited Partners holding Class B Status Units with
respect to such accounting period on a per Unit basis, and 1% to the General
Partners until the Capital Accounts of all such Partners have been reduced to
zero;
(b) Then, to any Partner having a positive balance in his Capital
Account (in proportion to the aggregate positive balances in all Capital
Accounts) in an amount not to exceed such positive balance as of the last day of
the fiscal year; and
(c) Then, 100% to the General Partners.
Notwithstanding the foregoing, in any fiscal year with respect to
which the Partnership incurs an aggregate Net Loss, interest income of the
Partnership shall be specially allocated to the Limited Partners holding Class A
Status Units with respect to such accounting period on a per Unit basis, and Net
Loss of the Partnership for such accounting period shall be determined without
regard to such interest income.
10.2 DEPRECIATION, AMORTIZATION AND COST RECOVERY DEDUCTIONS.
-------------------------------------------------------
All deductions for depreciation, amortization and cost recovery for each
applicable accounting period shall be allocated to the Partners as follows:
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(a) 99% to the Limited Partners holding Class B Status Units with
respect to such accounting period on a per Unit basis, and 1% to the General
Partners until the Capital Accounts of all such Partners have been reduced to
zero;
(b) Then, to any Partner having a positive balance in his Capital
Account (in proportion to the aggregate positive balances in all Capital
Accounts) in an amount not to exceed such positive balance as of the last day of
the fiscal year; and
(c) Then, 100% to the General Partners.
This Section 10.2 notwithstanding, all Net Loss and Net Income for
each fiscal year shall be allocated to the Partners in the manner provided in
Sections 10.1 and 10.3 hereof and shall be reflected in each Partner's Capital
Account as of the last day of such fiscal year before any allocation of
depreciation, amortization or cost recovery deductions is made to the Partners
under this Section 10.2.
10.3 NET INCOME. Subject to the Qualified
----------
Income Offset provisions of Section 10.5 hereof, Net Income for each applicable
accounting period shall be allocated to the Partners as follows:
(a) To the General Partners and the Limited Partners holding Class A
Status Units with respect to such accounting period on a per Unit basis, in the
same proportion as, and to the extent that, Net Cash From Operations is
distributed or deemed distributed to them under Section 9.1 hereof with respect
to such accounting period; and
(b) Then, to the extent Net Income exceeds the actual distribution of
Net Cash From Operations with respect to such accounting period, such excess Net
Income shall be allocated 99% to the Limited Partners holding Class A Status
Units with respect to such accounting period on a per Unit basis, and 1% to the
General Partners.
10.4 GAIN ON SALE. Gain on Sale for each
------------
applicable accounting period shall be allocated to the Partners as follows:
(a) First, to the extent applicable, pursuant to the Qualified Income
Offset provisions of Section 10.5 hereof;
(b) Then, to those Partners having negative Capital Accounts, if any,
in the ratio that the negative Capital Account of each Partner having a negative
Capital Account bears to the aggregate amount of negative Capital Accounts of
all such Partners until all negative Capital Accounts have been restored to
zero;
(c) Then, to Limited Partners holding Units which at any time have
been treated as Class B Status Units, in amounts equal to the deductions for
depreciation, amortization and cost recovery specially allocated to such Limited
Partners pursuant to Section 10.2(a) hereof, with respect to the specific
Partnership Property, the sale, exchange or other disposition of which resulted
in the allocation of Gain on Sale hereunder, but not in excess of the amount of
Gain on Sale recognized by the Partnership pursuant to the sale, exchange or
other disposition of said specific Partnership Property;
(d) Then, to the Limited Partners in amounts equal to the deductions
for depreciation, amortization and cost recovery allocated to such Limited
Partners pursuant to Section 10.2(b) hereof with respect to the specific
Partnership Property, the sale, exchange or other disposition of which resulted
in the allocation of Gain on Sale hereunder;
(e) Then, to Limited Partners holding Units which at any time have
been treated as Class B Status Units on a per Unit basis, such amounts as may be
necessary to give each such Limited Partner, after the allocation of Gain on
Sale under this Section 10.4(e), distributions which, when added to
distributions received or deemed received by such Limited Partner with respect
to any period during which his Units were treated as Class A Status Units, would
be equal on a per Unit basis to the Net Cash From Operations allocated and
distributed pursuant to Section 9.1 hereof received or deemed received by
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Limited Partners holding Units which at all times have been treated as Class A
Status Units, assuming said Limited Partners purchased an equivalent number of
Units on the same day (it being the intent of the Partners that the distribution
preference provided in Section 9.1 hereof be only a timing preference on
distributions and that Section 9.2(a) hereof and this provision have the effect
of equalizing distributions to Limited Partners on a per Unit basis so that,
after receipt of distributions under Section 9.2(a) hereof and distributions
resulting from the allocation of Gain on Sale pursuant to this Section 10.4(e),
all Limited Partners, to the extent possible, be in receipt of the same
aggregate amount of distributions under Article IX on a per Unit basis);
(f) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has been allocated an amount equal to the excess of each Limited
Partner's Net Capital Contribution over prior distributions received or deemed
received by such Limited Partner under Sections 8.10, 9.2(b) and 9.4 hereof;
(g) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has been allocated an amount equal to the excess of a cumulative
(but not compounded) 10% per annum return on his Net Capital Contribution over
prior distributions received or deemed received by such Limited Partner under
Sections 9.1, 9.2(a), 9.2(c), 9.2(d) and 9.4 hereof;
(h) Then, to the Limited Partners on a per Unit basis until each
Limited Partner has been allocated an aggregate amount equal to the excess of
his Preferential Limited Partner Return, as defined in Section 3.48 hereof, over
prior distributions received or deemed received by each such Limited Partner
under Sections 9.1, 9.2(a), 9.2(c), 9.2(d) and 9.4 hereof;
(i) Then, to the General Partners, until the General Partners have
been allocated amounts equal to the excess of 100% of their Capital
Contributions;
(j) Then, to the General Partners, until the General Partners have
been allocated Gain on Sale under this Section 10.4(j) equal to 20% of the sum
of any Excess Limited Partner Distributions, as defined in Section 9.2(f)
hereof, plus any Gain on Sale allocated to the General Partners pursuant to this
Section 10.4(j); and
(k) Thereafter, 80% to the Limited Partners on a per Unit basis and
20% to the General Partners; provided, however, that in no event will the
General Partners be allocated Gain on Sale pursuant to this Section 10.4 which
would result in the General Partners receiving distributions in excess of the
NASAA Guidelines Resale Proceeds Maximum Amount, as defined in Section 9.2(g)
hereof. It is the intent of the foregoing proviso that the General Partners
receive no more of the net proceeds from the sale or financing of Partnership
Properties than is allowed pursuant to Article IV, Section E.2.b. of the NASAA
Guidelines, and in the event the allocations pursuant to this Article X would
otherwise result in the General Partners receiving any such excess
distributions, such excess allocations of Gain on Sale otherwise allocable to
the General Partners will instead be reallocated in favor of and to the Limited
Partners on a per Unit basis.
Notwithstanding the foregoing, in the event that the Partnership sells
the last remaining Partnership Property at a sale price which is less than the
Purchase Price originally paid for such Partnership Property, then, after the
allocation of Gain on Sale derived from any such sale pursuant to Sections
10.4(a) and 10.4(b) above, and prior to the allocation of Gain on Sale pursuant
to Section 10.4(c) above, Limited Partners holding Class A Status Units shall
first be allocated Gain on Sale derived from any such sale in an amount equal to
the excess of the original Purchase Price of such Partnership Property sold over
the sale price of such Partnership Property, but not in excess of the amount of
the special allocations of deductions for depreciation, amortization and cost
recovery with respect to such Partnership Property previously made to Limited
Partners holding Class B Status Units pursuant to Sections 10.2(a) and 10.2(b)
hereof.
10.5 QUALIFIED INCOME OFFSET. Notwithstanding any provision to the
contrary contained herein, in the event that any Partner receives an adjustment,
allocation or distribution described in Treasury Regulations Section 1.704-
1(b)(2)(ii)(d)(4), (5) or (6) which causes a deficit balance in such Partner's
Capital Account, such Partner will be allocated items of income or gain
(consisting of a pro rata portion of each item of Partnership income, including
gross income, and
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gain for such year) in an amount and manner sufficient to eliminate such deficit
balance as quickly as possible, all in accordance with Treasury Regulations
Section 1.704-1(b)(2)(ii)(d). (It is the intent of the Partners that the
foregoing provision constitute a "Qualified Income Offset," as defined in
Treasury Regulations Section 1.704-1(b)(2)(ii)(d), and the foregoing provision
shall in all events be interpreted so as to constitute a valid "Qualified Income
Offset.")
10.6 ALLOCATION AMONG LIMITED PARTNERS.
---------------------------------
Except as otherwise provided in this Article X, all allocations made to the
Limited Partners as a group under this Article X shall be apportioned among the
Limited Partners according to each Limited Partner's Participating Percentage.
Except as otherwise provided in this Article X, all allocations made among
Limited Partners holding Class A Status Units shall be apportioned according to
a percentage, the numerator of which shall be the number of Class A Status Units
held by each such Limited Partner, and the denominator of which shall be the
total number of Class A Status Units held by all Limited Partners, and all
allocations made among Limited Partners holding Class B Status Units shall be
apportioned among such Limited Partners according to a percentage, the numerator
of which shall be the number of Class B Status Units held by each such Limited
Partner, and the denominator of which shall be the total number of Class B
Status Units held by all Limited Partners. If, however, Limited Partners are
admitted to the Partnership pursuant to Article VIII on different dates during
any fiscal year, such allocations under this Article X for such fiscal year
(and, if necessary, subsequent years) shall be divided among the Persons who own
Units from time to time during such year in accordance with Section 706 of the
Code, using any conventions permitted by law and selected by the General
Partners, in their sole discretion. In addition, if elections to be treated as
Class A Status Units or Class B Status Units are deemed to be effective during
any fiscal year, allocations under this Article X for such fiscal year (and, if
necessary, subsequent years) shall be divided among the Limited Partners in
accordance with Section 706 of the Code, using any conventions permitted by law
and selected by the General Partners, in their sole discretion.
10.7 ALLOCATION AMONG GENERAL PARTNERS. All
---------------------------------
allocations made under this Article X to the General Partners shall be
apportioned among the General Partners in such percentages as they may from time
to time agree among themselves.
10.8 ITEM PRORATIONS. Any fiscal year of the
---------------
Partnership in which the Partnership realizes any Gain on Sale shall be divided
into multiple accounting periods, the first of which shall begin on the first
day of such fiscal year and shall end on the Sale Date, and the second of which
shall begin on the day following such Sale Date and shall end on the following
Sale Date, if any, and if no further Sale Date occurs, then on the last day of
such fiscal year. Any Net Income realized by the Partnership in any of such
accounting periods shall be allocated to the Partners in the manner provided in
Section 10.3 hereof as if such accounting period were a complete fiscal year of
the Partnership. Any Net Loss, depreciation, amortization or cost recovery
deductions incurred by the Partnership in any of such accounting periods shall
be allocated to the Partners in the manner provided in Sections 10.1 and 10.2
hereof as if such accounting period were a complete fiscal year of the
Partnership. The Net Income, Net Loss, depreciation, amortization and cost
recovery deductions so allocated to the Partners shall be reflected in their
respective Capital Accounts before any Gain on Sale realized by the Partnership
during such accounting period is allocated to the Partners under Section 10.4
hereof.
10.9 ALLOCATIONS IN RESPECT TO TRANSFERRED UNITS. If any Units are
-------------------------------------------
transferred during any fiscal year, all items attributable to such Units for
such year shall be allocated between the transferor and the transferee by taking
into account their varying interests during the year in accordance with Section
706(d) of the Code, utilizing any conventions permitted by law and selected by
the General Partners, in their sole and absolute discretion. Solely for purposes
of making such allocations, the Partnership shall recognize the transfer of such
Units as of the end of the calendar quarter during which it receives written
notice of such transfer, provided that if the Partnership does not receive a
written notice stating the date such Units were transferred and such other
information as may be required by this Agreement or as the General Partners may
reasonably require within 30 days after the end of the year during which the
transfer occurs, then all such items shall be allocated to the Person who,
according to the books and records of the Partnership, on the last day of the
year during which the transfer occurs, was the owner of the Units. The General
Partners and the Partnership shall incur no liability for making allocations in
accordance with the provisions of this Section 10.9, whether or not the General
Partners or the Partnership have knowledge of any transfer of ownership of any
Units.
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10.10 ALLOCATIONS IN RESPECT TO REPURCHASED UNITS. If any Units
-------------------------------------------
are repurchased pursuant to Section 8.11 hereof during any fiscal year, all
items attributable to such Units for such year shall be determined by the
General Partners (a) pro rata with respect to the number of months such Units
were outstanding during such year, (b) on the basis of an interim closing of the
Partnership books, or (c) in accordance with any other method established by the
General Partners in accordance with applicable provisions of the Code and
Treasury Regulations.
10.11 DISPUTES. Except with respect to
--------
matters as to which the General Partners are granted discretion hereunder, the
opinion of the independent public accountants retained by the Partnership from
time to time shall be final and binding with respect to all disputes and
uncertainties as to all computations and determinations required to be made
under Articles IX and X hereof (including but not limited to any computations
and determinations in connection with any distribution or allocation pursuant to
a dissolution and liquidation).
ARTICLE XI
MANAGEMENT OF THE PARTNERSHIP
11.1 MANAGEMENT. The General Partners shall conduct the business of
----------
the Partnership, devoting such time thereto as they, in their sole discretion,
shall determine to be necessary to manage Partnership business and affairs in an
efficient manner. Any action required to be taken by the General Partners
pursuant to this Agreement shall be duly taken only if it is approved, in
writing or otherwise, by all the General Partners, unless the General Partners
agree among themselves to a different arrangement for said approval.
11.2 POWERS OF THE GENERAL PARTNERS. The General Partners shall have
------------------------------
full charge of overall management, conduct and operation of the Partnership, and
shall have the authority to act on behalf of the Partnership in all matters
respecting the Partnership, its business and its property, and, without limiting
in any manner the foregoing, authority:
(a) To do on behalf of the Partnership all things which, in their sole
judgment, are necessary, proper or desirable to carry out the Partnership's
business, including, but not limited to, the right, power and authority: (i) to
execute all agreements and other documents necessary to implement the purposes
of the Partnership, to take such action as may be necessary to consummate the
transactions contemplated hereby and by the Prospectus, and to make all
reasonably necessary arrangements to carry out the Partnership's obligations in
connection therewith; (ii) to employ, oversee and dismiss from employment any
and all employees, agents, independent contractors, real estate managers,
contractors, engineers, architects, developers, designers, brokers, attorneys
and accountants; (iii) to sell, exchange or grant an option for the sale of all
or substantially all (subject to the requirement to obtain a Majority Vote of
the Limited Partners pursuant to Section 16.1 hereof with respect to a sale of
all or substantially all of the real properties acquired by the Partnership) or
any portion of the real and personal property of the Partnership, at such price
or amount, for cash, securities or other property and upon such other terms as
the General Partners, in their sole discretion, deem proper; (iv) to let or
lease all or any portion of the Partnership Properties for any purpose and
without limit as to the term thereof, whether or not such term (including
renewal terms) shall extend beyond the date of the termination of the
Partnership and whether or not the portion so leased is to be occupied by the
lessee or, in turn, subleased in whole or in part to others; (v) to create, by
grant or otherwise, easements and servitudes; (vi) to borrow money and incur
indebtedness; provided, however, the Partnership shall not be permitted to incur
any indebtedness except as authorized in Section 11.3(e) hereof; (vii) to draw,
make, accept, endorse, sign and deliver any notes, drafts or other negotiable
instruments or commercial paper; (viii) to execute such agreements and
instruments as may be necessary, in their discretion, to operate, manage and
promote the Partnership assets and business; (ix) to construct, alter, improve,
repair, raze, replace or rebuild all or any portion of the Partnership
Properties; (x) to submit to arbitration any claim, liability or dispute
involving the Partnership (provided that such claims will be limited to actions
against the Partnership not involving securities claims by the Limited Partners
and provided further that no claim, liability or dispute of a Limited Partner
will be subject to mandatory arbitration); (xi) to compromise any claim or
liability due to the Partnership; (xii) to execute, acknowledge or verify and
file any notification, application, statement and other filing which the General
Partners consider either required or desirable to be filed with any state or
federal securities administrator or
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commission; (xiii) to make any tax elections to be made by the Partnership;
(xiv) to place record title to any of its assets in the name of a nominee, agent
or a trustee; (xv) to do any or all of the foregoing, discretionary or
otherwise, through agents selected by the General Partners, whether compensated
or uncompensated by the Partnership; (xvi) to execute and file of record all
instruments and documents which are deemed by the General Partners to be
necessary to enable the Partnership properly and legally to do business in the
State of Georgia or any other jurisdiction deemed advisable; (xvii) to monitor
the transfer of Partnership interests to determine if such interests are being
traded on "an established securities market or a secondary market (or the
substantial equivalent thereof)" within the meaning of Section 7704 of the Code,
and take (and cause Affiliates to take) all steps reasonably necessary or
appropriate to prevent any such trading of interests, including without
limitation, voiding transfers if the General Partners reasonably believe such
transfers will cause the Partnership to be treated as a "publicly traded
partnership" under the Code or Treasury Regulations thereunder; (xviii) at the
appropriate time, to register the Units with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934; and (xix) to do any
or all of the foregoing for such consideration and upon such other terms or
conditions as the General Partners, in their discretion, determine to be
appropriate; provided, however, in no event shall the General Partners or their
Affiliates receive compensation from the Partnership unless specifically
authorized by Article XII hereof, by Articles IX and X hereof or by the
"Compensation of the General Partners and Affiliates" section of the Prospectus.
(b) Notwithstanding anything contained herein to the contrary, subject
to the provisions contained in Section 16.2 hereof, to amend this Agreement
without the consent or vote of any of the Limited Partners: (i) to reflect the
addition or substitution of Limited Partners or the reduction of Capital
Accounts upon the return of capital to Partners; (ii) to add to the
representations, duties or obligations of the General Partners or their
Affiliates or surrender any right or power granted herein to the General
Partners or their Affiliates for the benefit of the Limited Partners; (iii) to
cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to add any other provision with
respect to matters or questions arising under this Agreement which will not be
inconsistent with the provisions of this Agreement; (iv) to delete or add any
provision from or to this Agreement requested to be so deleted or added by the
staff of the Securities and Exchange Commission or by the staff of any state
regulatory agency, the deletion or addition of which provision is deemed by the
staff of any such regulatory agency to be for the general benefit or protection
of the Limited Partners; and (v) to attempt to have the provisions of this
Agreement comply with federal income tax law and regulations thereunder.
(c) To possess and exercise, as may be required, all of the rights and
powers of general partners as more particularly provided by the Act, except to
the extent that any of such rights may be limited or restricted by the express
provisions of this Agreement.
(d) To execute, acknowledge and deliver any and all instruments and
take such other steps as are necessary to effectuate the foregoing. Any such
instruments may be executed on behalf of the Partnership by either of the
General Partners, except that any instrument pursuant to which the Partnership
acquires or disposes of any interest in real property shall require the
signature, personally or by attorney-in-fact, of each of the General Partners.
11.3 LIMITATIONS ON POWERS OF THE GENERAL PARTNERS. The General
---------------------------------------------
Partners shall observe the following policies in connection with Partnership
operations:
(a) Pending initial investment of its funds, or to provide a source
from which to meet contingencies, including, without limitation, the working
capital reserve and Repurchase Reserve, the Partnership may temporarily invest
its funds in short-term, highly liquid investments where there is appropriate
safety of principal, such as government obligations, bank or savings and loan
association certificates of deposit, short-term debt obligations and interest-
bearing accounts; provided that, following one year after the commencement of
the operations of the Partnership, no more than 45% of the value (as defined in
Section 2(a)(41) of the Investment Company Act of 1940, as amended) of the
Partnership's total assets (exclusive of government securities and cash items)
will consist of, and no more than 45% of the Partnership's net income after
taxes (for any four consecutive fiscal quarters combined) will be derived from,
securities other than (i) government securities; (ii) securities issued by
majority owned subsidiaries of the Partnership which are not investment
companies; and (iii) securities issued by companies, which are controlled
primarily by the Partnership, through which the
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Partnership engages in a business other than that of investing, reinvesting,
owning, holding or trading in securities, and which are not investment
companies.
(b) The Partnership shall not acquire unimproved or non-income
producing property, except in amounts and upon terms which can be financed by
the Offering proceeds or from Cash Flow and provided investment in such
properties shall not exceed 15% of net Offering proceeds available for
Investment in Properties. Properties shall not be considered non-income
producing if they are expected to produce income within two years after their
acquisition.
(c) All real property acquisitions must be supported by an appraisal
which shall be prepared by a competent, independent appraiser. The appraisal
shall be maintained in the Partnership's records for at least five years and
shall be available for inspection and duplication by any Limited Partner. The
Purchase Price paid by the Partnership for each property shall not exceed the
appraised value of such property.
(d) The General Partners shall not have the authority to incur
indebtedness which is secured by the Partnership Properties or assets, except as
specifically authorized pursuant to Section 11.3(e) below.
(e) The General Partners shall have the authority to borrow funds (i)
for Partnership operating purposes in the event of unforeseen or unexpected
circumstances in which the Partnership's working capital reserves and other cash
resources available to the Partnership are deemed insufficient for the
maintenance and repair of Partnership Properties or for the protection or
replacement of the Partnership's assets, and (ii) in order to finance
improvement of and improvements to Partnership Properties at such time as the
General Partners may deem such improvements to be necessary or appropriate to
protect capital previously invested in such Partnership Properties, to protect
the value of the Partnership's investment in a particular Partnership Property,
or to make a particular Partnership Property more attractive for sale or lease;
provided, however, that the aggregate amount of Partnership borrowings shall at
no time exceed 25% of the total purchase price of Partnership Properties. The
Partnership may borrow such funds from the General Partners, their Affiliates or
others, provided that if any such borrowing is from the General Partners or
their Affiliates, (i) such borrowing may not constitute a "financing" as that
term is defined under the NASAA Guidelines (i.e., all indebtedness encumbering
Partnership Properties or incurred by the Partnership, "the principal amount of
which is scheduled to be paid over a period of not less than 48 months, and not
more than 50 percent of the principal amount of which is scheduled to be paid
during the first 24 months"); (ii) interest and other financing charges or fees
charged on any such borrowing may not exceed amounts which would be charged by
unrelated lending institutions on comparable financing for the same purpose in
the same locality as the Partnership's principal place of business; and (iii) no
prepayment charge or penalty shall be required with respect to any such
borrowing.
(f) The Partnership shall not reinvest Cash Flow or any proceeds from
the sale of a Partnership Property in new properties except that if the
Partnership requires funds to exercise an option to acquire property under lease
or to purchase from any co-venturer an interest in a property that the
Partnership owns jointly with such Person, the Partnership may either distribute
the net proceeds of any sale of Partnership Property to the Partners or may
reinvest such proceeds for the aforementioned purposes; provided, however, that
in any event, a portion of such proceeds sufficient to cover any increase in
Limited Partners' federal and state income taxes attributable to the sale
(assuming a 35% combined federal and state tax bracket) shall be distributed in
time to pay such increase.
(g) The General Partners shall exercise their fiduciary duty for the
safekeeping and use of all funds and assets of the Partnership, whether or not
in their immediate possession or control, and shall not employ, or permit
another to employ, such funds or assets in any manner except for the exclusive
benefit of the Partnership. In addition, the Partnership shall not permit the
Partners to contract away the fiduciary duty owed to the Partners by the General
Partners under common law.
(h) The Partnership may maintain reasonable reserves for normal
repairs, replacements and contingencies in such amounts as the General Partners
in their sole and absolute discretion determine from time to time to be
adequate, appropriate or advisable in connection with the operations of the
Partnership. In the event expenditures are made from any such reserves, future
operating revenues may be allocated to such reserve to the extent deemed
necessary
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by the General Partners for the maintenance of reasonable reserves. In
addition, one year after the termination of the Offering, the Partnership may at
the sole discretion of the General Partners maintain a Repurchase Reserve of up
to 5% of Cash Flow in any year. Such funds may be used to repurchase Units as
described in Section 8.11 hereof.
(i) The Partnership shall not own or lease property jointly or in
partnership with unrelated entities except in general partnerships or joint
ventures which own and operate one or more particular properties, unless (i)
such unrelated entity has substantially identical investment objectives as those
of the Partnership; (ii) the management of such partnership or joint ownership
is under the control of the Partnership; (iii) the Partnership, as a result of
such joint ownership or partnership ownership of a property, is not charged,
directly or indirectly, more than once for the same services; (iv) the joint
ownership or partnership does not authorize or require the Partnership to do
anything as a partner or joint venturer with respect to the property which the
Partnership or the General Partners could not do directly because of this
Agreement; and (v) the General Partners and their Affiliates are prohibited from
receiving any compensation, fees or expenses which are not permitted to be paid
under this Agreement.
The Partnership may not own or lease property jointly or in a
partnership with an Affiliate of the General Partners unless such property is
owned or leased by a joint venture or general partnership with an affiliated
"program," as defined in the NASAA Guidelines, which is publicly registered, and
unless (i) such Affiliate has substantially identical investment objectives as
those of the Partnership; (ii) the Partnership, as a result of such joint
ownership or partnership ownership of a property, is not charged, directly or
indirectly, more than once for the same services; (iii) compensation payable to
the General Partners by such Affiliate is substantially identical to that
payable to the General Partners by the Partnership; (iv) the Partnership will
have a right of first refusal to buy the property held by such joint venture in
the event that such Affiliate elects to sell its interest in the joint venture;
and (v) the investment by the Partnership and such Affiliate are on
substantially the same terms and conditions, and each such entity's ownership
interest in such joint venture or partnership shall be based upon the respective
proportion of funds invested in such joint venture or partnership by the
Partnership and such Affiliate.
The ownership of the common areas located on property through a
condominium association or other similar form of real property ownership shall
not be considered a joint ownership of property for purposes of this paragraph.
(j) Investments by the Partnership in limited partnership interests of
other partnerships shall be prohibited.
(k) The completion of improvements which are to be constructed or are
under construction on Partnership Property shall be guaranteed at the price
contracted either by an adequate completion bond or by other satisfactory
assurances; provided, however, that such other satisfactory assurances shall
include at least one of the following: (i) a written personal guarantee of one
or more of the general contractor's principals accompanied by the financial
statements of such guarantor indicating a substantial net worth; (ii) a written
fixed price contract with a general contractor that has a substantial net worth;
(iii) a retention of a reasonable portion of the Purchase Price as a potential
offset to such Purchase Price in the event the seller does not perform in
accordance with the purchase and sale agreement; or (iv) a program of
disbursements control which provides for direct payments to subcontractors and
suppliers.
(l) The Partnership shall make no construction loans to builders of
Partnership Properties and shall make no periodic progress or other advance
payments to such builders unless the Partnership has first received an
architect's certification as to the percentage of the project which has been
completed and as to the dollar amount of the construction then completed.
(m) The Partnership shall not acquire property in exchange for Units.
(n) The Partnership shall not obtain nonrecourse financing from a
Limited Partner or any party affiliated with a Limited Partner.
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(o) The Partnership shall not purchase a Partnership Property if (i)
the acquisition price of such Partnership Property is not a fixed amount
determined as of the date of acquisition; or (ii) any amount payable in
connection with such acquisition or the time for making payments thereunder is
dependent, in whole or in part, upon revenues, income or profits derived from
the Partnership Property.
(p) The Partnership shall not take back an "all-inclusive" or
"wraparound" note in connection with the sale or other disposition of a
Partnership Property.
(q) The Partnership's business purposes and objectives, as set forth
in Article IV, shall not be changed unless approved by a Majority Vote of the
Limited Partners.
(r) The Partnership shall not invest in junior trust deeds and other
similar obligations.
(s) The General Partners shall not have the authority on behalf of the
Partnership to:
(i) list, recognize or facilitate the trading of Units (or any
interest therein) on any "established securities market (or the equivalent
thereof)" within the meaning of Section 7704 of the Code, or permit any of their
Affiliates to take such actions, if as a result thereof, the Partnership would
be treated for federal income tax purposes as an association taxable as a
corporation or taxed as a "publicly traded partnership;" or
(ii) create for the Units (or any interest therein) a "secondary
market (or the equivalent thereof)" within the meaning of Section 7704 of the
Code or otherwise permit, recognize or facilitate the trading of any such Units
(or any interest therein) on any such market or permit any of their Affiliates
to take such actions, if as a result thereof, the Partnership would be treated
for federal income tax purposes as an association taxable as a corporation or
taxed as a "publicly traded partnership."
(t) The funds of the Partnership shall not be commingled with the
funds of any other Person, except in the case of making capital contributions to
a joint venture or partnership permitted pursuant to the provisions of Section
11.3(i) above.
(u) The General Partners hereby agree that they shall not initiate a
transaction wherein the Partnership is merged or consolidated with another
partnership or corporation, and the General Partners shall not be authorized to
merge or consolidate the Partnership with any other partnership or corporation
or to convert the Partnership to a real estate investment trust unless first
obtaining a Majority Vote of the Limited Partners to any such transaction. In
addition, the General Partners shall not be authorized to enter into or effect
any Roll-Up unless such Roll-Up complies with the following terms and
conditions:
(i) An appraisal of all assets of the Partnership shall be obtained
from a competent Independent Expert. If the appraisal will be included in a
prospectus used to offer the securities of a Roll-Up Entity, the appraisal shall
be filed with the Securities and Exchange Commission and the states as an
exhibit to the registration statement for the offering. The assets of the
Partnership shall be appraised on a consistent basis. The appraisal shall be
based on an evaluation of all relevant information and shall indicate the
current value of the Partnership's assets as of a date immediately prior to the
announcement of the proposed Roll-Up. The appraisal shall assume an orderly
liquidation of the Partnership's assets over a 12 month period, shall consider
other balance sheet items, and shall be net of the assumed cost of sale. The
terms of the engagement of the Independent Expert shall clearly state that the
engagement is for the benefit of the Partnership and its Limited Partners. A
summary of the independent appraisal, indicating all material assumptions
underlying the appraisal, shall be included in a report to the Limited Partners
in connection with the proposed Roll-Up.
(ii) In connection with the proposed Roll-Up, the person sponsoring
the Roll-Up shall provide each Limited Partner with a document which instructs
the Limited Partner on the proper procedure for voting against or dissenting
from the Roll-Up and shall offer to Dissenting Limited Partners the choice of:
(A) accepting the securities of the Roll-Up Entity offered in the proposed Roll-
Up which have substantially the same terms and conditions as the security
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originally held, provided that the receipt or retention of that security is not
a step in a series of subsequent transactions that directly or indirectly
through acquisition or otherwise involves future contributions or
reorganizations involving the Roll-Up Entity; or (B) one of the following: (I)
remaining as Limited Partners in the Partnership and preserving their interests
therein on the same terms and conditions as existed previously, or (II)
receiving cash in an amount equal to the Limited Partners' pro rata share of the
appraised value of the net assets of the Partnership.
(iii) Securities of the Roll-Up Entity received in the Roll-Up will
be considered to have the same terms and conditions as the security originally
held if: (A) there is no material adverse change to Dissenting Limited Partners'
rights, including but not limited to, rights with respect to voting, the
business plan, or the investment, distribution, management compensation and
liquidation policies of the Roll-Up Entity; and (B) the Dissenting Limited
Partners receive the same preferences, privileges and priorities as they had
pursuant to the security originally held.
(iv) The Partnership may not participate in any proposed Roll-Up in
which any General Partner converts an equity interest in the Partnership for
which consideration was not paid and which was not otherwise provided for in
this Agreement and disclosed to the Limited Partners, into a voting interest in
the Roll-Up Entity, provided, however, an interest originally obtained in order
to comply with the provisions of IRS Revenue Procedure 89-12 may be converted
into a voting interest in the Roll-Up Entity not to exceed a one percent (1%)
interest in the assets and income of such entity.
(v) The Partnership may not participate in any proposed Roll-Up in
which a General Partner does not utilize an independent third party to receive
and tabulate all votes and dissents, and require that the third party make the
tabulation available to the General Partners and any Limited Partner upon
request at any time during and after voting occurs.
(vi) The Partnership may not participate in any proposed Roll-Up which
would result in the Limited Partners having (A) voting rights which do not
generally follow the voting rights of the Limited Partners pursuant to this
Agreement or (B) democracy rights in the Roll-Up Entity which are less than
those provided for under Sections VII.A. and VII.B. of the NASAA Guidelines. If
the Roll-Up Entity is a corporation, the voting rights shall correspond to the
voting rights provided for in the NASAA Guidelines to the greatest extent
possible.
(vii) The Partnership may not participate in any proposed Roll-Up
which includes provisions which would otherwise materially impede or frustrate
the accumulation of shares by any purchaser of the securities of the Roll-Up
Entity (except to the minimum extent necessary to preserve the tax status of the
Roll-Up Entity). The Partnership may not participate in any proposed Roll-Up
which would limit the ability of a Limited Partner to exercise the voting rights
of his securities in the Roll-Up Entity on the basis of the limited partnership
interests or other indicia of ownership held by that Limited Partner.
(viii) The Partnership may not participate in any proposed Roll-Up in
which the Limited Partners' rights of access to the records of the Roll-Up
Entity will be less than those provided for under Section VII.D. of the NASAA
Guidelines.
(ix) The Partnership may not participate in any proposed Roll-Up in
which any of the costs of the transaction would be borne by the Partnership if
the proposed Roll-Up is not approved by a Majority Vote of the Limited Partners.
(x) The Partnership may not participate in any proposed Roll-Up in
which the rights of Limited Partners are not protected as to fees of General
Partners. The rights of Limited Partners shall be presumed not to be protected
as to fees of General Partners if: (A) General Partners are not prevented from
receiving both unearned management fees discounted to a present value, if those
fees were not previously provided for in this Agreement and disclosed to Limited
Partners, and new asset-based fees; (B) property management fees and other
management fees are not appropriate, not reasonable and greater than what would
be paid to third parties for performing similar services; or (C) changes in fees
which are substantial and adverse to Limited Partners are not approved by an
independent committee according to the facts and circumstances of each
transaction. For purposes of this provision, "management fee" means a
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fee paid to the General Partners, their Affiliates, or other persons for
management and administration of the limited partnership Roll-Up Entity.
(xi) The Person proposing a Roll-Up shall pay all solicitation
expenses related to the transaction, including all preparatory work related
thereto, in the event the Roll-Up is not approved. For purposes of this
provision, "solicitation expenses" include direct marketing expenses such as
telephone calls, broker-dealer fact sheets, legal and other fees related to the
solicitation, as well as direct solicitation compensation to brokers and
dealers.
(xii) The Partnership may not participate in any proposed Roll-Up in
which a broker or dealer receives compensation for soliciting votes or tenders
from Limited Partners in connection with the Roll-Up unless that compensation:
(A) is payable and equal in amount regardless of whether the Limited Partner
votes affirmatively or negatively in the proposed Roll-Up; (B) in the aggregate,
does not exceed 2% of the exchange value of the newly created securities; and
(C) is paid regardless of whether the Limited Partners reject the proposed Roll-
Up.
11.4 EXPENSES OF THE PARTNERSHIP.
---------------------------
(a) Subject to Sections 11.4(b) and 11.4(c) below, the Partnership
shall reimburse the General Partners for (i) all Organization and Offering
Expenses incurred by them, and (ii) the actual cost to them of goods and
materials used for or by the Partnership and obtained from entities unaffiliated
with the General Partners.
(b) Except as provided below and in Sections 11.4(a) and 11.4(c), all
of the Partnership's expenses shall be billed directly to and paid by the
Partnership. The General Partners may be reimbursed for the administrative
services necessary to the prudent operation of the Partnership provided that the
reimbursement shall be at the lower of the General Partners' actual cost or the
amount the Partnership would be required to pay to independent parties for
comparable administrative services in the same geographic location. No payment
or reimbursement will be made for services for which the General Partners are
entitled to compensation by way of a separate fee. Excluded from allowable
reimbursements shall be: (i) rent or depreciation, utilities, capital
equipment, other administrative items; and (ii) salaries, fringe benefits,
travel expenses and other administrative items incurred by or allocated to any
controlling Persons of the General Partners or their Affiliates. A controlling
Person, for purposes of this Section 11.4(b), shall be deemed to include, but
not be limited to, any Person, whatever his title, who performs functions for
the General Partners similar to those of: (A) chairman or member of the Board
of Directors; (B) executive management, including the President, Vice President
or Senior Vice President, Corporate Secretary and Treasurer; (C) senior
management, such as the Vice President of an operating division who reports
directly to executive management; or (D) those holding a 5% or more equity
interest in Wells Partners, L.P. or Wells Capital, Inc. or a Person having the
power to direct or cause the direction of the General Partners, whether through
the ownership of voting securities, by contract or otherwise. It is not
intended that every person who carries a title such as vice president, secretary
or treasurer be considered a controlling Person. The General Partners believe
that their employees and those of their Affiliates who will perform services for
the Partnership for which reimbursement is allowed pursuant to this Section
11.4(b) have the experience and educational background, in their respective
fields of expertise, appropriate for the performance of such services.
The annual report to investors shall include a breakdown of the costs
reimbursed to the General Partners pursuant to this subsection. Within the
scope of the annual audit of the General Partners' financial statements, the
independent certified public accountant must verify the allocation of such costs
to the Partnership. The method of verification shall at a minimum provide:
(I) A review of the time records of individual employees, the cost of
whose services were reimbursed; and
(II) A review of the specific nature of the work performed by each
such employee. The methods of verification shall be in accordance with
generally accepted auditing standards and shall, accordingly, include such tests
of the accounting records and such other auditing procedures which the General
Partners'
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independent certified public accountant considers appropriate under the
circumstances. The additional cost of such verification will be itemized by
said accountants on a program-by-program basis and may be reimbursed to the
General Partners by the Partnership in accordance with this subsection only to
the extent that such reimbursement when added to the cost for services rendered
does not exceed the allowable rate for such services as determined above.
(c) The General Partners or their Affiliates shall pay, at no
additional cost to the Partnership (i) overhead expenses of the General Partners
and their Affiliates; (ii) expenses and salaries related to the performance of
those services for which the General Partners and their Affiliates are entitled
to compensation by way of Acquisition and Advisory Fees, Partnership and
property management fees or real estate brokerage commissions related to the
resale of Partnership Properties (provided, however, that the foregoing shall in
no way limit the payment or reimbursement of legal, travel, employee-related
expenses and other out-of-pocket expenses which are directly related to a
particular Partnership Property and not prohibited by Section 11.4(b) above);
and (iii) all other administrative expenses which are unrelated to the business
of the Partnership. The General Partners or their Affiliates shall pay, at no
additional cost to the Partnership, Partnership Organization and Offering
Expenses (other than commissions paid to broker-dealers and other underwriting
compensation) to the extent they exceed 5% of the gross proceeds of the Offering
of Units.
(d) Subject to the provisions of paragraphs (b) and (c) of this
Section 11.4, the Partnership shall pay the following expenses of the
Partnership:
(i) Partnership Organization and Offering Expenses (other than
commissions paid to broker-dealers and other underwriting compensation) which do
not exceed 5% of the gross proceeds of the Offering of Units;
(ii) underwriting compensation, including broker-dealer selling
commissions and the dealer manager fee, payable in an amount not to exceed 10%
of the gross proceeds of the Offering of Units, plus a maximum of .5% of the
gross proceeds of the Offering of Units for reimbursement of bona fide due
diligence expenses to be paid out of Organization and Offering Expenses subject
to the limitation of Section 11.4(d)(i) above.
(iii) All operational expenses of the Partnership, which may include,
but are not limited to: (A) all costs of personnel employed by the Partnership
or directly involved in the business of the Partnership, including Persons who
may also be employees of the General Partners or their Affiliates, including but
not limited to, salaries and other employee-related expenses, travel and other
out-of-pocket expenses of such personnel which are directly related to a
particular Partnership Property; (B) all costs of borrowed money, taxes and
assessments on Partnership Properties and other taxes applicable to the
Partnership; (C) legal, accounting, audit, brokerage and other fees; (D) fees
and expenses paid to independent contractors, brokers and servicers, leasing
agents, consultants, on-site managers, real estate brokers, mortgage brokers,
insurance brokers and other agents; and (E) expenses in connection with the
disposition, replacement, alteration, repair, remodeling, refurbishment, leasing
and operation of Partnership Properties (including the costs and expenses of
foreclosures, legal and accounting fees, insurance premiums, real estate
brokerage and leasing commissions and maintenance connected with such Property);
and
(iv) All accounting, documentation, professional and reporting
expenses of the Partnership, which may include, but are not limited to: (A)
preparation and documentation of Partnership bookkeeping, accounting and audits;
(B) preparation and documentation of budgets, economic surveys, Cash Flow
projections and Repurchase Reserve and working capital requirements; (C)
preparation and documentation of Partnership federal and state tax returns; (D)
printing, engraving and other expenses and documents evidencing ownership of an
interest in the Partnership or in connection with the business of the
Partnership; (E) expenses of insurance as required in connection with the
business of the Partnership, including, without limitation, life and disability
insurance with respect to any individual General Partner; (F) expenses in
connection with distributions made by the Partnership to, and communications,
bookkeeping and clerical work necessary in maintaining relations with, Limited
Partners, including the costs of printing and mailing to such Persons
certificates for the Units and reports of the Partnership, and of preparing
proxy statements and soliciting proxies in connection therewith; (G) expenses in
connection with preparing and mailing reports required to be furnished to
Limited Partners for investing, tax reporting or other purposes, including
reports required to be filed with the Securities and Exchange Commission and
other
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federal or state regulatory agencies, or expenses associated with furnishing
reports to Limited Partners which the General Partners deem to be in the best
interests of the Partnership; (H) expenses of revising, amending, converting,
modifying or terminating the Partnership; (I) costs incurred in connection with
any litigation in which the Partnership is involved as well as any examination,
investigation or other proceedings conducted of the Partnership by any
regulatory agency, including legal and accounting fees incurred in connection
therewith; (J) costs of any computer equipment or services used for or by the
Partnership; (K) costs of any accounting, statistical or bookkeeping equipment
necessary for the maintenance of the books and records of the Partnership; (L)
costs of preparation and dissemination of information and documentation relating
to potential sale, financing or other disposition of Partnership Properties; and
(M) supervision and expenses of professionals employed by the Partnership in
connection with any of the foregoing, including attorneys, accountants and
appraisers.
11.5 LIMITATION ON LIABILITY OF THE GENERAL PARTNERS;
------------------------------------------------
INDEMNIFICATION OF THE GENERAL PARTNERS.
- ---------------------------------------
(a) Neither the General Partners nor any of their Affiliates
(hereinafter, an "Indemnified Party") shall be liable, responsible or
accountable in damages or otherwise to any other Partner, the Partnership, its
receiver or trustee (the Partnership, its receiver or trustee are hereinafter
referred to as "Indemnitors") for, and the Indemnitors agree to indemnify, pay,
protect and hold harmless each Indemnified Party (on the demand of such
Indemnified Party) from and against any and all liabilities, obligations,
losses, damages, actions, judgments, suits, proceedings, reasonable costs,
reasonable expenses and disbursements (including, without limitation, all
reasonable costs and expenses of defense, appeal and settlement of any and all
suits, actions or proceedings instituted against such Indemnified Party or the
Partnership and all reasonable costs of investigation in connection therewith)
(collectively referred to as "Liabilities" for the remainder of this Section)
which may be imposed on, incurred by, or asserted against such Indemnified Party
or the Partnership in any way relating to or arising out of any action or
inaction on the part of the Partnership or on the part of such Indemnified Party
in connection with services to or on behalf of the Partnership (and with respect
to an Indemnified Party which is an Affiliate of the General Partners for an act
which the General Partners would be entitled to indemnification if such act were
performed by them) which such Indemnified Party in good faith determined was in
the best interest of the Partnership. Notwithstanding the foregoing, each
Indemnified Party shall be liable, responsible and accountable, and neither the
Partnership nor any Indemnitor shall be liable to an Indemnified Party, for any
portion of such Liabilities which resulted from such Indemnified Party's (i) own
fraud, negligence, misconduct or knowing violation of law, (ii) breach of
fiduciary duty to the Partnership or any Partner, or (iii) breach of this
Agreement, regardless of whether or not any such act was first determined by the
Indemnified Party, in good faith, to be in the best interest of the Partnership.
If any action, suit or proceeding shall be pending against the Partnership or
any Indemnified Party relating to or arising out of any such action or inaction,
such Indemnified Party shall have the right to employ, at the reasonable expense
of the Partnership (subject to the provisions of Section 11.5(b) below),
separate counsel of such Indemnified Party's choice in such action, suit or
proceeding. The satisfaction of the obligations of the Partnership under this
Section shall be from and limited to the assets of the Partnership and no
Limited Partner shall have any personal liability on account thereof.
(b) Cash advances from Partnership funds to an Indemnified Party for
legal expenses and other costs incurred as a result of any legal action
initiated against an Indemnified Party by a Limited Partner are prohibited.
Cash advances from Partnership funds to an Indemnified Party for reasonable
legal expenses and other costs incurred as a result of any legal action or
proceeding are permissible if (i) such suit, action or proceeding relates to or
arises out of any action or inaction on the part of the Indemnified Party in the
performance of its duties or provision of its services on behalf of the
Partnership; (ii) such suit, action or proceeding is initiated by a third party
who is not a Limited Partner; and (iii) the Indemnified Party undertakes to
repay any funds advanced pursuant to this Section in the cases in which such
Indemnified Party would not be entitled to indemnification under Section 11.5(a)
above. If advances are permissible under this Section, the Indemnified Party
shall have the right to bill the Partnership for, or otherwise request the
Partnership to pay, at any time and from time to time after such Indemnified
Party shall become obligated to make payment therefor, any and all amounts for
which such Indemnified Party believes in good faith that such Indemnified Party
is entitled to indemnification under Section 11.5(a) above. The Partnership
shall pay any and all such bills and honor any and all such requests for payment
within 60 days after such bill or request is received. In the event that a
final determination is made that the Partnership is not so obligated for any
amount paid by it to a particular Indemnified Party, such Indemnified Party will
refund such amount within 60 days of such final determination, and in the event
that a final determination is made that the Partnership is so
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obligated for any amount not paid by the Partnership to a particular Indemnified
Party, the Partnership will pay such amount to such Indemnified Party within 60
days of such final determination.
(c) Notwithstanding anything to the contrary contained in Section
11.5(a) above, neither the General Partners nor any of their Affiliates nor any
Person acting as a broker-dealer with respect to the Units shall be indemnified
from any liability, loss or damage incurred by them arising due to an alleged
violation of federal or state securities laws unless (i) there has been a
successful adjudication on the merits of each count involving alleged securities
law violations as to the particular Indemnified Party, or (ii) such claims have
been dismissed with prejudice on the merits by a court of competent jurisdiction
as to the particular Indemnified Party, or (iii) a court of competent
jurisdiction approves a settlement of the claims against the particular
Indemnified Party and finds that indemnification of the settlement and related
costs should be made. Prior to seeking a court approval for indemnification,
the General Partners shall undertake to cause the party seeking indemnification
to apprise the court of the position of the Securities and Exchange Commission,
the California Commissioner of the Department of Corporations, the Massachusetts
Securities Division, the Missouri Securities Division, the Nebraska Bureau of
Securities, the Oklahoma Department of Securities, the Pennsylvania Securities
Commission, the Tennessee Securities Division and the Texas State Securities
Board with respect to indemnification for securities violations.
(d) The Partnership shall not incur the cost of the portion of any
insurance which insures any party against any liability as to which such party
is prohibited from being indemnified as set forth above.
(e) For purposes of this Section 11.5, an Affiliate of the General
Partner shall be indemnified by the Partnership only in circumstances where the
Affiliate has performed an act on behalf of the Partnership or the General
Partners within the scope of the authority of the General Partners and for which
the General Partners would have been entitled to indemnification had such act
been performed by them.
ARTICLE XII
SERVICES TO PARTNERSHIP BY GENERAL PARTNERS
12.1 ACQUISITION AND ADVISORY SERVICES. The General Partners and
---------------------------------
their Affiliates shall perform acquisition and advisory services in connection
with the review and evaluation of potential real property acquisitions for the
Partnership, which services shall include, but shall not be limited to, an
analysis of: (a) the geographic market in which any such property is located,
including market demand analyses; (b) the physical condition of any existing
structures, appurtenances and service systems; (c) the availability of
contractors and engineers; (d) zoning and other governmental restrictions
applicable to the use or development of the property; and (e) income and expense
forecasts. In consideration for such services, including services rendered with
respect to properties which are considered for acquisition by the Partnership
but are not acquired, the General Partners and their Affiliates shall be paid
Acquisition and Advisory Fees in an amount of up to 5% of Capital Contributions,
provided that such amount does not exceed the limitations set forth in Section
12.2 hereof. The Acquisition and Advisory Fee shall be accrued as Units are sold
by the Partnership and shall be payable upon receipt by the Partnership of such
Capital Contributions, whether such fees relate to properties which are acquired
which are income-producing properties or raw land to be developed or to
properties which are not acquired. The General Partners shall refund to the
Partnership any such fees which are received in advance of the services to be
rendered and for which services are not subsequently rendered. In addition to
such fees, the Partnership shall bear any expenses of independent appraisers,
market analysts or other such Persons not affiliated with the General Partners
who may be engaged to evaluate potential real estate acquisitions and
developments by or on behalf of the Partnership.
12.2 LIMITATIONS ON ACQUISITION FEES.
-------------------------------
(a) Acquisition and Advisory Fees paid in connection with the
organization of the Partnership and the purchase and development of Partnership
Properties and with respect to each particular Partnership Property shall be
paid only for services actually rendered, and in no event will the total of all
Acquisition Fees, including the Acquisition and
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Advisory Fees paid to the General Partners or their Affiliates, exceed the
lesser of the compensation customarily charged in arm's-length transactions by
others rendering similar services as an ongoing public activity in the same
geographic location and for comparable property or an amount equal to 18% of
Capital Contributions. The limitation imposed hereby will be complied with at
any given time on an ongoing basis. Within 30 days after completion of the last
acquisition, the General Partners shall forward to the California Commissioner
of the Department of Corporations a schedule, verified under penalties of
perjury, reflecting:
(i) each acquisition made;
(ii) the purchase price paid;
(iii) the aggregate of all Acquisition Fees paid on each
transaction; and
(iv) a computation showing compliance with Rule 260.140.113.3
adopted pursuant to the California Corporate Securities Law of 1968.
(b) The General Partners intend to acquire Partnership Properties on
an all cash basis and shall commit a percentage of Capital Contributions to
Investment in Properties acquired by the Partnership in an amount which is equal
to at least 80% of Capital Contributions. For such purposes, working capital
reserves in an aggregate amount not in excess of 5% of Capital Contributions
shall be deemed to be committed to the purchase, development, construction or
improvement of properties acquired by the Partnership. Anything contained in
this Agreement to the contrary notwithstanding, at a minimum the General
Partners shall commit a percentage of the Capital Contributions to Investment in
Properties which is equal to at least 80% of the Capital Contributions.
12.3 PROPERTY MANAGEMENT SERVICES. The
----------------------------
General Partners shall cause the Partnership to employ a property management
company (which may be an Affiliate of the General Partners) to perform
professional property management services for the Partnership. In the event the
property management company is an Affiliate of the General Partners, the
compensation payable to such Affiliate shall be equal to the lesser of (a) fees
which would be charged by Persons who are not affiliated with the General
Partners rendering comparable services in the same geographic area, or (b) 6% of
the Gross Revenues of the properties managed (with respect to industrial and
commercial properties). The foregoing limitation will include all leasing, re-
leasing and leasing related services. If such leasing, re-leasing and leasing
related services are not provided by the General Partners and their Affiliates,
the maximum property management fees payable to an Affiliate of the General
Partners for such leases shall be 3% of the Gross Revenues. In the case of
industrial and commercial properties which are leased on a long-term net basis
(ten or more years), the maximum property management fee from such leases shall
be 1% of the Gross Revenues, except for a one time initial leasing fee of 3% of
the Gross Revenues on each lease payable over the first five full years of the
original term of the lease. Included within such fees should be bookkeeping
services and fees paid to non-related Persons for property management services.
In addition, in connection with the initial lease-up of newly constructed
properties, the Partnership may also pay a separate competitive fee for the one
time initial rent-up or leasing-up of a newly constructed property, provided
such services are not included in the Purchase Price of the property.
12.4 INSURANCE SERVICES PROHIBITED. Neither
-----------------------------
the General Partners nor any of their Affiliates may receive an insurance
brokerage fee or write any insurance policy covering the Partnership or any
Partnership Properties.
12.5 DEVELOPMENT AND CONSTRUCTION SERVICES PROHIBITED. Neither the
------------------------------------------------
General Partners nor any of their Affiliates (except any Persons affiliated with
the General Partners only through their employment by the Partnership) may
receive any development or construction fees or any other fees or other
compensation from the Partnership in connection with the development or
construction of Partnership Properties, except with respect to expense
reimbursements specifically authorized under Section 11.4 hereof.
12.6 REAL ESTATE COMMISSIONS ON RESALE OF PROPERTIES. The General
-----------------------------------------------
Partners and their Affiliates may perform real estate brokerage services for the
Partnership in connection with the resale of property by the Partnership;
provided that the compensation therefor to the General Partners or their
Affiliates in connection with the sale of a particular property shall
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not exceed the lesser of (a) 50% of the reasonable, customary and competitive
real estate brokerage commission normally and customarily paid for the sale of a
comparable property in light of the size, type and location of the property, or
(b) 3% of the gross sales price of the property; and provided, further, that
payments of said compensation shall be made only after the Partnership has
distributed to each Limited Partner or his Assignee from Nonliquidating
Distributions or Liquidating Distributions, as the case may be, an aggregate
amount in cash which is equal to 100% of his Capital Contribution (less all
amounts, if any, theretofore distributed as a return of unused capital pursuant
to Section 8.10), and has distributed to each Limited Partner or Assignee from
all sources an additional amount equal to a 6% per annum cumulative (but not
compounded) return on his Net Capital Contribution, calculated from the date of
his admission into the Partnership. The aggregate real estate commission paid
to all parties involved in the sale of a Partnership Property shall not exceed
the lesser of: (a) the reasonable, customary and competitive real estate
brokerage commission normally and customarily paid for the sale of a comparable
property in light of the size, type and location of the property, or (b) 6% of
the gross sales price of such property.
Notwithstanding the foregoing, neither the General Partners nor any of
their Affiliates shall be granted an exclusive right to sell or exclusive
employment to sell any property on behalf of the Partnership.
12.7 REBATES, GIVE-UPS AND RECIPROCAL ARRANGEMENTS.
---------------------------------------------
(a) No rebates or give-ups may be received by any of the General
Partners or their Affiliates nor may the General Partners or their Affiliates
participate in any reciprocal business arrangements which would circumvent the
provisions of this Agreement.
(b) None of the General Partners nor any of their Affiliates shall, or
shall knowingly permit any underwriter, dealer or salesman to, directly or
indirectly, pay or award any finder's fees, commissions or other compensation to
any Person engaged by a potential investor for investment advice as an
inducement to such advisor to recommend the purchase of interests in the
Partnership; provided, however, that this clause shall not prohibit the normal
sales commissions payable to a registered broker-dealer or other properly
licensed Person (including the General Partners and their Affiliates) for
selling Partnership Units.
12.8 OTHER SERVICES. Other than as specifically provided in this
--------------
Agreement or in the Prospectus, neither the General Partners nor their
Affiliates shall be compensated for services rendered to the Partnership. The
General Partners and their Affiliates cannot receive any fees or other
compensation from the Partnership except as specifically provided for in this
Article XII, in Articles IX, X, or XI hereof or in the "Compensation of the
General Partners and Affiliates" section of the Prospectus.
ARTICLE XIII
TRANSACTIONS BETWEEN GENERAL PARTNERS AND THE PARTNERSHIP
13.1 SALES AND LEASES TO THE PARTNERSHIP. The Partnership shall not
-----------------------------------
purchase or lease investment properties, other than as provided in Section
11.3(i) hereof, in which any of the General Partners or their Affiliates have an
interest or from any entity in which the General Partners or their Affiliates
have an interest. The provisions of this Section 13.1 notwithstanding, the
General Partners or their Affiliates may temporarily enter into contracts
relating to investment properties to be assigned to the Partnership prior to
closing or may purchase property in their own names and temporarily hold title
thereto for the purpose of facilitating the acquisition of such property for the
Partnership, provided that such property is purchased by the Partnership for a
price no greater than the cost of such property to the General Partners or their
Affiliates (including closing and carrying costs), that the General Partners or
their Affiliates may not hold title to any such property for more than 12 months
on behalf of the Partnership, that the General Partners or their Affiliates
shall not sell property to the Partnership if the cost of the property exceeds
the funds reasonably anticipated to be available to the Partnership to purchase
such property, and that all profits and losses during the period any such
property is held by the General Partners
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or their Affiliates will accrue to the Partnership; and provided further, that
there is no other benefit to the General Partners or any Affiliate of the
General Partners apart from compensation otherwise permitted by this Agreement.
13.2 SALES AND LEASES TO THE GENERAL PARTNERS. The Partnership shall
not sell or lease any Partnership Property to the General Partners or their
Affiliates.
13.3 LOANS. No loans may be made by the Partnership to any of the
-----
General Partners or their Affiliates.
13.4 DEALINGS WITH RELATED PROGRAMS. Except as permitted by Sections
------------------------------
11.3(i) and 13.1 hereof, the Partnership shall not acquire property from or sell
property to any Person in whom any of the General Partners or any of their
Affiliates have an interest.
13.5 COMMISSIONS ON REINVESTMENT OR DISTRIBUTION. The Partnership
-------------------------------------------
shall not pay, directly or indirectly, a commission or fee (except as permitted
under Article XII hereof) to a General Partner in connection with the
reinvestment or distribution of the proceeds of the sale, exchange or financing
of Partnership Properties.
ARTICLE XIV
INDEPENDENT ACTIVITIES OF PARTNERS
Any of the Partners may engage in or possess an interest in other
business ventures of every nature and description, independently or with others,
including, but not limited to, the ownership, financing, leasing, management,
syndication, brokerage and development of real property of any kind whatsoever
(including properties which may be similar to those owned by the Partnership),
and neither the Partnership nor any of the Partners shall have any right by
virtue of this Agreement in and to such independent ventures or to the income or
profits derived therefrom, provided that the General Partners shall in no way be
relieved of their fiduciary duty owed to the Partnership. In the event that the
Partnership, the General Partners or any Affiliate or any entity formed or
managed by the General Partners or their Affiliates is in the market for similar
properties, the General Partners will review the investment portfolio of each
partnership and each such affiliated entity and will decide which entity will
acquire a particular property on the basis of such factors as, among others,
anticipated cash flow, the effect of the purchase price on diversification of
the portfolio of each such entity, the estimated income tax effects of the
purchase on each such entity, the amount of funds which each such entity has
available for investment, and the length of time funds of each such entity have
been available for investment.
ARTICLE XV
BOOKS, REPORTS, FISCAL AND TAX MATTERS
15.1 BOOKS. The General Partners shall maintain full and complete
-----
books and records for the Partnership at its principal office, and all Limited
Partners and their designated representatives shall have the right to inspect,
examine and copy at their reasonable cost such books at reasonable times. The
books of account for financial accounting purposes shall be kept in accordance
with generally accepted accounting principles. The books of account for income
tax purposes shall be kept on a cash or an accrual basis, as determined in the
discretion of the General Partners. Limited Partner suitability records shall be
maintained for at least six years. In addition, the General Partners shall
maintain an alphabetical list of the names, addresses and business telephone
numbers of the Limited Partners of the Partnership along with the number of
Units held by each of them (the "Participant List") as a part of the books and
records of the Partnership which shall be available for inspection by any
Limited Partner or his designated representative at the home office of the
Partnership upon the request of the Limited Partner. The Participant List shall
be updated at least quarterly to reflect changes in the information contained
therein. A copy of the Participant List shall be mailed to any Limited Partner
requesting the Participant List within ten (10)
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days of the request. The copy of the Participant List to be mailed to a Limited
Partner shall be printed in alphabetical order, on white paper, and in readily
readable type size (in no event smaller than 10-point type). A reasonable
charge for copy work may be charged by the Partnership. The purposes for which
a Limited Partner may request a copy of the Participant List include, without
limitation, matters relating to the Limited Partners' voting rights under this
Agreement and the exercise of the Limited Partners' rights under federal proxy
laws. If the General Partners of the Partnership neglect or refuse to exhibit,
produce or mail a copy of the Participant List as requested, they shall be
liable to the Limited Partner requesting the list for the costs, including
attorneys' fees, incurred by that Limited Partner for compelling the production
of the Participant List and for actual damages suffered by the Limited Partner
by reason of such refusal or neglect. It shall be a defense that the actual
purpose and reason for a request for inspection of or a request for a copy of
the Participant List is to secure such list of Limited Partners or other
information for the purpose of selling such list or copies thereof or for the
purpose of using the same for a commercial purpose other than in the interest of
the applicant as a Limited Partner relative to the affairs of the Partnership.
The General Partners may require any Limited Partner requesting the Participant
List to represent that the list is not requested for a commercial purpose
unrelated to such Limited Partner's interest in the Partnership. The remedies
provided hereunder to Limited Partners requesting copies of the Participant List
are in addition to, and shall not in any way limit, other remedies available to
Limited Partners under federal law or under the laws of any state.
15.2 REPORTS. The General Partners shall prepare or cause
-------
to be prepared the following reports:
(a) ACQUISITION REPORTS. At least quarterly within 60 days after the
-------------------
end of each quarter during which the Partnership has acquired real property, an
"Acquisition Report" of any real property acquisitions within the prior quarter
shall be sent to all Limited Partners. Such report shall describe the real
properties and all improvements contemplated to be developed thereon and include
a description of the geographic locale and of the market upon which the General
Partners are relying in projecting successful development and operation of the
properties. All facts which reasonably appear to the General Partners to
influence materially the value of the property shall be disclosed, including the
present or proposed use of the property and its suitability or adequacy for such
use and the terms of any material lease affecting the property. The Acquisition
Report shall also include, by way of illustration and not of limitation, a
statement of the date and amount of the appraised value, a statement of the
actual Purchase Price including terms of the purchase and an estimate of all
proposed subsequent expenditures for development or other improvement of the
property, a statement that title insurance and any required performance bonds or
other assurances in accordance with Section 11.3(k) hereof with respect to
builders have been or will be obtained on the property, a statement of the total
amount of cash expended by the Partnership to acquire each Partnership Property,
and a statement regarding the amount of proceeds of the Offering of Units (in
both dollar amount and as a percentage of the net proceeds of the Offering of
Units available for investment) which remain unexpended or uncommitted. In
addition, the Acquisition Report shall identify any real properties, by location
and a description of their general character, which the General Partners
presently intend to be acquired by or leased to the Partnership.
(b) ANNUAL REPORT. Within 120 days after the end of each fiscal year,
-------------
an annual report shall be sent to all the Limited Partners and Assignees which
shall include (i) a balance sheet as of the end of such fiscal year, together
with a profit and loss statement, a statement of cash flows and a statement of
Partners' capital for such year, which financial statements shall be prepared in
accordance with generally accepted accounting principles and shall be
accompanied by an auditor's report containing an opinion of the independent
certified public accountant for the Partnership; (ii) a Cash Flow statement
(which need not be audited); (iii) a report of the activities of the Partnership
for such year; (iv) a report on the distributions from (A) Cash Flow during such
period, (B) Cash Flow from prior periods, (C) proceeds from the disposition of
Partnership Property and investments, (D) reserves from the proceeds of the
Offering of Units, and (E) lease payments on net leases with builders and
sellers; and (v) a report setting forth the compensation paid to the General
Partners and their Affiliates during such year and a statement of the services
performed in consideration therefor. In addition, commencing eight years after
termination of the Offering, such annual report shall include a notification to
the Limited Partners of their right pursuant to Section 20.2 hereof to request
that the General Partners formally proxy the Limited Partners to determine
whether the assets of the Partnership should be liquidated. Such annual report
shall also include such other information as is deemed reasonably necessary by
the General Partners to advise the Limited Partners of the affairs of the
Partnership.
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<PAGE>
(c) QUARTERLY REPORTS. If and for as long as the Partnership is
-----------------
required to file quarterly reports on Form 10-Q with the Securities and Exchange
Commission, financial information substantially similar to the financial
information contained in each such report for a quarter shall be sent to the
Limited Partners within 60 days after the end of such quarter. Whether or not
such reports are required to be filed, each Limited Partner will be furnished
within 60 days after the end of each of the first three quarters of each
Partnership fiscal year an unaudited financial report for that quarter including
a profit and loss statement, a balance sheet and a cash flow statement. Such
reports shall also include such other information as is deemed reasonably
necessary by the General Partners to advise the Limited Partners of the affairs
of the Partnership.
(d) REPORT OF FEES. The Partnership's annual and quarterly reports on
--------------
Form 10-K and 10-Q for any period during which the General Partners or any of
their Affiliates receive fees for services from the Partnership shall set forth
(i) a statement of the services rendered, and (ii) the amount of fees received.
(e) TAX INFORMATION. Within 75 days after the end of each fiscal year
---------------
(in the event that the fiscal year of the Partnership remains on a calendar year
basis, and within 120 days after the end of each fiscal year in the event that
the Partnership's fiscal year is changed to some annual period other than a
calendar year pursuant to Section 15.3 hereof), there shall be sent to all the
Limited Partners and Assignees all information necessary for the preparation of
each Limited Partner's federal income tax return and state income and other tax
returns in regard to jurisdictions where Partnership Properties are located.
(f) ERISA REPORT. The General Partners shall furnish each Limited
------------
Partner an annual statement of estimated Unit value. Such annual statement
shall report the value of each Unit based upon the General Partners' estimate of
the amount a holder thereof would receive if Partnership Properties were sold as
of the close of the Partnership's fiscal year and if the proceeds therefrom
(without reduction for selling expenses), together with any other funds of the
Partnership, were distributed in a liquidation of the Partnership (provided
that, with respect to the first three full fiscal years following termination of
the Offering the value of a Unit shall be deemed to be $10.00). In addition,
the General Partners shall obtain the opinion of an independent third party that
their estimate of Unit value is reasonable and was prepared in accordance with
appropriate methods for valuing real estate. The estimated Unit value shall be
reported to the Limited Partners in the next annual or quarterly report on Form
10-K or 10-Q sent to the Limited Partners following the completion of the
valuation process.
(g) PERFORMANCE REPORTING. The Partnership's annual and quarterly
---------------------
reports on Form 10-K and 10-Q shall set forth the year-to-date amount of cash
flow available for distribution, as such term is generally defined in existing
Guidelines for Partnership Agreement Provisions issued by the International
Association for Financial Planning, and shall contain a detailed reconciliation
of the Partnership's net income for financial reporting purposes to the
Partnership's cash flow available for distribution for the periods covered by
the report. In addition, the notes to the Partnership's financial statements
included in its annual reports on Form 10-K shall contain a detailed
reconciliation of the Partnership's net income for financial reporting purposes
to net income for tax purposes for the periods covered by the report.
(h) EXPENSE REPORTING. The notes to the Partnership's financial
-----------------
statements included in its annual reports on Form 10-K shall contain a category-
by-category breakdown of the general and administrative expenses incurred by the
Partnership for the periods covered by the report. This breakdown shall reflect
each type of general and administrative expense incurred by the Partnership
(e.g. investor relations, independent accountants, salaries, rent, utilities,
insurance, filing fees, legal fees, etc.) and the amount charged to the
Partnership for each category of expense incurred.
(i) OTHER REPORTS. The General Partners shall cause to be prepared
-------------
and timely filed with appropriate federal and state regulatory and
administrative bodies all reports to be filed with such entities under then
currently applicable laws, rules and regulations. Such reports shall be
prepared on the accounting or reporting basis required by such regulatory
bodies. Any Limited Partner shall be provided with a copy of any such report
upon request without expense to him.
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<PAGE>
(j) CESSATION OF REPORTS. In the event the Securities and Exchange
--------------------
Commission promulgates rules that allow a reduction in reporting requirements,
the Partnership may cease preparing and filing certain of the above reports if
the General Partners determine such action to be in the best interests of the
Partnership; provided, however, that the Partnership will continue to file any
reports mandated under state law.
15.3 FISCAL YEAR. The Partnership shall adopt a fiscal year
-----------
beginning on the first day of January and ending on the last day of December of
each year; provided, however, that the General Partners in their sole discretion
may, subject to approval by the IRS, at any time without the approval of the
Limited Partners, change the Partnership's fiscal year to a period to be
determined by the General Partners.
15.4 TAX ELECTIONS.
-------------
(a) No election shall be made by the Partnership or any Partner to be
excluded from the application of the provisions of Subchapter K of the Code or
from any similar provisions of state or local income tax laws.
(b) Upon the transfer of all or part of a Partner's or Assignee's
interest in the Partnership or upon the death of an individual Limited Partner
or Assignee, or upon the distribution of any property to any Partner or
Assignee, the Partnership, at the General Partners' option and in their sole
discretion, may file an election, in accordance with applicable Treasury
Regulations, to cause the basis of Partnership Property to be adjusted for
federal income tax purposes, as provided by Sections 734, 743 and 754 of the
Code; and similar elections under provisions of state and local income tax laws
may, at the General Partners' option, also be made.
15.5 BANK ACCOUNTS. The cash funds of the Partnership shall be
-------------
deposited in commercial bank account(s) at such banks or other institutions
insured by the Federal Deposit Insurance Corporation as the General Partners
shall determine. Disbursements therefrom shall be made by the General Partners
in conformity with this Agreement. The funds of the Partnership shall not be
commingled with the funds of any other Person, except in the case of funds held
by a joint venture or partnership permitted pursuant to the provisions of
Section 11.3(i) above.
15.6 INSURANCE. The Partnership shall at all times maintain
---------
comprehensive insurance, including fire, liability and extended coverage
insurance in amounts determined by the General Partners to be adequate for the
protection of the Partnership. In addition, the Partnership shall carry
appropriate worker's compensation insurance and such other insurance with
respect to the real property owned by it as shall be customary for similar
property, similarly located, from time to time.
15.7 TAXATION AS PARTNERSHIP. The General Partners, while serving as
-----------------------
such, agree to use their best efforts to cause compliance at all times with the
conditions to the continued effectiveness of any opinion of counsel obtained by
the Partnership to the effect that the Partnership will be classified as a
partnership for federal income tax purposes.
15.8 TAX MATTERS.
-----------
(a) The General Partners may or may not, in their sole and absolute
discretion, make any or all elections which they are entitled to make on behalf
of the Partnership and the Partners for federal, state and local tax purposes,
including, without limitation, any election, if permitted by applicable law: (i)
to extend the statute of limitations for assessment of tax deficiencies against
Partners with respect to adjustments to the Partnership's federal, state or
local tax returns; and (ii) to represent the Partnership and the Partners before
taxing authorities or courts of competent jurisdiction in tax matters affecting
the Partnership and the Partners in their capacity as Partners and to execute
any agreements or other documents relating to or settling such tax matters,
including agreements or other documents that bind the Partners with respect to
such tax matters or otherwise affect the rights of the Partnership or the
Partners.
(b) Wells Partners is designated as the "Tax Matters Partner" in
accordance with Section 6231(a)(7) of the Code and, in connection therewith and
in addition to all other powers given thereunder, shall have all other powers
needed to perform fully hereunder including, without limitation, the power to
retain all attorneys and accountants of its choice
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<PAGE>
and the right to manage administrative tax proceedings conducted at the
partnership level by the IRS with respect to Partnership matters. Any Partner
has the right to participate in such administrative proceedings relating to the
determination of partnership items at the Partnership level. Expenses of such
administrative proceedings undertaken by the Tax Matters Partner will be paid
for out of the assets of the Partnership. Each Limited Partner who elects to
participate in such proceedings will be responsible for any expense incurred by
such Limited Partner in connection with such participation. Further, the cost
to a Limited Partner of any adjustment and the cost of any resulting audit or
adjustment of a Limited Partner's return will be borne solely by the affected
Limited Partner. The designation made in this Section 15.8(b) is expressly
consented to by each Partner as an express condition to becoming a Partner. The
Partnership hereby indemnifies Wells Partners from and against any damage or
loss (including attorneys' fees) arising out of or incurred in connection with
any action taken or omitted to be taken by it in carrying out its
responsibilities as Tax Matters Partner, provided such action taken or omitted
to be taken does not constitute fraud, negligence, breach of fiduciary duty or
misconduct. In the event the Partnership should become required to register
with the IRS as a tax shelter, Wells Partners shall be the "designated
organizer" of the Partnership and the "designated person" for maintaining lists
of investors in the Partnership, and shall take such actions as shall be
required to register the Partnership and to maintain lists of investors in the
Partnership as may be required pursuant to Sections 6111 and 6112 of the Code.
ARTICLE XVI
RIGHTS AND LIABILITIES OF THE LIMITED PARTNERS
16.1 POWERS OF THE LIMITED PARTNERS. The Limited Partners shall take
------------------------------
no part in the management of the business or transact any business for the
Partnership and shall have no power to sign for or bind the Partnership;
provided, however, that the Limited Partners, by a Majority Vote, without the
concurrence of the General Partners, shall have the right to:
(a) Amend this Agreement, but not as to the matters specified in
Section 11.2(b) hereof, which matters the General Partners alone may amend
without vote of the Limited Partners;
(b) Dissolve the Partnership;
(c) Remove a General Partner or any successor General Partner;
(d) Elect a new General Partner or General Partners upon the removal
of a General Partner or any successor General Partner, or upon the occurrence of
an Event of Withdrawal or death of a General Partner or any successor General
Partner;
(e) Approve or disapprove a transaction entailing the sale of all or
substantially all of the real properties acquired by the Partnership, except in
connection with the orderly liquidation and winding up of the business of the
Partnership upon its termination and dissolution; and
(f) Change the business purpose or investment objectives of the
Partnership.
16.2 RESTRICTIONS ON POWER TO AMEND. Notwithstanding Section 16.1
------------------------------
hereof, this Agreement shall in no event be amended to change the limited
liability of the Limited Partners without the vote or consent of all of the
Limited Partners, nor shall this Agreement be amended to diminish the rights or
benefits to which any of the General Partners or Limited Partners are entitled
under the provisions of this Agreement, without the consent of a majority of the
Units held by the Partners who would be adversely affected thereby, and in the
case of the General Partners being singularly affected, then by a majority vote
of the General Partners.
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<PAGE>
16.3 LIMITED LIABILITY. No Limited Partner shall be liable for any
-----------------
debts or obligations of the Partnership in excess of his or its Capital
Contribution.
16.4 MEETINGS OF, OR ACTIONS BY, THE LIMITED PARTNERS.
------------------------------------------------
(a) Meetings of the Limited Partners to vote upon any matters as to
which the Limited Partners are authorized to take action under this Agreement
may be called at any time by any of the General Partners and shall be called by
the General Partners upon the written request of Limited Partners holding 10% or
more of the outstanding Units by delivering written notice within ten days after
receipt of such written request, either in person or by certified mail, to the
Limited Partners entitled to vote at such meeting to the effect that a meeting
will be held at a reasonable time and place convenient to the Limited Partners
and which is not less than 15 days nor more than 60 days after the receipt of
such request; provided, however, that such maximum periods for the giving of
notice and the holding of meetings may be extended for an additional 60 days if
such extension is necessary to obtain qualification or clearance under any
applicable securities laws of the matters to be acted upon at such meeting or
clearance by the appropriate governing agency of the solicitation materials to
be forwarded to the Limited Partners in connection with such meeting. The
General Partners agree to use their best efforts to obtain such qualifications
and clearances. Included with the notice of a meeting shall be a detailed
statement of the action proposed, including a verbatim statement of the wording
on any resolution proposed for adoption by the Limited Partners and of any
proposed amendment to this Agreement. All expenses of the meeting and
notification shall be borne by the Partnership.
(b) A Limited Partner shall be entitled to cast one vote for each Unit
that he owns. Attendance by a Limited Partner at any meeting and voting in
person shall revoke any written proxy submitted with respect to action proposed
to be taken at such meeting. Any matter as to which the Limited Partners are
authorized to take action under this Agreement or under law may be acted upon by
the Limited Partners without a meeting and any such action shall be as valid and
effective as action taken by the Limited Partners at a meeting assembled, if
written consents to such action by the Limited Partners are signed by the
Limited Partners entitled to vote upon such action at a meeting who hold the
number of Units required to authorize such action and are delivered to a General
Partner.
(c) The General Partners shall be responsible for enacting all needed
rules of order for conducting all meetings and shall keep, or cause to be kept,
at the expense of the Partnership, an accurate record of all matters discussed
and action taken at all meetings or by written consent. The records of all said
meetings and written consents shall be maintained at the principal place of
business of the Partnership and shall be available for inspection by any Partner
at reasonable times.
ARTICLE XVII
WITHDRAWAL OR REMOVAL OF GENERAL PARTNERS;
ASSIGNABILITY OF GENERAL PARTNERS'
AND LIMITED PARTNERS' INTERESTS
17.1 WITHDRAWAL OR REMOVAL OF GENERAL PARTNERS; ADMISSION OF
-------------------------------------------------------
SUCCESSOR OR ADDITIONAL GENERAL PARTNERS.
- ----------------------------------------
(a) Except as provided in this Article XVII, until the dissolution of
the Partnership, neither General Partner shall take any voluntary step to
dissolve itself or to withdraw from the Partnership. In addition, Leo F. Wells,
III hereby agrees with the Partnership and its Partners that he will not
sell or otherwise voluntarily transfer or convey a majority or controlling
interest in the outstanding common stock of Wells Capital to any non-affiliated
person or entity without first obtaining a Majority Vote of the Limited Partners
consenting to any such sale, transfer or conveyance.
(b) With the consent of all the other General Partners and a Majority
Vote of the Limited Partners after being given 90 days written notice, any
General Partner may at any time designate one or more Persons to be additional
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General Partners, with such participation in such General Partner's interest as
such General Partner and such successor or additional General Partners may agree
upon, provided that the interests of the Limited Partners shall not be affected
thereby.
(c) Except in connection with the admission of an additional General
Partner pursuant to paragraph (b) of this Section 17.1, no General Partner shall
have any right to retire or withdraw voluntarily from the Partnership, to
dissolve itself or to sell, transfer or assign the General Partner's interest
without the concurrence of the Limited Partners by a Majority Vote; provided,
however, that any General Partner may, without the consent of any other General
Partner or the Limited Partners to the extent permitted by law and consistent
with Section 17.1(a) hereof (i) substitute in its stead as General Partner any
entity which has, by merger, consolidation or otherwise, acquired substantially
all of such General Partner's assets, stock or other evidence of equity interest
and continued its business, and (ii) cause to be admitted to the Partnership an
additional General Partner or Partners if it deems such admission to be
necessary or desirable to enable the General Partner to use its best efforts to
maintain its net worth at a level sufficient to assure that the Partnership will
be classified as a partnership for federal income tax purposes; provided,
however, that such additional General Partner or Partners shall have no
authority to manage or control the Partnership under this Agreement, there is no
change in the identity of the persons who have authority to manage or control
the Partnership, and the admission of such additional General Partner or
Partners does not materially adversely affect the Limited Partners.
(d) A General Partner may be removed from the Partnership upon the
Majority Vote of the Limited Partners; provided, however, that if such General
Partner is the last remaining General Partner, such removal shall not be
effective until 90 days after the notice of removal has been sent to such
General Partner. In the event of the removal of the last remaining General
Partner, the Limited Partners may by Majority Vote elect a new General Partner
at any time prior to the effective date of the removal of said last remaining
General Partner.
(e) Any voluntary withdrawal by any General Partner from the
Partnership or any sale, transfer or assignment by such General Partner of his
interest in the Partnership shall be effective only upon the admission in
accordance with paragraph (b) of this Section 17.1 of an additional General
Partner.
(f) A General Partner shall cease to be such upon the occurrence of an
Event of Withdrawal of such General Partner; provided, however, the last
remaining General Partner shall not cease to be a General Partner until 120 days
after the occurrence of an Event of Withdrawal.
17.2 LIMITED PARTNERS' INTEREST. Except as specifically provided
----------------------------
in this Article XVII, none of the Limited Partners shall sell, transfer,
encumber or otherwise dispose of, by operation of law or otherwise, all or any
part of his or its interest in the Partnership. No assignment shall be valid or
effective unless in compliance with the conditions contained in this Agreement,
and any unauthorized transfer or assignment shall be void ab initio.
17.3 RESTRICTIONS ON TRANSFERS.
-------------------------
(a) No Unit may be transferred, sold, assigned or exchanged if the
transfer or sale of such Unit, when added to the total of all other transfers or
sales of Units within the period of 12 consecutive months prior to the proposed
date of sale or exchange, would, in the opinion of counsel for the Partnership,
result in the termination of the Partnership under Section 708 of the Code
unless the Partnership and the transferring holder shall have received a ruling
from the IRS that the proposed sale or exchange will not cause such termination.
(b) No transfer or assignment may be made if, as a result of such
transfer, a Limited Partner (other than one transferring all of his Units) will
own fewer than the minimum number of Units required to be purchased under
Section 8.5(b) hereof, unless such transfer is made on behalf of a Retirement
Plan, or such transfer is made by gift, inheritance, intra-family transfer,
family dissolution or to an Affiliate.
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(c) No transfer or assignment of any Unit may be made if counsel for
the Partnership is of the opinion that such transfer or assignment would be in
violation of any state securities or "Blue Sky" laws (including investment
suitability standards) applicable to the Partnership.
(d) All Units originally issued pursuant to qualification under the
California Corporate Securities Law of 1968 shall be subject to, and all
documents of assignment and transfer evidencing such Units shall bear, the
following legend condition:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
(e) No transfer or assignment of any interest in the Partnership shall
be made (i) in the case of Units subject to Section 17.3(d) hereof, unless the
transferor shall have obtained, if necessary, the consent of the California
Commissioner of the Department of Corporations to such transfer, (ii) unless the
transferee shall have paid or, at the election of the General Partners,
obligated himself to pay, all reasonable expenses connected with such transfer,
substitution and admission, including, but not limited to, the cost of preparing
an appropriate amendment to this Agreement to effectuate the transferee's
admission as a substituted Limited Partner pursuant to Section 17.4 hereof, or
(iii) where the assignor and Assignee agree in connection therewith that the
assignor shall exercise any residual powers remaining in him as a Limited
Partner in favor of or in the interest or at the direction of the Assignee.
(f) With the exception of intra-family transfers or transfers made by
gift, inheritance or family dissolution, no transfer or assignment of any
interest in the Partnership shall be made unless the transferee has either (i) a
net worth of at least $45,000 and an annual gross income of at least $45,000 or
(ii) a net worth of at least $150,000 or (iii) satisfied any higher suitability
standards that may apply in the transferee's state of primary residence. For
purposes of the foregoing standards, net worth is computed exclusive of home,
furnishings and automobiles. Each transferee will be required to represent that
he complies with the applicable standards, that he is purchasing in a fiduciary
capacity for a Person meeting such standards, or that he is purchasing with
funds directly or indirectly supplied by a donor who meets such standards. No
transfer may be made to any Person who does not make such representation.
(g) No Limited Partner may transfer or assign any Units or beneficial
ownership interests therein (whether by sale, exchange, repurchase, redemption,
pledge, hypothecation or liquidation), and any such purported transfer shall be
void ab initio and shall not be recognized by the Partnership or be effective
for any purpose unless (i) the General Partners determine, in their sole
discretion, that the Partnership would be able to satisfy any of the secondary
market safe harbors contained in Treasury Regulations Section 1.7704-1 (or any
other applicable safe harbor from publicly traded partnership status which may
be adopted by the IRS) for the Partnership's taxable year in which such transfer
otherwise would be effective, or (ii) the Partnership has received an opinion of
counsel satisfactory to the General Partners or a favorable IRS ruling that any
such transfer will not result in the Partnership's being classified as a
publicly traded partnership for federal income tax purposes. The Limited
Partners agree to provide all information with respect to a proposed transfer
that the General Partners deem necessary or desirable in order to make such
determination, including but not limited to, information as to whether the
transfer occurred on a secondary market (or the substantial equivalent thereof).
(h) Any purported transfer or assignment not satisfying all of the
foregoing conditions shall be void ab initio, and no purported transfer or
assignment shall be of any effect unless all of the foregoing conditions have
been satisfied.
17.4 SUBSTITUTED LIMITED PARTNERS. Except as otherwise provided in this
----------------------------
Agreement, an Assignee of the whole or any portion of a Limited Partner's
interest in the Partnership shall not have the right to become a substituted
Limited Partner in place of his assignor unless (a) the assignment instrument
shall have been in form and substance satisfactory to the General Partners; (b)
the assignor and Assignee named therein shall have executed and acknowledged
such other
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instrument or instruments as the General Partners may deem necessary or
desirable to effectuate such admission, including but not limited to, a power of
attorney with provisions more fully described in this Agreement; (c) the
Assignee agrees in writing that he will not, directly or indirectly, create for
the Partnership, or facilitate the trading of such interest on, a secondary
market (or the substantial equivalent thereof) within the meaning of Section
7704 of the Code; and (d) the Assignee shall have accepted, adopted and approved
in writing all of the terms and provisions of this Agreement, as the same may
have been amended. Assignees of Units will be recognized by the Partnership as
substituted Limited Partners as of the commencement of the first fiscal quarter
of the Partnership following the fiscal quarter which includes the effective
date of the assignment and in which the foregoing conditions are satisfied,
notwithstanding the time consumed in preparing the documents necessary to
effectuate the substitution.
17.5 ASSIGNMENT OF LIMITED PARTNERSHIP INTEREST WITHOUT SUBSTITUTION.
---------------------------------------------------------------
Subject to the transfer restrictions of Section 17.3, a Limited Partner shall
have the right to assign all or part of such Limited Partner's interest in Units
by a written instrument of assignment. The assigning Limited Partner shall
deliver to the General Partners a written instrument of assignment in form and
substance satisfactory to the General Partners, duly executed by the assigning
Limited Partner or his personal representative or authorized agent, including an
executed acceptance by the Assignee of all the terms and provisions of this
Agreement and the representations of the assignor and Assignee that the
assignment was made in accordance with all applicable laws and regulations
(including investment suitability requirements). Said assignment shall be
accompanied by such assurance of genuineness and effectiveness and by such
consents or authorizations of any governmental or other authorities as may be
reasonably required by the General Partners. The Partnership shall recognize
any such assignment not later than the last day of the calendar month following
receipt of notice of the assignment and all required documentation, and an
Assignee shall be entitled to receive distributions and allocations from the
Partnership attributable to the Partnership interest acquired by reason of any
such assignment from and after the first day of the fiscal quarter following the
fiscal quarter in which the assignment of such interest takes place. The
Partnership and the General Partners shall be entitled to treat the assignor of
such Partnership interest as the absolute owner thereof in all respects, and
shall incur no liability for distributions made in good faith to such assignor,
until such time as the written instrument of assignment has been received by the
Partnership and recorded on its books.
17.6 WITHDRAWAL OF LIMITED PARTNER. Except as otherwise specifically
-----------------------------
permitted by this Agreement, no Limited Partner shall be entitled to withdraw or
retire from the Partnership.
17.7 DEATH, LEGAL INCOMPETENCY OR DISSOLUTION OF LIMITED PARTNER. Upon the
-----------------------------------------------------------
death, legal incompetency or dissolution of a Limited Partner, the estate,
personal representative, guardian or other successor in interest of such Limited
Partner shall have all of the rights and be liable for all the obligations of
the Limited Partner in the Partnership to the extent of such Limited Partner's
interest therein, subject to the terms and conditions of this Agreement, and,
with the prior written consent of the General Partners, which may be withheld at
their sole discretion, may be substituted for such Limited Partner.
17.8 ELIMINATION OR MODIFICATION OF RESTRICTIONS. Notwithstanding any of
-------------------------------------------
the foregoing provisions of this Article XVII, the General Partners may amend
this Agreement to eliminate or modify any restriction on substitution or
assignment at such time as the restriction is no longer necessary.
ARTICLE XVIII
LOANS TO PARTNERSHIP
18.1 AUTHORITY TO BORROW. The General Partners shall cause the Partnership
-------------------
to purchase and own all Partnership Properties on an unleveraged basis, and the
Partnership shall not incur any indebtedness except for loans which are
authorized pursuant to Section 11.3(e) hereof.
18.2 LOANS FROM PARTNERS. If any Partner shall make any loan or loans to
-------------------
the Partnership or advance money on its behalf pursuant to Section 11.3(e)
hereof, the amount of any such loan or advance shall not be deemed to be an
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additional Capital Contribution by the lending Partner or entitle such lending
Partner to an increase in his share of the distributions of the Partnership, or
subject such Partner to any greater proportion of the losses which the
Partnership may sustain. The amount of any such loan or advance shall be a debt
due from the Partnership to such lending Partner repayable upon such terms and
conditions and bearing interest at such rates as shall be mutually agreed upon
by the lending Partner and the General Partners; provided, however, that a
General Partner as a lending Partner may not receive interest and other
financing charges or fees in excess of the amount which would be charged by
unrelated banks on comparable loans for the same purpose in the same area. No
prepayment charge or penalty shall be required by a General Partner on a loan to
the Partnership. Notwithstanding the foregoing, (a) no Partner shall be under
any obligation whatsoever to make any such loan or advance to the Partnership,
and (b) neither the General Partners nor any of their Affiliates shall provide
permanent financing to the Partnership.
ARTICLE XIX
POWER OF ATTORNEY, CERTIFICATES AND OTHER DOCUMENTS
19.1 POWER OF ATTORNEY. Each Limited Partner, by becoming a Limited
-----------------
Partner and adopting this Agreement, constitutes and appoints the General
Partners and each of them and any successor to the General Partners as his true
and lawful attorney-in-fact, in his name, place and stead, from time to time:
(a) To execute, acknowledge, swear to, file and/or record all
agreements amending this Agreement that may be appropriate:
(i) To reflect a change of the name or the location of the
principal place of business of the Partnership;
(ii) To reflect the disposal by any Limited Partner of his
interest in the Partnership, or any Units constituting a part thereof, in any
manner permitted by this Agreement, and any return of the Capital Contribution
of a Limited Partner (or any part thereof) provided for by this Agreement;
(iii) To reflect a Person's becoming a Limited Partner of the
Partnership as permitted by this Agreement;
(iv) To reflect a change in any provision of this Agreement or the
exercise by any Person of any right or rights hereunder not requiring the
consent of said Limited Partner;
(v) To reflect the addition or substitution of Limited Partners or
the reduction of Capital Accounts upon the return of capital to Partners;
(vi) To add to the representations, duties or obligations of the
General Partners or their Affiliates or surrender any right or power granted to
the General Partners or their Affiliates herein for the benefit of the Limited
Partners;
(vii) To cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with law or with any other provision
herein, or to make any other provision with respect to matters or questions
arising under this Agreement which will not be inconsistent with law or with the
provisions of this Agreement;
(viii) To delete, add or modify any provision to this Agreement
required to be so deleted, added or modified by the staff of the Securities and
Exchange Commission, the National Association of Securities Dealers, Inc. or by
a State Securities Commissioner or similar such official, which addition,
deletion or modification is deemed by such Commission or official to be for the
benefit or protection of the Limited Partners;
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(ix) To make all filings as may be necessary or proper to provide
that this Agreement shall constitute, for all purposes, an agreement of limited
partnership under the laws of the State of Georgia as they may be amended from
time to time;
(x) Upon notice to all Limited Partners, to amend the provisions
of Article X of this Agreement, or any other related provision of this Agreement
(provided, however, the General Partners shall first have received an opinion of
counsel to the Partnership that such amendment will not materially adversely
diminish the interests of the Limited Partners) to ensure that (A) the
allocations and distributions contained in Article X comply with Treasury
Regulations relating to Section 704 of the Code or any other statute, regulation
or judicial interpretation relating to such allocations, or (B) the periodic
allocations set forth in Article X will be respected under Section 706 of the
Code or any other statute, regulation or judicial interpretation relating to
such periodic allocations, or (C) the provisions of this Agreement will comply
with any applicable federal or state legislation enacted after the date of this
Agreement; to take such steps as the General Partners determine are advisable or
necessary in order to preserve the tax status of the Partnership as an entity
which is not taxable as a corporation for federal income tax purposes including,
without limitation, to compel a dissolution and termination of the Partnership;
to terminate the Offering of Units; to compel a dissolution and termination of
the Partnership or to restructure the Partnership's activities to the extent the
General Partners deem necessary (after consulting with counsel) to comply with
any exemption in the "plan asset" regulations adopted by the Department of Labor
in the event that either (I) the assets of the Partnership would constitute
"plan assets" for purposes of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or (II) the transactions contemplated hereunder
would constitute "prohibited transactions" under ERISA or the Code and an
exemption for such transactions is not obtainable or not sought by the General
Partners from the United States Department of Labor; provided, the General
Partners are empowered to amend such provisions only to the minimum extent
necessary (in accordance with the advice of accountants and counsel) to comply
with any applicable federal or state legislation, rules, regulations or
administrative interpretations thereof after the date of this Agreement, and
that any such amendment(s) made by the General Partners shall be deemed to be
made pursuant to the fiduciary obligations of the General Partners to the
Partnership; and
(xi) To eliminate or modify any restriction on substitution or
assignment contained in Article XVII at such time as the restriction is no
longer necessary.
(b) To execute, acknowledge, swear to, file or record such
certificates, instruments and documents as may be required by, or may be
appropriate under, the laws of any state or other jurisdiction, or as may be
appropriate for the Limited Partners to execute, acknowledge, swear to, file or
record to reflect:
(i) Any changes or amendments of this Agreement, or pertaining to
the Partnership, of any kind referred to in paragraph (a) of this Section 19.1;
or
(ii) Any other changes in, or amendments of, this Agreement, but
only if and when the consent of a Majority Vote or other required percentage of
the Limited Partners has been obtained.
Each of such agreements, certificates, instruments and documents shall be
in such form as the General Partners and legal counsel for the Partnership shall
deem appropriate. Each Limited Partner hereby authorizes the General Partners
to take any further action which the General Partners shall consider necessary
or convenient in connection with any of the foregoing, hereby giving said
attorney-in-fact full power and authority to do and perform each and every act
and thing whatsoever requisite, necessary or convenient to be done in and about
the foregoing as fully as said Limited Partner might or could do if personally
present and hereby ratifies and confirms all that said attorney-in-fact shall
lawfully do or cause to be done by virtue hereof. The power hereby conferred
shall be deemed to be a power coupled with an interest, in recognition of the
fact that each of the Partners under this Agreement will be relying upon the
power of the General Partners to act as contemplated by this Agreement in any
filing and other action by them on behalf of the Partnership, and shall survive
the bankruptcy, death, adjudication of incompetence or insanity, or dissolution
of any Person hereby giving such power and the transfer or assignment of all or
any part of the Units of such Person; provided, however, that in the event of
the transfer by a Limited Partner of all of his Units, the foregoing power of
attorney of a transferor Limited Partner shall survive such transfer only until
such time as the transferee shall have been admitted to the Partnership as a
substituted
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Limited Partner and all required documents and instruments shall have been duly
executed, sworn to, filed and recorded to effect such substitution.
19.2 REQUIRED SIGNATURES. Any writing to amend this Agreement to reflect
-------------------
the addition of a Limited Partner need be signed only by a General Partner, by
the Limited Partner who is disposing of his interest in the Partnership, if any,
and by the Person to be substituted or added as a Limited Partner. The General
Partners, or either of them, may sign for either or both of said Limited
Partners as their attorney-in-fact pursuant to paragraph (a) of Section 19.1
hereof. Any writing to amend this Agreement to reflect the removal or
withdrawal of a General Partner in the event the business of the Partnership is
continued pursuant to the terms of this Agreement need be signed only by a
remaining or a new General Partner.
19.3 ADDITIONAL DOCUMENTS. Each Partner, upon the request of the others,
--------------------
agrees to perform any further acts and execute and deliver any further documents
which may be reasonably necessary to carry out the provisions of this Agreement.
ARTICLE XX
DISSOLUTION AND TERMINATION OF THE PARTNERSHIP
20.1 DISSOLUTION. Except as otherwise provided in this Section 20.1, no
-----------
Partner shall have the right to cause dissolution of the Partnership before the
expiration of the term for which it is formed. The Partnership shall be
dissolved and terminated upon the happening of any of the following events:
(a) The expiration of the term of the Partnership as specified in
Article VI hereof;
(b) The decision by Majority Vote of the Limited Partners to dissolve
and terminate the Partnership;
(c) The entry of a decree of judicial dissolution by a court of
competent jurisdiction, provided that the foregoing shall not apply if the
Partnership files a voluntary petition seeking reorganization under the
bankruptcy laws;
(d) The retirement or withdrawal of a General Partner unless (i) the
remaining General Partner, if any, elects to continue the business of the
Partnership within 90 days from the date of such event, or (ii) if there is no
remaining General Partner, the Limited Partners, within 120 days from the date
of such event, elect by Majority Vote to continue the business of the
Partnership and elect a new General Partner pursuant to Section 20.3 below;
(e) The effective date of the removal of a General Partner unless (i)
the remaining General Partner, if any, elects to continue the business of the
Partnership within 90 days from the date of such event, or (ii) if there is no
remaining General Partner, Limited Partners, prior to the effective date of such
removal, elect by Majority Vote to continue the business of the Partnership and
elect a new General Partner pursuant to Section 20.3 below;
(f) The effective date of an Event of Withdrawal of a General Partner
unless (i) the remaining General Partner, if any, elects to continue the
business of the Partnership within 90 days from the date of such Event of
Withdrawal, or (ii) if there is no remaining General Partner, the Limited
Partners, within 120 days from the date of such Event of Withdrawal, elect by
Majority Vote to continue the business of the Partnership and elect a new
General Partner pursuant to Section 20.3 below;
(g) The sale or other disposition of all of the interests in real
estate (including, without limitation, purchase money security interests and
interests in joint ventures or other entities owning interests in real estate)
of the Partnership; or
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(h) The election by the General Partners to terminate the Partnership,
without the consent of any Limited Partner, in the event that either (i) the
Partnership's assets constitute "plan assets," as such term is defined for
purposes of ERISA, or (ii) any of the transactions contemplated by this
Agreement constitute a "prohibited transaction" under ERISA or the Code and no
exemption for such transaction is obtainable from the United States Department
of Labor or the General Partners determine in their discretion not to seek such
an exemption.
In the Event of Withdrawal of a General Partner resulting in only one
General Partner remaining, such remaining General Partner shall be obligated to
elect to continue the business of the Partnership within 90 days from the date
of such Event of Withdrawal.
The Partnership shall not be dissolved or terminated by the admission of
any new Limited Partner or by the withdrawal, expulsion, death, insolvency,
bankruptcy or disability of a Limited Partner.
20.2 PROXY TO LIQUIDATE. At any time commencing eight years after the
------------------
termination of the Offering, upon receipt by the General Partners of written
requests from Limited Partners holding 10% or more of the outstanding Units (the
"Proxy Request") directing that the General Partners formally proxy the Limited
Partners to determine whether the assets of the Partnership should be liquidated
(the "Proxy to Liquidate"), the General Partners shall send a Proxy to Liquidate
to each Limited Partner within 60 days of receipt of the Proxy Request, or as
soon as reasonably practicable thereafter following the receipt of independent
appraisals of Partnership Properties which the Partnership shall obtain as part
of this proxy process, and the filing and review of such Proxy to Liquidate by
the Securities and Exchange Commission. The General Partners shall not be
required to send Proxies to Liquidate to Limited Partners more frequently than
once during every two (2) year period. To insure that Limited Partners are
adequately informed when casting their votes, the Proxy to Liquidate furnished
to each Limited Partner shall include financial information setting forth per
Unit pro forma tax and financial projections which assume that all Partnership
Properties will be sold immediately at prices consistent with their appraised
values, or such other information as the General Partners deem appropriate and
informative, provided in all such cases that the furnishing of such information
to Limited Partners shall not contravene applicable law or applicable rules and
regulations of the Securities and Exchange Commission regarding the solicitation
of proxies. The Proxy to Liquidate shall contain a 45 day voting deadline, and
the actual voting results shall be tabulated by the Partnership's independent
accountants who will receive the votes directly from the Limited Partners. The
General Partners shall disclose the complete voting results for the Proxy to
Liquidate in the Partnership's next annual or quarterly report on Form 10-K or
10-Q sent to the Limited Partners for the period following the date on which
voting was completed. If a Majority Vote of the Limited Partners is cast, in
favor of a liquidation of the Partnership, the assets of the Partnership shall
be fully liquidated within 30 months from the close of the voting deadline
applicable to the Proxy to Liquidate. Under no circumstances, however, shall
the General Partners direct the Partnership to make distributions "in kind" of
any Partnership Properties to the Limited Partners.
20.3 LIMITED PARTNERS' RIGHT TO CONTINUE THE BUSINESS OF THE PARTNERSHIP.
-------------------------------------------------------------------
Upon the occurrence of an event specified in paragraphs (d), (e) or (f) of
Section 20.1 above, occurring with respect to the last remaining General
Partner, Limited Partners shall have a right prior to the effective date of the
occurrence of any such event to elect to continue the business of the
Partnership pursuant to the provisions of this Section 20.3. The effective date
of the events specified in paragraphs (d), (e) and (f) of Section 20.1 above
with respect to the last remaining General Partner shall be 120 days after the
date of any such event. In the case of the occurrence of an event specified in
paragraphs (d), (e) or (f) of Section 20.1 above, the Limited Partners may
elect, by Majority Vote within 120 days from the date of such event, to continue
the business of the Partnership and elect one or more new General Partners. The
new General Partner or General Partners so elected shall execute, deliver,
acknowledge and record an amendment to the Certificate and such other documents
and instruments as may be necessary or appropriate to effect such change.
20.4 PAYMENT TO WITHDRAWN OR REMOVED GENERAL PARTNER. Upon the retirement,
-----------------------------------------------
removal or Event of Withdrawal of a General Partner, the Partnership shall be
required to pay such General Partner any amounts then accrued and owing to such
General Partner under this Agreement. The method of payment to any such General
Partner must be fair and must protect the solvency and liquidity of the
Partnership. In addition, the Partnership shall have the right, but not the
obligation, to terminate any such General Partner's interest in Partnership
income, losses, distributions and capital upon
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payment to him of an amount equal to the value of his interest in Partnership
income, losses, distributions and capital on the date of such retirement,
removal or Event of Withdrawal. Such interest shall be computed taking into
account the General Partner's economic interest in the Partnership under
Articles IX and X hereof, and shall be based upon the market value of the assets
of the Partnership determined as if such assets were sold on the date of such
retirement, removal or Event of Withdrawal. In the event such General Partner
(or his representative) and the Partnership cannot mutually agree upon such
value within 90 days following such removal or withdrawal, such value shall be
determined by arbitration before a panel of three appraisers, one of whom shall
be selected by such General Partner (or his representative) and one by the
Partnership, and the third of whom shall be selected by the two appraisers so
selected by the parties. Such arbitration shall take place in Atlanta, Georgia
and shall be in accordance with the rules and regulations of the American
Arbitration Association then in force and effect. The expense of arbitration
shall be borne equally by such General Partner and the Partnership. Payment to
such General Partner of the value of his interest in Partnership income, losses,
distributions and capital shall be made by the delivery of a promissory note (i)
if the termination was voluntary, being unsecured, bearing no interest and
having principal payable, if at all, from distributions which the General
Partner would have otherwise received under this Agreement had the General
Partner not terminated; or (ii) if the termination was involuntary, coming due
in not less than five years and bearing interest at the rate of 9% per annum,
with principal and interest payable annually in equal installments. In addition,
within 120 days after the determination of the fair market value of the former
General Partner's interest, upon the vote of a majority of the Limited Partners,
the Partnership may sell such interest to one or more Persons who may be
Affiliates of the remaining General Partner or General Partners, and admit such
Person or Persons to the Partnership as substitute General Partner or Partners;
provided, however, that the purchase price to be paid to the Partnership for the
Partnership interest of the former General Partner shall not be less than its
fair market value as determined by the appraisal described above. Such
substitute General Partner or Partners may pay said purchase price in
installments in the manner set forth above. In the event that such General
Partner's interest is not terminated by the Partnership pursuant to the
provisions set forth above, such interest shall convert automatically to a
special limited partnership interest having the same interest in the
Partnership's income, losses, distributions and capital as was attributable to
such interest as a General Partner. In either event, any such General Partner
who has retired, has been removed or with respect to which an Event of
Withdrawal has occurred shall have no further right to participate in the
management of the Partnership.
20.5 TERMINATION OF EXECUTORY CONTRACTS. Upon the removal or occurrence of
----------------------------------
an Event of Withdrawal of a General Partner, all executory contracts between the
Partnership and such General Partner or any Affiliate thereof (unless such
Affiliate is also an Affiliate of a remaining or new General Partner or General
Partners) may be terminated and canceled by the Partnership without prior notice
or penalty. Such General Partner or any Affiliate thereof (unless such
Affiliate is also an Affiliate of a remaining or new General Partner or General
Partners) may also terminate and cancel any such executory contract effective
upon 60 days prior written notice of such termination and cancellation to the
remaining or new General Partner or General Partners, if any, or to the
Partnership.
ARTICLE XXI
DISTRIBUTION ON TERMINATION OF PARTNERSHIP
21.1 LIQUIDATION DISTRIBUTION. Upon a dissolution and final termination of
------------------------
the Partnership, the General Partners (or in the event of a General Partner's
removal or termination and, if there is no remaining General Partner, any other
Person selected by the Limited Partners) shall take account of the Partnership
assets and liabilities, and the assets shall be liquidated as promptly as is
consistent with obtaining the fair market value thereof, and the proceeds
therefrom, to the extent sufficient therefor, shall be applied and distributed
in accordance with Section 9.4 hereof.
21.2 TIME OF LIQUIDATION. A reasonable time shall be allowed for the
-------------------
orderly liquidation of the assets of the Partnership and the discharge of
liabilities to creditors so as to enable the General Partners to minimize the
losses upon a liquidation.
B-45
<PAGE>
21.3 LIQUIDATION STATEMENT. Each of the Partners shall be furnished with a
---------------------
statement prepared or caused to be prepared by the General Partners, which shall
set forth the assets and liabilities of the Partnership as of the date of
complete liquidation. Upon compliance with the foregoing distribution plan, the
Limited Partners shall cease to be such, and the General Partners, as the sole
remaining Partners of the Partnership, shall execute, acknowledge and cause to
be filed a Certificate of Cancellation of the Partnership.
21.4 NO LIABILITY FOR RETURN OF CAPITAL. The General Partners shall not be
----------------------------------
personally liable for the return of all or any part of the Capital Contributions
of the Limited Partners. Any such return shall be made solely from Partnership
assets.
21.5 NO RIGHT OF PARTITION. The Partners and Assignees shall have no right
---------------------
to receive Partnership Property in kind, nor shall such Partners or Assignees
have the right to partition the Partnership Property, whether or not upon the
dissolution and termination of the Partnership.
21.6 PRIORITY; RETURN OF CAPITAL. Except as provided in this Agreement, no
---------------------------
Limited Partner shall have priority over any other Limited Partner either as to
the return of Capital Contributions or as to allocations of income and losses or
payments of distributions. Other than upon the dissolution and termination of
the Partnership as provided by this Agreement, there has been no time agreed
upon when the Capital Contribution of each Limited Partner is to be returned.
21.7 ESCHEAT OF DISTRIBUTIONS. If, upon termination and dissolution of the
------------------------
Partnership, there remains outstanding on the books of the Partnership (after a
reasonable period of time determined in the sole discretion of the General
Partners) a material amount of distribution checks which have not been
negotiated for payment by the Limited Partners, the General Partners may, if
deemed to be in the best interest of the Partnership, cause such amounts to be
redistributed pro rata to Limited Partners of record on such final distribution
date who have previously cashed all of their distribution checks; provided,
however, that neither the General Partners nor the Partnership shall be liable
for any subsequent claims for payment of such redistributed distributions. The
General Partners are not required to make such a redistribution, in which case
such amounts may eventually escheat to the appropriate state. Notwithstanding
the foregoing, the proceeds of distribution checks payable to Ohio residents
which have not been negotiated for payment within one year of the distribution
date shall be submitted to the Ohio Division of Unclaimed Funds in accordance
with the Ohio Unclaimed Funds statute, Chapter 169 of the Ohio Revised Code.
ARTICLE XXII
GENERAL PROVISIONS
22.1 NOTICES. Except as otherwise provided herein, any notice, payment,
-------
distribution or other communication which shall be required to be given to any
Limited Partner in connection with the business of the Partnership shall be
in writing, and any such notice shall become effective (a) upon personal
delivery thereof, including any overnight mail and courier service, or (b) four
days after it shall have been mailed by United States Mail, first class, with
postage prepaid; in each case, if to a Limited Partner, addressed to the last
address furnished for such purpose by such Limited Partner to whom it is
authorized to be given as of the time set for delivery or as of the time
of such mailing; and if to a General Partner or the Partnership, shall be given
when actually received at the principal office of the Partnership, or at such
other address as such General Partner may hereafter specify in a notice duly
given as provided herein.
22.2 SURVIVAL OF RIGHTS. This Agreement shall be binding upon and inure to
------------------
benefit of the Partners and their respective heirs, legatees, legal
representatives, successors and assigns.
22.3 AMENDMENT. Except as specifically provided herein, following the
---------
admission of Additional Limited Partners to the Partnership, this Agreement may
be amended, modified and changed only after obtaining a Majority Vote of the
Limited Partners. When voting on whether to approve or reject proposed changes
to this Agreement, Limited Partners shall be permitted to vote separately on
each significant proposed change.
B-46
<PAGE>
22.4 HEADINGS. The captions of the articles and sections of this
--------
Agreement are for convenience only and shall not be deemed part of the text of
this Agreement.
22.5 AGREEMENT IN COUNTERPARTS. This Agreement, or any amendment hereto,
-------------------------
may be executed in counterparts each of which shall be deemed an original
Agreement, and all of which shall constitute one agreement, by each of the
Partners hereto on the dates respectively indicated in the acknowledgements of
said Partners, notwithstanding that all of the Partners are not signatories to
the original or the same counterpart, to be effective as of the day and year
first above written.
22.6 GOVERNING LAW. This Agreement shall be governed and construed
-------------
according to the laws of the State of Georgia governing partnerships.
22.7 TIME. Time is of the essence in this Agreement.
----
22.8 PRONOUNS. All pronouns and any variations thereof shall be deemed to
--------
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the Person or Persons may require.
22.9 SEPARABILITY OF PROVISIONS. Each provision of this Agreement shall be
--------------------------
considered separable and if for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation, or affect those portions, of this
Agreement which are valid.
22.10 NO MANDATORY ARBITRATION OF DISPUTES. Except as may be permitted or
------------------------------------
required pursuant to Section 20.4 hereof, nothing in this Agreement or the
Subscription Agreement to be executed by each Limited Partner shall be deemed to
require the mandatory arbitration of disputes between a Limited Partner and the
Partnership or any Sponsor. Nothing contained in this Section 22.10 is intended
to apply to preexisting contracts between broker-dealers and Limited Partners.
B-47
<PAGE>
IN WITNESS WHEREOF, the undersigned hereby execute this Amended and
Restated Agreement of Limited Partnership under seal as of the date and year
first above written.
INITIAL LIMITED PARTNER:
(SEAL)
----------------------------------------
Brian M. Conlon
GENERAL PARTNERS:
WELLS PARTNERS, L.P.
A Georgia Limited Partnership
By: WELLS CAPITAL, INC.
A Georgia Corporation
Attest: (As General Partner)
By: By:
--------------------------------- ------------------------------
Name: Leo F. Wells, III
-------------------------- President
Title:
-------------------------
(SEAL)
----------------------------------------
LEO F. WELLS, III
B-48
<PAGE>
EXHIBIT C
FORM OF SUBSCRIPTION AGREEMENT AND
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
<PAGE>
EXHIBIT "C"
SUBSCRIPTION AGREEMENT
To: WELLS REAL ESTATE FUND X/XI, L.P.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Ladies and Gentlemen:
The undersigned, by signing and delivering a copy of the attached
Subscription Agreement Signature Page, hereby tenders this subscription and
applies for the purchase of the number of units of limited partnership interest
("Units") in Wells Real Estate Fund X/XI, L.P., a Georgia limited partnership
(the "Partnership"), set forth on such Subscription Agreement Signature Page.
Payment for the Units is hereby made by check payable to "The Bank of New York,
as Agent."
Payments for Units will be held in escrow until the Partnership has
received and accepted subscriptions for 125,000 Units ($1,250,000), except with
respect to residents of the States of New York and Pennsylvania, whose payments
for Units will be held in escrow until the Partnership has received and accepted
subscriptions for 250,000 Units ($2,500,000) from all investors.
I hereby acknowledge receipt of the Prospectus of the Partnership dated
December 31, 1996 (the "Prospectus"), which includes the Agreement of Limited
Partnership of the Partnership (the "Partnership Agreement") in the form
attached as Exhibit B to the Prospectus.
I agree that if this subscription is accepted, it will be held, together
with the accompanying payment, on the terms described in the Prospectus and
that, if admitted to the Partnership, I shall be bound by the terms and
conditions of the Partnership Agreement, including the power of attorney granted
to the General Partners in Section 19.1 thereof. Subscriptions may be rejected
in whole or in part by the General Partners in their sole and absolute
discretion.
Prospective investors are hereby advised of the following:
(a) The assignability and transferability of the Units is restricted and
will be governed by the Partnership Agreement and all applicable laws as
described in the Prospectus.
(b) Prospective investors should not invest in Units unless they have an
adequate means of providing for their current needs and personal contingencies
and have no need for liquidity in this investment.
(c) There will be no public market for the Units, and accordingly, it may
not be possible to readily liquidate an investment in the Partnership.
I hereby constitute and appoint Wells Partners, L.P. and Leo F. Wells, III,
and each of them acting singly, with full power of substitution, my true and
lawful attorney-in-fact in my name, place and stead and for my use and benefit
(a) to sign, execute, deliver, certify, acknowledge, file and record a
Partnership Agreement in substantially the form attached as Exhibit B to the
Prospectus; and (b) to sign, execute, certify, acknowledge, swear to, file,
record and publish any other certificates, instruments and documents which may
be required of the Partnership under the laws of the State of Georgia or the
laws of any state or any governmental agency, or which such attorney-in-fact
deems necessary or advisable to file, record, publish, or deliver. The
foregoing grant of authority (a) is a special power of attorney coupled with an
interest, (b) is irrevocable and shall survive my death or disability, and (c)
may be exercised by such attorney-in-fact by listing my name along with the
names of all other persons for whom such attorney-in-fact is acting and
executing the Partnership Agreement and such other certificates, instruments and
documents with the single signature of a duly-authorized officer or agent of
such attorney-in-fact for all of the persons whose names are so listed.
C-1
<PAGE>
SPECIAL NOTICE FOR CALIFORNIA RESIDENTS ONLY
CONDITIONS RESTRICTING TRANSFER OF
LIMITED PARTNERSHIP UNITS
260.141.11 RESTRICTIONS ON TRANSFER.
------------------------
(a) The issuer of any security upon which a restriction on transfer
has been imposed pursuant to Sections 260.102.6, 260.141.10 or 260.534 of the
Rules (the "Rules") adopted under the California Corporate Securities Law (the
"Code") shall cause a copy of this section to be delivered to each issuee or
transferee of such security at the time the certificate evidencing the security
is delivered to the issuee or transferee.
(b) It is unlawful for the holder of any such security to consummate a
sale or transfer of such security, or any interest therein, without the prior
written consent of the Commissioner (until this condition is removed pursuant to
Section 260.141.12 of the Rules), except:
(1) to the issuer;
(2) pursuant to the order or process of any court;
(3) to any person described in subdivision (i) of Section 25102
of the Code or Section 260.105.14 of the Rules;
(4) to the transferor's ancestors, descendants or spouse, or any
custodian or trustee for the account of the transferor or the transferor's
ancestors, descendants or spouse; or to a transferee by a trustee or custodian
for the account of the transferee or the transferee's ancestors, descendants or
spouse;
(5) to holders of securities of the same class of the same issuer;
(6) by way of gift or donation inter vivos or on death;
(7) by or through a broker-dealer licensed under the Code (either
acting as such or as a finder) to a resident of a foreign state, territory or
country who is neither domiciled in this state to the knowledge of the broker-
dealer, nor actually present in this state if the sale of such securities is not
in violation of any securities laws of the foreign state, territory or country
concerned;
(8) to a broker-dealer licensed under the Code in a principal
transaction, or as an underwriter or member of an underwriting syndicate or
selling group;
(9) if the interest sold or transferred is a pledge or other lien
given by the purchaser to the seller upon a sale of the security for which the
Commissioner's written consent is obtained or under this rule not required;
(10) by way of a sale qualified under Sections 25111, 25112, 25113
or 25121 of the Code, of the securities to be transferred, provided that no
order under Section 25140 or subdivision (a) of Section 25143 is in effect with
respect to such qualification;
(11) by a corporation to a wholly owned subsidiary of such
corporation, or by a wholly owned subsidiary of a corporation to such
corporation;
(12) by way of an exchange qualified under Section 25111, 25112 or
25113 of the Code provided that no order under Section 25140 or subdivision (a)
of Section 25143 is in effect with respect to such qualification;
(13) between residents of foreign states, territories or countries
who are neither domiciled or actually present in this state;
(14) to the State Controller pursuant to the Unclaimed Property
Law or to the administrator of the unclaimed property law of another state;
C-2
<PAGE>
(15) by the State Controller pursuant to the Unclaimed Property
Law or by the administrator of the unclaimed property law of another state if,
in either such case, such person (i) discloses to potential purchasers at the
sale that transfer of the securities is restricted under this rule, (ii)
delivers to each purchaser a copy of this rule, and (iii) advises the
Commissioner of the name of each purchaser;
(16) by a trustee to a successor trustee when such transfer does
not involve a change in the beneficial ownership of the securities;
(17) by way of an offer and sale of outstanding securities in an
issuer transaction that is subject to the qualification requirement of Section
25110 of the Code but exempt from that qualification requirement by subdivision
(f) of Section 25102; provided that any such transfer is on the condition that
any certificate evidencing the security issued to such transferee shall contain
the legend required by this section.
(c) The certificates representing all such securities subject to such
a restriction on transfer, whether upon initial issuance or upon any transfer
thereof, shall bear on their face a legend, prominently stamped or printed
thereon in capital letters of not less than 10-point size, reading as follows:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
[Last amended effective January 21, 1988.]
SPECIAL NOTICE FOR MASSACHUSETTS RESIDENTS ONLY
In no event may a subscription for Units be accepted until at least
five business days after the date the subscriber receives the Prospectus.
Residents of the State of Massachusetts who first received the Prospectus only
at the time of subscription may receive a refund of the subscription amount upon
request to the General Partners within five days of the date of subscription.
C-3
<PAGE>
STANDARD REGISTRATION REQUIREMENTS
The following requirements have been established for the various forms of
registration. Accordingly, complete Subscription Agreements and such supporting
material as may be necessary must be provided.
TYPE OF OWNERSHIP AND SIGNATURE(S) REQUIRED
1. INDIVIDUAL: One signature required.
2. JOINT TENANTS WITH RIGHT OF SURVIVORSHIP: All parties must sign.
3. TENANTS IN COMMON: All parties must sign.
4. COMMUNITY PROPERTY: Only one investor signature required.
5. PENSION OR PROFIT SHARING PLANS: The trustee signs the Signature Page.
6. TRUST: The trustee signs the Signature Page. Provide the name of the trust,
the name of the trustee and the name of the beneficiary.
7. PARTNERSHIP: Identify whether the entity is a general or limited
partnership. The general partners must be identified and their signatures
obtained on the Signature Page. In the case of an investment by a general
partnership, all partners must sign (unless a "managing partner" has been
designated for the partnership, in which case he may sign on behalf of the
partnership if a certified copy of the document granting him authority to
invest on behalf of the partnership is submitted).
8. CORPORATION: The Subscription Agreement must be accompanied by (1) a
certified copy of the resolution of the Board of Directors designating the
officer(s) of the corporation authorized to sign on behalf of the corporation
and (2) a certified copy of the Board's resolution authorizing the
investment.
9. IRA AND IRA ROLLOVERS: Requires signature of authorized signer (e.g., an
officer) of the bank, trust company, or other fiduciary. The address of the
trustee must be provided in order for the trustee to receive checks and other
pertinent information regarding the investment.
10. KEOGH (HR 10): Same rules as those applicable to IRAs.
11. UNIFORM GIFT TO MINORS ACT (UGMA) or UNIFORM TRANSFERS TO MINORS ACT (UTMA):
The required signature is that of the custodian, not of the parent (unless
the parent has been designated as the custodian). Only one child is
permitted in each investment under UGMA or UTMA. In addition, designate the
state under which the gift is being made.
C-4
<PAGE>
INSTRUCTIONS TO SUBSCRIPTION AGREEMENT SIGNATURE PAGE
TO WELLS REAL ESTATE FUND X/XI, L.P. SUBSCRIPTION AGREEMENT
<TABLE>
<CAPTION>
________________________________________________________________________________________________________
<C> <S>
INVESTOR PLEASE FOLLOW THESE INSTRUCTIONS CAREFULLY. FAILURE TO DO SO MAY RESULT IN THE
INSTRUCTIONS REJECTION OF YOUR SUBSCRIPTION. ALL INFORMATION ON THE SUBSCRIPTION
AGREEMENT SIGNATURE PAGE SHOULD BE COMPLETED AS FOLLOWS:
________________________________________________________________________________________________________
1. INVESTMENT A minimum investment of $1,000 (100 Units) is required, except for certain states
which require a higher minimum investment. A CHECK FOR THE FULL
PURCHASE PRICE OF THE UNITS SUBSCRIBED FOR SHOULD BE
MADE PAYABLE TO THE ORDER OF "THE BANK OF NEW YORK, AS
AGENT." Investors who have satisfied the minimum purchase requirements in
Wells Real Estate Fund I, Wells Real Estate Fund II, Wells Real Estate Fund II-
OW, Wells Real Estate Fund III, L.P., Wells Real Estate Fund IV, L.P., Wells
Real Estate Fund V, L.P., Wells Real Estate Fund VI, L.P., Wells Real Estate
Fund VII, L.P., Wells Real Estate Fund VIII, L.P., Wells Real Estate Fund IX,
L.P., or, in the case of Wells Real Estate Fund XI, L.P., Wells Real Estate Fund
X, L.P. may invest as little as $25 (2.5 Units) except for residents of Maine,
Minnesota or Washington. Units may be purchased only by persons meeting the
standards set forth under the Section of the Prospectus entitled "WHO SHOULD
INVEST - SUITABILITY STANDARDS". Please indicate the state in which the
sale was made.
________________________________________________________________________________________________________
2. CLASS STATUS OF Please check the appropriate box to identify the status of Units (Class A or
UNITS Class B) desired. These classes of Units entitle holders to different rights under
the Partnership Agreement. For a more complete description of the differences
between the two classes of Units, see "DESCRIPTION OF THE UNITS" in the
Prospectus. If electing Class A Status for some Units and Class B Status for the
remaining Units being purchased, please complete a separate Subscription
Agreement Signature Page for each class of Units.
________________________________________________________________________________________________________
3. TYPE OF OWNERSHIP Please check the appropriate box to indicate the type of entity or type of
individuals subscribing.
________________________________________________________________________________________________________
4. REGISTRATION NAME Please enter the exact name in which the Units are to be held. For joint tenants
AND ADDRESS with right of survivorship or tenants in common, include the names of both
investors. In the case of partnerships or corporations, include the name of an
individual to whom correspondence will be addressed. Trusts should include the
name of the trustee. All investors must complete the space provided for taxpayer
identification number or social security number. By signing in Section 6, the
investor is certifying that this number is correct. Enter the mailing address and
telephone numbers of the registered owner of this investment. In the case of a
Qualified Plan or trust, this will be the address of the trustee. Indicate the
birthdate and occupation of the registered owner unless the registered owner is a
partnership, corporation or trust.
________________________________________________________________________________________________________
5. INVESTOR NAME AND Complete this Section only if the investor's name and address is different from the
ADDRESS registration name and address provided in Section 4. If the Units are registered in
the name of a trust, enter the name, address, telephone number, social security
number, birthdate and occupation of the beneficial owner of the trust.
________________________________________________________________________________________________________
6. SUBSCRIBER Please separately initial each representation made by the investor where indicated.
SIGNATURES Except in the case of fiduciary accounts, the investor may not grant any person a
power of attorney to make such representations on his or her behalf. Each
investor must sign and date this Section. If title is to be held jointly, all parties
must sign. If the registered owner is a partnership, corporation or trust, a general
partner, officer or trustee of the entity must sign. PLEASE NOTE THAT
THESE SIGNATURES DO NOT HAVE TO BE NOTARIZED.
________________________________________________________________________________________________________
</TABLE>
C-5
<PAGE>
<TABLE>
<C> <S>
7. ADDITIONAL Please check if you plan to make one or more additional investments in the
INVESTMENTS Partnership. All additional investments must be in increments of at least $25 and,
unless otherwise indicated on a new Subscription Agreement Signature Page, you
will be deemed to have elected the same status of Units (Class A or Class B) you
check in Section 2. Additional investments by residents of Maine must be for the
minimum amounts stated under "WHO SHOULD INVEST - SUITABILITY
STANDARDS" in the Prospectus, and residents of Maine must execute a new
Subscription Agreement Signature Page to make additional investments in the
Partnership. If additional investments in the Partnership are made, the investor
agrees to notify the General Partners and the Broker-Dealer named on the
Subscription Agreement Signature Page in writing if at any time he fails to meet
the applicable suitability standards or he is unable to make any other
representations or warranties set forth in the Prospectus or the Subscription
Agreement. The investor acknowledges that the Broker-Dealer named in the
Subscription Agreement Signature Page may receive a commission not to exceed
8% of any such additional investments in the Partnership.
________________________________________________________________________________________________________
8. DISTRIBUTIONS a. DISTRIBUTION REINVESTMENT PLAN: By electing the
Distribution Reinvestment Plan, the investor elects to reinvest all
distributions of Net Cash From Operations in the Partnership and to have
the option in the future to invest Net Cash From Operations in limited
partnerships sponsored by the General Partners or their Affiliates which
have substantially identical investment objectives as the Partnership.
Unless the General Partners are otherwise notified in writing, Units
purchased pursuant to the Distribution Reinvestment Plan will initially be
treated as Class A Status Units. The investor agrees to notify the
General Partners and the Broker-Dealer named on the Subscription
Agreement Signature Page in writing if at any time he fails to meet the
applicable suitability standards or he is unable to make any other
representations and warranties as set forth in the Prospectus or
Subscription Agreement or in the prospectus and subscription agreement
of any future limited partnerships sponsored by the General Partners or
their Affiliates. The investor acknowledges that the Broker-Dealer named
in the Subscription Agreement Signature Page may receive a commission
not to exceed 8% of any reinvested distributions.
b. DISTRIBUTION ADDRESS: If cash distributions are to be sent to an
address other than that provided in Section 5 (i.e., a bank, brokerage
firm or savings and loan, etc.), please provide the name, account number
and address.
________________________________________________________________________________________________________
9. BROKER-DEALER This Section is to be completed by the Registered Representative. Please insert
the Broker-Dealer number, the Registered Representative number and the Account
number on the first page of the Subscription Agreement Signature Page and
complete all BROKER-DEALER information contained in Section 9 including
suitability certification. SIGNATURE PAGE MUST BE SIGNED BY AN
AUTHORIZED REPRESENTATIVE.
- ---------------------------------------------------------------------------------------------------------
</TABLE>
The Subscription Agreement Signature Page, which has been delivered with
this Prospectus, together with a check for the full purchase price, should be
delivered or mailed to your Broker-Dealer. Only original, completed copies of
Subscription Agreements can be accepted. Photocopied or otherwise duplicated
Subscription Agreements cannot be accepted by the Partnership.
IF YOU NEED FURTHER ASSISTANCE IN COMPLETING THIS
SUBSCRIPTION AGREEMENT SIGNATURE PAGE,
PLEASE CALL 1-800-448-1010
C-6
<PAGE>
Special Instructions:
SEE PRECEDING PAGE
FOR INSTRUCTIONS
WELLS REAL ESTATE FUND ___, L.P.
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
1. -------INVESTMENT-----------------------------------------------------------
MAKE INVESTMENT CHECK PAYABLE TO:
- ---------- ------------------ THE BANK OF NEW YORK,
# of Units Total $ Invested AS AGENT
(# Units x $10 = $ Invested) [ ] Initial Investment (Minimum $1,000)
[ ] Additional Investment (Minimum $25)
Minimum purchase $1,000 or 100 Units State in which sale was made
2. ------CLASS STATUS OF UNITS-------------------------------------------------
Check appropriate box.
If electing both Class A Status and Class B Status, please complete a separate
Signature page for each type of investment.
[ ] CLASS A [ ] CLASS B
(Entitled to first priority on distributions of cash flow from operations)
(Allocated certain tax deductions but no distributions of cash flow from
operations)
3. ------TYPE OF OWNERSHIP-----------------------------------------------------
<TABLE>
<S> <C>
[ ] IRA (06) [ ] Individual (01)
[ ] Keogh (10) [ ] Joint Tenants With Right of Survivorship (02)
[ ] Qualified Pension Plan (11) [ ] Community Property (03)
[ ] Qualified Profit Sharing Plan (12) [ ] Tenants in Common (04)
[ ] Other Trust______________________ [ ] Custodian: A Custodian for
For the Benefit of_______________ the Uniform Gift to Minors Act or the Uniform Transfers to Minors Act
[ ] Partnership (15) of the State of ________________(08)
[ ] Other
4. ------REGISTRATION NAME AND ADDRESS-------------------------------------------
Please print name(s) in which Units are to be registered. Include trust name if applicable.
[ ] Mr [ ] Mrs [ ] Ms [ ] MD [ ] PhD [ ] DDS [ ] Other_________________
________________________________________________ Taxpayer Identification Number Social Security Number
________________________________________________ [ ][ ]-[ ][ ][ ][ ][ ][ ][ ] [ ][ ][ ]-[ ][ ]-[ ][ ][ ][ ]
________________________________________________
Street Address ____________________________________________________________________________________________________
or P.O. Box ____________________________________________________________________________________________________
City __________________________________________ State_________________________________ Zip Code __________________
Home ( ) Business ( )
Telephone No.________________________________________ Telephone No._______________________________________________
Birthdate____________________________________________ Occupation __________________________________________________
5. ------INVESTOR NAME AND ADDRESS--------------------------------------------------------------------------------
(COMPLETE ONLY IF DIFFERENT FROM REGISTRATION NAME AND ADDRESS)
[ ] Mr [ ] Mrs [ ] Ms [ ] MD [ ] PhD [ ] DDS [ ] Other_________________
________________________________________________ Social Security Number
________________________________________________ [ ][ ][ ]-[ ][ ]-[ ][ ][ ][ ]
________________________________________________
Street Address ____________________________________________________________________________________________________
or P.O. Box ____________________________________________________________________________________________________
City __________________________________________ State_________________________________ Zip Code __________________
Home ( ) Business ( )
Telephone No.________________________________________ Telephone No._______________________________________________
Birthdate____________________________________________ Occupation __________________________________________________
___________________________________________________________________________________________________________________
(REVERSE SIDE MUST BE COMPLETED)
</TABLE>
C-7
<PAGE>
<TABLE>
<S> <C>
6. ------SUBSCRIBER SIGNATURES------------------------------------------------------------------
Please separately initial each of the representations below. Except in the
case of fiduciary accounts, you may not grant any person a power of attorney
to make such representations on your behalf. In order to induce the General
Partners to accept this subscription, I hereby represent and warrant to you as
follows:
(REVERSE SIDE MUST BE COMPLETED)
(a) I have received the Prospectus and the Partnership Agreement. ________ ________
Initials Initials
(b) I accept and agree to be bound by the terms and conditions of
the Partnership Agreement. ________ ________
Initials Initials
(c) I have (i) a net worth (exclusive of home, home furnishings
and automobiles) of $150,000 or more; or (ii) a net worth
(as described above) of at least $45,000 and had during the
last tax year or estimate that I will have during the current
tax year a minimum of $45,000 annual gross income, or that I
meet the higher suitability requirements imposed by my state of
primary residence as set forth in the Prospectus under
"WHO SHOULD INVEST - SUITABILITY STANDARDS." ________ ________
Initials Initials
(d) If I am a California resident or if the Person to
whom I subsequently propose to assign or transfer any
Units is a California resident, I may not consummate a
sale or transfer of my Units, or any interest therein,
or receive any consideration therefor, without the
prior consent of the Commissioner of the Department of
Corporations of the State of California, except as
permitted in the Commissioner's Rules, and I
understand that my Units, or any document evidencing
my Units, will bear a legend reflecting the substance of
the foregoing understanding. ________ ________
Initials Initials
(e) ARKANSAS AND TEXAS RESIDENTS ONLY: I am purchasing
the Units for my own account and
acknowledge that the investment is not liquid. ________ ________
Initials Initials
I declare that the information supplied above is true and correct and may be
relied upon by the General Partners in connection with my investment as a
Limited Partner in the Partnership. Under penalties of perjury, by signing
this Signature Page, I hereby certify that (a) I have provided herein my
correct Taxpayer Identification Number, and (b) I am not subject to back-up
withholding as a result of a failure to report all interest or dividends, or
the Internal Revenue Service has notified me that I am no longer subject to
back-up withholding.
_______________________________________ _______________________________________ ____________________
Signature of Investor or Trustee Signature of Joint Owner, if applicable Date
(MUST BE SIGNED BY TRUSTEE(S) IF IRA, KEOGH OR QUALIFIED PLAN.)
7. ------ADDITIONAL INVESTMENTS-----------------------------------------------------
Please check if you plan to make additional investments in the Partnership: [ ]
[If additional investments are made, please include social security number or
other taxpayer identification number on your check.]
[All additional investments must be made in increments of at least $25.]
8. ------DISTRIBUTIONS--------------------------------------------------------------
8a. Check the following box to participate in the Distribution Reinvestment Plan: [ ]
8b. Complete the following section only to direct distributions to a party
other than registered owner:
Name ______________________________________________________________
Account Number ______________________________________________________________
Street Address or P.O. Box ______________________________________________________________
City _________________________ State__________ Zip Code____________
9. ------BROKER-DEALER----------------------------------------------------------------
(TO BE COMPLETED BY REGISTERED REPRESENTATIVE)
The Broker-Dealer or authorized representative must sign below to complete
order. Broker-Dealer warrants that it is a duly licensed Broker-Dealer and
may lawfully offer Units in the state designated as the investor's address or
the state in which the sale was made, if different. The Broker-Dealer or
authorized representative warrants that he has reasonable grounds to believe
this investment is suitable for the subscriber as defined in Section 3(b) of
Appendix F and that he has informed subscriber of all aspects of liquidity and
marketability of this investment as required by Section 4 of Appendix F
(Attachment No. 1 to Dealer Agreement).
Broker-Dealer Name ________________________________ Telephone No.________________________
Broker-Dealer Street ______________________________________________________________________
Address or P.O. Box ______________________________________________________________________
City _________________________________ State____________Zip Code___________
Registered
Representative Name __________________________________Telephone No._______________________
Reg. Rep. Street
Address or P.O. Box ______________________________________________________________________
City _________________________________ State____________Zip Code___________
___________________________________________ _________________________________________
Broker-Dealer Signature, if required Registered Representative Signature
Please mail completed Subscription Agreement (with all signatures) and check(s) made payable to
The Bank of New York, as Agent to:
WELLS INVESTMENT SECURITIES, INC.
800-448-1010 or 770-449-7800
Overnight address: Mailing Address:
3885 Holcomb Bridge Road P.O. Box 926040
Norcross, Georgia 30092 Norcross, Georgia 30092-9209
FOR GENERAL PARTNER USE ONLY:
ACCEPTANCE BY GENERAL PARTNERS Amount___________________________ Date___________________
Received and Subscription Accepted: Check No.________________________ Certificate No.________
By:______________________________ Wells Real Estate Fund ___, L.P.
_____________________ ___________________________ _________________________
Broker-Dealer # Registered Representative # Account #
- ---------------------------------------------------------------------------------------------
</TABLE>
C-8
<PAGE>
================================================================================
ALPHABETICAL INDEX
Page
----
Additional Information.................................................. 98
Compensation of the General Partners and Affiliates..................... 29
Conflicts of Interest................................................... 31
Custodial Agency Agreement.............................................. 52
Description of the Units................................................ 22
Distributions and Allocations........................................... 85
Estimated Use of Proceeds............................................... 27
Experts................................................................. 97
Federal Income Tax Consequences......................................... 59
Fiduciary Duty of the General Partners.................................. 35
Glossary................................................................ 98
Independent Auditors.................................................... 97
Investment by Tax-Exempt Entities and ERISA
Considerations..................................................... 54
Investment Objectives and Criteria...................................... 45
Legal Opinions.......................................................... 97
Management.............................................................. 41
Management's Discussion and Analysis of Financial
Condition and Results of Operations................................ 53
Plan of Distribution.................................................... 91
Prior Performance Summary............................................... 36
Real Property Investments............................................... 53
Reports to Investors.................................................... 90
Risk Factors............................................................ 7
Summary of the Offering................................................. 1
Summary of Partnership Agreement........................................ 76
Supplemental Sales Material............................................. 96
Who Should Invest - Suitability Standards............................... 19
===========================================================================
============================================================================
UNTIL MARCH 31, 1997 (90 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL DEALERS
EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS SOLICITING DEALERS.
-------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS UNLESS
PRECEDED OR ACCOMPANIED BY THIS PROSPECTUS, NOR HAS ANY PERSON BEEN AUTHORIZED
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE PARTNERSHIP OR THE GENERAL
PARTNERS SINCE THE DATE HEREOF. HOWEVER, IF ANY MATERIAL CHANGE OCCURS WHILE
THIS PROSPECTUS IS REQUIRED BY LAW TO BE DELIVERED, THIS PROSPECTUS WILL BE
AMENDED OR SUPPLEMENTED ACCORDINGLY.
-------------------------
WELLS REAL ESTATE FUND X, L.P.
AND
WELLS REAL ESTATE FUND XI, L.P.
MINIMUM OFFERING OF $1,250,000
PER PARTNERSHIP
--------------------------
PROSPECTUS
--------------------------
WELLS INVESTMENT
SECURITIES, INC.
DECEMBER 31, 1996
================================================================================
<PAGE>
WELLS REAL ESTATE FUND X, L.P.
AND WELLS REAL ESTATE FUND XI, L.P.
SUPPLEMENT NO. 1 DATED MARCH 27, 1997 TO THE PROSPECTUS
DATED DECEMBER 31, 1996
This document supplements, and should be read in conjunction with, the
Prospectus of Wells Real Estate Fund X, L.P. and Wells Real Estate Fund XI, L.P.
dated December 31, 1996 (the "Prospectus"). Unless otherwise defined herein,
capitalized terms used in this Supplement shall have the same meanings as in the
Prospectus.
The purpose of this Supplement is to describe the following:
(i) The status of the offering of units of limited partnership interest
(the "Units") in Wells Real Estate Fund X, L.P. ("Wells Fund X");
(ii) Revisions to the Financial Statements contained in Appendix I to
the Prospectus and the Prior Performance Tables included as Exhibit A to the
Prospectus;
(iii) The Joint Venture Agreement entered into between Wells Fund X and
Wells Real Estate Fund IX, L.P. ("Wells Fund IX") and the acquisition by the
Joint Venture of real property located in Knox County, Tennessee (the "Knoxville
Property");
(iv) A recent reorganization of certain corporations affiliated with the
General Partners and corresponding revisions to the "CONFLICTS OF INTEREST" and
"MANAGEMENT" sections of the Prospectus; and
(v) Revisions to the "RISK FACTORS," "INVESTMENT OBJECTIVES AND
CRITERIA," "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS" and "EXPERTS" sections of the Prospectus.
STATUS OF THE OFFERING
Pursuant to the Prospectus, the offering of Units in Wells Fund X
commenced December 31, 1996. Wells Fund X commenced operations on February 4,
1997, upon the acceptance of subscriptions for the minimum offering of
$1,250,000 (125,000 Units). As of March 10, 1997, Wells Fund X had raised a
total of $4,577,541 in offering proceeds (455,754 Units), comprised of
$3,563,313 raised from the sale of Class A Status Units (356,331 Class A Status
Units) and $994,228 raised from the sale of Class B Status Units (99,423 Class B
Status Units).
FINANCIAL STATEMENTS AND PRIOR PERFORMANCE TABLES
Financial statements of Wells Fund X, Wells Real Estate Fund XI, L.P.,
Wells Partners, L.P. and Wells Capital, Inc., as of December 31, 1996 and 1995,
and for each of the years in the two-year period ended December 31, 1996, are
included as Appendix I to this Supplement.
Prior Performance Tables dated as of December 31, 1996 are included as
Exhibit A to this Supplement.
JOINT VENTURE AGREEMENT
Wells Fund X formed a joint venture on March 20, 1997 with Wells Fund
IX, a Georgia limited partnership having Leo F. Wells, III and Wells Partners,
L.P. as general partners, known as Fund IX and Fund X Associates (the "Joint
Venture"). The investment objectives of Wells Fund IX are substantially
identical to those of Wells Fund X.
<PAGE>
The Joint Venture was formed for the purpose of acquiring a 5.622 acre
tract of real property located in Knox County, near Knoxville, Tennessee (the
"Property") and constructing thereon a three-story office building containing
approximately 83,885 rentable square feet (the "Project"). ABB Flakt, Inc.
("ABB") has agreed to lease approximately 55,000 rentable square feet of the
Project pursuant to the Lease hereinafter described.
All income, profit, loss, cash flow, resale gain, resale loss and sale
proceeds of the Joint Venture will be allocated and distributed between Wells
Fund IX and Wells Fund X based on their respective capital contributions to the
Joint Venture.
On March 26, 1997, Wells Fund IX contributed its interest in the
Property, along with its rights under the Lease, the Development Agreement
(hereinafter described), the Construction Contract (hereinafter described) and
the Architect's Agreement (hereinafter described), as its capital contribution
to the Joint Venture, and was credited with capital contributions valued at
$1,306,393, which equals to purchase price and all acquisition and development
costs expended by Wells Fund IX to date with respect to the Knoxville Property.
Wells Fund X has not yet made any capital contributions to the Joint Venture.
It is currently contemplated that additional capital contributions to the Joint
Venture will initially be funded by Wells Fund X and that the ultimate
percentage ownership interests in the Joint Venture will be approximately 50% by
each partnership.
Wells Fund IX will act as the initial Administrative Venturer of the
Joint Venture and, as such, will be responsible for establishing policies and
operating procedures with respect to the business and affairs of the Joint
Venture. However, approval of each of Wells Fund IX and Wells Fund X is
required for any major decision or any action which materially affects the Joint
Venture or the Property.
No payment will be made by the Joint Venture to any of Wells Fund IX,
Wells Fund X or any Affiliate, or partners or employees of any of Wells Fund IX
or Wells Fund X for the services of any such party, other than under management
agreements and leasing and tenant coordinating agreements with Wells Management
Company, Inc., an Affiliate of the General Partners, as manager and agent, which
agreements concern the management and leasing of the Project to be owned and
operated by the Joint Venture. Wells Fund X will pay fees and expenses to the
General Partners and their Affiliates as described in the section of the
Prospectus entitled "COMPENSATION OF THE GENERAL PARTNERS AND AFFILIATES."
THE KNOXVILLE PROPERTY
Purchase of the Knoxville Property. Wells Fund IX entered into a Real
----------------------------------
Estate Option Agreement dated December 9, 1996 (the "Option Agreement") with The
Development Corporation of Knox County, a Tennessee nonprofit corporation (the
"Seller"), for the option to purchase a 5.622 acre tract of real property
located in Knox County, near Knoxville, Tennessee (the "Knoxville Property") for
a purchase price of $583,800. The Seller is not affiliated with Wells Fund IX,
Wells Fund X or their General Partners. Wells Fund IX exercised the option
pursuant to the Option Agreement and acquired the Knoxville Property on December
13, 1996. Wells Fund IX entered into a Development Agreement (as hereinafter
described) for the construction of a three-story office building containing
approximately 83,885 rentable square feet to be erected on the Knoxville
Property (the "Project"). Wells Fund IX entered into a Lease Agreement (the
"Lease") with ABB Flakt, Inc. ("ABB") pursuant to which ABB agreed to lease
55,000 rentable square feet of the Project upon its completion. In accordance
with the terms of the Amended and Restated Custodial Agency Agreement dated
November 30, 1995, between Wells Fund IX and The Bank of New York (the "Agent")
and the Custodial Agency Agreement dated June 28, 1996, between Wells Fund X and
the Agent, legal title to the Knoxville Property is being held by the Agent as
agent for the Joint Venture. Wells Fund IX contributed its interest in the
Knoxville Property and the Lease to the Joint Venture on March 26, 1997.
An independent appraisal of the Knoxville Property was prepared by The
David L. Beal Company, Real Estate Appraisers and Consultants, as of October 31,
1996, pursuant to which the market value of the land and the leased fee interest
in the Knoxville Property subject to the Lease (described below) was estimated
to be $8,300,000, in cash or terms equivalent to cash. This value estimate was
based upon a number of assumptions, including that the Project is finished in
accordance with plans and specifications provided and that the building is
operating following completion at a stabilized level with ABB occupying 55,000
rentable square feet and 94% of the remaining
2
<PAGE>
rentable area occupied by other tenants. Wells Fund IX also obtained an
environmental report prior to closing evidencing that the environmental
condition of the Knoxville Property was satisfactory.
In connection with the closing of the acquisition of the Knoxville
Property, Wells Fund IX incurred attorneys fees and expenses of approximately
$40,800, title insurance premiums of $15,040 and costs for recording taxes, deed
recording and settlement fees of $2,273. At the closing, the Seller paid real
estate commissions of $29,190 and $145 in other miscellaneous closing costs.
Location of the Knoxville Property. The Knoxville Property is located
----------------------------------
in an office park known as Centerpoint Business Park, on Pellissippi Parkway
just north of the intersection of Interstates 40 and 75, in Knox County,
Tennessee outside the city limits of Knoxville and approximately 10 miles west
of the Knoxville central business district. The Pellissippi Parkway and the
commercial area along the Interstate 40/75 corridor has evolved recently from a
residential suburb into one of the area's fastest growing commercial and retail
districts. The area has become competitive with the metropolitan Knoxville area
office market due to its growth in office space.
Knoxville, the county seat of Knox County, Tennessee, is the third
largest city in the State of Tennessee, after Memphis and Nashville, and the
largest city in eastern Tennessee. Knoxville is located at the intersection of
two major interstate highways, I-40 which extends east to west, and I-75 which
extends north to south. The Knoxville economy is largely oriented to trade and
manufacturing, due to its location as the geographic center of the eastern
portion of the United States and the wide range of available transportation
resources. Knoxville's central location and transportation access has also
caused it to emerge as a convention center. The Knoxville metropolitan
statistical area population in 1990 was 604,812, compared to the 1980 census of
565,970. Unemployment for Knox County in 1995 was 3.4%, lower than the overall
rate for the State of Tennessee of 5.2% and the national rate of 5.6%.
The western portion of Knox County, in which the Knoxville Property is
located, has experienced the most growth and development in the Knoxville
metropolitan area during the past 10 years due primarily to available land and
services. It is anticipated that the Knoxville metropolitan area will continue
to grow as a major regional center of trade and tourism due to its location at
the intersection of Interstates 40 and 75 and the recent extension of the
Pellissippi Parkway to the Knoxville airport.
Access to the Knoxville Property is provided by Pellissippi Parkway, a
limited access thoroughfare traversing southeast to the Knoxville airport, with
an interchange at Interstate 40/75 south of the Knoxville Property. Nearby
Kingston Pike also provides east and west traffic flow for the Centerpoint
Business Park, and serves as the major commercial center in the immediate area
with a number of large strip shopping centers, a regional mall, gas stations,
convenience stores, office buildings, restaurants and other various
retail/commercial uses. The Project will be highly visible from both
Centerpoint Parkway and Pellissippi Parkway, since the building elevation will
be at or above road grade.
The Joint Venture will experience competition for tenants from owners
and managers of various other office buildings located in the immediate area of
the Project which would adversely effect the Joint Venture's ability to attract
and retain tenants.
Development Agreement. On December 10, 1996, Wells Fund IX entered into
---------------------
a Development Agreement (the "Development Agreement") with ADEVCO Corporation, a
Georgia corporation (the "Developer"), as the exclusive development manager to
supervise, manage and coordinate the planning, design, construction and
completion of the Project. Wells Fund IX assigned its interest in the
Development Agreement to the Joint Venture on March 26, 1997.
The Developer is an Atlanta based real estate development and management
company formed in 1990 which specializes in the development of office buildings.
The Developer has previously developed or is developing a total of five office
buildings for Affiliates of the General Partners. In this regard, the Developer
entered into (i) a development agreement with Wells Real Estate Fund III, L.P.
("Wells Fund III"), a public real estate program previously sponsored by the
General Partners and their Affiliates, for the development of a two-story office
building containing approximately 34,300 rentable square feet located in
Greenville, North Carolina (the "Greenville
3
<PAGE>
Project"), (ii) a development agreement with Fund IV and Fund V Associates, a
joint venture between Wells Fund III and Wells Real Estate Fund IV, L.P., a
public real estate program previously sponsored by the General Partners and
their Affiliates, for the development of a four-story office building located in
Jacksonville, Florida containing approximately 87,600 rentable square feet (the
"Jacksonville IBM Project"), (iii) a development agreement with the Fund VII-
VIII Joint Venture, a joint venture between Wells Real Estate Fund VII,
L.P.("Wells Fund VII"), a public real estate program previously sponsored by the
General Partners and their Affiliates, and Wells Real Estate Fund VIII, L.P.
("Wells Fund VIII"), each a public real estate program previously sponsored by
the General Partners and their Affiliates, for the development of a two-story
office building containing approximately 62,000 rentable square feet located in
Alachua County, near Gainesville, Florida (the "Gainesville Project"), (iv) a
development agreement with Fund VI, Fund VII and Fund VIII Associates, a joint
venture among Wells Real Estate Fund VI, L.P., a public real estate program
previously sponsored by the General Partners and their Affiliates, Wells Fund
VII and Wells Fund VIII, for the development of a four-story office building
containing approximately 92,964 rentable square feet located in Jacksonville,
Florida (the "BellSouth Project"), and (v) a development agreement with Fund
VIII and Fund IX Associates, a joint venture between Wells Fund VIII and Wells
Fund IX, for the development of a four-story office building containing
approximately 96,750 rentable square feet located in Madison, Wisconsin (the
"Madison Project"). The Greenville Project was completed on schedule, and
International Business Machines Corporation ("IBM"), which leased approximately
23,312 rentable square feet of the building, took possession under its lease on
April 16, 1991. The Jacksonville IBM Project was also completed on schedule,
and IBM, which leased approximately 68,100 rentable square feet of the building,
took possession under its lease on June 1, 1993. The Gainesville Project was
completed in advance of schedule, and CH2M Hill, Inc., which leased
approximately 50,000 rentable square feet of the building, took possession under
its lease on December 18, 1995. The BellSouth Project was also completed in
advance of schedule, and BellSouth, which leased approximately 64,558 rentable
square feet of the building, took possession under its lease on May 20, 1996.
Construction of the Madison Project is currently on schedule, with an
anticipated completion date on or before June 15, 1997. Westel-Milwaukee
Company, Inc. d/b/a Cellular One agreed to lease approximately 75,000 rentable
square feet of the Madison Project, comprising approximately 78% of the Madison
Project, within 10 business days of the completion of the construction.
The President of the Developer is David M. Kraxberger. Mr. Kraxberger
has been in the real estate business for over 17 years. Since 1984, and prior
to becoming President of the Developer, Mr. Kraxberger served as Senior Vice
President of office development for The Oxford Group, Inc., an Atlanta based
real estate company with operations in seven southeastern states. Mr.
Kraxberger holds a Masters Degree in Business Administration from Pepperdine
University in Los Angeles, California, and is a member of the Urban Land
Institute and the National Association of Industrial Office Parks. Mr.
Kraxberger also holds a Georgia real estate license. Pursuant to the terms of a
Guaranty Agreement, Mr. Kraxberger has personally guaranteed the performance of
the Developer under the Development Agreement. Mr. Kraxberger has also
personally guaranteed the performance of the contractor, Integra Construction,
Inc., under the Construction Contract (as hereinafter described) pursuant to the
terms of a separate Guaranty Agreement. Neither the Developer nor Mr.
Kraxberger are affiliated with Wells Fund IX, Wells Fund X or their General
Partners.
The primary responsibilities of the Developer under the Development
Agreement include (i) the supervision, coordination, administration and
management of the work, activities and performance of the architect under the
Architect's Agreement (as described below) and the contractor under the
Construction Contract (as described below); (ii) the implementation of a
development budget (the "Development Budget") setting forth an estimate of all
expenses and costs to be incurred with respect to the planning, design,
development and construction of the Project; (iii) the review of all
applications for disbursement made by or on behalf of the Joint Venture under
the Architect's Agreement and the Construction Contract; (iv) the supervision
and management of tenant build-out at the Project; and (v) the negotiation of
contracts with, supervision of the performance of, and review and verification
of applications for payment of the fees, charges and expenses of such design and
engineering professionals, consultants and suppliers as the Developer deems
necessary for the design and construction of the Project in accordance with the
Development Budget.
The Developer is also performing other services typical of development
managers including, but not limited to, arranging for preliminary site plans,
surveys and engineering plans and drawings, overseeing the selection by the
Contractor of major subcontractors and reviewing all applicable building codes,
environmental, zoning and land
4
<PAGE>
use laws and other applicable local, state and federal laws, regulations and
ordinances concerning the development, use and operation of the Project or any
portion thereof. The Developer is required to advise the Joint Venture on a
weekly basis as to the status of the Project and submit to the Joint Venture
monthly reports with respect to the progress of construction, including a
breakdown of all costs and expenses under the Development Budget. The Developer
is required to obtain prior written approval from the Joint Venture before
incurring and paying any costs which will result in aggregate expenditures under
any one category or line item in the Development Budget exceeding the amount
budgeted therefor. If the Developer determines at any time that the Development
Budget is not compatible with the then prevailing status of the Project and will
not adequately provide for the completion of the Project, the Developer will
prepare and submit to the Joint Venture for approval an appropriate revision of
the Development Budget.
In discharging its duties and responsibilities under the Development
Agreement, the Developer has full and complete authority and discretion to act
for and on behalf of the Joint Venture. The Developer has agreed to indemnify
the Joint Venture from any and all claims, demands, losses, liabilities,
actions, lawsuits, and other proceedings, judgments and awards, and any costs
and expenses arising out of the negligence, fraud or any willful act or omission
by the Developer. The Joint Venture has agreed to indemnify the Developer from
and against any and all claims, demands, losses, liabilities, actions, lawsuits
and other proceedings, judgments and awards, and any costs and expenses arising
out of (i) any actions taken by the Developer within the scope of its duties or
authority, excluding negligence, fraud or willful acts of the Developer, and
(ii) the negligence, fraud or any willful act or omission on the part of the
Joint Venture.
It is anticipated that the funds to be expended by the Joint Venture for
the development and construction of the Project will be paid out of
contributions to the Joint Venture by Wells Fund IX and Wells Fund X from their
respective investor capital contributions, which are currently being held by the
Agent pursuant to the Custodial Agency Agreement of each of Wells Fund IX and
Wells Fund X, with payments to be made after the Joint Venture has approved
appropriate draw requests and submitted such requests to the Agent for payment.
However, the Joint Venture may elect to provide funds to the Developer so that
the Developer can pay the Joint Venture's obligations with respect to the
construction and development of the Project directly. All such funds of the
Joint Venture which may be received by the Developer with respect to the
development or construction of the Project will be deposited in a bank account
approved by the Joint Venture. If at any time there are in the bank account
funds of the Joint Venture temporarily exceeding the immediate cash needs of the
Project, the Developer may invest such excess funds in savings accounts,
certificates of deposit, United States Treasury obligations and commercial paper
as the Developer deems appropriate or as the Joint Venture may direct, provided
that the form of any such investment is consistent with the Developer's need to
be able to liquidate any such investment to meet the cash needs of the Project.
The Developer will not be required to advance any of its own funds for the
payment of any costs or expenses incurred by or on behalf of the Joint Venture
in connection with the development of the Project. The Developer shall be
reimbursed for all advances, costs and expenses paid for and on behalf of the
Joint Venture. The Developer will not be reimbursed, however, for its own
administrative costs or for costs relating to travel and lodging incurred by its
employees and agents.
As compensation for the services to be rendered by the Developer under
the Development Agreement, the Joint Venture will pay a development fee of
$175,000. The fee will be due and payable ratably (on the basis of the
percentage of construction completed) as the construction and development of the
Project is completed. The Joint Venture will also pay the Developer an "ABB
Work Fee" of $125,000. The ABB Work Fee is for services rendered by the
Developer with respect to the supervision and management of tenant build-out of
the premises leased by ABB pursuant to the Lease. The fee is due and payable in
one lump sum upon the completion of the construction of the Project and the
tenant improvements under the Lease.
The Developer may also receive additional fees in the event the
Developer serves as the construction manager with respect to the supervision and
management of tenant build-out relating to any rentable area of the Project
which is not initially leased by ABB. Such fee shall be an amount equal to
$2.30 multiplied by the number of square feet of rentable space built out, and
shall be payable in a lump sum upon completion of the tenant improvements. The
Development Agreement also contains a provision appointing the Developer as the
Joint Venture's non-exclusive agent during development and construction of the
Project to offer for lease space which is not initially leased by ABB. The
Developer will receive certain performance based lease-up fees equal to 5%
5
<PAGE>
of all gross base rents (excluding escalations in operating costs) actually paid
by the tenant to the Joint Venture during each month of the initial term of such
tenant's lease should the Developer lease any such additional space to any
tenants (including without limitation the lease to ABB of additional space not
initially leased by ABB) during the development and construction of the Project,
plus, if such lease grants to the tenant an option to extend or renew the term
of the lease and the tenant exercises such option, an amount equal to 5% of all
gross base rents (excluding escalations and operating costs) actually paid by
the tenant during each month of the extended term of such tenant's lease. In
any event, the Joint Venture's obligation to pay the foregoing leasing fees with
respect to the additional space will terminate 10 years after the commencement
date of the applicable lease, even if the term of the applicable lease is
extended beyond such 10 year period. The Development Agreement further provides
that the Joint Venture and the Developer agree to consider the possible cash-out
of the commission obligation for the leasing of the additional space, but shall
not be obligated to agree to any such cash-out arrangement. The Developer is
not entitled to a commission or fee in the event ABB exercises any right of
first refusal or expansion option as set forth in the Lease. The Joint
Venture's obligation to pay these lease-up fees to the Developer would terminate
10 years after the commencement date of the tenant's lease, even if the lease is
extended beyond a 10 year period.
It is anticipated that the aggregate of all costs and expenses to be
incurred by the Joint Venture with respect to the acquisition of the Property,
the planning, design, development, construction and completion of the Project
and the build-out of tenant improvements under the Lease and tenant improvements
for the premises not leased initially by ABB will total approximately
$7,693,791, comprised of the following expenditures:
Construction Contract $4,134,814
Tenant Improvements - ABB Premises 936,259
Tenant Improvements - Additional Space 470,176
Land 583,800
Closing Costs 58,113
Leasing Commissions - Lease 330,000
Leasing Commissions - Additional Space 57,500
Architectural Fees 217,500
Architect's Expenses 30,000
Space Planning 110,000
Development Fee 175,000
ABB Work Fee 125,000
Additional Space Work Fee 66,435
Survey and Engineering 42,300
Landscaping 150,000
Lake Improvement 50,000
Signage 12,500
Appraisal Fee 6,000
Marketing 10,500
Contingency 127,894
The total of all the foregoing expenses anticipated to be incurred by the Joint
Venture with respect to the Project, exclusive of costs relating to marketing,
closing costs and tenant improvements and leasing commissions for the premises
not leased initially by ABB, will total approximately $7,031,067. Under the
terms of the Development Agreement, the Developer has agreed that in the event
that the total of all such costs and expenses exceeds $7,031,067, the amount of
fees payable to the Developer shall be reduced by the amount of any such excess.
Unless the fees otherwise payable to the Developer are reduced as set forth
above, it is estimated that the total sums due and payable to the Developer
under the Development Agreement will be approximately $300,000 (plus any fees
earned relating to the lease-up of space not initially leased by ABB). As of
March 10, 1997, the Developer had received a total of $33,400 under the terms of
the Development Agreement.
The item shown above in the estimated expenditures for the Project of
$50,000 for "lake improvement" refers to the anticipated additional landscaping
costs which will be incurred to enhance the appearance of the retention pond
which abuts the Knoxville Property. The pond will be improved to serve as an
attractive amenity for the Project. The improvements will include a fountain
which will be installed in the pond and other landscaping surrounding the area,
including benches to provide a recreational space for employees working in the
building.
6
<PAGE>
In the event the Developer should for any reason cease to manage the
development of the Project, the Joint Venture would have to locate a suitable
successor development manager. No assurances can be given as to whether a
suitable successor development manager could be found, or what the contractual
terms or arrangement with any such successor would be.
Construction Contract. Wells Fund IX entered into a construction contract
---------------------
(the "Construction Contract") on November 1, 1996 with the general contracting
firm of Integra Construction, Inc. (the "Contractor") for the construction of
the Project. Wells Fund IX assigned its interest in the Construction Contract
to the Joint Venture on March 26, 1997. The Contractor is a Georgia corporation
based in Atlanta specializing in commercial, industrial and institutional
building. The Contractor commenced operations in November 1994. Its principals
were formerly employed by McDevitt & Street Company, a large general contracting
firm which operates throughout the United States and which has served previously
as the general contractor for properties developed by other limited partnerships
sponsored by the General Partners. The Contractor is presently engaged in the
construction of two office buildings, a utilities building and a church, and
since July 1995, has completed nine projects with a total construction value in
excess of $7,700,000. The Contractor has served as the general contractor for
the construction of the Gainesville Project, an office building in Gainesville,
Florida which is owned by a joint venture between Wells Fund VII and Wells Fund
VIII. The Contractor is not affiliated with Wells Fund IX, Wells Fund X or
their General Partners.
Under the terms of the Construction Contract, the Contractor is responsible
for the construction of the Project which will consist of a three-story steel
framed office building with reflective insulated glass and brick exterior
containing approximately 87,000 gross square feet and 83,885 of rentable square
feet. The Project site will have approximately 297 paved parking spaces. The
Property is currently zoned to permit the intended development and operation of
the Project as a commercial office building and has access to all utilities
necessary for the development and operation of the Project, including water,
electricity, sanitary sewer and telephone. As of March 25, 1997, the status of
construction of the Project under the Construction Contract was as follows: (i)
grading and site utilities were approximately 30% complete; (ii) foundation
slabs were completed; and (iii) first floor slabs were approximately 50%
complete. Based on the foregoing, as of March 25, 1997, the General Partners
believe that construction of the Project under the Construction Contract was
substantially on schedule.
The Construction Contract provides that the Joint Venture will pay the
Contractor a fixed sum of $4,134,814 for the construction of the Project,
excluding tenant improvements. It is anticipated that the Construction Contract
will be amended to provide for the construction of the tenant improvements
required pursuant to the Lease at such time as the plans and specifications are
drawn for such improvements and the budget for such improvements is firmly
established. The Contractor will be responsible for all costs of labor,
materials, construction equipment and machinery necessary for completion of the
Project. In addition, the Contractor will be required to secure and pay for any
additional business licenses, tap fees and building permits which may be
necessary for construction of the Project.
The Joint Venture will make monthly progress payments to the Contractor in
an amount of 90% of the portion of the contract price properly allocable to
labor, materials and equipment, less the aggregate of any previous payments made
under the contract; provided, however, that when a total of $206,740 has been
withheld as retainage, no further retainage will be withheld from the monthly
progress payments. When construction is substantially complete and the space is
available for occupancy, the Joint Venture will make a semi-final payment in the
amount of all of the unpaid balance, except that the Joint Venture may retain an
amount in accordance with the terms of the Construction Contract which is
necessary to protect its remaining interest until final completion of the
Project. The Joint Venture will pay the entire unpaid balance when the Project
has been fully completed in accordance with the terms and conditions of the
Construction Contract. As a condition of final payment, the Contractor will be
required to execute and deliver a release of all claims and liens against the
Joint Venture. As of March 10, 1997, the Contractor had been paid $95,357
pursuant to the terms of the Construction Contract.
The Contractor will be responsible to the Joint Venture for the acts or
omissions of its subcontractors and suppliers of materials and of persons either
directly or indirectly employed by them. The Contractor has agreed to indemnify
the Joint Venture from and against all liability, claims, damages, losses,
expenses and costs of any kind or description arising out of or in connection
with the performance of the Construction Contract, provided that such liability,
claim, damage, loss or expense is caused in whole or in part by any action or
omission of the Contractor, any subcontractor or materialmen, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be
liable. The Construction Contract also requires the Contractor to obtain and
7
<PAGE>
maintain, until completion of the Project, adequate insurance coverage relating
to the Project, including insurance for workers' compensation, personal injury
and property damage.
The Contractor is required to work expeditiously and diligently to maintain
progress in accordance with the construction schedule and to achieve substantial
completion of the Project within the contract time. The Contractor is required
to employ all such additional labor, services and supervision, including such
extra shifts and overtime, as may be necessary to maintain progress in
accordance with the construction schedule. It is anticipated that the Project
will be completed on or before December 1, 1997. As described below, in the
event the Project is not completed by December 1, 1997, the Joint Venture will
be required to reimburse ABB for rental and operating expense costs incurred by
ABB for holding over in ABB's current premises (but only to the extent such
costs, computed on a per diem basis, exceed the per diem rental and operating
expense costs payable by ABB for the last 12 months of the term of ABB's current
lease). Although completion or performance bonds are often obtained in
connection with the development and construction of commercial properties such
as the Project to reduce the risk of non-performance and to assure compliance
with approved plans and specifications, due to the historical performance of the
Contractor, the General Partners have determined that the risks of non-
performance by the Contractor do not justify the cost required to obtain a
completion or performance bond with respect to the Project. However,
performance by the Contractor of the Construction Contract has been personally
guaranteed by David B. Blackmore and Drew S. White, founding principals of the
Contractor, as well as David Kraxberger, a principal of the Developer.
Architect's Agreement. Smallwood, Reynolds, Stewart, Stewart & Associates,
---------------------
Inc. (the "Architect") will be the architect for the Project pursuant to the
Architect's Agreement entered into with Wells Fund IX and assigned to the Joint
Venture. The Architect is based in Atlanta, Georgia, was founded in 1979, has a
staff of over 200 persons, and specializes in programming, planning,
architecture, interior design, landscape architecture and construction
administration. The Architect has its principal office in Atlanta, Georgia and
additional offices in Tampa, Florida and Singapore. The Architect has designed
a wide variety of projects, with a total construction cost in excess of $2
billion, including facilities for corporate office space, educational and
athletic facilities, retail space, manufacturing, warehouse and distribution
facilities, hotels and resorts, correctional institutions, and luxury
residential units. The Architect has performed architectural services with
respect to the Gainesville Project, a two-story office building containing
approximately 62,000 rentable square feet located near Gainesville, Florida,
owned by a joint venture between Wells Fund VII and Wells Fund VIII. The
Architect is not affiliated with Wells Fund IX, Wells Fund X or their General
Partners.
The Architect's basic services under the Architect's Agreement include the
schematic design phase, the design development phase, the construction documents
phase and the construction phase. During the schematic design phase, the
Architect will prepare schematic design documents consisting of drawings and
other documents illustrating the scale and relationship of Project components.
The Architect will be paid a fee of $32,625 for such services. During the
design development phase, the Architect will prepare design development
documents consisting of drawings and other documents to fix and describe the
size and character of the entire Project as to architectural, structural,
mechanical, plumbing and fire protection and electrical systems, materials and
such other elements as may be appropriate. The Architect will be paid $65,250
for these services. During the construction documents phase, the Architect will
prepare construction documents consisting of drawings and specifications setting
forth in detail the requirements for the construction of the Project. The
Architect will be paid $97,875 for these services. During the construction
phase, the Architect is to provide administration of the Construction Contract
and advise and consult with the Developer and the Joint Venture concerning
various matters relating to the construction of the Project. The Architect is
required to visit the Project site at intervals appropriate to the stage of
construction and to become generally familiar with the progress and quality of
the work and to determine if, in general, the work is proceeding in accordance
with the contract schedule. The Architect is required to keep the Joint Venture
informed of the progress and quality of the work. The Architect is also
required to determine the amounts owing to the Contractor based on observations
of the site and evaluations of the Contractor's application for payment and
shall issue certificates for payment in amounts determined in accordance with
the Construction Contract described above. The Architect will also conduct
inspections to determine the date of completion of the Project and shall issue a
final certificate for payment. The Architect will be paid $21,750 for its
services performed during the construction phase.
The total amount of fees payable to the Architect under the Architect's
Agreement is $217,500. Payments will be paid to the Architect on a monthly
basis in proportion to the services performed within each phase of service. In
addition, the Architect and its employees and consultants will be reimbursed for
expenses including,
8
<PAGE>
but not limited to, transportation in connection with the Project, living
expenses in connection with out-of-town travel, long distance communications and
fees paid for securing approval of authorities having jurisdiction over the
Project. It is estimated that the reimbursable expenses in connection with the
development of the Project will be approximately $30,000. As of March 10, 1997,
the Architect had been paid $246,857 pursuant to the terms of the Architect's
Agreement.
Lease. On December 10, 1996, Wells Fund IX entered into a Lease Agreement
-----
(the "Lease") with ABB pursuant to which ABB agreed to lease 55,000 rentable
square feet of the Project, comprising approximately 66% of the Project. Wells
Fund IX assigned its interest in the Lease to the Joint Venture on March 26,
1997.
ABB is a Delaware corporation which is principally engaged in the business
of pollution control engineering and consulting. ABB will use the leased area
as office space for approximately 220 employees. ABB Asea Brown Boveri Ltd.
("ABB-Switzerland"), a Swiss corporation based in Zurich, is the holding company
of the ABB Asea Brown Boveri Group (the "ABB Group") which is comprised of
approximately 1,000 companies around the world, including ABB. While the shares
of ABB-Switzerland are not publicly traded, the shares of two of the parent
companies in the ABB Group are listed on various stock exchanges in Europe and
the United States. ABB-Switzerland is owned in equal parts by ASEA AB, a
Swedish corporation, and BBC Brown Boveri Ltd., a Swiss corporation. The ABB
Group's companies do business in 140 countries. The Group's revenues are
predominantly provided by contracts with utilities and independent power
producers for the design, engineering, construction, manufacture and marketing
of products, services and systems in connection with the generation,
transmission and distribution of electricity. In addition, the ABB Group
generates a significant portion of its revenues from the sale of industrial
automation products, systems and services to pulp and paper, automotive, and
other manufacturers. The ABB Group also provides financial services principally
for its internal businesses and affiliates. The ABB Group reported net income
in 1995 of approximately $34 billion and net worth of approximately $5.2
billion. The ABB Group's total number of employees for 1995 was approximately
210,000 worldwide and approximately 25,000 in the United States. ABB Inc., the
United States parent company of ABB, reported a net worth in 1995 of in excess
of $500,000,000, gross revenues in excess of $4 billion, and total assets in
excess of $4 billion. ABB reported a net worth in 1995 of in excess of $15
million, gross revenues in excess of $300 million and total assets in excess of
$150 million.
The initial term of the Lease will be nine years and 11 months to commence
(the "Rental Commencement Date") on the later of (a) January 1, 1998, or (b) the
earlier of (i) the date which is 30 days after substantial completion of the
Project, or (ii) 30 days after the date upon which ABB takes possession and
occupies any portion of the leased premises for business purposes. ABB has the
option to extend the initial term of the Lease for two successive five year
periods. Each extension option must be exercised, if at all, no less than six
months prior to the expiration of the then current lease term.
The annual base rent payable under the Lease will be $646,250 payable in
equal monthly installments of $53,854 during the first five years of the initial
lease term, and $728,750 payable in equal monthly installments of $60,729 during
the last four years and 11 months of the initial lease term. The annual base
rent for each extended term under the Lease will be the market rate for the
period covered by the extended term. The term "market rate" is defined in the
Lease as the annual effective rental rate per square foot of rentable floor area
then being charged by landlords under new leases of office space in the
metropolitan Knoxville, Tennessee market for similar space in a building of
comparable quality and with comparable parking and other amenities. The Lease
provides that if the parties cannot agree on the appropriate market rate, the
market rate shall be established by real estate appraisers. The Lease provides
that ABB has the option to require the Joint Venture to make available to ABB an
amount equal to up to $165,000 to be used by ABB for the purchase of systems
furniture to be installed in the leased premises, upon written request of ABB to
the Joint Venture within 30 days after the Rental Commencement Date. If ABB
elects to use all or any portion of the furniture allowance, the amount of the
furniture allowance actually paid by the Joint Venture to ABB shall be amortized
in equal monthly payments over the number of months left in the lease term at an
interest rate of 10% per annum, and such amounts shall be added to and become
part of the base rental. ABB is required to provide the Joint Venture a valid
first lien upon all of the furniture with respect to which ABB has purchased
with or received reimbursement from the furniture allowance to secure payment of
all amounts due by ABB to the Joint Venture under the Lease.
In addition to the base rent, ABB is required to pay additional rent equal
to its share of all "operating expenses" during the lease term. "Operating
expenses" is defined to include all expenses, costs and disbursements (excluding
specific costs billed to specific tenants of the building) of every kind and
nature, relating to or incurred
9
<PAGE>
or paid in connection with the ownership, management, operation, repair and
maintenance of the Project, including compensation of employees engaged in the
operation, management or maintenance of the Project, supplies, equipment and
materials, utilities, repairs and general maintenance, insurance, a management
fee in the amount of 4% of the gross rental income from the Project, and all
taxes and governmental charges attributable to the Project or its operation
(excluding taxes imposed or measured on or by the income of the Joint Venture
from operation of the Project).
Under the terms of the Lease, the Joint Venture is responsible for a
construction allowance of $976,600 (calculated at the rate of $19 per usable
square foot of the premises). The Lease also provides that so long as ABB shall
occupy 40% or more of the rentable floor area of the building, ABB shall have
the right to design and designate the location of one monument-type sign naming
the building and the Joint Venture will pay $5,000 of the cost associated with
purchasing and installing such signage. In addition, the Joint Venture has
agreed to provide ABB on the fifth anniversary of the Rental Commencement Date a
redecoration allowance of an amount equal to (i) $5 per square foot of usable
area of the premises leased as of the fifth anniversary of the Rental
Commencement Date which has been leased and occupied by ABB for at least three
consecutive years ending with such fifth anniversary, reduced by (ii) $177,000
(i.e., assuming ABB continues to lease 51,250 square feet pursuant to the terms
of the Lease during such five year period, the redecoration allowance would be
$79,250).
The terms of the Lease provide that ABB has a right of first refusal for
the lease of any space in the building not initially leased by ABB. In the
event that the Joint Venture has secured a potential tenant for any of such
space, the Joint Venture has agreed to give ABB 10 business days to exercise its
right to add such space to the leased premises. In the event that ABB exercises
its right of first refusal, the lease of the additional space will be subject to
all the terms and conditions of the Lease, provided that the base rental and
other charges and any allowances shall be solely as set forth in the notice to
ABB of the proposed terms of lease for the potential tenant of such space. If
ABB does not so exercise its right of first refusal within such 10 business day
period, the Joint Venture will have the right to lease the space to the
potential tenant except that, after the expiration of any such lease to another
party, such space will again become subject to ABB's right of first refusal.
The Lease further provides that the Joint Venture has agreed that during the
term of the Lease, no leases of space with other tenants for any of the space
not initially leased by ABB pursuant to the Lease shall have terms in excess of
three years from the last day of the month in which such third party tenant
takes possession of such space.
ABB has a one-time option to terminate the Lease as of the seventh
anniversary of the Rental Commencement Date, which is exercisable by written
notice to the Joint Venture at least 12 months in advance of such seventh
anniversary. If ABB elects to exercise this termination option, ABB is required
to pay to the Joint Venture, on or before 90 days prior to the seventh
anniversary of the Rental Commencement Date, a termination payment intended to
compensate the Joint Venture for the present value of certain sums which the
Joint Venture has expended in connection with the Lease amortized over and
attributable to the remaining lease term (in the nature of the leasing
commissions, construction allowance, furniture allowance and redecoration
allowance, etc.) and a rent payment equal to approximately 15 months of monthly
base rental payments. (The termination payment would be approximately
$1,818,000 under certain assumptions, including ABB is leasing upon termination
69,000 square feet of rentable area and 60,000 square feet of usable area.)
The Lease provides that the Joint Venture is required to cause the Project
to be substantially completed as soon as practicable under the circumstances,
with a goal of achieving substantial completion on or before December 1, 1997
(subject to force majeure and any delays caused by ABB). If substantial
completion has not occurred on or before December 1, 1997 (extended on a day for
day basis for delays due to force majeure and for delays caused by ABB), ABB's
sole right and remedy shall be for the Joint Venture to reimburse ABB for rental
and operating expense costs incurred by ABB for holding over in ABB's current
premises, but only to the extent such costs, computed on a per diem basis,
exceed the per diem rental and operating expense cost payable by ABB for the
last 12 months of the term of ABB's current lease. As of March 25, 1997,
construction of the Project was on schedule to be completed on or before
December 1, 1997.
As security for ABB's obligations under the Lease, ABB has provided to
Wells Fund IX (and Wells Fund IX has in turn assigned to the Joint Venture), and
agreed to maintain in full force and effect at all times during the 10 year
period from the Rental Commencement Date, an irrevocable standby letter of
credit in accordance with the terms and conditions set forth in the Lease. Each
letter of credit issued pursuant to the provisions of the Lease is required to
be in a form of an irrevocable credit, to be issued by an "approved issuer," to
name the Joint Venture
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<PAGE>
as the beneficiary and to specify that the Joint Venture, as beneficiary, may
draw against the letter of credit upon the occurrence of a "drawing event."
"Approved issuer" is defined to require that the letter of credit issuer shall
have and maintain a Moody's Bank Credit Report Service rating of P-1 or its
equivalent. "Drawing event" is defined to include any failure of ABB to pay any
installment of rent or other charge or assessment pursuant to the terms of the
Lease within five days of notice thereof, or any other event of default with
respect to which the Joint Venture has exercised or is exercising its remedies.
The letter of credit maintained by ABB is required to be in the amount of
$4,000,000 until the seventh anniversary of the Rental Commencement Date,
$3,000,000 from the seventh anniversary of the Rental Commencement Date to the
eighth anniversary of the Rental Commencement Date, $2,000,000 from the eighth
anniversary of the Rental Commencement Date to the ninth anniversary of the
Rental Commencement Date, and $1,000,000 from the ninth anniversary of the
Rental Commencement Date to the tenth anniversary of the Rental Commencement
Date. The original letter of credit which was delivered by ABB to Wells Fund IX
simultaneously with the execution of the Lease was issued by Svenska
Handelsbanken, a Swedish bank which is the largest bank in the Nordic region
with over $90 billion of assets and a credit rating issued by Moody's Bank
Credit Report Service of P-1/Aa3, and was issued in the amount of $4,000,000 for
a one year term. If the Joint Venture draws on the letter of credit, the Joint
Venture shall apply the proceeds first toward the performance of the obligations
which ABB has failed to perform under the Lease, and the remainder, if any,
shall be held by the Joint Venture in certain permitted investments as
additional security for the performance by ABB of the Lease.
In connection with the execution of the Lease, Wells Fund IX entered into
an agreement with each of two real estate brokers, one of which is a firm
affiliated with the Developer, for the payment of commissions in consideration
of services rendered in procuring the Lease. The commission agreements require
Wells Fund IX to pay a total of $330,000 in leasing commissions, one-half of
which has been paid by Wells Fund IX and the remaining one-half of which is
payable by the Joint Venture upon ABB's occupancy and acceptance of the leased
premises. Neither broker is affiliated with Wells Fund IX, Wells Fund X or
their General Partners.
Property Management Fees. Following construction and completion of the
------------------------
Project, property management and leasing services will be performed by Wells
Management Company, Inc. (the "Property Manager"), a Georgia corporation
affiliated with the General Partners. As compensation for its services, the
Property Manager will receive fees equal to 3% of the gross revenues for
property management services and 3% of the gross revenues for leasing services
with respect to the Project. In addition, the Property Manager will receive a
one-time initial lease-up fee relating to the Lease equal to the first month's
rent plus 5% of the gross revenues over the initial term of the Lease. In
addition, the Property Manager may also receive initial lease-up fees relating
to the lease-up of space not initially leased by ABB, as provided in the
Prospectus.
Lease-Up Risk. As set forth above, ABB has agreed to lease approximately
-------------
66% of the Project. However, since the Joint Venture has not yet obtained any
leases for the remaining approximately 34% of office space at the Project, the
Joint Venture will be subject to the normal lease-up risks of a new commercial
office building with respect to the unleased portion of the Project. No
assurances can be given that the Joint Venture will be able to attract or obtain
suitable tenants for the remaining approximately 34% of space at the Project or
that it will be able to attract or obtain suitable tenants for the space
initially leased by ABB upon the expiration of its lease.
REORGANIZATION OF AFFILIATED ENTITIES
On February 17, 1997, Leo F. Wells, III organized Wells Real Estate Funds,
Inc., a Georgia corporation, to act as a holding company for certain entities
previously wholly owned by Mr. Wells. On February 28, 1997, Mr. Wells
transferred all of the outstanding capital stock of Wells Capital, Inc., Wells
Investment Securities, Inc. (the Dealer Manager) and Wells Management Company,
Inc. (the Property Manager) to Wells Real Estate Funds, Inc. in exchange for all
of the outstanding capital stock of Wells Real Estate Funds, Inc. Accordingly,
the "CONFLICTS OF INTEREST" section of the Prospectus is revised as of the date
of this Supplement by the deletion of the last paragraph on page 31 and the
chart on page 32 and the insertion of the following in lieu thereof:
The General Partners of Wells Fund X are Leo F. Wells, III and Wells
Partners, L.P., a Georgia limited partnership having Wells Capital, Inc., a
Georgia corporation, as its sole general partner. Leo F. Wells, III owns
all of the outstanding capital stock of Wells Real Estate Funds, Inc., a
Georgia corporation which owns all of the outstanding capital stock of
Wells Capital, Inc., Wells Investment Securities, Inc. (the Dealer
Manager), and Wells Management Company, Inc. (the Property Manager). (See
"MANAGEMENT.")
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<PAGE>
The following chart indicates the relationship between the General
Partners and their Affiliates which will be providing services to Wells
Fund X.
LEO F. WELLS, III
(GENERAL PARTNER)
=========================================================================
|
| 100%
|
WELLS REAL ESTATE FUNDS, INC.
=========================================================================
| | |
| 100% | 100% | 100%
| | |
WELLS CAPITAL, INC. WELLS INVESTMENT WELLS MANAGEMENT
SECURITIES, INC. COMPANY, INC.
(DEALER MANAGER) (PROPERTY MANAGER)
=================== ========================= ======================
|
| General Partner
|
WELLS PARTNERS, L.P.
(GENERAL PARTNER)
=====================
In addition to the foregoing revisions to the "CONFLICTS OF INTEREST"
section of the Prospectus, the "MANAGEMENT" section of the Prospectus is hereby
revised as of the date of this Supplement so as to modify any references to the
ownership of the common stock of Wells Capital, Inc., Wells Management Company,
Inc. and Wells Investment Securities, Inc., all of which common stock was
previously owned directly by Leo F. Wells, III, and to disclose in lieu thereof
that Leo F. Wells, III now owns all of the outstanding common stock of Wells
Real Estate Funds, Inc. which is the sole shareholder of each of Wells Capital,
Inc., Wells Management Company, Inc. and Wells Investment Securities, Inc. Leo
F. Wells is also the President and sole Director of Wells Real Estate Funds,
Inc.
RISK FACTORS
The information contained on pages 7 through 11 of the Prospectus in the
"RISK FACTORS" section of the Prospectus under the heading "Investment Risks" is
revised as of the date of this Supplement by the insertion of the following
paragraph:
ACQUISITION OF PROPERTIES FROM WELLS DEVELOPMENT COMPANY, INC. The
Partnership may enter into one or more contracts, either directly or
indirectly through joint ventures with Affiliates, to acquire real property
from Wells Development Company, Inc., an Affiliate of the General Partners
("Well Development"). The properties to be acquired from Wells Development
would be either existing income-producing properties or properties to be
developed or under development. It is anticipated that contracts to
acquire properties between the Partnership and Wells Development will
obligate the Partnership to pay a substantial earnest money deposit at the
time of contracting and, in the case of properties to be developed by Wells
Development, would require the Partnership to close the purchase of the
property upon completion of the development of the property by Wells
Development and the tenant taking possession of the property. At the time
of contracting and the payment of the earnest money deposit by the
Partnership, Wells Development will not have acquired title to any real
property, but will have only a contract to acquire land, development
agreements to develop a building on the land, and an agreement with a
tenant to lease the property upon its completion. The Partnership may
enter into such a contract notwithstanding the fact that at the time of
contracting the Partnership has not yet raised sufficient
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<PAGE>
proceeds in its Offering to enable it to close the purchase of such
property. In the event that Wells Development fails to develop the
property or the tenant fails to take possession under its lease for any
reason, or in the event that the Partnership is unable to raise sufficient
proceeds in its Offering to pay the purchase price at closing, the
Partnership would not be required to close, and Wells Development would be
obligated to refund the amount of the earnest money deposit to the
Partnership. Such obligation is unsecured, however, and it is unlikely
that the Partnership would be able to collect its earnest money deposit
from Wells Development under such circumstances since Wells Development is
a newly formed entity without substantial assets or operations. Although
Wells Development's obligation to refund the earnest money deposit to the
Partnership under such circumstances will be guaranteed by Wells Management
Company, Inc., an Affiliated entity ("Wells Management"), Wells Management
has no substantial assets other than contracts for property management and
leasing services pursuant to which it receives substantial monthly fees
and, therefore, there are no assurances that Wells Management would be able
to refund to the Partnership all of the earnest money deposit in a lump
sum. If the Partnership is forced to collect its earnest money deposit by
enforcing the guaranty of Wells Management, it is likely that the
Partnership would be required to accept installment payments over time from
Wells Management out of the revenues of Wells Management's property
management and leasing operations. There is no assurance that the
Partnership would be able to collect the entire amount of its earnest money
deposit under such circumstances. (See "INVESTMENT OBJECTIVES AND CRITERIA
- Acquisition of Properties To Be Developed by Wells Development Company,
Inc.")
INVESTMENT OBJECTIVES AND CRITERIA
The information contained on pages 45 through 51 of the Prospectus in the
"INVESTMENT OBJECTIVES AND CRITERIA" section of the Prospectus is revised as of
the date of this Supplement by the insertion of the following:
ACQUISITION OF PROPERTIES TO BE DEVELOPED BY WELLS DEVELOPMENT COMPANY,
INC.
The Partnership may acquire properties, directly or through joint
ventures with Affiliated entities, from Wells Development Company, Inc.
("Wells Development"), a Georgia corporation which the General Partners are
forming for the purposes of (i) acquiring existing income-producing
commercial real properties, and (ii) acquiring land, developing commercial
real properties, securing tenants for such properties, and selling such
properties upon completion to the Partnership, Prior Wells Public Programs
sponsored by the General Partners and their Affiliates, and other
Affiliates. In the case of properties to be developed by Wells Development
and sold to the Partnership, it is anticipated that Wells Development would
acquire a parcel of land, enter into contracts for the construction and
development of a commercial building thereon, and enter into an agreement
with one or more tenants to lease all or a majority of the property upon
its completion, as well as secure a financing commitment from a commercial
bank to finance the acquisition and development of the property, all of
which occur prior to entering into a contract with the Partnership to
acquire the developed property upon its completion and upon the tenant
taking possession under its lease. The Partnership would be required to
pay a substantial sum to Wells Development at the time of entering into the
contract as a refundable earnest money deposit to be credited against the
purchase price at closing, which Wells Development would apply to the cost
of acquiring the land and initial development costs. It is anticipated
that the earnest money deposit would represent approximately twenty to
thirty percent (20-30%) of the purchase price of the developed property set
forth in the purchase contract. The purchase price for the developed
property to be paid by the Partnership to Wells Development would not
exceed the cost to Wells Development of the acquisition, construction and
development of the project, including interest and other carrying costs of
Wells Development, and no other benefit will accrue to Wells Development or
its affiliates from the sale of such property except for Acquisition and
Advisory Fees payable to the General Partners or their Affiliates which are
described in detail elsewhere herein. (See "COMPENSATION OF THE GENERAL
PARTNERS AND AFFILIATES".) In the case of properties acquired by the
Partnership from Wells Development that have already been developed, Wells
Development would be required to obtain an appraisal for the property prior
to contracting with the Partnership, and the purchase price payable by the
Partnership under the
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<PAGE>
purchase contract would not exceed the fair market value of the property as
determined by the appraisal. In the case of properties to be acquired by
the Partnership from Wells Development which have not yet been constructed
at the time of contracting, Wells Development would be required to obtain
an independent "as built" appraisal for the property prior to contracting
with the Partnership, and the purchase price payable by the Partnership
under the purchase contract will not exceed the anticipated fair market
value of the developed property as determined by the appraisal. All funds
paid to Wells Development would be disbursed through The Bank of New York
under the Custodial Agency Agreement.
It is anticipated that Wells Development would use the earnest money
deposit received from the Partnership upon execution of a purchase contract
as partial payment for the cost of the acquisition of the land and
construction expenditures, and would borrow the remaining funds necessary
to complete the development of the property from an independent commercial
bank or other institutional lender by pledging the real property,
development contracts and lease agreement as security for such borrowing.
The contract between the Partnership and Wells Development would require
Wells Development to deliver at closing to the Partnership title to the
property, as well as an assignment of the lease agreement, free and clear
of all encumbrances relating to any such borrowing, and in no event will
the Partnership take title to the property subject to a mortgage or
otherwise incur indebtedness in connection with the acquisition of such
property. Wells Development would hold the title to the property on a
temporary basis only for the purpose of facilitating the acquisition and
development of the property, and it is anticipated that Wells Development
will not hold title to any property which is ultimately resold to the
Partnership for a period in excess of 12 months.
The Partnership may enter into a contract to acquire property from
Wells Development notwithstanding the fact that at the time of contracting,
the Partnership has not yet raised sufficient proceeds to enable it to pay
the full amount of the purchase price at closing, under the expectation
that the Partnership will raise sufficient additional proceeds from its
Offering during the period between execution of the contract and the date
provided in the contract for closing. In the case of properties to be
developed by Wells Development, the contract will likely provide that the
closing will occur immediately following the completion of the development
by Wells Development. However, it is likely that the contract will also
provide that the Partnership may elect to close the purchase of the
property before the development has been completed, in which case the
Partnership would obtain an assignment of the construction and development
contracts from Wells Development and would complete the construction either
directly or through a joint venture with an Affiliate. Any contract
between the Partnership (directly or indirectly through a joint venture
with an Affiliate) and Wells Development for the purchase of property to be
developed by Wells Development will provide that the Partnership would be
obligated to purchase the property only if (i) Wells Development completes
the development of the improvements in accordance with the specifications
of the contract, and an approved tenant takes possession of the building
under a lease satisfactory to the Partnership; and (ii) the Partnership has
sufficient net proceeds available for investment in properties at closing
to pay the balance of the purchase price remaining after payment of the
earnest money deposit. The General Partners will not cause the Partnership
to enter into a contract to acquire property from Wells Development if they
do not reasonably anticipate that the Partnership will have the funds
available to purchase the property at the time of closing. However, if the
Partnership enters into a contract to acquire property from Wells
Development and, at the time for closing, is unable to purchase the
property because it does not have sufficient net proceeds available for
investment, the Partnership would not be required to close the purchase of
the property and would be entitled to a refund of its earnest money deposit
from Wells Development. Because Wells Development is a newly formed entity
without substantial assets or operations, Wells Development's obligations
to refund the Partnership's earnest money deposit will be guaranteed by
Wells Management Company, Inc. ("Wells Management"), an Affiliated entity
engaged in the business of real estate management.
Wells Management currently manages in excess of 1,500,000 square feet
of office buildings and shopping centers and derives substantial income
from such operations which the Partnership could obtain under the guaranty
in the event that Wells Development is unable to meet its obligation to
repay the earnest money deposit to the Partnership. For the fiscal year
ended
14
<PAGE>
February 28, 1997, Wells Management reported $1,152,298 in gross operating
revenues and $132,788 in net income. Under such circumstances, the
Partnership may not be able to obtain the earnest money deposit from Wells
Management in a lump sum since Wells Management's only significant assets
are its contracts for property management and leasing services, but would
more likely be required to accept installment payments over some period of
time out of Wells Management's operating revenues. (See "RISK FACTORS.")
The acquisition of real properties from Wells Development, as outlined
above, will involve significant risks, as further set forth in "RISK
FACTORS - Acquisition of Properties to be Developed by Wells Development
Company, Inc."
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The information contained on page 53 of the Prospectus in the "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS"
section of the Prospectus is revised as of the date of this Supplement by the
deletion of the first paragraph of that section and the insertion of the
following paragraph in lieu thereof:
Wells Real Estate Fund X, L.P. ("Wells Fund X") commenced operations
on February 4, 1997, upon the acceptance of subscriptions for the minimum
offering of $1,250,000 (125,000 Units). As of March 10, 1997, Wells Fund X
had raised a total of $4,557,541 in offering proceeds (455,754 Units),
comprised of $3,563,313 raised from the sale of Class A Status Units
(356,331 Class A Status Units) and $994,228 raised from the sale of Class B
Status Units (99,423 Class B Status Units). After the payment of $ 182,302
in Acquisition and Advisory Fees, and the payment of $683,631 in selling
commissions and organizational and offering expenses, as of March 10, 1997,
Wells Fund X was holding net offering proceeds of $3,691,608 available for
investment in properties.
EXPERTS
The information contained on page 97 of the Prospectus in the "EXPERTS"
section of the Prospectus is revised as of the date of this Supplement by the
insertion of the following sentence at the end of the paragraph:
The financial statements of Wells Real Estate Fund X, L.P. and Wells
Real Estate Fund XI, L.P., as of December 31, 1996, and the financial
statements of Wells Partners, L.P. and Wells Capital, Inc. included in
Appendix I to Supplement No. 1 to this Prospectus, to the extent and for
the periods indicated in their reports, have been audited by Arthur
Andersen LLP, independent public accountants, and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
15
<PAGE>
APPENDIX I
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
WELLS PARTNERS, L.P.
Audited Financial Statements
Independent Auditors' Reports I-1
Balance Sheets as of December 31, 1996 and 1995 I-2
Statements of Loss for the years ended December 31, 1996 and 1995 I-3
Statements of Partners' Capital for the years ended December 31, 1996 and 1995 I-4
Statements of Cash Flows for the years ended December 31, 1996 and 1995 I-5
Notes to Financial Statements I-6
WELLS CAPITAL, INC.
Audited Financial Statements
Independent Auditors' Reports I-9
Balance Sheets as of December 31, 1996 and 1995 I-10
Statements of Income for the years ended December 31, 1996
and 1995 I-11
Statements of Stockholder's Equity for the years ended December 31, 1996
and 1995 I-12
Statements of Cash Flows for the years ended December 31, 1996 and 1995 I-13
Notes to Financial Statements I-14
WELLS REAL ESTATE FUND X, L.P.
Audited Balance Sheet
Independent Auditors' Report I-18
Balance Sheet as of December 31, 1996 I-19
Notes to Financial Statement I-20
WELLS REAL ESTATE FUND XI, L.P.
Audited Balance Sheet
Independent Auditors' Report I-24
Balance Sheet as of December 31, 1996 I-25
Notes to Financial Statement I-26
</TABLE>
16
<PAGE>
[LETTERHEAD OF ARTHUR ANDERSEN LLP APPEARS HERE]
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Partners of
Wells Partners, L.P.:
We have audited the accompanying balance sheets of WELLS PARTNERS, L.P. (a
Georgia limited partnership) as of December 31, 1996 and 1995 and the related
statements of loss, partners' capital, and cash flows for the years then ended.
These financial statements are the responsibility of the Partnership's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Wells Partners, L.P. as of
December 31, 1996 and 1995 and the results of its operations and its cash flows
for the years then ended in conformity with generally accepted accounting
principles.
Our audits were made for the purpose of forming an opinion on the basic
financial statements taken as a whole. Schedule I, market value of investment
in partnerships, is presented for purposes of additional analysis and is not a
required part of the basic financial statements. This information has not been
subjected to the auditing procedures applied in our audits of the basic
financial statements and, accordingly, we express no opinion on it.
/s/ ARTHUR ANDERSEN
Atlanta, Georgia
January 10, 1997
I-1
<PAGE>
WELLS PARTNERS, L.P.
(A Georgia Limited Partnership)
BALANCE SHEETS
December 31, 1996 and 1995
<TABLE>
<CAPTION>
ASSETS
1996 1995
-------- --------
<S> <C> <C>
CASH $ 70 $ 70
INVESTMENT IN PARTNERSHIPS 128,618 128,944
-------- --------
Total assets $128,688 $129,014
======== ========
PARTNERS' CAPITAL
COMMITMENTS AND CONTINGENCIES (NOTE 4)
GENERAL PARTNER $ 6,771 $ 5,982
LIMITED PARTNERS 121,917 123,032
-------- --------
Total partners' capital $128,688 $129,014
======== ========
</TABLE>
The accompanying notes are an integral part of these balance sheets.
I-2
<PAGE>
WELLS PARTNERS, L.P.
(A Georgia Limited Partnership)
STATEMENTS OF LOSS
For the Years Ended December 31, 1996 and 1995
<TABLE>
<CAPTION>
1996 1995
------ -----
<S> <C> <C>
EQUITY IN LOSS OF PARTNERSHIPS AND LOSS $1,126 $ 480
====== =====
</TABLE>
The accompanying notes are an integral part of these statements.
I-3
<PAGE>
WELLS PARTNERS, L.P.
(A Georgia Limited Partnership)
STATEMENTS OF PARTNERS' CAPITAL
For the Years Ended December 31, 1996 and 1995
<TABLE>
<CAPTION>
General Limited
Partner Partners Total
------- -------- --------
<S> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 $2,477 $123,507 $125,984
Capital contribution 3,510 0 3,510
Net loss (5) (475) (480)
------ -------- --------
BALANCE AT DECEMBER 31, 1995 5,982 123,032 129,014
Capital contribution 800 0 800
Net loss (11) (1,115) (1,126)
------ -------- --------
BALANCE AT DECEMBER 31, 1996 $6,771 $121,917 $128,688
====== ======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
I-4
<PAGE>
WELLS PARTNERS, L.P.
(A Georgia Limited Partnership)
STATEMENTS OF CASH FLOWS
For the Years Ended December 31, 1996 and 1995
<TABLE>
<CAPTION>
1996 1995
------- -------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net loss $ 1,126 $ 480
Adjustment to reconcile net loss to net
cash used by operating activities:
Equity in loss of partnerships (1,126) (480)
------- -------
Net cash used by operating activities 0 0
CASH FLOWS USED IN INVESTING ACTIVITIES:
Investment in limited partnership (800) (3,510)
CASH FLOWS PROVIDED BY FINANCING ACTIVITIES:
General partner contributions 800 3,510
------- -------
NET CHANGE IN CASH 0 0
CASH AT BEGINNING OF YEAR 70 70
------- -------
CASH AT END OF YEAR $ 70 $ 70
</TABLE>
The accompanying notes are an integral part of these statements.
I-5
<PAGE>
WELLS PARTNERS, L.P.
(A Georgia Limited Partnership)
NOTES TO FINANCIAL STATEMENTS
December 31, 1996 and 1995
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Partners, L.P. (the "Partnership") is a limited partnership under the laws
of the state of Georgia. The general partner is Wells Capital, Inc. ("Wells
Capital"), a Georgia corporation. The Partnership serves as the general partner
in several affiliated limited partnerships. The Partnership is currently a
general partner in Wells Real Estate Fund IV, L.P., Wells Real Estate Fund V,
L.P., Wells Real Estate Fund VI, L.P., Wells Real Estate Fund VII, L.P., Wells
Real Estate Fund VIII, L.P. ("Fund VIII"), Wells Real Estate Fund IX, L.P.
("Fund IX"), Wells Real Estate Fund X, L.P. ("Fund X"), and Wells Real Estate
Fund XI, L.P. ("Fund XI"), collectively referred to as the "Funds". The
Partnership also owns limited partnership interests in Beaver Ruin--Arc Way,
Ltd. ("Beaver Ruin") and Carter Boulevard, Ltd. ("Carter Boulevard").
Although, as set forth above, the Partnership is a general partner in the Funds,
Wells Capital has acted as the general partner for the Funds on behalf of the
Partnership.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
INCOME TAXES
The Partnership is not subject to federal or state income taxes, and therefore,
none have been provided for in the accompanying financial statements. The
partners are required to include their respective share of profits and losses in
their individual income tax returns.
2. INVESTMENT IN PARTNERSHIPS
The Partnership does not control the Funds, Beaver Ruin, or Carter Boulevard;
however, it does exercise significant influence. Accordingly, investment in
partnerships is recorded using the equity method of accounting. Each of the
I-6
<PAGE>
partnerships in which the Partnership invests, except for Beaver Ruin and Carter
Boulevard, has been formed to acquire and operate commercial real properties,
including both properties which are to be developed or are under development and
properties which are newly constructed or have operating histories. Beaver Ruin
and Carter Boulevard were formed to acquire and eventually sell the Beaver Ruin
and Carter Boulevard properties. The Partnership's investment in partnerships
at December 31, 1996 and 1995 includes the following:
<TABLE>
<CAPTION>
1996 1995
-------- --------
<S> <C> <C>
18.8% ownership interest in Beaver Ruin $ 81,781 $ 81,910
51.27% ownership interest in Carter 45,873 46,284
Boulevard
Wells Real Estate Fund VIII, L.P. 0 350
Wells Real Estate Fund IX, L.P. 164 400
Wells Real Estate Fund X, L.P. 400 0
Wells Real Estate Fund XI, L.P. 400 0
-------- --------
$128,618 $128,944
======== ========
</TABLE>
The assets of Beaver Ruin and Carter Boulevard are comprised primarily of an
investment in a parcel of undeveloped land. Wells Capital is also one of the
general partners of Beaver Ruin.
Fund VIII owns all of its properties through an investment in three joint
ventures which, as of December 31, 1996, owned an interest in two office
buildings, a retail office building, two office buildings under construction,
and a retail shopping center under construction.
Fund IX owns a parcel of land under development. In addition, Fund IX owns
properties through an investment in a joint venture which, as of December 31,
1996, owned an interest in an office building and an office building under
construction.
Fund X and Fund XI had no operations as of December 31, 1996.
The Partnership is entitled to share in the allocation of cash distributions and
net income (loss) based on ownership percentages outlined in the partnership
agreements.
3. INCOME TAXES
The Partnership will not request a ruling from the Internal Revenue Service to
the effect that it will be treated as a partnership and not an association
taxable as a corporation for federal income tax purposes. The Partnership has
requested an opinion of legal counsel as to its tax status but such an opinion
is not binding upon the Internal Revenue Service.
4. COMMITMENTS AND CONTINGENCIES
Management, after consultation with counsel, is not aware of any significant
litigation or claims against the Partnership. In the normal course of business,
the Partnership may be subject to litigation or claims.
I-7
<PAGE>
SCHEDULE 1
WELLS PARTNERS, L.P.
(A Georgia Limited Partnership)
MARKET VALUE OF INVESTMENT IN PARTNERSHIPS
As of December 31, 1996
(Unaudited)
<TABLE>
<CAPTION>
<S> <C> <C>
* 18.8% OWNERSHIP INTEREST IN BEAVER RUIN ARC WAY, LTD. $ 752,000
* 51.27% OWNERSHIP INTEREST IN CARTER BOULEVARD, LTD. 252,000
OWNERSHIP INTEREST IN WELLS REAL ESTATE FUND IX, L.P. 164
OWNERSHIP INTEREST IN WELLS REAL ESTATE FUND X, L.P. 400
OWNERSHIP INTEREST IN WELLS REAL ESTATE FUND XI, L.P. 400
----------
$1,004,964
==========
</TABLE>
*The market value of the undeveloped land owned by Beaver Ruin and Carter
Boulevard is based on an appraisal by an outside party.
The accompanying notes are an integral part of this schedule.
I-8
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholder of
Wells Capital, Inc.:
We have audited the accompanying balance sheets of WELLS CAPITAL, INC. (a
Georgia corporation) as of December 31, 1996 and 1995 and the related statements
of income, stockholder's equity, and cash flows for the years then ended. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Wells Capital, Inc. as of
December 31, 1996 and 1995 and the results of its operations and its cash flows
for the years then ended in conformity with generally accepted accounting
principles.
/s/ ARTHUR ANDERSEN
Atlanta, Georgia
January 10, 1997
I-9
<PAGE>
WELLS CAPITAL, INC.
BALANCE SHEETS
December 31, 1996 and 1995
ASSETS
<TABLE>
<CAPTION>
1996 1995
---------- --------
CURRENT ASSETS:
<S> <C> <C>
Cash $ 148,873 $130,457
Due from affiliates 872,843 306,229
Other receivables 31,300 8,533
---------- --------
Total current assets 1,053,016 445,219
INVESTMENTS IN PARTNERSHIPS 16,995 16,483
---------- --------
Total assets $1,070,011 $461,702
========== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
ACCOUNTS PAYABLE $ 204,340 $ 84,893
---------- --------
COMMITMENTS AND CONTINGENCIES (NOTE 5)
STOCKHOLDER'S EQUITY:
Common stock, $1 par value; 100,000
shares authorized, 600 shares issued 600 600
Contributed capital 306,541 306,541
Retained earnings 558,530 69,668
---------- --------
Total stockholder's equity 865,671 376,809
---------- --------
Total liabilities and stockholder's equity $1,070,011 $461,702
========== ========
</TABLE>
The accompanying notes are an integral part of these balance sheets.
I-10
<PAGE>
WELLS CAPITAL, INC.
STATEMENTS OF INCOME
For the Years Ended December 31, 1996 and 1995
<TABLE>
<CAPTION>
1996 1995
---------- ----------
REVENUES:
<S> <C> <C>
Acquisition and advisory fees $1,608,952 $1,083,281
Equity in income of limited partnerships 0 11,984
---------- ----------
1,608,952 1,095,265
---------- ----------
EXPENSES:
Salaries and wages 811,754 725,274
Occupancy 26,484 26,484
General and administrative 281,852 313,479
---------- ----------
1,120,090 1,065,237
---------- ----------
NET INCOME $ 488,862 $ 30,028
========== ==========
</TABLE>
The accompanying notes are an integral part of these statements.
I-11
<PAGE>
WELLS CAPITAL, INC.
STATEMENTS OF STOCKHOLDER'S EQUITY
For the Years Ended December 31, 1996 and 1995
<TABLE>
<CAPTION>
Common Stock Total
-------------- Contributed Retained Stockholder's
SHARES AMOUNT CAPITAL EARNINGS EQUITY
------ ----- ----------- --------- -------------
<S> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1994 600 $600 $306,541 $ 39,640 $346,781
Net income 0 0 0 30,028 30,028
------ ----- ----------- --------- -------------
BALANCE, DECEMBER 31, 1995 600 600 306,541 69,668 376,809
Net income 0 0 0 488,862 488,862
------ ----- ----------- --------- -------------
BALANCE, DECEMBER 31, 1996 600 $600 $306,541 $558,530 $865,671
------ ----- ----------- --------- -------------
</TABLE>
The accompanying notes are an integral part of these statements.
I-12
<PAGE>
WELLS CAPITAL, INC.
STATEMENTS OF CASH FLOWS
For the Years Ended December 31, 1996 and 1995
<TABLE>
<CAPTION>
1996 1995
--------- --------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income $ 488,862 $ 30,028
--------- --------
Adjustments to reconcile net income to
net cash provided by operating
activities:
Equity in income from limited partnerships 0 (11,984)
Distributions from limited partnerships 288 15,536
Changes in assets and liabilities:
Due from affiliates (566,614) 95,748
Other receivables (22,767) 1,029
Accounts payable 119,447 (3,763)
--------- --------
Total adjustments (469,646) 96,566
--------- --------
Net cash provided by operating activities 19,216 126,594
CASH FLOWS FROM INVESTING ACTIVITIES:
Additional investment in limited partnerships (800) 0
--------- --------
NET INCREASE IN CASH 18,416 126,594
CASH AT BEGINNING OF YEAR 130,457 3,863
--------- --------
CASH AT END OF YEAR $ 148,873 $130,457
========= ========
</TABLE>
The accompanying notes are an integral part of these statements.
I-13
<PAGE>
WELLS CAPITAL, INC.
NOTES TO FINANCIAL STATEMENTS
December 31, 1996 and 1995
1. SUMMARY OF SIGNIFCANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Capital, Inc. (the "Company") was organized on April 18, 1984 as a
corporation under the Georgia Business Corporation Code. The Company is in the
business of serving as a general partner in public limited partnerships. As a
general partner, the Company performs certain administrative services for the
Wells Real Estate funds, such as accounting and other administration, and incurs
the related expenses. Such expenses are allocated among the various Wells Real
Estate funds based on time spent on each fund by individual administrative
personnel. The sole stockholder of the Company is Leo F. Wells, III.
The Company is a general partner in Wells Real Estate Fund I ("Fund I"), Wells
Real Estate Fund II ("Fund II"), Wells Real Estate Fund II-OW ("Fund II-OW"),
and Wells Real Estate Fund III, L.P. ("Fund III"), all of which are Georgia
public limited partnerships, and Wells Partners, L.P. ("Wells Partners"), a
Georgia limited partnership. The Company is also a limited partner in Fund I
and Fund II. The Company does not have control over the operations of the
partnerships; however, it does exercise significant influence. Accordingly,
investment in partnerships is recorded using the equity method of accounting.
Each of the partnerships, except for Wells Partners, has been formed to acquire
and operate commercial real properties, including both properties which are to
be developed or are under development and properties which are newly constructed
or have operating histories. Wells Partners was formed during 1990 to act as a
general partner for all other Wells funds. Wells Partners serves as a general
partner for Wells Real Estate Fund IV, L.P. ("Fund IV"), Wells Real Estate Fund
V, L.P. ("Fund V"), Wells Real Estate Fund VI, L.P. ("Fund VI"), Wells Real
Estate Fund VII, L.P. ("Fund VII"), Wells Real Estate Fund VIII, L.P. ("Fund
VIII"), and Wells Real Estate Fund IX, L.P. ("Fund IX"). In June 1996, Wells
Partners became the general partner for Wells Real Estate Fund X, L.P. ("Fund
X") and Wells Real Estate Fund XI, L.P. ("Fund XI"). Funds IV, V, VI, VII,
VIII, IX, X and XI have the same investment objectives as Funds I, II, II-OW,
and III (Note 3).
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
I-14
<PAGE>
INCOME TAXES
The Company elected to be treated as an S corporation effective January 1, 1987.
No provision for income taxes is recorded, as any income tax liability is the
responsibility of the stockholder.
2. RELATED-PARTY TRANSACTIONS
The Company is entitled to share in the allocation of cash distributions and net
income (loss) based on percentages outlined in the partnership agreements. The
Company, as general partner, paid all the organization and offering expenses for
Fund I, Fund II, Fund II-OW, and Fund III and was reimbursed pursuant to the
partnership agreements, which provided that the partnerships could reimburse the
Company up to 5% of total limited partners' contributions in organization and
offering expenses. The Company also paid, or is currently paying, on behalf of
Wells Partners the organization and offering expenses for Fund IV, Fund V, Fund
VI, Fund VII, Fund VIII, and Fund IX. Pursuant to the partnership agreements of
Fund IV and Fund V, these two partnerships can only pay up to 3% of total
limited partners' contributions in organization and offering expenses. The
remaining partnerships can reimburse the Company up to 5% of total limited
partners' contributions in organization and offering costs pursuant to the
partnership agreements.
During the year ended December 31, 1995, the Company paid and was reimbursed for
organization and offering costs related to Fund VII totaling approximately
$40,260, which did not exceed the 5% reimbursement limitation. During 1995, the
Company expensed approximately $40,432 of organization and offering costs
related to Fund VII, which exceeded the 5% reimbursement limitation.
As of December 31, 1996 and 1995, the Company had a receivable for unreimbursed
organization and offering costs related to Fund VIII totaling $152,501 and
$96,972, respectively, which are included in due from affiliates. During 1996
and 1995, the Company expensed approximately $67,000 and $38,000, respectively,
of organization and offering costs related to Fund VIII which exceeded the 5%
reimbursement limitation.
As of December 31, 1996 and 1995, the Company had a receivable for unreimbursed
organization and offering costs and acquisition and advisory fees related to
Fund IX totaling $422,996 and $142,229, respectively, which are included in due
from affiliates. During 1996, the Company expensed $73,296 of organization and
offering costs related to Fund IX which exceeded the 5% reimbursement
limitation.
During the year ended December 31, 1996, the Company paid organization and
offering costs related to Fund X of $97,691 and Fund XI of $84,578. Fund X and
Fund IX both filed a registration statement with the Securities and Exchange
Commission for the offering and sale of its limited partnership units, which
became effective on December 31, 1996. In order for the Company to be
reimbursed for these expenses, Fund X and Fund XI will each need to receive
approximately $1,250,000 in limited partners' contributions. At this time, the
Company believes that all of the foregoing organization and offering expenses
will be reimbursed.
I-15
<PAGE>
Due from affiliates at December 31, 1996 and 1995 represents primarily
organization and offering expenses paid by the Company on behalf of Fund VIII,
Fund IX, Fund X, and Fund XI. In addition, Wells Investment Securities, Inc.
has agreed to reimburse a portion of Fund IX organization and offering expenses
totaling $104,037. The remaining due from affiliates represents operating
expenses paid by the Company on behalf of the affiliates. The following is a
detail of due from affiliates at December 31:
<TABLE>
<CAPTION>
1996 1995
-------- --------
<S> <C> <C>
Fund VIII $152,501 $136,436
Fund IX 422,996 142,229
Fund X 97,691 0
Fund XI 84,578 0
Wells Management Company, Inc. 2,113 6,709
Wells Investment Securities, Inc. 104,037 0
Other affiliates 8,927 20,855
-------- --------
$872,843 $306,229
======== ========
</TABLE>
Offering costs paid by the Company on behalf of and reimbursed by Fund VIII and
Fund IX of approximately $126,000 and $84,000, respectively, were paid to
related parties.
3. Investment in Partnerships
The following is a rollforward of the Company's investment in partnerships as of
December 31, 1996 and 1995:
<TABLE>
<CAPTION>
1996 1995
------- --------
<S> <C> <C>
Investment in partnerships, beginning of period $16,483 $ 20,035
Contribution to partnerships 800 0
Equity in income of partnerships 0 11,984
Distributions from partnerships (288) (15,536)
------- --------
Investment in partnerships, end of period $16,995 $ 16,483
======= ========
</TABLE>
The Company's investment in each partnership at December 31, 1996 and 1995 is as
follows:
<TABLE>
<CAPTION>
1996 1995
------- -------
<S> <C> <C>
Fund I $11,027 $11,027
Fund II 2,808 3,096
Wells Partners (Note 1) 3,160 2,360
------- -------
$16,995 $16,483
======= =======
</TABLE>
As of December 31, 1996 and 1995, Fund I owned interests in a medical office
building, two commercial office buildings, three retail shopping centers, and a
project consisting of seven office buildings and a shopping center.
I-16
<PAGE>
Fund II owns all of its properties through a joint venture, which, as of
December 31, 1996 and 1995, owned interests in a retail shopping center, a
project consisting of seven office buildings and a shopping center, two office
buildings, a parcel of land upon which a restaurant was developed and a retail
shopping center which was substantially completed and commenced operations in
1996.
4. ACQUISITION AND ADVISORY FEES
Acquisition and advisory fees were earned from Fund VIII and Fund IX in 1996 and
from Fund VII and Fund VIII in 1995. Pursuant to the partnership agreements of
Fund VII, Fund VIII, and Fund IX, total fees earned may not exceed 4% of limited
partners' contributions. As of December 31, 1996 and 1995, all fees were
collected for limited partners' contributions received by Fund VII. As of
December 31, 1996, $152,501 and $106,211 of Fund VIII and Fund IX fees,
respectively, remain uncollected and are included in due from affiliates.
5. COMMITMENTS AND CONTINGENCIES
The Company has guaranteed the indebtedness of an affiliate, Wells Management
Company, Inc. ("Wells Management"), for an amount not to exceed $200,000.
Management believes, however, that Wells Management has sufficient resources to
pay its indebtedness and does not anticipate that it will incur a loss as a
result of this guarantee.
Management, after consultation with counsel, is not aware of any significant
litigation or claims against the Company. In the normal course of business, the
Company may be subject to litigation or claims.
I-17
<PAGE>
[LETTERHEAD OF ARTHUR ANDERSEN LLP APPEARS HERE]
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Partners of
Wells Real Estate Fund X, L.P.:
We have audited the accompanying balance sheet of WELLS REAL ESTATE FUND X, L.P.
(a Georgia public limited partnership) as of December 31, 1996. This financial
statement is the responsibility of the Partnership's management. Our
responsibility is to express an opinion on this financial statement based on our
audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statement is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statement. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statement referred to above presents fairly, in
all material respects, the financial position of Wells Real Estate Fund X, L.P.
as of December 31, 1996 in conformity with generally accepted accounting
principles.
/s/ ARTHUR ANDERSEN
Atlanta, Georgia
January 10, 1997
I-18
<PAGE>
WELLS REAL ESTATE FUND X, L.P.
(A Georgia Public Limited Partnership)
BALANCE SHEET
DECEMBER 31, 1996
ASSETS
CASH $ 600
DEFERRED OFFERING COSTS 97,691
-------
Total assets $98,291
=======
LIABILITIES AND PARTNERS' CAPITAL
LIABILITIES, DUE TO AFFILIATE $97,691
PARTNERS' CAPITAL:
General partners 500
Limited partner 100
-------
Total partners' capital 600
-------
Total liabilities and partners' capital $98,291
=======
The accompanying notes are an integral part of this balance sheet.
I-19
<PAGE>
WELLS REAL ESTATE FUND X, L.P.
(A Georgia Public Limited Partnership)
NOTES TO BALANCE SHEET
December 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Real Estate Fund X, L.P. (the "Partnership") is a public limited
partnership organized on June 20, 1996, under the laws of the state of Georgia.
The general partners are Leo F. Wells, III and Wells Partners, L.P., a Georgia
nonpublic limited partnership. The Partnership has one class of limited
partnership units. Upon subscription for units, each limited partner must elect
whether to have their units treated as Class A units (entitled to allocation of
substantially all of the Partnership's net income without allocation of any
deductions for depreciation, amortization, cost recovery, or net losses) or
Class B units (entitled to a larger share of deductions for depreciation,
amortization, cost recovery and net loss, and a higher percentage return on
appreciation (if any) of real estate investments, but no current cash
distributions). Thereafter, limited partners shall have the right to change
their prior election to have some or all of their units treated as Class A units
or Class B units one time during each quarterly accounting period. Limited
partners owning a majority of the units may vote to, among other things: (a)
amend the partnership agreement, subject to certain limitations, (b) change the
business purpose or investment objectives of the Partnership, (c) remove a
general partner, (d) elect a new general partner, (e) dissolve the Partnership,
and (f) approve a sale of assets, subject to certain limitations. Each limited
partnership unit has equal voting rights, regardless of class. The Partnership
had no operations as of December 31, 1996.
The Partnership intends to acquire on an all cash basis and operate commercial
real estate properties, including properties which are either to be developed,
currently under development or construction, newly constructed, or have
operating histories.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
I-20
<PAGE>
INCOME TAXES
The Partnership is not subject to federal or state income taxes, and therefore,
none have been provided for in the accompanying financial statements. The
partners are required to include their respective share of profits and losses in
their individual income tax returns.
DISTRIBUTIONS OF NET CASH FROM OPERATIONS
Cash available for distribution, as defined by the partnership agreement, will
be distributed to the limited partners on a quarterly basis. In accordance with
the partnership agreement, distributions first are paid to limited partners
holding Class A units until they have received a 10% annual return on their net
capital contributions, as defined. Then distributions are paid to the general
partners until they have received 10% of the total amount thus far distributed.
Any remaining cash available for distribution is split 90% to the limited
partners holding Class A units and 10% to the general partners. No such
distributions will be made to the limited partners holding Class B units.
DISTRIBUTION OF SALES PROCEEDS
Upon sales of properties, the net sales proceeds will be distributed in the
following order:
. To limited partners holding units which at any time have been treated as
Class B units until they receive an amount necessary to equal the net cash
available for distribution received by the limited partners holding Class A
units
. To limited partners on a per unit basis until each limited partner has
received 100% of their net capital contribution, as defined
. To all limited partners on a per unit basis until they receive a
cumulative 10% per annum return on their net capital contribution, as defined
. To limited partners on a per unit basis until they receive an amount
equal to their preferential limited partner return (defined as the sum of a 10%
per annum cumulative return on net capital contributions for all periods during
which the units were treated as Class A units and a 15% per annum cumulative
return on net capital contributions for all periods during which the units were
treated as Class B units)
. To the general partners until they have received 100% of their capital
contributions
. Then, if limited partners have received any excess limited partner
distributions (defined as distributions to limited partners over the life of
their investment in the Partnership in excess of their net capital
contributions, as defined, plus their preferential limited partner return), to
the general partners until they have received distributions equal to 20% of the
sum of any such excess limited partner distributions plus distributions made to
the general partners pursuant to this provision
I-21
<PAGE>
. Thereafter, 80% to the limited partners on a per unit basis and 20% to
the general partners
ALLOCATION OF NET INCOME, NET LOSS, AND GAIN ON SALE
Net income is defined as net income recognized by the Partnership, excluding
deductions for depreciation, amortization, and cost recovery. Net income, as
defined, of the Partnership will be allocated each year in the same proportion
that net cash from operations is distributed to the partners. To the extent the
Partnership's net income in any year exceeds net cash from operations, it will
be allocated 99% to the limited partners holding Class A units and 1% to the
general partners.
Net loss, depreciation, amortization, and cost recovery deductions for each
fiscal year will be allocated as follows: (a) 99% to the limited partners
holding Class B units and 1% to the general partners until their capital
accounts are reduced to zero; (b) then to any partner having a positive balance
in his capital account in an amount not to exceed such positive balance; and (c)
thereafter to the general partners.
Gain on the sale or exchange of the Partnership's properties will be allocated
generally in the same manner that the net proceeds from such sale are
distributed to partners after the following allocations are made, if applicable:
(a) allocations made pursuant to the qualified income offset provisions of the
partnership agreement; (b) allocations to partners having negative capital
accounts until all negative capital accounts have been restored to zero; and (c)
allocations to limited partners holding Class B units in amounts equal to the
deductions for depreciation, amortization, and cost recovery previously
allocated to them with respect to the specific partnership property sold, but
not in excess of the amount of gain on sale recognized by the Partnership with
respect to the sale of such property.
2. DEFERRED OFFERING COSTS
Organization and offering expenses, to the extent they exceed 5% of gross
proceeds, will be paid by Wells Capital, Inc. (the "Company"), an affiliate of
the general partners, and not by the Partnership. Organization and offering
expenses do not include sales or underwriting commissions but do include such
costs as legal and accounting fees, printing costs, and other offering expenses.
As of December 31, 1996, the Company had paid organization and offering expenses
related to the Partnership of $97,691. A registration statement covering both
the Partnership and Wells Real Estate Fund XI, L.P. was filed with the
Securities and Exchange Commission ("SEC") on July 11, 1996. The registration
statement of the Partnership was declared effective by the SEC on December 31,
1996. The Partnership needs to receive approximately $1,250,000 in limited
partners' contributions before the liability to the Company will be paid. At
this time, the general partners believe that all of the foregoing organization
and offering expenses will be reimbursed by the Partnership.
I-22
<PAGE>
3. RELATED-PARTY TRANSACTIONS
The Partnership may enter into a property management agreement with Wells
Management Company, Inc. ("Wells Management"), an affiliate of the general
partners. In consideration for supervising the management of the Partnership's
properties, the Partnership will pay Wells Management management and leasing
fees equal to the lesser of (a) fees paid to a comparable outside firm, or (b)
3% of the gross revenues for management and 3% of the gross revenues for leasing
(aggregate maximum of 6%) generally paid over the life of the lease, plus a
separate competitive fee for the one-time initial lease-up of newly constructed
properties generally paid in conjunction with the receipt of the first month's
rent. In the case of commercial properties which are leased on a long-term net
basis (ten or more years), the maximum property management fee from such leases
shall be 1% of the gross revenues generally paid over the life of the lease,
except for a one-time initial leasing fee of 3% of the gross revenues on each
lease payable over the first five full years of the original lease term.
The general partners are also general partners in other Wells Real Estate funds.
As such, there may exist conflicts of interest where the general partners, while
serving in the capacity as general partners for other Wells Real Estate funds,
may be in competition with the Partnership for tenants in similar geographic
markets.
4. INCOME TAXES
The Partnership will not request a ruling from the Internal Revenue Service to
the effect that it will be treated as a partnership and not as an association
taxable as a corporation for Federal income tax purposes. The Partnership
received an opinion of legal counsel as to its tax status as a partnership, but
such an opinion is not binding upon the Internal Revenue Service.
I-23
<PAGE>
[LETTERHEAD OF ARTHUR ANDERSEN LLP APPEARS HERE]
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Partners of
Wells Real Estate Fund XI, L.P.:
We have audited the accompanying balance sheet of WELLS REAL ESTATE FUND XI,
L.P. (a Georgia public limited partnership) as of December 31, 1996. This
financial statement is the responsibility of the Partnership's management. Our
responsibility is to express an opinion on this financial statement based on our
audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statement is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statement. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statement referred to above presents fairly, in
all material respects, the financial position of Wells Real Estate Fund XI, L.P.
as of December 31, 1996 in conformity with generally accepted accounting
principles.
/s/ ARTHUR ANDERSEN
Atlanta, Georgia
January 10, 1997
I-24
<PAGE>
WELLS REAL ESTATE FUND XI, L.P.
(A Georgia Public Limited Partnership)
BALANCE SHEET
DECEMBER 31, 1996
ASSETS
CASH $ 600
DEFERRED OFFERING COSTS 84,578
-------
Total assets $85,178
=======
LIABILITIES AND PARTNERS' CAPITAL
LIABILITIES, DUE TO AFFILIATE $84,578
PARTNERS' CAPITAL:
General partners 500
Limited partner 100
-------
Total partners' capital 600
-------
Total liabilities and partners' capital $85,178
=======
The accompanying notes are an integral part of this balance sheet.
I-25
<PAGE>
WELLS REAL ESTATE FUND XI, L.P.
(A Georgia Public Limited Partnership)
NOTES TO BALANCE SHEET
December 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Real Estate Fund XI, L.P. (the "Partnership") is a public limited
partnership organized on June 20, 1996, under the laws of the state of Georgia.
The general partners are Leo F. Wells, III and Wells Partners, L.P., a Georgia
nonpublic limited partnership. The Partnership has one class of limited
partnership units. Upon subscription for units, each limited partner must elect
whether to have their units treated as Class A units (entitled to allocation of
substantially all of the Partnership's net income without allocation of any
deductions for depreciation, amortization, cost recovery, or net losses) or
Class B units (entitled to a larger share of deductions for depreciation,
amortization, cost recovery and net loss, and a higher percentage return on
appreciation (if any) of real estate investments, but no current cash
distributions). Thereafter, limited partners shall have the right to change
their prior election to have some or all of their units treated as Class A units
or Class B units one time during each quarterly accounting period. Limited
partners owning a majority of the units may vote to, among other things: (a)
amend the partnership agreement, subject to certain limitations, (b) change the
business purpose or investment objectives of the Partnership, (c) remove a
general partner, (d) elect a new general partner, (e) dissolve the Partnership,
and (f) approve a sale of assets, subject to certain limitations. Each limited
partnership unit has equal voting rights, regardless of class. The Partnership
had no operations as of December 31, 1996.
The Partnership intends to acquire on an all cash basis and operate commercial
real estate properties, including properties which are either to be developed,
currently under development or construction, newly constructed, or have
operating histories.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
I-26
<PAGE>
INCOME TAXES
The Partnership is not subject to federal or state income taxes, and therefore,
none have been provided for in the accompanying financial statements. The
partners are required to include their respective share of profits and losses in
their individual income tax returns.
DISTRIBUTIONS OF NET CASH FROM OPERATIONS
Cash available for distribution, as defined by the partnership agreement, will
be distributed to the limited partners on a quarterly basis. In accordance with
the partnership agreement, distributions first are paid to limited partners
holding Class A units until they have received a 10% annual return on their net
capital contributions, as defined. Then such distributions are paid to the
general partners until they have received 10% of the total amount thus far
distributed. Any remaining cash available for distribution is split 90% to the
limited partners holding Class A units and 10% to the general partners. No such
distributions will be made to the limited partners holding Class B units.
DISTRIBUTION OF SALES PROCEEDS
Upon sales of properties, the net sales proceeds will be distributed in the
following order:
. To limited partners holding units which at any time have been treated as
Class B units until they receive an amount necessary to equal the net cash
available for distribution received by the limited partners holding Class A
units
. To limited partners on a per unit basis until each limited partner has
received 100% of their net capital contribution, as defined
. To all limited partners on a per unit basis until they receive a
cumulative 10% per annum return on their net capital contribution, as defined
. To limited partners on a per unit basis until they receive an amount
equal to their preferential limited partner return (defined as the sum of a 10%
per annum cumulative return on net capital contributions for all periods during
which the units were treated as Class A units and a 15% per annum cumulative
return on net capital contributions for all periods during which the units were
treated as Class B units)
. To the general partners until they have received 100% of their capital
contributions
. Then, if limited partners have received any excess limited partner
distributions (defined as distributions to limited partners over the life of
their investment in the Partnership in excess of their net capital
contributions, as defined, plus their preferential limited partner return), to
the general partners until they have received distributions equal to 20% of the
sum of any such excess limited partner distributions plus distributions made to
the general partners pursuant to this provision
I-27
<PAGE>
. Thereafter, 80% to the limited partners on a per unit basis and 20% to
the general partners
ALLOCATION OF NET INCOME, NET LOSS, AND GAIN ON SALE
Net income is defined as net income recognized by the Partnership, excluding
deductions for depreciation, amortization, and cost recovery. Net income, as
defined, of the Partnership will be allocated each year in the same proportion
that net cash from operations is distributed to the partners. To the extent the
Partnership's net income in any year exceeds net cash from operations, it will
be allocated 99% to the limited partners holding Class A units and 1% to the
general partners.
Net loss, depreciation, amortization, and cost recovery deductions for each
fiscal year will be allocated as follows: (a) 99% to the limited partners
holding Class B units and 1% to the general partners until their capital
accounts are reduced to zero; (b) then to any partner having a positive balance
in his capital account in an amount not to exceed such positive balance; and (c)
thereafter to the general partners.
Gain on the sale or exchange of the Partnership's properties will be allocated
generally in the same manner that the net proceeds from such sale are
distributed to partners after the following allocations are made, if applicable:
(a) allocations made pursuant to the qualified income offset provisions of the
partnership agreement; (b) allocations to partners having negative capital
accounts until all negative capital accounts have been restored to zero; and (c)
allocations to limited partners holding Class B units in amounts equal to the
deductions for depreciation, amortization, and cost recovery previously
allocated to them with respect to the specific partnership property sold, but
not in excess of the amount of gain on sale recognized by the Partnership with
respect to the sale of such property.
2. DEFERRED OFFERING COSTS
Organization and offering expenses, to the extent they exceed 5% of gross
proceeds, will be paid by Wells Capital, Inc. (the "Company"), an affiliate of
the general partners, and not by the Partnership. Organization and offering
expenses do not include sales or underwriting commissions but do include such
costs as legal and accounting fees, printing costs, and other offering expenses.
As of December 31, 1996, the Company had paid organization and offering expenses
related to the Partnership of $84,578. A registration statement covering both
the Partnership and Wells Real Estate Fund X, L.P. was filed with the Securities
and Exchange Commission ("SEC") on July 11, 1996. The registration statement of
the Partnership was declared effective by the SEC on December 31, 1996. The
Partnership needs to receive approximately $1,250,000 in limited partners'
contributions before the liability to the Company will be paid. At this time,
the general partners believe that all of the foregoing organization and offering
expenses will be reimbursed by the Partnership.
I-28
<PAGE>
3. RELATED-PARTY TRANSACTIONS
The Partnership may enter into a property management agreement with Wells
Management Company, Inc. ("Wells Management"), an affiliate of the general
partners. In consideration for supervising the management of the Partnership's
properties, the Partnership will pay Wells Management management and leasing
fees equal to the lesser of (a) fees that would be paid to a comparable outside
firm, or (b) 3% of the gross revenues for management and 3% of the gross
revenues for leasing (aggregate maximum of 6%) generally paid over the life of
the lease plus a separate competitive fee for the one-time initial lease-up of
newly constructed properties generally paid in conjunction with the receipt of
the first month's rent. In the case of commercial properties which are leased
on a long-term net basis (ten or more years), the maximum property management
fee from such leases shall be 1% of the gross revenues generally paid over the
life of the leases except for a one-time initial leasing fee of 3% of the gross
revenues on each lease payable over the first five full years of the original
lease term.
The general partners are also general partners in other Wells Real Estate funds.
As such, there may exist conflicts of interest where the general partners, while
serving in the capacity as general partners for other Wells Real Estate funds,
may be in competition with the Partnership for tenants in similar geographic
markets.
4. INCOME TAXES
The Partnership will not request a ruling from the Internal Revenue Service to
the effect that it will be treated as a partnership and not as an association
taxable as a corporation for Federal income tax purposes. The Partnership
received an opinion of legal counsel as to its tax status as a partnership, but
such an opinion is not binding upon the Internal Revenue Service.
I-29
<PAGE>
EXHIBIT A
PRIOR PERFORMANCE TABLES
The following Prior Performance Tables (the "Tables") provide information
relating to real estate investment programs sponsored by the General Partners or
their Affiliates ("Prior Programs") which have investment objectives similar to
the Partnership.
Prospective investors should read these Tables carefully together with the
summary information concerning the Prior Programs as set forth in "PRIOR
PERFORMANCE SUMMARY" elsewhere in this Prospectus.
INVESTORS IN THE PARTNERSHIP WILL NOT OWN ANY INTEREST IN THE PRIOR
PROGRAMS AND SHOULD NOT ASSUME THAT THEY WILL EXPERIENCE RETURNS, IF ANY,
COMPARABLE TO THOSE EXPERIENCED BY INVESTORS IN THE PRIOR PROGRAMS.
These Tables present actual results of Prior Programs that have investment
objectives similar to those of the Partnership. The Partnership's investment
objectives are to maximize Net Cash From Operations; to preserve original
Capital Contributions; and to realize capital appreciation over a period of
time. All of the General Partners' Prior Programs have used a substantial
amount of capital and not acquisition indebtedness to acquire their properties.
The General Partners are responsible for the acquisition, operation,
maintenance and resale of the Partnership Properties. The financial results of
the Prior Programs thus provide an indication of the General Partners'
performance of their obligations during the periods covered. However, general
economic conditions affecting the real estate industry and other factors
contribute significantly to financial results.
The following tables are included herein:
TABLE I - Experience in Raising and Investing Funds (As a Percentage of
Investment)
TABLE II - Compensation to Sponsor (in Dollars)
TABLE III - Annual Operating Results of Prior Programs
TABLE IV (Results of completed programs) and TABLE V (sales or disposals of
property) have been omitted since none of the Prior Programs have sold any of
their properties to date.
Additional information relating to the acquisition of properties by the
Prior Programs is contained in TABLE VI, which is included in the Registration
Statement which the Partnership has filed with the Securities and Exchange
Commission. As described above, no Prior Program has sold or disposed of any
property held by it. Copies of any or all information will be provided to
prospective investors at no charge upon request.
The following are definitions of certain terms used in the Tables:
"ACQUISITION FEES" shall mean fees and commissions paid by a partnership in
connection with its purchase or development of a property, except development
fees paid to a person not affiliated with the partnership or with a general
partner of the partnership in connection with the actual development of a
project after acquisition of the land by the partnership.
"ORGANIZATION EXPENSES" shall include legal fees, accounting fees,
securities filing fees, printing and reproduction expenses and fees paid to the
general partners or their affiliates in connection with the planning and
formation of the partnership.
"UNDERWRITING FEES" shall include selling commissions and wholesaling fees
paid to broker-dealers for services provided by the broker-dealers during the
offering.
A-1
<PAGE>
TABLE I
(UNAUDITED)
EXPERIENCE IN RAISING AND INVESTING FUNDS
This Table provides a summary of the experience of the General Partners and
their Affiliates in Prior Programs for which offerings have been completed since
December 31, 1993. Information is provided with regard to the manner in which
the proceeds of the offerings have been applied. Also set forth is information
pertaining to the timing and length of these offerings and the time period over
which the proceeds have been invested in the properties.
<TABLE>
<CAPTION>
Wells Real Wells Real Wells Real Wells Real
Estate Fund Estate Fund Estate Fund Estate Fund
VI, L.P. VII, L.P. VIII, L.P. IX, L.P.
----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Dollar Amount Raised $25,000,000/(3)/ $23,374,961/(4)/ $30,144,542/(5)/ $35,000,000/(6)/
================ ================ ================ ================
Percentage Amount Raised 100.0%/(3)/ 100.0%/(4)/ 100.0%/(5)/ 100.0%/(6)/
Less Offering Expenses
Underwriting Fees 10.0% 10.0% 10.0% 10.0%
Organizational Expenses 5.0% 5.0% 5.0% 5.0%
Reserves/(1)/ 1.0% 1.0% 0.0% 0.0%
---- ---- ---- ----
Percent Available for Investment 84.0% 84.0% 85.0% 85.0%
Acquisition and Development Costs
Prepaid Items and Fees related
to Purchase of Property 0.3% 0.0% 0.0% 0.0%
Cash Down Payment 40.4% 16.3% 6.3% 7.0%
Acquisition Fees/(2)/ 3.7% 3.5% 4.0% 4.0%
Development and Construction Costs 39.6% 64.2% 50.3% 30.0%
Reserve for Payment of Indebtedness 0.0% 0.0% 0.0% 0.0%
---- ---- ---- ----
Total Acquisition and Development Cost 84.0% 84.0% 60.6% 41.0%
---- ---- ---- ----
Percent Leveraged 0.0% 0.0% 0.0% 0.0%
==== ==== ==== ====
Date Offering Began 04/05/93 04/24/94 01/06/95 1/5/96
Length of Offering 12 mo. 12 mo. 12 mo. 12 mo.
Months to Invest 90% of Amount
Available for Investment (Measured
from Beginning of Offering) 15 mo. 12 mo. /(7)/ /(8)/
Number of Investors 1,791 1,865 2,086 2,098
- ------------------------------------
</TABLE>
(1) Does not include General Partner contributions held as part of reserves.
(2) Includes development fees, real estate commissions, general contractor fees
and/or architectural fees paid to Affiliates of the General Partners.
(3) Total dollar amount registered and available to be offered was $25,000,000.
Wells Real Estate Fund VI, L.P. closed its offering on April 4, 1994 and the
total dollar amount raised was $25,000,000.
(4) Total dollar amount registered and available to be offered was $25,000,000.
Wells Real Estate Fund VII, L.P. closed its offering on January 5, 1995 and
the total dollar amount raised was $24,180,174.
(5) Total dollar amount registered and available to be offered was $35,000,000.
Wells Real Estate Fund VIII, L.P. closed its offering on January 4, 1996 and
the total dollar amount raised was $32,042,689.
(6) Total dollar amount registered and available to be offered was $35,000,000.
Wells Real Estate Fund IX, L.P. closed its offering on December 30, 1996 and
the total dollar amount raised was $35,000,000.
(7) As of December 31, 1996, Wells Real Estate Fund VIII, L.P. had not yet
invested 90% of the amount available for investment. The amount invested in
properties (including Acquisition Fees paid but not yet associated with a
specific property) at December 31, 1996 was 44% of the total dollar amount
raised.
(8) As of December 31, 1996, Wells Real Estate Fund IX, L.P. had not yet
invested 90% of the amount available for investment. The amount invested in
properties (including Acquisition Fees paid but not yet associated with a
specific property) at December 31, 1996 was 17% of the total dollar amount
raised.
A-2
<PAGE>
TABLE II
(UNAUDITED)
COMPENSATION TO SPONSOR
The following sets forth the compensation received by General Partners or
Affiliates of the General Partners, including compensation paid out of offering
proceeds and compensation paid in connection with the ongoing operations of
Prior Programs having similar or identical investment objectives the offerings
of which have been completed since December 31, 1993. These partnerships have
not sold or refinanced any of their properties to date. All figures are as of
December 31, 1996.
<TABLE>
<CAPTION>
Wells Real Wells Real Wells Real Wells Real Other
Estate Fund Estate Fund Estate Fund Estate Fund Public
VI, L.P. VII, L.P. VIII, L.P. IX, L.P. Programs/(1)/
------------ ------------ ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Date Offering Commenced 04/05/93 04/06/94 01/06/95 01/05/96 --
Dollar Amount Raised $25,000,000 $24,180,174 $32,042,689 $35,000,000 $125,018,232
to Sponsor from Proceeds of Offering:
Underwriting Fees/(2)/ $ 119,936 $ 178,122 $ 174,295 $ 309,556 $ 451,803
Acquisition Fees
Real Estate Commissions -- -- -- -- --
Acquisition and Advisory Fees/(3)/ $ 932,216 $ 846,306 $ 1,281,708 $ 1,400,000 $ 7,099,169
Dollar Amount of Cash Generated from Operations
Before Deducting Payments to Sponsor/(4)/ $ 2,780,262 $ 1,943,504 $ 1,228,747 $ 161,427 $ 21,533,226
Amount Paid to Sponsor from Operations:
Property Management Fee/(1)/ $ 78,975 $ 58,433 $ 26,780 $ 486 $ 791,998
Partnership Management Fee -- -- -- -- --
Reimbursements $ 92,825 $ 90,160 $ 48,429 $ 8,332 $ 1,138,583
Leasing Commissions $ 41,428 $ 39,494 $ 25,209 $ 1,459 $ 817,520
General Partner Distributions -- -- -- -- 15,205
Other -- -- -- -- --
Dollar Amount of Property Sales and Refinancing
Payments to Sponsors:
Cash -- -- -- -- --
Notes -- -- -- -- --
Amount Paid to Sponsor from Property Sales
and Refinancing:
Real Estate Commissions -- -- -- -- --
Incentive Fees -- -- -- -- --
Other -- -- -- -- --
- ----------------------------------
</TABLE>
(1) Includes compensation paid to General Partners from Wells Real Estate Fund
I, Wells Real Estate Fund II, Wells Real Estate Fund II-OW, Wells Real
Estate Fund III, L.P., Wells Real Estate Fund IV, L.P. and Wells Real Estate
Fund V, L.P. during the past three years. General Partners of Wells Real
Estate Fund I are entitled to certain property management and leasing fees
but have elected to defer the payment of such fees until a later year on
properties owned by Fund I and properties owned jointly by Fund I and Fund
II. At December 31, 1996, the amount of such fees due the General Partners
totaled $1,897,184.
(2) Includes net underwriting compensation and commissions paid to Wells
Investment Securities, Inc. in connection with the offerings of Wells Real
Estate Funds VI, VII, VIII and IX, which were not reallowed to participating
broker-dealers.
(3) Fees paid to the General Partners or their Affiliates for acquisition
advisory services in connection with the review and evaluation of potential
real property acquisitions.
(4) Includes $125,314 in net cash used by operating activities, $2,692,348 in
distributions paid to limited partners and $213,228 in payments to sponsors
for Wells Real Estate Fund VI, L.P.; $32,869 in net cash used by operating
activities, $1,732,250 in distributions paid to limited partners and
$188,087 in payments to sponsor for Wells Real Estate Fund VII, L.P.; $2,443
in net cash used by operating activities, $1,130,772 in distributions paid
to limited partners and $100,418 in payments to sponsor for Wells Real
Estate Fund VIII, L.P.; $1,725 in net cash provided by operating activities,
$149,425 in distributions paid to limited partners and $10,277 in payments
to sponsor for Wells Real Estate Fund IX, L.P.; and $855,331 in net cash
provided by operating activities, $19,618,669 in distributions paid to
limited partners and $2,763,306 in payments to sponsor for other public
programs.
A-3
<PAGE>
TABLE III
(UNAUDITED)
The tables on the following five (5) pages set forth operating results
of prior programs sponsored by the General Partners the offerings of which have
been completed since December 31, 1991. The information relates only to public
programs with investment objectives similar to those of the Partnership. All
figures are as of December 31 of the year indicated.
A-4
<PAGE>
TABLE III
(UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND V, L.P.
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
------------ ----------- ------------- ------------ -------------
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $ 590,839 $ 764,624 $ 656,958 $ 458,213 $ 58,640
Profit on Sale of Properties -- -- -- -- --
Less: Operating Expenses/(2)/ 78,939 68,735 88,987 96,964 71,521
Depreciation and Amortization/(3)/ 6,250 6,250 6,250 6,250 5,208
---------- ---------- ----------- ----------- -----------
Net Income (Loss) GAAP Basis/(4)/ $ 505,650 $ 689,639 $ 561,721 $ 354,999 $ (18,089)
========== ========== =========== =========== ===========
Taxable Income (Loss): Operations $ 666,780 $ 676,367 $ 528,025 $ 280,000 $ (18,089)
========== ========== =========== =========== ===========
Cash Generated (Used By):
Operations (65,728) (46,235) (10,395) 112,594 (33,006)
Joint Ventures 1,072,835 1,020,905 653,729 54,154 --
---------- ---------- ----------- ----------- -----------
$1,007,107 $ 974,670 $ 643,334 $ 166,748 $ (33,006)
Less Cash Distributions to Investors:
Operating Cash Flow 1,007,107 969,011 643,334 151,336 --
Return of Capital -- -- 44,257 -- --
Undistributed Cash Flow from
Prior Year Operations 3,672 -- 15,412
---------- ---------- ----------- ----------- -----------
Cash Generated (Deficiency) after
Cash Distributions $ (3,672) $ 5,659 $ (59,669) $ 15,412 $ (33,006)
Special Items (not including sales
and financing):
Source of Funds:
General Partner Contributions -- -- -- -- --
Increase in Limited Partner Contributions -- -- -- 5,589,786 11,416,234
---------- ---------- ----------- ----------- -----------
$ -- $ 5,659 $ (59,699) $ 5,605,198 $11,383,228
Use of Funds:
Sales Commissions and Offering Expenses -- -- 764,599 1,377,645
Return of Original Limited Partner's
Investment -- -- -- 100
Property Acquisitions and Deferred
Project Costs (225) (233,501) 2,366,507 7,755,116 4,181,338
---------- ---------- ----------- ----------- -----------
Cash Generated (Deficiency) after Cash
Distributions and Special Items $ (3,897) $ (227,842) $(2,426,206) $(2,914,517) $ 5,824,145
========== ========== =========== =========== ===========
Net Income and Distributions Data per
$1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 71 73 58 29 0
- Operations Class B Units (378) (272) (180) (54) (65)
Capital Gain (Loss) 0 0 0
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 69 69 55 36 --
- Operations Class B Units (260) (246) (181) (58) (21)
Capital Gain (Loss) -- -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 65 63 46 10 --
- Return of Capital Class A Units -- -- -- -- --
- Return of Capital Class B Units -- -- -- -- --
Source (on Cash Basis)
- Operations Class A Units 65 63 43 10 --
- Return of Capital Class A Units -- -- 3 -- --
- Operations Class B Units -- -- -- -- --
Amount (in Percentage Terms) Remaining
Invested in Program Properties at the
end of the Last Year Reported in the Table 100%
- -----------------------------------------
</TABLE>
(1) Includes $19,125 in equity in loss of joint ventures and $77,765 from
investment of reserve funds in 1992; $207,234 in equity in earnings of
joint ventures and $250,979 from investment of reserve funds in 1993;
$592,902 in equity in earnings of joint ventures and $64,056 from
investment of reserve funds in 1994; $745,173 in equity in earnings of
joint ventures and $19,451 from investment of reserve funds in 1995; and
$577,128 in equity in earnings of joint ventures and $13,711 from
investment of reserve funds in 1996. At December 31, 1996, the leasing
status of all developed property was 92%.
(2) Includes partnership administrative expenses.
(3) Included in equity in earnings of joint ventures in gross revenue is
depreciation and amortization of $100,796 for 1993, $324,578 for 1994,
$440,333 for 1995 and $591,390 for 1996.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated as follows: $(17,908) to Class
B Limited Partners and $(181) to General Partners for 1992; $442,135 to
Class A Limited Partners, $(87,868) to Class B Limited Partners and $732 to
General Partners for 1993; $879,232 to Class A Limited Partners, $(316,460)
to Class B Limited Partners and $(1,051) to General Partners for 1994;
$1,124,203 to Class A Limited Partners and $(434,564) to Class B Limited
Partners and $0 for 1995; and $1,095,296 to Class A Limited Partners and
$(589,646) to Class B Limited Partners for 1996.
A-5
<PAGE>
TABLE III
(UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND VI, L.P.
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
------------ -------------- ------------- ------------- ----
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $ 675,782 $ 1,002,567 $ 819,535 $ 82,723 N/A
Profit on Sale of Properties -- -- -- --
Less: Operating Expenses/(2)/ 80,479 94,489 112,389 46,608
Depreciation and Amortization/(3)/ 6,250 6,250 6,250 4,687
---------- ------------ ----------- -----------
Net Income GAAP Basis/(4)/ $ 589,053 $ 901,828 $ 700,896 $ 31,428
========== ============ =========== ===========
Taxable Loss: Operations $ 809,389 $ 916,531 $ 667,682 $ 31,428
========== ============ =========== ===========
Cash Generated (Used By):
Operations (2,716) 278,728 276,376 (2,478)
Joint Ventures 1,044,891 766,212 203,543 --
---------- ------------ ----------- -----------
$1,042,175 $ 1,044,940 $ 479,919 $ (2,478)
Less Cash Distributions to Investors:
Operating Cash Flow 1,042,175 1,044,940 245,800 --
Return of Capital 125,314 -- -- --
Undistributed Cash Flow from Prior Year Operations 18,027 216,092 -- --
---------- ------------ ----------- -----------
Cash Generated (Deficiency) after Cash Distributions $ (143,341) $ (216,092) $ 234,119 $ (2,478)
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions -- -- -- --
Increase in Limited Partner Contributions -- -- 12,163,461 12,836,539
---------- ------------ ----------- -----------
$ -- $ -- $12,397,580 $12,834,061
Use of Funds:
Sales Commissions and Offering Expenses -- 1,776,909 1,781,724
Return of Original Limited Partner's Investment -- -- 100
Property Acquisitions and Deferred Project Costs 234,924 10,721,376 5,912,454 3,856,239
---------- ------------ ----------- -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $ (378,265) $(10,937,468) $ 4,708,217 $ 7,195,998
========== ============ =========== ===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 59 57 43 9
- Operations Class B Units (160) (60) (12) (5)
Capital Gain (Loss) -- -- -- 0
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 56 56 41 1
- Operations Class B Units (99) (51) (22) --
Capital Gain (Loss) -- -- -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 56 57 14 --
- Return of Capital Class A Units -- 4 -- --
- Return of Capital Class B Units -- -- -- --
Source (on Cash Basis)
- Operations Class A Units 50 61 14 --
- Return of Capital Class A Units 6 -- -- --
- Operations Class B Units --
Amount (in Percentage Terms) Remaining Invested in
Program Properties at the end of the Last Year Reported in
the Table 100%
- ------------------------------------
</TABLE>
(1) Includes $3,436 in equity in loss of joint ventures and $86,159 from
investment of reserve funds in 1993, $285,711 in equity in earnings of
joint ventures and $533,824 from investment of reserve funds in 1994,
$681,033 in equity in earnings of joint ventures and $321,534 from
investment of reserve funds in 1995 and $607,214 in equity in earnings of
joint ventures and $68,568 from investment of reserve funds in 1996. At
December 31, 1996, the leasing status was 93%.
(2) Includes partnership administrative expenses.
(3) Included in equity in loss of joint ventures in gross revenues is
depreciation of $3,436 for 1993, $107,807 for 1994, and $264,866 for 1995
and $648,478 for 1996.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated $39,551 to Class A Limited
Partners, $(8,042) to Class B Limited Partners and $(81) to the General
Partner for 1993; $762,218 to Class A Limited Partners, $(62,731) to Class
B Limited Partners and $1,409 to the General Partners for 1994; $1,172,944
to Class A Limited Partners, $(269,288) to Class B Limited Partners and
$(1,828) to the General Partners for 1995; and $1,234,717 to Class A
Limited Partners, $(645,664) to Class B Limited Partners and $0 to the
General Partners for 1996.
A-6
<PAGE>
TABLE III (UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND VII, L.P.
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
------------ -------------- ------------- ---- ----
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $ 543,291 $ 925,246 $ 286,371 N/A N/A
Profit on Sale of Properties -- --
Less: Operating Expenses/(2)/ 84,265 114,953 78,420
Depreciation and Amortization/(3)/ 6,250 6,250 4,688
--------- ------------ -----------
Net Income GAAP Basis/(4)/ $ 452,776 $ 804,043 $ 203,263
========= ============ ===========
Taxable Income: Operations $ 657,443 $ 812,402 $ 195,067
========= ============ ===========
Cash Generated (Used By):
Operations 20,883 431,728 47,595
Joint Ventures 760,628 424,304 14,243
--------- ------------ -----------
$ 781,511 $ 856,032 $ 61,838
Less Cash Distributions to Investors:
Operating Cash Flow 781,511 856,032 52,195
Return of Capital 10,805 22,064 --
Undistributed Cash Flow from Prior Year Operations -- 9,643 --
--------- ------------ -----------
Cash Generated (Deficiency) after Cash Distributions $ (10,805) $ (31,707) $ 9,643
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions -- --
Increase in Limited Partner Contributions $ -- $ 805,212 $23,374,961
--------- ------------ -----------
$ -- $ 773,505 $23,384,604
Use of Funds:
Sales Commissions and Offering Expenses -- 244,207 3,351,569
Return of Original Limited Partner's Investment -- 100 --
Property Acquisitions and Deferred Project Costs 736,960 14,971,002 4,477,765
--------- ------------ -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $(747,765) $(14,441,804) $15,555,270
========= ============ ===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 62 57 29
- Operations Class B Units (98) (20) (9)
Capital Gain (Loss) --
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 55 55 28
- Operations Class B Units (58) (16) 17
Capital Gain (Loss) -- -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 43 52 7
- Return of Capital Class A Units -- -- --
- Return of Capital Class B Units -- -- --
Source (on Cash Basis)
- Operations Class A Units 42 51 7
- Return of Capital Class A Units 1 1 --
- Operations Class B Units -- -- --
Source (on a Priority Distribution Basis)/(5)/
- Investment income Class A Units 29 30 4
- Return of Capital Class A Units 14 22 3
- Return of Capital Class B Units -- -- --
Amount (in Percentage Terms) Remaining Invested in
Program Properties at the end of the Last Year Reported in
the Table 100%
- ------------------------------------------
</TABLE>
(1) Includes $78,799 in equity in earnings of joint ventures and $207,572 from
investment of reserve funds in 1994, and $403,325 in equity in earnings of
joint ventures and $521,921 from investment of reserve funds in 1995 and
$457,144 in equity in earnings of joint ventures and $86,147 from
investment of reserve funds in 1996. At December 31, 1996, the leasing
status was 90% including developed property in initial lease up.
(2) Includes partnership administrative expenses.
(3) Included in equity in earnings of joint ventures in gross revenues is
depreciation of $25,468 for 1994, $140,533 for 1995 and $605,247 for 1996.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated $233,337 to Class A Limited
Partners, $(29,854) to Class B Limited Partners and $(220) to the General
Partner for 1994; $950,826 to Class A Limited Partners, $(146,503) to Class
B Limited Partners and $(280) to the General Partners for 1995; and
$1,062,605 to Class A Limited Partners, $(609,829) to Class B Limited
Partners and $0 to the General Partners for 1996.
(5) Pursuant to the terms of the partnership agreement, an amount equal to the
cash distributions paid to Class A Limited Partners is payable as priority
distributions out of the first available net proceeds from the sale of
partnership properties to Class B Limited Partners. The amount of cash
distributions paid per Unit to Class A Limited Partners is shown as a
return of capital to the extent of such priority distributions payable to
Class B Limited Partners. As of December 31, 1996, the aggregate amount of
such priority distributions payable to Class B Limited Partners totalled
$659,487.
A-7
<PAGE>
TABLE III
(UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND VIII, L.P.
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
------------ ------------- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $1,057,694 $ 402,428 N/A N/A N/A
Profit on Sale of Properties --
Less: Operating Expenses/(2)/ 114,854 122,264
Depreciation and Amortization/(3)/ 6,250 6,250
---------- -----------
Net Income GAAP Basis/(4)/ $ 936,590 $ 273,914
========== ===========
Taxable Income: Operations $1,001,974 $ 404,348
========== ===========
Cash Generated (Used By):
Operations 623,268 204,790
Joint Ventures 279,984 20,287
---------- -----------
$ 903,252 $ 225,077
Less Cash Distributions to Investors:
Operating Cash Flow 903,252 --
Return of Capital 2,443 --
Undistributed Cash Flow from Prior Year Operations 222,077 --
---------- -----------
Cash Generated (Deficiency) after Cash Distributions $ (227,520) $ 225,077
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions -- --
Increase in Limited Partner Contributions/(5)/ 1,898,147 30,144,542
---------- -----------
$1,670,627 $30,369,619
Use of Funds:
Sales Commissions and Offering Expenses 464,760 4,310,028
Return of Original Limited Partner's Investment -- --
Property Acquisitions and Deferred Project Costs 7,931,566 6,618,273
---------- -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $6,725,699 $19,441,318
========== ===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 46 28
- Operations Class B Units (47) (3)
Capital Gain (Loss)
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 46 17
- Operations Class B Units (33) (3)
Capital Gain (Loss) --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 43 --
- Return of Capital Class A Units -- --
- Return of Capital Class B Units -- --
Source (on Cash Basis)
- Operations Class A Units 32 --
- Return of Capital Class A Units 11 --
- Operations Class B Units -- --
Source (on a Priority Distribution Basis)/(5)/
- Investment Income Class A Units 33 --
- Return of Capital Class A Units 10 --
- Return of Capital Class B Units -- --
Amount (in Percentage Terms) Remaining Invested in Program
Properties at the end of the Last Year Reported in the Table 100%
- --------------------------------
</TABLE>
(1) Includes $28,377 in equity in earnings of joint ventures and $374,051 from
investment of reserve funds in 1995 and $241,819 in equity in earnings of
joint ventures and $815,875 from investment of reserve funds in 1996. At
December 31, 1996, the leasing status was 93% including developed property
in initial lease up.
(2) Includes partnership administrative expenses.
(3) Included in equity in earnings of joint ventures in gross revenues is
depreciation of $14,058 for 1995 and $265,259 for 1996.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated $294,221 to Class A Limited
Partners, $(20,104) to Class B Limited Partners and $(203) to the General
Partners for 1995; and $1,207,540 to Class A Limited Partners, $(270,653)
to Class B Limited Partners and $(297) to the General Partners for 1996.
(5) Pursuant to the terms of the partnership agreement, an amount equal to the
cash distributions paid to Class A Limited Partners is payable as priority
distributions out of the first available net proceeds from the sale of
partnership properties to Class B Limited Partners. The amount of cash
distributions paid per Unit to Class A Limited Partners is shown as a
return of capital to the extent of such priority distributions payable to
Class B Limited Partners. As of December 31, 1996, the aggregate amount of
such priority distributions payable to Class B Limited Partners totalled
$250,776.
A-8
<PAGE>
TABLE III
(UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND IX, L.P.
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
------------- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Gross Revenues/(1)/ $ 406,891 N/A N/A N/A N/A
Profit on Sale of Properties --
Less: Operating Expenses/(2)/ 101,885
Depreciation and Amortization/(3)/ 6,250
-----------
Net Income GAAP Basis/(4)/ $ 298,756
===========
Taxable Income: Operations $ 304,552
===========
Cash Generated (Used By):
Operations $ 151,150
Joint Ventures --
-----------
$ 151,150
Less Cash Distributions to Investors:
Operating Cash Flow 149,425
-----------
Cash Generated (Deficiency) after Cash Distributions $ 1,725
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions --
Increase in Limited Partner Contributions 35,000,000
-----------
$35,001,725
Use of Funds:
Sales Commissions and Offering Expenses 4,900,321
Return of Original Limited Partner's Investment --
Property Acquisitions and Deferred Project Costs 6,544,019
-----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $23,557,385
===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 28
- Operations Class B Units (11)
Capital Gain (Loss) --
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 26
- Operations Class B Units (48)
Capital Gain (Loss) --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 13
- Return of Capital Class A Units --
- Return of Capital Class B Units --
Source (on Cash Basis)
- Operations Class A Units 13
- Return of Capital Class A Units --
- Operations Class B Units --
Source (on a Priority Distribution Basis)/(5)/
- Investment Income Class A Units 10
- Return of Capital Class A Units 3
- Return of Capital Class B Units --
Amount (in Percentage Terms) Remaining Invested in
Program Properties at the end of the Last Year Reported in
the Table 100%
- ---------------------------------------------
</TABLE>
(1) Includes $23,077 in equity in earnings of joint ventures and $383,884 from
investment of reserve funds in 1996. At December 31, 1996, the leasing
status was 100% including developed property in initial lease up.
(2) Includes partnership administrative expenses.
(3) Included in equity in earnings of joint ventures in gross revenues is
depreciation of $25,286 for 1996.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated $330,270 to Class A Limited
Partners, $(31,220) to Class B Limited Partners and $(294) to the General
Partners for 1996.
(5) Pursuant to the terms of the partnership agreement, an amount equal to the
cash distributions paid to Class A Limited Partners is payable as priority
distributions out of the first available net proceeds from the sale of
partnership properties to Class B Limited Partners. The amount of cash
distributions paid per Unit to Class A Limited Partners is shown as a
return of capital to the extent of such priority distributions payable to
Class B Limited Partners. As of December 31, 1996, the aggregate amount of
such priority distributions payable to Class B Limited Partners totalled
$36,355.
A-9
<PAGE>
WELLS REAL ESTATE FUND X, L.P.
AND WELLS REAL ESTATE FUND XI, L.P.
SUPPLEMENT NO. 2 DATED JUNE 17, 1997
TO
THE PROSPECTUS DATED DECEMBER 31, 1996
This document supplements, and should be read in conjunction with, the
Prospectus of Wells Real Estate Fund X, L.P. and Wells Real Estate Fund XI, L.P.
dated December 31, 1996, as supplemented and amended by Supplement No. 1 dated
March 27, 1997 (collectively, the "Prospectus"). Unless otherwise defined
herein, capitalized terms used in this Supplement shall have the same meanings
as in the Prospectus.
The purpose of this Supplement is to describe the following:
(i) The status of the offering of units of limited partnership interest
(the "Units") in Wells Real Estate Fund X, L.P. ("Wells Fund X");
(ii) The Contract entered into recently between Fund IX and Fund X
Associates (the "Fund IX-X Joint Venture") and Wells Development Corporation for
the acquisition of an office building to be developed on certain real property
located in Oklahoma City, Oklahoma (the "Oklahoma City Project"); and
(iii) Revisions to the "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS" section of the Prospectus.
STATUS OF THE OFFERING
Pursuant to the Prospectus, the offering of Units in Wells Fund X commenced
December 31, 1996. Wells Fund X commenced operations on February 4, 1997, upon
the acceptance of subscriptions for the Minimum Offering of $1,250,000 (125,000
Units). As of May 31, 1997, Wells Fund X had raised a total of $9,642,115 in
offering proceeds (964,211 Units), comprised of $7,836,665 raised from the sale
of Class A Status Units (783,666 Class A Status Units) and $1,805,450 raised
from the sale of Class B Status Units (180,545 Class B Status Units).
FORMATION OF THE FUND IX-X JOINT VENTURE AND STATUS OF THE KNOXVILLE PROJECT
As described in Supplement No. 1 dated March 27, 1997, Wells Fund X
previously formed the Fund IX-X Joint Venture, a joint venture between Wells
Fund X and Wells Real Estate Fund IX, L.P., a Georgia limited partnership
("Wells Fund IX"). Wells Fund IX is a public real estate program previously
sponsored by the General Partners having investment objectives substantially
identical to those of Wells Fund X. The Fund IX-X Joint Venture was originally
formed for the purpose of the development and construction of a three-story
office building located in Knox County, near Knoxville, Tennessee (the
"Knoxville Project"). The Knoxville Project is currently approximately 35%
completed with construction on schedule and an anticipated completion date of on
or about December 15, 1997.
As of May 31, 1997, Wells Fund IX had made capital contributions to the
Fund IX-X Joint Venture totaling approximately $2,392,202, while Wells Fund X
has not yet made any capital contributions to the Fund IX-X Joint Venture. It
is estimated that approximately $5,407,798 will be required for the completion
of the Knoxville Project, which is currently anticipated to be funded through
capital contributions in the amount of $3,900,000 from Wells Fund X and
$1,507,798 from Wells Fund IX, resulting in ultimate percentage ownership
interests in the Fund IX-X Joint Venture of approximately 50% for each
partnership.
DESCRIPTION OF THE OKLAHOMA CITY PROJECT
Contract with Wells Development. On May 30, 1997, the Fund IX-X Joint
-------------------------------
Venture entered into an Agreement for the Purchase and Sale of Real Property
(the "Contract") with Wells Development Corporation ("Wells Development"), an
Affiliate of the General Partners, for the acquisition of a one-story office
building to
<PAGE>
be developed on certain real property located in Oklahoma City, Oklahoma (the
"Oklahoma City Project"). The Contract provides that the Fund IX-X Joint
Venture will purchase the Oklahoma City Project for a purchase price of
$5,200,000, provided, that the Contract further states that it is the intent of
the parties that Wells Development not make a profit or incur a loss in
connection with the transaction and, accordingly, the Contract contains a
provision for an adjustment to the purchase price which will have the effect of
prohibiting Wells Development from making any profit or incurring any loss on
the sale of the Oklahoma City Project to the Fund IX-X Joint Venture.
Pursuant to the terms of the Contract, Wells Fund IX-X has made an earnest
money deposit in the amount of $1,300,000 to Wells Development. The earnest
money deposit paid by the Fund IX-X Joint Venture under the Contract was used by
Wells Development to fund the purchase of the Oklahoma City property, as
described below, and will be used to fund the initial costs of the construction
and development of the Oklahoma City Project. In addition to the earnest money
deposit, Wells Development is obtaining a loan in the amount of $3,900,000 from
NationsBank, N.A. to fund the construction and development of the Oklahoma City
Project (the "Construction Loan"). As set forth below, the Construction Loan
will be paid off upon the sale of the Oklahoma City Project to the Fund IX-X
Joint Venture, and Wells Development will deliver title to the Fund IX-X Joint
Venture debt-free at closing.
It is anticipated that the aggregate of all costs and expenses to be
incurred by Wells Development with respect to the acquisition of the Oklahoma
City property, the planning, design, development, construction and completion of
the building, loan, interest and carrying costs, and the build-out of tenant
improvements under the Lease will total approximately $5,200,000, comprised of
the following expenditures:
<TABLE>
<CAPTION>
Development Budget:
- ------------------
<S> <C>
Land $ 695,636
Construction Contract 2,331,430
Tenant Improvements 857,790
Tenant Work Fee 30,000
Leasing Commissions 330,764
Architectural Fees 184,960
Survey and Engineering Fees 35,500
Development Fee 150,000
Lucent Work Fee 150,000
Landscaping and Irrigation 50,000
Signage 7,500
Appraisal Cost 4,000
Bonding Fees 21,223
Contingency 104,050
----------
Development Budget Total: $4,952,853
Other Costs and Expenses:
- ------------------------
Legal Fees and Closing Costs 58,000
Inspecting Architect's Fees 6,000
Lender's Loan Fees 19,500
Projected Interest Expenses 120,000
Marketing Expenses 17,550
Additional Contingency 26,097
----------
Total Estimated Building Cost: $5,200,000
- -----------------------------
</TABLE>
2
<PAGE>
The foregoing estimated cost of the Oklahoma City Project is based upon an
assumed interest rate on the Construction Loan of 9% per annum and completion of
the Oklahoma City Project and sale to the Fund IX-X Joint Venture by December
31, 1997; however, in the event of substantial increases in the prime interest
rate or substantial delays in the construction of the Oklahoma City Project, or
if for any other reason the cost to complete the construction of the Oklahoma
City Project is higher than anticipated, the purchase price payable by the Fund
IX-X Joint Venture would also increase pursuant to the purchase price adjustment
provisions of the Contract described above.
The Fund IX-X Joint Venture has the right under the Contract to designate
the closing date to be held on or before the first anniversary of the effective
date of the Contract. At closing, Wells Development is required to convey the
Oklahoma City Project pursuant to a limited warranty deed and to transfer and
assign its interest, as landlord, in the Lease described below. It is
anticipated that legal title to the Oklahoma City Project will be held by the
Bank of New York (the "Agent"), as Agent on behalf of the Fund IX-X Joint
Venture in accordance with the terms of the Amended and Restated Custodial
Agency Agreement dated November 30, 1995, between Wells Fund IX and the Agent
and the Custodial Agency Agreement dated June 28, 1996, between Wells Fund X and
the Agent.
The Contract requires Wells Development to cause the Oklahoma City Project
to be constructed in accordance with the plans and specifications and to cause
substantial completion, as defined in the Lease, of the Oklahoma City Project by
no later than July 15, 1998. In the event that Wells Development is not able to
complete the Oklahoma City Project by July 15, 1998, the Fund IX-X Joint Venture
has the right to terminate the Contract and receive a refund of the earnest
money deposit made under the Contract.
The obligation of the Fund IX-X Joint Venture to purchase the Oklahoma City
Project under the Contract is specifically conditioned upon the following items:
(i) that the Oklahoma City Project is substantially completed in accordance with
the plans and specifications and the Development Agreement described below, and
that Lucent Technologies has accepted and taken occupancy of the Oklahoma City
Project for purposes of constructing its tenant improvements in accordance with
the terms of the Lease described below; (ii) that the Fund IX-X Joint Venture
receives an appraisal reflecting that the fair market value of the Oklahoma City
Project equals or exceeds the purchase price to be paid under the Contract;
(iii) that the Fund IX-X Joint Venture receives an environmental site assessment
disclosing no conditions which reveal the presence of any hazardous waste on the
property; (iv) that Lucent Technologies has approved of and consented to the
transfer and assignment of the Lease to the Fund IX-X Joint Venture; (v) that
Wells Development has paid off the Construction Loan described above, and
delivers title to the Fund IX-X Joint Venture debt-free at closing; and (vi)
that the Fund IX-X Joint Venture has available to it on the date of closing
sufficient net proceeds available for investment to fully fund the remaining
balance of the purchase price. In the event that any of the foregoing
conditions are not met on or prior to the date of closing, the Fund IX-X Joint
Venture has the right to terminate the Contract, in which event it would be
entitled to a refund of its earnest money deposit. The obligation of Wells
Development to refund the earnest money deposit is an unsecured obligation of
Wells Development, however, and since Wells Development is a newly formed entity
without substantial assets or operations, it is unlikely that it would have
liquid assets available with which to refund such deposit. Although Wells
Development's obligation to refund the earnest money deposit under the Contract
has been guaranteed by Wells Management Company, Inc., an Affiliated entity
("Wells Management"), Wells Management has no substantial assets other than
contracts for property management and leasing services pursuant to which it is
entitled to receive property management fees on a monthly basis. Accordingly,
there are no assurances that either Wells Development or Wells Management would
be able to refund the entire amount of the earnest money deposit to the Fund IX-
X Joint Venture. (SEE "RISK FACTORS - Acquisition of Properties from Wells
Development Company" contained in Supplement No. 1 dated March 27, 1997.)
On June 9, 1997, Wells Development closed the acquisition of the Oklahoma
City property from W. P. Bill Atkinson Operating Company (the "Seller") for a
purchase price of $695,636. The Seller is not affiliated with Wells
Development, Wells Fund IX, Wells Fund X or the General Partners. In addition,
Wells Development paid legal fees and closing costs totalling approximately
$58,000 in connection with the closing of the acquisition of the
3
<PAGE>
Oklahoma City property. At closing, the Seller was required to pay a 3%
brokerage commission in the amount of $20,869 to an affiliate of the Developer,
defined below, for real estate brokerage services provided on behalf of Wells
Development in connection with the transaction.
In connection with the construction and development of the Oklahoma City
Project, Wells Development has entered into the Development Agreement with the
Developer described below, a fixed-price construction contract with Integra
Construction, Inc. for the construction of the building and has retained the
architectural firm of Smallwood, Reynolds, Stewart, Stewart & Associates, Inc.
as the architect for the Oklahoma City Project. In addition, in order to insure
the contractor's performance under the construction contract, Wells Development
obtained payment and performance bonds from Hartford Fire Insurance Company
requiring the payment of bonding fees in the amount of $21,223.
Location and Description of the Oklahoma City Project. The Oklahoma City
-----------------------------------------------------
Project is located at 14400 Hertz Quail Springs Parkway, Oklahoma City,
Oklahoma. The site consists of approximately 5.3 acres located in the Quail
Springs Office Park in the northwest sector of Oklahoma City. Oklahoma City is
located near the center of the state and is the State Capitol of Oklahoma.
Oklahoma City is currently the 42nd largest metropolitan area in the United
States. The population of the Oklahoma City metropolitan area, which has been
increasing steadily over the past two decades, is currently in excess of
1,000,000.
The site is located approximately ten miles northwest of the central
business district of Oklahoma City. Access is available from Memorial Road on
the south and May Avenue on the east with all access streets being four lane
concrete boulevards with curbs and gutters. The site is currently zoned to
permit the intended development and operation of the Oklahoma City Project as a
commercial office building and has access to all utilities necessary for
development and operation of the property, including water, electricity, natural
gas, sanitary sewer and telephone.
When completed, the Oklahoma City Project will be a one-story office
building containing 57,186 net rentable square feet and 55,017 net useable
square feet. The Oklahoma City Project will be a single story 16-foot high
tilt-up concrete panel building with steel framing and will have a parking area
with a total of 385 paved parking spaces.
Description of the Development Agreement. On May 30, 1997, Wells
----------------------------------------
Development entered into a Development Agreement (the "Development Agreement")
with ADEVCO Corporation, a Georgia corporation (the "Developer"), as the
exclusive development manager to supervise, manage and coordinate the planning,
design, construction and completion of the Oklahoma City Project.
The Developer is an Atlanta based real estate development and management
company formed in 1990 which specializes in the development of office buildings.
The Developer has previously developed or is developing a total of six other
office buildings for Affiliates of the General Partners. In this regard, the
Developer entered into (i) a development agreement with Wells Real Estate Fund
III, L.P. ("Wells Fund III"), a public real estate program previously sponsored
by the General Partners and their Affiliates, for the development of a two-story
office building containing approximately 34,300 rentable square feet located in
Greenville, North Carolina (the "Greenville Project"), (ii) a development
agreement with Fund IV and Fund V Associates, a joint venture between Wells Fund
III and Wells Real Estate Fund IV, L.P., a public real estate program previously
sponsored by the General Partners and their Affiliates, for the development of a
four-story office building located in Jacksonville, Florida containing
approximately 87,600 rentable square feet (the "Jacksonville IBM Project"),
(iii) a development agreement with the Fund VII and Fund VIII Associates, a
joint venture between Wells Real Estate Fund VII, L.P. ("Wells Fund VII") and
Wells Real Estate Fund VIII, L.P. ("Wells Fund VIII"), each a public real estate
program previously sponsored by the General Partners and their Affiliates, for
the development of a two-story office building containing approximately 62,000
rentable square feet located in Alachua County, near Gainesville, Florida (the
"Gainesville Project"), (iv) a development agreement with Fund VI, Fund VII and
Fund VIII Associates, a joint venture among Wells Real Estate Fund VI, L.P., a
public real estate program previously sponsored by the General Partners and
4
<PAGE>
their Affiliates, Wells Fund VII and Wells Fund VIII, for the development of a
four-story office building containing approximately 92,964 rentable square feet
located in Jacksonville, Florida (the "BellSouth Project"), (v) a development
agreement with Fund VIII and Fund IX Associates, a joint venture between Wells
Fund VIII and Wells Fund IX, for the development of a four-story office building
containing approximately 96,750 rentable square feet located in Madison,
Wisconsin (the "Madison Project"), and (iv) a development agreement with the
Fund IX-X Joint Venture for the development of the Knoxville Project. The
Greenville Project was completed on schedule, and International Business
Machines Corporation ("IBM"), which leased approximately 23,312 rentable square
feet of the building, took possession under its lease on April 16, 1991. The
Jacksonville IBM Project was also completed on schedule, and IBM, which leased
approximately 68,100 rentable square feet of the building, took possession under
its lease on June 1, 1993. The Gainesville Project was completed in advance of
schedule, and CH2M Hill, Inc., which leased approximately 50,000 rentable square
feet of the building, took possession under its lease on December 18, 1995. The
BellSouth Project was also completed in advance of schedule, and BellSouth,
which leased approximately 64,558 rentable square feet of the building, took
possession under its lease on May 20, 1996. Construction of the Madison Project
is currently on schedule, with a currently scheduled tenant move-in date of June
19, 1997. As set forth above, construction of the Knoxville Project is
currently on schedule, with an anticipated completion date on or about December
15, 1997.
The President of the Developer is David M. Kraxberger. Mr. Kraxberger has
been in the real estate business for over 17 years. Since 1984, and prior to
becoming President of the Developer, Mr. Kraxberger served as Senior Vice
President of office development for The Oxford Group, Inc., an Atlanta based
real estate company with operations in seven southeastern states. Mr.
Kraxberger holds a Masters Degree in Business Administration from Pepperdine
University in Los Angeles, California, and is a member of the Urban Land
Institute and the National Association of Industrial Office Parks. Mr.
Kraxberger also holds a Georgia real estate license. Pursuant to the terms of a
Guaranty Agreement, Mr. Kraxberger has personally guaranteed the performance of
the Developer under the Development Agreement. Mr. Kraxberger has also
personally guaranteed the performance of the contractor, Integra Construction,
Inc., under the construction contract pursuant to the terms of a separate
Guaranty Agreement. Neither the Developer nor Mr. Kraxberger are affiliated
with Wells Development, Wells Fund IX, Wells Fund X or their General Partners.
The primary responsibilities of the Developer under the Development
Agreement include (i) the supervision, coordination, administration and
management of the work, activities and performance of the architect and the
contractor; (ii) the implementation of a development budget (the "Development
Budget") setting forth an estimate of all expenses and costs to be incurred with
respect to the planning, design, development and construction of the Project;
(iii) the review of all applications for disbursement made under the architect's
agreement and the construction contract; (iv) the supervision and management of
tenant build-out at the Oklahoma City Project; and (v) the negotiation of
contracts with, supervision of the performance of, and review and verification
of applications for payment of the fees, charges and expenses of such design and
engineering professionals, consultants and suppliers as the Developer deems
necessary for the design and construction of the Oklahoma City Project in
accordance with the Development Budget.
The Developer is also performing other services typical of development
managers including, but not limited to, arranging for preliminary site plans,
surveys and engineering plans and drawings, overseeing the selection by the
contractor of major subcontractors and reviewing all applicable building codes,
environmental, zoning and land use laws and other applicable local, state and
federal laws, regulations and ordinances concerning the development, use and
operation of the Oklahoma City Project or any portion thereof. The Developer is
required to advise as to the status of the Oklahoma City Project and submit
monthly reports with respect to the progress of construction, including a
breakdown of all costs and expenses under the Development Budget.
As compensation for the services to be rendered by the Developer under the
Development Agreement, Wells Development will pay a development fee of $150,000.
The fee will be due and payable ratably (on the basis of the percentage of
construction completed) as the construction and development of the Oklahoma City
Project is completed. The Developer will also be paid a "Lucent Work Fee" of
$150,000. The Lucent Work Fee is for
5
<PAGE>
services rendered by the Developer with respect to the supervision and
management of tenant build-out of the premises leased by Lucent Technologies
pursuant to the Lease. The fee is due and payable in one lump sum upon the
completion of the construction of the Project and the tenant improvements under
the Lease.
Pursuant to the terms of the Development Agreement, the Developer has
agreed to use its best efforts to complete the Oklahoma City Project in
accordance with the Development Budget set forth above on page 2 of this
Supplement No. 2. Under the terms of the Development Agreement, the Developer
has agreed that in the event that the total of all of the costs and expenses
which are included as a part of the Development Budget exceeds $4,952,853, the
amount of fees payable to the Developer shall be reduced by the amount of any
such excess. Unless the fees otherwise payable to the Developer are reduced as
set forth above, it is estimated that the total sums due and payable to the
Developer under the Development Agreement will be approximately $300,000.
In the event the Developer should for any reason cease to manage the
development of the Project, Wells Development would have to locate a suitable
successor development manager. No assurances can be given as to whether a
suitable successor development manager could be found, or what the contractual
terms or arrangement with any such successor would be.
Lease with Lucent Technologies. On May 30, 1997, Wells Development entered
------------------------------
into a Lease Agreement (the "Lease") with Lucent Technologies Inc. ("Lucent
Technologies"), pursuant to which Lucent Technologies has agreed to lease all of
the Oklahoma City Project upon completion. At the closing of the sale of the
Oklahoma City Project to the Fund IX-X Joint Venture, Wells Development is
required to transfer and assign its interest in the Lease to the Fund IX-X Joint
Venture.
Lucent Technologies is a telecommunications company which was spun off by
AT&T in April of 1996. The company is in the business of designing, developing
and marketing communications systems and technologies ranging from microchips to
whole networks and is one of the world's leading designers, developers and
manufacturers of telecommunications system software and products. For the nine-
month period ended September 30, 1996, Lucent Technologies, a public company
traded on the New York Stock Exchange, reported net income of approximately $224
million dollars on revenues of in excess of $15 billion dollars. As of March
31, 1997, Lucent Technologies had total assets of in excess of $22 billion
dollars and a net worth of in excess of $3.5 billion dollars.
The initial term of the Lease will be ten years to commence (the "Rental
Commencement Date") on the latter of (a) January 1, 1998, or (b) the earlier of
(i) sixty days after substantial completion of the Oklahoma City Project, or
(ii) the date upon which Lucent Technologies takes possession and occupies any
portion of the premises for business purposes. Lucent Technologies has the
option to extend the initial term of the Lease for two additional five year
periods. Each extension option must be exercised by giving written notice to
the landlord at least twelve months prior to the expiration date of the then
current lease term.
The annual base rent payable under the Lease will be $508,383 payable in
equal monthly installments of $42,365 during the first five years of the initial
lease term, and $594,152 payable in equal monthly installments of $49,513 during
the second five years of the initial lease term. The annual base rent for each
extended term under the lease will be based upon the fair market rent then being
charged by landlords under new leases of office space in the metropolitan
Oklahoma City market for similar space in a building of comparable quality with
comparable amenities. The Lease provides that if the parties cannot agree upon
the appropriate fair market value rate, the rate will be established by real
estate appraisers.
Under the Lease, the Fund IX-X Joint Venture, as landlord, will be
responsible for (a) all maintenance, repairs and replacements to the structural
components of the building, including without limitation, the roof, exterior
walls, bearing walls, support beams, foundations, columns, exterior doors,
windows, skylights and lateral support, and (b) for the portion of the Lease
term ending on the first anniversary of the Rental Commencement Date, all
maintenance, repairs and replacements to the parking area surrounding the
Oklahoma City Project including lighting
6
<PAGE>
systems for the parking area. Under the Lease, Lucent Technologies will be
responsible for the payment of all property taxes, operating expenses and other
repair and maintenance work relating to the Oklahoma City Project. Lucent
Technologies is also required to reimburse the landlord the cost of casualty
insurance for the property.
Under the Lease, the landlord is responsible for a construction allowance
of $857,790 (calculated at the rate of $15 per rentable square foot), which is
anticipated to be funded by Wells Development prior to the sale of the Oklahoma
City Project to the Fund IX-X Joint Venture and is included as a portion of the
purchase price to be paid for the Oklahoma City Project.
Under the Lease, Lucent Technologies also has a one-time option to
terminate the Lease on the seventh anniversary of the Rental Commencement Date,
which is exercisable by written notice to the landlord at least twelve months in
advance of such seventh anniversary. If Lucent Technologies elects to exercise
its option to terminate the Lease, Lucent Technologies would be required to pay
a termination payment intended to compensate the landlord for the present value
of funds expended as construction allowance and leasing commissions relating to
the Lease, amortized over and attributable to the remaining lease term, and a
rental payment equal to approximately 18 months of monthly rental payment. It
is currently anticipated that the termination payment required to be paid by
Lucent Technologies, in the event it exercises its option to terminate the Lease
on the seventh anniversary, would be approximately $1,338,903 based upon certain
assumptions.
In addition, Lucent Technologies has a one-time option under the Lease to
reduce the size of its leased premises by 15,000 square feet of useable area
effective the last day of the month which is the second anniversary of the
Rental Commencement Date. Such option to reduce the leased premises is
exercisable by providing at least 180 days prior written notice to the landlord
and paying the landlord a reduction payment equal to $750,000 on the effective
date of such reduction.
There are no assurances that the Fund IX-X Joint Venture will be able to
attract or obtain suitable replacement tenants for the Oklahoma City Project
upon the expiration of the Lease or upon the seventh anniversary of the Lease if
Lucent Technologies elects to exercise its option to terminate the Lease or for
the unleased portion of the Oklahoma City Project in the event that Lucent
Technologies exercises its option to reduce the size of its leased premises.
The Lease provides that the landlord is required to cause the Oklahoma City
Project to be substantially completed as soon as practical under the
circumstances with a goal of achieving substantial completion on or before
November 15, 1997 (subject to force majeure and any delays caused by the
tenant). If substantial completion has not occurred on or before December 15,
1997 (extended on a day-to-day basis for delays due to force majeure or delays
caused by the tenant), the tenant's sole right and remedy shall be that the
fixed rent payable under the Lease will be abated one day for each day of delay
in the occurrence of substantial completion (excluding delays due to force
majeure and delays caused by the tenant). If for any reason whatsoever (other
than delays caused by the tenant), and including delays caused by force majeure,
substantial completion of the Oklahoma City Project does not occur by July 15,
1998, Lucent Technologies has the right to terminate the Lease upon ten days
written notice to the landlord. In such event, the Fund IX-X Joint Venture would
not be required to purchase the Oklahoma City Project from Wells Development,
and Wells Development would be required to refund the earnest money deposit
described above; however, Wells Development is a newly formed entity without
substantial assets, and there is no assurance that the Fund IX-X Joint Venture
would be able to collect a refund of the entire amount of its earnest money
deposit under such circumstances. As of the date hereof, the General Partners
are advised by the Developer that construction of the Oklahoma City Project is
reasonably anticipated to be completed by December 15, 1997.
In connection with the execution of the Lease, Wells Development entered
into agreements with each of two real estate brokers, one of which is a firm
affiliated with the Developer, for the payment of commissions in connection with
services rendered in procuring the Lease. The commission agreements require
Wells Development to pay a total of $330,764 in leasing commissions, $110,255 of
which is payable to a firm affiliated with the Developer. One-half of the
leasing commissions were paid by Wells Development simultaneously with the
closing
7
<PAGE>
of the acquisition of the Oklahoma City property, with the remainder of the
leasing commissions to be funded by Wells Development prior to the sale of the
Oklahoma City Project to the Fund IX-X Joint Venture. The leasing commissions
relating to the Lease are included as a portion of the purchase price to be paid
for the Oklahoma City Project by the Fund IX-X Joint Venture. Neither broker is
affiliated with Wells Development, Wells Fund IX, Wells Fund X or their General
Partners.
Property Management Fees. Following construction and completion of the
------------------------
Project, property management and leasing services will be performed by Wells
Management Company, Inc. (the "Property Manager"), a Georgia corporation
affiliated with the General Partners. As compensation for its services, it is
anticipated that the Property Manager will receive fees equal to 3% of the gross
revenues for property management services and 3% of the gross revenues for
leasing services with respect to the Oklahoma City Project. In addition, the
Property Manager will receive a one-time initial lease-up fee relating to the
Lease equal to the first month's rent payable under the Lease.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The information contained on page 53 of the Prospectus in the "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS"
section of the Prospectus is revised as of the date of this Supplement by
deletion of the first paragraph of that section and insertion of the following
paragraph in lieu thereof:
Wells Real Estate Fund X, L.P. ("Wells Fund X") commenced operations on
February 4, 1997, upon the acceptance of subscriptions for the Minimum Offering
of $1,250,000 (125,000 Units). As of May 31, 1997, Wells Fund X had raised a
total of $9,642,115 in offering proceeds (964,211 Units), comprised of
$7,836,665 raised from the sale of Class A Status Units (783,666 Class A Status
Units) and $1,805,450 raised from the sale of Class B Status Units (180,545
Class B Status Units). After payment of $385,685 in Acquisition and Advisory
Fees, payment of $1,446,317 in selling commissions and organizational and
offering expenses, as of May 31, 1997, Wells Fund X was holding net offering
proceeds of $7,810,113 available for investment in properties, $3,900,000 of
which is currently reserved for the completion of the Knoxville Project.
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Items 30 through 34 of Part II are incorporated by reference to the Registrant's
Registration Statement, as amended to date, Commission File No. 333-7979.
Item 35 Financial Statements and Exhibits.
---------------------------------
(a) Financial Statements:
--------------------
The following financial statements of Wells Real Estate Fund X,
L.P. are included in the Prospectus:
Audited Balance Sheet
(1) Independent Auditor's Report,
(2) Balance Sheet as of July 31, 1996, and
(3) Notes to Balance Sheet.
Unaudited Balance Sheet
(1) Balance Sheet as of September 30, 1996,
(2) Notes to Balance Sheet.
The following financial statements of Wells Real Estate Fund X,
L.P. are included in Supplement No. 1 to the Prospectus:
Audited Balance Sheet
(1) Independent Auditor's Report,
(2) Balance Sheet as of December 31, 1996 and 1995, and
(3) Notes to Balance Sheets.
The following financial statements of Wells Real Estate Fund XI,
L.P. are included in the Prospectus:
Audited Balance Sheet
(1) Independent Auditor's Report,
(2) Balance Sheet as of July 31, 1996, and
(3) Notes to Balance Sheet.
Unaudited Balance Sheet
(1) Balance Sheet as of September 30, 1996,
(2) Notes to Balance Sheet.
The following financial statements of Wells Real Estate Fund XI,
L.P. are included in Supplement No. 1 to the Prospectus:
Audited Balance Sheet
(1) Independent Auditor's Report,
(2) Balance Sheet as of December 31, 1996 and 1995, and
(3) Notes to Balance Sheets.
The following financial statements of Wells Partners, L.P. are
included in the Prospectus:
II-1
<PAGE>
Audited Financial Statements
(1) Independent Auditor's Reports,
(2) Balance Sheets as of December 31, 1995 and 1994,
(3) Statements of Operations for the years ended December
31, 1995 and 1994,
(4) Statements of Partners' Capital for the years ended
December 31, 1995 and 1994,
(5) Statements of Cash Flows for the years ended December
31, 1995 and 1994, and
(6) Notes to Financial Statements.
Unaudited Financial Statements
(1) Balance Sheets as of September 30, 1996 and December
31, 1995,
(2) Statements of Operations for the nine months ended
September 30, 1996 and 1995,
(3) Statements of Partners' Capital for the nine months
ended September 30, 1996 and 1995,
(4) Statements of Cash Flows for the nine months ended
September 30, 1996 and 1995, and
(5) Notes to Financial Statements.
The following financial statements of Wells Partners, L.P. are
included in Supplement No. 1 to the Prospectus:
Audited Financial Statements
(1) Independent Auditor's Reports,
(2) Balance Sheets as of December 31, 1996 and 1995,
(3) Statements of Operations for the years ended December
31, 1996 and 1995,
(4) Statements of Partners' capital for the years ended
December 31, 1996 and 1995,
(5) Statements of Cash Flows for the years ended December
31, 1996 and 1995, and
(6) Notes to Financial Statements.
The following financial statements of Wells Capital, Inc. are
included in the Prospectus:
Audited Financial Statements
(1) Independent Auditor's Reports,
(2) Balance Sheets as of December 31, 1995 and 1994,
(3) Statements of Earnings for the years ended December 31,
1995 and 1994,
(4) Statements of Stockholder's Equity for the years ended
December 31, 1995 and 1994,
(5) Statements of Cash Flows for the years ended December
31, 1995 and 1994, and
(6) Notes to Financial Statements.
II-2
<PAGE>
Unaudited Financial Statements
(1) Balance Sheets as of September 30, 1996 and December
31, 1995,
(2) Statements of Earnings for the nine months ended
September 30, 1996 and 1995,
(3) Statements of Stockholders' Equity for the nine months
ended September 30, 1996 and 1995,
(4) Statements of Cash Flows for the nine months ended
September 30, 1996 and 1995, and
(5) Notes to Financial Statements.
The following financial statements of Wells Capital, Inc. are
included in Supplement No. 1 to the Prospectus:
Audited Financial Statements
(1) Independent Auditor's Reports,
(2) Balance Sheets as of December 31, 1996 and 1995,
(3) Statements of Earnings for the years ended December 31,
1996 and 1995,
(4) Statements of Stockholders' Equity for the years ended
December 31, 1996 and 1995,
(5) Statements of Cash Flows for the years ended December
31, 1996 and 1995, and
(6) Notes to Financial Statements.
(b) Exhibits (See Exhibit Index):
----------------------------
Exhibit No. Description
- ----------- -----------
1/*/ Form of Dealer Manager Distribution Agreement between Registrant and
Wells Investment Securities, Inc.
/*/ Previously filed in the Registrant's Form S-11 Registration Statement,
Commission File No. 333-7979, as amended to date.
3(a) Form of Amended and Restated Agreement of Limited Partnership of Wells
Real Estate Fund X/XI, L.P. (included as Exhibit B to Prospectus)
3(b)/*/ Certificate of Limited Partnership of Wells Real Estate Fund X, L.P.
dated June 20, 1996
3(c)/*/ Certificate of Limited Partnership of Wells Real Estate Fund XI, L.P.
dated June 20, 1996
4 Form of Subscription Agreement and Subscription Agreement Signature
Page (included as Exhibit C to Prospectus)
5(a)/*/ Opinion of Holland & Knight regarding the legality of the securities
of Wells Real Estate Fund X, L.P. to be offered
5(b)/*/ Opinion of Holland & Knight regarding the legality of the securities
of Wells Real Estate Fund XI, L.P. to be offered
8/*/ Opinion of Holland & Knight regarding tax matters
10(a)/*/ Escrow Agreement between Registrant and The Bank of New York, as
amended by Amendment No. 1
II-3
<PAGE>
10(b)/*/ New York Escrow Agreement between Registrant and The Bank of New York,
as amended by Amendment No. 1
10(c)/*/ Pennsylvania Escrow Agreement between Registrant and The Bank of New
York, as amended by Amendment No. 1
10(d)/*/ Form of Leasing and Tenant Coordinating Agreement between Registrant
and Wells Management Company, Inc.
10(e)/*/ Form of Management Agreement between Registrant and Wells Management
Company, Inc.
10(f)/*/ Custodial Agency Agreement between Registrant and The Bank of New
York
10(g)/*/ Joint Venture Agreement of Fund IX and X Associates, dated March 20,
1997, between Wells Real Estate Fund IX, L.P. and Wells Real Estate
Fund X, L.P.
10(h)/**/ Lease Agreement, dated December 10, 1996, between Wells Real Estate
Fund IX, L.P. and ABB Flakt, Inc.
10(i)/**/ Development Agreement, dated December 10, 1996, between Wells
Real Estate Fund IX, L.P. and ADEVCO Corporation
10(j)/**/ Owner-Contractor Agreement, dated November 1, 1996, between Wells
Real Estate Fund IX, L.P. and Integra Construction, Inc.
10(k) Agreement for the Purchase and Sale of Real Property, dated May 30,
1997, between Fund IX and Fund X Associates and Wells Development
Corporation
10(l) Net Lease Agreement, dated May 30, 1997, between Wells Development
Corporation and Lucent Technologies Inc.
10(m) Development Agreement, dated May 30, 1997, between Wells Development
Corporation and ADEVCO Corporation
23(a)/*/ Consent of Holland & Knight (included in Exhibits 5(a), 5(b) and 8)
23(b) Consent of KPMG Peat Marwick LLP - Wells Partners, L.P.
23(c) Consent of KPMG Peat Marwick LLP - Wells Capital, Inc.
23(d) Consent of Arthur Andersen LLP - Wells Real Estate Fund X, L.P.
23(e) Consent of Arthur Andersen LLP - Wells Real Estate Fund XI, L.P.
23(f) Consent of Arthur Andersen LLP - Wells Partners, L.P.
23(g) Consent of Arthur Andersen LLP - Wells Capital, Inc.
Items 36 and 37 are incorporated by reference to the Registrant's Registration
Statement, as amended to date, Commission File No. 333-7979.
- -------------------------
/*/ Previously filed in the Registrant's Form S-11 Registration Statement,
Commission file No. 333-7979, as amended to date.
/**/ Previously filed in Post-Effective Amendment No. 13 to Form S-11
Registration Statement of Wells Real Estate Fund VIII, L.P. and Wells Real
Estate Fund IX, L.P. on December 27, 1996, Registration No. 33-83852.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-11 and has duly caused this Post-Effective
Amendment No. 2 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, and State of
Georgia, on the 16th day of June, 1997.
WELLS REAL ESTATE FUND X, L.P.
(Registrant)
By: Wells Partners, L.P.
General Partner
By: Wells Capital, Inc.
General Partner
By: /s/ Leo F. Wells, III
----------------------------------------
Leo F. Wells, III
President
By: /s/ Leo F. Wells, III
-----------------------------------------------
Leo F. Wells, III
General Partner
WELLS REAL ESTATE FUND XI, L.P.
(Registrant)
By: Wells Partners, L.P.
General Partner
By: Wells Capital, Inc.
General Partner
By: /s/ Leo F. Wells, III
---------------------------------------
Leo F. Wells, III
President
By: /s/ Leo F. Wells, III
--------------------------------
Leo F. Wells, III
General Partner
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment No. 2 to Registration Statement has been signed by the
following person in the capacity and on the date indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Leo F. Wells, III President (Chief Executive Officer), June 16, 1997
- ---------------------- Treasurer (Chief Financial Officer)
Leo F. Wells, III and Sole Director of Wells Capital,
Inc., the sole general partner of
Wells Partners, L.P.
II-6
<PAGE>
EXHIBIT INDEX
-------------
Sequential
Exhibit No.
- ----------------
1/*/ Form of Dealer Manager Distribution Agreement between
Registrant and Wells Investment Securities, Inc.
3(a) Form of Amended and Restated Agreement of Limited Partnership
of Wells Real Estate Fund X/XI, L.P. (included as Exhibit B to
Prospectus)
3(b)/*/ Certificate of Limited Partnership of Wells Real Estate Fund
X, L.P. dated June 20, 1996
3(c)/*/ Certificate of Limited Partnership of Wells Real Estate Fund
XI, L.P. dated June 20, 1996
4 Form of Subscription Agreement and Subscription Agreement
Signature Page (included as Exhibit C to Prospectus)
5(a)/*/ Opinion of Holland & Knight regarding the legality of the
securities of Wells Real Estate Fund X, L.P. to be offered
5(b)/*/ Opinion of Holland & Knight regarding the legality of
securities of Wells Real Estate Fund XI, L.P. to be offered
8/*/ Opinion of Holland & Knight regarding tax matters
10(a)/*/ Escrow Agreement between Registrant and The Bank of New York,
as amended by Amendment No. 1
10(b)/*/ New York Escrow Agreement between Registrant and The Bank of
New York, as amended by Amendment No. 1
10(c)/*/ Pennsylvania Escrow Agreement between Registrant and The Bank
of New York, as amended by Amendment No. 1
10(d)/*/ Form of Leasing and Tenant Coordinating Agreement between
Registrant and Wells Management Company, Inc.
10(e)/*/ Form of Management Agreement between Registrant and Wells
Management Company, Inc.
10(f)/*/ Custodial Agency Agreement between Registrant and The Bank of
New York
10(g)/*/ Joint Venture Agreement of Fund IX and X Associates, dated
March 20, 1997, between Wells Real Estate Fund IX, L.P. and
Wells Real Estate Fund X, L.P.
10(h)/**/ Lease Agreement, dated December 10, 1996, between Wells Real
Estate Fund IX, L.P. and ABB Flakt, Inc.
10(i)/**/ Development Agreement, dated December 10, 1996, between Wells
Real Estate Fund IX, L.P. and ADEVCO Corporation
10(j)/**/ Owner-Contractor Agreement, dated November 1, 1996, between
Wells Real Estate Fund IX, L.P. and Integra Construction, Inc.
10(k) Agreement for the Purchase and Sale of Real Property, dated
May 30, 1997, between Fund IX and Fund X Associates and Wells
Development Corporation
10(l) Net Lease Agreement, dated May 30, 1997, between Wells
Development Corporation and Lucent Technologies Inc.
10(m) Development Agreement, dated May 30, 1997, between Wells
Development Corporation and ADEVCO Corporation
23(a)/*/ Consent of Holland & Knight (included in Exhibits 5(a), 5(b)
and 8)
23(b) Consent of KPMG Peat Marwick LLP - Wells Partners, L.P.
- ----------------------
/*/ Previously filed in the Registrant's Registration Statement, Commission
File No. 333-7979, on July 11, 1996.
/**/ Previously filed in Post-Effective Amendment No. 13 to Form S-11
Registration Statement of Wells Real Estate Fund VIII, L.P. and Wells Real
Estate Fund IX, L.P. on December 27, 1996, Registration No. 33-83852.
<PAGE>
23(c) Consent of KPMG Peat Marwick LLP - Wells Capital, Inc.
23(d) Consent of Arthur Andersen LLP - Wells Real Estate Fund X,
L.P.
23(e) Consent of Arthur Andersen LLP - Wells Real Estate Fund XI,
L.P.
23(f) Consent of Arthur Andersen LLP - Wells Partners, L.P.
23(g) Consent of Arthur Andersen LLP - Wells Capital, Inc.
<PAGE>
EXHIBIT 10(K)
AGREEMENT FOR THE PURCHASE
AND SALE OF REAL PROPERTY
THIS AGREEMENT, made and entered into as of the 30th day of May, 1997, by
----
and between WELLS DEVELOPMENT CORPORATION, a Georgia corporation whose address
is 3885 Holcomb Bridge Road, Norcross, Georgia 30092 ("Seller"), WELLS
MANAGEMENT COMPANY, INC., whose address is 3885 Holcomb Bridge Road, Norcross,
Georgia 30092 ("Guarantor") and FUND IX AND FUND X ASSOCIATES, a Georgia joint
venture comprised of Wells Real Estate Fund IX, L.P., a Georgia limited
partnership, and Wells Real Estate Fund X, L.P., a Georgia limited partnership,
whose address is 3885 Holcomb Bridge Road, Norcross, Georgia 30092
(collectively, the "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller has entered into that certain Real Estate Sale and Purchase
Agreement (the "Purchase Agreement") with W. P. Bill Atkinson Operating Company
dated as of May 30, 1997, relating to that certain parcel of land
----------- --
(the "Land") situated in the Quail Springs Office Park in Oklahoma City,
Oklahoma and being more particularly described on Exhibit A hereto; and
WHEREAS, Seller has entered into that certain Development Agreement (the
"Development Agreement") with Adevco Corporation dated as of May 30,
----------- --
1997, relating to the construction of an office building containing 57,186
rentable square feet and other improvements (the "Improvements") on the Land;
and
Whereas, Seller intends to finance construction of the Improvements through
a combination of Earnest Money and a construction loan in the amount of
$3,900,000 (the "Construction Loan") from NationsBank, N.A. (South); and
WHEREAS, Seller has entered into that certain Lease Agreement (the "Lease")
with Lucent Technologies Inc. (the "Tenant") dated May 30, 1997,
----------- --
relating to the Land and Improvements (the Land and Improvements being referred
to herein as the "Property"), and
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
acquire from Seller the Property upon the terms and conditions hereinafter set
forth; and
WHEREAS, Guarantor is an affiliate of Seller and will benefit from this
transaction;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein set forth, the receipt, adequacy and sufficiency
of which are hereby expressly acknowledged by the parties hereto, Seller and
Purchaser do hereby covenant and agree as follows:
1. Agreement to Buy and Sell. Upon the terms and conditions set forth in
-------------------------
this Agreement, and subject to acquisition of the Land by Seller pursuant to the
Purchase Agreement, Purchaser agrees to buy from Seller and Seller agrees to
sell to Purchaser the Property, including all improvements, trees and shrubbery
located thereon, and together with all appurtenances, easements and privileges
thereto belonging, including all right, title and interest of Seller in and to
any streets or ways adjoining the Property.
<PAGE>
2. Earnest Money. Within three (3) business days after the effective
-------------
date of this Agreement, Purchaser shall deliver to Seller, Purchaser's check,
in the amount of One Million Three Hundred Thousand Dollars ($1,300,000) (said
amount being herein referred to as the "Earnest Money"), which Earnest Money
shall be held and disbursed pursuant to this Agreement. The Earnest Money, plus
any other funds advanced by Purchaser to Seller, shall be applied as a credit to
the Purchase Price (as hereinafter defined) or otherwise paid to Seller or
refunded to Purchaser as provided herein. The parties hereto acknowledge that
some or all of the Earnest Money shall be utilized by Seller to pay for
acquisition costs for the Land and construction costs for the Improvements.
Guarantor joins in the execution of this Agreement for the sole purpose of
guaranteeing Seller's obligations to Purchaser hereunder regarding the repayment
of the Earnest Money, which guaranty shall be evidenced by the execution and
delivery of that certain Guarantee of Refund of Earnest Money in the form
attached as Exhibit B hereto.
3. Purchase Price. Subject to adjustment and credits as otherwise
--------------
specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be approximately FIVE MILLION
TWO HUNDRED THOUSAND DOLLARS ($5,200,000.00), the precise amount to be
calculated based upon the budget (the "Budget") attached as Exhibit C including
an estimate of construction period interest and closing costs, and shall be
adjusted to the extent of any adjustments thereto, provided the same have been
approved by Purchaser, it being the intent of the parties that Seller shall not
make any profit or incur any loss in connection with this transaction. The
Purchase Price shall be paid by Purchaser to Seller at the Closing by cashier's
check or by wire transfer of immediately available federal funds, less the
amount of Earnest Money and subject to prorations, adjustments, and credits as
otherwise specified in this Agreement.
4. Purchaser's Right of Inspection and Survey/Seller's Cooperation. From
---------------------------------------------------------------
and after the date of this Agreement, Purchaser and its agents, engineers, or
representatives, with Seller's reasonable, good faith cooperation, shall have
the privilege of going upon the Property as needed to inspect, examine, test,
and survey the Property at all reasonable times and from time to time. Such
privilege shall include the right to make said tests, borings, and other tests
to obtain information necessary to determine surface and subsurface conditions.
Such privilege shall also include the right to make any other tests deemed
reasonably necessary by Purchaser. Purchaser hereby indemnifies and holds
Seller harmless from any liens, claims, liabilities, and damages incurred
through the exercise of such privilege. The obligations of Purchaser under the
preceding sentence shall survive any termination of this Agreement. Seller shall
make available to Purchaser all work product in the possession of Seller
relating to the Property, including surveys, site plans, environmental audits,
soils tests, market studies, Seller's owner's title policy and all other
information provided to Seller or obtained by Seller with respect to the
Property. Seller shall provide, at Purchaser's cost, a current survey of the
Property to be made by a surveyor duly licensed to perform such services within
the State of Oklahoma, to determine the true and accurate legal description of
the Property. Seller further agrees to reasonably assist and to cooperate with
Purchaser in Purchaser's obtaining from the appropriate governmental authorities
of all requisite approvals of Purchaser's intended use of the Property as a
commercial office building.
-2-
<PAGE>
From and after the date of this Agreement, Purchaser and its agents, engineers,
or representatives, with Seller's reasonable, good faith cooperation, shall have
the privilege of going upon the Property as needed to inspect, examine, test,
and survey the Property at all reasonable times and from time to time. Such
privilege shall include the right to make said tests, borings, and other tests
to obtain information necessary to determine surface and subsurface conditions.
Such privilege shall also include the right to make any other tests deemed
reasonably necessary by Purchaser. Purchaser hereby indemnifies and holds
Seller harmless from any liens, claims, liabilities, and damages incurred
through the exercise of such privilege. The obligations of Purchaser under the
preceding sentence shall survive any termination of this Agreement. Seller shall
make available to Purchaser all work product in the possession of Seller
relating to the Property, including surveys, site plans, environmental audits,
soils tests, market studies, Seller's owner's title policy and all other
information provided to Seller or obtained by Seller with respect to the
Property. Seller shall provide, at Purchaser's cost, a current survey of the
Property to be made by a surveyor duly licensed to perform such services within
the State of Oklahoma, to determine the true and accurate legal description of
the Property. Seller further agrees to reasonably assist and to cooperate with
Purchaser in Purchaser's obtaining from the appropriate governmental authorities
of all requisite approvals of Purchaser's intended use of the Property as a
commercial office building.
5. Intentionally Omitted.
---------------------
6. Construction of Improvements; Construction Loan.
-----------------------------------------------
(a) Seller shall cause the Building to be constructed on the Land
substantially in accordance with plans and specifications (collectively,
the "Building Plans") prepared by Smallwood, Reynolds, Stewart, Stewart &
--------------
Associates, Inc. ("Architect").
---------
(b) Seller shall cause Substantial Completion (as defined in the
Lease) of the Building to occur on or before July 15, 1998 (the "Completion
----------
Date"), subject to a force majeure as hereinafter provided. The Completion
----
Date shall be determined by the issuance of a temporary or permanent
certificate of occupancy from Oklahoma City, Oklahoma for the Building and
certification from Architect that the Building is substantially complete
and has been constructed substantially in accordance with the Building
Plans, subject to a punch list reasonably acceptable to Purchaser.
(c) Should Seller not have the Improvements completed and ready for
Tenant's occupancy by July 15, 1998, Purchaser shall have the right to
terminate this Agreement and receive a refund of all Earnest Money in which
event, Purchaser shall have no obligation to Seller. Nothing herein above
stated is intended to penalize Seller for, Seller shall not be liable for
damages and/or expenses resulting from, and the dates for completion of the
Improvements shall be extended by, delays caused by the following force
majeure events: labor disputes, lockouts, acts of God, enemy action, civil
commotion, any pending or actual action or ruling by a court or
administrative body prohibiting Seller from performing in accordance with
the terms hereof, riot, governmental regulations not in effect at the date
of
-3-
<PAGE>
execution of this Agreement, conditions that could not have been reasonably
foreseen by Seller (including adverse weather conditions), inability to
obtain construction materials or energy, fire or unavoidable casualty or
delays caused by arbitration, provided such matters are beyond the
reasonable control of Seller. Notwithstanding the foregoing, in the event
the Tenant is not required to and does not accept the Improvements as a
result of any such delay, Purchaser may terminate this Agreement as
aforesaid, and receive a full refund of all Earnest Money.
(d) Upon request by Purchaser, Seller shall assign to Purchaser all
warranties and guaranties obtained by Seller from its general contractor
and any other contractors and/or manufacturers with respect to the
Improvements.
(e) In the event that the Construction Loan is not closed on or before
June 15, 1997, Purchaser shall have the right (but not the obligation) to
require immediate conveyance of the Property to Purchaser, a refund of any
Earnest Money not applied to the Property and an assignment to Purchaser of
Seller's rights under the Development Agreement, Lease and any other
documents relating to the Property.
7. Special Conditions to Closing. Notwithstanding any other provision to
-----------------------------
the contrary contained in this Agreement, Purchaser's obligations hereunder are
expressly conditioned upon the following special conditions:
(a) The Improvements shall have been substantially completed in
accordance with the Development Agreement and the Plans and Specifications
referenced therein and Tenant shall have accepted and taken occupancy of
the Building for purposes of constructing its Tenant improvements in
accordance with the terms of the Lease;
(b) The receipt by Purchaser of an appraisal of the Property
reflecting a fair market value equal to or exceeding the Purchase Price;
(c) The receipt by Purchaser of an environmental site assessment
disclosing no conditions on the Property, which reveal the presence of any
hazardous waste on the Property;
(d) Seller shall have paid-off the Construction Loan in full prior to
Closing and shall deliver title to the Property debt-free at Closing in
accordance with the provisions of Sections 8 and 9 below; and
(e) The Tenant shall have approved of and consented to the transfer
and assignment of the Lease to Purchaser, and Purchaser shall have received
an appropriate tenant estoppel from Tenant in form and substance reasonably
acceptable to Purchaser.
(f) Purchaser shall have available to it at the date of Closing
sufficient net proceeds available for investment in properties to fully
fund the remainder of the Purchase Price.
In the event any of the conditions set forth above are not met on or prior to
the date of Closing, Purchaser shall be entitled to terminate this Agreement
upon written notice to Seller. If Purchaser elects to so terminate this
Agreement, Seller shall be entitled to receive the sum of Twenty-Five Dollars
($25.00) of the Earnest Money, and the balance of the Earnest Money shall be
-4-
<PAGE>
refunded to Purchaser, whereupon, except as expressly provided to the contrary
in this Agreement, no party hereto shall have any other or further rights or
obligations under this Agreement. Seller acknowledges that the sum of Twenty-
Five Dollars ($25.00) is good and adequate consideration for the termination
rights granted to Purchaser hereunder.
8. Title to Property. Seller agrees that within forty-five (45)
-----------------
days after execution of this Agreement, Seller, at Purchaser's sole cost, shall
cause American Guaranty Title Company or such other title insurance company
acceptable to Purchaser (hereinafter referred to as the "Title Company") to
deliver to Purchaser its commitment (hereinafter referred to as the "Title
Commitment") to issue to Purchaser upon the recording of a Limited Warranty Deed
from Seller to Purchaser, the payment of the Purchase Price, and the payment to
the Title Company of the policy premium therefor, an owner's policy (Form B) of
title insurance, in the amount of the Purchase Price, insuring good and
marketable fee simple record title to the Property to be in Purchaser with the
only exceptions to such title being taxes for the year of Closing not yet due
and payable, general utility easements serving only the Property which do not
materially adversely affect Purchaser's use of the Property and the matters set
forth in Exhibit D hereto (collectively, the "Permitted Exceptions"). The Title
Commitment shall not contain any exception for rights of parties in possession
(other than the Tenant) or for mechanic's or materialmen's liens or any
exception for unpaid taxes other than an exception for taxes not yet due or
payable. If the Title Commitment shall contain an exception for the state of
facts which would be disclosed by a survey of the Property or an "area and
boundaries" exception, the Title Commitment shall provide that such exceptions
will be deleted upon the presentation of an "as-built" survey prepared by a
licensed surveyor, in which case the Title Commitment shall be amended to (and
the Title Policy, when issued, will) contain an exception only for the matters
shown on the as-built survey. Seller shall also cause to be delivered to
Purchaser together with such Title Commitment, legible copies of all documents
and instruments referred to therein. Purchaser, upon receipt of the Title
Commitment and the copies of the documents and instruments referred to therein,
shall then have until Closing during which to examine same and notify Seller of
any defects or objections affecting the marketability of the title to the
Property. Upon obtaining the survey of the Property referred to in Paragraph 4
above, if such survey shall disclose any encroachments or other defects or
objections affecting the marketability of the title to the Property, Purchaser
shall so notify Seller thereof in writing. Seller shall have until Closing to
cure any such defects and objections referred to in the preceding two sentences
and shall exercise reasonable diligence to cure such defects and objections. If
Seller fails or refuses to satisfy or cure any such defects or objections prior
to the Closing, then, at the option of Purchaser (i) Purchaser may terminate
this Agreement, in which event the Earnest Money shall be immediately refunded
to Purchaser, and this Agreement shall be of no further force or effect and
Purchaser and Seller shall have no further rights, obligations or liabilities
hereunder, (ii) if any such defect or objection arose by, through or under
Seller or is a monetary lien or encumbrance which is capable of being cured by
the payment of a liquidated amount, Purchaser may cure such defect or objection,
in which event the Purchase Price payable pursuant to Paragraph 3 hereof shall
be reduced by an amount equal to the actual cost and expense incurred by
Purchaser in connection with the curing of such defect or objection, (iii)
Purchaser may accept title to the
-5-
<PAGE>
Property subject to such defects and objections, or (iv) any combination of
items (ii) and (iii). In the event Purchaser elects to cure any such defects
and objections pursuant to item (ii) hereof, Purchaser at its option, upon
giving notice to Seller, may extend the date of Closing until the curing of such
defects or objections or sixty (60) days from and after the date of Closing,
whichever shall first occur. If any defect or objection shall not have been
cured within such period, Purchaser may exercise its option under either item
(i), (iii) or (iv) hereof.
9. Closing and Closing Date. The consummation of the sale by Seller
------------------------
and the purchase by Purchaser of the Property (herein referred to as the
"Closing") shall be held on or before the first anniversary of the date hereof,
unless extended as hereinafter provided, at the offices of Title Company or such
other office as the parties may agree at such specific time and date as shall be
designated by Purchaser in a written notice to Seller not less than three (3)
business days prior to the date of Closing or absent such notice at 10:00 a.m.
on the first anniversary of the date hereof. At Closing, Seller shall execute
and deliver to Purchaser (a) a Limited Warranty Deed conveying fee simple
marketable record title to the Property to Purchaser free and clear of all
liens, special assessments, easements, leases (other than the Lease),
reservations, restrictions and encumbrances whatsoever, excepting only the
Permitted Exceptions, (b) a customary affidavit of Seller which has as its
subject matter averments that, with respect to the Property, there are no rights
or claims of parties in possession (other than Tenant) not shown by the public
records and that there are no liens, or rights to a lien, for services, labor or
materials furnished and/or imposed by law and not shown by the public records,
(c) affidavit of Seller stating that the Seller is not a "foreign person", as
that term is defined in Section 1445 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, and otherwise in form and
content sufficient to eliminate Purchaser's withholding obligations under said
Section 1445 with respect to the sale and purchase of the Property, (d) a
Closing Statement, (e) an Assignment and Assumption of Lease with respect to the
Lease; and (f) such other documents as may be reasonably required by Purchaser
or Purchaser's counsel in order to effectuate the transaction contemplated
hereunder. At Closing, Purchaser shall deliver to Seller the Purchase Price and
shall execute and deliver to Seller a Closing Statement and such other documents
as may be reasonably required by Seller or Seller's counsel in order to
effectuate the transaction contemplated hereby. Purchaser shall have the right
to extend the closing for two successive six month periods in the event
Purchaser does not have sufficient funds available to close the transaction.
10. Expenses and Prorations. All real property ad valorem taxes
-----------------------
applicable to the Property shall be prorated as of the date Seller acquires
title to the Land between Seller and Purchaser, said proration to be based upon
the most recently available tax rate and valuation with respect to the Land;
provided, however, that upon the issuance of the tax bills for such taxes for
the year of Closing, Purchaser and Seller shall promptly make such adjustments
as may be necessary to insure that the actual amount of such taxes for the year
of Closing shall be prorated between Purchaser and Seller. Purchaser shall pay
the cost of the Title Commitment, including the cost of the examination of title
to the Property made in connection therewith, the premium for the owner's policy
of title insurance issued pursuant thereto, survey, the cost of any recording
fees, transfer or documentary
-6-
<PAGE>
tax due and payable in connection with the conveyance of the Property pursuant
hereto, the cost of a phase one environmental audit for the benefit of
Purchaser, the attorney's fees of Seller, and all other costs and expenses
incurred by Seller or Purchaser in closing and consummating the purchase and
sale of the Property pursuant hereto.
11. Representations and Warranties of Seller. Seller hereby makes
----------------------------------------
the following representations and warranties to Purchaser, each of which shall
be deemed material:
(a) Title and Authority. Seller shall at Closing be the owner of good
-------------------
and marketable fee simple record title to the Property subject only to the
Permitted Exceptions and, if applicable, to one or more mortgages which
shall be canceled and satisfied by Seller at Seller's cost at or before the
Closing, it being the intent of the parties that Purchaser acquire the
Property free and clear of any liens, claims or encumbrances except the
Permitted Encumbrances. Seller has the full right, power and authority to
execute and deliver this Agreement and to consummate the purchase and sale
herein contemplated and to perform the covenants and agreement of Seller
hereunder.
(b) No Litigation. There are no actions, suits, or proceedings
-------------
pending, or, to the best of Seller's knowledge, threatened by any
organization, person, individual, or governmental agency against Seller
which would impair Seller's ability to convey the Property pursuant to this
Agreement or against the Property, nor does Seller know of any basis for
such action. Seller also has no knowledge of any pending or threatened
application for changes in the zoning applicable to the Property or any
portion thereof.
(c) Pre-existing Right to Acquire. No person or entity has any right
-----------------------------
or option to acquire the Property or any portion thereof which will have
any force or effect after the execution hereof, other than Purchaser.
12. Default. In the event Seller fails to comply with or perform any of
-------
the covenants, agreements or obligations to be performed by Seller under the
terms and provisions of this Agreement, or in the event Seller's warranties and
representations set forth in this Agreement are untrue or misleading, at
Purchaser's option: (i) Purchaser shall be entitled to an immediate refund of
all Earnest Money and to thereafter exercise any and all rights and remedies
available to Purchaser at law or in equity; or (ii) Purchaser shall be entitled,
upon giving written notice to Seller as herein provided, to terminate this
Agreement. Upon any such termination, all Earnest Money shall be immediately
returned to Purchaser and this Agreement and all rights and obligations created
hereunder shall be of no further force or effect. In the event Purchaser fails
to comply with or perform any of the covenants, agreements or obligations to be
performed by Purchaser under the terms and provisions of this Agreement,
Seller's sole and exclusive remedy for any such default shall be to terminate
this Agreement and to receive $100 of the Earnest Money as full liquidated
damages for such default, the parties hereto acknowledging that it is impossible
to more precisely estimate the damages to be suffered by Seller upon Purchaser's
default, whereupon all rights and obligations created hereby shall terminate and
be of no further force or effect whatsoever.
-7-
<PAGE>
13. Possession of Property. Seller shall deliver to Purchaser full and
----------------------
exclusive possession of the Property on the date of Closing, subject to the
Lease.
14. Condemnation. If, prior to the Closing, all or any part of the
------------
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Purchaser may by written notice to Seller given within ten (10) days after the
receipt of such notice from Seller, elect to terminate this Agreement. If
Purchaser chooses to terminate this Agreement, then the Earnest Money shall be
returned immediately to Purchaser and the rights, duties, obligations and
liabilities of the parties hereunder shall immediately terminate and be of no
further force or effect. If Purchaser does not elect to terminate this
Agreement in accordance herewith, this Agreement shall remain in full force and
effect and the sale of the Property contemplated by this Agreement, less any
interest taken by eminent domain or condemnation, or sale in lieu thereof, shall
be effected with no further adjustment and without reduction of the Purchase
Price, and at the Closing, Seller shall assign, transfer, and set over to
Purchaser all of the right, title, and interest of Seller in and to any awards
that have been or that may thereafter be made for such taking. At such time as
all or a part of the Property is subjected to a bona fide threat of condemnation
and Purchaser shall not have elected to terminate this Agreement as hereinabove
provided, Purchaser shall be permitted to participate in the proceedings as if
Purchaser were a party to the action. Seller shall not settle or agree to any
award or payment pursuant to condemnation, eminent domain, or sale in lieu
thereof without obtaining Purchaser's prior written consent thereto in each
case.
15. Assignment. Purchaser's rights and duties under this Agreement shall
----------
be freely transferable and assignable by Purchaser, either in full or in part,
and in the event of any such transfer or assignment, Seller shall look solely to
such transferee or assignee for the performance of all obligations, covenants,
conditions, and agreements imposed upon Purchaser pursuant to the terms of this
Agreement.
16. Broker's Commission. Seller shall and does hereby indemnify and hold
-------------------
harmless Purchaser from and against any claim for any real estate sales
commission, finder's fees, or like compensation in connection with the sale
contemplated hereby and arising out of any act or agreement of Seller. Likewise,
Purchaser shall and does hereby indemnify and hold harmless Seller from and
against any claim for any real estate sales commission, finder's fees or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser.
17. Notices. Any notices which may be permitted or required hereunder
-------
shall be in writing and sent or hand delivered to the addresses set forth
herein, and shall be deemed to have been duly given as of the date and time the
same are either personally delivered (if delivered by hand or by overnight
courier) or, if mailed, on the third (3rd) business day following the date same
is deposited with the United States Postal Service,
-8-
<PAGE>
postage prepaid, to be mailed by registered or certified United States mail,
return receipt requested.
18. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
19. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to
or by reason of this Agreement, and shall survive the payment of all monies made
under, pursuant to, or by reason of this Agreement.
20. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
21. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no prior representations, inducements, promises, or
agreements, oral or otherwise, between the parties not embodied herein or in
said Letter Agreement shall be of any force or effect. Any amendment to this
Agreement shall not be binding upon Seller or Purchaser unless such amendment is
in writing and executed by both. The provisions of this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, legal representatives, successors, and assigns. Time is of the essence
in this Agreement. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, but all of which taken together
shall constitute one and the same agreement. The headings inserted at the
beginning of each paragraph are for convenience only, and do not add to or
subtract from the meaning of the contents of each paragraph. This Agreement
shall be construed and interpreted under the laws of the State of Georgia.
Except as otherwise provided herein, all rights, powers, and privileges
conferred hereunder upon the parties shall be cumulative but not restrictive to
those given by law. All personal pronouns used in this Agreement, whether used
in the masculine, feminine, or neuter gender shall include all genders, and all
references herein to the singular shall include the plural and vice versa.
22. Environmental Site Assessment. Seller hereby authorizes Purchaser to
-----------------------------
perform an environmental site assessment on the Property. Seller shall
cooperate with Purchaser to the extent reasonably necessary for Purchaser to
perform the environmental site assessment. Purchaser will take all reasonable
precautions to limit and reasonably repair the damage
-9-
<PAGE>
to the Property, if any, resulting from such assessment. The Purchaser by virtue
of performing the environmental site assessment, does not assume the
responsibility of the person in charge of the Property, or otherwise undertake
responsibility for reporting to any federal, state, or local public agencies any
conditions of the Property that may present a potential threat to the public
health, safety or environment. The Purchaser reserves the right, however to
disclose any such conditions to public agencies or persons who may adversely
affected by such conditions; provided that in any non-emergency situation and
whenever reasonably possible in an emergency situation, the Purchaser shall
first advise the Seller of such conditions prior to making any disclosure
thereof and shall provide the Seller an opportunity to take appropriate action.
The Purchaser assumes no liability or responsibility for any hazardous materials
found on the Property, including without limitation, liability for removal or
clean-up of such materials or for any other conditions which may be present on
the Property.
23. Effective Date. For purposes of the calculations of any time
--------------
periods set forth in this Agreement, the effective date of this Agreement shall
be deemed to be the latest of the dates set forth below, or the date this
Agreement is last initialed, whichever is later.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by duly authorized representatives as of the day, month and
year first above written.
"SELLER":
WELLS DEVELOPMENT CORPORATION, a Georgia corporation
By: /s/ Brian M. Conlon
----------------------
Title: Executive Vice President
--------------------------
Date: May 30, 1997
---------------
"GUARANTOR":
WELLS MANAGEMENT COMPANY, INC.
By: /s/ Brian M. Conlon
-----------------------
Title: Executive Vice President
--------------------------
Date: May 30, 1997
-------------------
-10-
<PAGE>
"PURCHASER":
FUND IX AND FUND X ASSOCIATES, a Georgia joint venture
By: WELLS REAL ESTATE FUND IX, L.P.,
a Georgia limited partnership, as administrative
venturer
By: Wells Partners, L.P., a Georgia limited
partnership, general partner
By: Wells Capital, Inc., a
Georgia corporation
General Partner
By: /s/ Brian M. Conlon
----------------------------
Title: Executive Vice President
------------------------
Date: May 30, 1997
----------------
-11-
<PAGE>
EXHIBIT 10(L)
NET LEASE AGREEMENT
FROM
WELLS DEVELOPMENT CORPORATION
LANDLORD
TO
LUCENT TECHNOLOGIES INC.
TENANT
PREMISES: 14400 HERTZ QUAIL SPRINGS PARKWAY
OKLAHOMA CITY, OKLAHOMA 73134
DATED: MAY 30, 1997
--
<PAGE>
* * * *
The mailing, delivery or negotiation of this Lease by Tenant or
Landlord or their respective agents, brokers, or attorneys shall not be deemed
an offer by Tenant or Landlord to enter into this Lease or to enter into any
other relationship with Landlord or Tenant, as the case may be, whether on the
terms contained herein or on any other terms. This Lease shall not be binding
upon Tenant or Landlord, and neither Tenant nor Landlord shall have any rights,
obligations or liabilities with respect thereto, or with respect to the
Premises, unless and until Tenant and Landlord have executed and delivered this
Lease. Until such execution and delivery of this Lease, Tenant and Landlord
each may terminate all negotiation and discussion of the subject matter hereof,
without cause and for any reason, without recourse or liability to the other.
* * * *
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1. Definitions.................................................... 1
2. Premises Demised............................................... 2
3. Term........................................................... 3
4. Rental......................................................... 4
5. Delivery of Possession......................................... 5
6. Base Building Work and Tenant Improvements..................... 6
7. Tenant's Use of Premises Before Rental Commencement Date....... 7
8. Use............................................................ 8
9. Compliance with Legal Requirements............................. 8
10. Environmental Compliance....................................... 9
11. Repairs and Maintenance........................................11
12. Intentionally Omitted..........................................14
13. Taxes..........................................................14
14. Services and Utilities.........................................16
15. Alterations....................................................17
16. Assignment and Sublease........................................20
17. Damage or Destruction..........................................24
18. Eminent Domain.................................................25
19. Insurance......................................................27
20. Subrogation and Waiver.........................................29
21. Indemnity......................................................29
22. Intentionally Omitted..........................................30
23. Subordination, Non-Disturbance and Attornment..................30
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
24. Landlord's Right of Entry..................................... 31
25. Parking Facilities............................................ 32
26. Signs......................................................... 32
27. Rules and Regulations......................................... 32
28. Access........................................................ 33
29. Use of the Roof and Building Structure........................ 33
30. Tenant's Default; Rights and Remedies......................... 33
31. Landlord's Default; Rights and Remedies....................... 39
32. Holding Over.................................................. 40
33. Quiet Enjoyment............................................... 41
34. Mutual Representation of Authority............................ 41
35. Landlord's Claims............................................. 41
36. Real Estate Brokers........................................... 42
37. Attorneys' Fees............................................... 43
38. Estoppel Certificate.......................................... 43
39. Recordable Memorandum......................................... 44
40. Options to Extend............................................. 45
41. Intentionally Omitted......................................... 47
42. Confidentiality............................................... 47
43. Governing Law................................................. 47
44. Notices....................................................... 47
45. Intentionally Omitted......................................... 49
47. Entire Agreement.............................................. 49
48. Miscellaneous................................................. 49
49. Land Acquisition.............................................. 51
50. Option to Terminate........................................... 52
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
51. Surrender......................................................53
52. Reduction of Premises..........................................53
EXHIBIT A THE PREMISES............................................. 1
- -----------------------
EXHIBIT B THE LAND................................................. 1
- -------------------
EXHIBIT C BASE BUILDING WORK....................................... 1
- -----------------------------
EXHIBIT C-1 PRELIMINARY PLANS...................................... 1
- ------------------------------
EXHIBIT D TENANT IMPROVEMENTS...................................... 1
- ------------------------------
EXHIBIT E WORK LETTER.............................................. 1
- ----------------------
EXHIBIT F AREAS A AND B............................................ 1
- ------------------------
EXHIBIT G BUILDING STANDARD SERVICES............................... 1
- -------------------------------------
EXHIBIT H TERMINATION PAYMENT CALCULATION EXAMPLE.................. 1
- --------------------------------------------------
EXHIBIT I SUBORDINATION AND NON-DISTURBANCE AGREEMENT.............. 1
- ------------------------------------------------------
EXHIBIT I-1 NATIONSBANK SUBORDINATION AND NON-DISTURBANCE
- ----------------------------------------------------------
AGREEMENT......................................................... 1
- -----------
EXHIBIT J LANDLORD'S SUPERIOR INTERESTS............................ 1
- ----------------------------------------
EXHIBIT K RULES AND REGULATIONS.................................... 1
- --------------------------------
EXHIBIT L RULES AND REGULATIONS FOR USE OF THE
- -----------------------------------------------
COMMUNICATION EQUIPMENT........................................... 1
- -------------------------
EXHIBIT M MULTITENANT LEASE PROVISIONS............................. 1
- ---------------------------------------
1. Definitions.................................................... 1
2. Premises Demised............................................... 2
4. Rental......................................................... 4
9. Compliance with Legal Requirements............................. 5
11. Repairs and Maintenance........................................ 6
12. Operating Expenses............................................. 7
13. Taxes..........................................................10
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
14. Services and Utilities; Payment of Tenant's Expense and Tax
Rental.........................................................13
19. Insurance......................................................15
22. Interruption of Services.......................................17
26. Signs..........................................................17
28. Common Areas and Access........................................18
35. Landlord's Claims..............................................19
</TABLE>
iv
<PAGE>
LEASE AGREEMENT
THIS LEASE AGREEMENT made this 30th day of May 1997 between WELLS
------
DEVELOPMENT CORPORATION ("Landlord"), a Georgia corporation having an office at
3885 Holcomb Bridge Road, Norcross, Georgia 30092, and LUCENT TECHNOLOGIES INC.
("Tenant"), having an office at 475 South Street, Morristown, New Jersey 07960.
W I T N E S S E T H:
-------------------
1. Definitions.
-----------
The following terms are defined in the paragraphs listed below:
TERM PARAGRAPH
---- ---------
Additional Rent 4(c)
Alterations 15(a)
Base Building Condition Exhibit C
Base Building Work Exhibit C
BOMA Standards 2(b)
Building 2(a)
Building Operating Hours Exhibit G
Building Standard Services Exhibit G
Casualty 17(a)
Construction Allowance 6(b)
Declaration 12(a)(ii)(9)
Environmental Laws 10(b)
Event of Default 30(a)
Expiration Date 3(a)
Extended Term 40(a)
Fair Market Rent 40(b)
Fixed Rent 4(a)
Fixtures 15(f)
Force Majeure 48(d)
Hazardous Substances 10(b)
Holidays Exhibit G
Impositions 13(a)(i)(1)
Interest Rate 4(c)
Land 2(a)
Legal Requirements 6(c)
1
<PAGE>
Listed Broker 36(a)
Net Rent 30(e)(ii)
Optional Termination Date 50
Premises 2(a)
Primary Term 3(a)
Property 2(a)
Qualified Real Estate
Appraiser 42(f)
Rent 4(c)
Rentable Floor Area of
the Premises 2(b)
Rentable Floor Area of
the Building 2(b)
Rental Commencement Date 3(a)
Substantial Taking 18(a)
Substantial Completion Exhibit C
Superior Interest 23
Taking 18(a)
Target Date 5(a)
Taxes 13(a)(iii)
Tenant Affiliate 16(d)
Tenant Improvements Exhibit E
Tenant's Out of Pocket
Costs 16(a)
Tenant's Property 7(a)
Term 3(a)
2. Premises Demised.
----------------
(a) Landlord leases and demises to Tenant and Tenant hires from Landlord
the "Premises" (as hereinafter defined). The "Premises" shall mean the
"Property" (as hereinafter defined). The "Property" shall mean the "Land" (as
hereinafter defined), together with all improvements now or hereafter located on
the Land, including but not limited to the "Building" (as hereinafter defined),
the Building's parking facilities, any walkways, covered walkways or other means
of access to the Building and the Building's parking facilities, lobbies,
plazas, and landscaping. The "Building" means that certain building to be
constructed in accordance with the provisions of this Lease in Quail Springs
Office Park North, Oklahoma City, Oklahoma. No easement for light, view or air
is included in the Premises or granted hereunder. The Building will be located
on a parcel of land lying in the North Half of Section 12, Township 13 North,
Range 4
2
<PAGE>
West of the Indican Meridian, City of Oklahoma City, Oklahoma County, described
on the attached Exhibit B (the "Land").
---------
(b) For purposes of this Lease, the "Rentable Floor Area of the Premises"
shall mean the number of square feet of rentable area of the Premises, and the
"Rentable Floor Area of the Building" shall mean the number of square feet of
rentable area of the Building, each determined in accordance with the American
National Standard Method of Measuring Floor Area in Office Buildings, ANSI/BOMA
Z65.1-1996 published by the Building Owners and Managers Association
International ("BOMA Standards"). Upon Substantial Completion, Landlord will
cause its architect to make and certify to Landlord and Tenant physical
measurements of the Premises and the Building and the resulting calculations of
the Rentable Floor Area of the Premises and the Rentable Floor Area of the
Building in accordance with BOMA Standards, and the Rentable Floor Area of the
Premises and the Rentable Floor Area of the Building will be adjusted based upon
such physical measurements, and a copy of such certification of Landlord's
architect shall be given to Tenant; provided, however, that for purposes of this
Lease the Rentable Floor Area of the Premises and the Rentable Floor Area of the
Building shall be the lesser of the areas so calculated by Landlord's architect
or 57,186 rentable square feet (55,017 usable square feet) (increased by the
increases in rentable square feet and usable square feet, respectively, if any,
resulting from changes to the Base Building Plans requested by Tenant and agreed
to by Landlord).
3. Term.
----
(a) The primary term of this Lease (the "Primary Term") shall commence on
the date hereof and shall expire at 11:59 p.m. on the date [as such date may be
extended pursuant to Paragraph 5(a)] (the "Initial Expiration Date") which is
the tenth (10/th/) anniversary of the last day of the month within which the
"Rental Commencement Date" (as hereinafter defined) occurred. As used in this
Lease, "Term" shall mean the Primary Term and any duly exercised extension of
the term. "Expiration Date" shall mean the later of the Initial Expiration Date
or the date upon which any Extended Term (the option for which has been
exercised) would have expired but for any termination of this Lease. "Rental
Commencement Date" shall mean the later of (x) January 1, 1998, or (y) the
earlier of (I) the date sixty (60) days after the date Substantial Completion
[as defined in Paragraph 1(e) of Exhibit C attached hereto] would have
---------
3
<PAGE>
occurred but for delays caused by Tenant, or (II) the date upon which Tenant
occupies any portion of the Premises for business purposes.
(b) Within thirty (30) days following the Rental Commencement Date,
Landlord and Tenant will execute a document confirming the Rental Commencement
Date and the Initial Expiration Date.
4. Rental.
------
(a) For each Lease Year (as hereinafter defined), Tenant agrees to pay
Landlord annual rent equal to the Rentable Floor Area of the Premises multiplied
by the rate per rentable square foot set forth below for such Lease Year (the
"Fixed Rent"). Fixed Rent shall be payable in equal monthly installments, in
advance, on the first day of each month of the Term. Rent for any month's
partial occupancy shall be prorated, as shall Rent for any Lease Year consisting
of more or less than twelve (12) full calendar months. As used in this Lease,
the term "Lease Year" shall mean the twelve month period commencing on the
Rental Commencement Date, and each successive twelve month period thereafter
during the Term, except that if the Rental Commencement Date is not on the first
day of a calendar month, the first Lease Year shall extend through the end of
the twelfth month after the Rental Commencement Date.
(b) Fixed Rent: : Lease Years 1 - 5; $8.89 per rentable square foot per
annum; Lease Years 6-10; $10.39 per rentable square foot per annum.
(c) "Rent" shall mean Fixed Rent. Tenant covenants and agrees to pay to
Landlord, from time to time as provided in this Lease, (i) interest at the
"Interest Rate" [which for all purposes of this Lease shall equal two percent
(2%) plus the "prime rate" (as used herein, "prime rate" shall mean the rate of
interest per annum announced from time to time by NationsBank, N.A. (South), or
its successor organization, as its prime commercial lending rate)] on all
installments of Rent not paid by the fifth (5th) day after receipt by Tenant of
notice of nonpayment, from the due date through the date of payment [provided,
however, such five (5) day grace period shall be applicable only two (2) times
in any twelve (12) month period, and with respect to any installment of Rent
thereafter coming due within said twelve (12) month period, interest shall
accrue from
4
<PAGE>
the due date of such Rent through the date of payment regardless of whether same
is paid by the fifth (5/th/) day after receipt by Tenant of notice of
nonpayment], (ii) all amounts, other than Rent, which Tenant herein agrees to
assume and pay to Landlord, (iii) all other amounts (including but not limited
to Taxes) which Tenant herein agrees to assume and pay to a third party or third
parties, in those circumstances where Tenant shall fail or refuse to pay to such
third party or parties and Landlord elects to pay such amounts as herein
provided, and (iv) interest at the Interest Rate on amounts referred to in (ii)
and (iii) above not paid within five (5) days after receipt by Tenant of notice
of nonpayment thereof, from the due date through the date paid or, if demand is
required therefor by the terms of this Lease, from the date which is forty five
(45) days after the date of demand through the date paid (all of the
aforementioned items being herein included in "Additional Rent"). If Tenant
fails to pay any Additional Rent, Landlord shall have the same rights, powers
and remedies for such failure as are provided in this Lease, at law, in equity
or otherwise for the nonpayment of Rent.
5. Delivery of Possession.
----------------------
(a) Landlord shall deliver the Premises to Tenant ready for construction of
the Tenant Improvements upon the date of Substantial Completion. Landlord
agrees to pursue the Base Building Work (as defined on Exhibit C) with due
---------
diligence and continuity so as to cause Substantial Completion to occur as soon
as practicable under the circumstances, with a goal of achieving Substantial
Completion on or before November 15, 1997, extended on a day for day basis for
delays due to "Force Majeure" [as defined in Paragraph 48(d)] and for delays
caused by Tenant. If Substantial Completion has not occurred on or before
December 15, 1997 (extended on a day for day basis for delays due to Force
Majeure and for delays caused by Tenant) (such date, as so extended, the "Target
Date"), Tenant's sole right and remedy shall be that Fixed Rent shall be abated
one day for each day of delay in the occurrence of Substantial Completion (other
than delays due to Force Majeure and for delays caused by Tenant) and, solely
with respect to the first thirty (30) days of delay in the occurrence of
Substantial Completion after the Target Date (excluding delays due to Force
Majeure and for delays caused by Tenant), the Initial Expiration Date shall be
extended one day for each day of delay [up to a maximum of thirty (30) days]in
the occurrence of Substantial Completion (other than delays due to Force Majeure
and for delays caused by Tenant).
5
<PAGE>
(b) If for any reason whatsoever (other than delays caused by Tenant),
including but not limited to Force Majeure, Substantial Completion does not
occur on or before July 15, 1998, Tenant's sole right and remedy shall be to
terminate this Lease upon ten (10) days written notice to Landlord, without
incurring any liability to Landlord; provided, however, that this Lease shall
not terminate if Substantial Completion occurs during such ten (l0) day period.
(c) For purposes of determining dates pursuant to this Paragraph 5, "delays
caused by Tenant" shall include but not be limited to one day for each day after
May 22 to and including the day upon which Tenant delivers to Landlord a copy of
this Lease executed by Tenant.
6. Base Building Work and Tenant Improvements.
------------------------------------------
(a) Landlord will complete the Building to the Base Building Condition in a
first class and workmanlike manner, in accordance with Exhibit C attached hereto
---------
and by this reference made a part hereof, and in compliance with all Legal
Requirements. All materials used by Landlord shall be new and of first class
quality. Within ninety (90) days after the date of Substantial Completion,
Tenant shall have the right to prepare and provide to Landlord a list of
incomplete or defective Punch List Items, all of which shall be promptly
repaired and/or completed by Landlord at its sole cost and expense, and, for a
period of one (1) year following the date of Substantial Completion, Tenant
shall have the right to notify Landlord of its discovery of latent defects in
the Base Building Work all of which shall be promptly repaired and/or completed
by Landlord at its sole cost and expense. Except for such Punch List Items so
specified by Tenant within said ninety (90) day period, and except for such
latent defects specified by Tenant within such one (1) year period, the taking
of possession by Tenant shall be deemed conclusively to establish that
Landlord's construction obligations with respect to the Base Building Work have
been completed in accordance with the plans and specifications approved by
Landlord and Tenant and that the Premises, to the extent of Landlord's
construction obligations with respect thereto, are in good and satisfactory
condition.
(b) Tenant shall construct the "Tenant Improvements" (as defined in Exhibit
-------
E attached hereto) in accordance with the provisions of the Work Letter attached
- -
hereto as Exhibit E and by
---------
6
<PAGE>
reference made a part hereof. Tenant shall be billed by Landlord for, and shall
pay directly to Landlord, the cost of all electricity used by Tenant during
construction of the Tenant Improvements and otherwise in connection with the
exercise of its rights in Paragraphs 6 and 7 herein. "Construction Allowance"
is defined in Exhibit E attached hereto and by reference made a part hereof.
---------
(c) "Legal Requirements" shall mean (i) all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances or recommendations affecting the Premises or any part thereof, or the
use thereof, including without limitation those which require repairs to or any
structural changes in the Premises or the Building whether or not any such
statutes, laws, rules, orders, regulations, ordinances or recommendations which
may hereafter be enacted involve a change of policy on the part of the
governmental body enacting the same, (ii) all rules, orders and regulations of
the National Board of Fire Underwriters or other bodies exercising similar
functions and responsibilities in connection with the prevention of fire or the
correction of hazardous conditions which apply to the Premises, (iii) the
requirements of all policies of public liability, fire and other insurance which
at any time may be in force with respect to the Premises, and (iv) private
restrictive covenants applicable to the Property.
7. Tenant's Use of Premises Before Rental Commencement Date.
--------------------------------------------------------
Tenant may, at any time after the date forty five (45) days prior to the
estimated date of Substantial Completion and prior to the Rental Commencement
Date, without incurring any liability for payment of Rent, measure the Premises,
design and layout the Tenant Improvements and "Tenant's Property" (as
hereinafter defined), place and install Tenant's Property in the Premises at
Tenant's risk and expense, and commence construction of the Tenant Improvements
provided that in doing so Tenant shall not take any action which would or could
interfere with or delay the date of Substantial Completion. In exercising the
foregoing rights, Tenant shall not cause any material interference with or delay
to Landlord. "Tenant's Property" shall mean Tenant's personal property,
furniture, furnishings, signs, telecommunication equipment, equipment and trade
fixtures paid for by Tenant and not reimbursed as part of the Construction
Allowance.
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8. Use.
---
The Premises shall be used for executive, general administrative, office
space, telemarketing center, telephone customer service center, and other
similar purposes and no other purposes and in accordance with all applicable
Legal Requirements, all nationally recognized industry standards applicable to
such uses and the Rules and Regulations attached hereto and made a part hereof.
Tenant covenants and agrees to abide by the Rules and Regulations in all
respects as now set forth and attached hereto and, upon receipt of a copy
thereof, as hereafter promulgated by Landlord. Landlord shall have the right at
all times during the Term to publish and promulgate and thereafter enforce such
rules and regulations or changes in the existing Rules and Regulations as it may
reasonably deem necessary to protect the tenantability, safety, operation, and
welfare of the Premises and the Property.
9. Compliance with Legal Requirements.
----------------------------------
(a) Except where required solely on account of the particular manner in
which Tenant shall use the Premises as distinguished from office use generally,
Landlord shall comply with all applicable Legal Requirements pertaining to the
structural components of the Building, including without limitation the roof,
roofing system, exterior walls, bearing walls, support beams, foundations,
columns, exterior doors and windows and lateral support to the Building. Except
as set forth above and in Paragraph 9(b), Tenant shall comply with Legal
Requirements in every other case, including without limitation cases where Legal
Requirements mandate repairs, alterations, changes or additions to the Premises
not caused by Tenant's particular use thereof. Tenant shall defend, indemnify
and save Landlord harmless from any claims, fines, penalties, liabilities,
losses, damages, costs and expenses (including reasonable attorney's fees,
expert witness fees and other costs of defense) arising from the failure of
Tenant to comply with its obligations under this Paragraph 9.
(b) Landlord represents and warrants that as of the date of Substantial
Completion, the Property, the Base Building Work, the common areas and exterior
entrances to the Building and to the Premises, shall be in compliance in all
material respects with all applicable Legal Requirements, including without
limitation the Americans with Disabilities Act. Landlord shall defend,
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indemnify and save Tenant harmless from any claims, fines, penalties,
liabilities, losses, damages, costs and expenses (including reasonable
attorney's fees, expert witness fees and other costs of defense) arising from
the failure of Landlord to comply with its obligations under this Paragraph 9.
10. Environmental Compliance.
------------------------
(a) Tenant agrees to comply with all applicable Environmental Laws [as
defined in Paragraph 10(b) hereof] insofar as they pertain solely to the
particular manner in which Tenant shall use the Premises.
(b) Tenant shall not generate, store, handle, transport, treat, dispose of
or use on the Premises any Hazardous Substances, except that Tenant's use on the
Premises of cleaning supplies, copying fluids, other office and maintenance
supplies and other substances normally and customarily used by, and in amounts
customarily used by, tenants occupying space for office and administrative
purposes similar to the Premises shall not be deemed a violation of this
Paragraph 10(b), but only so long as the quantities thereof do not pose a threat
to public health or to the environment and do not necessitate a "response
action", as that term is defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and so long as Tenant strictly
complies or causes compliance with all Environmental Laws concerning the use,
storage, production, transportation and disposal of such Hazardous Substances.
"Hazardous Substances" shall mean and include those elements or compounds which
are contained in the list of Hazardous Substances adopted by the United States
Environmental Protection Agency (EPA) or in any list of toxic pollutants
designated by Congress or the EPA or which are defined as hazardous, toxic,
pollutant, infectious or radioactive by any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including, without limitation, strict
liability) or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereinafter in effect
(collectively "Environmental Laws"). Tenant agrees that the Tenant Improvements
will contain no Hazardous Substances that would violate Environmental Laws or
pose a threat to public health or the environment except that Tenant's
incorporation into the Tenant Improvements of commercially available
construction products and materials, normally and customarily
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used in, and in amounts customarily used in, the construction of tenant
improvements in buildings similar to the Building by tenants occupying space for
office and administrative purposes similar to the Premises shall not be deemed a
violation of this sentence when such products and materials are used and
installed as is usual and customary in the construction of improvements similar
to the Building at the time of construction or installation.
(c) Tenant shall defend, indemnify and save Landlord harmless from any
claims, fines, penalties, liabilities (including without limitation strict
liability), losses, damages, costs and expenses (including without limitation
reasonable attorney's fees, expert witness fees and other costs of defense and
costs of any settlement or judgment or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act, any so-
called federal, state or local "Superfund" or "Superlien" laws or any other
Environmental Law) which arise from Tenant's breach of its representations,
warranties, covenants and agreements contained in this Paragraph 10.
(d) Prior to commencement of construction of the Building, Landlord shall
cause to be performed a Phase I environmental study ("Study") of the Land by an
environmental engineering firm selected by Landlord and reasonably approved by
Tenant, and shall deliver a copy of the report to Tenant. If Tenant does not
receive the Study on or before the date thirty (30) days after the date hereof,
Tenant may elect, by notice given on or before the date sixty (60) days after
the date hereof, to terminate this Lease (unless Landlord delivers the Study
prior to the giving of Tenant's termination notice). In the event that the
Phase I environmental study discloses any potential environmental risks, then
Landlord shall cause to be performed a Phase II and/or Phase III study, as
necessary. Based on the above-referenced environmental studies, either (i)
Landlord shall take all steps necessary to remediate any environmental hazards
or risks therein disclosed; or (ii) if the costs of remediation shall exceed
$100,000.00, Landlord may elect to terminate this Lease by written notice to
Tenant, and upon such termination, neither Landlord nor Tenant shall have any
further rights or obligations hereunder, except for such obligations hereunder
which expressly survive termination of this Lease. If remediation in full
cannot be achieved by the date one hundred twenty (120) days after the date
hereof, Tenant, at its option,
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may terminate this Lease by written notice given on or before the date one
hundred fifty (150) days after the date hereof, unless remediation in full is
achieved prior to the giving of Tenant's termination notice. Landlord
represents, warrants and covenants that any generation, handling,
transportation, treatment, disposal or use of Hazardous Substances by Landlord
that has occurred or will occur on the Premises or the Property have been and at
all times during the Term will be in compliance with all applicable Legal
Requirements, subject only to Tenant's obligations set forth in Paragraphs 10(a)
through 10(c). Landlord further represents and warrants that, as of the
Commencement Date, the design, capacity and operation of the heating,
ventilation and air conditioning system ("HVAC") serving the Building meets the
current standards of the American Society of Heating, Refrigerating and Air
Conditioning Engineers, Inc.
(e) Landlord agrees that the Base Building Work will contain no Hazardous
Substances that would violate Environmental Laws or pose a threat to public
health or the environment on the Rental Commencement Date.
(f) Landlord shall defend, indemnify and save Tenant harmless from any
claims, fines, penalties, liabilities, (including without limitation strict
liability), losses, damages, costs and expenses (including without limitation
reasonable attorney's fees, expert witness fees and other costs of defense and
costs of any settlement or judgment or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act, any so-
called federal, state or local "Superfund" or "Superlien" laws or any other
Environmental Law) which arise from Landlord's breach of its representations,
warranties, covenants and agreements contained in this Paragraph 10.
11. Repairs and Maintenance.
-----------------------
(a) Landlord's sole and exclusive obligations with respect to the
maintenance, repair and replacement of the Premises shall be as follows: (i)
Landlord shall perform diligently, promptly and in a good and workmanlike manner
in compliance with all applicable Legal Requirements, all maintenance, repairs
and replacements to the structural components of the Building, including without
limitation the roof, roofing system, caulking of flashings, exterior walls,
bearing walls, support beams,
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foundations, columns, exterior doors, windows and skylights and lateral support
to the Building; and (ii) for the portion of the Term ending on the first
anniversary of the Rental Commencement Date, Landlord shall perform diligently,
promptly and in a good and workmanlike manner in compliance with all applicable
Legal Requirements, all maintenance, repairs and replacements to the parking
areas, including their lighting systems, constituting a portion of the Property.
Otherwise, Landlord shall not be required to make any repairs or improvements to
the Property except for any initial improvements to the Premises pursuant to the
provisions of Exhibit C attached hereto.
---------
(b) Except for the obligations of Landlord under Paragraphs 11(a), 17 and
18 hereof, Tenant covenants and agrees that at Tenant's sole cost (i) Tenant
will take good care of the Premises and all alterations, additions and
improvements thereto and will keep and maintain the same in good condition and
repair, except for normal wear and tear and casualty, (ii) Tenant shall perform
diligently, promptly and in a good and workmanlike manner in compliance with all
applicable Legal Requirements, all maintenance, repairs and replacements to the
Premises, and (iii) Tenant shall operate, use, clean, repair and maintain
(including without limitation replacements), and provide security for, the
Property, in a first class manner, including without limitation providing the
Building Standard Services and providing the following:
(1) electricity, gas, steam, water, sanitary sewer, air
conditioning and other fuel and utilities for the Property;
(2) casualty, liability, fidelity, rental loss, plate glass and
any other insurance applicable to the Property;
(3) repairs, maintenance and painting;
(4) all supplies, tools, materials and equipment used in the
operation, management, maintenance and access control of the Property;
(5) supplies, work clothes and dry cleaning;
(6) maintenance and service agreements for the Property and the
equipment therein, including but not
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limited to window cleaning, security personnel, service or system, elevator
maintenance, HVAC maintenance, janitorial service, waste recycling service,
landscaping maintenance and customary landscaping replacement;
(7) telephone and stationery;
(8) legal, accounting and other professional fees and
disbursements incurred in connection with the operation, management,
maintenance and repair of the Property;
(9) association fees and dues, including maintenance charges and
any special group assessments under the Declaration of Protective Covenants
for Quail Springs Office Park North dated October 6, 1987, recorded in Book
5688, page 1735,Oklahoma County records, as amended (the "Declaration");
(10) decorations;
(11) exterior and interior landscaping;
(12) wages, salaries and other costs of all on-site and off-site
employees engaged in the operation, management, maintenance or access
control of the Property, including taxes, insurance and benefits;
(13) operating and maintaining the monument type sign described
in Paragraph 26 hereof;
(14) all items (including security equipment and energy
management equipment), amortized over their respective useful lives, which
are installed for the purpose of reducing operating expenses, promoting
safety, complying with governmental requirements, or maintaining the first-
class nature of the Property; and
(15) trash and garbage removal, vermin extermination, and snow,
ice and debris removal.
Tenant shall at once report, in writing, to Landlord any defective or dangerous
condition known to Tenant. To the fullest extent permitted by law, Tenant
agrees that the rights of Tenant set forth in this Lease to make repairs at the
expense of Landlord are the sole and exclusive rights and remedies of Tenant
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for the failure of Landlord to make repairs. Landlord has no obligation and has
made no promise to alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof, except as specifically and expressly herein set
forth. This Lease sets forth the sole and exclusive rights of Tenant to
terminate this Lease or quit and surrender the Premises or receive an abatement
of rent by reason of any happening, event, occurrence or situation during the
Term, whether foreseen or unforeseen, and however extraordinary. In addition to
and not in limitation of the foregoing, during the Term, Tenant shall, at its
sole expense, (i) do its own redecorating of the interior of the Premises; (ii)
be responsible for normal, routine maintenance and care of the interior of the
Premises, such as changing filters and light bulbs, (iii) maintain the Tenant
Improvements in good order and repair (including all necessary replacements);
and (iv) make all repairs caused by Tenant's negligence, unless covered by any
insurance policy maintained by Landlord or unless caused by the negligence or
willful misconduct of Landlord, its agents, independent contractors,
representatives or employees. Landlord shall grant Tenant a nonexclusive
assignment, to be shared in common with Landlord, its successors and assigns, of
all warranties and guaranties obtained by Landlord from its general contractor
and any other contractors and/or manufacturers with respect to items which
Tenant is obligated to repair hereunder.
12. Intentionally Omitted
----------------------
13. Taxes.
-----
(a) For purposes of this Lease, the following Definitions shall apply:
(i) "Taxes" shall mean all real estate taxes, assessments (special or
otherwise), sewer and water rents, rates and charges, and any other governmental
(including without limitation taxing districts and authorities now existing or
hereafter created) levies, impositions and charges of a similar nature and any
other taxes and assessments attributable to the Property or its operation (and
the costs of contesting any of the same), including without limitation business
license taxes and fees ("Impositions"), which may be levied, assessed or imposed
on or in respect of all or any part of the Property, whether or not the same
constitute one or more tax lots. If,
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however, by law, any assessment may be divided and paid in annual installments,
then, for the purposes of this definition, (i) such assessment shall be deemed
to have been so divided and to be payable in the maximum number of annual
installments permitted by law, and (ii) there shall be deemed included in Taxes
for each calendar year the annual installment of such assessment becoming
payable during such year, together with interest payable during such year on
such annual installment and on all installments thereafter becoming due as
provided by law, all as if such assessment had been so divided. Impositions do
not include taxes and assessments imposed on the personal property of the
tenants of the Property, federal and state taxes on income, death taxes,
franchise taxes.
(ii) "Taxes" shall include penalties and interest resulting from
Tenant's failure to pay all or any portion of the Taxes in accordance with
Paragraph 13(b) hereof.
(b) Tenant shall be solely responsible for and shall pay prior to
delinquency all Taxes. On or before the date such Taxes become delinquent or
any interest or penalty shall be imposed for nonpayment thereof, Tenant shall
provide Landlord with written evidence of such payment of Taxes.
(c) Tenant shall pay promptly when due all taxes directly or indirectly
imposed or assessed upon Tenant's gross sales, business operations, machinery,
equipment, trade fixtures and other personal property or assets, whether such
taxes are assessed against Tenant, Landlord, the Property or the Building. In
the event that such taxes are imposed or assessed against Landlord or the
Property or the Building, Landlord shall furnish Tenant with copies of all
applicable tax bills, public charges and other assessments or impositions and
Tenant shall forthwith pay the same either directly to the taxing authority or,
at Landlord's option, to Landlord. In addition, in the event there is imposed
at any time a tax upon and/or measured by the rental payable by Tenant under
this Lease, whether by way of a sales or use tax or otherwise, Tenant shall be
responsible for the payment of such tax and shall pay the same on or prior to
the due date thereof; provided, however, that the foregoing shall not include
any inheritance, estate, succession, transfer, gift or income tax imposed on or
payable by Landlord.
(c) Tenant shall be entitled to any reductions or refunds (net of the costs
of collection thereof) for taxes paid by
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Tenant. If any reduction or refund is credited or paid to Landlord for taxes
paid by Tenant, said amount shall be paid by Landlord to Tenant within twenty
(20) days after receipt by Landlord of credit or payment. This provision shall
survive the expiration of this Lease.
(d) Provided Landlord consents, which consent shall not be unreasonably
withheld or delayed, Tenant, at Tenant's sole cost and expense, shall have the
right to contest the validity or the amount of any Taxes by appropriate
proceedings conducted in good faith and with due diligence in the applicable
jurisdiction, and may defer payments of such obligations, pay same under
protest, or take such other steps as Tenant may deem appropriate, provided,
however, that (a) Tenant shall first make all contested payments (under protest
if it desires) unless such proceeding shall suspend the collection thereof from
Landlord and from Rent under this Lease and from the Property and the Premises,
(b) no part of the Premises or the Property or any interest therein or the Rent
under this Lease shall be subjected thereby to sale, forfeiture, foreclosure or
interference, (c) Landlord shall not be exposed thereby to any civil or criminal
liability for failure to comply with any law, statute, code or regulation and
neither the Premises nor the Property shall be subject to the imposition of any
lien as a result of such failure, and (d) Tenant shall have furnished any
security required in such proceeding or under this Lease or reasonably requested
by Landlord to ensure payment of any Taxes. Landlord shall cooperate in the
institution and prosecution of any such proceedings and will execute any
documents required therefor without cost or expense to Tenant. The expense of
such proceedings shall be borne by Tenant. Tenant shall be entitled to retain
any refunds or rebates secured in such proceedings. Tenant agrees that it shall
pay, and save Landlord harmless from and against, any and all losses, judgments,
decrees and costs (including all attorneys' fees and expenses) in connection
with any such contest and that, promptly after the final determination of every
such contest, Tenant shall fully pay and discharge all amounts which shall be
levied, assessed, charged or imposed or be determined to be payable therein,
together with all penalties, fines, interest, costs and expenses resulting
therefrom.
14. Services and Utilities.
----------------------
(a) Landlord shall provide all utility service connections to the Premises
and the Building for water, sewerage, and
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electrical service and shall pay the initial connection charges for such
utilities including any applicable hook-up charges and connection fees excluding
any deposits or service charges for provision of other services.
(b) Initial utility service connections to the Building are included as
part of Base Building Work and are not part of Building Standard Services.
15. Alterations.
-----------
(a) Without first obtaining Landlord's prior written consent, Tenant shall
not make any alterations, additions or improvements or install any floor
covering, lighting, plumbing fixtures, shades or awnings or any exterior signs
or other "Fixtures" [as defined in Paragraph 15(f)] or make any changes in the
Premises (individually, an "Alteration", collectively, "Alterations"); provided,
however, that Tenant shall have no obligation to obtain Landlord's consent for
any Alteration or related series of Alterations if such Alteration or related
series of Alterations:
(i) are nonstructural;
(ii) do not cause any violation of and do not require any change in
any certificate of occupancy applicable to the Building;
(iii) do not cause any change in the outside appearance of the
Building, do not weaken or impair the structure of the Building and do not
materially reduce the value of the Premises or the Building or the Property;
(iii) do not affect the proper functioning of the Building equipment;
(iv) do not cost in excess of $50,000.00.
Even if Landlord's consent is not required for any Alteration or Alterations,
Tenant shall give Landlord prior notice of any Alteration or related series of
Alterations, and upon completion of any Alterations (other than decorations),
Tenant shall deliver to Landlord three (3) copies of the "as-built" plans for
such Alterations.
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(b) With respect to any Alterations that require Landlord's consent, such
consent shall not be unreasonably withheld, delayed or qualified.
(c) Tenant agrees that all Alterations shall at all times comply with all
applicable Legal Requirements and that Tenant, at its expense, shall (i) obtain
all necessary municipal and other governmental permits, authorizations,
approvals and certificates for the construction of such Alterations, (ii)
deliver a copy of such items to Landlord and (iii) cause all Alterations to be
constructed lien free, in a good and workmanlike manner, in accordance with all
Legal Requirements. Tenant, at its expense, shall promptly procure the
cancellation or discharge of all notices of violation arising from or otherwise
connected with Alterations issued by any public authority having or asserting
jurisdiction.
(d) Throughout the making of all Alterations (other than mere decorations),
Tenant, at its expense, shall carry or cause its contractors to carry the
following:
(i) casualty insurance in Builder's Risk Form, covering Landlord,
Landlord's agents and Landlord's lender(s), and Tenant and Tenant's
contractor, as their interests may appear, against loss or damage by fire,
vandalism, and malicious mischief and other such risks as are customarily
covered by the so-called "broad form extended coverage endorsement" upon
all the Alterations in place and all materials stored at the site of the
Alterations and all materials, equipment and supplies of all kinds incident
to the Alterations and builder's machinery, tools and equipment while on
the Premises or the Property, or when adjacent thereto, all on a completed
value basis to the full insurable value at all times. Said Builder's Risk
Insurance will also include coverage for loss of rents for a period of
twelve (12) months. Said Builder's Risk Insurance shall contain an express
waiver of any right of subrogation by the insurer against Landlord, its
agents, employees and contractors.
(ii) Commercial general liability insurance covering any occurrence in or
about the Premises in connection with such Alterations which complies with
the requirements of Paragraph 20. Such liability insurance shall be on a
comprehensive basis including:
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(A) Premises - Operations (including X-C-U);
(B) Independent contractors protection;
(C) Contractual liability, including coverage for the obligations
under the indemnity contemplated in Paragraph 15(e) hereof;
(D) Owned, non-owned and hired motor vehicles; and
(E) Broad form coverage for property damage.
(iii) Statutory Workers' Compensation as required by the State of Oklahoma
or local municipality having jurisdiction.
All insurance policies procured and maintained pursuant to this subparagraph
shall name Landlord, Landlord's partners, Landlord's agents and Landlord's
lender(s) as additional insureds, shall be carried with companies licensed to do
business in the State of Oklahoma reasonably satisfactory to Landlord and shall
be non-cancellable except after twenty (20) days written notice to Landlord.
Such policies or duly executed certificates of insurance with respect thereto
shall be delivered to Landlord before the commencement of the Alterations, and
renewals thereof as required shall be delivered to Landlord at least thirty (30)
days prior to the expiration of each respective policy term.
(e) Tenant shall indemnify Landlord against liability for any and all
mechanics' and other liens filed in connection with Alterations. Tenant, at its
expense, shall procure the discharge of any such lien within thirty (30) days
after the filing thereof against any part of the Property. If Tenant fails to
discharge any such lien within such thirty (30) day period, then, in addition to
any other right or remedy, Landlord may, upon giving ten (10) days prior written
notice to Tenant, discharge the same either by paying the amount claimed to be
due or by deposit or bonding proceedings if Tenant has not discharged the lien
within the ten (10) day notice period provided herein. Any amount so paid by
Landlord, and all costs and expenses incurred by Landlord in connection
therewith, shall be payable by Tenant upon demand.
(f) Except for items constituting Tenant's Property, all Alterations,
whether or not at the expense of Tenant, and whether or not Landlord's consent
is required shall be and remain a part
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of the Premises, shall be deemed the property of Landlord as of the date such
Alterations are completed, attached to or built into the Premises, shall not be
removed by Tenant and shall remain on the Premises at the expiration or earlier
termination of the Term without compensation to Tenant. "Fixtures" shall mean
electrical, plumbing, heating and sprinkling equipment, fixtures, outlets,
venetian blinds, partitions, gates, doors, vaults, paneling, molding, shelving,
radiator enclosures, cork, rubber, linoleum and composition floors, ventilating,
silencing, air conditioning and cooling equipment, and all fixtures, equipment
and appurtenances of a similar nature or purpose. If any Alterations involve
the removal of any Fixtures, such Fixtures shall be promptly replaced, at
Tenant's expense and free of superior title, liens, security interests and
claims, with like property, of at least equal quality and value. Under no
circumstances shall Tenant be required at any time to remove or restore (i) any
Alterations that do not require Landlord's consent, (ii) any Alterations that do
require Landlord's consent, unless Landlord, at the time it gives such consent,
expressly requires in writing removal or restoration of such Alterations; (iii)
any of the Tenant Improvements constructed in accordance with Paragraph 6,
whether constructed by Landlord or Tenant or any additional initial tenant
improvements, whether constructed by Landlord or Tenant, which are substantially
similar to the Tenant Improvements specified in Paragraph 6, or (iv) any
partitions, flooring, floor covering, pipes, wires, conduits run through a
floor, ceiling, or partition, provided these are cut off or capped in accordance
with all applicable Legal Requirements.
16. Assignment and Sublease.
-----------------------
(a) Tenant shall not, without the prior written consent of Landlord, assign
this Lease or any interest herein or in the Premises, or mortgage, pledge,
encumber, hypothecate or otherwise transfer or sublet the whole Premises or any
part of the Premises or permit the use of the Premises by any party other than
Tenant or a "Tenant Affiliate" (as hereinafter defined). Consent to one or more
such transfers or subleases shall not destroy or waive this provision, and all
subsequent transfers and subleases shall likewise be made only upon obtaining
the prior written consent of Landlord. Without limiting the foregoing
prohibition, in no event shall Tenant assign this Lease or any interest herein,
whether directly, indirectly or by operating of law, or sublet the Premises or
any part thereof or permit the use of the
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Premises or any part thereof by any party (i) if the proposed assignee or
subtenant is a party who would (or whose use would) detract from the character
of the Building as a first-class building, such as, without limitation, a
dental, medical or chiropractic office or a governmental office, (ii) if the
proposed use of the Premises shall involve an occupancy rate of more than one
(1) person per 143 square feet of Rentable Floor Area within the Premises, (iii)
if the proposed assignment or subletting shall be to a governmental subdivision
or agency or any person or entity who enjoys diplomatic or sovereign immunity,
(iv) if such proposed assignee or subtenant is an existing tenant of the
Building, or (v) if such proposed assignment, subletting or use would contravene
any restrictive covenant (including without limitation any exclusive use)
granted to any other tenant of the Building. Sublessees or transferees of the
Premises for the balance of the Term shall become directly liable to Landlord
for all obligations of Tenant hereunder, without relieving Tenant (or any
guarantor of Tenant's obligations hereunder) of any liability therefor, and
Tenant shall remain obligated for all liability to Landlord arising under this
Lease during the entire remaining Term including any extensions thereof, whether
or not authorized herein, unless such assignee assumes all liability hereunder
and has a net worth equal to or exceeding the aggregate net worth of Tenant and
all other parties then liable for the obligations of Tenant under this Lease.
If Tenant is a partnership, a withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners owning a controlling interest in
the Tenant shall be deemed a voluntary assignment of this Lease and subject to
the foregoing provisions; provided, however, if at least one of the partners
owning a controlling interest in the Tenant both before and after such
withdrawal or change shall be a corporation (or any entity controlled by a
corporation) whose stock is publicly traded on a nationally recognized
securities exchange (including the NASDAQ over-the-counter market), then such
withdrawal or change shall not be deemed to be an assignment of this Lease. If
Tenant is a corporation, any dissolution, merger, consolidation or other
reorganization of Tenant, or the sale or transfer of a controlling interest in
the capital stock of Tenant, shall be deemed a voluntary assignment of this
Lease and subject to the foregoing provisions. The preceding sentence shall not
apply to, and Tenant shall not be in default under this Paragraph 16(a) as a
result of, an offering of voting stock to the public pursuant to a registered
securities offering, the transfer of voting stock on a national securities
exchange or through the NASDAQ national
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market system, or the transfer of voting stock to Tenant's employees pursuant to
a bona fide employee stock ownership plan. If Tenant shall be a corporation
whose stock is publicly traded on a nationally recognized securities exchange
(including the NASDAQ over-the-counter market), then any merger, consolidation
or other similar reorganization of Tenant, or the sale or transfer of a
controlling interest in the voting capital stock of Tenant shall not be deemed
to be an assignment of this Lease. In the event Landlord consents to an
aggregate of three or more assignments or subleases (in any combination),
beginning with the third such assignment or sublease, and continuing with
respect to all subsequent assignments and subleases, Tenant shall pay to
Landlord a fee to cover Landlord's reasonable accounting costs plus any legal
fees incurred by Landlord as a result of the assignment or sublease. Fifty
percent (50%) of any consideration, in excess of "Tenant's Out of Pocket Costs"
(as hereinafter defined), paid to Tenant by any assignee of this Lease (other
than a Tenant Affiliate) for its assignment, or by any sublessee (other than a
Tenant Affiliate) under or in connection with its sublease (when Landlord's
consent is required), or otherwise paid to Tenant by another party for use and
occupancy of the Premises or any portion thereof, shall be promptly remitted by
Tenant to Landlord as additional rent hereunder. "Tenant's Out of Pocket Costs"
shall mean all of Tenant's actual out-of-pocket costs associated with the
applicable assignment or subletting, including the Rent and other charges and
sums due and payable by Tenant under this Lease with respect to such space,
reasonable advertising costs, brokerage commissions, lease concessions,
improvement allowances, legal fees, and unamortized tenant improvements with
respect to such space in excess of the Construction Allowance (amortized over
the remaining portion of the Primary Term). Where a portion of the Premises is
sublet, in calculating the profit from such sublease, the costs of Tenant
attributable to the sublet space but applicable to some larger portion of the
Premises shall be prorated on the basis of rentable areas determined according
to BOMA Standards. No assignment of this Lease consented to by Landlord shall
be effective unless and until Landlord shall receive an original assignment and
assumption agreement, in form and substance reasonably satisfactory to Landlord,
signed by Tenant and Tenant's proposed assignee, whereby the assignee assumes
due performance of this Lease to be done and performed for the balance of the
then remaining Term. No subletting of the Premises, or any part thereof, shall
be effective unless and until there shall have been delivered to Landlord an
agreement,
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in form and substance reasonably satisfactory to Landlord, signed by Tenant and
the proposed sublessee, whereby the sublessee acknowledges the right of Landlord
to continue or terminate any sublease, in Landlord's sole discretion, upon
termination of this Lease, and such sublessee agrees to recognize and attorn to
Landlord in the event that Landlord elects under such circumstances to continue
such sublease.
(b) Any assignment of this Lease or any sublease of the Premises shall not
relieve Tenant of any of its obligations under this Lease.
(c) Whenever Landlord's consent to an assignment or subletting is required,
Tenant shall submit to Landlord a written request for Landlord's consent, which
request shall include the name of the proposed assignee or sublessee, and the
basic business terms of the proposed assignment or subletting. Landlord may, as
a prior condition to considering any request for consent to an assignment or
sublease (when Landlord's consent is required), require Tenant to obtain and
submit current financial statements of any proposed subtenant or assignee.
Landlord's failure to respond within ten (10) business days after receipt of
Tenant's request and the information required by this Paragraph 16(c) shall be
deemed approval of the proposed assignment or sublease.
(d) The consent of the Landlord need not be obtained if the assignment or
sublease is to any "Tenant Affiliate" (as hereinafter defined). Tenant shall
give Landlord written notice of any assignment to a Tenant Affiliate, including
the effective date of the assignment. Landlord acknowledges that the Premises
may be occupied by one or more Tenant Affiliates and their employees and that
such use of the Premises shall not be considered an assignment or sublease,
unless Tenant elects to treat it as such and provides Landlord with prompt
written notice thereof. For purposes hereof, "Tenant Affiliate" shall mean an
entity which owns, directly or indirectly, more than fifty percent (50%) of
Lucent Technologies Inc. or which is more than fifty percent (50%) owned,
directly or indirectly, by Lucent Technologies Inc. or an entity into which
Tenant is merged, provided that in the event of a merger, the surviving entity's
net worth exceeds that of Tenant at such time.
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17. Damage or Destruction.
---------------------
(a) If the Premises are damaged by fire, other casualty, acts of God, or
the elements (a "Casualty"), this Lease shall not terminate and such damaged
portion of the Premises shall be repaired or rebuilt as set forth in Paragraph
17(b), unless this Lease is terminated as provided in this Paragraph 17(a). If
the Premises are (i) damaged to such an extent that repairs cannot, in
Landlord's judgment, be completed within one hundred eighty (180) days after the
date of the Casualty (if Landlord so determines that the repairs cannot be
completed within such one hundred eighty (180) day period, Landlord shall give
Tenant notice of such determination within forty five days after the date of
such Casualty), or (ii) damaged or destroyed as a result of a risk which is not
insured under standard fire insurance policies with extended coverage
endorsement, or (iii) damaged or destroyed during the last eighteen (18) months
of the Term, or if the Building is damaged in whole or in part (whether or not
the Premises are damaged), to such an extent that the Building cannot, in
Landlord's judgment, be operated economically as an integral unit, then and in
any such event Landlord may at its option terminate this Lease by notice in
writing to the Tenant within forty five (45) days after the date of such
occurrence. If the Premises are damaged to such an extent that repairs cannot,
in Landlord's judgment, be completed within one hundred eighty (180) days after
the date of the Casualty or if the Premises are substantially damaged during the
last eighteen (18) months of the Term, then in either such event Tenant may
elect to terminate this Lease by notice in writing to Landlord within forty five
(45) days after the date of such occurrence. If the Lease is terminated
pursuant to this Paragraph 17(a), the termination shall be effective as of the
date of the Casualty and the Rent shall abate from that date, and any Rent paid
for any period beyond such date shall be refunded to Tenant.
(b) If this Lease is not terminated as provided in Paragraph l7(a), then
Landlord shall, at its sole cost and expense, restore the Premises as speedily
as practical, including without limitation any Tenant Improvements constructed
by Landlord or Tenant Improvements for which Landlord gave Tenant an allowance;
provided, however, Landlord's obligation shall be limited to the original Base
Building Work and any other work or improvements which were originally performed
or installed at Landlord's expense as described in Exhibit C attached hereto or
---------
with the proceeds of the Construction Allowance. During the
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restoration period, a just and proportionate part of the Fixed Rent shall abate
for the period during which the Premises or a portion thereof are not suitable
for Tenant's business needs. If the cost of performing such repairs exceeds the
actual proceeds of insurance paid or payable to Landlord on account of such
Casualty, or if Landlord's mortgagee or the lessor under a ground or underlying
lease shall require that any insurance proceeds from a casualty loss be paid to
it, Landlord may terminate this Lease unless Tenant, within forty five (45) days
after demand therefor, deposits with Landlord a sum of money sufficient to pay
the difference between the cost of repair and the proceeds of the insurance
available to Landlord for such purpose.
(c) If Landlord, subject to Force Majeure and subject to delays caused by
Tenant, does not restore the Premises as required in Paragraph 17(b) within the
time period therein set forth, Tenant may terminate this Lease at any time
thereafter [and Rent shall be accounted for as of the date of termination (as of
the date of the Casualty with respect to the damaged portion)], prior to the
date such restoration is substantially completed, provided (i) Tenant gives
Landlord not less than thirty (30) days prior written notice, and (ii) Landlord
does not complete the restoration during such thirty (30) day period.
18. Eminent Domain.
--------------
(a) If there is a taking of all or any portion of the Property or the
Premises by right or threat of eminent domain or by private purchase in lieu
thereof (a "Taking"), this Lease shall terminate as to the part so taken as of
the date of Taking, and, in the case of a "Substantial Taking" (as hereinafter
defined), either Landlord or Tenant shall have the right to terminate this Lease
as to the balance of the Premises by written notice to the other within thirty
(30) days after such date. "Substantial Taking" shall mean either (i) that more
than fifteen percent (15%) of the Premises was taken, or (ii) that the portion
of the Premises taken shall be of such extent and nature as substantially to
handicap, impede or impair Tenant's use of the balance of the Premises and
cannot be restored to a condition suitable for Tenant's business needs within
one hundred twenty (120) days from the date of the Taking, or (iii) that more
than fifteen percent (15%) of the parking spaces for the Building were taken,
unless within thirty (30) days after the date of such Taking Landlord shall
notify Tenant of its intention to replace the parking spaces, and such
replacement is provided within one
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hundred fifty (150) days of such notice. If title to so much of the Building is
taken that a reasonable amount of reconstruction thereof will not in Landlord's
sole discretion result in the Building being a practical improvement and
reasonably suitable for use for the purpose for which it is designed, then this
Lease shall terminate on the date that the condemning authority actually takes
possession of the part so condemned or purchased. If this Lease is terminated
pursuant to this Paragraph 18(a), Rent shall be prorated and accounted for as of
the date of such termination.
(b) If there shall be a Taking which does not constitute a Substantial
Taking, this Lease shall not terminate but Landlord shall, at its sole cost and
expense, with due diligence, restore the Premises as speedily as practical
including without limitation any Tenant Improvements constructed by Landlord or
Tenant Improvements for which Landlord gave Tenant an allowance, including the
Construction Allowance; provided, however, Landlord's obligation shall be
limited to the original Base Building Work and any other work or improvements
which were originally performed or installed at Landlord's expense as described
in Exhibit C attached hereto or with the proceeds of the Construction Allowance.
---------
During the restoration period, a just and proportionate part of the Fixed Rent
shall abate for the period during which the Premises or a portion thereof are
not suitable for Tenant's business needs.
(c) Tenant shall not be entitled to any part of the payment or award for a
Taking, provided that Tenant may file a claim for any loss of Tenant's Property;
moving expenses; or for damages for cessation or interruption of Tenant's
business, provided such claim will not diminish Landlord's recovery. Subject to
the foregoing provisions of this subparagraph (c), Tenant hereby assigns to
Landlord any and all of its right, title and interest in or to any compensation
awarded or paid as a result of any such Taking.
(d) If Landlord, subject to Force Majeure and subject to delays caused by
Tenant, does not restore the Premises as required in Paragraph 18(b) within the
time period therein set forth, Tenant may terminate this Lease at any time
thereafter [and Rent shall be accounted for as of the date of termination (as of
the date of the Taking with respect to the portion taken)], prior to the date
such restoration is substantially completed, provided (i) Tenant gives Landlord
not less than
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thirty (30) days prior written notice, and (ii) Landlord does not complete the
restoration during such thirty (30) day period.
19. Insurance.
---------
(a) Landlord shall maintain, at Tenant's sole cost and expense [and Tenant
shall reimburse Landlord such cost and expense within forty five (45) days after
written demand therefor], during the Term, with solvent and responsible
companies having a rating from Best's Insurance Reports of not less than A-/X,
insurance covering the Property against loss or damage by fire and such other
risks as are from time to time included in a standard form of all-risk policy of
insurance available in the State of Oklahoma. Such coverage shall equal one
hundred percent (100%) of the replacement cost of the Building and any parking
facility, exclusive of excavation, footings and foundations, as such replacement
cost is determined from time to time by the insurance company (and such
insurance may provide for a $10,000.00 deductible, or such higher amount as
Tenant shall from time to time approve, which approval shall not be unreasonably
withheld, conditioned or delayed).
(b) Tenant shall maintain, at its expense, during the Term, with solvent
and responsible companies having a rating from Best's Insurance Reports of not
less than A-/X, a policy or policies of commercial general liability insurance
insuring against the liability of Landlord arising out of the maintenance, use
and occupancy of the Property, with the limits of such policy or policies to be
in combined single limits for both damage to property and personal injury and in
amounts not less than Three Million Dollars ($3,000,000.00) for each occurrence.
Such insurance required herein shall be issued by an insurance company licensed
to do business in the State of Oklahoma. Tenant shall name Landlord, Landlord's
partners, Landlord's agents, Landlord's managing agent, any mortgagee of which
Landlord has advised Tenant, and any other party designated by Landlord, as
insureds under such policy.
(c) Tenant shall maintain, at its expense, during the Term, with solvent
and responsible companies, a policy or policies of commercial general liability
insurance insuring against the liability of Tenant arising out of the
maintenance, use and occupancy of the Property, or occasioned by or arising out
of any construction work being done by Tenant or Tenant's contractors on the
Premises, or in any way occasioned by or arising out of the
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activities of Tenant, its agents, contractors or employees in the Premises, or
other portions of the Building or the Property, and of Tenant's guests and
licensees while they are in the Premises, with the limits of such policy or
policies to be in combined single limits for both damage to property and
personal injury and in amounts not less than Three Million Dollars
($3,000,000.00) for each occurrence. Such insurance required herein shall be
issued by an insurance company licensed to do business in the State of Oklahoma.
Tenant shall name Landlord, Landlord's managing agent, and any mortgagee of
which Landlord has advised Tenant, as additional insureds under such policy.
(d) Tenant shall maintain, at its expense, during the Term a policy or
policies of all-risk insurance insuring the full replacement cost of its
furniture, equipment, supplies, and other property owned, leased, held or
possessed by it and contained in the Premises, and Tenant shall maintain such
worker's compensation insurance as is required by applicable law.
(e) All insurance policies procured and maintained by Tenant pursuant to
this Paragraph 19 shall name Landlord and any additional parties designated by
Landlord as additional insured, shall be carried with companies licensed to do
business in the State of Oklahoma having a rating from Best's Insurance Reports
of not less than A-/X, and shall be non-cancelable and not subject to material
change except after twenty (20) days' written notice to Landlord. Duly executed
certificates of insurance with respect to such policies shall be delivered to
Landlord prior to the date Tenant enters the Premises for the construction of
the Tenant Improvements or the installation of its improvements, trade fixtures
or furniture, and certificates evidencing renewals of such policies shall be
delivered to Landlord at least thirty (30) days prior to the expiration of each
respective policy term.
(f) Landlord acknowledges that Tenant is or may be a self-insurer with
respect to all or a substantial portion of the risks commonly insured against
under liability insurance policies. Notwithstanding any provisions of the Lease
to the contrary, except for the insurance required by Paragraph 19(b), so long
as Tenant is Lucent Technologies Inc. or any Tenant Affiliate, Lucent
Technologies Inc. may, at its option, elect to either (i) obtain and maintain
liability insurance policies required of Tenant or (ii) assume the risk
contemplated by and otherwise
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required under liability insurance policies pursuant to self-insurance programs
of Lucent Technologies Inc.
(g) The policy or policies evidencing such insurance for Paragraphs 20(a),
(b), (c) and (d) shall provide that they may not be canceled or amended without
twenty (20) days prior written notice being given to the party for whose benefit
such insurance has been obtained. Prior to the Rental Commencement Date, and in
any event prior to any entry on the Property by such party, each party shall
submit to the other insurance certificates demonstrating the required policies
are in effect.
20. Subrogation and Waiver.
----------------------
To the full extent permitted by law, the parties waive all right of
recovery against the other for, and release each other and their respective
authorized representatives from any claims for injury to any person or damage to
the Property that are caused by or result from risks insured against under any
fire, extended coverage, business interruption and loss of rents insurance or
self insurance carried or required to be carried by the party seeking recovery.
Each party shall obtain, for each policy of insurance, a waiver by the insurer
of all right of subrogation against the other party for any loss or damage
within the scope of the insurance and each party to the extent permitted by law,
for itself and its insurer, waives all such insured claims against the other
party. If such waiver or agreement shall not be, or shall cease to be,
obtainable without additional charge, any additional premium for such waiver
shall be paid by the primary insured.
21. Indemnity.
---------
(a) Tenant shall defend, indemnify and save harmless the Landlord, its
affiliates, and their respective officers, directors, shareholders and partners,
against all claims, liabilities, losses, fines, penalties, damages, costs and
expenses (including without limitation reasonable attorneys' fees and other
costs of litigation) because of injury, including death, to any person, or
damage or loss of any kind to any property caused by any action or omission of
Tenant, or any of its employees, contractors, servants, agents, subtenants or
assignees, or of Tenant's invitees while such invitees are within the Premises
or the Building, or any failure on the part of Tenant to perform its obligations
under this Lease, except to the
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extent caused by the negligence or willful misconduct of Landlord, or its
employees, contractors, agents or representatives.
(b) Landlord shall defend, indemnify and save harmless the Tenant, Tenant
Affiliates, their respective officers, directors, shareholder and partners,
against all claims, liabilities, losses, fines, penalties, damages, costs and
expenses (including without limitation reasonable attorneys' fees and other
costs of litigation) because of injury, including death, to any person, or
damage or loss of any kind to any property caused by any action or omission of
Landlord, , or any of its employees, contractors, servants or agents, or any
failure on the part of Landlord, to perform its obligations under this Lease,
except to the extent caused by the negligence or willful misconduct of Tenant,
or its employees, contractors, agents or representatives.
22. Intentionally Omitted.
---------------------
23. Subordination, Non-Disturbance and Attornment.
---------------------------------------------
Landlord may subordinate Tenant's interest in this Lease to the lien of any
mortgage or deed of trust which may now or hereafter be placed on the Property.
Landlord shall obtain and deliver to Tenant from any present or future
mortgagee, trustee, fee owner, prime lessor or any person having an interest in
the Premises superior to this Lease (a "Superior Interest") a written
subordination, non-disturbance and attornment agreement ("SNDA") in recordable
form (and Tenant shall execute in recordable form and return to Landlord such
SNDA within fifteen (15) days after receipt by Tenant of such SNDA),
substantially in the form of Exhibit I attached hereto or in such other
---------
commercially reasonable form as shall be agreed to by Tenant (which agreement
Tenant agrees not to unreasonably withhold, condition or delay), providing that
so long as Tenant performs all of the terms, covenants and conditions of this
Lease and agrees to attorn to the mortgagee, beneficiary of the deed of trust,
purchaser at a foreclosure sale, prime lessor or fee owner, Tenant's rights
under this Lease shall not be disturbed and shall remain in full force and
effect for the Term, except as set forth and agreed to by Tenant in such SNDA
(which agreement Tenant agrees not to unreasonably withhold, condition or delay;
provided, however, Tenant has agreed to the SNDA attached as Exhibit I), and
---------
Tenant shall not be joined by the holder of any mortgage or deed of
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trust in any action or proceeding to foreclose thereunder. Landlord represents
and warrants that, as of the date hereof, the only Superior Interest to this
Lease is set forth on Exhibit J. Tenant agrees to execute and deliver to
---------
Landlord with this Lease the SNDA attached hereto as Exhibit I-1 and by
-----------
reference made a part hereof. If a SNDA in accordance with this Paragraph 23 is
not delivered by such Superior Interest to Tenant within thirty (30) days after
the effective date of this Lease, Tenant may terminate this Lease without
liability by written notice of termination to Landlord unless Landlord delivers
such SNDA to Tenant prior to such termination notice.
24. Landlord's Right of Entry.
-------------------------
(a) Landlord shall retain duplicate keys to all doors of the Premises and
Landlord and its agents, employees and independent contractors shall have the
right to enter the Premises at reasonable hours to inspect and examine same, to
make repairs, additions, alterations, and improvements, and to inspect the
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder; provided, however, that Landlord shall afford Tenant such
prior notification of an entry into the Premises as shall be reasonably
practicable under the circumstances, and, except in case of emergency, Landlord
shall enter only during Tenant's normal business hours (unless Tenant otherwise
consents to entry during other hours, which consent Tenant agrees not to
unreasonably withhold or delay). Landlord shall be allowed to take into and
through the Premises any and all materials that may be required to make such
repairs, additions, alterations or improvements. During such time as such work
is being carried on in or about the Premises, the Rent provided herein shall not
abate, and Tenant waives any claim or cause of action against Landlord for
damages by reason of interruption of Tenant's business or loss of profits
therefrom because of the prosecution of any such work or any part thereof.
(b) During business hours and upon reasonable notice to Tenant, Landlord
may, during the Term, show the Premises to prospective purchasers and
mortgagees, and, during the six (6) months prior to expiration of this Lease, to
prospective tenants.
(c) In exercising its rights under this Paragraph 24, Landlord shall use
reasonable and diligent efforts to minimize the disruption of the normal
operation of Tenant's business. Landlord, and any third parties entering the
Premises at
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Landlord's invitation or request shall at all times strictly observe any
reasonable rules relating to security on the Premises which Tenant has provided
to Landlord prior to such entry. Tenant shall have the right, in its sole
discretion, to designate a representative to accompany Landlord, or any third
parties, while they are on the Premises.
25. Parking Facilities.
------------------
Tenant, its employees, agents, customers and visitors shall have the right
to use the following parking facilities at the Building: 6.848 spaces divided by
one thousand and then multiplied by the Rentable Floor Area of the Premises, for
a total of 385 spaces. All parking shall be provided at no cost to Tenant
during the Term.
26. Signs.
-----
Landlord shall place the Tenant's name and location on the bulletin board
or directory in the Building, and afford Tenant, without charge, the placing of
the customary number of names in the Building directory. Tenant shall be
permitted to place its name on the exterior doors of the Building. Tenant shall
have the right to design and designate the location on the Land of one (1)
monument-type sign naming the Building. Landlord shall bear $7,500.00 of the
cost and Tenant any excess cost of designing, purchasing and installing said
monument-type sign. The cost of maintaining, repairing or replacing said
monument-type sign shall be included within Operating Expenses. The monument-
type sign shall be subject to the prior approval of Landlord as to size,
materials and method of lighting and attachment, which approval shall not be
unreasonably withheld. Tenant acknowledges that such sign must also comply
with, and shall be installed only if permitted by, Legal Requirements.
27. Rules and Regulations.
---------------------
Tenant agrees to comply with all reasonable written rules and regulations
which the Landlord may establish for the protection and welfare of the Tenant,
the Building and all the other tenants and occupants, provided that all such
rules and regulations shall be uniformly applicable to all tenants and occupants
and shall not interfere with Tenant's use of the Premises. Landlord agrees to
enforce the Rules and Regulations in a uniform manner. Tenant shall be given a
copy of the rules
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at least ten (10) days before they become effective. A copy of the current
rules and regulations are attached as Exhibit K. In the event of a conflict
---------
between the rules and regulations, and the provisions of this Lease, the
provisions of this Lease shall prevail.
28. Access.
------
For such period of time as Tenant has the right under this Lease to occupy
the Premises, subject to reasonable security procedures, Tenant shall have full
and unimpaired access to the Building and the Premises at all times, and if
access to a public road is via private roads or streets, Tenant shall have the
right to use such roads and streets for ingress and egress to the Building and
the Premises.
29. Use of the Roof and Building Structure.
--------------------------------------
Tenant and Tenant Affiliates shall have the right to use a portion of the
roof of the Building and building structure for installation and use of one or
more microwave dishes or other communications radio antenna and associated
equipment ("Communication Equipment"). Tenant shall have no obligation to pay
Rent for such right, but Tenant shall, at its sole cost and expense, maintain
any Communication Equipment in good condition and repair, and comply with the
terms and conditions set forth on Exhibit L for use of the roof and building
---------
structure.
30. Tenant's Default; Rights and Remedies.
-------------------------------------
(a) The occurrence of any one or more of the following matters constitutes
an "Event of Default" by Tenant under this Lease:
(i) failure by Tenant to pay any installment of Rent or any other
charge or assessment against Tenant pursuant to the terms hereof within five (5)
days after receipt by Tenant of written notice of such failure to pay on the due
date; provided, however, such notice and such grace period shall be required to
be provided by Landlord and shall be accorded Tenant if necessary, only two
times during any consecutive twelve month period of the Term, and an Event of
Default shall be deemed to have immediately occurred upon the third failure by
Tenant to make a timely payment as aforesaid within any consecutive twelve (12)
month period of the Term;
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<PAGE>
(ii) failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure continues for
thirty (30) days after receipt of written notice from Landlord to Tenant,
provided, however, if such default is of a nature that it can be cured and if
Tenant in good faith commences to cure such default within such thirty (30) day
cure period, but due to the nature of such default it could not be cured within
such cure period after due diligence, no Event of Default shall be deemed to
have occurred at the end of the cure period if Tenant is then diligently
pursuing such cure to completion, and completes such cure as promptly as
reasonably possible under all the circumstances;
(iii) Tenant or any guarantor of this Lease shall make a general
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts as they become due, or shall file a petition in bankruptcy, or
shall be adjudicated as bankrupt or insolvent, or shall file a petition in any
proceeding seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall file an answer admitting or fail timely to contest
the material allegations of a petition filed against it in any such proceeding;
(iv) a proceeding is commenced against Tenant or any guarantor of this
Lease seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, and such proceeding shall not have been dismissed within
forty-five (45) days after the commencement thereof;
(v) a receiver or trustee shall be appointed for the Premises or for
all or substantially all of the assets of Tenant or of any guarantor of this
Lease;
(vi) Tenant shall do or permit to be done anything which creates a
lien upon the Premises or the Property and such lien is not removed or
discharged by bond or otherwise within thirty (30) days after written notice to
Tenant of the filing thereof; or
(vii) Tenant shall assign this Lease or sublease the Premises, in
whole or in part, in contravention of the terms of Paragraph 16(a)(i) through
(iv) hereof.
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<PAGE>
(b) If an Event of Default by Tenant occurs,
(i) Landlord may terminate this Lease, by giving Tenant written notice
of Landlord's election to do so, in which event the Term shall end, and all
right, title and interest of the Tenant hereunder shall expire, and Tenant shall
surrender the Premises to Landlord, on the date stated in such notice, and if
Tenant fails to do so, Landlord may without prejudice to any other remedy which
it may have for possession or arrearages in Rent, enter upon and take possession
of the Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any part thereof, by lawful force, if necessary,
without being liable for prosecution or any claim of damages therefor; or
(ii) Landlord, without notice or demand, may terminate the right of
the Tenant to possession of the Premises without terminating the Lease and if
Landlord so terminates Tenant's right of possession, Landlord may enter upon and
take possession of the Premises and expel or remove Tenant and any other person
who may be occupying the Premises or any part thereof, by entry (including the
use of lawful force, if necessary), dispossessory suit or otherwise, without
thereby releasing Tenant from any liability hereunder, without terminating this
Lease, and without being liable for prosecution or any claim of damages therefor
and, if Landlord so elects, make such alterations, redecorations and repairs as,
in Landlord's judgment, may be necessary to relet the Premises, and Landlord may
relet the Premises or any portion thereof in Landlord's or Tenant's name, but
for the account of Tenant, for such term or terms (which may be for a term
extending beyond the Term) and at such rental or rentals and upon such other
terms and conditions, which may include without limitation concessions and free
rent periods, as Landlord may reasonably deem advisable, with or without
advertisement, and by private negotiations, and receive the rent therefor; or
(iii) enter upon the Premises without being liable for prosecution or
any claim of damages therefor, and do whatever Tenant is obligated to do under
the terms of this Lease; and Tenant agrees to reimburse Landlord on demand for
any expenses including, without limitation, reasonable attorneys' fees which
Landlord may incur in thus effecting compliance with Tenant's obligations under
this Lease and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant
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from such action, whether caused by negligence of Landlord or otherwise.
(c) If Landlord shall reenter the Premises and take possession from
Tenant without terminating this Lease, provided that Tenant has vacated the
Premises and is not contesting Landlord's right to the possession of the
Premises, Landlord will use reasonable efforts to relet the Premises and thereby
mitigate the damages which Landlord shall incur. Tenant hereby agrees that
Landlord's agreement to use reasonable efforts to relet the Premises in order to
mitigate its damages shall not be deemed to impose upon Landlord an obligation
to relet the Premises (i) for any purpose other than use permitted under this
Lease or (ii) to any tenant who is not financially capable of performing the
duties and obligations imposed such tenant under the applicable lease, or (iii)
to prefer the Premises over any other space available in the Building.
(d) If an Event of Default by Tenant or any person claiming through or
under Tenant of any of the terms of this Lease should occur, Landlord shall be
entitled to seek to enjoin such default and shall have the right to invoke any
right allowed at law or in equity, by statute or otherwise, as if re-entry,
summary proceedings or other specific remedies were not provided for in this
Lease, except that Landlord shall not have any right to place a lien on any of
Tenant's Property and Landlord expressly waives and releases any right to obtain
such lien.
(e) Should Landlord terminate Tenant's rights to possession without
terminating this Lease,
(i) Tenant shall pay to Landlord all Rent to the date upon which
Tenant's right to possession under this Lease shall have been terminated; and
(ii) Tenant shall be liable for and shall pay to Landlord, as
damages, any deficiency between (A) all Rent reserved hereunder, and (B) the net
amount, if any, of rents ("Net Rent") collected by Landlord under any reletting
effected pursuant to the provisions of this Paragraph 30 for any period after
termination of Tenant's right to possession, after first deducting from the
rents collected under any such reletting all of Landlord's expenses in
connection with Landlord's reentry, such reletting, and the termination of
Tenant's right to
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possession, including without limitation all repossession costs, brokerage
commissions, lease assumptions, legal expenses, alteration costs and other
expenses of preparing the Premises for such reletting (such expenses being
referred to as the "Reletting Expenses"). Such deficiency shall be paid in
monthly installments by Tenant on the days specified in this Lease for the
payment of installments of Fixed Rent. Landlord shall be entitled to recover
from Tenant each monthly deficiency as the same shall arise and no suit to
collect the amount of the deficiency for any month shall prejudice Landlord's
right to collect the deficiency for any prior or subsequent month by a similar
proceeding or otherwise. A suit or suits for the recovery of such deficiencies
may be brought by Landlord from time to time at its election. Tenant shall be
liable for the Reletting Expenses. In no event shall Tenant be entitled to any
Net Rent received by Landlord.
(f) Whether or not Landlord shall have collected any monthly
deficiencies as provided in Paragraph 30(e), in the event Landlord at any time
terminates this Lease as a result of the occurrence of an Event of Default by
Tenant, Landlord shall be entitled to recover from Tenant, and Tenant shall pay
Landlord, on demand, as liquidated damages for Tenant's failure to comply with
the terms and provisions of this Lease (Landlord and Tenant agreeing that
Landlord's actual damages in such event are impossible to ascertain and that the
amount set forth below is a reasonable estimate thereof) and not as a penalty, a
sum equal to (v) the amount of Rent and other charges and assessments due and
payable through the date of termination of this Lease, plus (w) the cost
(including, without limitation, court costs and attorneys' fees) of recovering
possession of the Premises, plus (x) the cost of any alteration or redecoration
of or repair to the Premises which Landlord in good faith believes is necessary
or proper to prepare the same for reletting, plus (y) the amount by which (A)
the entire amount of Rent and other charges and assessments which in Landlord's
reasonable determination would have become due and payable to Landlord for the
period ending on the Expiration Date and beginning on the date of termination of
this Lease, exceeds (B) an amount equal to the then fair and reasonable rental
value of the Premises for the same period, both amounts discounted to present
value at the "Discount Rate" published in The Wall Street Journal at the time of
determination. If, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the Premises or any part thereof shall have
been relet by Landlord
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for a period which but for the termination of this Lease would have constituted
all or any part of the unexpired portion of the Term, the amount of rent upon
such reletting (after giving due consideration to all concessions such as but
not limited to free rent and improvement allowances) shall be deemed, prima
facie, to be the fair and reasonable rental value for the part or the whole of
the Premises (as the case may be) so relet during the term of such reletting,
but shall not have any evidentiary effect with respect to the fair and
reasonable rental value of any other portion of the Premises or with respect to
the fair and reasonable rental value of the Premises or any portion thereof for
the period which but for the termination of this Lease would have constituted
the unexpired portion of the Term other than the term of such reletting. Upon
the acceleration of such amounts, Tenant agrees to pay the same at once,
together with all Rent and other charges and assessments theretofore due, at
Landlord's address as provided herein.
(g) In no event shall Tenant be entitled (A) to receive any excess of
any Net Rent over the sums payable by Tenant to Landlord hereunder or (B) in any
suit for the collection of damages pursuant to this Paragraph 30 to a credit in
respect of any Net Rent [except as provided in Paragraph 30(e)(ii)]. Should the
Premises or any part thereof be relet in combination with other space, then
proper apportionment on a square foot area basis (unless Landlord reasonably
determines that another method of allocation of such expenses is proper) shall
be made of the rent received from such reletting and the expenses of reletting.
(h) If Landlord spends any money to cure such Event of Default by
Tenant, then Landlord shall also be entitled to interest on such expenditure at
the Interest Rate.
(i) Nothing contained herein shall be construed as limiting or
precluding the recovery by Landlord from Tenant of any sums or damages to which,
in addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant.
(j) Pursuit by Landlord of any of the foregoing remedies shall not
preclude pursuit of any other remedy herein provided or any other remedy
provided by law or at equity, nor shall pursuit by Landlord of any remedy herein
provided constitute an election of remedies thereby excluding the later election
of an alternate
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remedy, or a forfeiture or waiver of any Rent or other charges and assessments
payable by Tenant and due to Landlord hereunder or of any damages accruing to
Landlord by reason of violation of any of the terms, covenants, warranties and
provisions herein contained. No reentry or taking possession of the Premises by
Landlord or any other action taken by or on behalf of Landlord shall be
construed to be an acceptance of a surrender of this Lease or the Premises or an
election by Landlord to terminate this Lease unless written notice of such
intention is given to Tenant. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon an Event of Default shall not be deemed or
construed to constitute a waiver of such Event of Default. In determining the
amount of loss or damage which Landlord may suffer by reason of termination of
this Lease or the deficiency arising by reason of any reletting of the Premises
by Landlord as above provided, allowance shall be made for the expense of
repossession. Tenant agrees to pay to Landlord all costs and expenses incurred
by Landlord in the enforcement of this Lease, including, without limitation, the
fees of Landlord's attorneys as provided in Paragraph 37 hereof.
31. Landlord's Default; Rights and Remedies.
---------------------------------------
(a) The occurrence of the following constitutes an "Event of Default"
by Landlord under this Lease:
failure by Landlord to observe or perform any covenant, agreement,
condition or provision of this Lease which materially affects the use or
tenantability of the Premises, if such failure shall continue for thirty
(30) days after receipt of written notice from Tenant to Landlord (and any
mortgagee of Landlord the address for which Landlord has provided in a
written notice to Tenant) specifying such failure, provided, however, if
such default is of a nature that it can be cured and if Landlord in good
faith commences to cure such default within such thirty (30) day cure
period, but due to the nature of such default it could not be cured within
such cure period after due diligence, no Event of Default shall be deemed
to have occurred at the end of the cure period if Landlord is then
diligently pursuing such cure to completion, and completes such cure as
promptly as reasonably possible under all the circumstances.
(b) If an Event of Default by Landlord occurs, Tenant shall have the
right, but not the obligation, to spend any monies to
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cure such Event of Default. If Tenant spends any money to cure such Event of
Default by Landlord, then Tenant shall also be entitled to interest on such
expenditure at the Interest Rate.
(c) If an Event of Default by Landlord occurs, Tenant shall have the
right to invoice Landlord the cost and expenses incurred by Tenant in connection
with curing such Event of Default, and Landlord shall reimburse Tenant within
thirty (30) days following receipt of such invoice. If Landlord shall fail to
reimburse Tenant for such cost and expenses within such thirty (30) day period,
Tenant shall have the right to deduct such cost and expenses from Fixed Rental
thereafter due hereunder, provided, however, that in the event Landlord notifies
Tenant that it disputes the existence of any such Event of Default, during the
pendency of such dispute, Tenant may pay the amount in dispute to an independent
escrow agent of its choice to be held by the agent pending resolution of the
dispute. Tenant shall not be deemed to be in default hereunder by reason of
such payment until the dispute is resolved in favor of Landlord and Tenant fails
to cause the agent to pay the amount determined to be payable to Landlord within
ten (10) days after Tenant is notified of the determination. Tenant and Landlord
shall negotiate in good faith to resolve the dispute by agreement.
32. Holding Over.
------------
Should Tenant remain in possession of the Premises after the
expiration of this Lease, unless Landlord and Tenant have entered into a written
agreement to the contrary, Tenant shall become a tenant from month to month,
terminable as of the last day of any calendar month by either party upon at
least thirty (30) days' prior written notice to the other and there shall be no
renewal of this Lease by operation of law; provided, however, that in the event
of the giving of such notice of termination by Landlord, should Tenant remain in
possession of the Premises after the date of termination of such month to month
tenancy, Tenant shall become a tenant-at-sufferance as of the date of such
termination, and there shall be no renewal of this Lease or of such month to
month tenancy by this Paragraph or by operation of law. During the period of
any such holding over, all provisions of this Lease shall be and remain in
effect except that the daily rental shall be calculated based on a monthly
rental equal to one hundred twenty-five percent (125%) of the amount of Rent
(including any adjustments as provided herein) payable for the last full
calendar month of the Term including renewals or extensions for
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the first three (3) months of any such holding over and one hundred fifty
percent (150%) thereafter. The inclusion of the preceding sentences in this
Lease shall not be construed as Landlord's consent for Tenant to hold over.
Notwithstanding the foregoing provisions of this Paragraph 32 to the contrary,
in the event of any conflict between the terms and provisions of this Paragraph
32 and the terms and provisions of Paragraph 30, the terms and provisions of
Paragraph 30 shall control for all purposes.
33. Quiet Enjoyment.
---------------
Landlord covenants that if and for so long as Tenant pays the Rent and
performs the covenants and conditions hereof, Tenant shall peaceably and quietly
have, hold and enjoy the Premises for the Term, without hindrance, claim or
molestation by Landlord or any other person lawfully claiming under Landlord.
34. Mutual Representation of Authority.
----------------------------------
(a) Landlord and Tenant represent and warrant to each other that they
have full right, power and authority to enter into this Lease without the
consent or approval of any other entity or person and each party makes these
representations knowing that the other party will rely thereon.
(b) The signatories on behalf of Landlord and Tenant further represent
and warrant that each has full right, power and authority to act for and on
behalf of Landlord and Tenant in entering into this Lease.
35. Landlord's Claims.
-----------------
Any "Surrender Claims" (as hereinafter defined) by Landlord must be
presented in writing by Landlord to Tenant within one hundred twenty (120) days
after expiration or termination of this Lease or shall be deemed irrevocably
waived. "Surrender Claims" shall mean claims to the extent the same arise
solely out of the failure of Tenant to surrender the Premises in the condition
required by Paragraph 52 or to maintain and repair the Premises as required by
Paragraph 11. Surrender Claims do not include, inter alia, claims arising under
or pursuant to Paragraph 10. The foregoing provisions of this Paragraph shall
not apply in the event this Lease is terminated by Landlord as a result of an
Event of Default by Tenant.
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36. Real Estate Brokers.
-------------------
(a) Tenant represents that Tenant has dealt directly with and only
with Koll Management Services, Inc. (the "Listed Broker") (whose commission
shall be paid by Landlord pursuant to separate agreement), in connection with
this Lease and agrees to defend, indemnify and save harmless Landlord against
all claims, liabilities, losses, damages, costs and expenses (including without
limitation reasonable attorneys' fees and other costs of defense) arising from
Tenant's breach of this representation or as a result of any claim for any fee,
commission or similar compensation with respect to this Lease made by any
broker, agent or finder (other than Listed Broker and ADEVCO Realty Group, LLC)
claiming to have dealt with Tenant.
(b) Except for Tenant's breach of Paragraph 36(a), Landlord hereby
agrees to defend, indemnify and save harmless Tenant against all claims,
liabilities, losses, damages, costs and expenses (including without limitation
reasonable attorneys' fees and other costs of defense) arising from the claims
or demands of the Listed Broker and any other brokers or finders who represented
Landlord, whether or not disclosed, with respect to this Lease, for any
commission alleged to be due any such brokers or finders in connection with this
Lease or the transactions contemplated hereby.
(c) If Landlord fails to pay the Listed Broker's commission when due,
and such failure continues uncured for thirty (30) days after receipt by
Landlord of written notice of such delinquency from the Listed Broker, Tenant
shall have the option, but not the obligation, to pay the Listed Broker the
amounts then due and payable to the Listed Broker. Tenant shall have the right
to deduct the amount so paid from Fixed Rental thereafter due hereunder,
provided, however, that in the event Landlord notifies Tenant that it disputes
the existence of such failure to pay the Listed Broker, during the pendency of
such dispute, Tenant may pay the amount in dispute to an independent escrow
agent of its choice to be held by the agent pending resolution of the dispute.
Tenant shall not be deemed to be in default hereunder by reason of such payment
until the dispute is resolved in favor of Landlord and Tenant fails to cause the
agent to pay the amount determined to be payable to Landlord within ten (10)
days after Tenant is notified of the determination. Tenant and Landlord shall
negotiate in good faith to resolve the dispute by agreement.
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(d) Tenant shall cause any agent or broker representing Tenant to
execute a lien waiver to and for the benefit of Landlord, waiving any and all
lien rights with respect to the Building, the Property and the Land which such
agent or broker has or might have under Oklahoma law. Landlord shall cause any
agent or broker representing Landlord to execute a lien waiver to and for the
benefit of Landlord and Tenant, waiving any and all lien rights with respect to
the Building, the Property and the Land which such agent or broker has or might
have under Oklahoma law.
37. Attorneys' Fees.
---------------
In the event Landlord or Tenant defaults in the performance of any of
the terms, agreements or conditions contained in this Lease and the non-
defaulting party places the enforcement of this Lease, or any part thereof, or
the collection of any Rent due or to become due hereunder, or recovery of the
possession of the Premises, in the hands of an attorney, or files suit upon the
same, and should such non-defaulting party prevail in such suit (and any and all
appeal periods, as provided by law, with respect thereto have expired with no
appeal having been filed; or if filed, rejected or terminated finally and
conclusively in favor of the non-defaulting party), the defaulting party, to the
extent permitted by applicable law, agrees to pay the non-defaulting party all
reasonable attorney's fees actually incurred by the non-defaulting party.
38. Estoppel Certificate.
--------------------
(a) Tenant agrees, upon not less than fifteen (15) days prior written
request by Landlord, to deliver to Landlord a statement in writing signed by
Tenant, addressed to Landlord, any mortgagee or assignee of Landlord's interest
in, or purchaser of, the Premises or the Building or the Property or any part
thereof, certifying (i) that this Lease is unmodified and in full force and
effect (or if there have been modifications, identifying the modifications and
certifying that the Lease is in full force and effect as modified); (ii) the
date upon which Tenant began paying Fixed Rent and the dates to which the Fixed
Rent has been paid; (iii) that, to the best of Tenant's knowledge, the Landlord
is not in default under any provision of this Lease, or, if in default, the
nature thereof; (iv) that there has been no prepayment of Fixed Rent other than
that provided for in this Lease; and (v) that there are no defenses or offsets
against the
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enforcement of this Lease or stating those claimed by Tenant. Such certificate
shall also include such other factual information as may reasonably be required
by such mortgagee, proposed mortgagee, assignee, purchaser or Landlord. Any
such certificate may be relied upon by Landlord, any mortgagee, proposed
mortgagee, assignee, purchaser and any other party to whom such certificate is
addressed. The estoppel certificate may contain the following: "Notwithstanding
any other provision of this Estoppel Certificate to the contrary, nothing herein
shall be construed as a waiver of (i) any right which Tenant may have to audit
any payments made under the Lease, (ii) any right to claim that any such
payments were not properly charged or calculated in accordance with the Lease,
or (iii) any right to recover from the applicable present, former or future
landlord (including Landlord) any such payments made to such landlord which were
in excess of the amount properly due under the Lease."
(b) Landlord, upon not less than ten (10) days prior written request
from Tenant, shall furnish a statement in writing to Tenant certifying (a) that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that this Lease is in full force and effect as modified, and
stating the modifications), (b) the dates to which Rent payable by Tenant
hereunder have been paid, and (c) whether or not, to the knowledge of Landlord,
a default or Event of Default by Tenant has occurred under this Lease which has
not been cured (and if so, specifying the same).
39. Recordable Memorandum.
---------------------
Landlord and Tenant agree not to record this Lease, but each party
agrees, upon request by the other, to execute a memorandum of this Lease in
recordable form and in compliance with applicable law, with a description of the
Premises, the term of this Lease and any other portions hereof, excepting the
rental provisions, as either party may reasonably request. Any and all
recording costs required in connection with the recording of such Memorandum of
Lease shall be paid by the party requesting recordation.
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40. Options to Extend.
-----------------
(a) Landlord hereby grants to Tenant the exclusive and irrevocable
option to extend the Term for two (2) additional periods (each such additional
period being an "Extended Term") of five (5) year(s) each by giving Landlord
written notice at least twelve (12) months prior to the Expiration Date of the
Primary Term or the then applicable Extended Term. Tenant shall have the right
to exercise these options to extend provided that on the date of such exercise
no Event of Default by Tenant then exists under this Lease and there then exists
no uncured default by Tenant with respect to which Landlord has given written
notice to Tenant pursuant to the provisions of Paragraph 30 hereof.
(b) Each Extended Term shall be on the terms, covenants and conditions
of this Lease then applicable, except that the Fixed Rent for each Extended Term
shall be the "Fair Market Rent" (as hereinafter defined) and except that after
the exercise of the option for the first Extended Term, Tenant shall have only
one (1) option to extend, and after the exercise of the option for the second
Extended Term, Tenant shall have no further options to extend the Term. "Fair
Market Rent" shall mean (i) the annual effective rental rate per square foot of
rentable floor area then being charged by landlords under new leases of office
space in the metropolitan Oklahoma City, Oklahoma, market for space similar to
the Premises in a building of comparable quality and with comparable parking and
other amenities, taking into account concessions offered to new tenants such as
free rent, tenant improvement allowances, moving allowances and other such
concessions, and taking into account Tenant's repair and maintenance obligations
under this Lease and the Taxes and expenses Tenant is obligated to pay under
this Lease (or, if applicable, that Tenant is obligated to pay Tenant's
Proportionate Share of Operating Expenses and Taxes pursuant to Paragraph 52 and
Exhibit "M" in lieu thereof); (ii) the amount of space and length of term taken
by the tenant; and (iii) the credit worthiness and quality of the tenant.
(c) On or before the date thirteen (13) months prior to the Expiration
Date of the Primary Term or the then applicable Extended Term, but in no event
more than sixteen (16) months prior to the Expiration Date of the Primary Term
or the then applicable Extended Term, Landlord will advise Tenant of Landlord's
determination of Fair Market Rent for the applicable Extended Term. If Tenant
exercises its option to extend, and
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Landlord and Tenant cannot agree on the Fair Market Rate for the Extended Term
within thirty (30) days after Tenant exercises its option to extend, then within
forty five (45) days after Tenant exercises its option to extend, Landlord and
Tenant shall each appoint one (1) "Qualified Real Estate Appraiser" (as
hereinafter defined). Those two (2) Qualified Real Estate Appraisers shall
promptly appoint a third (3rd) Qualified Real Estate Appraiser. If such
Qualified Real Estate Appraisers fail to appoint such third (3rd) Qualified Real
Estate Appraiser within ten (10) business days after notice of their
appointment, then either Landlord or Tenant, upon written notice to the other,
may request the appointment of a third (3rd) appraiser by the then President of
the Board of Realtors in the Oklahoma City, Oklahoma area or any then similar
existing body. Each appraiser so appointed shall independently make appraisals
of the Fair Market Rent for the applicable Extended Term. Except as hereinafter
provided, the Fair Market Rent for the applicable Extended Term shall be the
average of the three (3) appraisals of the Fair Market Rent; provided, however,
if the determination of the Fair Market Rent of one (1) Qualified Real Estate
Appraiser is disparate from the median of all three (3) determinations of Fair
Market Rent by more than twice the amount by which the other determination is
disparate from the median, then the determination of such Qualified Real Estate
Appraiser shall be excluded, the remaining two (2) determinations shall be
averaged and such average shall be binding and conclusive on Landlord and
Tenant. If, after notice by either Landlord or Tenant of the appointment of a
Qualified Real Estate Appraiser by the party giving such notice, the other party
to whom such notice is given shall fail, within a period of ten (10) business
days after such notice, to appoint a Qualified Real Estate Appraiser, then the
Qualified Real Estate Appraiser so appointed by the party giving notice shall
have the power to proceed as sole Qualified Real Estate Appraiser to determine
the Fair Market Rent for the applicable Extended Term. Landlord shall pay the
fees and expenses of the person appointed by Landlord as a Qualified Real Estate
Appraiser hereunder, and Tenant shall pay the fees and expenses of the person
appointed by Tenant as a Qualified Real Estate Appraiser hereunder. Landlord
and Tenant shall each pay one-half (1/2) of the fees and expenses of the third
(3rd) Qualified Real Estate Appraiser appointed pursuant to the provisions of
this Paragraph.
(d) As used in this Paragraph, the term "Qualified Real Estate
Appraiser" shall mean a member of the American Institute of Real Estate
Appraisers (or successor organization) having at
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least ten (10) years experience in appraisal of office buildings and office
rental rates in the metropolitan Oklahoma City, Oklahoma area.
(e) Tenant may not assign the options to extend under this Paragraph
40 to any subtenant of the Premises or any assignee of this Lease other than an
"Affiliate" nor may any such subtenant or assignee other than an Affiliate
exercise the options to extend.
41. Intentionally Omitted.
---------------------
42. Confidentiality.
---------------
Except as hereinafter provided in this Paragraph 42, Landlord shall
not make, nor shall it authorize any broker to make, any public announcement or
press release concerning this transaction unless it has received Tenant's
written consent, which will not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Tenant acknowledges and agrees that Landlord and
Fund IX and Fund X Associates, a Georgia joint venture comprised of Wells Real
Estate Fund IX, L.P. and Wells Real Estate Fund X, L.P., shall have the right to
disclose this transaction, this Lease and the identity of Tenant to the
Securities and Exchange Commission and to current, future and potential
investors (and their representatives) in such Limited Partnerships.
43. Governing Law.
-------------
This Lease shall be construed and interpreted in accordance with the
laws of the state where the Premises are located, except for its conflict of law
rules.
44. Notices.
-------
Any notice by either party to the other shall be in writing and shall
be deemed to be duly given only if delivered personally or by courier or sent by
registered or certified mail return receipt requested postage prepaid, or
recognized overnight delivery service (such as but not limited to Federal
Express, United Parcel Service, Airborne or DHL), to the following:
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If to Tenant: Lucent Technologies Inc.
475 South Street
Morristown, New Jersey 07960
Attn: Lease Administration
with a copy to:
Lucent Technologies Inc.
475 South Street
Morristown, New Jersey 07960
Attn: Corporate Counsel - Real Estate
If to Landlord:
Wells Development Corporation
c/o Wells Capital, Inc.
3835 Holcomb Bridge Road
Norcross, Georgia 30092
Attn: Leo F. Wells, III
with a copy to:
Fund IX and Fund X Associates
c/o Wells Capital, Inc.
3835 Holcomb Bridge Road
Norcross, Georgia 30092
Attn: Leo F. Wells, III
with a copy to:
Troutman Sanders LLP
Suite 5200
600 Peachtree Street
Atlanta, Georgia 30308-2216
Attn: John W. Griffin or Managing Partner
or at such other address in the United States as Landlord or Tenant may from
time to time designate by like notice.
Notice shall be deemed to have been given on the date received, if delivered
personally or by courier or overnight delivery service, or, if mailed, three (3)
business days after the date postmarked. Rejection or other refusal to accept
or inability to deliver because of changed address of which no notice was given
shall be deemed to be receipt of such notice.
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45. Intentionally Omitted.
---------------------
46. Counterparts.
-------------
This Lease may be signed in counterparts and each such counterpart
shall be deemed to be an original, but all of which shall constitute one
instrument. Any signature, witness's signature, or both, appearing on a
counterpart of this Lease shall be deemed to appear on all other counterparts of
this Lease. The executed signature pages of any counterpart hereof may be
appended or attached to any other counterpart hereof; and, provided that all
parties hereto shall have executed a counterpart hereof, this Lease shall be
valid and binding upon the parties notwithstanding the fact that the execution
of all parties may not be reflected upon any one single counterpart. This Lease
shall only be and become effective upon its unconditional delivery by and
between the parties hereto.
47. Entire Agreement.
----------------
This Lease constitutes the entire agreement between the parties, there
being no other terms, oral or written, except as herein expressed. No
modification of this Lease shall be binding on the parties unless it is in
writing and signed by both parties hereto.
48. Miscellaneous.
-------------
(a) Time is of the essence of this Lease.
(b) All personal property brought into Premises by Tenant, or Tenant's
employees or business visitors, shall be at the risk of Tenant only, and
Landlord shall not be liable for theft thereof or any damage thereto occasioned
by any act of co-tenants, occupants, invitees or other users of the Building or
any other person, unless such theft or damage is the result of the act of
Landlord or its employees and Landlord is not relieved therefrom by Paragraph 20
hereof. Unless caused by the negligence or willful misconduct of Landlord or
its employees and Landlord is not relieved therefrom by Paragraph 20 hereof,
Landlord shall not at any time be liable for damage to any property in or upon
the Premises which results from power surges or other deviations from the
constancy of the electrical service or from gas, smoke, water, rain, ice or snow
which issues or
49
<PAGE>
leaks from or forms upon any part of the Building or from the pipes or plumbing
work of the same, or from any other place whatsoever.
(c) All personal pronouns used in this Lease, whether used in the
masculine, feminine or neuter gender, shall include all genders, the singular
shall include the plural and vice versa. The headings inserted at the beginning
of each Paragraph are for convenience only and do not add to or subtract from
the meaning of the contents of each Paragraph. No provision of this Lease shall
be construed against or interpreted to the disadvantage of either Tenant or
Landlord by any court, judicial or other governmental authority by reason of
such party's having been deemed to have structured, written, drafted or dictated
such provision.
(d) In the event of strike, lockout, labor trouble, civil commotion,
act of God, or any other cause beyond a party's control (collectively "Force
Majeure") resulting in the Landlord's inability to supply the services or
perform the other obligations required of Landlord hereunder, this Lease shall
not terminate and Tenant's obligation to pay Rent and all other charges and sums
due and payable by Tenant shall not be affected or excused and Landlord shall
not be considered to be in default under this Lease. If, as a result of Force
Majeure, Tenant is delayed in performing any of its obligations under this
Lease, other than Tenant's obligations to pay Rent and all other charges and
sums payable by Tenant hereunder, Tenant's performance shall be excused for a
period equal to such delay and Tenant shall not during such period be considered
to be in default under this Lease with respect to the obligation, performance of
which has thus been delayed.
(e) Landlord shall have no personal liability with respect to any of
the provisions of this Lease. If Landlord is in default with respect to its
obligations under this Lease, Tenant shall look for satisfaction of Tenant's
remedies, if any, solely to the equity of Landlord in and to the Property and to
the proceeds of Landlord's insurance policy or policies actually paid to
Landlord and not applied by Landlord to the applicable claim or to the
restoration of the Building as required by the terms of this Lease (unless same
are not so applied because such proceeds are required by the holder of a
mortgage to be paid to it to reduce the debt secured by such mortgage). It is
expressly understood and agreed that Landlord's liability under the terms
50
<PAGE>
of this Lease shall in no event exceed the amount of its interest in and to the
Property and the aforedescribed proceeds of insurance. In no event shall any
partner of Landlord nor any joint venturer in Landlord, nor any officer,
director or shareholder of Landlord or any such partner or joint venturer of
Landlord be personally liable with respect to any of the provisions of this
Lease.
(f) If any clause or provision of the Lease is illegal, invalid or
unenforceable under present or future laws, the remainder of this Lease shall
not be affected thereby, and in lieu of each clause or provision of this Lease
which is illegal, invalid or unenforceable, there shall be added as a part of
this Lease a clause or provision as nearly identical to the said clause or
provision as may be legal, valid and enforceable.
(g) No failure of Landlord to exercise any power given Landlord
hereunder, or to insist upon strict compliance by Tenant with any obligation of
Tenant hereunder, and no custom or practice of the parties at variance with the
terms hereof, shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof. No failure of Tenant to exercise any power
given Tenant hereunder, or to insist upon strict compliance by Landlord with any
obligation of Landlord hereunder, and no custom or practice of the parties at
variance with the terms hereof, shall constitute a waiver of Tenant's right to
demand exact compliance with the terms hereof.
49. Land Acquisition.
----------------
The parties acknowledge that Landlord has entered into an agreement
for the purchase of the Land, and the obligations of the parties hereto are
conditioned upon the acquisition of the Land by Landlord on or before the date
thirty (30) days after the date hereof. Landlord agrees to use good faith
efforts to acquire to the Land on or before such date. In the event the Land is
not acquired by Landlord on or before the date thirty (30) days after the date
hereof, either Landlord or Tenant may elect, by notice given to the other on or
before the date sixty (60) days after the date hereof, to terminate this Lease,
unless Landlord has acquired the Land prior to such notice of termination.
51
<PAGE>
50. Option to Terminate.
-------------------
Tenant is hereby granted a one time option to terminate this Lease as
of the date (the "Optional Termination Date") which is the last day of the month
within which the seventh anniversary of the Rental Commencement Date occurs. In
order to exercise such option to terminate, (a) Tenant must give written notice
to Landlord of the exercise by Tenant of such option to terminate at least
twelve (12) months in advance of the Optional Termination Date; (b) Tenant must
include with such notice payment to Landlord, in immediately available funds, of
an amount equal to the Termination Payment (as hereinafter defined), which shall
be in addition to and not in lieu of any Rent payable under this Lease through
the end of the Term as shorted by Tenant's election of such option to terminate;
and (c) on the date of such purported exercise there must be no default and no
Event of Default by Tenant then existing. In the event Tenant gives such notice
with such payment at least twelve (12) months in advance of the Optional
Termination Date, the Term of this Lease shall end on the Optional Termination
Date, unless sooner terminated. All Rent shall be accounted for as of the
Optional Termination Date. The "Termination Payment" is determined as follows:
"Construction Monthly Payments" shall be the monthly payments obtained by
amortizing over 120 equal monthly payments at an interest rate of 10.5% per
annum the Construction Allowance ($15.00 multiplied by the Rentable Floor
Area of the Premises [regardless of the amounts actually paid (or credited)
by Landlord to Tenant with respect to the Premises].
"Commission Monthly Payments" shall be the monthly payments obtained by
amortizing over 120 equal monthly payments at an interest rate of 10.5% per
annum the commissions paid or payable by Landlord to Listed Broker with
respect to the Premises.
Calculate the present value ("Present Value") of the Construction Monthly
Payments and the Commission Monthly Payments (using a discount rate of
10.5% per annum) over the period from the Optional Termination Date to the
Expiration Date.
"Rent Payment" shall mean the then current Fixed Rent multiplied by 18.
52
<PAGE>
The Termination Payment is the sum of the Present Value and the Rent
Payment.
An example of the calculation of the Termination Payment is attached hereto
as Exhibit H.
---------
51. Surrender.
---------
Upon the expiration or other termination of this Lease, Tenant shall quit
and surrender to Landlord the Premises and every part thereof and all
alterations, additions and improvements thereto, broom clean and in good
condition and state of repair, reasonable wear and tear only excepted. Tenant
shall remove all Tenant's Property from the Premises, and Tenant shall restore
the Premises to the condition immediately preceding the time of placement
thereof. If Tenant shall fail or refuse to remove all of Tenant's Property from
the Premises upon the expiration or termination of this Lease for any cause
whatsoever or upon the Tenant being dispossessed by process of law or otherwise,
Tenant's Property shall be deemed conclusively to be abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without obligation to account for Tenant's Property. Tenant shall pay Landlord
on demand any and all expenses incurred by Landlord in the removal of Tenant's
Property, including, without limitation, the cost of repairing any damage to the
Building or Property caused by the removal of Tenant's Property and storage
charges (if Landlord elects to store Tenant's Property). The covenants and
conditions of this Paragraph 51 shall survive any expiration or termination of
this Lease.
52. Reduction of Premises.
---------------------
Provided no Event of Default by Tenant then exists under this Lease, and
provided that Lucent Technologies Inc. or a Tenant Affiliate is the Tenant then
occupying the Premises under this Lease, Tenant shall have the one-time right to
reduce the size of the Premises by 15,000 square feet of usable area by
eliminating either Area A or Area B (as those areas are shown on Exhibit F
---------
attached hereto and by reference made a part hereof) from the Premises effective
as of the date (the "Reduction Date") which is the last day of the month within
which the second anniversary of the Rental Commencement Date occurs by
eliminating either Area A or Area B (as those areas are shown on Exhibit F
---------
attached hereto and by reference made a part hereof) from the Premises effective
53
<PAGE>
as of the Reduction Date. Tenant shall exercise such right to reduce the size
of the Premises, if at all, by (i) providing Landlord, on or before the date one
hundred eighty (180) days prior to the Reduction Date, with written notice of
Tenant's election to reduce the size of the Premises, which notice shall specify
either Area A or Area B as the area to be eliminated from the Premises as of the
Reduction Date (provided however in the event such notice fails to specify Area
A or Area B, Tenant shall be deemed to have elected to eliminate Area A); and
(ii) delivering to Landlord with Tenant's reduction notice, a reduction payment
equal to Seven Hundred Fifty Thousand Dollars ($750,000.00), in immediately
available funds, which shall be in addition to and not in lieu of any Rent
payable under this Lease. No such reduction notice shall be effective unless
the reduction payment in immediately available funds is delivered to Landlord
with such notice, and no such reduction notice shall be effective if it is given
less than one hundred eighty (180) days prior to the Reduction Date. Upon the
giving of a valid reduction notice in accordance with this Paragraph 52
(including without limitation the delivery to Landlord of the reduction payment
in immediately available funds), this Lease shall terminate as of the Reduction
Date with respect to the portion of the Premises eliminated therefrom as a
result of such reduction as fully and completely as if the Reduction Date were
the date herein originally fixed for the expiration of the Term with respect to
such space, and Tenant shall remain liable for all obligations and undertakings
of Tenant under this Lease through the Reduction Date as though the Reduction
Date were the original expiration date of the Term with respect to such space.
Landlord and Tenant acknowledge and agree that the reduction payment as provided
above is a reasonable estimate of the damage to Landlord resulting from the
reduction of the size of the Premises pursuant to this Paragraph 52 and is not a
penalty. Effective as of the Reduction Date, the terms and provisions of
Exhibit "M" attached hereto and by reference made a part hereof shall become
- -----------
effective, and in the event of any conflict between the terms and provisions of
this Lease and the terms and provisions of Exhibit "M", the terms and provisions
-----------
of Exhibit "M" shall control for all purposes.
-----------
54
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of
the day and year first above written.
WITNESS: WELLS DEVELOPMENT CORPORATION
Landlord
/s/ John W. Griffin By: /s/ Brian M. Conlon
- -------------------------------- -------------------------
Title: Executive Vice President
--------------------------
Attest: /s/ Michael C. Berndt
------------------------------
Title: Vice President and CFO
------------------------------
WITNESS: LUCENT TECHNOLOGIES INC.
Tenant
- -------------------------------- By: /s/ John D. Pear
---------------------------------
Title: District Manager
------------------------------
Lucent Technologies
------------------------------
Attest: /s/ Erlinda V. Malig
-----------------------------
Title: Transaction Manager
-----------------------------
55
<PAGE>
EXHIBIT 10(M)
DEVELOPMENT AGREEMENT
---------------------
THIS AGREEMENT, made and entered into this 30th day of May, 1997, by and
----
between WELLS DEVELOPMENT CORPORATION, a Georgia corporation (hereinafter
referred to as the "Owner"), and ADEVCO CORPORATION, a Georgia corporation
(hereinafter referred to as the "Manager").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Owner owns or has the contractual right to acquire that
certain parcel of land located in Oklahoma City, Oklahoma, on which the Owner
proposes to develop and construct an office building with related parking,
landscaping and other site work pursuant to plans and specifications prepared
and to be prepared by Smallwood, Reynolds, Stewart, Stewart & Associates,
Inc.; and
WHEREAS, the Owner desires to engage the Manager as an independent
contractor, upon the terms and conditions set forth herein, to supervise and
to manage the development and construction of such building and other
improvements; and
WHEREAS, the Manager desires to perform such services for the Owner in
consideration of the compensation set forth herein.
NOW, THEREFORE, for and in consideration of the premises, the sum of Ten
Dollars ($10.00) in hand paid by each party to the other, and the mutual
promises, obligations and agreements contained herein, the Owner and the
Manager, intending to be, and being, legally bound, do hereby agree as
follows:
ARTICLE 1
---------
DEFINITIONS
-----------
For purposes of this Agreement, each of the following terms shall, when
used herein with an initial capital letter, have the meaning hereinbelow set
forth.
Agreement. The term "Agreement" means this Development Agreement,
---------
together with all amendments hereto and all exhibits attached hereto.
Architect. The term "Architect" means the architectural firm of
---------
Smallwood, Reynolds, Stewart, Stewart & Associates,
<PAGE>
Inc., and any other firm employed by the Owner as an architect with respect to
the Project.
Architect's Agreement. The term "Architect's Agreement" means the
---------------------
agreement(s) between the Owner and the Architect under which the Architect has
been or shall be engaged to prepare architectural designs, plans, drawings and
specifications for the Project and to render other services in connection with
the design and construction of the Project. The Architect's Agreement is
incorporated herein by this reference.
Building. The term "Building" means a first-class, multiple tenant
--------
three-story office building, containing approximately 58,068 gross square feet
and 57,186 net rentable square feet, which the Owner intends to develop and
construct upon the Land.
Completion Date. The term "Completion Date" means the first day on which
---------------
all of the following have occurred: (i) the construction and equipping of the
Project has been completed in accordance with Architect's plans and
specifications (inclusive of landscaping plans, to the extent that landscaping
can feasibly be installed due to the season), as evidenced by a certificate to
such effect from the Architect, (ii) the Tenant Improvements for the space in
the Building to be occupied by Lucent have been completed in accordance with
the working drawings and specifications for such space, as evidenced by a
certificate to such effect from the Architect, (iii) permanent certificates of
occupancy or their equivalent have been issued by the appropriate governmental
authority with respect to the base building and with respect to the space in
the Building to be occupied by Lucent, (iv) the term of the Lucent Lease has
commenced, (v) Lucent has executed and delivered the Lucent Lease, and (vi)
Lucent has executed and delivered to the "Landlord" under the Lucent Lease an
estoppel certificate substantially in the form attached hereto as Exhibit "E"
-----------
and by reference made a part hereof.
Construction Agreement. The term "Construction Agreement" means,
----------------------
collectively, the construction contract between the Owner and the Contractor
with respect to the Project and such other construction or employment
agreements as may be hereafter entered into by the Owner and a general
contractor or special purpose contractor with respect to the performance of
work or the providing of services to the Project. The Construction Agreement
is incorporated herein by this reference.
2
<PAGE>
Contractor. The term "Contractor" means, collectively, Integra
----------
Construction, Inc. and all other firms employed by the Owner as a general
contractor or as a special purpose contractor with respect to the Project; and
singly any such general or special purpose contractor.
Development Budget. The term "Development Budget" means the budget, a
------------------
copy of which is attached hereto and made a part hereof as Exhibit "B", which
-----------
sets forth the Manager's best estimate of all expenses to be incurred with
respect to the acquisition of the Land, the planning, design, development,
construction and completion of the Project, and the Tenant Improvements for
Lucent.
Development Fee. The term "Development Fee" means the fee to be paid to
---------------
the Manager by the Owner as provided in Section 11.2 hereof.
Development Functions. The term "Development Functions" means those
---------------------
functions of the Manager set forth in Section 4.2 of this Agreement.
Development Period. The term "Development Period" means the period
------------------
commencing on the date of this Agreement and terminating on the date which is
three (3) months after the Completion Date.
Event of Default. The term "Event of Default" means any one or more of
----------------
the events described in Section 14.1 of this Agreement.
Kraxberger. The term "Kraxberger" means David M. Kraxberger, an
----------
individual residing in Cobb County, Georgia.
Lucent. The term "Lucent" means Lucent Technologies, Inc.
------
Lucent Lease. The term "Lucent Lease" means the Lease between Owner and
------------
Lucent dated ___________, 1997.
Lucent Work Fee. The term "Lucent Work Fee" means the fee to be paid to
---------------
the Manager by the Owner as provided in Section 11.3 hereof.
Land. The term "Land" means that certain parcel of land located in
----
Oklahoma City, Oklahoma, as more particularly shown or described on Exhibit
-------
"A" attached hereto and by this reference made a part hereof.
---
3
<PAGE>
Manager. The term "Manager" means Adevco Corporation, a Georgia
-------
corporation.
Monthly Report. The term "Monthly Report" means the report to be
--------------
prepared by the Manager and submitted to the Owner on a monthly basis as
provided in Section 7.2 hereof.
Owner. The term "Owner" means Wells Development Corporation, a Georgia
-----
corporation, or its assigns.
Project. The term "Project" means the Land, the Building, and the Site
-------
Improvements, collectively.
Site Improvements. The term "Site Improvements" means the surface level
-----------------
parking facilities, sufficient to accommodate approximately 385 automobiles,
any and all on and off-site road improvements, walkways, complete utilities
and drainage systems, landscaping work, exterior lighting, ground-mounted
signs and other site improvements which the Owner intends to develop and
construct upon the Land.
Tenant Improvements. The term "Tenant Improvements" means all
-------------------
improvements to be constructed or installed by the "Landlord" on or within the
Project for use or operation by Lucent under or pursuant to the Lucent Lease.
Tenant Improvements Completion Date. The term "Tenant Improvements
-----------------------------------
Completion Date" means with respect to the Tenant Improvements for Lucent, the
first day in which the Tenant Improvements in Lucent's space have been
completed in accordance with the plans and specifications for such Tenant
Improvements, all necessary certificates of occupancy or their equivalent have
been issued by the applicable governmental authority with respect to such
space, and Lucent has accepted its premises (whether or not it has taken
possession of its space) as evidenced by a customary estoppel certificate
executed by such tenant.
ARTICLE 2
---------
ENGAGEMENT OF THE MANAGER
-------------------------
2.1 Engagement. The Owner hereby engages the Manager as the exclusive
----------
development manager of the Project to supervise, to manage, and to coordinate
the planning, design, construction, and completion of the Project, all in
accordance with the terms, conditions and limitations herein set forth. The
Manager hereby accepts such engagement and hereby agrees to diligently use its
best efforts in the performance of its
4
<PAGE>
duties and the Development Functions hereunder, which performance in all
respects and at all times shall be carried out to the same extent and with the
same degree of care and quality as the Manager would exercise in the conduct
of its own affairs if the Manager were the owner of the Project. The Manager
agrees to apply prudent and reasonable business practices in the performance
of its duties hereunder.
2.2 Relationship. With respect to the Owner, the Manager shall at all
------------
times be an independent contractor. No provision hereof shall be construed to
constitute the Manager or any of its officers or employees as an employee or
employees of the Owner nor shall any provision of this Agreement be construed
as creating a partnership or joint venture between the Manager and the Owner.
Neither the Owner nor the Manager shall have the power to bind the other party
except pursuant to the terms of this Agreement. The Manager acknowledges and
agrees that it shall act as a fiduciary hereunder with respect to the Owner
and that, with respect to all of the services to be rendered by the Manager to
the Owner pursuant to this Agreement, the Manager shall have the duty to act
at all times in the best interests of the Owner in rendering such services.
In the event the Owner disapproves of any of the general policies and
procedures of the Manager with respect to the Project and shall have so
notified the Manager, the Manager shall conform its general policies and
procedures with respect to the Project to those requested by the Owner insofar
as such policies may be consistent with the terms and provisions of this
Agreement.
ARTICLE 3
---------
TERM OF AGREEMENT
-----------------
The engagement of the Manager hereunder shall commence on the date on
which this Agreement is executed and shall end on the date which is three (3)
months from and after the Completion Date; provided, however, if any remedial
work to be performed by the Contractor following the completion of the Project
has not been completed or if the Manager has commenced and is diligently
prosecuting, but has not completed, any Tenant Improvements, the term of this
Agreement shall be extended until the date on which any remedial work required
to be performed by the Contractor following completion of the Project shall be
so performed and accepted by the Owner, or until the completion of such Tenant
Improvements, as the case may be.
5
<PAGE>
ARTICLE 4
---------
RESPONSIBILITIES OF THE MANAGER
-------------------------------
4.1 General Responsibility. The Manager's general responsibility
----------------------
hereunder as the Owner's development manager shall be to manage, to supervise,
and to coordinate the planning, design, construction, and completion of the
Project.
4.2 Development Functions. In discharging its general responsibility
---------------------
hereunder, the Manager shall perform and discharge the following specific
responsibilities with respect to the Project (herein collectively referred to
as the "Development Functions"):
4.2.1 The Manager shall negotiate and submit to the Owner, for the
Owner's approval and execution, the Architect's Agreement and the
Construction Agreement.
4.2.2 The Manager, in the name of, and on behalf of, the Owner, shall
maintain and continue the engagement of Smallwood, Reynolds, Stewart,
Stewart & Associates, Inc., as the Architect, and Integra Construction,
Inc., as a Contractor, for the compensation and on the terms provided for
in the Architect's Agreement and the Construction Agreement,
respectively; and the Manager shall supervise, administer and coordinate
the performance of all work done by the Architect and the Contractor.
The Manager shall negotiate, on terms con sistent with and within the
limitations of the Development Budget, and submit to the Owner for the
Owner's approval, contracts with such other design and engineering
professionals and consultants as the Manager deems appropriate for the
design and construction of the Project. Subject to the provisions of
Section 5.2 hereof, the employment of such other design and engineering
professionals on terms not consistent with and within the limitations of
the Development Budget shall be only at the direction of the Owner.
4.2.3 The Manager shall coordinate the acquisition by the Owner of the
Land.
4.2.4 The Manager shall implement the Development Budget as provided
herein.
4.2.5 In implementing the Development Budget and in otherwise
discharging its duties and responsibilities hereunder, the Manager shall
negotiate with, and submit to the Owner (for execution by the Owner)
contracts with,
6
<PAGE>
supervise the performance of, and review and approve or disapprove
applications for payment of the fees, charges, and expenses of, such
architects, engineers, planners, designers, consultants, general
contractors, subcontractors, vendors, and other design and construction
professionals, consultants, and suppliers as the Manager deems necessary
or appropriate to develop the Project in accordance with and subject to
the limitations of the Development Budget. Such fees, charges and
expenses shall be borne by the Owner as contemplated in the Development
Budget. Subject to the provisions of Section 5.2 hereof, the employment,
supervision and payment of such additional architects, engineers,
planners, designers, consultants, general contractors, subcontractors,
vendors, and other design and construction professionals, consultants,
and suppliers on terms not consistent with or within the limitations of
the Development Budget shall be only at the direction of the Owner.
4.2.6 The Manager shall arrange for a preliminary site plan to be
prepared showing the location within the Land of the Building and the
Site Improvements and shall submit such site plan to the Owner for
approval by the Owner. The cost of such site plan shall be borne by the
Owner as contemplated in the Development Budget.
4.2.7 The Manager shall arrange to be prepared such survey and
engineering plans and drawings as are from time to time requested by the
Owner. The costs of such survey and engineering plans shall be borne by
the Owner as contemplated in the Development Budget.
4.2.8 The Manager shall administer and oversee the selection by the
Contractor of major subcontractors and others as appropriate for
construction of the Project and review bids for acceptability from
subcontractors.
4.2.9 The Manager shall review all applicable building codes,
environmental, zoning and land use laws and other applicable local, state
and federal laws, regulations and ordinances concerning the development,
use and operation of the Project or any portion thereof. The Manager
shall make application for and seek to obtain and keep in full force and
effect all necessary governmental approvals and permits, and shall
endeavor to perform such acts as shall be reasonably necessary to effect
compliance by the Owner with all laws, rules, ordinances, statutes, and
regulations of any governmental authority applicable to
7
<PAGE>
the Project. Upon receipt of the Owner's approval, the Manager shall
seek to obtain any permits, variances or rezoning of the Land or any
portion thereof, as are necessary or appropriate to cause the Project to
be in compliance with all such codes, laws, regulations and ordinances.
All costs required to be paid to third parties in order to obtain such
permits, variances or rezonings shall be borne by the Owner as
contemplated in the Development Budget.
4.2.10 The Manager shall review all applicable private restrictions,
covenants and easement agreements concerning the development, use and
operation of the Project or any portion thereof. The Manager shall
endeavor to perform such acts as shall be reasonably necessary to effect
compliance by the Owner with all such restrictions, covenants and
easements.
4.2.11 The Manager shall negotiate and submit to the Owner for the
Owner's approval all contracts for, or otherwise arrange for the delivery
of, and pay all charges imposed on the Owner for, all utilities required
for the development, construction, and operation of the Project,
including, without limitation, water, electricity, telephone, storm
sewer, and sanitary sewer services.
4.2.12 The Manager shall coordinate the services of such accountants and
attorneys as may be engaged by the Owner upon such terms as may be
approved by the Owner and utilize such accounting and disbursement
systems as may be determined by the Owner.
4.2.13 The Manager shall review and make recommendations to the Owner
regarding the Owner's insurance program so that the Owner shall obtain
and keep in force, at the Owner's expense as contemplated in the
Development Budget, such policies of insurance, including, but not
limited to, public liability, all-risk, and builder's risk, in such
amounts and with such carriers as shall be prudent with respect to the
Project.
4.2.14 The Manager shall maintain complete and accurate records
reflecting the progress of the Manager's implementation of the
Development Budget, which records shall include all contracts, purchase
orders, disbursement requests, bids, and proposals of contractors,
suppliers, and vendors, and such other records, plans and information as
the Owner may from time
8
<PAGE>
to time request or as the Manager shall deem appropriate to maintain in
discharging its duties and responsibilities hereunder.
4.2.15 The Manager shall inspect the Project at regular intervals so as
to be kept informed as to the stage of development and the condition of
the Project.
4.2.16 Upon the Owner's prior written authorization, the Manager shall
execute for and on behalf of, and in the name of, the Owner any
applications, requests and other documents which the Manager deems
necessary or appropriate for execution by the Owner in connection with
the development or construction of the Project.
4.2.17 The Manager shall examine the contents of all applications for
payments submitted under the Architect's Agreement or any Construction
Agreement, verify the contents of such applications and prepare, execute
and deliver, or cause to be prepared, executed and delivered such
certificates and other documents as may be required by such Agreements
and shall review and approve all disbursements made by or on behalf of
the Owner under the Architect's Agreement and under any Construction
Agreement, all in accordance with the Development Budget as it may from
time to time be revised pursuant to Section 5.2 hereof. The Manager
shall process all such applications for payments and any other invoices
and charges as expeditiously as possible to avoid all penalties and any
excess interest and to take advantage, wherever possible and desirable,
of vendor discounts. The Manager shall also make recommendations to the
Owner with respect to modifications, clarifications and change orders
necessary or desirable under any Construction Agreement; and the Manager
shall also review and recommend for approval or disapproval by the Owner,
as appropriate, change orders under any Construction Agreement, all in
accordance with the Development Budget as it may from time to time be
revised pursuant to Section 5.2 hereof.
4.2.18 The Manager shall prepare all construction loan draw
requests in form and content sufficient to permit the Owner's lender, if
any, to approve or disapprove such requests.
4.2.19 The Manager shall coordinate, review, administer, manage and
oversee the work, activities and performance of the Architect under the
Architect's
9
<PAGE>
Agreement and of the Contractor under the Construction Agreement. Such
activities by the Manager shall include, without limitation, reviewing,
monitoring and coordinating all construction scheduling to ensure the
orderly process of construction and completion thereof in the manner and
within the time periods required by the Lucent Lease, and reviewing and
verifying all payment requests from the Architect and the Contractor.
The Manager shall serve as the Owner's representative in all discussions,
negotiations, and dealings with the Architect and the Contractor. The
Manager shall periodically (but no less often than weekly) advise the
Owner of the status of the Project and of the performance by the
Architect and by the Contractor of their respective duties and
obligations with respect to the Project. The Manager shall also assist
and advise the Owner with respect to the performance and enforcement by
the Owner of its duties and rights under the Architect's Agreement and
the Construction Agreement. The Manager shall coordinate with the
Architect and the Contractor an orderly and expeditious transition from
the construction stage of the Project to the operating and leasing stage
of the Project and, in connection therewith, the Manager shall expedite
and supervise the completion of any remedial work that may be required to
be performed by the Contractor following the completion of the Project.
4.2.20 The Manager shall cooperate with the Owner's inspecting engineer,
if any, engaged for the purpose of reviewing the status of the work.
4.2.21 The Manager shall purchase, to the extent the same are not
provided under the Construction Agreement, all supplies, materials, and
equipment required in connection with the development of the Project, and
the cost of same shall be borne by the Owner as contemplated in the
Development Budget.
4.2.22 The Manager shall coordinate, review, administer, manage and
oversee the work and activities relating to, and the performance of, the
Tenant Improvements to be constructed and installed by the "Landlord"
under the Lucent Lease.
4.2.23 The Manager shall deliver to the Owner the originals of all
permits, licenses, guaranties, warranties, bills of sale and other
contracts, agreements, change orders or commitments obtained or received
by the Manager for the account or benefit of the
10
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Owner, it being understood that the Owner, upon the Owner's approval
thereof, will execute all such contracts, agreements, change orders and
documents, and that the Manager will not, under any circumstances,
execute contracts, agreements, change orders or documents on behalf of
the Owner except as specifically provided otherwise in this Agreement or
as otherwise expressly authorized in writing by the Owner.
4.2.24 The Manager shall perform and discharge all other obligations of
the Manager under this Agreement.
4.3 Completion. The Manager hereby agrees to diligently use its best
----------
efforts and shall devote sufficient time and personnel to cause the
development of the Project to be completed in compliance with the time
parameters established therefor under the Lucent Lease, and in accordance with
the Development Budget as it may from time to time be revised pursuant to
Section 5.2 hereof.
4.4 Employees. The Manager shall have in its employ at all times a
---------
sufficient number of capable employees to enable the Manager to perform its
duties hereunder. All persons, other than independent contractors, employed
by the Manager in the performance of its responsibilities hereunder shall be
exclusively controlled by and shall be the employees of the Manager and not of
the Owner, and the Owner shall have no liability, responsibility or authority
with respect thereto. The Manager agrees that the Manager shall cause
Kraxberger to be personally involved in the performance of the Development
Functions and the other obligations and undertakings of the Manager hereunder.
4.5 Manager's Costs. Notwithstanding anything contained in any other
---------------
provision of this Agreement to the contrary, the following costs and expenses
shall be borne solely by the Manager and shall not be borne by the Owner:
(a) Cost of gross salary and wages, payroll taxes, insurance, workers'
compensation and other benefits of Kraxberger and any other employees of
the Manager;
(b) Cost of forms, papers, ledgers and other supplies and equipment used
in the Manager's office;
(c) Cost of electronic data processing or computer services, or any pro
rata charge for data processing or computer services provided by computer
service companies,
11
<PAGE>
which the Manager may elect to incur in the performance of the
Development Functions;
(d) Cost of office equipment acquired by the Manager to enable it to
perform its duties hereunder;
(e) Cost of advances made to employees of the Manager and cost of travel
and lodging by the Manager's employees and agents, including Kraxberger;
and
(f) Cost attributable to losses, including any legal fees relating
thereto, arising from negligence, fraud or willful act or omission on the
part of the Manager or any of the Manager's officers, directors,
employees or agents, except to the extent such costs are to be borne by
the Owner pursuant to Section 9.3 hereof.
ARTICLE 5
---------
DEVELOPMENT BUDGET
------------------
5.1 Implementation of Development Budget. The Owner hereby approves
------------------------------------
the Development Budget and the Manager is hereby authorized and directed to
implement the Development Budget pursuant to this Agreement. The Manager may,
without the need for any further approval whatsoever by the Owner, make any
expenditures and incur any obligations provided for in the Development Budget,
as it may be revised from time to time as provided herein. The Manager shall
use prudence and diligence and shall employ its best efforts to ensure that
the actual costs incurred for each category or line item of expense as set
forth in the Development Budget shall not exceed such category or line item in
the Development Budget. The Manager shall advise the Owner promptly if it
appears that costs in any category or line item specified in the Development
Budget will exceed the amount budgeted therefor. All expenses shall be
charged to the proper category or line item in the Development Budget, and no
expenses may be classified or reclassified for the purpose of avoiding an
excess in the budgeted amount of a category or line item without the Owner's
prior written approval. The Manager shall secure the Owner's prior written
approval before incurring and paying any cost which will result in aggregate
expenditures under any one category or line item in the Development Budget
exceeding the amount budgeted therefor.
5.2 Revision of Development Budget. If the Manager at any time
------------------------------
determines that the Development Budget is not compatible with the then-
prevailing status of the Project and
12
<PAGE>
does not adequately provide for the completion of the Project, the Manager
shall promptly prepare and submit to the Owner an appropriate revision of the
Development Budget. Any such revision shall require the approval of the
Owner; provided, however, that any such revision shall be considered approved
on the fourteenth (14th) day following its delivery to the Owner, unless the
Owner shall, within such fourteen (14) day period, notify the Manager in
writing of its disapproval of the proposed revision and specify in such notice
the items to which it objects. In the event of any such objection, the
Manager and the Owner shall consult and endeavor to reconcile their
differences.
5.3 Emergencies. Notwithstanding any limitations herein provided, the
-----------
Manager may spend funds or incur expenses on behalf of the Owner in
circumstances which the Manager reasonably and in good faith believes
constitute an emergency requiring prompt action to avert, or reduce the risk
of, damage to persons or property. The Manager shall, in any case, notify the
Owner as soon as practicable of the existence of such emergency and of the
action taken by the Manager with respect thereto.
5.4 Reduction in Fees. In the event that the total of all costs and
-----------------
expenses actually incurred by the Owner with respect to the acquisition of the
Land and the planning, design, development, construction and completion of the
Project, the Tenant Improvements for Lucent under the Lucent Lease (including
costs in all categories or line items specified in the Development Budget, but
expressly excluding costs for the specific line items marked with a double
asterisk in the Development Budget, and net of amounts reimbursed to the Owner
by Lucent with respect to Tenant Improvements for such tenant) shall exceed
$4,952,853.00, the amount of the fees payable to the Manager under Sections
11.2 and 11.3 hereof shall be reduced by the amount of such excess, with any
reductions to be applied to such fees in the following order of priority:
(a) first, to unpaid portions of the Development Fee until the
remaining Development Fee is reduced to zero;
(b) then to unpaid portions of the Lucent Work Fee until the remaining
Lucent Work Fee is reduced to zero; and
(c) then to any portion of the Development Fee and the Lucent Work Fee
which has theretofore been paid to
13
<PAGE>
the Manager until all such fees have been reduced to zero, and the
Manager hereby agrees to reimburse to the Owner an amount of such
fees theretofore paid to the Manager as shall equal the amount of
such reduction.
The aforesaid reductions in the fees payable to the Manager under Sections
11.2 and 11.3 hereof shall be effected regardless of whether or not
appropriate revisions of the Development Budget are approved by the Owner and
regardless of whether or not any increases in costs and expenses incurred by
the Owner with respect to the acquisition of the Land or the planning, design,
development, construction and completion of the Project and the Tenant
Improvements for Lucent are approved by the Owner; provided, however, in the
-------- -------
event such costs and expenses shall increase as a result of a change by the
Owner in the scope of the work comprising the Project, the incremental costs
due to the change in the scope of the work shall not cause a reduction in the
fees payable to the Manager under Sections 11.2 and 11.3 hereof. The Owner
shall not be obligated to accept or agree to changes in the scope of the work
comprising the Project in order to reduce the costs and expenses with respect
thereto. The Owner and the Manager agree that appropriate reductions in the
fees payable to the Manager (and reimbursements thereof to the Owner, if
applicable) shall be effected as and when it is reasonably determined by the
Owner that the costs and expenses under any category or line item in the
Development Budget shall exceed the amount originally budgeted therefor or
that costs and expenses will be incurred that are not originally budgeted
under the Development Budget; provided, however, the Owner and the Manager
shall make reasonable allocations of the "contingency" category or line item
in the Development Budget to other categories or line items prior to effecting
a reduction in the fees payable to the Manager, so long as a reasonable
reserve is maintained in the "contingency" category or line item to cover
future contingencies. Promptly following the Completion Date, the Owner and
the Manager shall make any final adjustments and payments between them to give
effect to the agreements set forth in this Section 5.4.
14
<PAGE>
ARTICLE 6
---------
AUTHORITY OF THE MANAGER
------------------------
6.1 General Authority. The Manager shall have, and is hereby granted
-----------------
by the Owner, full and complete power, authority, and discretion to act for,
and in the name, place, and stead of, the Owner in carrying out and
discharging the responsibilities and obligations of the Manager under this
Agreement (including, without limitation, all of the responsibilities imposed
upon the Manager under Article 4 hereof); provided, however, that the Manager
shall have no right or authority, express or implied, to commit or otherwise
obligate the Owner in any manner whatsoever except to the extent specifically
provided herein or specifically authorized in writing by the Owner.
6.2 Execution of Documents and Agreements. Only when specifically
-------------------------------------
authorized by the Owner in a writing to the Manager, the Manager may, at the
Manager's election, execute any documents, agreements, or other instruments on
behalf of the Owner as follows, it being acknowledged that the Manager shall
be entitled to the indemnification by the Owner for any obligations or
liabilities thereunder and shall not thereby incur any liability or obligation
to any third party thereunder:
WELLS DEVELOPMENT CORPORATION,
a Georgia corporation
By: Adevco Corporation,
a Georgia corporation,
as Manager
By:___________________________
Title:________________________
(CORPORATE SEAL)
15
<PAGE>
ARTICLE 7
---------
ACCOUNTING AND REPORTS
----------------------
7.1 Books of Account. The Manager shall maintain or cause to be
----------------
maintained true and accurate books of account reflecting the planning, design,
construction, and completion of the Project. All entries to such books of
account shall be supported by sufficient documentation to permit the Owner and
its auditors to ascertain that said entries are properly and accurately
recorded. Such books of account shall be located at the Manager's principal
metropolitan Atlanta, Georgia office and shall be maintained in accordance
with the Manager's present cash method of accounting, unless otherwise
directed or approved by the Owner. The Manager shall ensure such control over
accounting and financial transactions as is reasonably required to protect the
Owner's assets from theft, error or fraudulent activity on the part of the
Manager, the Manager's employees or agents.
7.2 Monthly Reports. Promptly following the end of each calendar
---------------
month, the Manager shall prepare a report with respect to the Project
(hereinafter referred to as the "Monthly Report") and shall cause the same to
be delivered to the Owner and the Owner's inspecting engineer, if any. Each
Monthly Report shall be subdivided into categories specified in the
Development Budget and shall contain the following information respecting the
Project:
(a) The draw request for the month covered by the Monthly Report,
including:
(i) each draw request letter;
(ii) each certificate of the Architect;
(iii) each application and certificate for payment of the
Contractor; and
(iv) any other invoices covered in the draw request.
(b) The costs incurred under the Construction Contract as of the date of
the Monthly Report.
(c) All costs incurred but not paid as of the date of such Monthly
Report.
(d) A comparison of the amount of actual costs incurred as of the date
of the Monthly Report to the budgeted
16
<PAGE>
costs as of such date, shown on a line-item basis using the same
categories or line items set forth in the Development Budget.
(e) Photographs of the Project depicting the current status of
construction.
(f) A report with respect to the progress of construction, including
information as to whether the commencement, milestone and completion
dates in the Lucent Lease are being achieved. The Manager shall identify
in such report potential variances between the completion dates required
in the Lucent Lease and the probable completion dates and shall make
recommendations as to adjustments necessary to meet the required
completion dates.
The Manager shall furnish the Owner with a certificate from Kraxberger in
respect of each such Monthly Report certifying that such Monthly Report is
accurate, true and complete in all respects.
7.3 Construction Draw Reports. The Manager shall cause to be
-------------------------
delivered to the Owner, at the Owner's expense, promptly after they are
prepared, copies of each construction draw request under any construction loan
obtained by the Owner with respect to the Project.
7.4 Annual Development and Financial Statements. Within thirty (30)
-------------------------------------------
days after the end of each fiscal year of the Owner during the term of this
Agreement, the Manager shall cause to be prepared and delivered to the Owner,
at the Owner's expense, a report which is a summary of the previous Monthly
Reports for such fiscal year which have been tendered to the Owner pursuant to
Section 7.2 hereof. In addition, within sixty (60) days after the end of each
fiscal year of the Owner during the term of this Agreement, the Manager shall
cause to be prepared and delivered to the Owner, at the Owner's expense,
unaudited financial statements reflecting all receipts and disbursements
collected, received, or made by the Manager with respect to the development
and the construction of the Project for such fiscal year. The Manager shall
also cause to be prepared and delivered to the Owner such other reports and
information with respect to the development and construction of the Project
for each fiscal year as the Owner shall reasonably request.
7.5 Examination of Books and Records. The Owner, at its expense,
--------------------------------
shall have the right at all reasonable times
17
<PAGE>
during normal business hours and upon at least twenty-four (24) hours advance
notice, to audit, to examine, and to make copies of or extracts from the books
of account and records maintained by the Manager with respect to the Project.
If the Owner shall notify the Manager of either weaknesses in internal control
or errors in record keeping, the Manager shall correct such weaknesses and
errors as soon as possible after they are disclosed to the Manager. The
Manager shall notify the Owner in writing of the actions taken to correct such
weaknesses and errors.
ARTICLE 8
---------
BANKING
-------
8.1 Separate Accounts. It is contemplated that the Owner will make
-----------------
disbursements with respect to the development and construction of the Project
directly to the Architect and the Contractor. Nevertheless, all disbursements
and other funds of the Owner which may be received by the Manager hereunder
with respect to the development or construction of the Project shall be
deposited by the Manager and held in such bank account or accounts maintained
by the Manager in such bank or banks with federal deposit insurance protection
as may be selected by the Manager and approved by the Owner. All such funds
shall be and shall remain the property of the Owner and shall be disbursed by
the Manager in payment of the obligations of the Owner incurred in connection
with the development and construction of the Project, or, subject to the
provisions of Section 8.2 below, shall be disbursed to the Owner at the
Owner's request. Except as hereinafter provided, the Manager shall not
commingle the Owner's funds with the funds of any other person.
8.2 The Owner's Duty to Provide Funds. The Owner agrees that the
---------------------------------
Owner will pay all current obligations of the Owner in accordance with the
Development Budget, including all obligations of the Owner to the Manager
hereunder. Alternatively, at the Owner's option, the Owner may elect to
provide funds to the Manager so that the Manager can pay all such obligations
of the Owner (excluding obligations to the Manager, it being understood and
agreed that such obligations to the Manager shall be paid directly by the
Owner to the Manager). If the Owner elects to cause the Manager to make
payment of such obligations, the Owner hereby agrees that, by making deposits
to (following notice as provided below), or by refraining from withdrawing
funds from, the bank account or accounts maintained by the Manager pursuant to
Section 8.1 above, the Owner shall, during the term of this Agreement,
18
<PAGE>
maintain sufficient funds in such bank account or accounts to enable the
Manager to pay all current obligations of the Owner in accordance with the
Development Budget, excluding the obligations of the Owner to the Manager
hereunder. Accord ingly, the Owner shall, within ten (10) days of its receipt
of any written request from the Manager for additional funds (which request
must specify the amount of such funds requested and the purposes for which
they are to be used), deposit in such bank account or accounts such additional
funds as the Owner shall consider appropriate with respect to such request by
the Manager.
8.3 Investment of Owner's Funds. If at any time there are in the bank
---------------------------
account or accounts established pursuant to Section 8.1 above, funds of the
Owner, from whatever sources, temporarily exceeding the immediate cash needs
of the Project, the Manager may (and at the discretion of the Owner shall)
invest such excess funds in such savings accounts, certificates of deposit,
United States Treasury obligations, commercial paper, and the like, as the
Manager shall deem appropriate or as the Owner shall direct, provided that the
form of any such investment shall be consistent with the Manager's need to be
able to liquidate any such investment to meet the cash needs of the Project
from time to time.
ARTICLE 9
---------
STANDARD OF CARE; LIABILITY;
----------------------------
INDEMNITY; CONFIDENTIALITY
--------------------------
9.1 Standard of Care; Manager's Liability. The Manager shall have no
-------------------------------------
liability to the Owner for any errors of judgment, or any mistakes of fact or
of law, made in a good faith effort to perform and carry out the Manager's
responsibilities under this Agreement, unless the Manager has failed to
exercise that degree of care and skill which a reasonable and diligent
businessman in the Manager's profession would exercise in transactions of a
similar nature for his own account, provided, of course, that sufficient funds
are made available by the Owner for the performance of the Manager's
responsibilities.
9.2 Indemnity of Owner. The Manager hereby agrees to indemnify,
------------------
defend and hold harmless the Owner and its partners and their respective
officers, directors and employees, from and against any and all claims,
demands, losses, liabilities, actions, lawsuits and other proceedings,
judgments and awards, and costs and expenses (including without limitation
reasonable attorneys' fees and court costs incurred in
19
<PAGE>
connection with the enforcement of this indemnity or otherwise), arising out
of the negligence, fraud or any willful act or omission of the Manager, or any
of its officers, directors, agents or employees, in connection with this
Agreement or the Manager's services or work hereunder, whether within or
beyond the scope of its duties or authority hereunder.
9.3 Indemnity of Manager. The Owner hereby agrees to indemnify,
--------------------
defend and hold harmless the Manager, its officers, directors and employees,
from and against any and all claims, demands, losses, liabilities, actions,
lawsuits and other proceedings, judgments and awards, and costs and expenses
(including without limitation reasonable attorney's fees and court costs
incurred in connection with the enforcement of this indemnity or otherwise),
arising out of (i) any action taken by the Manager within the scope of its
duties or authority hereunder, excluding only such of the foregoing as result
from the negligence, fraud or willful act of the Manager, its officers,
directors, agents and employees, and (ii) the negligence, fraud or any willful
act or omission of the Owner and its partners and their respective officers,
directors and employees.
9.4 Survival of Indemnities. The provisions of Sections 9.2 and 9.3
-----------------------
hereof shall survive the completion of the Manager's services hereunder or any
earlier termination of this Agreement.
9.5 No Obligation to Third Parties. None of the responsibilities and
------------------------------
obligations of the Manager under this Agreement shall in any way or in any
manner be deemed to create any liability of the Manager to, or any rights in,
any person or entity other than the Owner.
9.6 Nature of the Manager's Duties and Responsibilities. The Owner
---------------------------------------------------
hereby acknowledges that the Manager's duties and responsibilities hereunder
with respect to the development and construction of the Project consist only
in managing, supervising, and coordinating the planning, design, construction
and completion of the Project and the performance of the other Development
Functions in accordance with the terms of this Agreement; that the Manager is
not itself preparing any architectural or engineering plans, designs, or
specifications or performing any construction required for the development or
completion of the Project; that the Manager is not a guarantor or insurer of
any work to be performed by any other party in connection with the planning,
design, construction, and completion of the Project;
20
<PAGE>
and that the Manager is not responsible for, and will not be liable for, any
work, act, omission, negligence, gross negligence, or intentional misconduct
of any other party employed by the Owner or performing work for the Owner in
connection with the Project.
9.7 Ownership of Information and Materials. The Owner shall have the
--------------------------------------
right to use, without further compensation to the Manager, all written data
and information generated by or for the Manager in connection with the Project
or supplied to the Manager by the Owner or the Owner's contractors or agents,
and all drawings, plans, books, records, contracts, agreements and all other
documents and writings in its possession relating to its services or the
Project. Such data and information shall at all times be the property of the
Owner. The Manager agrees, for itself and all persons retained or employed by
the Manager in performing its services, to hold in confidence and not to use
or disclose to others any confidential or proprietary information of the Owner
which is heretofore or hereafter disclosed to the Manager or any such persons
and which is designated by the Owner as confidential and proprietary,
including but not limited to any proprietary or confidential data,
information, plans, programs, plants, processes, equipment, costs, operations,
tenants or customers which may come within the knowledge of the Manager or any
such persons in the performance of, or as a result of, its services, except
where (i) the Owner specifically authorizes the Manager to disclose any of the
foregoing to others or such disclosure reasonably results from the performance
of the Manager's duties hereunder, or (ii) such written data or information
shall have theretofore been made publicly available by parties other than the
Manager or any such persons. Nothing contained in this Section 9.7 shall be
deemed to limit or restrict the provisions of Article 15 hereof or of the
rights of the Manager thereunder.
ARTICLE 10
----------
INSURANCE
---------
10.1 Insurance Requirements. Throughout the term of this Agreement,
----------------------
insurance with respect to the Project shall be carried and maintained in force
in accordance with the provisions contained in Exhibit "C, attached hereto and
----------
incorporated herein by this reference, with the premiums and other costs and
expenses for such required insurance to be borne as provided in Exhibit "C".
-----------
21
<PAGE>
10.2 Owner's Insurance Primary Coverage. As between any insurance
----------------------------------
carried by the Owner pursuant to this Article 10 and any insurance carried by
the Manager, the Owner's insurance shall for all purposes be considered the
primary coverage, and no claim shall be made under or with respect to any
insurance maintained by the Manager except in the event that the Owner's
entire insurance is exhausted (without regard to whether the actual amount of
the Owner's insurance exceeds the amounts specified in this Article 10).
10.3 Waiver of Subrogation. Each insurance policy maintained by the
---------------------
Owner or by the Manager with respect to the Project shall contain a waiver of
subrogation clause, so that no insurer shall have any claim over or against
the Owner or the Manager, as the case may be, by way of subrogation or
otherwise, with respect to any claims which are insured under any such policy.
ARTICLE 11
----------
COMPENSATION OF THE MANAGER
---------------------------
11.1 Fees - General. As compensation for the services rendered and to
--------------
be rendered by the Manager under this Agreement, the Owner shall pay the
Manager the Development Fee and the Lucent Work Fee, all in accordance with
and subject to the terms and provisions of Sections 11.2 and 11.3 hereof,
respectively, and all such fees shall be subject to reduction as provided in
Section 5.4 hereof.
11.2 Development Fee. The Owner shall pay the Manager, as the
---------------
Development Fee for the Project, the sum of One Hundred Fifty Thousand and
No/100 Dollars ($150,000.00). The Development Fee shall be due and payable
ratably (on the basis of the percentage of construction completed) as the
construction and development of the Project are completed. The Development
Fee shall be paid in monthly installments commencing with the month following
the month during which the on-site development work with respect to the
Project shall commence. The remaining balance of the Development Fee shall be
due and payable upon the Completion Date.
11.3 Lucent Work Fee. The Owner shall pay the Manager, as the Lucent
---------------
Work Fee, the sum of One Hundred Fifty Thousand and No/100 Dollars
($150,000.00). The Lucent Work Fee shall be due and payable in one lump sum
upon the Completion Date.
11.4 Disbursements to the Manager. The Manager may not disburse to
----------------------------
itself any amounts due under this Article 11 from
22
<PAGE>
the bank account or accounts maintained by the Manager pursuant to Article 8
hereof, it being understood and agreed that the amounts due and payable to the
Manager under this Article 11 shall be paid directly by the Owner to the
Manager.
ARTICLE 12
----------
Intentionally Omitted
---------------------
ARTICLE 13
----------
REIMBURSEMENT OF ADVANCES, COSTS AND EXPENSES
---------------------------------------------
13.1 Reimbursement of Advances. The Manager shall not be required to advance
-------------------------
any of its own funds for the payment of any costs and expenses incurred by or on
behalf of the Owner in connection with the Project, but if the Manager advances
its own funds in payment of any of such costs and expenses, the Owner, subject
to the provisions of Sections 4.5, 5.2 and 11.4 hereof, shall promptly reimburse
the Manager or, in lieu thereof, the Manager may reimburse itself from the bank
account or accounts maintained by the Manager pursuant to Article 8 hereof.
13.2 Reimbursement of Costs and Expenses. Promptly after execution of this
-----------------------------------
Agreement, the Owner shall reimburse the Manager for all costs and expenses set
forth on Exhibit "D" attached hereto and by this reference made a part hereof,
-----------
all of which costs and expenses the Manager hereby represents and warrants were
incurred and paid by the Manager prior to the date hereof (or will be paid by
the Manager in due course) in connection with the Project and are authorized and
bona fide expenditures under the Development Budget.
ARTICLE 14
----------
DEFAULT AND TERMINATION
-----------------------
14.1 Default by Manager. Upon the happening of any Event of Default (as
------------------
hereinafter defined), the Owner shall have the absolute unconditional right to
terminate this Agreement by giving written notice of such termination to the
Manager. Any one or more of the following events shall constitute an "Event of
Default" by the Manager under this Agreement:
(a) If the Manager shall fail to observe, perform or comply in any
material respect with any term, covenant, agreement or condition of this
Agreement which is to be observed, performed or complied with by the
Manager under the
23
<PAGE>
provisions of this Agreement, and such failure shall continue uncured for
ten (10) days after the giving of written notice thereof by the Owner to
the Manager specifying the nature of such failure, unless such failure can
be cured but is not susceptible of being cured within said ten (10) day
period, in which event such a failure shall not constitute an Event of
Default if the Manager commences curative action within said ten (10) day
period, and thereafter prosecutes such action to completion with all due
diligence and dispatch;
(b) If the Manager or Kraxberger shall make a general assignment for the
benefit of creditors;
(c) If any petition shall be filed against the Manager or Kraxberger in
any court, whether or not pursuant to any statute of the United States or
of any State, in any bankruptcy, reorganization, dissolution, liquidation,
composition, extension, arrangement or insolvency proceed ings, and such
proceedings shall not be dismissed within sixty (60) days after the
institution of the same, or if any such petition shall be so filed by the
Manager or Kraxberger;
(d) If, in any proceeding, a receiver, trustee or liquidator be appointed
for all or a substantial portion of the property and assets of the Manager
or Kraxberger, and such receiver, trustee or liquidator shall not be
discharged within ninety (90) days after such appointment;
(e) If the Manager shall assign this Agreement or any of its rights or
obligations hereunder, without the prior written consent of the Owner; and
(f) If the Manager shall intentionally or willfully fail to perform any of
its duties or obligations hereunder, or if the Manager shall misappropriate
any funds of the Owner in the possession or control of the Manager or shall
otherwise commit an act of fraud against the Owner (except that if such
misappropriation of funds or fraud by the taking is committed by an
employee of the Manager other than Kraxberger, such event may be cured by
the Manager if the Manager makes prompt restitution to the Owner and
discharges such employee).
14.2 Additional Terminating Event. The Owner shall have the right to
----------------------------
terminate this Agreement upon written notice to the Manager in the event
Kraxberger shall die, become permanently or temporarily disabled or shall cease
for reasons beyond his
24
<PAGE>
control to be actively involved in performing, on behalf of the Manager, the
Development Functions and the other obligations and undertakings of the Manager
hereunder. The Owner shall also have the right to terminate this Agreement upon
written notice to the Manager in the event the Owner shall elect for any reason
whatsoever not to acquire the Land.
14.3 Default by Owner. If the Owner fails to comply with or perform in any
----------------
material respect any of the terms and provisions to be complied with or any of
the obligations to be performed by the Owner under this Agreement, and such
failure continues uncured for a period of fifteen (15) days after written notice
to the Owner specifying the nature of such default (or, in the case of a non-
monetary default, such longer period of time as may be needed in the exercise by
the Owner of due diligence to effect a cure of any such non-monetary default),
then the Manager shall have the right, in addition to all other rights and
remedies available to the Manager at law and in equity (including without
limitation the right to pursue an action for specific performance), at its
option, to terminate this Agreement by giving written notice thereof to the
Owner, in which event the Owner shall immediately pay to the Manager, in cash,
the sums payable to the Manager upon termination as provided in Section 14.4
hereof, and upon the payment of such amounts, subject to Sections 9.2, 9.3, 9.7,
12.3(d) and 14.5 hereof, the Owner and the Manager shall have no further rights,
duties, liabilities or obligations whatsoever under this Agreement.
14.4 Obligation for Fees Upon Termination. Upon any termination of this
------------------------------------
Agreement, the Owner shall pay to the Manager all amounts due and payable to the
Manager as of the date of termination pursuant to the terms of this Agreement
(including, without limitation, any accrued but unpaid installments of the
Development Fee) less, if this Agreement terminates as a result of an Event of
----
Default, an amount equal to the damages incurred or suffered (or to be incurred
or suffered) by the Owner as a result of such Event of Default. Upon the
payment of all such amounts payable under this Section, subject to Sections 9.2,
9.3, 9.7, 12.3(d) and 14.5 hereof, the Owner and the Manager shall have no
further rights, duties, liabilities or obligations whatsoever under this
Agreement.
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14.5 Actions Upon Termination. Upon any termination of this Agreement,
------------------------
the Manager shall promptly (a) account for and deliver to the Owner any monies
of the Owner held by the Manager, including funds in the bank account or
accounts maintained by the Manager pursuant to Article 8 hereof and any funds
due the Owner under this Agreement but received after such termination, and (b)
deliver to the Owner or to such other person as the Owner shall designate in
writing, all materials, supplies, equipment, keys, contracts, documents and
books and records pertaining to this Agreement or the development of the
Project. The Manager shall also furnish all such information, take all such
other action and shall cooperate with the Owner as the Owner shall reasonably
require in order to effectuate an orderly and systematic termi nation of the
Manager's duties and activities hereunder. This Section 14.5 of this Agreement
shall survive any termination of this Agreement.
ARTICLE 15
----------
OTHER ACTIVITIES OF THE MANAGER
-------------------------------
The Owner hereby acknowledges that the Manager is engaged in the ownership,
development, leasing, sale, and management of commercial properties other than
the Project and the Owner hereby agrees that the Manager shall in no way be
restricted from, or have any liability to account to the Owner with respect to,
such activities, notwithstanding that such activities may compete with, or be
enhanced by, the Manager's activities under this Agreement or the Owner's
ownership of the Project.
ARTICLE 16
----------
NATURE OF AGREEMENT
-------------------
The rights and duties granted to and assumed by the Manager hereunder are
those of an independent contractor only. Nothing contained herein shall be so
construed as to constitute the relationship created under this Agreement between
the Manager and the Owner as a mutual agency, a partnership, or a joint venture.
26
<PAGE>
ARTICLE 17
----------
GENERAL PROVISIONS
------------------
17.1 Notices. Whenever any notice, consent, approval, demand or request
-------
required or permitted under this Agreement, such notice, consent, approval,
demand or request shall be in writing and shall be delivered by hand or sent by
registered or certified mail, return receipt requested, to the addresses set out
below or to such other addresses as are specified by written notice given in
accordance herewith, or sent via facsimile transmission to the facsimile numbers
set out below or to such other facsimile numbers as are specified by written
notice given in accordance herewith:
Owner: Wells Development Corporation
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Fax: (770) 840-7224
Attention: Mr. Leo F. Wells, III
with a copy to: Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308-2216
Fax: (404) 885-3900
Attention: Mr. John W. Griffin
Manager: Adevco Corporation
3867 Holcomb Bridge Road, Suite 800
Norcross, Georgia 30092
Fax: (770) 840-7224
Attention: Mr. David M. Kraxberger
All notices, consents, approvals, demands or requests delivered by hand shall
be deemed given upon the date so delivered; those given by mailing as
hereinabove provided shall be deemed given on the date on which such notice,
demand, or request is so deposited in the United States Mail; those given by
facsimile transmission shall be deemed given on the date shown on sender's copy
hereof showing the proper "answerback" code for the facsimile transmission
number to which the notice is sent. None theless, the time period, if any, in
which a response to any notice, demand, or request must be given shall commence
to run from the date of receipt of the notice, demand, or request by the
addressee thereof. Any notice, demand, or request not received because of
changed address of which no notice was given as hereinabove provided or because
of refusal to accept delivery shall be deemed received by the party to whom
addressed on the
27
<PAGE>
date of hand delivery or on the third calendar day following deposit in the
United States Mail, as the case may be.
17.2 Modifications. Neither any change or modification of this Agreement nor
-------------
any waiver of any term or condition hereof shall be valid or binding on the
parties hereto, unless such change, modification, or waiver shall be in writing
and signed by the party to be bound thereby.
17.3 Binding Effect. This Agreement shall inure to the benefit of and shall
--------------
be binding upon the parties hereto, their successors, transferees, and permitted
assigns.
17.4 Duplicate Originals. For the convenience of the parties hereto, any
-------------------
number of counterparts hereof may be executed, each such counterpart shall be
deemed to be an original instrument, and all of such counterparts shall together
be deemed one and the same instrument.
17.5 Construction. This Agreement shall be interpreted, constructed, and
------------
enforced in accordance with the laws of the State of Georgia. The titles of the
articles and sections herein have been inserted as a matter of convenience of
reference only and shall not control or affect the meaning or construction of
any of the terms or provisions herein. The parties agree that they have both
participated equally in the negotiation and preparation of this Agreement and no
court construing this Agreement or the rights of the parties hereunder shall be
prejudiced toward either party by reason of the rule of con struction that a
document is to be construed more strictly against the party or parties who
prepared the same.
17.6 Entire Agreement. This Agreement is intended by the parties hereto to be
----------------
the final expression of their agreement with respect to the subject matter
hereof and is the complete and exclusive statement of the terms thereof
notwithstanding any representation or statement to the contrary heretofore made.
17.7 Assignment. This Agreement shall not be assigned by the Manager without
----------
the prior written consent of the Owner, and any such assignment by the Manager
without the prior written consent of the Owner shall be null, void and of no
force and effect and shall be an Event of Default hereunder. Upon any
assignment of this Agreement by Owner to Fund IX and Fund X Associates, a
Georgia general partnership, or any other partnership having Leo F. Wells, III
or Wells Capital, Inc. as the ultimate general partner thereof, and the express
assumption by such party of the obligations of "Owner" arising or accruing after
such assignment, the assigning Owner shall be relieved of
28
<PAGE>
all obligations under this Agreement arising or accruing after such assignment.
17.8 Authorized Representatives. Any consent, approval, authorization, or
--------------------------
other action required or permitted to be given or taken under this Agreement by
the Manager or the Owner, as the case may be, shall be given or taken by the
authorized repre sentative of each. For purposes of this Agreement, (a) the
authorized representative of the Manager shall be David M. Kraxberger; (b) the
authorized representative of the Owner shall be Leo F. Wells, III, Michael
Berndt, or Mike Watson. Any party hereto may from time to time designate other
or replacement authorized representatives by written notice from its authorized
representative to the other parties hereto. The written statements and
representations of any authorized representative of the Manager or the Owner
shall for the purposes of this Agreement be binding upon such party for whom the
authorized representative purports to act, and the other parties hereto shall
have no obligation or duty whatsoever to inquire into the authority of any such
representative to take any action which he proposes to take, regardless of
whether such representative actually has the authority to take any such action;
and the Manager and the Owner shall be entitled to rely upon any direction,
authorization, consent, approval, or disapproval given by any authorized
representative of the Manager or the Owner, as the case may be, in connection
with any matter arising out of or in connection with this Agreement or the
Project.
17.9 Terminology. All personal pronouns used in this Agreement, whether used
-----------
in the masculine, feminine, or neuter gender, shall include all other genders;
and all terms used herein in the singular shall include the plural, and vice
versa.
17.10 Time of Essence. Time is of the essence of this Agreement.
---------------
29
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and sealed this Agreement
as of the day, month and year first above written.
"MANAGER":
-------
ADEVCO CORPORATION,
a Georgia corporation
By: /s/ David M. Kraxberger
--------------------------------
Title: President
----------------------------
[CORPORATE SEAL]
"OWNER":
-----
WELLS DEVELOPMENT CORPORATION,
a Georgia corporation
By: /s/ Leo F. Wells, III (SEAL)
--------------------------
Leo F. Wells, III,
President
30
<PAGE>
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
The Partners
Wells Partners, L.P.:
We consent to the use of our reports included herein and to the reference to our
firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Atlanta, Georgia
June 12, 1997
<PAGE>
EXHIBIT 23(c)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Wells Capital, Inc.:
We consent to the use of our reports included herein and to the reference to our
firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Atlanta, Georgia
June 12, 1997
<PAGE>
EXHIBIT 23(d)
[LETTERHEAD OF ARTHUR ANDERSEN LLP APPEARS HERE]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
on the December 31, 1996 financial statements of Wells Capital, Inc., Wells
Partners, L.P., Wells Real Estate Fund X, L.P., and Wells Real Estate Fund XI,
L.P. and to all references to our firm included in or made a part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
June 12, 1997
<PAGE>
EXHIBIT 23(e)
[LETTERHEAD OF ARTHUR ANDERSEN LLP APPEARS HERE]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
on the December 31, 1996 financial statements of Wells Capital, Inc., Wells
Partners, L.P., Wells Real Estate Fund X, L.P., and Wells Real Estate Fund XI,
L.P. and to all references to our firm included in or made a part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
June 12, 1997
<PAGE>
EXHIBIT 23(f)
[LETTERHEAD OF ARTHUR ANDERSEN LLP APPEARS HERE]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
on the December 31, 1996 financial statements of Wells Capital, Inc., Wells
Partners, L.P., Wells Real Estate Fund X, L.P., and Wells Real Estate Fund XI,
L.P. and to all references to our firm included in or made a part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
June 12, 1997
<PAGE>
EXHIBIT 23(g)
[LETTERHEAD OF ARTHUR ANDERSEN LLP APPEARS HERE]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
on the December 31, 1996 financial statements of Wells Capital, Inc., Wells
Partners, L.P., Wells Real Estate Fund X, L.P., and Wells Real Estate Fund XI,
L.P. and to all references to our firm included in or made a part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
June 12, 1997
