<PAGE>
As filed with the Securities and Exchange Commission on November 2, 1998
Registration No. 33-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-11
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------------------
WELLS REAL ESTATE FUND XII, L.P.
and
WELLS REAL ESTATE FUND XIII, L.P.
(Exact name of registrant as specified in governing instruments)
3885 Holcomb Bridge Road
Norcross, Georgia 30092
(770) 449-7800
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Donald Kennicott, Esq.
Michael K. Rafter, Esq.
Holland & Knight LLP
One Atlantic Center, Suite 2000
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309-3400
(404) 817-8500
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Agent for Service)
----------------------------
Georgia -----------------------
(State or other (I.R.S. Employer
Jurisdiction of Incorporation) Identification Numbers)
----------------------------
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
------------------------
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
-------------------------
If this form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
-------------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box.
Approximate date of commencement of proposed sale to the public: As soon as
practicable following effectiveness of this Registration Statement.
----------------------------
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Maximum Proposed Maximum
Title of Amount Being Offering Price Aggregate Amount of
Securities Being Registered(1) Registered Per Unit Offering Price Registration Fee
- ------------------------------ ------------ ----------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Class A Status Units of Limited
Partnership Interest
7,000,000 $10.00 $70,000,000 $20,650
Class B Status Units of Limited
Partnership Interest
=====================================================================================================================
</TABLE>
(1) Class A Status Units and Class B Status Units will be offered in
combination, such that the aggregate dollar amount of units sold will not
exceed $70,000,000.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
WELLS REAL ESTATE FUND XII/XIII, L.P.
CROSS REFERENCE SHEET PURSUANT TO ITEM 501(B) OF REGULATION S-X
<TABLE>
<CAPTION>
Form Number and Caption Location of Heading in Prospectus
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<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
Prospectus....................................... Inside Front Cover and Outside Back Cover Page of Prospectus
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges........................ Outside Front Cover Page; Summary of the Offering; Risk 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
Financial Condition and Results of Operations.... Management's Discussion and Analysis of Financial Condition 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
Holders.......................................... Federal Income Tax Consequences; Investment by Tax-Exempt 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................................ *
20. Security Ownership of Certain Beneficial Owners
and Management................................... Management; Compensation of the General Partners and Affiliates
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
Registrant's Investments......................... Management; Compensation of the General Partners and 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
</TABLE>
*Not Applicable.
<PAGE>
WELLS REAL ESTATE FUND XII/XIII, L.P.
$1,250,000 MINIMUM OFFERING
FOR EACH PARTNERSHIP
- --------------------------------------------------------------------------------
Class A and Class B Status Units
at a purchase price of $10.00 per unit
- --------------------------------------------------------------------------------
<TABLE>
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<S> <C>
Before you invest in the Partnership, you
should see the complete discussion of the
Wells Real Estate Fund XII, L.P. and Wells risk factors in the "RISK FACTORS" section
Real Estate Fund XIII, L.P. are both newly of this Prospectus beginning on page 7.
created Georgia limited partnerships formed
to acquire and operate commercial real Your investment in the Partnership involves
properties. We are offering and selling to significant risks including the following:
the public 3,500,000 units of limited
partnership interest for each partnership. . You are limited in your ability to
If you purchase units, you may elect to have transfer our units. No public market for
them treated as Class A Status Units units currently exists or is likely to
(entitles you to distributions of cash flow develop. If you can sell your units at all,
from operations) or Class B Status Units you will likely have to do so at a discount.
(entitles you to a higher percentage of . If we sell less than 3,500,000 units, we
growth in the value of the partnership's real will purchase fewer properties which will
properties and tax allocations). You must result in less diversification of your
purchase at least 100 units for $1,000 investment.
(except in certain states as described on . We will pay substantial fees to the
page 20 of this Prospectus). General Partners and entities affiliated
with them regardless of whether we are
We will begin the offering of units in Wells successful.
Real Estate Fund XII, L.P. upon the SEC . We do not own any real property, and we
declaring the Registration Statement have not yet identified any properties in
effective and will continue until the earlier which we will invest. Accordingly, you must
of (1) ------------, 2000, or (2) the date rely totally upon our ability to select
we sell all $35,000,000 worth of units in properties.
Wells Real Estate Fund XII, L.P. We will . We do not anticipate liquidating the
begin the offering of units in Wells Real Partnership until at least ten to twelve
Estate Fund XIII, L.P. immediately upon the years after the date we invest in the final
termination of the offering of units of Wells property.
Real Estate Fund XII, L.P. and will continue . The General Partners are involved in
until the earlier of (1) -----------, 2001, other real estate programs and activities
or (2) the date we sell all $35,000,000 worth and, accordingly, they will face conflicts
of units in Wells Real Estate Fund XIII, L.P. of interest in managing the Partnership's
operations.
Your money will be placed in an =================================================
interest-bearing escrow account with The Bank
of New York until we receive a minimum of
$1,250,000 (125,000 units).
</TABLE>
The Offering:
. Our units will be offered to the public at $10 per unit for a total maximum
offering of $35,000,000.
. We will pay selling commissions to broker-dealers at the rate of 7% and a
dealer manager fee of 2.5% out of the offering proceeds raised.
. We estimate that approximately 84% of your investment will be used to
acquire properties and the balance will be used to pay fees and expenses.
. If we sell all 3,500,000 units, approximately $29,400,000 will be invested
in properties. If we sell the minimum 125,000 units, approximately
$1,050,000 will be invested in properties.
Neither the Securities and Exchange Commission, the Attorney General of the
State of New York nor any other state securities regulator has approved or
disapproved of these securities or determined if this Prospectus is truthful or
complete. It is a criminal offense if someone tells you otherwise.
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.
WELLS INVESTMENT SECURITIES, INC.
-------------------------, 1999
<PAGE>
TABLE OF CONTENTS
Page
----
SUMMARY OF THE OFFERING......................... 1
RISK FACTORS.................................... 7
Investment Risks.............................. 7
Limited Transferability and Lack
of Liquidity of the Units.................. 7
Risks Regarding Reliance on the
General Partners........................... 7
Risks Relating to Conflicts
of Interest................................ 7
Limited and Illiquid Net Worth
of the General Partners.................... 7
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......................... 8
Potential Liability of Limited
Partners................................... 9
Offering Price Arbitrarily
Established................................ 9
Risks Relating to Management
Compensation............................... 9
Risks Relating to the
Availability and Timing of
Cash Distributions......................... 9
Risk of Lack of Sources for
Funding of Future Capital
Needs...................................... 10
Risks Relating to Joint
Ventures................................... 10
Risks Relating to Acquisition of
Properties from Wells
Development Corporation.................... 11
Special Risks Regarding Classes of Units...... 12
Special Risks Relating to an
Election of Class A Status Units........... 12
Special Risks Relating to an
Election of Class B Status Units........... 12
Effect of Unspecified Nature of
Offering on Relative Performance
of Class A Status Units and
Class B Status Units....................... 12
Risks Regarding Indeterminate
Ratio of Class A Status Units
to Class B Status Units.................... 12
Real Estate Risks............................. 12
Fluctuating Financial
Performance of Previously
Sponsored Partnerships..................... 12
Potential Adverse Economic and
Regulatory Changes......................... 13
Risks Relating to Blind Pool
Offerings.................................. 13
Risks Regarding Development
and Construction of Unimproved
Properties................................. 13
Risks Resulting from
Competition for Investments................ 13
Potential Adverse Effects of
Delays in Investments...................... 13
Uncertainty of Timing of and
Market Conditions on Future
Disposition of Properties.................. 14
Environmental Matters....................... 14
Federal Income Tax Risks...................... 14
Risk of 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............... 15
Potential Loss of Partnership
Tax Status................................. 15
Potential Publicly Traded
Partnership Classification................. 15
Limitations on Deductibility of
Losses..................................... 16
Possibility of IRS Challenge to
Allocations of Profit and
Loss....................................... 16
Risk of Potential Dealer Status............. 16
Possibility of Disallowance of
Deductibility of Fees and
Expenses Paid by the
Partnership................................ 16
Risk of Taxable Income
Without Cash Distributions................. 16
Risks Regarding
Characterization of Sale-
Leaseback Transactions..................... 16
Potential Application of
Anti-Abuse Rules........................... 16
Potential Application of
Alternative Minimum Tax.................... 17
Audit Risk, Interest and
Penalties.................................. 17
Risks Regarding State and Local
Taxation and Requirements to
Withhold State Taxes....................... 17
Risk of Legislative or
Regulatory Action.......................... 17
Risks Relating to Retirement
Plan Investors............................. 18
Plan Assets Risk............................ 18
Risks Relating to Minimum
Distribution Requirements.................. 19
Unrelated Business Taxable
Income ("UBTI")............................ 19
SUITABILITY STANDARDS........................... 19
DESCRIPTION OF THE UNITS........................ 23
Election of Class A Status or Class B Status.. 23
Summary of Distributions...................... 24
Summary of Allocations........................ 25
Class A Status Units.......................... 26
Class B Status Units.......................... 26
Effect of Change of Status of Units........... 27
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....................... 37
Publicly Offered Unspecified Real
Estate Programs.............................. 38
MANAGEMENT...................................... 45
The General Partners.......................... 45
Management.................................... 47
INVESTMENT OBJECTIVES AND CRITERIA.............. 49
General....................................... 49
Acquisition and Investment Policies........... 49
Development and Construction of
Properties................................... 51
Acquisition of Properties from Wells
Development Corporation...................... 51
Terms of Leases and Lessee
Creditworthiness............................. 53
Borrowing Policies............................ 53
Joint Venture Investments..................... 54
Disposition Policies.......................... 56
Other Policies................................ 56
REAL PROPERTY INVESTMENTS....................... 57
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.......................... 58
General....................................... 58
Year 2000 Issues.............................. 59
(i)
<PAGE>
INVESTMENT BY TAX-EXEMPT ENTITIES AND
ERISA CONSIDERATIONS........................... 59
Plan Assets - Generally....................... 60
Plan Assets - Definition...................... 60
Plan Asset Regulations -
Available Exemptions......................... 61
Plan Asset Consequences -
Prohibited Transaction Excise Tax............ 62
Annual Valuation.............................. 63
FEDERAL INCOME TAX CONSEQUENCES................. 63
Tax Opinion................................... 64
Partnership Status Generally.................. 66
Publicly Traded Partnerships.................. 67
General Principles of Partnership Taxation.... 68
Anti-Abuse Rules.............................. 68
Basis Limitations............................. 68
Passive Loss Limitations...................... 68
At Risk Limitations........................... 69
Allocations of Profit and Loss................ 69
Risk of Taxable Income Without Cash
Distributions................................ 72
Investment by Qualified Plans and Other
Tax-Exempt Entities.......................... 72
Investment by Charitable Remainder Trusts..... 74
Depreciation and Cost Recovery................ 74
Syndication and Organizational Expenses....... 74
Activities Not Engaged in for Profit.......... 74
Characterization of Leases.................... 75
Property Held Primarily for Sale.............. 75
Sales of Partnership Properties............... 76
Sales of Limited Partnership Units............ 76
Dissolution and Liquidation of the
Partnership.................................. 76
Capital Gains and Losses...................... 76
Election for Basis Adjustments................ 77
Alternative Minimum Tax....................... 77
Penalties..................................... 77
Tax Shelter Registration...................... 78
Audits........................................ 78
Foreign Investors as Limited Partners......... 79
Tax Legislation and Regulatory
Proposals.................................... 79
State and Local Taxes......................... 79
SUMMARY OF PARTNERSHIP AGREEMENT................ 80
Powers of the General Partners................ 80
Liabilities of the Limited Partners........... 80
Other Activities of the General Partners...... 80
Rights and Obligations of Limited
Partners; Nonassessability
of Units..................................... 81
Voting Rights of the Limited Partners......... 81
Mergers and Consolidations.................... 82
Special Partnership Provisions................ 82
Removal of General Partners................... 82
Assignability of General Partners' Interests.. 82
Books and Records; Rights to Information;
Annual Audits................................ 83
Meetings of Limited Partners.................. 83
Transferability of Units...................... 83
Partnership Borrowing......................... 84
Repurchase of Units........................... 84
Distribution Reinvestment Plan................ 85
Proxy to Liquidate............................ 87
Dissolution and Termination................... 88
DISTRIBUTIONS AND ALLOCATIONS................... 88
Distributions of Net Cash From Operations..... 88
Distribution of Net Sale Proceeds............. 89
Liquidating Distributions..................... 90
Return of Unused Capital Contributions........ 90
Partnership Allocations....................... 91
Monthly Distributions......................... 93
REPORTS TO INVESTORS............................ 93
PLAN OF DISTRIBUTION............................ 95
SUPPLEMENTAL SALES MATERIAL..................... 100
LEGAL OPINIONS.................................. 100
EXPERTS......................................... 100
ADDITIONAL INFORMATION.......................... 100
GLOSSARY........................................ 101
FINANCIAL STATEMENTS...................... APPENDIX I
PRIOR PERFORMANCE TABLES.................. EXHIBIT A
FORM OF AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF WELLS REAL ESTATE FUND XII/XIII, L.P. EXHIBIT B
FORM OF SUBSCRIPTION AGREEMENT
AND SUBSCRIPTION AGREEMENT
SIGNATURE PAGE.......................... EXHIBIT C
(ii)
<PAGE>
SUMMARY OF THE OFFERING
This summary highlights selected information contained elsewhere in this
Prospectus. It is not complete and does not contain all of the information that
is important to your decision whether to invest in the Partnership. To
understand this offering fully, you should read the entire Prospectus carefully,
including the "RISK FACTORS" section and the financial statements.
<TABLE>
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WELLS REAL ESTATE FUND XII, L.P. Wells Real Estate Fund XII, L.P. and Wells Real Estate Fund XIII, L.P. are each
AND WELLS REAL ESTATE FUND XIII, newly formed Georgia limited partnerships. The business address and registered
L.P.: office of each of these limited partnerships is located at the office of the General
Partners, 3885 Holcomb Bridge Road, Norcross, Georgia 30092. (Telephone:
770-449-7800 or 800-448-1010 - outside of Georgia.) If you purchase units in one of
these limited partnerships, you will not be acquiring any ownership interest in the
other limited partnership or its properties unless you also purchase limited
partnership units in that partnership. 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
programs sponsored by the General Partners or their affiliates. For ease of
reference, we will refer to each of the limited partnerships described 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 of the Partnership and will make all investment decisions for the
Partnership. For information regarding the previous experience of the General
Partners and their affiliates in the management of real estate programs, see "PRIOR
PERFORMANCE SUMMARY."
SECURITIES OFFERED: We are offering a minimum of 125,000 units and a maximum of 3,500,000 units in the
Partnership at a purchase price of $10 per unit. Upon your purchase of our units,
you will elect to have your units treated as either Class A Status Units or Class B
Status Units, as described in more detail below.
RISK FACTORS: Your investment in units involves various risks including the following:
. The Partnership Agreement imposes substantial restrictions on transfers of your
units. No public market for our units currently exists or is ever likely to
develop. If you are able to sell your units at all, you will most likely have to
sell them at a discount.
. You will have limited voting rights and, therefore, will have minimal control
over the Partnership's operations.
. You must rely on the General Partners and entities affiliated with them for the
day-to-day management of our business.
. The General Partners have a net worth that is limited in amount, substantially
illiquid and not readily marketable. Accordingly, we cannot guarantee that the
General Partners will have sufficient cash to make any required payments to the
Partnership.
. The number of properties that we will acquire and the diversification of our
investments will be reduced to the extent that we sell less than all of the
3,500,000 units. There is a greater risk that you will lose money in your
investment in us if we cannot diversify our investments.
. The Partnership will pay substantial fees to the General Partners and their
affiliates regardless of whether we are successful.
. If you elect Class A Status Units, you will be allocated substantially all of our
net income, while substantially all deductions for depreciation and other tax losses
will be allocated to those of you who elect Class B Status Units. As a result, we
anticipate you will be allocated taxable income in excess of cash distributions
received from us if you elect Class A Status Units. We do, however, expect that
cash distributions will be sufficient to cover your tax liability resulting from
these allocations.
. If you elect Class B Status Units, you will not receive any cash distributions
from operations. You will be allocated a disproportionately larger share of the
Partnership's deductions for depreciation and other tax losses.
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. Our prior real estate programs have experienced fluctuating financial
performance. We cannot assure you that the properties we acquire will be profitable.
. Our real estate investments are subject to market risks associated with the
industry. We cannot predict the amount of cash we will receive from our tenants or
the future value of our properties. Accordingly, your receipt of cash distributions
and growth in the value of our properties depend upon fluctuating market conditions.
. This is a "blind pool" offering in that we do not own any real property and we
have not identified any properties in which there is a reasonable probability that
we will invest. Accordingly, you will not have the opportunity to evaluate the
properties that we acquire before you make your investment in us. You must rely
totally upon our ability to select properties.
. We may invest some or all of the offering proceeds to acquire undeveloped
properties. This type of investment involves 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. We will be subject to cost
overruns and time delays for properties under construction. Increased costs of
newly constructed properties may reduce our returns to you, while construction
delays may delay our ability to distribute cash to you.
. We will acquire properties only on an all cash basis and the General Partners do
not intend to cause us to borrow any funds. We are authorized, however, to borrow
amounts up to 25% of the total purchase price of our properties for the maintenance,
repair or improvement of our properties under certain conditions. We will not
borrow any funds until we first obtain an opinion that more likely than not the
indebtedness to be obtained will not cause our income to be taxed as "unrelated
business taxable income" (as defined in the Code).
Before you invest in the Partnership, you should see the complete discussion of risk
factors beginning on page 7 of this Prospectus.
TERMS OF THE OFFERING: We will begin the offering of units in Wells Real Estate Fund XII, L.P. upon the SEC
declaring the Registration Statement effective and will continue until the earlier
of:
(1) ----------------, 2000; or
(2) the date we sell all $35,000,000 worth of units in Wells Real Estate Fund XII,
L.P.
We will begin the offering of units in Wells Real Estate Fund XIII, L.P. immediately
upon the termination of the offering of units of Wells Real Estate Fund XII, L.P.
and will continue until the earlier of:
(1) ----------------, 2001; or
(2) the date we sell all $35,000,000 worth of units in Wells Real Estate Fund XIII,
L.P.
However, if the offering of units of Wells Real Estate Fund XIII, L.P. begins before
----------------, 2000, we may terminate the offering after one year. For each of the
Partnership's offerings, we will hold your money in an interest-bearing escrow
account until we receive subscriptions for at least $1,250,000 (125,000 units).
PROPERTIES: We 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. We will purchase 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 us either alone or jointly with another party. We are likely to enter
into one or more joint ventures for the acquisition of properties with prior or
future real estate programs or other publicly registered entities sponsored by the
General Partners or their affiliates. As of the date of this Prospectus, we have
neither purchased nor contracted to purchase any properties, nor have the General
Partners
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2
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identified any properties in which there is a reasonable probability that
we will invest.
ESTIMATED USE OF We anticipate that we will invest approximately 84% of the proceeds of this offering
PROCEEDS OF OFFERING: in Partnership properties. We will use the remainder of offering proceeds to pay
selling commissions and fees and expenses relating to the selection and acquisition
of properties and the costs of the offering and organizing the Partnerships.
INVESTMENT OBJECTIVES: Our objectives are:
. to maximize distributable cash to you;
. to preserve, protect and return your capital contribution; and
. to realize growth in the value of our properties upon our ultimate
sale of such properties.
We may only change these investment objectives upon approval of a
majority of the investors.
Differences between Class A You may elect to have your units treated as either Class A Status Units
Status Units and Class B or Class B Status Units and also to change your election one time
Status Units: during each quarterly accounting period, unless prohibited by
applicable state law. Class A Status Units and Class B Status Units
are entitled to different rights and priorities as to allocations of
cash flow from operations, depreciation and other tax losses, which are
summarized as follows:
. If you elect Class A Status Units, you will be entitled to receive
annual distributions of cash flow from operations, but will be
allocated a lower percentage return on potential appreciation of our
real estate investments. However, since Class A Status Units are
allocated substantially all of the Partnership's net income without
being allocated any deductions for depreciation or tax losses, you may
be allocated taxable income in excess of the cash you receive from the
Partnership.
. If you elect Class B Status Units, you will not be allocated any
current cash flow from operations, but will be allocated a
disproportionately larger share of the Partnership's deductions for
depreciation and other tax losses, and will be allocated a higher
percentage return on the potential appreciation of our real estate
investments. However, your losses from your investment in units will
be treated as "passive" losses for tax purposes. Passive losses may
only be used to offset "passive" income and may not be used to offset
active or portfolio income. Therefore, you may not obtain any current
benefit by electing Class B Status Units unless you have "passive"
income from other sources.
. 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 Class A Status Units to Class B
Status Units outstanding during any given period. We do not restrict
the mix of Class A Status Units to Class B Status Units and will not
attempt to establish or maintain any particular ratio. Therefore, we
cannot assure that you will receive the special rights or priorities
that you may be anticipating when you elect Class A Status Units or
Class B Status Units.
If you want to read more about each class of unit, see the "RISK
FACTORS," "DESCRIPTION OF THE UNITS" and "DISTRIBUTIONS AND
ALLOCATIONS" sections of the Prospectus.
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 will have to allocate
their time between the Partnership and other real estate programs and
activities they are involved in.
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3
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. The General Partners may compete with other real estate programs
managed by the General Partners for the same tenants in negotiating
leases or in selling similar properties at the same time.
. Since we anticipate that our properties will be managed by an
affiliate of the General Partners, we will not have the benefit of
independent property management.
. The General Partners must determine which real estate program or
other entity should enter into a joint venture for the acquisition and
operation of specific properties with affiliates of the General
Partners.
. We will pay fees to the General Partners and their affiliates in
connection with Partnership transactions involving the purchase,
management and sale of our properties regardless of the quality of the
property acquired or the services provided to us.
See the "CONFLICTS OF INTEREST" section of this Prospectus on page 31
for a detailed discussion of the various conflicts of interest relating
to your investment in units.
PRIOR OFFERING SUMMARY: The General Partners and their affiliates have previously sponsored twelve publicly
offered real estate limited partnerships and one real estate investment trust on an
unspecified property or "blind pool" basis. As of December 31, 1998, the General
Partners have raised approximately $---------------- from approximately -----
investors in these thirteen real estate programs. Certain of these previously
sponsored real estate programs have experienced fluctuating financial performance in
recent years. The "PRIOR PERFORMANCE SUMMARY" on page 37 of this Prospectus
contains a discussion of the public real estate programs previously sponsored by the
General Partners and their affiliates. Certain statistical data relating to prior
public limited partnerships with investment objectives similar to ours is also
provided in the "PRIOR PERFORMANCE TABLES" included as Exhibit "A" to this
Prospectus.
COMPENSATION TO The General Partners and their affiliates will receive compensation and fees for
GENERAL PARTNERS services relating to this offering and in connection with the investment and management of our
AND AFFILIATES: assets. The most significant items of compensation are:
Offering Stage:
. Sales commissions of 7% 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 2.5% 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 3% 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 3% 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
. Up to .5% of gross offering proceeds as reimbursement for costs and expenses for
the acquisition of properties.
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Operational Stage:
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. A property management and leasing fee in the amount of up to 4.5% 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 investors holding Class A Status Units have received cash distributions
equal to 10% of their invested capital, the General Partners are entitled to receive
10% of current cash flow distributions of the Partnership.
Liquidation Stage:
. After (1) investors have received a return of their invested capital, and (2)
investors holding Class A Status Units have received a 10% annual return on their
invested capital and investors holding Class B Status Units have received a 15%
annual return on their invested capital, then the General Partners are entitled to
receive 20% of remaining net sale proceeds available for distribution.
Provided, that the General Partners may not receive fees in excess of the maximum
amount permitted under the NASAA Guidelines. In addition, the General Partners will
receive a real estate brokerage commission of up to 3% of the sale price of
properties sold by the Partnership. This real estate commission will not be paid
until you receive a return of your invested capital plus a 6% annual return on your
capital.
The General Partners and their affiliates may receive a number of other smaller
items of incidental expense reimbursement during the operation and liquidation
stages of the Partnership.
REPURCHASE RESERVE: One year following the end of this offering, the General Partners may elect to
establish a repurchase reserve in an amount of up to 5% of cash flow on an annual
basis, pursuant to which you may be able to resell your units to us at a discount.
The General Partners may also cancel the repurchase reserve at any time.
DISTRIBUTION The General Partners may establish a distribution reinvestment plan that would allow
REINVESTMENT PLAN: you to automatically invest the distributions of net cash from operations you
receive from us in:
. our units during the offering period; or
. units or shares of subsequent real estate programs 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 have the discretion as to whether to provide for such a
distribution reinvestment plan. If you elect to participate in the distribution
reinvestment plan, you will be allocated your share of the Partnership's taxable
income even though you will not receive cash distributions from the Partnership.
You may have a tax liability from your allocation of taxable income even though you
would not receive any cash distributions with which to pay your tax liability.
DISTRIBUTIONS AND See the "DESCRIPTION OF THE UNITS" and "DISTRIBUTIONS AND ALLOCATIONS" sections of
ALLOCATIONS: 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.
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We expect to distribute cash flow from operations to investors holding Class A
Status Units no later than the end of the sixth full quarter of Partnership
operations. We will not distribute cash flow from operations to investors holding
Class B Status Units.
PARTNERSHIP AGREEMENT: Your rights and obligations in the Partnership and your relationship with the
General Partners will be governed by the Partnership Agreement. Some of the
significant features of the Partnership Agreement include the following:
. Voting Rights. A majority of you may vote to:
(1) amend the Partnership Agreement, subject to certain limitations;
(2) change our business purpose or our investment objectives; and
(3) remove a General Partner.
In the event of any such vote, you will be bound by the majority vote even if you
did not vote with the majority.
. Mergers and Consolidations. The Partnership Agreement prohibits the General
Partners from initiating any merger or consolidation by the Partnership with any
other partnership or corporation. We may not merge or consolidate with any other
partnership or corporation without approval by a majority of you.
. Restrictions on Transferability of Units. Some of the things that may prevent
you from transferring your units include:
(1) securities laws restrictions;
(2) the application of suitability standards to the proposed transferees of our
units;
(3) restrictions regarding the potential of the Partnership to become a "publicly
traded partnership" under the Code (generally a partnership whose interests are
publicly traded or frequently transferred); and
(4) restrictions regarding potential termination of the Partnership for tax
purposes.
No public market for our units currently exists and we do not expect one to ever
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 on
page 80. If we make any statements in this Prospectus that are different from the
Partnership Agreement, you should rely on the Partnership Agreement. A complete
copy of the Partnership Agreement is attached as Exhibit "B" to this Prospectus.
GLOSSARY: We have defined certain terms which have initial capital letters in the "GLOSSARY"
on page 101 of this Prospectus.
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RISK FACTORS
Your purchase of our units involves a number of risks. In addition to any
other risks discussed in this Prospectus, you should specifically consider the
following:
INVESTMENT RISKS
LIMITED TRANSFERABILITY AND LACK OF LIQUIDITY OF THE UNITS. Except for
transfers to family members by gift or inheritance, you are limited in your
ability to transfer your units. The Partnership Agreement and certain state
regulatory agencies have imposed restrictions relating to the number of units
you may transfer. In addition, except for transfers to family members or
transfers made by gift, inheritance or divorce, the suitability standards
applied to you upon the purchase of your units may also be applied to persons to
whom you wish to transfer your units. We do not anticipate that a public
trading market will ever develop for our units. In fact, the Partnership
Agreement restricts our ability to participate in a public trading market or
anything substantially equivalent to one by providing that any transfer which
may cause us to be classified as a "publicly traded partnership" (as defined in
the Code) shall be deemed void and shall not be recognized by us. Because
classification of the Partnership as a "publicly traded partnership" would
significantly decrease the value of your units, the General Partners intend to
use their authority to the maximum extent possible to prohibit transfers of
units which could cause us to be classified as a "publicly traded partnership."
Even if you are allowed to resell your units to the Partnership (because the
General Partners have exercised their option to establish a reserve for the
purpose of repurchasing your units at a discount), you are subject to certain
transfer limitations discussed in the "SUMMARY OF PARTNERSHIP AGREEMENT )
Repurchase of Units" section of the Prospectus on page 84. You may not,
therefore, be able to liquidate your investment in the event of an emergency,
and your units may not be readily accepted as collateral for a loan.
Consequently, you should view your investment in units strictly as a long-term
investment. (See "SUMMARY OF PARTNERSHIP AGREEMENT - Transferability of
Units.")
RISKS REGARDING RELIANCE ON THE GENERAL PARTNERS. The General Partners will
make all decisions with respect to the management of the Partnership. You will
have no right or power to take part in the management of the Partnership except
through the exercise of your voting rights, which are limited. The General
Partners may only be removed under certain conditions, as set forth in the
Partnership Agreement. If the General Partners are removed, they will receive
payment equal to the fair market value of their interests in the Partnership.
(See "SUMMARY OF PARTNERSHIP AGREEMENT.")
RISKS RELATING TO CONFLICTS OF INTEREST. We will be subject to various
conflicts of interest arising out of our relationship with the General Partners
and their affiliates. The General Partners of the Partnership are Leo F. Wells,
III and Wells Partners, L.P. Wells Capital, Inc. is the sole general partner of
Wells Partners, L.P. Leo F. Wells, III owns all of the outstanding capital
stock of Wells Real Estate Funds, Inc., which owns all of the outstanding
capital stock of Wells Capital, Inc. In addition, Wells Real Estate Funds, Inc.
owns all of the outstanding common stock of Wells Investment Securities, Inc.
(the Dealer Manager) and Wells Management Company, Inc. (the Property Manager).
The General Partners and their affiliates are also general partners and sponsors
of other real estate programs having investment objectives and legal and
financial obligations similar to ours. Because the General Partners and their
affiliates have interests in other real estate programs, and they engage in
other business activities, the General Partners and their affiliates will have
conflicts of interest in allocating their time between our business and these
other activities. We may be looking to buy properties at the same time as one
or more of the other real estate programs. We may acquire properties in
geographic areas where the General Partners and their affiliates own properties.
In addition, we may be competing for the same tenants in negotiating leases or
selling similar properties with real estate programs managed by the General
Partners or their affiliates. (See "CONFLICTS OF INTEREST" and "MANAGEMENT.")
LIMITED AND ILLIQUID NET WORTH OF THE GENERAL PARTNERS. The General
Partners have represented that, as of September 30, 1998, they have a combined
net worth on an estimated fair market value basis of approximately $2,667,000
(exclusive of home, automobiles and home furnishings). 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
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illiquid and not readily marketable. The limited net worth of the General
Partners, together with their other commitments, may be relevant to you in
evaluating the ability of the General Partners to fulfill their financial
obligations and responsibilities to the Partnership. Such commitments include
those relating to other real estate programs which have been formed in the past
and other real estate programs which the General Partners may organize in the
future. Specifically, you should consider these factors when evaluating 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 we have insufficient funds for such purposes. (See
"CONFLICTS OF INTEREST," "PRIOR PERFORMANCE SUMMARY" and "MANAGEMENT.")
LIMITATIONS OF RIGHTS OF THE LIMITED PARTNERS. We are a limited partnership
formed under the Georgia Revised Uniform Limited Partnership Act ("GRULPA"), and
accordingly, your rights are limited to rights provided either under GRULPA or
in the Partnership Agreement. The Partnership Agreement provides that a majority
of you may exercise the following voting rights:
. to amend the Partnership Agreement;
. to change our business purpose or our investment objectives;
. 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 units may approve any of these
actions, you will be bound by the majority vote even if you don't vote with the
majority on any one of these issues. (See "SUMMARY OF LIMITED PARTNERSHIP
AGREEMENT.")
POSSIBLE LACK OF DIVERSIFICATION RESULTING FROM SUBSCRIPTIONS FOR LESS THAN
THE MAXIMUM NUMBER OF UNITS. If we sell less than 3,500,000 units, we will have
less diversification of our investments. In addition, the likelihood of our
profitability being affected by any one of our investments will increase. For
example, in the event we only raise the minimum amount of $1,250,000 (the amount
needed to release funds to us from escrow) from this offering of units, we may
only be able to acquire one property and, therefore, would not achieve
diversification of our investments. Your investment in units will be subject to
greater risk to the extent that we lack diversification of our investments.
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, 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. The General Partners and their affiliates may only hold Class A Status
Units. Accordingly, if 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 holders of Class A Status Units, which
could adversely affect investors electing Class B Status for their units. (See
"INVESTMENT OBJECTIVES AND CRITERIA" and "PLAN OF DISTRIBUTION.")
RESTRICTIONS AND LIMITATIONS ON REPURCHASE RESERVE. We may establish a
repurchase reserve of up to 5% of cash flow annually for the purpose of
repurchasing your units at a discount. The General Partners, however, will have
the sole discretion as to whether to exercise such repurchase of your units.
The repurchase reserve may be established only after the expiration of one year
following the end of this offering. If established, the General Partners may
cancel the repurchase reserve at any time. Since the establishment of a
repurchase reserve is in the sole discretion of the General Partners, we are
under no obligation to establish such a reserve or to repurchase any units from
you. Even if a repurchase reserve is established, the Partnership Agreement
limits repurchases out of the repurchase reserve to an aggregate of 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
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an investment in the Partnership, you should not assume that you will be able to
sell any of your units back to us. In the event that we do establish a
repurchase reserve, the purchase price per unit will be equal to 85% of the fair
market value of your units until three years from the effective date of the
Registration Statement. After three years from the effective date of the
Registration Statement, the price per unit will be 90% of the fair market value
of your units. Fair market value will be determined by the General Partners
based upon an estimate of the amount you would receive if our real estate
investments were sold for their estimated values and the proceeds from such
sales were distributed in a liquidation of the Partnership. This means that you
would receive less for your units by liquidating your interest and selling them
back to us than you would receive if our real estate investments were sold for
their estimated values and such proceeds were distributed in a liquidation of
the Partnership. (See "SUMMARY OF PARTNERSHIP AGREEMENT - Repurchase of Units.")
POTENTIAL LIABILITY OF LIMITED PARTNERS. In general, your liability will be
limited to the amount you agree to contribute to the capital of the Partnership
plus your share of any undistributed profits and assets. The Georgia Revised
Uniform Limited Partnership Act (GRULPA) provides that you will have limited
liability even if you exercise your rights under the Partnership Agreement,
including without limitation, the right to vote on certain matters such as the
removal of the General Partners and the election of successor general partners.
This provision of GRULPA has not yet been interpreted by a court, however, and
accordingly, we cannot assure you 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 General Partners have
arbitrarily determined the selling price of our units and such price 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.
RISKS RELATING TO MANAGEMENT COMPENSATION. The General Partners and their
affiliates will perform services for us in connection with the offer and sale of
our units, the selection and acquisition of our properties, and the management
and leasing of our properties. We will pay substantial fees to the General
Partners for these services including the following:
. selling commissions (7% of gross offering proceeds) and dealer manager
fees (2.5% of gross offering proceeds) in the maximum amount of up to
$3,325,000, a majority of which will be reallowed to unrelated broker-
dealers participating in the offering;
. reimbursement of organizational and offering expenses (3% of gross
offering proceeds) (i.e., legal, accounting, printing, marketing and
other offering expenses) in a maximum amount of up to $1,050,000;
. acquisition and advisory fees (3% of gross offering proceeds) in
connection with the selection and acquisition of properties in a
maximum amount of up to $1,050,000 plus reimbursement of costs and
expenses (.5% of gross offering proceeds) for the acquisition of
properties; and
. property management and leasing fees (4.5% of gross rental income) for
supervising the management and leasing of our properties as well as
certain other leasing fees.
The above fees do not include all of the compensation to be paid to the General
Partners and their affiliates. For a complete description of such compensation,
see "COMPENSATION OF THE GENERAL PARTNERS AND AFFILIATES" on page 9 of this
Prospectus. The amount of such compensation has not been determined in arm's-
length negotiations with us, and such amounts will be payable regardless of the
quality of services provided to us and prior to any cash distributions to you.
(See "COMPENSATION OF THE GENERAL PARTNERS AND AFFILIATES" and "CONFLICTS OF
INTEREST.")
RISKS RELATING TO THE AVAILABILITY AND TIMING OF CASH DISTRIBUTIONS. We
cannot assure you that sufficient cash will be available to make distributions
to you from either net cash from operations or proceeds from the sale of
properties. We bear all expenses incurred in our 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. Although gains from the sales of
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properties typically represent a substantial portion of any profits attributable
to a real estate investment, we cannot assure you that we will realize gains on
the resales of our properties. In any event, you should not expect distribution
of such proceeds to occur during the early years of our operations. We will
generally not sell properties developed by us until at least ten years after
completion of the development and construction of the properties, and 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
you with respect to the sale of a Partnership property could exceed the cash
proceeds received from such sale. While proceeds from the sale of property will
generally be distributed to investors, the General Partners, in their sole
discretion, will not make such distribution if such proceeds are used to:
. purchase land underlying any of the Partnership's properties;
. buy out the interest of any co-venturer or joint venture partner in a
property which is jointly owned;
. create working capital reserves; or
. make capital improvements in existing Partnership properties.
However, reinvestment of proceeds from the sale of properties will not occur
unless sufficient cash will be distributed to pay any federal or state income
tax (assuming you 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.")
RISK OF LACK OF SOURCES FOR FUNDING OF FUTURE CAPITAL NEEDS. As we raise
capital from you, 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, we do not
anticipate that the Partnership will maintain any permanent working capital
reserves. Accordingly, in the event that we develop a need for additional
capital in the future for the improvement of our properties or for any other
reason, we have not identified any sources for such funding, and we cannot
assure you that such sources of funding will be available to us for potential
capital needs in the future.
RISKS RELATING TO JOINT VENTURES. We are likely to enter into one or more
joint ventures with affiliated entities for the acquisition, development or
improvement of properties. We may enter into joint ventures with previously
sponsored public real estate programs, future real estate programs or other
publicly registered entities sponsored by the General Partners or their
affiliates. We 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 involve risks not otherwise
present, including, for example:
. the possibility that our 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 or which become
inconsistent with our business interests or goals; or
. that such co-venturer, co-tenant or partner may be in a position to take
action contrary to our instructions or requests or contrary to our
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 your returns.
In addition, the General Partners and their affiliates are currently also
sponsoring a public offering on behalf of Wells Real Estate Investment Trust,
Inc. (the "Wells REIT"), an unspecified real estate program which qualified as a
real estate investment trust. (See "PRIOR PERFORMANCE SUMMARY.") In the event
that we enter into a joint venture with the Wells REIT, we may face certain
additional risks and potential conflicts of interest. For example, upon
becoming listed
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on a securities exchange, the Wells REIT will automatically become a perpetual
life entity, which may no longer have similar goals and objectives with respect
to the resale of properties in the future. In addition, in the event that the
Wells REIT is not listed on a securities exchange within ten years, the
organizational documents of the Wells REIT provide for an immediate orderly
liquidation of its assets. In event of such liquidation, any joint venture
between the Partnership and the Wells REIT may also be required to sell its
properties at such time even though we may not otherwise desire to do so.
Although the terms of any joint venture agreement between the Partnership and
the Wells REIT would grant us a right of first refusal to buy such properties,
it is unlikely that we would have sufficient funds to exercise our right of
first refusal under these circumstances. Further, 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 us 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 you. 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 us
to sell our interest in any such joint venture or partnership or as a co-tenant
in property. In addition, to the extent that our 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.")
RISKS RELATING TO ACQUISITION OF PROPERTIES FROM WELLS DEVELOPMENT
CORPORATION. We may enter into one or more contracts, either directly or
indirectly through joint ventures with affiliates, to acquire real property from
Wells Development Corporation, an affiliate of the General Partners ("Wells
Development"). We will acquire properties from Wells Development that are either
existing income-producing properties or properties to be developed or under
development. We anticipate that we will be obligated to pay a substantial
earnest money deposit at the time of contracting to acquire properties between
the Partnership and Wells Development. In the case of properties to be
developed by Wells Development, we anticipate we will be required 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 us, Wells
Development typically will not have acquired title to any real property. Wells
Development will only have a contract to acquire land, a development agreement
to develop a building on the land, and an agreement with a tenant to lease the
property upon its completion. We may enter into such a contract with Wells
Development even if at the time of contracting we have not yet raised sufficient
proceeds in our offering to enable us to close the purchase of such property.
We will not be required to close a purchase from Wells Development and will be
entitled to a refund of our earnest money in the following circumstances:
. Wells Development fails to develop the property;
. the tenant fails to take possession under its lease for any reason; or
. we are unable to raise sufficient proceeds from our offering to pay the
purchase price at closing.
The obligation of Wells Development to refund our earnest money is unsecured,
however, and it is unlikely that we would be able to collect such earnest money
deposit from them under these circumstances since Wells Development is an entity
without substantial assets or operations. Although Wells Development's
obligation to refund the earnest money deposit to us under these 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. Therefore, we cannot assure you that Wells
Management would be able to refund all of our earnest money deposit in a lump
sum. If we were forced to collect our earnest money deposit by enforcing the
guaranty of Wells Management, we will likely be required to accept installment
payments over time payable out of the revenues of Wells Management's property
management and leasing operations. We cannot assure you that we would be able
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to collect the entire amount of our earnest money deposit under such
circumstances. (See "INVESTMENT OBJECTIVES AND CRITERIA - Acquisition of
Properties from Wells Development Corporation.")
SPECIAL RISKS REGARDING CLASSES OF UNITS
SPECIAL RISKS RELATING TO AN ELECTION OF CLASS A STATUS. Since holders of
Class A Status Units will be allocated substantially all of the Partnership's
net income, while substantially all deductions for depreciation and other tax
losses will be allocated to holders of Class B Status Units, we expect that
those of you holding Class A Status Units will be allocated taxable income in
excess of distributions of cash flow from operations. We cannot assure you that
cash flow will be available for distribution to holders of Class A Status Units
in any year, and in the event that we sell substantially more Class A Status
Units than Class B Status Units, the holders of Class A Status Units may not
receive appreciably greater cash flow distributions from us attributable to the
capital raised from the sale of Class B Status Units as typically would occur if
we sell approximately equal amounts of Class A status Units and Class B Status
Units. Based upon past experiences of the General Partners and their
affiliates, however, we expect that cash distributions to those of you holding
Class A Status Units will be sufficient to cover the income tax liability
resulting from allocations of taxable income of the Partnership.
SPECIAL RISKS RELATING TO AN ELECTION OF CLASS B STATUS. If you elect Class
B Status for your units, you will not receive any distributions of cash flow
from operations. Although those of you holding Class B Status Units will be
allocated a disproportionately larger share of the Partnership's deductions for
depreciation and other tax 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, you may receive no current
benefit from your share of tax losses unless you are currently being allocated
passive income from other sources. Further, we cannot assure you that any such
losses will be available to be allocated to holders of Class B Status Units.
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 we 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. We
anticipate that holders of Class A Status Units will benefit to a greater extent
than holders of Class B Status Units if the majority of our investments are in
properties which generate relatively high cash flows but have lower potential
for appreciation. Conversely, holders of Class B Status Units will benefit to a
greater extent than holders of Class A Status Units if a greater percentage of
our investments are in properties generating less current cash flow but having
greater potential for appreciation in value. The unspecified nature of the
offering may impair your ability to make an informed decision as to whether to
elect Class A Status or Class B Status in light of the different features of
each class of units. (See "INVESTMENT OBJECTIVES AND CRITERIA.")
RISKS REGARDING INDETERMINATE RATIO OF CLASS A STATUS UNITS TO CLASS B
STATUS UNITS. You will be entitled to different rights and priorities as to
allocation of depreciation and other tax losses and as to net cash from
operations depending upon whether you elect Class A Status Units or Class B
Status Units. 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. We will not restrict the mix of Class
A Status Units to Class B Status Units, and we will not attempt to establish or
maintain any particular ratio. Therefore, we cannot assure you that you will
receive the special rights and priorities to which holders of the two classes of
units are entitled.
REAL ESTATE RISKS
FLUCTUATING FINANCIAL PERFORMANCE OF PREVIOUSLY SPONSORED PARTNERSHIPS. The
real estate programs previously sponsored by the General Partners and their
affiliates have experienced fluctuating financial performance primarily due to
tenant turnover. When a tenant does not renew its lease or otherwise vacates the
premises, we will be required to expend funds for tenant refurbishment and we
will have increases in administrative and other operating costs. We cannot
assure you
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that the properties acquired by the Partnership will not also experience
fluctuating financial performance. (See "PRIOR PERFORMANCE SUMMARY.")
POTENTIAL ADVERSE ECONOMIC AND REGULATORY CHANGES. We 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;
. changes in tax, real estate, environmental and zoning laws; and
. periods of high interest rates and tight money supply.
For these and other reasons, we cannot assure you that we will be profitable or
that we will realize gains from the sale of Partnership properties.
RISKS RELATING TO BLIND POOL OFFERINGS. 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 we will invest.
You must rely upon the ability of the General Partners with respect to the
investment in and management of unspecified properties, and you will not have an
opportunity to evaluate for yourself the relevant economic, financial and other
information regarding the specific properties in which the proceeds of this
offering will be invested. Although we are required to obtain an independent
appraisal for each property we purchase reflecting an appraised value at least
equal to the purchase price paid for such property, you should be aware that
appraisals are merely estimates of value and should not be relied upon as
precise measures of true worth or realizable value. We cannot assure you that we
will be successful in obtaining suitable investments or that, if investments are
made, our objectives we will be achieved.
RISKS REGARDING DEVELOPMENT AND CONSTRUCTION OF UNIMPROVED PROPERTIES. We
may invest some or all of the net proceeds available for investment in the
acquisition and development of properties upon which we will develop and
construct improvements at a fixed contract price. We 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 us to rescind the 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. We may incur additional risks
when we make periodic progress payments or other advances to such builders prior
to completion of construction. Factors such as those discussed above can result
in increased costs of a project or loss of our investment. In addition, we will
be subject to normal lease-up risks relating to newly constructed projects.
Furthermore, we must rely upon projections of rental income and expenses and
estimates of the fair market value of property upon completion of construction
when agreeing upon a price to be paid for the property at the time of
acquisition of the property.
RISKS RESULTING FROM COMPETITION FOR INVESTMENTS. We 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 your returns.
POTENTIAL ADVERSE EFFECTS OF DELAYS IN INVESTMENTS. Delays we encounter in
the selection, acquisition and development of properties could adversely affect
your returns. Holders of Class A Status Units could suffer delays in the
distribution of cash and holders of Class B Status Units could suffer delays in
the availability of income tax deductions for
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depreciation and other tax losses to be allocated to them. Where properties are
acquired prior to the start 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. We generally will hold the various real properties in which we
invest until such time as the General Partners determine that the sale or other
disposition thereof appears to be advantageous to achieve our 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 we will
have no obligation to sell properties at any particular time, except when a
majority of you vote to liquidate the Partnership in response to a formal proxy
to liquidate. (See "SUMMARY OF PARTNERSHIP AGREEMENT - Proxy to Liquidate.")
We cannot 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 our properties, we cannot assure you that we will be able to sell
our properties at a profit in the future. Accordingly, the timing of
liquidation of the Partnership and the extent to which you will receive cash
distributions and realize potential appreciation on our 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 our properties, we 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 you.
FEDERAL INCOME TAX RISKS
An investment in our units involves certain material income tax risks, the
character and extent of which are, to some extent, a function of whether you
elect Class A Status or Class B Status for your units. You are urged to consult
with your own tax advisor with respect to the federal (as well as state and
foreign) tax consequences of an investment in either class of our units. We
will not seek any rulings from the Internal Revenue Service (the "IRS")
regarding any of the tax issues discussed herein. Further, although we have
obtained an opinion from Holland & Knight LLP ("Counsel") regarding the material
federal income tax issues relating to an investment in our units (the "Tax
Opinion"), you should be aware that the Tax Opinion represents only Counsel's
best legal judgment, based upon representations and assumptions referred to
therein and conditioned upon the existence of certain facts. The Tax Opinion
has no binding effect on the IRS or any court. Accordingly, we cannot assure
you that the conclusions reached in the Tax Opinion, if contested, would be
sustained by any court. In addition, Counsel is unable to form an opinion as to
the probable outcome of the contest of certain material tax aspects of the
transactions described in this Prospectus. Counsel also gives no opinion as to
the tax consequences to you of tax issues which impact at the individual or
partner level. Accordingly, you are urged to consult with and rely upon your
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.")
RISK OF FAILURE OF COUNSEL TO FORM AN OPINION ON CERTAIN MATERIAL TAX
ISSUES. 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.
These aspects include:
. the issue of the deductibility of and timing of deductions for certain
payments made by us;
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. the issue of whether we will be considered to hold any or all of our
properties primarily for sale to customers in the ordinary course of
business; and
. the issue of whether we 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 could have the effect of reducing returns from an investment in our
units.
POTENTIAL ADVERSE INCOME TAX EFFECTS RELATING TO INVESTORS HOLDING CLASS A
STATUS UNITS. Items of depreciation and amortization will be specially
allocated to investors holding Class B Status Units. Partnership net income
(defined in the Partnership Agreement to mean generally our net income for
federal income tax purposes, including any income exempt from tax, but excluding
all deductions for depreciation and amortization and gain or loss from the sale
of Partnership properties) in excess of the amount of net cash from our
operations distributed will be allocated to all investors on a per unit basis.
Accordingly, investors holding Class A Status Units may be allocated Partnership
net income, and thus be subject to income tax liability, without receiving any
corresponding distributions of net cash from our operations. In fact, investors
holding Class A Status Units will likely be allocated taxable income in excess
of any distributions to them. Such adverse income tax effect to investors
holding Class A Status Units may vary significantly depending on the ratio of
Class A Status Units to Class B Status Units outstanding. We will not restrict
the mix of Class A Status Units to Class B Status Units, and we will not attempt
to establish or maintain any particular ratio.
POTENTIAL LOSS OF PARTNERSHIP TAX STATUS. Counsel has given its opinion
that it is more likely than not we will be classified as a partnership for
federal income tax purposes and not as an association taxable as a corporation.
However, 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 we should be treated as a partnership for tax purposes. The
income tax treatment anticipated from your investment in units depends upon the
classification of the Partnership as a partnership for federal income tax
purposes. If we were reclassified as an association taxable as a corporation,
our 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 our
tax returns and would not be passed through to you, and distributions to you
would be treated as ordinary dividend income to the extent of our earnings and
profits. In such event, cash distributions to you would be reduced and your
potential tax liability with respect to distributions received from us would be
increased. Further, if we were to contest such an IRS determination, we would
incur representation expenses payable from Partnership funds otherwise available
for investment or distribution to you.
POTENTIAL PUBLICLY TRADED PARTNERSHIP CLASSIFICATION. Counsel has given its
opinion that it is more likely than not we will not be classified as a "publicly
traded partnership" (generally, a partnership whose interests are publicly
traded or frequently transferred). This opinion was given based upon certain
representations of the General Partners and the provisions in the Partnership
Agreement which attempt to comply with certain safe harbor provisions adopted by
the IRS. We cannot assure you that the IRS will not challenge this conclusion or
that we will not, at some time in the future, be treated as a publicly traded
partnership due to the following factors:
. the complex nature of the IRS safe harbors;
. the lack of interpretive guidance with respect to such provisions; and
. the fact that any determination in this regard will necessarily be based
upon facts which have not yet occurred.
If we become classified as a "publicly traded partnership," we could be taxable
as a corporation and our net income could be treated as portfolio income rather
than passive income.
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LIMITATIONS ON DEDUCTIBILITY OF LOSSES. The Code limits the allowance of
deductions for losses attributable to "passive activities" (generally,
activities in which the taxpayer does not materially participate). Any tax
losses allocated to investors holding Class B Status Units will be characterized
as passive losses, and accordingly, the deductibility of such losses will be
subject to these limitations.
POSSIBILITY OF IRS CHALLENGE TO ALLOCATIONS OF PROFIT AND LOSS. Counsel has
given its opinion that it is more likely than not 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. We cannot assure you, however, 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 investors electing Class B Status
or increases the income allocated to investors electing Class A Status.
RISK OF POTENTIAL DEALER STATUS. If we 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 to you as ordinary
income and would also constitute UBTI to investors who are tax-exempt entities.
The resolution of our status is dependent upon facts which will not be known
until the time a property is sold or held for sale. Accordingly, Counsel is
unable to render an opinion as to whether we will be considered to hold any or
all of our 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. The appropriate classification of fees and expenses paid by us
into proper categories for purposes of determining deductibility 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 us. Counsel is unable to render an
opinion as to the probable outcome if the IRS were to challenge the
deductibility of or timing of deduction or amortization of those fees and
expenses. If the IRS were to disallow our deduction for any material portion of
the fees and expenses payable by us, we would suffer an increase in our taxable
income allocable to you with no associated increase in net cash from our
operations.
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. Accordingly, an
investor electing Class A Status Units who participates in the distribution
reinvestment plan will be allocated his share of the our 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 investor would receive
no cash distributions from us. In addition, an investor electing Class A Status
who purchases units pursuant to the deferred commission option will be allocated
his share of our net income with respect to such units even though net cash from
our operations otherwise distributable to him will instead be paid to third
parties to satisfy the deferred commission obligations with respect to such
units for a period of six years after the termination of the offering. (See
"PLAN OF DISTRIBUTION.")
RISKS REGARDING CHARACTERIZATION OF SALE-LEASEBACK TRANSACTIONS. If we
enter into a sale-leaseback transaction which is recharacterized by the IRS as a
"financing," rather than a "true lease" where we would be treated as the owner
of the property in question for federal income tax purposes, we would 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. 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." We will not seek an advance ruling from
the IRS or an opinion of counsel that we will be treated as the owner of any
leased properties for federal income tax purposes, however, and we cannot assure
you that any such transaction will not be recharacterized as a "financing"
transaction for federal income tax purposes. In such event, investors holding
Class B Status Units would be deprived of potential deductions for depreciation
and cost recovery with respect to the property in question.
POTENTIAL APPLICATION OF ANTI-ABUSE RULES. The Commissioner of Internal
Revenue is authorized 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. The
General Partners are unaware of any facts
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or circumstances which would cause the Commissioner to exercise his authority to
recast any transaction entered into by us. However, the applicability of such
rules to our activities is very uncertain, and we cannot assure you that the
Commissioner will not, in the future, attempt to recast or restructure certain
of our activities or transactions.
POTENTIAL APPLICATION OF ALTERNATIVE MINIMUM TAX. The application of the
alternative minimum tax could reduce certain tax benefits associated with your
purchase of units. The effect of the alternative minimum tax depends upon your
particular overall tax situation, and you should consult with, and must rely
upon, your own tax advisor with respect to the possible application of the
alternative minimum tax provisions of the Code.
AUDIT RISK, INTEREST AND PENALTIES. Our federal income tax returns may be
audited by the IRS. Any audit of the Partnership could also result in an audit
of your tax return causing adjustments of items unrelated to your investment in
us, in addition to adjustments to various Partnership items. In the event of
any such adjustments, you might incur attorneys' fees, court costs and other
expenses contesting deficiencies asserted by the IRS. You may also be liable
for interest on any underpayment and certain penalties from the date your tax
was originally due. The tax treatment of all Partnership items will generally
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 partners to a
settlement with the IRS. Further, the General Partners may cause us to elect to
be treated as an "electing large partnership." If they do, we could take
advantage of simplified flow-through reporting of Partnership items.
Adjustments to Partnership items would continue to be determined at the
Partnership level, however, and any such adjustments would be accounted for in
the year they take effect, rather than in the year to which such adjustments
relate. Accordingly, if you make an election to change the status of your units
between the years in which a tax benefit is claimed and an adjustment is made,
you may suffer a disproportionate adverse impact with respect to any such
adjustment. Further, the General Partners will have the discretion in such
circumstances either to pass along any such adjustments to the partners or to
bear such adjustments at the Partnership level, thereby potentially adversely
impacting the holders of a particular class of units disproportionately to
holders of the other class of units.
RISKS REGARDING STATE AND LOCAL TAXATION AND REQUIREMENTS TO WITHHOLD STATE
TAXES. The state in which you are a resident may impose an income tax upon your
share of our taxable income. Further, states in which we will own Partnership
properties may impose income taxes upon your share of our taxable income
allocable to any Partnership property located in that state. Many states have
also 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 we may be required to
withhold state taxes from cash distributions otherwise payable to you. In the
event we are required to withhold state taxes from your cash distributions, the
amount of the net cash from our operations otherwise payable to you may be
reduced. In addition, such collection and filing requirements at the state
level may result in increases in our administrative expenses which would have
the effect of reducing cash available for distribution to you. You are urged to
consult with your own tax advisors with respect to the impact of applicable
state and local taxes and state tax withholding requirements on an investment in
units.
RISK OF 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. The Taxpayer Relief Act of 1997 and the Internal
Revenue Service Restructuring and Reform Act enacted in 1998 contain numerous
provisions affecting the real estate industry and the operations of partnerships
such as the Partnership. Changes are likely to continue to occur in the future,
and we cannot assure you 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 or on the market value or the resale potential of
Partnership properties. You are urged to consult with your own tax advisor with
respect to the impact of recent legislation on your investment in units and the
status of legislative, regulatory or administrative developments and proposals
and their potential effect on an investment in units. You should also note that
the Tax Opinion assumes that no legislation will be enacted after the date of
this Prospectus which will be applicable to an investment in units.
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RISKS RELATING TO RETIREMENT PLAN INVESTORS
A retirement plan fiduciary considering an investment in units must
consider provisions of the Code and the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), applicable to such investments. In particular, a
fiduciary should consider the following factors:
. whether the investment is made in accordance with the plan documents and
instruments governing such plan, including the plan's investment
policy;
. whether the investment satisfies the prudence and diversification
requirements of Sections 404(a)(1)(B) and 404(a)(1)(C) of ERISA;
. whether the investment will result in sufficient liquidity for the plan;
. the need to value the assets of the plan annually; and
. 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 units by Retirement Plans, see "INVESTMENT BY
TAX-EXEMPT ENTITIES AND ERISA CONSIDERATIONS."
PLAN ASSETS RISK. If our assets were deemed to be assets of the qualified
plans investing as limited partners ("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 our assets 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 our
investments. The General Partners have used their best efforts to structure the
Partnership so that our assets will not be deemed to be Plan Assets, and intend
to use their best efforts to take such actions as may be required to insure that
our assets will not be deemed to be Plan Assets. However, we have not requested
an opinion of counsel regarding whether or not our assets would constitute Plan
Assets under ERISA nor have we sought any rulings from the U.S. Department of
Labor regarding classification of our assets.
In this regard, U.S. Department of Labor Regulations defining Plan Assets
for purposes of ERISA contain exemptions which, if satisfied, would preclude
assets of a limited partnership such as ours from being treated as Plan Assets.
We cannot assure you that the Partnership Agreement and the offering have been
structured so that the exemptions in such Regulations would apply to us, and
although the General Partners intend that an investment by a qualified plan in
units not be deemed an investment in the assets of the Partnership, we can make
no representations or warranties of any kind 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 this and
other 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
actions undertaken by us are deemed to be non-prudent investments or "prohibited
transactions." In the event our assets are deemed to constitute Plan Assets or
certain transactions undertaken by us are deemed to constitute "prohibited
transactions" under ERISA or the Code (and no exemption for such transactions is
obtainable by us), 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:
. terminate the offering of units;
. compel a termination and dissolution of the Partnership; or
. restructure our activities to the extent necessary to comply with any
exemption in the Department of Labor Regulations or any prohibited
transaction exemption granted by the Department of Labor or any
condition
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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.")
RISKS RELATING TO MINIMUM DISTRIBUTION REQUIREMENTS. If you intend to
purchase units in your Individual Retirement Account ("IRA"), or if you are a
trustee of an IRA or other fiduciary of a retirement plan considering an
investment in units, you must consider the limited liquidity of an investment in
units as it relates to applicable minimum distribution requirements under the
Code. If units are held and the Partnership properties have not yet been sold
at such time as mandatory distributions are required to begin 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 attributable to any such distribution.
UNRELATED BUSINESS TAXABLE INCOME ("UBTI"). We do not intend or anticipate
that we will generate income deemed to be derived from an unrelated trade or
business, which is generally referred to as "UBTI." Further, we will never
incur indebtedness to acquire Partnership properties, which could cause
recharacterization of our income as UBTI. Notwithstanding this prohibition,
however, the General Partners have limited authority to borrow funds deemed
necessary:
. to finance improvements necessary 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.
The General Partners have represented that they will not allow the Partnership
to incur indebtedness unless they obtain an opinion of counsel or an opinion
from our tax accountants that the proposed indebtedness more likely than not
will not cause our income to be characterized as UBTI. However, any such
opinion will have no binding effect on the IRS or any court. Accordingly,
although the General Partners will use their best efforts to structure our
operations to avoid characterization of our income as UBTI, some risk remains
that we may generate UBTI in connection with any financing of our operations, or
in the event that we are 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.")
SUITABILITY STANDARDS
Investment in the Partnership involves some degree of risk. It may be
difficult to resell Partnership 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
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meets certain requirements. The requirements are set out in the Subscription
Agreement attached as Exhibit "C" to this Prospectus, and include the following:
. 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
. 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 transfers to family members and transfers made by gift, inheritance
or divorce. 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 they contribute 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 (as defined in the Code) 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,
Nebraska and Washington, investors who have satisfied the minimum purchase
requirements and have purchased units in public real estate programs previously
sponsored by the General Partners or their affiliates 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
(1) 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
(2) purchases of units pursuant to the distribution reinvestment plan sponsored
by the Partnership, 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, MASSACHUSETTS, MISSISSIPPI, MISSOURI, OREGON, SOUTH DAKOTA AND
TENNESSEE - Investors shall have either (1) current annual gross income of at
least $60,000 and a net worth (excluding home, furnishings and automobiles) of
at least $60,000, or (2) a net worth (excluding home, furnishings and
automobiles) of at least $225,000.
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."
FLORIDA - Units purchased pursuant to the distribution reinvestment plan
sponsored by the Partnership 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 a Florida registered broker-
dealer. (See "Summary of Partnership Agreement - Distribution Reinvestment
Plan.")
20
<PAGE>
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 200 units ($2,000).
MAINE - Investors shall have either (1) current annual gross income of at
least $50,000 and a net worth (excluding home, furnishings and automobiles) of
at least $50,000, or (2) 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 public
real estate programs previously sponsored by the General Partners or their
affiliates.
Investors other than IRAs must purchase a minimum of 250 units ($2,500).
MICHIGAN - An investor may not invest in excess of 10% of his, her or its
net worth (excluding home, furnishings and automobiles).
MINNESOTA - Investors other than IRAs and qualified retirement plans must
purchase a minimum of 250 units ($2,500). IRAs and qualified retirement 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 public real estate programs previously sponsored by
the General Partners or their affiliates.
MISSOURI - 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 and qualified retirement plans must
purchase a minimum of 500 units ($5,000). Investments in additional units
pursuant to the distribution reinvestment plan sponsored by the Partnership 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 (1) current annual gross income
of at least $50,000 and a net worth (excluding home, furnishings and
automobiles) of at least $125,000, or (2) a net worth (excluding home,
furnishings and automobiles) of at least $250,000.
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 (1) an annual gross income of at least
$50,000 and a net worth (excluding home, furnishings and automobiles) of at
least $50,000, or (2) irrespective of annual gross income, a net worth
(excluding home, furnishings and automobiles) of at least $150,000.
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 and qualified retirement plans
must purchase a minimum of 250 units ($2,500).
OHIO - Investors other than IRAs must purchase a minimum of 250 units
($2,500). An investor may not invest in excess of 10% of his, her or its net
worth (excluding home, furnishings and automobiles).
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<PAGE>
OKLAHOMA - A husband and wife may not jointly contribute funds from their
separate IRAs in satisfaction of the minimum investment requirement.
PENNSYLVANIA - Each Pennsylvania investor must meet the added suitability
requirement that such investor has a net worth (excluding home, furnishings and
automobiles) of at least 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.
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.
SOUTH CAROLINA - Investors shall have either (1) a net worth (excluding
home, furnishings and automobiles) of at least $150,000, or (2) state and
federal income subject to the maximum rate of income tax.
Investors other than IRAs and qualified retirement plans must purchase a
minimum of 250 units ($2,500).
TEXAS - Investments in additional units pursuant to the distribution
reinvestment plan sponsored by the Partnership 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 public real estate programs
previously sponsored by the General Partners or their affiliates.
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.
The General Partners and each person selling units on behalf of the
Partnership are required to:
. 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
. 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 (1) 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 (2) transmit promptly to the Partnership all fully completed and
duly executed Subscription Agreements.
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<PAGE>
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 and other tax 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. Investors' 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, investors have the right to change
their prior election 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 the first day of the next 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 investor's successors and assigns. In order to assist
investors in determining whether to change their election of Class A Status or
Class B Status, investors 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
the General Partners and their affiliates shall not have the right to elect 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 a seven year period pursuant to a "deferred commission
option" rather than payment in full at the time of sale. Any investor
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 investor. In addition, investors
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 six years after the termination of the offering since
investors 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.")
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 and other tax 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 qualified 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 and other tax 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
23
<PAGE>
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 4.5% property management and leasing fees to an affiliate
of the General Partners) will be distributed as follows:
. 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
the amount of capital invested in the Partnership less prior
distributions of proceeds from the sale of properties);
. 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
. 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 six years after termination of the offering have deducted and withheld
from distributions of net cash from operations otherwise payable to them 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.")
PROCEEDS FROM THE SALE OF PROPERTIES. Proceeds from the sale or exchange of
Partnership properties will be distributed as follows:
. 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;
. Then, to all 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 the amount of
capital invested in the Partnership less prior distributions of
proceeds from the sale of properties);
24
<PAGE>
. Then, to all limited partners on a per unit basis until each limited
partner has received aggregate distributions equal to a cumulative
(noncompounded) 10% annual return on his net capital contribution;
. Then, to limited partners who, at any point in time, have changed the
status of their units 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% annual 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% annual cumulative (noncompounded) return on his net capital
contribution for all periods during which such unit was treated as a
Class B Status Unit);
. Then, to the General Partners until they have received an amount
equal to 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 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 Excess Limited Partner Distributions plus
the amount distributed to the General Partners pursuant to this
provision; and
. Then, to the extent any proceeds from the sale of properties 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 15% of sale proceeds remaining after payments to limited partners of
their net capital contributions plus a 6% annual return on their net capital
contributions calculated on a cumulative, noncompounded basis. It is the intent
of the foregoing limitation that the General Partners will 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.
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.")
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 and other tax losses and
any net gain or loss on the sale of Partnership properties) 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.")
25
<PAGE>
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:
. First, 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;
. Then, to any partner having a positive balance in his capital account
in an amount not to exceed such positive balance; and
. 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 of properties (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 proceeds from the sale of properties, as described
above. (See "DISTRIBUTIONS AND ALLOCATIONS.")
CLASS A STATUS UNITS
As set forth above, limited partners holding Class A Status Units 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 or amortization deductions for tax purposes. Thus, tax benefits
resulting from deductions for net loss, depreciation and amortization will not
be available to holders of Class A Status Units during the initial period of
Partnership operations.
Upon a distribution of proceeds from the sale of properties, each limited
partner holding Class B Status Units is first entitled to a distribution of 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. Thereafter, holders of
both Class A Status Units and Class B Status Units are entitled to an amount
equal to their net capital contributions. Thereafter, holders of Class A Status
Units 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 holders of Class B Status Units). (See "DISTRIBUTIONS
AND ALLOCATIONS.")
CLASS B STATUS UNITS
Limited partners holding Class B Status Units will receive a
disproportionately larger share of Partnership income tax deductions because all
of the limited partners' share of Partnership net loss, depreciation and
amortization 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 and amortization deductions to holders of
Class B Status Units will reduce their capital
26
<PAGE>
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.
Limited partners holding Class B Status Units will not receive any net cash
from operations. 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 proceeds
from the sale of properties 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, all
limited partners are entitled to a return of their net capital contributions.
Then, limited partners holding Class B Status Units 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 holders of
Class A Status Units). (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 by election of the deferred
commission option (pursuant to which limited partners must hold a certain number
of Class A Status Units to satisfy deferred commission obligations through
amounts otherwise distributable to such limited partners from net cash from
operations). Any such changed election shall be effective the first day of the
next accounting period following receipt by the Partnership of written notice of
such election. An 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 the benefits
associated with holding Class B Status Units. An 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 the benefits associated with holding Class A Status Units.
Distributions of proceeds from the sale of properties will be prorated to each
limited partner for each calendar quarter during which his units were treated as
Class A Status Units (and entitled to an annual return of 10% on his net capital
contribution) and for each calendar quarter during which such units were treated
as Class B Status Units (and entitled to an annual return of 15% on his net
capital contribution).
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 for each of the
Partnerships. 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 for each of the Partnerships is estimated to be
approximately 84%.
<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) 118,750 9.5% 3,325,000 9.5%
Organization and Offering Expenses (3) 37,500 3% 1,050,000 3%
---------- ---- ----------- ----
Amount Available for Investment (4) $1,093,750 87.5% $30,625,000 87.5%
Acquisition and Development:
Acquisition and Advisory Fees (5) $ 37,500 3% $ 1,050,000 3%
Acquisition Expenses (6) 6,250 .5% 175,000 .5%
Initial Working Capital Reserve (7) (7) - (7) -
---------- ---- ------------ -----
Amount Invested in Properties (4)(8) $1,050,000 84% $29,400,000 84%
========== ==== =========== ====
</TABLE>
27
<PAGE>
_________________________
(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 7% of aggregate gross offering
proceeds (which commissions may be reduced under certain circumstances) and
a dealer manager fee equal to 2.5% 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 7% 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 1.5% 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 underwriting expense reimbursements, exceed 10% of gross offering
proceeds, except for an additional .5% of gross offering proceeds which may
be paid as a reimbursement 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 3% 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 (defined generally as
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) to the General Partners or their affiliates in connection with
the acquisition of the Partnership's properties up to a maximum amount of 3%
of gross offering proceeds. Acquisition and advisory fees do not include
acquisition expenses.
(6) Acquisition expenses include legal fees and expenses, travel 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
(defined generally to mean the net cash proceeds received by the Partnership
from any sale or exchange of Partnership properties).
(8) Includes amounts anticipated to be invested in Partnership properties net of
fees and expenses. It is estimated that approximately 84% of the proceeds
from the sale of units will be used to acquire properties, and under no
circumstances
28
<PAGE>
shall the Partnership commit less than 80% of capital contributions to
investment in properties, as required under the NASAA Guidelines.
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 the Partnership to the
General Partners and their affiliates during the various phases of the
organization and operation of the Partnership.
<TABLE>
<CAPTION>
Form of Compensation Determination Estimated Maximum
and Entity Receiving of Amount Dollar Amount (1)
- ----------------------------------- --------------------------------------------------------- ------------------
Organizational and Offering Stage
<S> <C> <C>
Selling Commissions - Up to 7% of gross offering proceeds before reallowance of $2,450,000
The Dealer Manager commissions earned by participating broker-dealers. The ($87,500 in the
Dealer Manager intends to reallow 100% of event the Partner-
commissions earned to participating broker-dealers. ship sells only the
minimum of
125,000 units)
Dealer Manager Fee - Up to 2.5% of gross offering proceeds before reallowance $875,000
The Dealer Manager to participating broker-dealers. The Dealer Manager, in ($31,250 in the
its sole discretion, may reallow a portion of its dealer event the Partner-
manager fee of up to 1.5% of the gross offering proceeds ship sells only the
to be paid to such participating broker-dealers as a minimum of
marketing fee, based on such factors as the volume of units $125,000 units)
sold by such participating broker-dealers, marketing support
and bona fide conference fees incurred.
Reimbursement of Up to 3% of gross offering proceeds. All organization and $1,050,000
Organization and Offering offering expenses (excluding selling commissions and the ($37,500 in the
Expenses - The General Partners dealer manager fee) will be advanced by the General Partner event the Partner-
or their Affiliates and their affiliates and reimbursed by the Partnership.(2) ship sells only the
minimum of
125,000 units)
Acquisition and Development Stage
Acquisition and Advisory For the review and evaluation of potential real property $1,050,000
Fees - The General acquisitions, a fee of up to 3% of gross offering proceeds. ($37,500 in the
Partners or event the Partner-
their Affiliates ship sells only
the minimum of
125,000 units)
Reimbursement of Up to .5% of gross offering proceeds for reimbursement of $175,000 ($6,250
Acquisition Expenses expenses related to real property acquisitions, such as in the event the
- - The General legal fees, travel expenses, property appraisals, title Partnership
Partners or their insurance premium expenses and other closing costs. sells only the
Affiliates minimum of
125,000 units)
Operational Stage
Property Management and For supervising the management of the Partnership Actual amounts
Leasing Fees - Wells properties, a fee equal to the lesser of: (A)(1) for are dependent
Management Company, commercial properties which are not leased on a long-term upon results
Inc. net lease basis, 4.5% of gross revenues, and (2) in the of operations
case of commercial properties which are leased on a and therefore
long-term (ten or more years) net lease basis, 1% of cannot be
gross revenues plus, in the case of leases to new determined
tenants, initial leasing fees equal to 3% of gross at the present
revenues over the first five years of the lease term, or time.
(B) the amounts charged by unaffiliated persons rendering
</TABLE>
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<TABLE>
<S> <C> <C>
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.
Share of Net Cash From A noncumulative amount equal to one-tenth of net cash Actual amounts
Operations - The from operations subordinated in each fiscal year to are dependent
General Partners distributions of net cash from operations to investors upon results of
holding Class A Status Units equal to 10% of their net operations
capital contributions. and therefore
cannot be
determined at
the present time.
Liquidation Stage
Subordinated Participation After investors have received a return of their net Actual amounts are
in Nonliquidating Net Sale capital contributions and their Preferential Limited dependent upon
Proceeds and Liquidating Partner Return, then the General Partners are entitled results of operations
Distributions - The to receive the following amounts: and therefore cannot
General Partners be determined at
(a) an amount equal to their capital contributions, the present time.
(b) then, if and only in the event that investors 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 15% of sale
proceeds remaining after investors have received a return
of their net capital contributions plus a 6% annual
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 Actual amounts are
The General Partners or amount not exceeding the lesser of: (A) 50% of the dependent upon
Their Affiliates reasonable, customary and competitive real estate brokerage results of operations
commissions customarily paid for the sale of a comparable and therefore cannot
property in light of the size, type and location of the be determined at
property, or (B) 3% of the gross sales price of each the present time.
property, subordinated to distributions to investors
from sale proceeds of an amount which, together with prior
distributions to the investors, will equal (1) 100% of
their capital contributions plus (2) a 6% annual 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 organizational and offering expenses
paid by Wells Real Estate Fund XII, L.P. are made for organization,
registration and offering expenses relating to both of the Partnerships, it
is anticipated that Wells Real Estate Fund XIII, L.P. will reimburse Wells
Real Estate Fund XII, L.P. for its pro rata share of such expenses, subject
to the 3% 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
30
<PAGE>
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: (1) rent or depreciation,
utilities, capital equipment, other administrative items; and (2) salaries,
fringe benefits, travel expenses 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 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.")
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
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<PAGE>
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%
===============================================================================
WELLS REAL ESTATE FUNDS, INC.
===============================================================================
100% 100% 100%
===================== ================================ ==================
WELLS CAPITAL, INC. WELLS INVESTMENT SECURITIES, INC. WELLS MANAGEMENT
(DEALER MANAGER) COMPANY, INC.
(PROPERTY MANAGER)
===================== ================================ ==================
General Partner 100%
===================== ==================
WELLS PARTNERS, L.P. WELLS DEVELOPMENT
(GENERAL PARTNER) CORPORATION
===================== ==================
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:
INTERESTS IN OTHER REAL ESTATE PROGRAMS. 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.
In addition, the General Partners and their affiliates are currently
sponsoring a real estate investment trust known as Wells Real Investment Trust,
Inc., a Maryland corporation. The registration statement of Wells Real Estate
Investment Trust, Inc. was declared effective by the Securities and Exchange
Commission on January 30, 1998 for the offer and sale to the public of up to
16,500,000 shares of common stock at a price of $10.00 per share.
As described in the "PRIOR PERFORMANCE SUMMARY," the General Partners have
sponsored the following twelve other public real estate partnerships and one
real estate investment trust with substantially identical investment objectives
as those of the Partnership:
1. Wells Real Estate Fund I ("Wells Fund I"),
2. Wells Real Estate Fund II ("Wells Fund II"),
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<PAGE>
3. Wells Real Estate Fund II-OW ("Wells Fund II-OW"),
4. Wells Real Estate Fund III, L.P. ("Wells Fund III"),
5. Wells Real Estate Fund IV, L.P. ("Wells Fund IV"),
6. Wells Real Estate Fund V, L.P. ("Wells Fund V"),
7. Wells Real Estate Fund VI, L.P. ("Wells Fund VI"),
8. Wells Real Estate Fund VII, L.P. ("Wells Fund VII"),
9. Wells Real Estate Fund VIII, L.P. ("Wells Fund VIII"),
10. Wells Real Estate Fund IX, L.P. ("Wells Fund IX"),
11. Wells Real Estate Fund X, L.P. ("Wells Fund X"),
12. Wells Real Estate Fund XI, L.P. ("Wells Fund XI"), and
13. Wells Real Estate Investment Trust, Inc. (the "Wells REIT")
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, Wells Fund VI, Wells
Fund VII, Wells Fund VIII and Wells Fund IX available for investment in real
properties have been invested. As of _________, 1998, approximately _______% of
the proceeds of the offering of Wells Fund X, _____% of the proceeds of the
offering of Wells Fund XI, and ______% of the proceeds of the offering of the
Wells REIT 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 other real estate program or other 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, the
anticipated cash flow of the property to be acquired and the cash requirements
of each program, the effect of the purchase on diversification of the portfolio
of each such entity in terms of number of investments, types of commercial
properties, geographic area and industry group of the tenant, the estimated
income tax effects of the purchase on each such entity, the size of the
investment, the amount of funds available to each entity 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.
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
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 have held
title to any such property on behalf of the Partnership for more than 12 months
prior to the commencement of this offering, 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:
. sell or lease real property to the General Partners or any of their
affiliates;
33
<PAGE>
. loan Partnership funds to the General Partners or any of their
affiliates; or
. enter into agreements with the General Partners or their affiliates
for the provision of insurance covering the Partnership or any
Partnership property.
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.
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.")
AFFILIATED PROPERTY MANAGER. Since it is anticipated that Partnership
properties will be managed and leased by Wells Management Company, Inc. (the
Property Manager), the Partnership will not have the benefit of independent
property management. (See "MANAGEMENT" and "COMPENSATION OF THE GENERAL
PARTNERS AND AFFILIATES.")
LACK OF SEPARATE REPRESENTATION. Holland & Knight LLP ("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.
JOINT VENTURES WITH AFFILIATES OF THE GENERAL PARTNERS. The Partnership is
likely to enter into one or more joint venture agreements with public real
estate programs previously sponsored by the General Partners or their affiliates
or other 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 real estate program should enter into
any particular joint venture agreement. The co-venturer may have economic or
business interests or goals which are or which may become inconsistent with the
business interests or goals of the Partnership. In addition, 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 affiliated co-venturer and in managing the
joint venture. 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. (See "RISK FACTORS - Risks Relating to Joint
Ventures.")
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
34
<PAGE>
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.")
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 the investors. Further, it is possible that federal income tax
adjustments proposed by the IRS could be adverse to investors holding Class B
Status Units while being neutral or potentially advantageous to investors
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 investors 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:
. 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;
. prohibit the Partnership from purchasing or leasing an investment
property from the General Partners or their affiliates;
. prohibit loans by the Partnership to the General Partners or their
affiliates;
. prohibit the commingling of Partnership funds; and
. 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 investors).
In addition, as described below, the General Partners have a fiduciary
obligation to act in the best interests of both the investors in the Partnership
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.
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,
35
<PAGE>
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:
. 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
. 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:
. own fraud, negligence, misconduct or knowing violation of law;
. breach of fiduciary duty to the Partnership or any partner; or
. 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.
In the absence of such limitations in a partnership agreement, 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. Therefore, 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:
. own fraud, negligence, misconduct or knowing violation of law;
. breach of fiduciary duty to the Partnership or any Partner; or
. 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.
36
<PAGE>
Any indemnification of the General Partners is recoverable only out of the
assets of the Partnership and not from the investors. 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.
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:
. there has been a successful adjudication on the merits of each count
involving alleged securities law violations as to the particular
person seeking indemnification;
. such claims have been dismissed with prejudice on the merits by a
court of competent jurisdiction as to the particular person seeking
indemnification; or
. 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 twelve publicly offered real estate limited partnerships.
These twelve 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)
11. Wells Real Estate Fund X, L.P. (1997)
12. Wells Real Estate Fund XI, L.P. (1998).
The tables included in Exhibit "A" attached hereto set forth information as
of the dates indicated regarding certain of these prior programs as to (1)
experience in raising and investing funds (Table I); (2) compensation to sponsor
(Table II);
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<PAGE>
and (3) 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.
In addition to the foregoing real estate limited partnerships, the General
Partners and their affiliates are currently also sponsoring a public offering on
behalf of Wells Real Estate Investment Trust, Inc., an unspecified real estate
program which has qualified as a real estate investment trust (the "Wells
REIT").
In addition to the real estate programs sponsored by the General Partners
discussed above, the General Partners are also sponsoring an index mutual fund
which invests in various REIT stocks known as the Wells S&P REIT Index Fund (the
"Fund"). The Fund seeks to provide investment results corresponding to the
performance of the S&P REIT Index by investing in the REIT stocks included in
the S&P REIT Index. The Fund began its offering on January 12, 1998, and as of
December 31, 1998, the Fund had raised $_____________ from ___________
investors.
PUBLICLY OFFERED UNSPECIFIED REAL ESTATE PROGRAMS
The General Partners and their affiliates have previously sponsored twelve
publicly offered real estate limited partnerships and one real estate investment
trust 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, Wells Fund IX, Wells Fund X,
Wells Fund XI and the Wells REIT. The total amount of funds raised from
investors in the offerings of these twelve publicly offered partnerships and the
Wells REIT, as of December 31, 1998, was approximately $___________, and the
total number of investors in such programs was approximately ______.
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, Wells Fund IX, Wells Fund X, Wells Fund XI and the Wells REIT
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, Wells Fund VI, Wells Fund
VII, Wells Fund VIII and Wells Fund IX available for investment in real
properties have been invested in properties. As of __________________, 1998,
approximately ___% of the proceeds of the offering of Wells Fund X, ___% of the
proceeds of the offering of Wells Fund XI, and ___% of the proceeds of the
offering of the Wells REIT 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, 1998, approximately
____________ of the aggregate gross rental income of these thirteen publicly
offered programs 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.
Because of the cyclical nature of the real estate market, decreases in net
income of the public partnerships could occur at any time in the future when
economic conditions decline. None of the 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 thirteen publicly offered programs, as of
_______________, 1998, was approximately $___________ of which $___________ (or
approximately ____%) had not yet been expended on the development of certain of
the projects which are still under construction. Of the aggregate amount,
approximately ___% was or will be spent on acquiring or developing office
buildings, and approximately ___% was or will be spent on acquiring or
developing shopping centers. Of the aggregate amount, approximately ___% was or
will be spent on new properties, ___% on existing or used properties and ___% on
construction properties. Following is a table showing a breakdown of the
aggregate amount of the acquisition and development costs of the properties
purchased by these thirteen publicly offered programs as of ________________,
1998:
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Type of Property New Used Construction
- ------------------------ ------ ------ ------------
Office Buildings ___% ___% ___%
Shopping Centers ___% ___% ___%
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:
. a medical office building in Atlanta, Georgia;
. two commercial office buildings in Atlanta, Georgia;
. a shopping center in DeKalb County, Georgia;
. a shopping center in Knoxville, Tennessee;
. a shopping center in Cherokee County, Georgia; and
. 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 the partnership is under no
obligation to sell the properties at any particular 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:
. a shopping center in Cherokee County, Georgia;
. a project consisting of seven office buildings and a shopping center
in Tucker, Georgia;
. a two story office building in Charlotte, North Carolina;
. a four story office building in Houston, Texas;
. a restaurant property in Roswell, Georgia; and
. 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
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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:
. a four story office building in Houston, Texas;
. a restaurant property in Roswell, Georgia;
. a combined retail and office development in Roswell, Georgia;
. a two story office building in Greenville, North Carolina;
. a shopping center in Stockbridge, Georgia; and
. 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:
. a shopping center in Stockbridge, Georgia;
. a four story office building in Jacksonville, Florida;
. a two story office building in Richmond, Virginia; and
. two two story office buildings in Stockbridge, Georgia.
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,
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 December 31, 1998,
$___________ of units of Wells Fund V were treated as Class A Units, and
$___________ of units were treated as Class B Units. Wells Fund V owns
interests in the following properties:
. a four story office building in Jacksonville, Florida;
. two two story office buildings in Stockbridge, Georgia;
. a four story office building in Hartford, Connecticut;
. two restaurant properties in Stockbridge, Georgia; and
. 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
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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), recognized net income
of $689,639 in 1995, recognized net income of $505,650 in 1996 and recognized
net income of $559,801 in 1997.
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 December 31, 1998, $____________ of units of Wells Fund VI were
treated as Class A Units, and $___________ of units were treated as Class B
Units. Wells Fund VI owns interests in the following properties:
. a four story office building in Hartford, Connecticut;
. two restaurant properties in Stockbridge, Georgia;
. a restaurant and retail building in Stockbridge, Georgia;
. a shopping center in Stockbridge, Georgia;
. a three story office building in Appleton, Wisconsin;
. a shopping center in Cherokee County, Georgia;
. a combined retail and office development in Roswell, Georgia;
. a four story office building in Jacksonville, Florida; and
. a shopping center in Clemmons, North Carolina.
Wells Fund VI recognized net income of $31,428 in 1993 (at which time it
only owned an interest in the Hartford, Connecticut property), recognized net
income of $700,896 in 1994 (at which time it owned only interests in (1) the
four story office building in Hartford, Connecticut; (2) the retail building and
an undeveloped tract of land in Stockbridge, Georgia; and (3) the three story
office building in Appleton, Wisconsin), recognized net income of $901,828 in
1995 (at which time each of the following properties was under construction: (1)
one of the retail buildings in Stockbridge, Georgia, (2) the combined retail and
office development in Roswell, Georgia, (3) the office building in Jacksonville,
Florida, and (4) the shopping center in Clemmons, North Carolina), recognized
net income of $589,053 in 1996 and recognized net income of $795,654 in 1997.
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 December 31, 1998, $____________ of units in
Wells Fund VII were treated as Class A Units, and $____________ of units were
treated as Class B Units. Wells Fund VII owns interests in the following
properties:
. a three story office building in Appleton, Wisconsin;
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. a restaurant and retail building in Stockbridge, Georgia;
. a shopping center in Stockbridge, Georgia;
. a shopping center in Cherokee County, Georgia;
. a combined retail and office development in Roswell, Georgia;
. a two story office building in Alachua County, Florida near Gainesville;
. a four story office building in Jacksonville, Florida;
. a shopping center in Clemmons, North Carolina; and
. 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), recognized net income
of $804,043 in 1995 (at which time it only owned interests in the office
building in Appleton, Wisconsin, the developments in 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), recognized net income of $452,776 in 1996 and recognized net
income of $733,149 in 1997.
WELLS FUND VIII terminated its offering on January 4, 1996, and received
gross proceeds of $32,042,689 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 and certain repurchases made by Wells Fund VIII, as of December 31,
1998, $________________ of units in Wells Fund VIII were treated as Class A
Status Units, and $_______________ of units were treated as Class B Status
Units. Wells Fund VIII owns interests in the following properties:
. a two story office building in Alachua County, Florida near Gainesville;
. a four story office building in Jacksonville, Florida;
. a shopping center in Clemmons, North Carolina;
. a retail development in Clayton County, Georgia;
. a four story office building in Madison, Wisconsin;
. a one story office building in Farmers Branch, Texas;
. a two story office building in Orange County, California; and
. a two story office building in Boulder County, Colorado.
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
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of land in Clemmons, North Carolina, which was under construction) and
recognized net income of $936,590 in 1996 and recognized net income of
$1,102,567 in 1997.
WELLS FUND IX terminated its offering on December 30, 1996, and received
gross proceeds of $35,000,000 representing subscriptions from 2,098 limited
partners. $29,359,310 of the gross proceeds were attributable to sales of Class
A Status Units, and $5,640,690 were attributable to sales of Class B Status
Units. After taking into effect conversion elections made by limited partners
subsequent to their subscriptions for units, as of December 31, 1998,
$______________ of units in Wells Fund IX were treated as Class A Status Units,
and $_______________ of units were treated as Class B Status Units. Wells Fund
IX owns interests in the following properties:
. a one story office building in Farmers Branch, Texas;
. a four story office building in Madison, Wisconsin;
. a two story office building in Orange County, California;
. two two story office buildings in Boulder County, Colorado;
. a three story office building in Knox County, Tennessee in the Knoxville
metropolitan area;
. a one story warehouse and office building in Weber County, Utah;
. a three story office building in Boulder County, Colorado; and
. a one story office building in Oklahoma City, Oklahoma.
Wells Fund IX recognized net income of $298,756 in 1996 and recognized net
income of $1,091,766 in 1997.
WELLS FUND X terminated its offering on December 30, 1997, and received
gross proceeds of $27,128,912 representing subscriptions from 1,806 limited
partners. $21,160,992 of the gross proceeds were contributable to sales of
Class A Status Units, and $5,967,920 were attributable to sales of Class B
Status Units. After taking into effect conversion elections made by limited
partners subsequent to their subscriptions for units as of December 31, 1998,
$__________________ of units in Wells Fund X were treated as Class A Status
Units and $____________ of units were treated as Class B Status Units. Wells
Fund X owns interests in the following properties:
. a three story office building in Knox County, Tennessee in the Knoxville
metropolitan area;
. a two story office building in Boulder County, Colorado;
. a one story office and warehouse building in Weber County, Utah;
. a three story office building in Boulder County, Colorado;
. a one story office building in Oklahoma City, Oklahoma;
. a one story office and warehouse building in Orange County, California;
and
. a two story office and manufacturing building in Alameda County,
California.
Wells Fund X recognized net income of $278,025 in 1997.
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WELLS FUND XI began its offering on December 31, 1997, and terminated its
offering on December 30, 1998. Wells Fund XI received gross proceeds of
$__________________ representing subscriptions from ___________ limited
partners. $______________ of the gross proceeds were attributable to sales of
Class A Status Units and $________ were attributable to sales of Class B Status
Units. Wells Fund XI owns interests in the following properties:
. a three story office building in Knox County, Tennessee in the Knoxville
metropolitan area;
. a one story office building located in Oklahoma City, Oklahoma;
. a two story office building in Boulder County, Colorado;
. a three story office building in Boulder County, Colorado;
. a one story warehouse and office building in Weber County, Utah;
. a one story office and warehouse building in Orange County, California;
and
. a two story office and manufacturing building in Alameda County,
California.
THE WELLS REIT began its offering on January 30, 1998. As of December 31,
1998, the Wells REIT had received gross proceeds of $___________ representing
subscriptions from _________ stockholders. The Wells REIT owns interests in the
following properties:
. a three story office building in Knox County, Tennessee in the Knoxville
metropolitan area;
. a one story office building located in Oklahoma City, Oklahoma;
. a two story office building in Boulder County, Colorado;
. a three story office building in Boulder County, Colorado;
. a one story warehouse and office building in Weber County, Utah;
. a one story office and warehouse building in Orange County, California;
and
. a two story office and manufacturing building in Alameda County,
California.
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 twelve 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., are also the general partners of Wells Fund IV, Wells Fund V,
Wells Fund VI, Wells Fund VII, Wells Fund VIII, Wells Fund IX, Wells Fund X and
Wells Fund XI. Wells Capital, Inc., the general partner of Wells Partners,
L.P., and Leo F. Wells, III are the general partners of Wells Fund I, Wells Fund
II, Wells Fund II-OW and Wells Fund III. Wells Capital, Inc. is also the
advisor to the Wells REIT.
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
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materials and any reports prepared in connection with any of the twelve publicly
offered partnerships or the Wells REIT 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.
MANAGEMENT
THE GENERAL PARTNERS
The General Partners of the Partnership are: Wells Partners, L.P. and Mr.
Leo F. Wells, III, individually.
WELLS PARTNERS, L.P. ("Wells Partners") is a Georgia limited partnership
having 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 President
and sole Director of Wells Capital as well as the sole shareholder, sole
Director and the President of Wells Real Estate Funds, Inc., which is the sole
shareholder of each of Wells Capital, Wells Management Company, Inc. ("Wells
Management") and Wells Investment Securities, Inc. ("Wells Investment"). (See
"CONFLICTS OF INTEREST.")
As of September 30, 1998, the net worth of Wells Partners was approximately
$667,000 on an estimated fair market value basis and 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
Kim R. Comer National Vice President of Marketing
Edna B. King Vice President of Investor Services
Linda L. Carson Vice President of Accounting
LEO F. WELLS, III (age 53) is the President and sole Director of both Wells
Capital and Wells Real Estate Funds, Inc. 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, a property management
company he founded in 1983; Wells Investment, a registered securities broker-
dealer he formed in 1984; Wells Advisors, Inc. ("Wells Advisors"), a company he
organized in 1991 to act as a non-bank custodian for IRAs; Wells Development
Corporation ("Wells Development"), a company he organized in 1997 to temporarily
own, operate, manage, and/or develop real properties; and the President and a
Director of the Wells REIT. Mr. Wells was a real estate salesman and property
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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 27 years of experience in real estate sales, management
and brokerage services. He is currently a co-general partner in a total of 25
real estate limited partnerships formed for the purpose of acquiring, developing
and operating office buildings and other commercial properties. As of September
30, 1998, these 25 real estate limited partnerships represented investments
totaling $280,854,001 from approximately 26,000 investors. (See "PRIOR
PERFORMANCE SUMMARY.")
As of September 30, 1998, Mr. Wells' net worth (exclusive of home,
automobiles and home furnishings) was in excess of $2,000,000 on an estimated
fair market value basis. Mr. Wells' net worth consists principally of
investments in partnerships, real estate, interests in retirement plans, notes
receivable and his stock in Wells Real Estate Funds, Inc. 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, 1998, on
an estimated fair market value basis, was approximately $2,667,000. However,
the General Partners' net worth consists primarily of interests in other
partnerships, 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 40) is the Executive Vice President of Wells Capital,
Wells Real Estate Funds, Inc. and Wells Development; is a Vice President of
Wells Investment; and is Executive Vice President and a Director of the Wells
REIT. 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.
KIM R. COMER (age 45) rejoined Wells Capital as National Vice President of
Marketing in April 1997, after previously working for Wells Capital in similar
capacities from January 1992 through September 1995. Mr. Comer is responsible
for all investor, financial advisor and broker-dealer communications and
relations. In prior positions with Wells Capital, Mr. Comer served as Vice
President of Marketing for the southeast and northeast regions. He has ten
years of experience in the securities industry and is a licensed registered
representative and financial principal with the NASD. Additionally, he has
previous experience as controller and Chief Financial Officer of two regional
broker-dealers. In 1976, Mr. Comer graduated with honors from Georgia State
University with a BBA degree in accounting.
EDNA B. KING (age 62) is the Vice President of Investor Services for Wells
Capital. She is responsible for processing new investments, sales reporting and
investor 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.
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LINDA L. CARSON (age 55) is Vice President of Accounting for Wells Capital.
As such, she is responsible for partnership, property and corporate accounting,
SEC reporting and coordination of audits with the independent auditors. Ms.
Carson joined Wells Capital in 1989 as Staff Accountant, became Controller in
1991, and assumed her current position in 1996. Prior to joining Wells
Capital, Ms. Carson was an accountant with an electrical distributor. She is a
graduate of City College of New York and has completed additional accounting
courses at Kennesaw State. She is a member of the National Society of
Accountants.
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, which is a wholly owned subsidiary of Wells Real
Estate Funds, Inc. Wells Management 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 or their affiliates
operate or in which the General Partners or their affiliates own an interest.
As of December 31, 1998, Wells Management was managing in excess of 1,900,000
square feet of office buildings and shopping centers. Its compensation for
management of commercial properties will be 4.5% of gross revenues. A special
one-time initial rent-up or leasing fee may be paid on the first leases for
newly constructed properties. This fee must be competitive for the geographic
area of the property, and the amount of this fee received by Wells Management
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 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 derives all of its income from its property management and
leasing operations. For the fiscal year ended December 31, 1997, Wells
Management reported $1,182,558 in gross operating revenues and $270,180 in net
income, and for the nine month period ended September 30, 1998, Wells Management
reported $1,208,126 in gross operating revenues and $441,745 in net income.
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Wells Real Estate Funds, Inc. is the sole shareholder of Wells Management,
and Mr. Wells is the President and sole Director of Wells Management. (See
"CONFLICTS OF INTEREST.") The other principal officers of Wells Management are
Michael C. Berndt, Vice President and Chief Financial Officer, 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
employees may be employed on a part-time basis and may also be employed by one
or more of the following:
. the General Partners;
. the property manager;
. other partnerships organized by the General Partners and their
affiliates; and
. 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 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 (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 is located at 3885 Holcomb Bridge
Road, Norcross, Georgia 30092.
DEALER MANAGER. Wells Investment (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.")
Wells Real Estate Funds, Inc. is the sole shareholder of Wells Investment,
and Mr. Wells is the sole Director and President. (See "CONFLICTS OF
INTEREST.") Brian M. Conlon serves as Vice President of Wells Investment.
IRA CUSTODIAN. Wells Advisors was organized in 1991 for the purpose of
acting as a non-bank custodian for IRAs investing in the securities of real
estate programs sponsored by the General Partners and their affiliates. Wells
Advisors charges no fees for such services. Wells Advisors 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 acts as an IRA custodian,
the authority of Wells Advisors 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 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.
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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:
. to maximize net cash from operations;
. to preserve, protect and return the capital contributions of the
partners; and
. 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 investors holding a
majority of the units.
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. (See
"Terms of Leases and Lessee Creditworthiness.") 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.
The Partnership will seek to invest in properties that will satisfy the
primary objective of providing distributions of current cash flow to investors.
However, because 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 have both the
potential for capital appreciation and 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.
The General Partners anticipate that approximately 84% 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.")
The Partnership will not acquire unimproved or non-income producing
property 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.
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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.
The Partnership shall acquire such interest 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" 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. (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.
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 investors 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 to such liens and encumbrances
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); and
. title and liability insurance policies.
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.
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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
offering proceeds available for investment 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.
ACQUISITION OF PROPERTIES FROM WELLS DEVELOPMENT CORPORATION
The Partnership may acquire properties, directly or through joint ventures
with affiliated entities, from Wells Development Corporation ("Wells
Development"), a Georgia corporation formed by Wells Management Company, Inc.
("Wells Management") as a wholly owned subsidiary for the purposes of (1)
acquiring existing income-producing commercial real properties, and (2)
acquiring land, developing commercial real properties, securing tenants for such
properties, and selling such properties upon completion to the Partnership or
public real estate programs previously sponsored by the General Partners and
other affiliates of the General Partners. In the case of properties to be
developed by Wells Development and sold to the Partnership, it is anticipated
that Wells Development will:
. acquire a parcel of land;
. enter into contracts for the construction and development of a
commercial building thereon;
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. enter into an agreement with one or more tenants to lease all or a
majority of the property upon its completion; and
. secure a financing commitment from a commercial bank or other
institutional lender to finance the acquisition and development of the
property.
Contracts between Wells Development and the Partnership will provide for the
Partnership to acquire the developed property only upon its completion and upon
the tenant taking possession under its lease. All construction required to
develop a parcel of land acquired by Wells Development will be performed by one
or more companies which are independent of Wells Development, the General
Partners and their affiliates.
The Partnership will 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 will apply to the cost of acquiring the land and initial development
costs. It is anticipated that the earnest money deposit will 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 will
not exceed the cost to Wells Development of the acquisition, construction and
development of the project, including interest and other carrying costs to Wells
Development. All profits and losses during the period any such property is held
by Wells Development will accrue to the Partnership, 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 will 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
purchase contract will 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 will 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.
It is anticipated that Wells Development will 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. Wells Development will 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,
leases and all other contract rights relating to the project as security for
such borrowing. The contract between the Partnership and Wells Development will
require Wells Development to deliver at closing to the Partnership title to the
property, as well as an assignment of leases, free and clear of all encumbrances
relating to any such borrowing. 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 will hold the title to
the property on a temporary basis only for the purpose of facilitating the
acquisition and development of the property prior to its resale to the
Partnership and other affiliates of the General Partners. Wells Development
will not hold title to any such property for more than twelve months prior to
reselling to the Partnership.
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. The Partnership anticipates that it
will be able to raise sufficient additional proceeds from its offering during
the period between any such 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.
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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 will be
obligated to purchase the property only if (1) 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 (2) 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 funds will be available to purchase the property at the time of closing.
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 will not be required to close the purchase of the property and will
be entitled to a refund of its earnest money deposit from Wells Development.
Because Wells Development is an entity without substantial assets or operations,
however, Wells Development's obligation to refund the Partnership's earnest
money deposit will be guaranteed by Wells Management. See the "MANAGEMENT"
section of this Prospectus for a description of Wells Management.
If Wells Management is required to make good on its guaranty, 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 )
Risks Relating to Acquisition of Properties from Wells Development Corporation."
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. A "triple net" lease provides 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, in addition to
making its 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
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:
. 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
. in order to finance improvement of 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.
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The Partnership cannot borrow funds for any other purposes. Further, 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 also represented that they will not cause the Partnership to incur
indebtedness unless the Partnership first obtains an opinion of counsel or an
opinion from its tax accountants that the indebtedness to be obtained more
likely than not will not cause the income of the Partnership to be characterized
by the IRS as "unrelated business taxable income" (as defined in the Code).
Investors should be aware, however, that any such opinion would be based upon
various representations and assumptions, and would have no binding effect on the
IRS or any court. Accordingly, no assurance can be given that the conclusions
reached in any such opinion, 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 "unrelated business taxable income." (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 investors. 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:
. 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;
. 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
. 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 Partnership may enter into joint ventures with public real
estate programs previously sponsored by the General Partners or future real
estate programs or other publicly registered entities sponsored by the General
Partners or their affiliates. 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
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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 public real
estate program previously sponsored by the General Partners 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 public real estate program previously sponsored by
the General Partners, 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
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 Partnership may enter into a partnership, joint venture or co-tenancy
with unrelated parties if:
. the management of such partnership, joint venture or co-tenancy is under
the control of the Partnership in that the Partnership or an affiliate
of the Partnership possesses the power to direct or to cause the
direction of the management and policies of any such partnership, joint
venture or co-tenancy;
. 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;
. 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
. 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 real estate programs for the acquisition of properties,
but may only do so provided that:
. each such co-venturer has substantially identical investment objectives
as those of the Partnership;
. the Partnership, as a result of such joint ownership of a property, is
not charged, directly or indirectly, more than once for the same
services;
. the compensation payable to the General Partners and their affiliates is
substantially identical in each program;
. 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
. the investment by the Partnership and such affiliate are on
substantially the same terms and conditions.
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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 investors. 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 investors 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.")
Cash flow will not be reinvested in newly acquired Partnership properties.
However, in the discretion of the General Partners, cash flow 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:
. used to purchase land underlying any of the Partnership's properties;
. used to buy out the interest of any co-venturer or joint venture partner
in a property which is jointly owned;
. held as working capital reserves; or
. used to make capital improvements to existing Partnership properties.
Notwithstanding the above, reinvestment of proceeds from the sale of properties
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 30% 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 sale 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.
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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.
The Partnership will not engage in any of the following activities:
. issue any units after the termination of the offering or issue units in
exchange for property;
. make investments in real estate mortgages (except in connection with the
sale or other disposition of a property);
. make loans to the General Partners or their affiliates; or
. 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, 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:
(1) government securities; or
(2) 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.
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.
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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
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 investors. (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
GENERAL
As of the date of this Prospectus, the Partnership had not yet begun active
operations. The Partnership will not begin 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 $1,050,000 after payment of acquisition and advisory fees and
acquisition expenses. (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.
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YEAR 2000 ISSUES
The Partnership and the General Partners are presently reviewing the
potential impact of Year 2000 compliance issues on its information systems and
business operations. A full assessment of Year 2000 compliance issues was begun
in late 1997 and is expected to be completed by December 31, 1998, but not later
than March 31, 1999. Once the assessment is completed, renovations and
replacements of equipment will be made as warranted, and contingency plans will
be developed to cover any areas of concern. Some testing of systems has begun
and all testing is expected to be complete by June 30, 1999. The General
Partners are in the process of confirming with its vendors (including third-
party service providers such as banks) that their systems will be Year 2000
compliant.
The Partnership and the General Partners rely on computers and operating
systems provided by equipment manufacturers, and also on application software
designed for use with its accounting, property management and investment
portfolio tracking. The Partnership and the General Partners have preliminarily
determined that any costs, problems or uncertainties associated with the
potential consequences of Year 2000 issues are not expected to have a material
impact on the future operations or financial condition of the Partnership.
The Partnership's reliance on embedded computer systems (i.e.
microcontrollers) is limited to facilities related matters, such as building
security systems, elevator systems and environmental control systems. The
General Partners will perform due diligence as to the Year 2000 readiness of
each property contemplated for purchase by the Partnership.
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 under the Code, 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 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:
. whether the investment is in accordance with the documents and
instruments governing such qualified plan;
. whether the investment satisfies the prudence and diversification
requirements of Sections 404(a)(1)(B) and 404(a)(1)(C) of ERISA;
. whether the investment will result in "unrelated business taxable
income" 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");
. whether there is sufficient liquidity for the qualified plan after
taking this investment into account;
. the need to value the assets of the qualified plan annually; and
. 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
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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. 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.") The
fair market value of any such distribution in kind will be only an estimated
value per unit and there can be no assurance that such estimated value could
actually be realized by a limited partner because (1) estimates do not
necessarily indicate the price at which units could be sold and (2) no public
market for units exists or is likely to develop. (See "Annual Valuation"
below.)
PLAN ASSETS - GENERALLY
ERISA provides a comprehensive statutory scheme regarding the investment in
and management of a retirement plan's assets. As noted above, any person who
exercises any authority or control over the management or disposition of a
plan's assets is considered to be a fiduciary of such plan. In order to avoid
such characterization, 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, however, certain contemplated transactions between the Partnership
and the General Partners could be deemed to be "prohibited transactions."
Additionally, if the assets of the Partnership were 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 - DEFINITION
The definition of Plan Assets is not set forth in ERISA or the Code, but
was addressed initially by the Department of Labor in 1975 by the adoption of
Interpretive Bulletin 75-2. This interpretation 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:
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.
In 1986, the Department of Labor issued regulations (the "Plan Asset
Regulations") relating to the definition of Plan Assets. While the Plan Asset
Regulations adopted the general statement set forth in the Interpretive
Bulletin, they also provided that the assets of entities in which retirement
plans make equity investments will be treated as Plan Assets unless such
investments are (1) in publicly offered securities, (2) in securities offered by
an investment company registered under the Investment Company Act of 1940, or
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(3) within one of the other 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 an investment in the Partnership
include that it may be an investment:
. in which equity participation by "benefit plan investors" is not
significant; or
. in "publicly offered securities" (generally interests which are freely
transferable, widely-held and registered with the Securities and
Exchange Commission); or
. in a "real estate operating company."
The Plan Asset Regulations provide that equity participation in an entity by
benefit plan investors is "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 for this purpose 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 for investments in which equity participation by benefit plan
investors is not significant.
PLAN ASSET REGULATIONS - AVAILABLE EXEMPTIONS
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.
Under the Plan Asset Regulations, a class of securities will be "widely-
held" if it is held by 100 or more persons. Even if the units are deemed to be
widely-held, the "freely transferable" requirement must also be satisfied in
order for the Partnership to qualify for this exemption. In this regard, the
Plan Asset Regulations provide several examples of restrictions on
transferability (with respect to offerings, such as this offering, 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 set forth in the Plan Asset Regulations 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
restrictions on the transferability of units have been incorporated into the
Partnership Agreement which are intended to prevent such reclassification of the
Partnership (the "Section 7704 Restrictions"). 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 freely transferable
requirement, and thus 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 freely transferable requirement, and thus the
publicly offered securities exemption, contained in the Plan Asset Regulations
because the Section 7704 Restrictions are intended only to prohibit transfers
which would result in a reclassification of the entity for federal tax
purposes. Because of the factual nature of such a determination and the lack of
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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 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 the management and development
of real estate. An example in the Plan Asset Regulations indicates, however,
that, although some management and development activities may be performed by
independent contractors rather than by the entity itself, if over one-half of an
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, then the entity may not be
eligible for the real estate operating company exemption. There can be no
assurance, however, that the Partnership will be able to so structure its
operations, and due to the uncertainty of the application of the standards set
forth in the examples in the Plan Asset Regulations, there accordingly 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, issues relating to the
"prohibited transaction" concepts of ERISA and the Code arise by virtue of (1)
the General Partners' ownership of interests in the Partnership, and (2) the
possible recharacterization of the 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 involving Plan Assets with specified parties. The
specified 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 both parties owning threshold
percentage interests in the investment entity and "persons providing services to
the plan," and certain of their affiliates. Thus, 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 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 the
investment in units by retirement plans could be a prohibited transaction. The
General Partners do not believe such thresholds have been exceeded with respect
to their interest in the Partnership or that the Partnership should be deemed to
be a party in interest or a disqualified person for this reason or otherwise.
If a General Partner were to be characterized as a fiduciary with respect
to investing retirement plans, 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 making 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
15% 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
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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, the General Partners are required to furnish an
annual statement of estimated unit value to the investors. 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. Thereafter,
the 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 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 valuations of
Partnership properties performed by the General Partners, but no independent
appraisals will be obtained. While the General Partners are required under the
Partnership Agreement to obtain the opinion of an independent third party
stating that their estimates of value are reasonable, such General Partner
valuations may not satisfy the requirements imposed upon fiduciaries under ERISA
for all retirement plans.
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:
. 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); or
. limited partners could realize estimated net asset value if they were to
attempt to sell their units, because no public market for units exists
or is likely to develop.
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 and other administrative actions of the IRS and existing judicial
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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 investors 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 investors 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.
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 LLP ("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 are based upon the accuracy of the facts
described in this Prospectus and facts represented to Counsel by the General
Partners. The opinions of Counsel assume further 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 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
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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:
. The Partnership will be classified as a partnership for federal income
tax purposes and not as an association taxable as a corporation;
. 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;
. A limited partner's interest in the Partnership will be treated as a
passive activity;
. 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;
. The activities contemplated by the Partnership will be considered
activities entered into for profit by the Partnership; and
. 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.
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 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. These aspects include:
. the issue of 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;
. 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
. the issue of 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 of the Code. (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
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.
These issues include, but are not limited to, the potential imposition of the
alternative minimum tax, investment interest deductibility limitations and the
application of Section 183 of the Code, limiting deductions attributable to
activities not entered into for profit, at the partner level. Accordingly,
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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 will have any binding effect or official status of
any kind, and no assurance can be given that the conclusions reached in the Tax
Opinion will be sustained by a court if such conclusions are contested by the
IRS. Accordingly, the Tax Opinion should not be viewed as a guarantee that the
income tax effects described in this Prospectus will be achieved, nor should it
be viewed as a guarantee that a court would hold that there is "substantial
authority" for the positions taken by the Partnership with respect to any income
tax issue.
PARTNERSHIP STATUS GENERALLY
The ability to obtain the income tax attributes anticipated from an
investment in units 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 for income tax purposes.
Regulations regarding entity classification have been issued which, in
effect, operate to allow a business entity that is not otherwise required to be
classified as a corporation (an "eligible entity") to elect its classification
for federal income tax purposes. An "eligible entity" that has at least two
members will be treated as a partnership in the absence of an election.
Accordingly, unless the Partnership is deemed to be taxable as a corporation
pursuant to the application of the publicly traded partnership rules discussed
below, the Partnership will qualify as an "eligible entity" and need not make
any election to be treated as a partnership for federal income tax purposes.
Based upon the 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
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. 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.
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.
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PUBLICLY TRADED PARTNERSHIPS
Classification of the Partnership as a "publicly traded partnership" could
result in (1) the Partnership being taxable as a corporation (see "Partnership
Status Generally" above), and (2) 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 addition, Regulations have been issued (the
"Section 7704 Regulations") which provide guidance with respect to such
classification standards, including certain safe harbor standards which, if
satisfied, preclude classification as a publicly traded partnership.
The Section 7704 Regulations contain definitions of what constitutes an
established securities market and a secondary market or the substantial
equivalent thereof. They also set forth what transfers may be disregarded in
determining whether such definitions are satisfied with respect to the
activities of a partnership. 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 also 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.
As noted above, the Section 7704 Regulations also 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. A second safe harbor from classification
as a publicly traded partnership, dealing with redemption and repurchase
agreements, is also provided in the Section 7704 Regulations. The Section 7704
Regulations also make it clear 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 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 they have also represented 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 other guidelines adopted
by the IRS in the future.
Based upon the representations of the General Partners, and assuming 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 the
Partnership will not be classified as a publicly traded partnership under
Section 7704 of the Code. Due to the complex nature of the safe harbor
provisions contained in the Section 7704 Regulations, however, 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,
however, Section 7704(c) of the Code provides an exception to taxation of such
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
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real property, but 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.)
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. Each partner will, instead, 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 are not liable for income taxes imposed by the Code. However,
Regulations setting forth "anti-abuse" rules are applicable to partnerships,
which rules authorize the Commissioner of the IRS 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. 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 Commissioner to exercise his
authority under these rules.
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, however, they 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. Cash distributions which are made to a limited partner,
if any, will also decrease the basis in his units and will generally constitute
a return of capital to the extent of such basis. In the event that a limited
partner has no remaining basis in his units, however, cash distributions 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
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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. Accordingly, income and loss of the Partnership, other than
interest or other similar income earned on temporary investments and working
capital reserves (which income will constitute portfolio income), will
constitute passive activity income and passive activity loss, as the case may
be, to limited partners.
Losses from passive activities are generally 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:
. first, income or gain from that activity including gain recognized on
such disposition;
. then, income or gain for the taxable year from other passive
activities; and
. finally, non-passive income or gain.
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 only 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." The terms "net income" and
"net loss" are defined in the Partnership Agreement to mean the net income or
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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.
Generally, the Code provides that partnership items of income, gain, loss,
deduction and credit are to be 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, 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 General Partners do not intend to request a ruling from the IRS with
respect to whether the allocations of profits and losses in the Partnership
Agreement will be recognized for federal income tax purposes. 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 issued under Section 704(b) of the Code (the "Section 704(b)
Regulations") provide complex rules for determining (1) whether allocations will
be deemed to have economic effect, (2) whether the economic effect of
allocations will be deemed to be substantial, and (3) whether allocations not
having substantial economic effect will nonetheless be deemed to be made in
accordance with a partner's interest in the partnership.
The Section 704(b) Regulations provide generally that an allocation will be
considered to have economic effect if:
. partners' capital accounts are determined and maintained in accordance
with the Section 704(b) Regulations;
. 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
. 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 (1) provides for the determination and
maintenance of capital accounts pursuant to the Section 704(b) Regulations, (2)
provides that liquidation proceeds are to be distributed in accordance with
capital accounts, and (3) contains a qualified income offset provision. (See
"DISTRIBUTIONS AND ALLOCATIONS.") It should be noted in this regard that 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.
In addition to the provisions described above, the Partnership Agreement
also 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, as required under the Section 704(b) Regulations, the
Partnership Agreement further 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 proceeds from the sale of
properties in an amount equal to the excess of the original purchase price of
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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.
The Partnership Agreement also provides for a special 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 such units. Accordingly, a limited partner who acquires
units from a prior owner should note that this special allocation of gain on
sale attributable to deductions for depreciation, amortization and cost recovery
previously allocated to the prior limited partner could have the effect of
allocating substantial income to him upon a sale or other disposition of a
Partnership property, 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.
Conversely, 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:
. the partnership agreement provides for the possibility that the
allocation will be largely offset by one or more other allocations;
. 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
. 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 rule, 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 "not substantial," 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:
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. the partners' relative contributions to the partnership;
. the interests of the partners in economic profits and losses (if
different from those in taxable income or loss);
. the interests of the partners in cash flow and other nonliquidating
distributions; and
. the rights of the partners to distributions of capital upon
liquidation.
Since the Partnership Agreement (1) provides for the determination and
maintenance of capital accounts in accordance with the Section 704(b)
Regulations, (2) provides that liquidation proceeds will be distributed to the
partners in accordance with capital accounts, (3) contains a qualified income
offset provision, and (4) shifts the economic risk of loss to the limited
partners holding Class B Status Units, 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. In reaching this conclusion, Counsel has made the following
assumptions:
. 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
. 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.
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 six 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.
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While the types of Partnership income and gain which should be realized by
investing Exempt Organizations would not generally constitute UBTI, such income
or gain would constitute UBTI if the Partnership were either to be deemed to
hold Partnership properties primarily for sale to customers in the ordinary
course of business (see "Property Held Primarily for Sale" below), or the
Partnership were to own "debt-financed property," i.e., 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:
. indebtedness incurred in acquiring or improving property;
. indebtedness incurred before the acquisition or improvement of
property if such indebtedness would not have been incurred but for
such acquisition or improvement; and
. 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. Thereafter, the Partnership's authority to incur
indebtedness may be exercised only in limited circumstances. Specifically, the
General Partners have the authority to incur indebtedness on behalf of the
Partnership only in the event that 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 or an
opinion from its tax accountants 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 any such opinion would be based upon
various representations and assumptions, and would have no binding effect on the
IRS or any court. Accordingly, no assurance can be given that the conclusions
reached in any such opinion, 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.
Any person who is a fiduciary of a tax-exempt organization considering an
investment in units should also consider the impact of minimum distribution
requirements under the Code. The Code provides generally 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
702. 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.")
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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. Accordingly, 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
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 will be depreciated on a straight-line basis over a recovery period
of 40 years, and personal property acquired by the Partnership will be
depreciated 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. However, amounts which qualify
as organizational expenses, as well as other start-up expenditures, may, if so
elected, be amortized ratably over 60 months. Syndication expenses, which are
neither deductible nor amortizable, include costs and expenses incurred in
connection with promoting and marketing the units such as sales commissions,
professional fees and printing costs. There are no assurances that the IRS will
not attempt to recharacterize as nondeductible syndication expenses certain
costs and expenses which the General Partners intend to cause the Partnership to
amortize over 60 months. The Partnership will also deduct certain other fees
and expenses incurred during the Partnership's operations, including fees
payable to affiliates, to the extent such fees and expenses are ordinary and
necessary and reasonable in amount.
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 limits deductions attributable to activities "not
engaged in for profit." The term "not engaged in for profit" describes 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.
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Based upon the investment objectives of the Partnership and the
representations 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 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 limit 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.
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
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 investors 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
directly applicable 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.
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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
An investor 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 investor will realize gain or loss equal to the difference between
the gross sale price or proceeds received from sale and the investor's adjusted
tax basis in his units. Assuming the investor is not a "dealer" with respect to
such units and has held the units for more than 12 months, his gain or loss will
be long-term capital gain or loss, except for that portion of any gain
attributable to such investor's share of the Partnership's "unrealized
receivables" and "inventory items," 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 an
investor receives cash in excess of the basis of his units, such excess will be
taxable as a gain. If an investor 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 an investor were to receive property other than money,
unrealized receivables and "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 an investor 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%. Capital gains, however, are taxed at a maximum marginal
rate of 20% i.e., for gains realized with respect to capital assets held for
----
more than 12 months. The Code also provides, however, that the portion of long-
term capital gain arising from the sale or exchange of depreciable real property
which constitutes depreciation recapture will be taxed at a maximum marginal
rate of 25%, rather than 20%. Capital losses may generally be used to offset
capital gains or may, in the absence of capital gains, 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).
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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 investors 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
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 investor
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 (1) 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 (2) 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 by the Code to be,
inter alia, a partnership or other entity that has as "a significant 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. 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 and other factual determinations which are not
known at this time, and because of the lack of administrative and judicial
guidance as to what constitutes a "significant purpose," the interpretation of
which term is currently uncertain, 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
attributable to (1) any substantial valuation misstatement (generally where the
value or adjusted basis of a property claimed on a return is 200% or more of the
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correct value or adjusted basis), or (2) 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 issued 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
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 issued 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 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 undertaken an intensified audit program with respect to
partnerships and partnership returns. While an audit of the Partnership 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 investors 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.
It should also be noted that in the event the General Partners cause the
Partnership to elect to be treated as an "Electing Large Partnership" under the
Code, which election would enable the Partnership to take advantage of
simplified flow-through reporting of partnership items, any adjustments to the
tax returns of the Partnership would be accounted for in the year such
adjustments take effect, rather than the tax year to which such adjustments
relate. Further, the General Partners will have the discretion in such
circumstances either to pass along adjustments to the partners, or to cause such
adjustments to be borne at the Partnership level, which could reduce the cash
otherwise available for distribution to limited partners. Any penalties and
interest could also be borne at the Partnership level. To the extent that
elections to change the status of units are made between the years in which a
tax benefit is claimed and an adjustment is made, holders of a particular class
of units may suffer a disproportionate adverse impact with respect to any such
adjustment. Potential investors are urged to consult their own tax advisors
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with regard to the effect of simplified pass-through reporting and the changes
to Partnership audit procedures enacted recently.
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 proceeds from the sale of
properties 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.
TAX LEGISLATION AND REGULATORY PROPOSALS
Significant tax legislation was enacted in both 1997 and 1998 containing
provisions which altered the federal income tax laws relating to an investment
in partnerships such as the Partnership. In addition, legislative proposals
continue to be made which could also 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. Further, the interpretation of changes made by the 1997 and 1998
legislation is uncertain at this time. 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:
. whether the state in which he resides will impose a tax upon his share
of the taxable income of the Partnership;
. whether an income tax or other return must also be filed in those
states where the Partnership will own properties; and
. 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.
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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. For example, 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 Georgia withholding requirements
will 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 States
of California, Colorado and North Carolina have required certain of the public
real estate programs previously sponsored by the General Partners to withhold
and pay state taxes relating to income-producing properties located in those
states. 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.
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 the Partnership will be executed and become effective
as of the effective date of this Prospectus. Prospective investors should study
the Partnership Agreement carefully 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.
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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: (1) 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 (2) to take any further action
which the General Partners deem necessary or advisable in connection with the
foregoing.
Units acquired by investors pursuant to the Partnership Agreement will be
fully paid and nonassessable. (Section 8.5(d).) No investor has the right to
withdraw all or any portion of his capital contribution until the full and
complete winding up and liquidation of the business of the Partnership, except
as otherwise provided by law. (Section 8.10(b).) No investor 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:
. the approval or disapproval of any sale, exchange or pledge of all or
substantially all of the Partnership's real properties;
. dissolution of the Partnership;
. removal of a General Partner or any successor general partner;
. 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;
. change in the business purpose or investment objectives of the
Partnership; and
. 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.)
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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." The Partnership Agreement 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 a "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: (1) accepting the
securities offered in the proposed roll-up; or (2) one of the following: (a)
remaining as limited partners in the Partnership and preserving their interests
in the Partnership on the same terms and conditions as existed previously, or
(b) 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).)
SPECIAL PARTNERSHIP PROVISIONS
Leo F. Wells, III, who owns 100% of the issued and outstanding stock of
Wells Real Estate Funds, Inc., which owns all of the issued and outstanding
stock of Wells Capital, Inc., 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 stock of Wells Real Estate
Funds, Inc. 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 an
annual interest rate of 9%. 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
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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).)
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 transfers to family members and transfers by gift, inheritance or divorce,
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, transfer to family
members, divorce, 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.
In addition, investors purchasing Units pursuant to the deferred commission
option will have limited rights to transfer their units for a period of six
years after the termination of the offering since investors 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. (Section 17.3.)
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 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 interests 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
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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,
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: (1)
in the event of unforeseen circumstances in which the Partnership's working
capital reserves and other cash resources available to the Partnership are
insufficient for operating purposes; and (2) 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 (1)
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 (2) 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. Although the repurchase reserve will not be established, if at
all, until at least one year
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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.
If 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. 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, 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. 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). In the
event that insufficient funds are available in the repurchase reserve to
repurchase all of such units, the limited partner requesting such repurchase
will be deemed to have priority for subsequent Partnership repurchases over
other limited partners who request repurchases thereafter. Units repurchased by
the Partnership will be canceled.
In addition to the other restrictions described herein, the Partnership
Agreement provides that:
. 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
. 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 investors
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 investors in Wells Fund III and investors 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, Wells Fund IX, Wells Fund X, Wells Fund XI and the
Wells REIT will
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have the opportunity to have their distributions of net cash from operations
invested in units in the Partnership during the offering period. Units issued by
the Partnership pursuant to the distribution reinvestment plan will be available
only until the termination 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. Investors 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. Investors 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.
Investors 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. Investors electing to
participate in the distribution reinvestment plan will receive with each
confirmation a notice advising such investor 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:
. 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;
. a registration statement covering the interests in the subsequent
limited partnership has been declared effective under the Securities
Act of 1933;
. the offer and sale of such interests is qualified for sale under the
applicable state securities laws;
. the participant executes the subscription agreement included with the
prospectus for the subsequent limited partnership;
. the participant qualifies under applicable investor suitability
standards as contained in the prospectus for the subsequent limited
partnership; and
. the subsequent limited partnership has substantially identical
investment objectives as the Partnership.
Investors who invest in subsequent limited partnerships pursuant to a
distribution reinvestment plan will become, and will be treated as, limited
partners in such subsequent limited partnership in all respects and, as such,
will receive the same applicable reports as other limited partners in the
subsequent limited partnership as required by the then applicable NASAA
Guidelines.
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
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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 7% and dealer management fees not to
exceed 2.5% 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
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 owning 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.)
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DISSOLUTION AND TERMINATION
The Partnership is to continue until December 31, 2030, but may be
dissolved earlier as provided in the Partnership Agreement or by law. (Article
VI.) The Partnership will also be dissolved upon:
. the decision by holders of more than 50% of the units to dissolve and
terminate the Partnership;
. the retirement, withdrawal or renewal of a General Partner unless
within 90 days from the date of such event:
(1) the remaining General Partner, if any, elects to continue the
business of the Partnership; or
(2) if there is no remaining General Partner, a majority in interest
of the limited partners elect to continue the business of the
Partnership;
. the sale or disposition of all interests in real property and other
assets of the Partnership;
. 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
. the happening of any other event causing the dissolution of the
Partnership under the laws of Georgia. (Section 20.1.)
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
and without the consent of any limited partner, if upon the advice of counsel to
the Partnership, either (1) the Partnership's assets constitute "Plan Assets,"
as such term is defined for purposes of ERISA, or (2) any of the transactions
contemplated in the Partnership Agreement constitute "prohibited transactions"
under ERISA. (Section 20.1(h).)
In the event the Partnership is dissolved, the assets of the Partnership
shall be converted to cash. In such event, 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:
. 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
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amount of cash contributed to the Partnership reduced by prior
distributions of net proceeds from any sale of Partnership
properties);
. Then, to the General Partners until they have received an amount equal
to 10% of the total amount thus far distributed; and
. 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 six 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.")
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 holding Class A Status Units as of the last day of the
preceding quarter bears to the total number of Class A Status Units outstanding.
A transferee of units will be deemed the 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:
. 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;
. 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;
. 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% annual cumulative (noncompounded) return
on his net capital contribution;
. 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% annual 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%
annual 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);
. Then, to the General Partners until they have received an amount equal
to their capital contributions;
. 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
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Excess Limited Partner Distributions plus the amount distributed to
the General Partners pursuant to this provision; and
. 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 more than 15% of the amount remaining after limited partners have
received a return of their net capital contributions plus a 6% annual return.
It is the intent of the foregoing limitation that the General Partners receive
no more of the net proceeds from the sale 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 limited partners should be aware that their share of
distributions of proceeds from the sale of properties may be less than their net
capital contributions unless the Partnership's aggregate proceeds from the sale
of properties are sufficient to fund the sum of (1) 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 on a per unit basis, plus (2) the amount
required to repay aggregate net capital contributions to all limited partners.
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.
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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:
. First, 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;
. 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
. 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 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:
. First, 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;
. 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
. 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:
. 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
. 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:
. First, pursuant to the qualified income offset provision described
below;
. Then, to partners having negative capital accounts until all negative
capital accounts have been restored to zero;
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. 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;
. 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;
. 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;
. 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;
. 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;
. 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;
. Then, to the General Partners in an amount equal to their capital
contributions;
. 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
. 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 of more than
15% of the amount remaining after limited partners have received a return of
their net capital contributions plus a 6% annual return. It is the intent of
the foregoing limitation that the General Partners receive no more of the net
proceeds from the sale of Partnership properties than is allowed pursuant to
applicable provisions of the NASAA Guidelines. 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) and, in the event such
allocation or distribution did cause his capital
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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 partners.
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
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. 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).
A limited partner holding Class A Status Units who elects the MDO will
begin receiving his 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 their distributions.
An 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, and he 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.
REPORTS TO INVESTORS
Within 75 days after the end of each fiscal year of the Partnership, the
General Partners will deliver to each investor and any assignee such information
as is necessary for the preparation of his federal income tax return and state
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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 investor 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
investors of the affairs of the Partnership.
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
shall be sent to the investors within 60 days after the end of such quarter.
Whether or not such reports are required to be filed, each investor 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 investor 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) held by 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 investors for
inspection and duplication at reasonable times.
The Partnership will distribute annually to investors 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 investors 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 under the Partnership Agreement to obtain the
opinion of an
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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
A minimum of 125,000 units and a maximum of 3,500,000 units 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 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 it has no firm commitment or obligation to purchase any of the units).
Except as provided below, the Dealer Manager will receive selling
commissions of 7% of the gross offering proceeds. The Dealer Manager will also
receive 2.5% 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. Investors 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 investors 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 7% of the gross offering proceeds to such participating broker-
dealers. In addition, the Dealer Manager, in its sole discretion, may reallow
to broker-dealers participating in the offering a portion of its dealer manager
fee in the aggregate amount of up to 1.5% 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 underwriting 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
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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 "NationsBank, N.A., as
Escrow 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 "SUITABILITY STANDARDS.") Except in
Maine, Minnesota, Nebraska and Washington, investors who have satisfied the
minimum purchase requirement and have purchased units in public real estate
programs previously sponsored by the General Partners 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 made pursuant to the distribution reinvestment
plan.
Subscription proceeds will be placed in an interest-bearing account with
NationsBank, N.A., Atlanta, Georgia (the "Escrow Agent") until such
subscriptions aggregating at least $1,250,000 (exclusive of any subscriptions
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. 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. 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 the Partnership has not been received and
accepted by ________________, 1999, 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
investors in Maine, Missouri, Ohio and Pennsylvania who will not have escrow
expenses deducted). 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.
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 at least $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.
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The offering of units of Wells Real Estate Fund XII, L.P. will begin upon
the effective date of this Prospectus and will terminate upon the earlier of (1)
_________________, 2000, or (2) the date on which all $35,000,000 in units of
Wells Real Estate Fund XII, L.P. have been sold. The offering of units of Wells
Real Estate Fund XIII, L.P. will begin immediately upon the termination of the
offering of units of Wells Real Estate Fund XII, L.P. and will continue until
and terminate upon the earlier of (1) _______________, 2001, or (2) the date on
which all $35,0000,000 in units of Wells Real Estate Fund XIII, L.P. have been
sold; provided that if the offering of units of Wells Real Estate Fund XIII,
L.P. begins before _____________, 2000, the General Partners may elect to
terminate the offering of Wells Real Estate Fund XIII, L.P. after one year since
a number of states may limit the offering period of Wells Real Estate Fund XIII,
L.P. to a maximum of one year.
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 93% of the
public offering price in consideration of the services rendered by such broker-
dealers and registered representatives in the offering. 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>
SALES COMMISSIONS NET
DOLLAR ------------------ PURCHASE PROCEEDS
VOLUME OF UNITS PRICE TO PARTNERSHIP
PURCHASED PERCENT PER UNIT PER UNIT PER UNIT
- ---------------------------- ------------------ ----------- -------- -----------
<S> <C> <C> <C> <C>
Under $250,000 7.0% $ 0.70 $ 10.00 $9.30
$250,000-$499,999 6.0% $0.5936 $9.8936 $9.30
$500,000-$749,999 5.0% $0.4895 $9.7895 $9.30
$750,000-$999,999 3.0% $0.2876 $9.5876 $9.30
$1,000,000-$1,999,999 1.0% $0.0939 $9.3939 $9.30
Over $2,000,000 0.5% $0.0467 $9.3467 $9.30
</TABLE>
For example, if an investor purchases 100,000 units in the Partnership, he
could pay as little as $939,390 rather than $1,000,000 for the units, in which
event the commission on the sale of such units would be $9,390 ($0.0939 per
unit), and the Partnership would receive net proceeds of $930,000 ($9.30 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.
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
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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:
. 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;
. a corporation, partnership, association, joint-stock company, trust
fund or any organized group of persons, whether incorporated or not;
. an employees' trust, pension, profit sharing or other employee benefit
plan qualified under Section 401(a) of the Code; and
. 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
public real estate programs previously sponsored by the General Partners) 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 $1.10 per unit, and the
purchaser of such units would be required to pay a total of $8.90 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 $8.90 paid per unit, it is
anticipated that approximately $8.40 per unit (or approximately 94.4%) 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:
. 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;
. all purchasers of the units must be informed of the availability of
quantity discounts;
. the same volume discounts must be allowed to all purchasers of units
which are part of the offering;
. the minimum amount of units as to which volume discounts are allowed
cannot be less than $10,000;
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. 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
. 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.
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 a seven year period pursuant to a
deferred commission option (the "deferred commission option"). Investors
electing the deferred commission option will be required to pay a total of $9.40
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 six 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 investors holding such units. The net proceeds to the Partnership will not
be affected by the election of the deferred commission option. Under this
arrangement, an investor electing the deferred commission option will pay a 1%
commission upon subscription (rather than a 7% commission) and, thereafter, for
the next six years, an amount equal to a 1% commission per year will be deducted
from and paid by the Partnership out of net cash from operations otherwise
distributable to such investor. (See "DISTRIBUTIONS AND ALLOCATIONS -
Distributions of Net Cash From Operations.")
Each investor 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, investors 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 six
years following termination of the offering since investors 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 investors will instead be
paid to third parties to satisfy the deferred commission obligations. (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 underwriting 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.
99
<PAGE>
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 LLP ("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
AUDITED FINANCIAL STATEMENTS
The financial statements of Wells Real Estate Fund XII, L.P. and Wells Real
Estate Fund XIII, L.P., as of September 30, 1998, the financial statements and
attached schedule of Wells Partners, L.P. as of December 31, 1997 and 1996, and
for each of the years in the two year period ended December 31, 1997, and the
financial statements of Wells Capital, Inc. and subsidiaries as of December 31,
1997 and 1996, and for each of the years in the two year period ended December
31, 1997, included in Appendix I to this Prospectus and elsewhere in the
Registration Statement, have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
UNAUDITED FINANCIAL STATEMENTS
The interim financial information of Wells Partners, L.P. and Wells
Capital, Inc. and subsidiaries as of September 30, 1998 and for the nine month
periods ended September 30, 1998 and 1997, which are included in Appendix I to
this Prospectus, have not been audited.
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
100
<PAGE>
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:
. the public reference facilities in Washington, D.C. at Judiciary
Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549;
. the Northeast Regional Office in New York at 7 World Trade Center,
Suite 1300, New York, New York 10048; and
. 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:
"CLASS A STATUS UNIT" means a unit with respect to which the investor
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 investor
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.
"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.
"GENERAL PARTNERS" means Leo F. Wells, III, individually and Wells
Partners.
"IRA" means an individual retirement account established pursuant to
Section 408 of the Code.
"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.
"PARTNERSHIP" means Wells Real Estate Fund XII, L.P. and/or Wells Real
Estate Fund XIII, L.P., the Georgia limited partnerships which were 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 Brian M. Conlon, as the initial limited partner, and to be
adopted by each of the limited partners purchasing units in the Partnership.
"PREFERENTIAL LIMITED PARTNER RETURN" means with respect to each limited
partner unit the sum of (1) a cumulative (noncompounded) 10% annual return on a
limited partner's net capital contribution with respect to such unit for all
periods
101
<PAGE>
during which such unit was treated as a Class A Status Unit, and (2) a
cumulative (noncompounded) 15% annual 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.
"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.
"UBTI" means unrelated business taxable income, as that term is defined in
Sections 511 through 514 of the Code.
"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.
102
<PAGE>
APPENDIX I
FINANCIAL STATEMENTS
<PAGE>
INDEX TO AUDITED FINANCIAL STATEMENTS
Page
----
WELLS PARTNERS, L.P.
Audited Financial Statements
Report of Independent Public Accountants I-1
Balance Sheets as of December 31, 1997 and 1996 I-2
Statements of Loss for the years ended December 31, 1997 and 1996 I-3
Statements of Partners' Capital for the years ended
December 31, 1997 and 1996 I-4
Statements of Cash Flows for the years ended
December 31, 1997 and 1996 I-5
Notes to Financial Statements I-6
Schedule I - Market Value of Investments in Partnerships I-8
WELLS CAPITAL, INC. AND SUBSIDIARIES
Audited Financial Statements
Report of Independent Public Accountants I-9
Consolidated Balance Sheets as of December 31, 1997 and 1996 I-10
Consolidated Statements of (Loss) Income for the years ended
December 31, 1997 and 1996 I-11
Consolidated Statements of Stockholder's Equity for the
years ended December 31, 1997 and 1996 I-12
Consolidated Statements of Cash Flows for the years ended
December 31, 1997 and 1996 I-13
Notes to Consolidated Financial Statements I-14
WELLS REAL ESTATE FUND XII, L.P.
Audited Balance Sheet
Report of Independent Public Accountants I-19
Balance Sheet as of September 30, 1998 I-20
Notes to Balance Sheet I-21
WELLS REAL ESTATE FUND XIII, L.P.
Audited Balance Sheet
Report of Independent Public Accountants I-24
Balance Sheet as of September 30, 1998 I-25
Notes to Balance Sheet I-26
<PAGE>
[LETTERHEAD OF AUTHUR 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, 1997 and 1996 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, 1997 and 1996 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 LLP
Atlanta, Georgia
January 9, 1998
I-1
<PAGE>
WELLS PARTNERS, L.P.
(A GEORGIA LIMITED PARTNERSHIP)
BALANCE SHEETS
DECEMBER 31, 1997 AND 1996
ASSETS
1997 1996
-------- --------
CASH $ 70 $ 70
INVESTMENT IN PARTNERSHIPS 127,665 128,618
-------- --------
Total assets $127,735 $128,688
======== ========
COMMITMENTS AND CONTINGENCIES
PARTNERS' CAPITAL
GENERAL PARTNER $ 6,761 $ 6,771
LIMITED PARTNERS 120,974 121,917
-------- --------
Total partners' capital $127,735 $128,688
======== ========
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, 1997 AND 1996
1997 1996
----- ------
EQUITY IN LOSS OF PARTNERSHIPS $ 953 $1,126
===== ======
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, 1997 AND 1996
GENERAL LIMITED
PARTNER PARTNERS TOTAL
------- -------- --------
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
Net loss (10) (943) (953)
------ -------- --------
BALANCE AT DECEMBER 31, 1997 $6,761 $120,974 $127,735
====== ======== ========
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, 1997 AND 1996
<TABLE>
<CAPTION>
1997 1996
----- -------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(953) $(1,126)
Adjustment to reconcile net loss to net cash used by operating activities:
Equity in loss of partnerships 953 1,126
----- -------
Net cash used by operating activities 0 0
CASH FLOWS USED IN INVESTING ACTIVITIES:
Investment in limited partnership 0 (800)
CASH FLOWS PROVIDED BY FINANCING ACTIVITIES:
General partner contributions 0 800
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-5
<PAGE>
WELLS PARTNERS, L.P.
(A GEORGIA LIMITED PARTNERSHIP)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997 AND 1996
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., 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 performs certain administrative services 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
partnerships in which the Partnership invests, except for Beaver Ruin and
Carter Boulevard, has been formed with the purpose to acquire and operate
commercial real properties, including both properties which are to be
I-6
<PAGE>
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, 1997 and 1996
includes the following:
1997 1996
-------- --------
18.8% ownership interest in Beaver Ruin $ 81,529 $ 81,781
51.27% ownership interest in Carter Boulevard
45,535 45,873
Fund IX 0 164
Fund X 201 400
Fund XI 400 400
-------- --------
$127,665 $128,618
======== ========
The assets of Beaver Ruin consist primarily of a parcel of undeveloped land.
The assets of Carter Boulevard are comprised primarily of an investment in
Beaver Ruin. Carter Boulevard's ownership interest in Beaver Ruin is 12.3%.
Wells Capital is also one of the general partners of Beaver Ruin.
Fund IX owns all of its properties through an investment in two joint
ventures which, as of December 31, 1997, owned an interest in five office
buildings.
Fund X owns an office building through an investment in a joint venture as of
December 31, 1997.
Fund XI had no operations during the year ended December 31, 1997.
The Partnership is entitled to share in the allocation of cash distributions
and net income (loss) of the Funds based on the 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 I
WELLS PARTNERS, L.P.
(A GEORGIA LIMITED PARTNERSHIP)
MARKET VALUE OF INVESTMENT IN PARTNERSHIPS (A)
AS OF DECEMBER 31, 1997
(UNAUDITED)
* 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 X, L.P. 201
OWNERSHIP INTEREST IN WELLS REAL ESTATE FUND XI, L.P. 400
----------
$1,004,601
==========
(a) UNAUDITED SUBSEQUENT EVENT. The undeveloped land owned by Beaver
Ruin and Carter Boulevard was sold in June 1998. The proceeds, net
of closing costs, received by Wells Partners through its investment
in Beaver Ruin and Carter Boulevard were approximately $667,000,
which is $337,000 less than the estimated market value of Wells
Partners' investment in Beaver Ruin and Carter Boulevard as of
December 31, 1997.
*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>
[LETTERHEAD OF ARTHUR ANDERSEN LLP APPEARS HERE]
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholder of
Wells Capital, Inc.:
We have audited the accompanying consolidated balance sheets of WELLS CAPITAL,
INC. (a Georgia corporation) AND SUBSIDIARIES as of December 31, 1997 and 1996
and the related consolidated statements of (loss) 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. and
subsidiaries as of December 31, 1997 and 1996 and the results of their
operations and their cash flows for the years then ended in conformity with
generally accepted accounting principles.
ARTHUR ANDERSEN LLP
/s/ Arthur Andersen LLP
Atlanta, Georgia
January 9, 1998
I-9
<PAGE>
WELLS CAPITAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1997 AND 1996
ASSETS
<TABLE>
<CAPTION>
1997 1996
---------- ----------
CURRENT ASSETS:
<S> <C> <C>
Cash $ 313,093 $ 148,873
Due from affiliates 360,023 872,843
Other receivables 0 31,300
---------- ----------
Total current assets 673,116 1,053,016
DEFERRED OFFERING COSTS 328,333 0
INVESTMENT IN PARTNERSHIPS 16,898 16,995
---------- ----------
Total assets $1,018,347 $1,070,011
========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY
LIABILITIES:
Accounts payable $ 34,621 $ 204,340
Due to affiliates 579,638 0
---------- ----------
Total liabilities 614,259 204,340
---------- ----------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDER'S EQUITY:
Common stock, $1 par value; 100,000 shares authorized, 600 shares issued
and outstanding 600 600
Contributed capital 306,541 306,541
Retained earnings 96,947 558,530
---------- ----------
Total stockholder's equity 404,088 865,671
---------- ----------
Total liabilities and stockholder's equity $1,018,347 $1,070,011
========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
I-10
<PAGE>
WELLS CAPITAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF (LOSS) INCOME
FOR THE YEARS ENDED DECEMBER 31, 1997 AND 1996
<TABLE>
<CAPTION>
1997 1996
---------- ----------
REVENUES:
<S> <C> <C>
Acquisition and advisory fees $1,085,157 $1,608,952
Equity in loss of limited partnerships (10) 0
---------- ----------
1,085,147 1,608,952
EXPENSES:
Salaries and wages 1,086,698 811,754
Occupancy 24,277 26,484
General and administrative 435,755 281,852
---------- ----------
1,546,730 1,120,090
---------- ----------
NET (LOSS) INCOME $ (461,583) $ 488,862
========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
I-11
<PAGE>
WELLS CAPITAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDER'S EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1997 AND 1996
<TABLE>
<CAPTION>
COMMON STOCK TOTAL
---------------------- CONTRIBUTED RETAINED STOCKHOLDER'S
SHARES AMOUNT CAPITAL EARNINGS EQUITY
---------------------- ----------- -------- -------------
<S> <C> <C> <C> <C> <C>
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
Net loss 0 0 0 (461,583) (461,583)
------ ------ -------- --------- ---------
BALANCE, DECEMBER 31, 1997 600 $600 $306,541 $ 96,947 $ 404,088
====== ====== ======== ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
I-12
<PAGE>
WELLS CAPITAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1997 AND 1996
<TABLE>
<CAPTION>
1997 1996
--------- ---------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net (loss) income $(461,583) $ 488,862
Adjustments to reconcile net (loss) income to net cash provided by operating
activities:
Equity in loss of limited partnerships 10 0
Changes in assets and liabilities:
Due from affiliates 512,820 (566,614)
Deferred offering costs (328,333) 0
Other receivables 31,300 (22,767)
Accounts payable (169,719) 119,447
Due to affiliates 579,638 0
--------- ---------
Total adjustments 625,716 (469,934)
--------- ---------
Net cash provided by operating activities 164,133 18,928
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Distributions from limited partnerships 87 288
Additional investment in limited partnerships 0 (800)
--------- ---------
Net cash provided by (used in) investing activities 87 (512)
--------- ---------
NET INCREASE IN CASH 164,220 18,416
--------- ---------
CASH AT BEGINNING OF YEAR 148,873 130,457
--------- ---------
CASH AT END OF YEAR $ 313,093 $ 148,873
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
I-13
<PAGE>
WELLS CAPITAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997 AND 1996
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
primarily 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 these 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 Real Estate 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"), 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"). Funds
IV, V, VI, VII, VIII, IX, X and XI have the same investment objectives as
Funds I, II, II-OW, and III.
During 1997, the Company became the sole shareholder in Wells Real Estate
Investment Trust, Inc. ("Wells REIT"), a Maryland corporation, that intends
to qualify as a real estate investment trust, as well as the sole shareholder
in Wells S&P REIT Index Fund ("Mutual Fund"). The Mutual Fund's objective is
to provide investment results corresponding to the performance of the S&P
Real Estate Investment Trust Composite Price Index (the "Index"). Wells REIT
and Mutual Fund are in the initial stages of formation; neither entity had
operations during 1997. Since the Company owns 100% of Wells REIT and Mutual
Fund, these entities have been consolidated in the Company's financial
statements, and the accompanying balance sheet includes all assets and
liabilities of Wells REIT and Mutual Fund. All intercompany transactions and
balances have been eliminated.
I-14
<PAGE>
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, as any income tax liability
is the responsibility of the stockholder.
RECLASSIFICATIONS
Certain prior year items have been reclassified to conform with current year
financial statement presentation.
2. RELATED-PARTY TRANSACTIONS
The Company is entitled to share in the allocation of cash distributions and
net income (loss) from the Wells Real Estate Funds based on the 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, Fund IX, Fund X, and Fund XI. Pursuant to the partnership
agreements of Fund IV, Fund V, and Fund XI, these three 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 years ended December 31, 1997 and 1996, the Company paid
organization and offering costs related to Fund VIII of $0 and $64,620,
respectively. As of December 31, 1996, the Company had a receivable for
unreimbursed acquisition and advisory fees (Note 4) related to Fund VIII
totaling $152,501, which is included in due from affiliates; the entire
receivable was collected during 1997. During 1997 and 1996, the Company
expensed $0 and $66,684, respectively, of organization and offering costs
related to Fund VIII, which exceeded the 5% reimbursement limitation.
During the years ended December 31, 1997 and 1996, the Company paid
organization and offering costs related to Fund IX of $24,486 and $1,785,104,
respectively, of which $5,938 and $84,800, respectively, was paid to related
parties. As of December 31, 1996, the Company had a receivable for
unreimbursed organization and offering costs and acquisition and advisory
fees (Note 4) related to Fund IX totaling $422,996, which is included in due
from affiliates; the entire receivable was collected during 1997. During
1997 and 1996, the Company expensed $24,486 and $73,296, respectively, of
organization and offering costs related to Fund IX, which exceeded the 5%
reimbursement limitation.
I-15
<PAGE>
During the years ended December 31, 1997 and 1996, the Company paid
organization and offering costs related to Fund X of $1,516,779 and $97,691,
respectively, of which $23,961 and $0, respectively, was paid to related
parties. As of December 31, 1997 and 1996, the Company had a receivable for
unreimbursed organization and offering costs and acquisition and advisory
fees (Note 4) related to Fund X totaling $105,008 and $97,691, respectively,
which is included in due from affiliates. During 1997 and 1996, the Company
expensed $258,023 and $0, respectively, of organization and offering costs
related to Fund X which exceeded the 5% reimbursement limitation.
During the years ended December 31, 1997 and 1996, the Company paid
organization and offering costs related to Fund XI of $109,442 and $84,578,
respectively, none of which was paid to related parties. As of December 31,
1997 and 1996, the Company had a receivable for unreimbursed organization and
offering costs related to Fund XI of $194,020 and $84,578, respectively,
which is included in due from affiliates. Fund X and Fund XI filed a
registration statement with the Securities and Exchange Commission ("SEC")
for the offering and sale of their limited partnership units, which became
effective on December 31, 1996. Amendments to the registration statement
covering only Fund XI were filed with the SEC during 1997 and were declared
effective by the SEC on December 31, 1997. In order for the Company to be
reimbursed for any portion of these expenses, Fund XI 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.
Due from affiliates at December 31, 1997 and 1996 represents primarily
organization and offering expenses and acquisition and advisory fees paid by
the Company on behalf of Fund VIII, Fund IX, Fund X, and Fund XI. In
addition, Wells Investment Securities, Inc. agreed to reimburse the Company
for a portion of Fund IX's organization and offering expenses totaling
$104,037, which is included in due from affiliates at December 31, 1996. The
remaining due from affiliates represents operating expenses paid by the
Company on behalf of the affiliates and receivable from the Company's
shareholder. The following is a detail of due from affiliates at December
31:
1997 1996
-------- --------
Fund VIII $ 0 $152,501
Fund IX 0 422,996
Fund X 105,008 97,691
Fund XI 194,020 84,578
Wells Management Company, Inc. 0 2,113
Wells Investment Securities, Inc. 0 104,037
Shareholder 60,000 0
Other affiliates 995 8,927
-------- --------
$360,023 $872,843
======== ========
Due to affiliates includes advances from Wells Management Company, Inc., an
affiliate of the Company. Of these advances, $279,638 was used to fund the
general operations of the Company, and the remaining $300,000 was used to
fund the Company's investment in Wells REIT and Mutual Fund. The Company
anticipates repaying the entire obligation to Wells Management Company, Inc.
during 1998.
The Company's capital contribution to Wells REIT and Mutual Fund was $201,000
and $100,000, respectively, which is included in cash in the accompanying
balance sheet. Certain regulations require the Company to maintain these
cash balances at Wells REIT and Mutual Fund;
I-16
<PAGE>
consequently, $300,000 of the Company's total cash is not available to fund
the general operations of the Company.
3. INVESTMENT IN PARTNERSHIPS
The following is a rollforward of the Company's investment in partnerships as
of December 31, 1997 and 1996:
1997 1996
------- -------
Investment in partnerships, beginning of year $16,995 $16,483
Contribution to partnerships 0 800
Equity in loss of partnerships (10) 0
Distributions from partnerships (87) (288)
------- -------
Investment in partnerships, end of year $16,898 $16,995
The Company's investment in each partnership at December 31, 1997 and 1996 is
as follows:
1997 1996
------- -------
Fund I $11,027 $11,027
Fund II 2,721 2,808
Wells Partners 3,150 3,160
------- -------
$16,898 $16,995
As of December 31, 1997 and 1996, 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 owns all of its properties through a joint venture, which, as of
December 31, 1997 and 1996, owned interests in a retail shopping center, a
project consisting of seven office buildings and a shopping center, two
office buildings, and a parcel of land on which a restaurant and a retail
shopping center were developed.
4. ACQUISITION AND ADVISORY FEES
Acquisition and advisory fees totaling $1,085,517 were earned from Fund X in
1997, and acquisition and advisory fees of $218,897 and $1,390,055,
respectively, were earned from Fund VIII and Fund IX in 1996. Pursuant to
the partnership agreements of Fund VIII, Fund IX, and Fund X, total fees
earned may not exceed 5% of limited partners' contributions. As of December
31, 1996, $152,501 of Fund VIII fees and $271,266 of Fund IX fees remained
uncollected and are included in due from affiliate. As of December 31, 1997,
$46,670 of Fund X fees remained uncollected and are included in due from
affiliates.
I-17
<PAGE>
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-18
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Wells Real Estate Fund XII, L.P.:
We have audited the accompanying balance sheet of WELLS REAL ESTATE FUND XII,
L.P. (a Georgia public limited partnership) as of September 30, 1998. This
balance sheet is the responsibility of the Partnership's management. Our
responsibility is to express an opinion on this balance sheet 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 balance sheet referred to above presents fairly, in all
material respects, the financial position of Wells Real Estate Fund XII, L.P. as
of September 30, 1998 in conformity with generally accepted accounting
principles.
/s/ Arthur Andersen LLP
Atlanta, Georgia
October 12, 1998
I-19
<PAGE>
WELLS REAL ESTATE FUND XII, L.P.
(A GEORGIA PUBLIC LIMITED PARTNERSHIP)
BALANCE SHEET
SEPTEMBER 30, 1998
ASSETS
CASH $600
----
PARTNERS' CAPITAL
PARTNERS' CAPITAL:
General partners $500
Limited partner 100
----
Total Partners' Capital $600
====
The accompanying notes are an integral part of this balance sheet.
I-20
<PAGE>
WELLS REAL ESTATE FUND XII, L.P.
(A GEORGIA PUBLIC LIMITED PARTNERSHIP)
NOTES TO BALANCE SHEET
SEPTEMBER 30, 1998
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Real Estate Fund XII, L.P. (the "Partnership") is a public limited
partnership organized on September 15, 1998 under the laws of the state of
Georgia. The general partners are Leo F. Wells, III and Wells Partners, L.P.
Brian M. Conlon is the initial limited partner. The Partnership has two
classes of limited partnership units. Upon subscription for units, each
limited partner must elect whether to have their units treated as Class A
units or Class B units. Thereafter, limited partners shall have the right to
change their prior elections 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 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,
1998.
The Partnership was formed to acquire 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.
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 are paid first to
limited partners holding Class A units until they have received a 10% per
annum 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 distributed thus far. 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.
I-21
<PAGE>
DISTRIBUTION OF SALE PROCEEDS
Upon the sale of properties, the net sale 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 contributions, as defined;
. To all limited partners on a per unit basis until they receive a
cumulative 10% per annum return on their net capital contributions,
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, as defined;
. 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;
. 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
I-22
<PAGE>
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 3% of gross
proceeds, will be paid by Wells Capital, Inc. 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. There were no organization and offering
expenses incurred or paid as of September 30, 1998.
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 and leasing 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) 4.5% of the gross revenues
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 from legal counsel as to its tax status as a
partnership, but such an opinion is not binding upon the Internal Revenue
Service. Based on this opinion from legal counsel, the general partners
contend that the Partnership is not subject to federal or state income
taxes, and therefore, none have been provided for in the accompanying
balance sheet. The partners are required to include their respective share
of profits and losses in their individual income tax returns.
I-23
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Wells Real Estate Fund XIII, L.P.:
We have audited the accompanying balance sheet of WELLS REAL ESTATE FUND XIII,
L.P. (a Georgia public limited partnership) as of September 30, 1998. This
balance sheet is the responsibility of the Partnership's management. Our
responsibility is to express an opinion on this balance sheet 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 balance sheet referred to above presents fairly, in all
material respects, the financial position of Wells Real Estate Fund XIII, L.P.
as of September 30, 1998 in conformity with generally accepted accounting
principles.
ARTHUR ANDERSEN LLP
/s/ Arthur Andersen LLP
Atlanta, Georgia
October 12, 1998
I-24
<PAGE>
WELLS REAL ESTATE FUND XIII, L.P.
(A GEORGIA PUBLIC LIMITED PARTNERSHIP)
BALANCE SHEET
SEPTEMBER 30, 1998
ASSETS
CASH $600
----
PARTNERS' CAPITAL
PARTNERS' CAPITAL:
General partners $500
Limited partner 100
----
Total partners' capital $600
The accompanying notes are an integral part of this balance sheet.
I-25
<PAGE>
WELLS REAL ESTATE FUND XIII, L.P.
(A GEORGIA PUBLIC LIMITED PARTNERSHIP)
NOTES TO BALANCE SHEET
SEPTEMBER 30, 1998
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BUSINESS
Wells Real Estate Fund XIII, L.P. (the "Partnership") is a public limited
partnership organized on September 15, 1998 under the laws of the state of
Georgia. The general partners are Leo F. Wells, III and Wells Partners, L.P.
Brian M. Conlon is the initial limited partner. The Partnership has two
classes of limited partnership units. Upon subscription for units, each
limited partner must elect whether to have their units treated as Class A
units or Class B units. Thereafter, limited partners shall have the right to
change their prior elections 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 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,
1998.
The Partnership was formed to acquire 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.
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 are paid first to
limited partners holding Class A units until they have received a 10% per
annum 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 distributed thus far. 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.
I-26
<PAGE>
DISTRIBUTION OF SALE PROCEEDS
Upon the sale of properties, the net sale 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 contributions, as defined;
. To all limited partners on a per unit basis until they receive a
cumulative 10% per annum return on their net capital contributions,
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, as defined;
. 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;
. 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
I-27
<PAGE>
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 3% of gross
proceeds, will be paid by Wells Capital, Inc. 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. There were no organization and offering
expenses incurred or paid as of September 30, 1998.
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 and leasing 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) 4.5% of the gross revenues 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 from legal counsel as to its tax status as a
partnership, but such an opinion is not binding upon the Internal Revenue
Service. Based on this opinion from legal counsel, the general partners
contend that the Partnership is not subject to federal or state income taxes,
and therefore, none have been provided for in the accompanying balance sheet.
The partners are required to include their respective share of profits and
losses in their individual income tax returns.
I-28
<PAGE>
INDEX TO UNAUDITED FINANCIAL STATEMENTS
Page
----
WELLS PARTNERS, L.P.
Unaudited Financial Statements
Balance Sheets as of September 30, 1998 and December 31, 1997....... I-30
Statements of Operations for the nine months ended
September 30, 1998 and 1997....................................... I-31
Statement of Partners' Capital for the nine months ended
September 30, 1998 and the year ended December 31, 1997........... I-32
Statements of Cash Flows for the nine months ended
September 30, 1998 and 1997....................................... I-33
Condensed Notes to Financial Statements............................. I-34
WELLS CAPITAL, INC.
Unaudited Financial Statements
Balance Sheets as of September 30, 1998 and December 31, 1997....... I-37
Statements of Operations for the nine months ended
September 30, 1998 and 1997....................................... I-38
Statement of Stockholder's Equity for the nine months ended
September 30, 1998 and the year ended December 31, 1997........... I-39
Statements of Cash Flow for the nine months ended
September 30, 1998 and 1997....................................... I-40
Condensed Notes to Financial Statements............................. I-41
I-29
<PAGE>
WELLS PARTNERS, L.P.
(a Georgia Limited Partnership)
Balance Sheets
<TABLE>
<CAPTION>
(Unaudited) (Unaudited)
September 30, 1998 December 31, 1997
------------------ -----------------
Assets
-------
<S> <C> <C>
Cash $ 70 $ 70
Investments in limited partnerships (note 2) 667,993 127,665
-------- --------
Total Assets $668,063 $127,735
======== ========
Partners' Capital
-----------------
General Partner $ 12,957 $ 6,761
Limited Partners 655,106 120,974
-------- --------
Total Partners' Capital $668,063 $127,735
======== ========
See accompanying condensed notes to financial statements.
</TABLE>
I-30
<PAGE>
WELLS PARTNERS, L.P.
(a Limited Partnership)
Statements of Operations
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
-----------------
September 30, September 30,
1998 1997
------------------ ------------------
<S> <C> <C>
Equity in income (loss) of partnership $541,032 $(416)
-------- -----
Net income (loss) $541,032 $(416)
======== =====
See accompanying condensed notes to financial statements.
</TABLE>
I-31
<PAGE>
WELLS PARTNERS, L.P.
(a Limited Partnership)
Statement of Partners' Capital
For the Year Ended December 31, 1997
and the Nine Months Ended September 30, 1998
(Unaudited)
<TABLE>
<CAPTION>
General Limited
Partner Partners Total
------- -------- ------
<S> <C> <C> <C>
Balance at December 31, 1996 $ 6,771 $121,917 $128,688
Net Loss (10) (943) (953)
------- -------- --------
Balance at December 31, 1997 $ 6,761 $120,974 $127,735
Capital Contribution 800 0 800
Net Income 5,396 534,132 539,528
------- -------- --------
Balance at September 30, 1998 $12,957 $655,106 $668,063
======= ======== ========
</TABLE>
See accompanying condensed notes to financial statements
I-32
<PAGE>
WELLS PARTNERS, L.P.
(a Limited Partnership)
Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
-----------------
September 30, September 30,
------------- -------------
1998 1997
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 541,032 $(416)
Adjustments to reconcile net loss to net cash used
by operating activities-equity in income (loss) of
limited partnership (541,032) (416)
---------- -----
Net Cash used in operating activities 0 0
---------- -----
Net change in cash 0 0
Cash at beginning of year 70 70
---------- -----
Cash at end of period $ 70 $ 70
========== =====
See accompanying condensed notes to financial statements.
</TABLE>
I-33
<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
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, 1997.
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), Wells Real Estate
Fund XI, L.P. (Fund XI), Wells Real Estate Fund XII, L.P. (Fund XII) and
Wells Real Estate Fund XIII, L.P. (Fund XIII) (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 investments in partnerships at September 30, 1998 and
December 31, 1997 are as follows:
I-34
<PAGE>
<TABLE>
<CAPTION>
September 30, 1998 December 31, 1997
------------------------------ ------------------------------
Cost Market Cost Market
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
18.8% ownership interest in Beaver
Ruin - Arc Way, Ltd. $502,230 $502,230 $ 81,529 $ 752,000
51.27% ownership interest in Carter
Boulevard, Ltd. 164,833 164,833 45,535 252,000
Wells Real Estate Fund VI, L.P. 0 0 0 0
Wells Real Estate Fund VII, L.P. 0 0 0 0
Wells Real Estate Fund VIII, L.P. 0 0 0 0
Wells Real Estate Fund IX, L.P. 0 0 0 0
Wells Real Estate Fund X, L.P. 0 0 201 201
Wells Real Estate Fund XI, L.P. 130 130 400 400
Wells Real Estate Fund XII, L.P. 400 400 0 0
Wells Real Estate Fund XIII, L.P. 400 400 0 0
-------- -------- -------- ----------
$667,993 $667,933 $127,665 $1,004,601
</TABLE>
The assets of Beaver Ruin and Carter Boulevard are comprised primarily of an
investment in a parcel of underdeveloped land. The general partner of the
Partnership is also the general partner of Beaver Ruin and Carter Boulevard. In
June 1998, the entire parcel of land was sold to an unrelated third party for a
sale price of $3,112,875 less closing costs to the seller of $501,297. Wells
Partners' share of net proceeds of $502,230 through its 18.8% interest in Beaver
Ruin and $164,833 through its 51.27% interest in Carter Boulevard was forwarded
to an escrow agent for use in a Section 1031 exchange which is anticipated to
take place before the end of 1998. The Partnership recognized a gain of
approximately $540,000 for GAAP purposes. The market value at December 31, 1997
of this land was based on an appraisal dated June, 1996.
Fund VI owns all of its properties through an investment in six joint ventures
which, as of September 30, 1998, owned interests in three commercial office
buildings, five retail centers and an office/retail center.
I-35
<PAGE>
Fund VII owns all of its properties through an investment in five joint ventures
which, as of September 30, 1998, owned interests in three commercial office
buildings, four retail centers and two office/retail centers.
Fund VIII owns all of its properties through an investment in three joint
ventures which, as of September 30, 1998, owned interests in three commercial
office buildings, one retail center and an office/retail center.
Fund IX owns all of its properties through an investment in two joint ventures
which, as of September 30, 1998, owned interests in eight commercial office
buildings.
Fund X owns all of its properties through an investment in two joint ventures
which, as of September 30, 1998, owned interests in six commercial office
buildings.
Fund XI owns all of its properties through an investment in a joint venture
which, as of September 30, 1998, owned interests in three commercial office
buildings.
In addition, the Partnership owns interest in Fund IV and Fund V. Fund IV owns
all of its properties through investments in two joint ventures which, as of
September 30, 1998, owned 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, 1998, owned interests in three commercial
office building, 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, 1998 and December 31, 1997.
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-36
<PAGE>
WELLS CAPITAL, INC.
Balance Sheets
As of September 30, 1998 and December 31, 1997
<TABLE>
<CAPTION>
(Unaudited) (Unaudited)
Assets Sept. 30, 1998 December 31, 1997
------- ------------------ ---------------------
Current Assets:
<S> <C> <C>
Cash $ 31,419 $ 313,093
Due from affiliates 0 360,023
-------------- ----------
Total Current Assets 31,419 673,116
Deferred offering costs 1,392,246 328,333
Investments in partnerships 318,698 16,898
-------------- ----------
Total Assets $ 1,742,363 $1,018,347
============== ==========
Liabilities and Shareholders' Equity
------------------------------------
Accounts payable $ 15,737 $ 34,621
Due to affiliates 1,640,048 579,638
-------------- ----------
Total liabilities 1,655,785 614,259
-------------- ----------
Shareholders' equity:
Common shares, $1par value. Authorized
100,000 shares; issued 600 shares 600 600
Contributed capital 306,541 306,541
Accumulated (deficit) earnings (220,563) 96,947
-------------- ----------
Total Stockholder's Equity 86,578 404,088
-------------- ----------
Total Liabilities and Stockholder's Equity $ 1,742,363 $1,018,347
============== ==========
</TABLE>
See accompanying condensed notes to financial statements.
I-37
<PAGE>
WELLS CAPITAL, INC.
Statements of Operations
(Unaudited)
For the Nine Month Period Ended September 30, 1998 and 1997
<TABLE>
<CAPTION>
Nine Months Ended
-----------------
Sept. 30, 1998 Sept. 30, 1997
-------------- ---------------
<S> <C> <C>
Revenues-Acquisition and Advisory Fees $ 750,560 $ 758,253
---------- ----------
Expenses:
Legal and Accounting 19,006 82,748
Salaries and Wages 1,047,392 906,398
Rent 0 17,656
General and Administrative 1,672 70,656
---------- ----------
Total Expenses 1,068,070 1,077,458
Net Loss $ (317,510) $ (319,205)
========== ==========
</TABLE>
See accompanying condensed notes to financial statements.
I-38
<PAGE>
WELLS CAPITAL, INC.
Statement of Stockholder's Equity
(Unaudited)
For the Nine Months Ended September 30, 1998
and the Year Ended December 31, 1997
<TABLE>
<CAPTION>
Accumulated Total
Common Contributed (Deficit) Stockholder's
Stock Capital Earnings Equity
------ ----------- -------- -------------
<S> <C> <C> <C> <C>
Balance at December 31, 1996 $600 $306,541 $ 558,530 $ 865,671
Net Loss 0 0 (461,583) (461,583)
---- -------- --------- ---------
Balance at December 31, 1997 600 306,541 96,947 404,088
Net Loss 0 0 (317,510) (317,510)
---- -------- --------- ---------
Balance at September 30, 1998 $600 $306,541 $(220,563) $86,578
==== ======== ======== =======
</TABLE>
See accompanying condensed notes to financial statements.
I-39
<PAGE>
WELLS CAPITAL, INC.
Statements of Cash Flow
(Unaudited)
For the Nine Month Period Ended September 30, 1998 and 1997
<TABLE>
<CAPTION>
Nine Months Ended
-----------------
September 30, September 30,
1998 1997
-------------- ---------------
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (317,510) $(319,205)
---------- ---------
Adjustments to reconcile net loss to net cash provided by
operating activities:
Due from affiliates 360,023 872,843
Deferred offering costs (1,063,913) (676,019)
Accounts receivable 0 29,300
Accounts payable (18,884) (171,183)
Due to affiliates 1,060,410 135,335
---------- --------
Total adjustments 337,636 190,276
---------- --------
Net Cash provided by Operating Activities 20,126 128,929
---------- --------
Cash flows from investing activities:
Additional investments (301,800) (972)
---------- --------
Net cash used in investing activities (301,800) (972)
---------- --------
Net decrease in cash (281,674) (129,901)
Cash at beginning of year 313,093 148,873
---------- --------
Cash at end of period $31,419 $18,972
========== ========
</TABLE>
See accompanying condensed notes to financial statements.
I-40
<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, 1997.
The Company is 100% owned by Wells Real Estate Funds, Inc. which is a
Georgia corporation formed on February 17, 1997, having Leo F. Wells III as
the sole share owner. 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 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 for 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), Wells Real Estate Fund XI, L.P.
(Fund XI), Wells Real Estate Fund XII, L.P. (Fund XII) and Wells Real
Estate Fund XIII, L.P. (Fund XIII), 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, Fund V, and Fund XI, these three 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, and Fund X, these
partnerships can reimburse the Company for up to 5% of total limited
partners' contributions in offering and organizational expenses. The
Company is the advisor of Wells Real Estate Investment Trust, Inc. (Wells
REIT) and is currently paying the offering and organizational expenses, on
behalf of Wells REIT for which Wells REIT, pursuant to the agreement, can
only reimburse the Company for up to 3% of total shareholders'
contributions.
I-41
<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, 1994. 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
VII, L.P. VIII, L.P. IX, L.P. X, L.P.
----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Dollar Amount Raised $24,180,174 (3) $32,042,689 (4) $35,000,000 (5) $27,128,912 (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% 0.0% 0.0% 0.0%
----------- ----------- ----------- -----------
Percent Available for Investment 84.0% 85.0% 85.0% 85.0%
Acquisition and Development Costs
Prepaid Items and Fees related to Purchase of Property 0.0% 0.2% 0.0% 0.0%
Cash Down Payment 16.3% 29.2% 0.0% 0.0%
Acquisition Fees(2) 3.5% 4.5% 4.5% 4.5%
Development and Construction Costs 64.2% 48.0% 50.4% 14.4%
Reserve for Payment of Indebtedness 0.0% 0.0% 0.0% 0.0%
----------- ----------- ----------- -----------
Total Acquisition and Development Cost 84.0% 81.9% 54.9% 18.9%
----------- ----------- ----------- -----------
Percent Leveraged 0.0% 0.0% 0.0% 0.00%
=========== =========== =========== ===========
Date Offering Began 04/05/94 01/06/95 01/05/96 12/31/96
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) 12 mo. 17 mo. (7) (8)
Number of Investors 1,917 2,242 2,115 1,806
</TABLE>
- --------------------------------------------
(1) Does not include General Partner contributions held as part of reserves.
(2) Includes acquisition 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 VII, L.P. closed its offering on January 5, 1995, and
the total dollar amount raised was $24,180,174.
(4) 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.
(5) 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.
(6) Total dollar amount registered and available to be offered was $35,000,000.
Wells Real Estate Fund X, L.P. closed its offering on December 30, 1997, and
the total dollar amount raised was $27,128,912.
(7) As of December 31, 1997, 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, 1997 was 70.3% of the total dollar amount
raised. The amount invested and/or committed to be invested in properties
(including acquisition fees paid but not yet associated with a specific
property) at December 31, 1997 was 83.5% of the total dollar amount raised.
(8) As of December 31, 1997, Wells Real Estate Fund X, 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, 1997 was 17.7% of the total dollar amount
raised. The amount invested and/or committed to be invested in properties
(including acquisition fees paid but not yet associated with a specific
property) at December 31, 1997 was 32.8% 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, 1994. These partnerships have
not sold or refinanced any of their properties to date. All figures are as of
December 31, 1997.
<TABLE>
<CAPTION>
Wells Real Wells Real Wells Real Wells Real Other
Estate Fund Estate Fund Estate Fund Estate Fund Public
VII, L.P. VIII, L.P. IX, L.P. X, L.P. Programs(1)
------------ ------------ ------------ ------------ --------------
<S> <C> <C> <C> <C> <C>
Date Offering Commenced 04/05/94 01/06/95 01/05/96 12/31/96 --
Dollar Amount Raised $24,180,174 $32,042,689 $35,000,000 $27,128,912 $150,018,232
to Sponsor from Proceeds of Offering:
Underwriting Fees(2) $ 178,122 $ 174,295 $ 309,556 $ 260,748 $ 571,739
Acquisition Fees
Real Estate Commissions -- -- -- -- --
Acquisition and Advisory Fees(3) $ 846,306 $ 1,281,708 $ 1,400,000 $ 1,085,157 $ 8,031,385
Dollar Amount of Cash Generated from Operations
Before Deducting Payments to Sponsor(4) $ 3,850,827 $ 1,630,740 $ 1,305,840 $ 438,195 $ 29,081,439
Amount Paid to Sponsor from Operations:
Property Management Fee(1) $ 124,934 $ 85,523 $ 19,539 $ 0 $ 857,695
Partnership Management Fee -- -- -- -- --
Reimbursements $ 159,036 $ 112,773 $ 32,349 $ 11,137 $ 1,187,273
Leasing Commissions $ 97,856 $ 91,566 $ 29,162 $ 0 $ 800,710
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., Wells Real Estate
Fund V, L.P. and Wells Real Estate Fund VI, L.P. during the past three
years. In addition to the amounts shown, affiliates of the 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 Wells Real Estate Fund I. At December 31,
1997, the amount of such fees due the General Partners totaled $2,088,727.
(2) Includes net underwriting compensation and commissions paid to Wells
Investment Securities, Inc. in connection with the offerings of Wells Real
Estate Funds VII, VIII, IX and X, which were not reallowed to participating
broker-dealers.
(3) Fees paid to the General Partners or their affiliates for acquisition and
advisory services in connection with the review and evaluation of potential
real property acquisitions.
(4) Includes $409,361 in net cash provided by operating activities, $3,059,640
in distributions to limited partners and $381,826 in payments to sponsor for
Wells Real Estate Fund VII, L.P.; $464,964 in net cash provided by operating
activities, $875,914 in distributions to limited partners and $289,862 in
payments to sponsor for Wells Real Estate Fund VIII, L.P.; $2,540 in net
cash provided by operating activities, $1,221,764 in distributions to
limited partners and $81,536 in payments to sponsor for Wells Real Estate
Fund IX, L.P.; $449,332 in net cash used by operating activities, $0 in
distributions to limited partners and $11,137 in payments to sponsor for
Wells Real Estate Fund X, L.P.; and $855,331 in net cash provided by
operating activities, $19,618,669 in distributions to limited partners and
$2,748,101 in payments to sponsor for other public programs.
A-3
<PAGE>
TABLE III
(UNAUDITED)
The following six (6) tables set forth operating results of prior programs
sponsored by the General Partners the offerings of which have been completed
since December 31, 1992. 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>
1997 1996 1995 1994 1993
------------ ------------ ----------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Gross Revenues(1) $ 633,247 $ 590,839 $ 764,624 $ 656,958 $ 458,213
Profit on Sale of Properties -- -- -- -- --
Less: Operating Expenses(2) 72,404 78,939 68,735 88,987 96,964
Depreciation and Amortization(3) 1,042 6,250 6,250 6,250 6,250
---------- ---------- ---------- ----------- -----------
Net Income (Loss) GAAP Basis(4) $ 559,801 $ 505,650 $ 689,639 $ 561,721 $ 354,999
========== ========== ========== =========== ===========
Taxable Income (Loss): Operations $ 763,486 $ 666,780 $ 676,367 $ 528,025 $ 280,000
========== ========== ========== =========== ===========
Cash Generated (Used By):
Operations (66,556) (65,728) (46,235) (10,395) 112,594
Joint Ventures 1,121,000 1,072,835 1,020,905 653,729 54,154
---------- ---------- ---------- ----------- -----------
$1,054,444 $1,007,107 $ 974,670 $ 643,334 $ 166,748
Less Cash Distributions to Investors:
Operating Cash Flow 1,054,444 1,007,107 969,011 643,334 151,336
Return of Capital 4,487 -- -- 44,257 --
Undistributed Cash Flow from Prior Year Operations 1,987 3,672 -- 15,412 --
---------- ---------- ---------- ----------- -----------
Cash Generated (Deficiency) after Cash Distributions $ (6,474) $ (3,672) $ 5,659 $ (59,669) $ 15,412
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions __ -- -- -- --
Increase in Limited Partner Contributions -- -- -- -- 5,589,786
---------- ---------- ---------- ----------- -----------
$ __ $ (3,672) $ 5,659 $ (59,669) $ 5,605,198
Use of Funds:
Sales Commissions and Offering Expenses -- -- -- 764,599
Return of Original Limited Partner's Investment -- -- -- --
Property Acquisitions and Deferred Project Costs (154,131) (225) (233,501) 2,366,507 7,755,116
---------- ---------- ---------- ----------- -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $ (160,605) $ (3,897) $ (227,842) $(2,426,176) $(2,914,517)
========== ========== ========== =========== ===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 36 71 73 58 29
- Operations Class B Units 0 (378) (272) (180) (54)
Capital Gain (Loss) -- -- -- -- --
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 74 69 69 55 36
- Operations Class B Units (256) (260) (246) (181) (58)
Capital Gain (Loss) -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 36 65 63 46 10
- Return of Capital Class A Units 32 -- -- -- --
- Return of Capital Class B Units -- -- -- -- --
Source (on Cash Basis)
- Operations Class A Units 68 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 $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; $577,128 in equity in earnings of joint ventures and $13,711
from investment of reserve funds in 1996; and $623,249 in equity in earnings
of joint ventures and $9,998 from investment of reserve funds in 1997. At
December 31, 1997, the leasing status of all developed property was 95%.
(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, $592,281 for 1996, and $735,315 for 1997.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated as follows: $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, $(434,564) to Class B Limited Partners and $0 to
General Partners for 1995; $1,095,296 to Class A Limited Partners,
$(589,646) to Class B Limited Partners and $0 to General Partners for 1996;
and $559,801 to Class A Limited Partners, $0 to Class B Limited Partners and
$0 to General Partners in 1997.
A-5
<PAGE>
TABLE III (UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND VI, L.P.
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
---------- ---------- ------------ ----------- -----------
<S> <C> <C> <C> <C> <C>
Gross Revenues(1) $ 884,802 $ 675,782 $ 1,002,567 $ 819,535 $ 82,723
Profit on Sale of Properties -- -- -- -- --
Less: Operating Expenses(2) 82,898 80,479 94,489 112,389 46,608
Depreciation and Amortization(3) 6,250 6,250 6,250 6,250 4,687
---------- ---------- ------------ ----------- -----------
Net Income GAAP Basis(4) $ 795,654 $ 589,053 $ 901,828 $ 700,896 $ 31,428
========== ========== ============ =========== ===========
Taxable Income: Operations $1,091,770 $ 809,389 $ 916, 531 $ 667,682 $ 31,428
========== ========== ============ =========== ===========
Cash Generated (Used By):
Operations (57,206) (2,716) 278,728 276,376 (2,478)
Joint Ventures 1,500,023 1,044,891 766,212 203,543 --
---------- ---------- ------------ ----------- -----------
$1,442,817 $1,042,175 $ 1,044,940 $ 479,919 $ (2,478)
Less Cash Distributions to Investors:
Operating Cash Flow 1,442,817 1,042,175 1,044,940 245,800 --
Return of Capital 9,986 125,314 -- -- --
Undistributed Cash Flow from
Prior Year Operations -- 18,027 $ 216,092 -- --
---------- ---------- ------------ ----------- -----------
Cash Generated (Deficiency)
after Cash Distributions $ (9,986) $ (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
---------- ---------- ------------ ----------- -----------
$ (9,986) $ (143,341) $ (216,092) $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 310,759 234,924 10,721,376 5,912,454 3,856,239
---------- ---------- ------------ ----------- -----------
Cash Generated (Deficiency) after Cash Distributions
and Special Items $ (320,745) $ (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 78 59 57 43 9
- Operations Class B Units (247) (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 75 56 56 41 1
- Operations Class B Units (150) (99) (51) (22) --
Capital Gain (Loss) -- -- -- -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 67 56 57 14 --
- Return of Capital Class A Units -- -- 4 -- --
- Return of Capital Class B Units -- -- -- -- --
Source (on Cash Basis)
- Operations Class A Units 67 50 61 14 --
- Return of Capital Class A Units 0 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, $607,214 in equity in earnings of joint ventures and $68,568
from investment of reserve funds in 1996, and $856,710 in equity in earnings
of joint ventures and $28,092 from investment of reserve funds in 1997. At
December 31, 1997, 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, $264,866 for 1995,
$648,478 for 1996, and $896,753 for 1997.
(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; $1,234,717 to Class A Limited
Partners, $(645,664) to Class B Limited Partners and $0 to the General
Partners for 1996; and $1,677,826 to Class A Limited Partners, $(882,172) to
Class B Limited Partners and $0 to the General Partners for 1997.
A-6
<PAGE>
TABLE III (UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND VII, L.P.
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
------------ ----------- -------------- ------------- ----
<S> <C> <C> <C> <C> <C>
Gross Revenues(1) $ 816,237 $ 543,291 $ 925,246 $ 286,371 N/A
Profit on Sale of Properties -- --
Less: Operating Expenses(2) 76,838 84,265 114,953 78,420
Depreciation and Amortization(3) 6,250 6,250 6,250 4,688
---------- --------- ------------ -----------
Net Income GAAP Basis(4) $ 733,149 $ 452,776 $ 804,043 $ 203,263
========== ========= ============ ===========
Taxable Income: Operations $1,008,368 $ 657,443 $ 812,402 $ 195,067
========== ========= ============ ===========
Cash Generated (Used By):
Operations (43,250) 20,883 431,728 47,595
Joint Ventures 1,420,126 760,628 424,304 14,243
---------- --------- ------------ -----------
$1,376,876 $ 781,511 $ 856,032 $ 61,838
Less Cash Distributions to Investors:
Operating Cash Flow 1,376,876 781,511 856,032 52,195
Return of Capital 2,709 10,805 22,064 --
Undistributed Cash Flow from Prior Year Operations -- -- 9,643 --
---------- --------- ------------ -----------
Cash Generated (Deficiency) after Cash Distributions $ (2,709) $ (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
---------- --------- ------------ -----------
$ (2,709) $ (10,805) $ 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 169,172 736,960 14,971,002 4,477,765
---------- --------- ------------ -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $ (171,881) $(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 86 62 57 29
- Operations Class B Units (168) (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 78 55 55 28
- Operations Class B Units (111) (58) (16) 17
Capital Gain (Loss) -- -- -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 805 43 52 7
- Return of Capital Class A Units -- -- -- --
- Return of Capital Class B Units -- -- -- --
Source (on Cash Basis)
- Operations Class A Units 70 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 54 29 30 4
- Return of Capital Class A Units 16 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, $403,325 in equity in earnings of joint
ventures and $521,921 from investment of reserve funds in 1995, $457,144 in
equity in earnings of joint ventures and $86,147 from investment of reserve
funds in 1996, and $785,398 in equity in earnings of joint ventures and
$30,839 from investment of reserve funds in 1997. At December 31, 1997, the
leasing status was 92% 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, $605,247 for 1996, and
$877,869 for 1997.
(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; $1,062,605
to Class A Limited Partners, $(609,829) to Class B Limited Partners and $0
to the General Partners for 1996; and $1,615,965 to class A Limited
Partners, $(882,816) to Class B Limited Partners and $0 to the General
Partners for 1997.
(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, 1997, the aggregate amount of such
priority distributions payable to Class B Limited Partners totalled
$972,030.
A-7
<PAGE>
TABLE III (UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND VIII, L.P.
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
-------------- ------------- ------------ ---- ----
<S> <C> <C> <C> <C> <C>
Gross Revenues(1) $ 1,204,018 $ 1,057,694 $ 402,428 N/A N/A
Profit on Sale of Properties --
Less: Operating Expenses(2) 95,201 114,854 122,264
Depreciation and Amortization(3) 6,250 6,250 6,250
------------ ----------- -----------
Net Income GAAP Basis(4) $ 1,102,567 $ 936,590 273,914
============ =========== ===========
Taxable Income: Operations $ 1,213,524 $ 1,001,974 404,348
============ =========== ===========
Cash Generated (Used By):
Operations 7,909 623,268 204,790
Joint Ventures 1,229,282 279,984 20,287
------------ ----------- -----------
$ 1,237,191 $ 903,252 225,077
Less Cash Distributions to Investors:
Operating Cash Flow 1,237,191 903,252 --
Return of Capital 183,315 2,443 --
Undistributed Cash Flow from Prior Year Operations -- 225,077 --
------------ ----------- -----------
Cash Generated (Deficiency) after Cash Distributions $ (183,315) $ (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
------------ ----------- -----------
$ (183,315) $ 1,670,627 30,369,619
Use of Funds:
Sales Commissions and Offering Expenses -- 464,760 4,310,028
Return of Limited Partner's Investment 8,600 -- --
Property Acquisitions and Deferred Project Costs 10,675,811 7,931,566 6,618,273
------------ ----------- -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $(10,867,726) $(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 73 46 28
- Operations Class B Units (150) (47) (3)
Capital Gain (Loss)
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 65 46 17
- Operations Class B Units (95) (33) (3)
Capital Gain (Loss) --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 54 43 --
- Return of Capital Class A Units -- -- --
- Return of Capital Class B Units -- -- --
Source (on Cash Basis)
- Operations Class A Units 47 43 --
- Return of Capital Class A Units 7 0 --
- Operations Class B Units -- -- --
Source (on a Priority Distribution Basis)(5)
- Investment Income Class A Units 42 33 --
- Return of Capital Class A Units 12 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, $241,819 in equity in earnings of joint
ventures and $815,875 from investment of reserve funds in 1996, and
$1,034,907 in equity in earnings of joint ventures and $169,111 from
investment of reserve funds in 1997. At December 31, 1997, the leasing
status was 96% 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, $265,259 for 1996, and $841,666 for 1997.
(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; $1,207,540 to Class A Limited Partners, $(270,653) to
Class B Limited Partners and $(297) to the General Partners for 1996; and
$1,947,536 to Class A Limited Partners, $(844,969) to Class B Limited
Partners and $0 to the General Partners for 1997.
(footnotes continued on next page)
A-8
<PAGE>
(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, 1997, the aggregate amount of such
priority distributions payable to Class B Limited Partners totalled
$551,455.
A-9
<PAGE>
TABLE III (UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND IX, L.P.
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
-------------- ------------- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Gross Revenues(1) $ 1,199,300 $ 406,891 N/A N/A N/A
Profit on Sale of Properties -- --
Less: Operating Expenses(2) 101,284 101,885
Depreciation and Amortization(3) 6,250 6,250
------------ -----------
Net Income GAAP Basis(4) $ 1,091,766 $ 298,756
============ ===========
Taxable Income: Operations $ 1,083,824 $ 304,552
============ ===========
Cash Generated (Used By):
Operations $ 501,390 $ 151,150
Joint Ventures 527,390 --
------------ -----------
$ 1,028,780 $ 151,150
Less Cash Distributions to Investors:
Operating Cash Flow $ 1,028,780 149,425
Return of Capital $ 41,834 $ --
Undistributed Cash Flow From Prior Year Operations 1,725 --
------------ -----------
Cash Generated (Deficiency) after Cash Distributions $ (43,559) $ 1,725
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions -- --
Increase in Limited Partner Contributions -- 35,000,000
------------ -----------
$ (43,559) $35,001,725
Use of Funds:
Sales Commissions and Offering Expenses 323,039 4,900,321
Return of Original Limited Partner's Investment 100 --
Property Acquisitions and Deferred Project Costs 13,427,158 6,544,019
------------ -----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $(13,793,856) $23,557,385
============ ===========
Net Income and Distributions Data per $1,000 Invested:
Net Income on GAAP Basis:
Ordinary Income (Loss)
- Operations Class A Units 53 28
- Operations Class B Units (77) (11)
Capital Gain (Loss) -- --
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 46 26
- Operations Class B Units (47) (48)
Capital Gain (Loss) -- --
Cash Distributions to Investors:
Source (on GAAP Basis)
- Investment Income Class A Units 36 13
- Return of Capital Class A Units -- --
- Return of Capital Class B Units -- --
Source (on Cash Basis)
- Operations Class A Units 35 13
- Return of Capital Class A Units 1 --
- Operations Class B Units -- --
Source (on a Priority Distribution Basis)(5)
- Investment Income Class A Units 29 10
- Return of Capital Class A Units 7 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, and $593,914 in equity in earnings of
joint ventures and $605,386 from investment of reserve funds in 1997. At
December 31, 1997, 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 $25,286 for 1996, and $469,126 for 1997.
(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; and $1,564,778 to Class A Limited Partners, $(472,806) to
Class B Limited Partners and $(206) to the General Partners for 1997.
(footnotes continued on following page)
A-10
<PAGE>
(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, 1997, the aggregate amount of such
priority distributions payable to Class B Limited Partners totalled
$236,379.
A-11
<PAGE>
TABLE III (UNAUDITED)
OPERATING RESULTS OF PRIOR PROGRAMS
WELLS REAL ESTATE FUND X, L.P.
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
------------- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Gross Revenues(1) $ 372,507 N/A N/A N/A N/A
Profit on Sale of Properties --
Less: Operating Expenses(2) 88,232
Depreciation and Amortization(3) 6,250
-----------
Net Income GAAP Basis(4) $ 278,025
===========
Taxable Income: Operations $ 382,543
===========
Cash Generated (Used By):
Operations $ 200,668
Joint Ventures
-----------
$ 200,668
Less Cash Distributions to Investors:
Operating Cash Flow --
Return of Capital --
Undistributed Cash Flow From Prior Year Operations --
-----------
Cash Generated (Deficiency) after Cash Distributions $ 200,668
Special Items (not including sales and financing):
Source of Funds:
General Partner Contributions --
Increase in Limited Partner Contributions 27,128,912
-----------
$27,329,580
Use of Funds:
Sales Commissions and Offering Expenses 3,737,363
Return of Original Limited Partner's Investment 100
Property Acquisitions and Deferred Project Costs 5,188,485
-----------
Cash Generated (Deficiency) after Cash Distributions and
Special Items $18,403,632
===========
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 (9)
Capital Gain (Loss) --
Tax and Distributions Data per $1,000 Invested:
Federal Income Tax Results:
Ordinary Income (Loss)
- Operations Class A Units 35
- Operations Class B Units 0
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 __
- Return of Capital Class A Units --
- Operations Class B Units --
Source (on a Priority Distribution Basis)(5)
- Investment Income Class A Units __
- Return of Capital Class A Units __
- 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 $(10,035) in equity in earnings of joint ventures and $382,542 from
investment of reserve funds in 1997. At December 31, 1997, the leasing
status was 67% 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 $18,675 for 1997.
(4) In accordance with the partnership agreement, net income or loss,
depreciation and amortization are allocated $302,862 to Class A Limited
Partners, $(24,675) to Class B Limited Partners and $(162) to the General
Partners for 1997.
(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, 1997, the aggregate amount of such
priority distributions payable to Class B Limited Partners totalled $0.
A-12
<PAGE>
EXHIBIT B
FORM OF AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
WELLS REAL ESTATE FUND XII/XIII, L.P.
WELLS REAL ESTATE FUND XII/XIII, L.P.
<PAGE>
TABLE OF CONTENTS TO PARTNERSHIP AGREEMENT
Article 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-20
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-32
XV BOOKS, REPORTS, FISCAL AND TAX MATTERS................... B-32
XVI RIGHTS AND LIABILITIES OF THE LIMITED PARTNERS........... B-36
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-41
XX DISSOLUTION AND TERMINATION OF THE PARTNERSHIP........... B-43
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 XII/XIII, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is made and entered
into effective as of the _____ day of _______________, 1999, 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 September 15, 1998, 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. ' 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 September 15,
1998.
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.
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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.
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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
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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.
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3.49 "PRIOR WELLS PUBLIC PROGRAMS" shall mean public real estate limited
partnerships or other publicly registered programs or entities previously or
currently 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)
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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.
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,
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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, 2030, 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
---------------------------------
the 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
repurchase transaction (which shall be not less than 60 nor more than 75
calendar days following the receipt of the written
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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 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.
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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.
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
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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 six 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 six 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;
(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
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(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 six 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;
(e) Then, to the General Partners until the General Partners have
received distributions totalling 100% of their Capital Contributions;
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(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 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.
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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:
(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;
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(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
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
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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, if and only in the event that Limited Partners have received
any Excess Limited Partner Distributions, as defined in Section 9.2(f) hereof,
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 such Excess
Limited Partner Distributions 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 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
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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.
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
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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 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
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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 Partnership engages in a
business other than that of investing, reinvesting, owning, holding or trading
in securities, and which are not investment companies.
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<PAGE>
(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 30% 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 or for specified or unspecified tenant
improvements or leasing commissions relating to Partnership Properties, 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 by the General Partners for the maintenance of
reasonable reserves. In addition, one year after the termination of the
Offering, the
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<PAGE>
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 in that the Partnership or an Affiliate
of the Partnership possesses the power to direct or to cause the direction of
the management and policies of any such partnership or joint venture; (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 or
joint venture with an Affiliate of the General Partners unless such property is
owned or leased by a joint venture or general partnership with a publicly
registered Affiliate, 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) the
compensation payable to the General Partners and their Affiliates is
substantially identical in each program; (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.
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.
(o) The Partnership shall not purchase a Partnership Property if (i)
acquisition price of such Partnership Property is not a fixed amount the
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.
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<PAGE>
(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
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.
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(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 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
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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' 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.
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(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 3% 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 3% 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 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
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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 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
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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 3% 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 Advisory Fees paid to the
General Partners or their Affiliates, exceed 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. The limitation imposed hereby will be complied with at any given time
on an ongoing basis. Within
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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) 4.5% of Gross Revenues of the properties
managed. The foregoing limitation will include all leasing, re-leasing and
leasing related services. In the case of industrial and commercial properties
which are leased on a long-term (ten or more years) net lease basis, the maximum
property management fee from such leases shall be 1% of Gross Revenues, except
for a one time initial leasing fee of 3% of 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 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
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<PAGE>
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; and provided, further, that the General
Partners and their Affiliates may receive such real estate commission only if
they provide substantial services in connection with the sales effort. 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 in no event shall the
Partnership purchase property from the General Partners or their Affiliates if
such entity has held title to such property for more than 12 months prior to the
commencement of the Offering, 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 or their Affiliates will accrue to the
Partnership and such profits shall be deemed to be included as Partnership Cash
Flow for the purpose of computing distributions of Net Cash From Operations
under Article IX hereof; 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.
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<PAGE>
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) 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
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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.
(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
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<PAGE>
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.
(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.
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<PAGE>
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 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.
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<PAGE>
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.
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.
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<PAGE>
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 stock of Wells Real Estate Funds, Inc. 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
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.
B-37
<PAGE>
(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.
(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.
B-38
<PAGE>
(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) During the initial six years following the termination of the
Offering, Limited Partners purchasing Units pursuant to the Deferred Commission
Option, as defined in the Prospectus, will only be permitted to transfer or
assign Class A Status Units in the event that they retain and maintain at all
times at least such minimum number of Class A Status Units during such initial
six year period, in the discretion of the General Partners, to generate
sufficient 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.
(i) 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.
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<PAGE>
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 instrument or instruments as the General Partners may deem necessary
or desirable to effectuate such admission, including but not limited to, the
Assignee's agreement 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 (c) 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.
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<PAGE>
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 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;
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<PAGE>
(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;
(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.
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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 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
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<PAGE>
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
(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 with respect to the last remaining General Partner, the
Limited Partners shall have a right prior to the effective date of the
occurrence of any such event to elect to continue the business
B-44
<PAGE>
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 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.
B-45
<PAGE>
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.
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.
B-46
<PAGE>
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
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 by 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 the Limited Partner to whom it is authorized to be given as of
the time sent for delivery or as of the time of such mailing; and if to a
General Partner or the Partnership, 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.
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; provided,
however, that causes of action for violations of federal or state securities
laws shall not be governed by this Section 22.6.
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.
(THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK)
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<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
(As General Partner)
Attest:
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 XII/XIII, 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 XII/XIII, 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 "NationsBank, N.A., as
Escrow 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
_______________, 1999 (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, MAINE AND NEBRASKA 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 States of Massachusetts, Maine and Nebraska 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 XII/XIII, L.P. SUBSCRIPTION AGREEMENT
- --------------------------------------------------------------------------------
INVESTOR PLEASE FOLLOW THESE INSTRUCTIONS CAREFULLY.
INSTRUCTIONS FAILURE TO DO SO MAY RESULT IN THE 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 "NATIONSBANK, N.A., AS ESCROW
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., Wells Real Estate Fund X,
L.P., Wells Real Estate Fund XI, L.P. or
Wells Real Estate Investment Trust, Inc. may
invest as little as $25 (2.5 units) except
for residents of Maine, Minnesota, Nebraska
or Washington. Units may be purchased only
by persons meeting the standards set forth
under the Section of the Prospectus entitled
"SUITABILITY STANDARDS." Please indicate the
state in which the sale was made.
- --------------------------------------------------------------------------------
2. CLASS STATUS OF UNITS Please check the appropriate box to identify
the status of units (Class A or 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 AND ADDRESS Please enter the exact name in which the
Units are to be held. For joint tenants 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 ADDRESS Complete this Section only if the investor's
name and address is different from the
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 SIGNATURES Please separately initial each
representation made by the investor where
indicated. 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.
- --------------------------------------------------------------------------------
C-5
<PAGE>
- --------------------------------------------------------------------------------
7. ADDITIONAL INVESTMENTS Please check if you plan to make one or more
additional investments in the 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
"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 7% 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 7% 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 complete
all BROKER-DEALER information contained in
Section 9 including suitability
certification. SIGNATURE PAGE MUST BE SIGNED
BY AN AUTHORIZED REPRESENTATIVE.
- --------------------------------------------------------------------------------
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>
<TABLE>
<CAPTION>
<S> <C>
---------------------------------------------------
SEE PRECEDING PAGE Special Instructions:
FOR INSTRUCTIONS
---------------------------------------------------
WELLS REAL ESTATE FUND ___, L.P.
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
(1)__INVESTMENT_____________________________________________________________________________________________________________
------------------------------------------- MAKE INVESTMENT CHECK PAYABLE TO:
-------------- ------------------- NationsBank, N.A.,
# of Units Total $ Invested as Escrow Agent
(# Units x $10 = $ Invested) _________________________________________
[_] Initial Investment (Minimum $1,000)
Minimum purchase $1,000 or 100 units [_] Additional Investment (Minimum $25)
____________________________________________ 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 (Allocated certain tax deductions but no
of cash flow from operations) distributions of cash flow from operations)
(3)__TYPE OF OWNERSHIP______________________________________________________________________________________________________
[_] 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 ____________ under
For the Benefit of ______________ the Uniform Gift to Minors Act or the Uniform Transfers
[_] Partnership (15) to Minors Act 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 __________________
Name 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>
<PAGE>
<TABLE>
<CAPTION>
(6)__SUBSCRIBER SIGNATURES__________________________________________________________________________________________________
<S> <C> <C>
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 "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 written
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
NationsBank, N.A., as Escrow Agent to:
WELLS INVESTMENT SECURITIES, INC.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
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>
<PAGE>
ALPHABETICAL INDEX
Page
----
Additional Information................................................100
Compensation of the General Partners and Affiliates................... 29
Conflicts of Interest................................................. 32
Description of the Units.............................................. 23
Distributions and Allocations......................................... 88
Estimated Use of Proceeds............................................. 27
Experts...............................................................100
Federal Income Tax Consequences....................................... 63
Fiduciary Duty of the General Partners................................ 35
Glossary..............................................................101
Investment by Tax-Exempt Entities and ERISA Considerations............ 59
Investment Objectives and Criteria.................................... 49
Legal Opinions........................................................100
Management............................................................ 45
Management's Discussion and Analysis of Financial
Condition and Results of Operations................................... 58
Plan of Distribution.................................................. 95
Prior Performance Summary............................................. 37
Real Property Investments............................................. 57
Reports to Investors.................................................. 93
Risk Factors.......................................................... 7
Suitability Standards................................................. 19
Summary of the Offering............................................... 1
Summary of Partnership Agreement...................................... 80
Supplemental Sales Material...........................................100
Until _____________, 1999 (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.
-------------------------
Neither the Partnership nor the Dealer Manager have authorized any person to
make a statement that differs from what is contained in the Prospectus. If any
person does make a statement that differs from what is in this Prospectus, you
should not rely on it. This Prospectus is not an offer to sell, nor is it
seeking an offer to buy, these securities in any state where the offer or sale
is not permitted. The information contained in this Prospectus is complete and
accurate as of the date below, but the information may change after that date.
-------------------------
WELLS REAL ESTATE FUND XII, L.P.
AND
WELLS REAL ESTATE FUND XIII, L.P.
Minimum Offering of $1,250,000
FOR EACH PARTNERSHIP
--------------------------
PROSPECTUS
--------------------------
WELLS INVESTMENT
SECURITIES, INC.
_______________, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 31 Other Expenses of Issuance and Distribution
-------------------------------------------
Following is an itemized statement of the expenses of the offering and
distribution of the securities to be registered, other than
underwriting commissions:
Amount
----------
SEC Registration Fee $ 20,650
NASD Filing Fee 7,500
Printing Expenses *
Legal Fees and Expenses *
Accounting Fees and Expenses *
Blue Sky Fees and Expenses *
Miscellaneous *
----------
Total $ *
==========
* To be filed by Amendment.
Item 32 Sales to Special Parties
------------------------
Not Applicable
Item 33 Recent Sales of Unregistered Securities
---------------------------------------
Not Applicable
Item 34 Indemnification of the General Partners
---------------------------------------
The Partnership shall indemnify and hold harmless each General Partner
from any loss, liability or damage incurred or suffered by any such
General Partner by reason of any act performed or omitted to be
performed by such General Partner in connection with the business of
the Partnership, including attorneys' fees incurred by such General
Partner in connection with the defense of any claim or action based on
any such act or omission, which attorneys' fees may be paid as
incurred, except to the extent indemnification is prohibited by law;
provided however, that any such indemnification shall only be from the
assets of the Partnership and not from the limited partners. Any
indemnification required herein to be made by the Partnership shall be
made promptly following the fixing of the loss, liability or damage
incurred or suffered by a final judgment of any court, settlement,
contract or otherwise. A General Partner (a) shall be entitled to the
foregoing indemnification, and (b) shall not be liable to the
Partnership for any loss, liability or damage suffered or incurred by
the Partnership, directly or indirectly, in connection with the
activities of such General Partner; provided that no General Partner
whose action or omission to act caused the loss, liability or damage
incurred or suffered may receive indemnification or avoid liability
unless such General Partner determined in good faith that such course
of conduct was in the best interest of the Partnership, and such
course of conduct did not constitute (i) fraud, negligence, misconduct
or knowing violation of law, (ii) a breach of fiduciary duty to the
Partnership or any partner, or (iii) a breach of the Partnership
Agreement. The Partnership shall not pay for any insurance covering
liability of a General Partner for actions or omissions for which
indemnification is not permitted under the Partnership Agreement.
Nothing contained in the Partnership Agreement shall constitute a
waiver by any limited partner of any right which he may have against
any party under federal or state securities laws.
II-1
<PAGE>
Indemnification of the General Partners will not be allowed for any
liability, loss or damage incurred by them arising under federal and
state securities laws unless (i) there has been a successful
adjudication of the merits of each count involving alleged securities
law violations as to the General Partner seeking indemnification, or
(ii) such claims have been dismissed with prejudice on the merits by a
court of competent jurisdiction as to the General Partner seeking
indemnification, or (iii) a court of competent jurisdiction approves a
settlement of the claims against a General Partner seeking
indemnification and finds that indemnification of the settlement and
related costs should be made. Prior to seeking a court approval for
indemnification, the General Partner shall apprise the court of the
position of the Securities and Exchange Commission, the California
Commissioner of the Development 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 regarding indemnification for
violations of securities laws.
Item 35 Treatment of Proceeds from Stock Being Registered
-------------------------------------------------
Not Applicable
Item 36 Financial Statements and Exhibits.
---------------------------------
(a) Financial Statements:
--------------------
The following financial statements of Wells Real Estate Fund XII,
L.P. are included in the Prospectus:
Audited Balance Sheet
(1) Report of Independent Public Accountants,
(2) Balance Sheet as of September 30, 1998, and
(3) Notes to Balance Sheet.
The following financial statements of Wells Real Estate Fund
XIII, L.P. are included in the Prospectus:
Audited Balance Sheet
(1) Report of Independent Public Accountants,
(2) Balance Sheet as of September 30, 1998, and
(3) Notes to Balance Sheet.
The following financial statements of Wells Partners, L.P. are
included in the Prospectus:
Audited Financial Statements
(1) Report of Independent Public Accountants,
(2) Balance Sheets as of December 31, 1997 and 1996,
(3) Statements of Loss for the years ended December 31,
1997 and 1996,
(4) Statements of Partners' Capital for the years ended
December 31, 1997 and 1996,
(5) Statements of Cash Flows for the years ended December
31, 1997 and 1996,
(6) Notes to Financial Statements, and
(7) Schedule I - Market Value of Investments in
Partnerships.
II-2
<PAGE>
Unaudited Financial Statements
(1) Balance Sheets as of September 30, 1998 and December
31, 1997,
(2) Statements of Operations for the nine months ended
September 30, 1998 and 1997,
(3) Statement of Partners' Capital for the nine months
ended September 30, 1998 and the year ended December
31, 1997,
(4) Statements of Cash Flows for the nine months ended
September 30, 1998 and 1997, and
(5) Condensed Notes to Financial Statements.
The following financial statements of Wells Capital, Inc. and
Subsidiaries are included in the Prospectus:
Audited Financial Statements
(1) Report of Independent Public Accountants,
(2) Consolidated Balance Sheets as of December 31, 1997 and
1996,
(3) Consolidated Statements of (Loss) Income for the years
ended December 31, 1997 and 1996,
(4) Consolidated Statements of Stockholder's Equity for the
years ended December 31, 1997 and 1996,
(5) Consolidated Statements of Cash Flows for the years
ended December 31, 1997 and 1996, and
(6) Notes to Consolidated Financial Statements.
Unaudited Financial Statements
(1) Balance Sheets as of September 30, 1998 and December
31, 1997,
(2) Statements of Operations for the nine months ended
September 30, 1998 and 1997,
(3) Statement of Stockholder's Equity for the nine months
ended September 30, 1998 and the year ended December
31, 1997,
(4) Statements of Cash Flow for the nine months ended
September 30, 1998 and 1997, and
(5) Condensed Notes to Financial Statements.
(b) Exhibits (See Exhibit Index):
----------------------------
Exhibit Description
No.
- -------- -----------
1 Form of Dealer Manager Distribution Agreement between Registrant and
Wells Investment Securities, Inc.
3.1 Form of Amended and Restated Agreement of Limited Partnership of Wells
Real Estate Fund XII/XIII, L.P. (included as Exhibit B to Prospectus)
3.2 Certificate of Limited Partnership of Wells Real Estate Fund XII, L.P.
dated September 15, 1998
3.3 Certificate of Limited Partnership of Wells Real Estate Fund XIII,
L.P. dated September 15, 1998
4 Form of Subscription Agreement and Subscription Agreement Signature
Page (included as Exhibit C to Prospectus)
5.1 Opinion of Holland & Knight LLP regarding the legality of the
securities of Wells Real Estate Fund XII, L.P. to be offered
II-3
<PAGE>
5.2 Opinion of Holland & Knight LLP regarding the legality of the
securities of Wells Real Estate Fund XIII, L.P. to be offered
8 Opinion of Holland & Knight LLP regarding tax matters
10.1 Form of Escrow Agreement between Registrant and NationsBank, N.A.
10.2 Form of Leasing and Tenant Coordinating Agreement between Registrant
and Wells Management Company, Inc.
10.3 Form of Management Agreement between Registrant and Wells Management
Company, Inc.
23.1 Consent of Holland & Knight LLP (included in Exhibits 5.1, 5.2 and 8)
23.2 Consent of Arthur Andersen LLP
Item 37 Undertakings
------------
(a) The Registrant undertakes to file, during any period in which
offers or sales are being made, a post-effective amendment to this
Registration Statement (i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933 (the "Act"); (ii) to
reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement, including (but not limited
to) any addition or deletion of a managing underwriter.
(b) The Registrant undertakes (i) that, for the purpose of
determining any liability under the Act, each such post-effective
amendment may be deemed to be a new Registration Statement relating to
the securities offered therein and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof, (ii) that all post-effective amendments will comply with the
applicable forms, rules and regulations of the Commission in effect at
the time such post-effective amendments are filed, and (iii) to remove
from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of
the offering.
(c) The Registrant undertakes to send to each limited partner, at
least on an annual basis, a detailed statement of any transactions
with the General Partners or their affiliates, and of fees,
commissions, compensation and other benefits paid, or accrued to the
General Partners or their affiliates, for the fiscal year completed,
showing the amount paid or accrued to each recipient and the services
performed.
(d) To file a sticker supplement pursuant to Rule 424(c) under
the Act during the distribution period describing each property not
identified in the prospectus at such time as there arises a reasonable
probability that such property will be acquired and to consolidate all
such stickers into a post-effective amendment filed at least once
every three months with the information contained in such amendment
provided simultaneously to the existing limited partners; each sticker
supplement should disclose all compensation and fees received by the
General Partners and their affiliates in connection with any such
acquisition; the post-effective amendment shall include audited
financial statements meeting the requirements of Rule 3-14 of
Regulation S-X only for properties acquired during the distribution
period.
II-4
<PAGE>
(e) To file, after the end of the distribution period, a current
report on Form 8-K containing the financial statements and any
additional information required by Rule 3-14 of Regulation S-X, to
reflect each commitment (i.e., the signing of a binding purchase
agreement) made after the end of the distribution period involving the
use of 10% or more (on a cumulative basis) of the net proceeds of the
offering and to provide the information contained in such report to
the limited partners at least once each quarter after the distribution
period of the offering has ended.
(f) The Registrant undertakes to file the financial statements as
required by Form 10-K for the first full fiscal year of operations and
to provide each limited partner the financial statements required by
Form 10-K for such year.
(g) The Registrant undertakes to distribute to each limited
partner, within sixty (60) days after the close of each quarterly
period, a copy of each report on Form 10-Q which is required to be
filed with the Commission or a quarterly report containing at least as
much information as the report on Form 10-Q.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(i) The Registrant undertakes that the prospectus will be
supplemented at the close of the offering of Wells Real Estate Fund
XII, L.P. to state the number of participants purchasing units, the
amount of units sold, the cumulative amount of units sold under this
Registration Statement and the amount of interests to be offered in
Wells Real Estate Fund XIII, L.P.
(j) Wells Real Estate Fund XIII, L.P. undertakes that if at the
commencement of the offering of the units of Wells Real Estate Fund
XIII, L.P. (which will not take place until the completion of the
offering of Wells Real Estate Fund XII, L.P. and the filing of the
supplement contemplated by the preceding undertaking), Wells Real
Estate Fund XIII, L.P. will not commence until after a post-effective
amendment to the Registration Statement has been filed and declared
effective. Any such post-effective amendment shall contain such
information as would be required in an original registration statement
with respect to the property being acquired (including audited
financial statements of the property to be acquired meeting the
requirements of Rule 3-14 of Regulation S-X).
II-5
<PAGE>
TABLE VI
ACQUISITIONS OF PROPERTIES BY PROGRAMS
The information contained on the following pages relates to acquisitions of
properties within the past three (3) years by six (6) prior programs with which
the General Partners and their affiliates have been affiliated and which have
substantially similar investment objectives to the Partnership. This table
provides the potential investor with information regarding the general nature
and location of the properties and the manner in which the properties were
acquired. None of the information in Table VI has been audited.
II-6
<PAGE>
TABLE VI
--------
Wells Funds VII and VIII
------------------------
Name of property CH2M Hill Building
Location of property 3011 S.W. Williston Road
Gainesville, Alachua County, Florida
Type of property Two-story office building
Size of parcel 5 acres
Gross leasable space 62,000 sq. feet
Date of commencement of Fund VII - April 26, 1994
operations/1/ Fund VIII - February 24, 1995
Date of purchase January 20, 1995
Mortgage financing at
date of purchase N/A
Cash down payment $ 222,627
Contract purchase price
plus acquisition fee $4,668,308
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/2/ $ 648,744
Total Acquisition Cost $5,317,052
- -----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Includes improvements made after acquisitions through September 30, 1998.
II-7
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds VI, VII and VIII
----------------------------
Name of property BellSouth Building
Location of property 10375 Centurion Parkway North
Jacksonville, Florida
Type of property Four-story office building
Size of parcel 5.55 acres
Gross leasable space 97,075 sq. feet
Date of commencement of Fund VI - May 17, 1993
operations/1/ Fund VII - April 26, 1994
Fund VIII - February 24, 1995
Date of purchase April 25, 1995
Mortgage financing at
date of purchase N/A
Cash down payment $15,000
Contract purchase price
plus acquisition fee $1,245,049
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/2/ $7,359,984
Total Acquisition Cost $8,605,033
- -----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Includes improvements made after acquisitions through September 30, 1998.
II-8
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds VI, VII and VIII
----------------------------
Name of property Tanglewood Commons Shopping Center
Location of property 45 Highway 158 & State Road 1101 (Harper Road)
Clemmons, Forsyth County, North Carolina
Type of property Retail shopping center
Size of parcel 14.683 acres
Gross leasable space 81,000 sq. feet
Date of commencement of Fund VI - May 17, 1993
operations/1/ Fund VII - April 26, 1994
Fund VIII - February 24, 1995
Date of purchase May 31, 1995
Mortgage financing at
date of purchase N/A
Cash down payment $50,000
Contract purchase price
plus acquisition fee $2,954,724
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/2/ $5,745,739
Total Acquisition Cost $8,700,463
- -----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Includes improvements made after acquisitions through September 30, 1998.
II-9
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds VI and VII
----------------------
Name of property Stockbridge Village I Expansion
Location of property 3576 Highway 138
Stockbridge, Clayton County, Georgia
Type of property Multi-tenant shopping center
Size of parcel 3.38 acres
Gross leasable space 29,200 sq. feet
Date of commencement of Fund VI - May 17, 1993
operations/1/ Fund VII - April 26, 1994
Date of purchase June 7, 1995
Mortgage financing at
date of purchase N/A
Cash down payment $675,200
Contract purchase price
plus acquisition fee $718,489
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/2/ $2,342,483
Total Acquisition Cost $3,060,972
- -----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Includes improvements made after acquisitions through September 30, 1998.
II-10
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds VIII and IX
-----------------------
Name of property Cellular One Building
Location of property The American Center, Interstate 90/94
and U.S. Highway 151
Madison, Dade County, Wisconsin
Type of property Four-story office building
Size of parcel 7.09 acres
Gross leasable space 96,750 sq. feet
Date of commencement of Fund VIII - February 24, 1995
operations/1/ Fund IX - February 12, 1996
Date of purchase June 19, 1996
Mortgage financing at
date of purchase N/A
Cash down payment $25,000
Contract purchase price
plus acquisition fee $949,887
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/2/ $9,936,117
Total Acquisition Cost $10,886,004
- -----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Includes improvements made after acquisitions through September 30, 1998.
II-11
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds VIII and IX
-----------------------
Name of property TCI Building
Location of property 1565 Chenault Street,
Farmers Branch,
Dallas County, Texas
Type of property One-story office building
Size of parcel 4.864 acres
Gross leasable space 40,000 sq. feet
Date of commencement of Fund VIII - February 24, 1995
operations/1/ Fund IX - February 12, 1996
Date of purchase October 10, 1996
Mortgage financing at
date of purchase N/A
Cash down payment $4,473,060
Contract purchase price
plus acquisition fee $4,473,060
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/2/ $193,806
Total Acquisition Cost $4,666,866
- ----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Includes improvements made after acquisitions through September 30, 1998.
II-12
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds X, XI and REIT
--------------------------
Name of property ABB Building
Location of property 1409 Centerpoint Boulevard,
Knoxville, Knox County, Tennessee
Type of property Three-story office building
Size of parcel 5.62 acres
Gross leasable space 83,885 sq. feet
Date of commencement of Fund IX - February 12, 1996
operations/1/ Fund X - February 4, 1997
Fund XI - March 3, 1998
REIT - June 5, 1998
Date of purchase/2/ December 31, 1996
Mortgage financing at
date of purchase N/A
Cash down payment $671,248
Contract purchase price
plus acquisition fee $671,248
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/3/ $7,208,631
Total Acquisition Cost $7,879,879
- -----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Wells Fund IX originally purchased the ABB Building on December 31, 1996.
March 26, 1997, Wells Fund IX contributed its interest in the ABB Building
to the Fund IX-X Joint Venture and on June 11, 1998, Wells Fund XI and
Wells OP (the operating partnership for the Wells REIT) were admitted to
the Fund IX-X Joint Venture as joint venture partners.
/3/ Includes improvements made after acquisitions through September 30, 1998.
II-13
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds VIII and IX
-----------------------
Name of property Matsushita Building
Location of property 15233 Bake Parkway,
Irvine, Orange County, California
Type of property Two-story office building
Size of parcel 4.4 acres
Gross leasable space 65,006 sq. feet
Date of commencement of Fund VIII - February 24, 1995
operations/1/ Fund IX - February 12, 1996
Date of purchase January 10, 1997
Mortgage financing at
date of purchase N/A
Cash down payment $100,000
Contract purchase price
plus acquisition fee $7,211,145
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/2/ $401,588
Total Acquisition Cost $7,612,733
- ----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Includes improvements made after acquisitions through September 30, 1998.
II-14
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds VIII and IX
-----------------------
Name of property Cirrus Logic Building
Location of property 305 Interlocken Parkway,
Broomfield, Boulder County, Colorado
Type of property Two-story office building
Size of parcel 4.26 acres
Gross leasable space 49,460 sq. feet
Date of commencement of Fund VIII - February 24, 1995
operations/1/ Fund IX - February 12, 1996
Date of purchase February 20, 1997
Mortgage financing at
date of purchase N/A
Cash down payment $ 50,000
Contract purchase price
plus acquisition fee $7,064,550
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/2/ $402,096
Total Acquisition Cost $7,466,646
- ----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Includes improvements made after acquisitions through September 30, 1998.
II-15
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds IX, X, XI and REIT
------------------------------
Name of property Ohmeda Building
Location of property Centennial Parkway,
Louisville, Boulder County, Colorado
Type of property Two-story office building
Size of parcel 15 acres
Gross leasable space 106,750 sq. feet
Date of commencement of Fund IX - February 12, 1996
operations/1/ Fund X - February 4, 1997
Fund XI - March 3, 1998
REIT - June 5, 1998
Date of purchase/2/ February 13, 1998
Mortgage financing at
date of purchase N/A
Cash down payment $100,000
Contract purchase price
plus acquisition fee $10,331,644
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/3/ $572,851
Total Acquisition Cost $10,904,495
- ----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ The Fund IX-X Joint Venture acquired the Ohmeda Building on February 13,
1998,and on June 11, 1998, Wells Fund XI and Wells OP (the operating
partnership of the Wells REIT) were admitted to the Fund IX-X Joint
Venture as joint venture partners.
/3/ Includes improvements made after acquisitions through September 30, 1998.
II-16
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds IX, X, XI and REIT
------------------------------
Name of property Interlocken Building
Location of property Highway 36, Broomfield,
Boulder County, Colorado
Type of property Three-story multi-tenant office building
Size of parcel 5.1 acres
Gross leasable space 51,974 sq. feet
Date of commencement of Fund IX - February 12, 1996
operations/1/ Fund X - February 4, 1997
Fund XI - March 3, 1998
REIT - June 5, 1998
Date of purchase/2/ March 20, 1998
Mortgage financing at
date of purchase N/A
Cash down payment $50,000
Contract purchase price
plus acquisition fee $8,293,000
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/3/ $447,766
Total Acquisition Cost $8,740,766
- ----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ The Fund IX-X Joint Venture acquired the Interlocken Building on March 20,
1998, and on June 11, 1998, Wells Fund XI and Wells OP (the operating
partnership of the Wells REIT) were admitted to the Fund IX-X Joint
Venture as joint venture partners.
/3/ Includes improvements made after acquisitions through September 30, 1998.
II-17
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds IX, X, XI and REIT
------------------------------
Name of property Iomega Building
Location of property 2976 South Commerce Way,
Ogden, Weber County, Utah
Type of property One-story warehouse and office building
Size of parcel 8.03 acres
Gross leasable space 100,000 sq. feet
Date of commencement of Fund IX - February 12, 1996
operations/1/ Fund X - February 4, 1997
Fund XI - March 3, 1998
REIT - June 5, 1998
Date of purchase/2/ April 1, 1998
Mortgage financing at
date of purchase N/A
Cash down payment $50,000
Contract purchase price
plus acquisition fee $5,050,425
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/3/ $202,571
Total Acquisition Cost $5,252,996
- ----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Wells Fund X acquired the Iomega Building on April 1, 1998, and on
June 24, 1998, Wells Fund X contributed the Iomega Building to the Fund
IX-X-XI-REIT Joint Venture.
/3/ Includes improvements made after acquisitions through September 30, 1998.
II-18
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds IX, X, XI and REIT
------------------------------
Name of property Lucent Building
Location of property 14400 Hertz Quail Springs Parkway,
Oklahoma City, Oklahoma
Type of property One-story office building
Size of parcel 5.3 acres
Gross leasable space 57,186 sq. feet
Date of commencement of Fund IX - February 12, 1996
operations/1/ Fund X - February 4, 1997
Fund XI - March 3, 1998
REIT - June 5, 1998
Date of purchase June 24, 1998
Mortgage financing at
date of purchase N/A
Cash down payment $1,600,000
Contract purchase price
plus acquisition fee $5,504,276
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/2/ $121,802
Total Acquisition Cost $5,626,078
- ----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ Includes improvements made after acquisitions through September 30, 1998.
II-19
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds X, XI and REIT
--------------------------
Name of property Cort Furniture Building
Location of property 10700 Spencer Avenue,
Fountain Valley, Orange County, California
Type of property One-story office and warehouse building
Size of parcel 3.65 acres
Gross leasable space 52,000 sq. feet
Date of commencement of Fund X - February 4, 1997
operations/1/ Fund XI - March 3, 1998
REIT - June 5, 1998
Date of purchase/2/ July 31, 1998
Mortgage financing at
date of purchase N/A
Cash down payment $100,000
Contract purchase price
plus acquisition fee $6,548,000
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/3/ $303,616
Total Acquisition Cost $6,851,616
- ----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ The Cort Joint Venture (consisting of the Wells REIT and Wells Development
Corporation) acquired the Cort Furniture Building on July 31, 1998, and on
September 1, 1998, the Fund X-XI Joint Venture purchased Wells Development
Corporation's entire equity interest in the Cort Joint Venture.
/3/ Includes improvements made after acquisitions through September 30, 1998.
II-20
<PAGE>
TABLE VI (continued)
--------------------
Wells Funds X, XI and REIT
--------------------------
Name of property Fairchild Building
Location of property 47320 Kato Road,
Fremont, Alameda County, California
Type of property Two-story office and manufacturing building
Size of parcel 3.05 acres
Gross leasable space 58,424 sq. feet
Date of commencement of Fund X - February 4, 1997
operations/1/ Fund XI - March 3, 1998
REIT - June 5, 1998
Date of purchase/2/ July 21, 1998
Mortgage financing at
date of purchase N/A
Cash down payment $100,000
Contract purchase price
plus acquisition fee $8,960,000
Other cash expenditures
expensed N/A
Other cash expenditures
capitalized/3/ $242,825
Total Acquisition Cost $9,202,825
SIGNATURES
- ----------------
/1/ The date minimum offering proceeds were obtained and funds became available
for investment in properties.
/2/ The Fremont Joint Venture (consisting of the Wells REIT and Wells
Development Corporation) acquired the Fairchild Building on July 21, 1998,
and on October 8, 1998, the Fund X-XI Joint Venture purchased Wells
Development Corporation's entire equity interest in the Fremont Joint
Venture.
/3/ Includes improvements made after acquisitions through September 30, 1998.
II-21
<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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Norcross, and State of Georgia, on the 29th day of
October, 1998.
WELLS REAL ESTATE FUND XII, 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 XIII, 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
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following person in the capacity
and on the date indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Leo. F. Wells, III President (Chief Executive Officer), October 29, 1998
- ---------------------------------------- Treasurer and Sole Director of Wells
Leo F. Wells, III Capital, Inc., the sole general partner
of Wells Partners, L.P.
</TABLE>
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Sequential
Exhibit No.
- -----------
<C> <S>
1 Form of Dealer Manager Distribution Agreement between Registrant and Wells Investment Securities, Inc.
3.1 Form of Amended and Restated Agreement of Limited Partnership of Wells Real Estate Fund XII/XIII, L.P. (included
as Exhibit B to Prospectus)
3.2 Certificate of Limited Partnership of Wells Real Estate Fund XII, L.P. dated September 15, 1998
3.3 Certificate of Limited Partnership of Wells Real Estate Fund XIII, L.P. dated September 15, 1998
4 Form of Subscription Agreement and Subscription Agreement Signature Page (included as Exhibit C to Prospectus)
5.1 Opinion of Holland & Knight LLP regarding the legality of the securities of Wells Real Estate Fund XII, L.P.
to be offered
5.2 Opinion of Holland & Knight LLP regarding the legality of securities of Wells Real Estate Fund XIII, L.P.
to be offered
8 Opinion of Holland & Knight LLP regarding tax matters
10.1 Form of Escrow Agreement between Registrant and NationsBank, N.A.
10.2 Form of Leasing and Tenant Coordinating Agreement between Registrant and Wells Management Company, Inc.
10.3 Form of Management Agreement between Registrant and Wells Management Company, Inc.
23.1 Consent of Holland & Knight LLP (included in Exhibits 5.1, 5.2 and 8)
23.2 Consent of Arthur Andersen LLP
</TABLE>
<PAGE>
EXHIBIT 1
FORM OF DEALER MANAGER DISTRIBUTION AGREEMENT
BETWEEN WELLS REAL ESTATE FUND XII/XIII, L.P.
AND WELLS INVESTMENT SECURITIES, INC.
<PAGE>
WELLS REAL ESTATE FUND XII/XIII, L.P.
Up To
$70,000,000
Units of Limited Partnership Interest
(7,000,000 Units)
Dealer Manager Distribution Agreement
_____________, 1998
Wells Investment Securities, Inc.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Ladies and Gentlemen:
Wells Partners, L.P. ("Partners") and Leo F. Wells, III ("Wells"), as the
general partners (the "General Partners") of Wells Real Estate Fund XII, L.P., a
Georgia limited partnership, and Wells Real Estate Fund XIII, L.P., a Georgia
limited partnership (each of which partnerships is referred to herein as the
"Partnership"), propose that each Partnership issue and sell up to $35,000,000
aggregate principal amount of units of limited partnership interest ("Units") in
the Partnership. Such Units are to be sold for cash for $10.00 each; the
minimum purchase by any one person shall be 100 Units (except as otherwise
indicated in the Prospectus or in any letter or memorandum from the Partnership
to you (the "Dealer Manager")). Terms not defined herein shall have the same
meaning as in the Prospectus. In connection therewith, the Partnership and the
General Partners hereby agree with the Dealer Manager as follows:
1. Representations and Warranties of the Partnership
-------------------------------------------------
The Partnership represents and warrants to the Dealer Manager and each dealer
with whom the Dealer Manager has entered into or will enter into a Selected
Dealer Agreement in the form attached to this Agreement as Exhibit "A" (said
dealers being hereinafter called the "Dealers") that:
1.1 A registration statement with respect to the Partnership has been
prepared by the Partnership in accordance with applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the applicable
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "SEC") promulgated thereunder, covering the Units.
Said registration statement, which includes a preliminary prospectus, was filed
with the SEC on or about November 2, 1998. Copies of such registration
statement and each amendment thereto have been or will be delivered to the
Dealer Manager. (The registration statement and prospectus contained therein,
as finally amended and revised at the effective date of the registration
statement, are respectively hereinafter referred to as the "Registration
Statement" and the "Prospectus," except that if the Prospectus first filed by
the Partnership pursuant to Rule 424(b) under the Securities Act shall differ
from the Prospectus, the term "Prospectus" shall also include the Prospectus
filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as a
limited partnership under the Revised Uniform Limited Partnership Act of the
State of Georgia with the power and authority to conduct its business as
described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act
and the Rules and Regulations and do not contain any untrue statements of
material facts or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading provided,
<PAGE>
however, that the foregoing provisions of this Section 1.3 will not extend to
such statements contained in or omitted from the Registration Statement or
Prospectus as are primarily within the knowledge of the Dealer Manager or any of
the Dealers and are based upon information furnished by the Dealer Manager in
writing to the Partnership specifically for inclusion therein.
1.4 The Partnership intends to use the funds received from the sale of the
Units as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any governmental
authority is required in connection with the execution or delivery by the
Partnership of this Agreement or the issuance and sale by the Partnership of the
Units, except such as may be required under the Securities Act or applicable
state securities laws.
1.6 There are no actions, suits or proceedings pending or to the knowledge of
the Partnership, threatened against the Partnership or its General Partners, at
law or in equity or before or by any federal or state commission, regulatory
body or administrative agency or other governmental body, domestic or foreign,
which will have a material adverse effect on the business or property of the
Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the
transactions herein contemplated and compliance with the terms of this Agreement
by the Partnership will not conflict with or constitute a default under any
charter, by-law, indenture, mortgage, deed of trust, lease, rule, regulation,
writ, injunction or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the Partnership, except to
the extent that the enforceability of the indemnity and/or contribution
provisions contained in Section 4 of this Agreement may be limited under
applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into
this Agreement and to perform the transactions contemplated hereby, except to
the extent that the enforceability of the indemnity and/or contribution
provisions contained in Section 4 of this Agreement may be limited under
applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly
authorized and validly issued, and upon payment therefor, will be fully paid and
nonassessable and will conform to the description thereof contained in the
Prospectus, subject to the requirement that the limited partners do not
participate in the management or control of the business of the Partnership.
1.10 The respective financial statements contained in the Registration
Statement and the Prospectus fairly present the financial condition of the
Partnership and Partners and the results of their respective operations as of
the dates and for the periods therein specified; and such financial statements
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved; and the accountants who
have certified certain of such financial statements are independent public
accountants as required by the Securities Act and the Rules and Regulations.
2. Covenants of the Partnership
----------------------------
The Partnership covenants and agrees with the Dealer Manager that:
2.1 It will, at no expense to the Dealer Manager, furnish the Dealer Manager
with such number of printed copies of the Registration Statement, including all
amendments and exhibits thereto, as the
2
<PAGE>
Dealer Manager may reasonably request. It will similarly furnish to the Dealer
Manager and others designated by the Dealer Manager as many copies as the Dealer
Manager may reasonably request in connection with the offering of the Units of:
(a) the Prospectus in preliminary and final form and every form of supplemental
or amended prospectus; (b) this Agreement; and (c) any other printed sales
literature or other materials (provided that the use of said sales literature
and other materials has been first approved for use by the Partnership and all
appropriate regulatory agencies).
2.2 It will furnish such proper information and execute and file such
documents as may be necessary for the Partnership to qualify the Units for offer
and sale under the securities laws of such jurisdictions as the Dealer Manager
may reasonably designate and will file and make in each year such statements and
reports as may be required. The Partnership will furnish to the Dealer Manager
a copy of such papers filed by the Partnership in connection with any such
qualification.
2.3 It will: (a) use its best efforts to cause the Registration Statement to
become effective; (b) furnish copies of any proposed amendment or supplement of
the Registration Statement or Prospectus to the Dealer Manager; (c) file every
amendment or supplement to the Registration Statement or the Prospectus that may
be required by the SEC; and (d) if at any time the SEC shall issue any stop
order suspending the effectiveness of the Registration Statement, it will use
its best efforts to obtain the lifting of such order at the earliest possible
time.
2.4 If at any time when a Prospectus is required to be delivered under the
Securities Act any event occurs as a result of which, in the opinion of either
the Partnership or the Dealer Manager, the Prospectus or any other prospectus
then in effect would include an untrue statement of a material fact or, in view
of the circumstances under which they were made, omit to state any material fact
necessary to make the statements therein not misleading, the Partnership will
promptly notify the Dealer Manager thereof (unless the information shall have
been received from the Dealer Manager) and will effect the preparation of an
amended or supplemental prospectus which will correct such statement or
omission. The Partnership will then promptly prepare such amended or
supplemental prospectus or prospectuses as may be necessary to comply with the
requirements of Section 10 of the Securities Act.
3. Obligations and Compensation of Dealer Manager
----------------------------------------------
3.1 Each Partnership hereby appoints the Dealer Manager as its agent and
principal distributor for the purpose of selling for cash up to a maximum of
3,500,000 Units through Dealers, all of whom shall be members of the National
Association of Securities Dealers, Inc. ("NASD"). The Dealer Manager may also
sell Units for cash directly to its own clients and customers at the public
offering price and subject to the terms and conditions stated in the Prospectus.
The Dealer Manager hereby accepts such agency and distributorship and agrees to
use its best efforts to sell the Units on said terms and conditions. The Dealer
Manager represents to the Partnership that it is a member of the NASD and that
it and its employees and representatives have all required licenses and
registrations to act under this Agreement.
The Dealer Manager agrees to be bound by the terms of the Escrow Agreement
executed as of October _____, 1998 by The Bank of New York, as escrow agent, the
Dealer Manager and the Partnership, a copy of which is enclosed.
3.2 Promptly after the effective date of the Registration Statement, the
Dealer Manager and the Dealers shall commence the offering of the Units for cash
to the public in jurisdictions in which the Units are registered or qualified
for sale or in which such offering is otherwise permitted. The Dealer Manager
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and the Dealers will suspend or terminate offering of the Units upon request of
the Partnership at any time and will resume offering the Units upon subsequent
request of the Partnership.
3.3 Except as provided in the "Plan of Distribution" Section of the
Prospectus, as compensation for the services rendered by the Dealer Manager, the
Partnership agrees that it will pay to the Dealer Manager selling commissions in
the amount of 7% of the gross proceeds of the Units sold plus a dealer manager
fee in the amount of 2.5% of the gross proceeds of the Units sold.
Notwithstanding the foregoing, no commissions, payments or amount whatsoever
will be paid to the Dealer Manager under this Section 3.3 unless or until
125,000 Units have been sold by the Dealer Manager and its Dealers (the "Minimum
Offering"), or in connection with commissions payable with respect to sales made
to residents of the States of New York and Pennsylvania, until 250,000 Units
(from all sources), have been sold. Until the Minimum Offering is obtained,
investments will be held in escrow and, if the Minimum Offering is not obtained,
will be returned to the investors in accordance with the Prospectus. The
Partnership will not be liable or responsible to any Dealer for direct payment
of commissions to such Dealer, it being the sole and exclusive responsibility of
the Dealer Manager for payment of commissions to Dealers. Notwithstanding the
above, at the discretion of the General Partners the Partnership may act as
agent of the Dealer Manager by making direct payment of commissions to such
Dealers without incurring any liability therefor.
3.4 The Dealer Manager represents and warrants to the Partnership, its
partners and each person and firm that signs the Registration Statement that the
information under the caption "Plan of Distribution" in the Prospectus and all
other information furnished to the Partnership by the Dealer Manager in writing
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus, or any amendment or supplement thereto does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
3.5 The Dealer Manager represents and warrants to the Partnership that it
will not represent or imply that the escrow holder, as identified in the
Prospectus, has investigated the desirability or advisability of investment in
the Partnership, or has approved, endorsed or passed upon the merits of the
Units or the Partnership, nor will they use the name of said escrow holder in
any manner whatsoever in connection with the offer or sale of the Units other
than by acknowledgment that it has agreed to serve as escrow holder.
4. Indemnification
---------------
4.1 The General Partners will indemnify and hold harmless the Dealers and the
Dealer Manager, their officers and directors and each person, if any, who
controls such Dealer or Dealer Manager within the meaning of Section 15 of the
Securities Act from and against any losses, claims, damages or liabilities,
joint or several, to which such Dealers or Dealer Manager, their officers and
directors, or such controlling person may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of a material fact contained (i) in any
Registration Statement (including the Prospectus as a part thereof) or any post-
effective amendment thereto or in the Prospectus or any amendment or supplement
to the Prospectus or (ii) in any blue sky application or other document executed
by the Partnership or on its behalf specifically for the purpose of qualifying
any or all of the Units for sale under the securities laws of any jurisdiction
or based upon written information furnished by the Partnership under the
securities laws thereof (any such application, document or information being
hereinafter called a "Blue Sky Application"), or (b) the omission or alleged
omission to state in the Registration Statement (including the Prospectus as a
part thereof) or any post-effective amendment thereof or in any Blue Sky
Application a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (c) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, if
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<PAGE>
used prior to the effective date of the Registration Statement, or in the
Prospectus or any amendment or supplement to the Prospectus or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse
each Dealer or Dealer Manager, its officers and directors and each such
controlling person for any legal or other expenses reasonably incurred by such
Dealer or Dealer Manager, its officers and directors, or such controlling person
in connection with investigating or defending such loss, claim, damage,
liability or action; provided that the Partnership will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of, or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Partnership or Dealer Manager by or on
behalf of any Dealer or Dealer Manager specifically for use with reference to
such Dealer or Dealer Manager in the preparation of the Registration Statement
or any such post-effective amendment thereof, any such Blue Sky Application or
any such preliminary prospectus or the Prospectus or any such amendment thereof
or supplement thereto; and further provided that the Partnership will not be
liable in any such case if it is determined that such Dealer or Dealer Manager
was at fault in connection with the loss, claim, damage, liability or action.
4.2 The Dealer Manager will indemnify and hold harmless the Partnership, the
General Partners, the partners of Partners, each person or firm which has signed
the Registration Statement and each person, if any, who controls the Partnership
within the meaning of Section 15 of the Securities Act, from and against any
losses, claims, damages or liabilities to which any of the aforesaid parties may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (a) any untrue statement of a material fact contained (i) in the
Registration Statement (including the Prospectus as a part thereof) or any post-
effective amendment thereof or (ii) any Blue Sky Application, or (b) the
omission to state in the Registration Statement (including the Prospectus as a
part thereof) or any post-effective amendment thereof or in any Blue Sky
Application a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (c) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, if
used prior to the effective date of the Registration Statement, or in the
Prospectus, or in any amendment or supplement to the Prospectus or the omission
to state therein a material fact required to be stated therein or necessary in
order to make the statements therein in the light of the circumstances under
which they were made not misleading in each case to the extent, but only to the
extent, that such untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Partnership by or on behalf
of the Dealer Manager specifically for use with reference to the Dealer Manager
in the preparation of the Registration Statement or any such post-effective
amendments thereof or any such Blue Sky Application or any such preliminary
prospectus or the Prospectus or any such amendment thereof or supplement
thereto, or (d) any unauthorized use of sales materials or use of unauthorized
verbal representations concerning the Units by the Dealer Manager and will
reimburse the aforesaid parties, in connection with investigation or defending
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which the Dealer Manager may otherwise have.
4.3 Each Dealer severally will indemnify and hold harmless the Partnership,
Dealer Manager, the General Partners and each of their partners and such
partners' directors (including any persons named in any of the Registration
Statements with his consent, as about to become a director), each of their
officers who has signed any of the Registration Statements and each person, if
any, who controls the Partnership, the Dealer Manager and the General Partners
within the meaning of Section 15 of the Securities Act from and against any
losses, claims, damages or liabilities to which the Partnership, the Dealer
Manager, the General Partners, any such director or officer, or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (a) any untrue statement or alleged untrue
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statement of a material fact contained (i) in the Registration Statement
(including the Prospectus as a part thereof) or any post-effective amendment
thereof or (ii) in any Blue Sky Application, or (b) the omission or alleged
omission to state in the Registration Statement (including the Prospectus as a
part thereof) or any post-effective amendment thereof or in any Blue Sky
Application a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (c) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, if
used prior to the effective date of the Registration Statement, or in the
Prospectus, or in any amendment or supplement to the Prospectus or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Partnership or the Dealer
Manager by or on behalf of such Dealer specifically for use with reference to
such Dealer in the preparation of the Registration Statement or any such post-
effective amendments thereof or any such Blue Sky Application or any such
preliminary prospectus or the Prospectus or any such amendment thereof or
supplement thereto, or (d) any unauthorized use of sales materials or use of
unauthorized verbal representations concerning the Units by such Dealer and will
reimburse the Partnership, the Dealer Manager, the General Partners, any such
directors or officers, or controlling person, in connection with investigating
or defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which such Dealer may otherwise
have.
4.4 Promptly after receipt by an indemnified party under this Section 4 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 4, notify in writing the indemnifying party of the commencement thereof
and the omission so as to notify the indemnifying party will relieve it from any
liability under this Section 4 as to the particular item for which
indemnification is then being sought, but not from any other liability which it
may have to any indemnified party. In case any such action is brought against
any indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled, to the extent it may wish,
jointly with any other indemnifying party similarly notified, to participate in
the defense thereof, with separate counsel. Such participation shall not
relieve such indemnifying party of the obligation to reimburse the indemnified
party for reasonable legal and other expenses (subject to Section 4.5) incurred
by such indemnified party in defending itself, except for such expenses incurred
after the indemnifying party has deposited funds sufficient to effect the
settlement, with prejudice, of the claim in respect of which indemnity is
sought. Any such indemnifying party shall not be liable to any such indemnified
party on account of any settlement of any claim or action effected without the
consent of such indemnifying party.
4.5 The indemnifying party shall pay all legal fees and expenses of the
indemnified party in the defense of such claims or actions; provided, however,
that the indemnifying party shall not be obliged to pay legal expenses and fees
to more than one law firm in connection with the defense of similar claims
arising out of the same alleged acts or omissions giving rise to such claims
notwithstanding that such actions or claims are alleged or brought by one or
more parties against more than one indemnified party. If such claims or actions
are alleged or brought against more than one indemnified party, then the
indemnifying party shall only be obliged to reimburse the expenses and fees of
the one law firm that has been selected by a majority of the indemnified parties
against which such action is finally brought; and in the event a majority of
such indemnified parties is unable to agree on which law firm for which expenses
or fees will be reimbursable by the indemnifying party, then payment shall be
made to the first law firm of record representing an indemnified party against
the action or claim. Such law firm shall be paid only to the extent of services
performed by such law firm and no reimbursement shall be payable to such law
firm on account of legal services performed by another law firm.
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4.6 The indemnity agreements contained in this Section 4 shall remain
operative and in full force and effect regardless of (a) any investigation made
by or on behalf of any Dealer, or any person controlling any Dealer or by or on
behalf of the Partnership, the Dealer Manager or the General Partners or any
officer or director thereof, or by or on behalf of the Partnership, the Dealer
Manager or the General Partners, (b) delivery of any Units and payment therefor,
and (c) any termination of this Agreement. A successor of any Dealer or of any
of the parties to this Agreement, as the case may be, shall be entitled to the
benefits of the indemnity agreements contained in this Section 4.
5. Survival of Provisions
----------------------
The respective agreements, representations and warranties of the Partnership
and the Dealer Manager set forth in this Agreement shall remain operative and in
full force and effect regardless of (a) any termination of this Agreement, (b)
any investigation made by or on behalf of the Dealer Manager or any Dealer or
any person controlling the Dealer Manager or any Dealer or by or on behalf of
the Partnership, its partners or any person controlling the Partnership, and (c)
the acceptance of any payment for the Units.
6. Applicable Law
--------------
This Agreement was executed and delivered in, and its validity, interpretation
and construction shall be governed by the laws of, the State of Georgia.
7. Counterparts
------------
This Agreement may be executed in any number of counterparts. Each
counterpart, when executed and delivered, shall be an original contract, but all
counterparts, when taken together, shall constitute one and the same Agreement.
8. Successors and Amendment
------------------------
8.1 This Agreement shall inure to the benefit of and be binding upon the
Dealer Manager, the General Partners, the Partnership and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
to any other person any right, remedy or claim, except as otherwise specifically
provided herein. This Agreement shall inure to the benefit of the Dealers to
the extent set forth in Sections 1 and 4 hereof.
8.2 This Agreement may be amended by the written agreement of the Dealer
Manager and the Partnership, and, as to Sections 3.3 and 10, the General
Partners.
9. Term
----
Any party to this Agreement shall have the right to terminate this Agreement
on 60 days' written notice.
10. Confirmation
------------
The General Partners hereby agree and assume the duty to confirm on behalf of
themselves and on behalf of dealers or brokers who sell the Units all orders for
purchase of Units accepted by the General Partners. Such confirmations will
comply with the rules of the SEC and the NASD, and will comply with applicable
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laws of such other jurisdictions to the extent the General Partners are advised
of such laws in writing by the Dealer Manager.
11. Suitability of Investors
------------------------
The Dealer Manager will offer Units, and in its agreements with Dealers will
require that the Dealers offer Units, only to persons who meet the financial
qualifications set forth in the Prospectus or in any suitability letter or
memorandum sent to it by the Partnership and will only make offers to persons in
the states in which it is advised in writing that the Units are qualified for
sale or that such qualification is not required. In offering Units, the Dealer
Manager will, and in its agreements with Dealers the Dealer Manager will require
that the Dealer comply with the provisions of Appendix "F" of the Rules of Fair
Practice set forth in the NASD Manual, attached hereto as Attachment No. 1, as
well as all other applicable rules and regulations relating to suitability of
investors, including without limitation, the provisions of Article III.C. of the
Statement of Policy Regarding Real Estate Programs of the North American
Securities Administrators Association, Inc.
12. Submission of Orders
--------------------
12.1 Those persons who purchase Units will be instructed by the Dealer
Manager or the Dealer to make their checks payable to an escrow agent for the
Partnership, whenever appropriate, or to the Partnership after the Minimum
Offering has been achieved. The Dealer Manager and any Dealer receiving a check
not conforming to the foregoing instructions shall return such check directly to
such subscriber not later than the end of the next business day following its
receipt. Checks received by the Dealer Manager or Dealer which conform to the
foregoing instructions shall be transmitted for deposit pursuant to one of the
methods described in this Section 12. Transmittal of received investor funds
will be made in accordance with the following procedures.
12.2 Where, pursuant to a Dealer's internal supervisory procedures, internal
supervisory review is conducted at the same location at which subscription
documents and checks are received from subscribers, checks will be transmitted
in care of the Dealer Manager by the end of the next business day following
receipt by the Dealer for deposit to an escrow agent, where appropriate, or to
the Partnership after the Minimum Offering has been achieved.
12.3 Where, pursuant to a Dealer's internal supervisory procedures, final
internal supervisory review is conducted at a different location, checks will be
transmitted by the end of the next business day following receipt by the Dealer
to the office of the Dealer conducting such final internal supervisory review
(the "Final Review Office"). The Final Review Office will in turn by the end of
the next business day following receipt by the Final Review Office, transmit
such checks in care of the Dealer Manager for deposit to an escrow agent, where
appropriate, or to the Partnership after the Minimum Offering has been achieved.
12.4 Where the Dealer Manager is involved in the distribution process, checks
will be transmitted by the Dealer Manager for deposit to the escrow agent, where
applicable, or to the Partnership after the Minimum Offering has been achieved,
as soon as practicable, but in any event by the end of the second business day
following receipt by the Dealer Manager. Checks of rejected subscribers will be
promptly returned to such subscribers.
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If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter and your acceptance shall constitute a binding agreement between us as of
the date first above written.
Very truly yours,
WELLS REAL ESTATE FUND XII, L.P.
and
WELLS REAL ESTATE FUND XIII, L.P.
By: /s/ Leo F. Wells, III
------------------------------------
LEO F. WELLS, III
General Partner
By: WELLS PARTNERS, L.P.
A Georgia Limited Partnership
General Partner
By: WELLS CAPITAL, INC.
A Georgia Corporation
General Partner
By: /s/ Leo F. Wells, III
-------------------------------
Leo F. Wells, III
President
Attest:
----------------------------
Name:
------------------------------
Title:
-----------------------------
Accepted and agreed as of the
date first above written.
WELLS INVESTMENT SECURITIES, INC.
By: /s/ Leo F. Wells, III
-----------------------------
Leo F. Wells, III
President
Attest:
--------------------------
Name:
----------------------------
Title:
---------------------------
9
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EXHIBIT "A"
WELLS REAL ESTATE FUND XII/XIII, L.P.
Up To
$70,000,000
7,000,000 Units of Limited Partnership Interest
at $10.00 each
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
Wells Investment Securities, Inc., as the dealer manager ("Dealer Manager")
for Wells Real Estate Fund XII, L.P. and Wells Real Estate Fund XIII, L.P. (each
of which partnerships is referred to herein as the "Partnership"), Georgia
limited partnerships of which Wells Partners, L.P. and Leo F. Wells, III serve
as the general partners (the "General Partners"), invite you (the "Dealer") to
participate in the distribution of units of limited partnership interest in the
Partnership ("Units") subject to the following terms:
I. Dealer Manager Distribution Agreement
The Dealer Manager has entered into an agreement with the Partnership and the
General Partners called the Dealer Manager Distribution Agreement dated
______________, 1998, in the form attached hereto as Exhibit "A." By your
acceptance of this Agreement, you will become one of the Dealers referred to in
such Agreement between the Partnership, the General Partners and the Dealer
Manager and will be entitled and subject to the indemnification provisions
contained in such Agreement, including the provisions of such Agreement (Section
4) wherein the Dealers severally agree to indemnify and hold harmless the
Partnership and Dealer Manager and each officer and director thereof, and each
person, if any, who controls the Partnership and Dealer Manager within the
meaning of the Securities Act of 1933. Except as otherwise specifically stated
herein, all terms used in this Agreement have the meanings provided in the
Dealer Manager Distribution Agreement. The Units are offered solely through
broker-dealers who are members of the National Association of Securities
Dealers, Inc. ("NASD").
Dealer hereby agrees to use its best efforts to sell the Units for cash on the
terms and conditions stated in the Prospectus. Nothing in this Agreement shall
be deemed or construed to make Dealer an employee, agent, representative or
partner of the Dealer Manager or of the Partnership, and Dealer is not
authorized to act for the Dealer Manager or the Partnership or to make any
representations on their behalf except as set forth in the Prospectus and such
other printed information furnished to Dealer by the Dealer Manager or the
Partnership to supplement the Prospectus ("supplemental information").
II. Submission of Orders
Those persons who purchase Units will be instructed by the Dealer to make
their checks payable to NationsBank, N.A., as Escrow Agent for Wells Real Estate
Fund XII [XIII]," where appropriate, or to the Partnership after the Minimum
Offering has been achieved. Dealer hereby agrees to be bound by the terms of
the Escrow Agreement executed as of _______________, 1998 by NationsBank, N.A.,
as escrow agent, the Dealer Manager and the Partnership, a copy of which is
enclosed. Any Dealer receiving a check not conforming to the foregoing
instructions shall return such check directly to such subscriber not later than
the end of the next business day following its receipt. Checks received by the
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Dealer which conform to the foregoing instructions shall be transmitted for
deposit pursuant to one of the methods in this Article II. Transmittal of
received investor funds will be made in accordance with the following
procedures:
Where, pursuant to the Dealer's internal supervisory procedures, internal
supervisory review is conducted at the same location at which subscription
documents and checks are received from subscribers, checks will be
transmitted in care of the Dealer Manager by the end of the next business
day following receipt by the Dealer for deposit to an escrow agent, where
appropriate, or to the Partnership after the Minimum Offering has been
achieved.
Where, pursuant to the Dealer's internal supervisory procedures, final and
internal supervisory review is conducted at a different location, checks
will be transmitted by the end of the next business day following receipt
by the Dealer to the office of the Dealer conducting such final internal
supervisory review (the "Final Review Office"). The Final Review Office
will in turn by the end of the next business day following receipt by the
Final Review Office, transmit such checks for deposit to an escrow agent,
where appropriate, or to the Partnership after the Minimum Offering has
been achieved.
III. Pricing
Units shall be offered to the public at the offering price of $10.00 per Unit
payable in cash. Except as otherwise indicated in the Prospectus or in any
letter or memorandum sent to the Dealer by the Partnership or Dealer Manager, a
minimum initial purchase of 100 Units is required. Additional investments may
be made in cash in minimal increments of at least 2.5 Units. The Units are
nonassessable, and limited partners will not be required to contribute further
sums to the capital of the Partnership. Dealer hereby agrees to place any order
for the full purchase price.
IV. Dealers' Commissions
Except for discounts described in or as provided in the "Plan of Distribution"
Section of the Prospectus, the Dealer's selling commission applicable to the
total public offering price of Units sold by Dealer which it is authorized to
sell hereunder is 7% of the gross proceeds of Units sold by it and accepted and
confirmed by the General Partners, which commission will be paid by the Dealer
Manager. For these purposes, a "sale of Units" shall occur if and only if a
transaction has closed with a securities purchaser pursuant to all applicable
offering and subscription documents and the Partnership has thereafter
distributed the commission to the Dealer Manager in connection with such
transaction. The Dealer hereby waives any and all rights to receive payment of
commissions due until such time as the Dealer Manager is in receipt of the
commission from the Partnership. The Dealer affirms that the Dealer Manager's
liability for commissions payable is limited solely to the proceeds of
commissions receivable associated therewith. In addition, as specified in the
Prospectus, the Dealer Manager may reallow out of its dealer manager fee a
marketing fee of up to 1.5% of the gross proceeds of Units sold by Dealers
participating in the offering of Units, based on such factors as the number of
Units sold by such participating Dealer, the assistance of such participating
Dealer in marketing the offering of Units, and bona fide conference fees
incurred.
The parties hereby agree that the foregoing commission is not in excess of the
usual and customary distributors' or sellers' commission received in the sale of
securities similar to the Units, that Dealer's interest in the offering is
limited to such commission from the Dealer Manager and Dealer's indemnity
referred to in Section 4 of the Dealer Manager Distribution Agreement, that the
Partnership is not liable or responsible for the direct payment of such
commission to the Dealer.
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V. Payment
Payments of selling commissions will be made by the Dealer Manager (or by the
Partnership as provided in the Dealer Manager Distribution Agreement) to Dealer
within 30 days of the receipt by the Dealer Manager of the gross commission
payments from the Partnership.
VI. Right to Reject Orders or Cancel Sales
All orders, whether initial or additional, are subject to acceptance by and
shall only become effective upon confirmation by the General Partners; the
Partnership and the General Partners reserve the right to reject any order.
Orders not accompanied by a Subscription Agreement and Signature Page and the
required check in payment for the Units may be rejected. Issuance and delivery
of the Units will be made only after actual receipt of payment therefor. If any
check is not paid upon presentment, or if the Partnership is not in actual
receipt of clearinghouse funds or cash, certified or cashier's check or the
equivalent in payment for the Units within 15 days of sale, the Partnership
reserves the right to cancel the sale without notice. In the event an order is
rejected, canceled or rescinded for any reason, the Dealer agrees to return to
the Dealer Manager any commission theretofore paid with respect to such order.
VII. Prospectus and Supplemental Information
Dealer is not authorized or permitted to give and will not give, any
information or make any representation concerning the Units except as set forth
in the Prospectus and supplemental information. The Dealer Manager will supply
Dealer with reasonable quantities of the Prospectus, any supplements thereto and
any amended Prospectus, as well as any supplemental information, for delivery to
investors, and Dealer will deliver a copy of the Prospectus and all supplements
thereto and any amended Prospectus to each investor to whom an offer is made
prior to or simultaneously with the first solicitation of an offer to sell the
Units to an investor. The Dealer agrees that it will not send or give any
supplements thereto and any amended Prospectus to that investor unless it has
previously sent or given a Prospectus and all supplements thereto and any
amended Prospectus to that investor or has simultaneously sent or given a
Prospectus and all supplements thereto and any amended Prospectus with such
supplemental information. Dealer agrees that it will not show or give to any
investor or reproduce any material or writing which is supplied to it by the
Dealer Manager and marked "dealer only" or otherwise bearing a legend denoting
that it is not to be used with respect to members of the public. Dealer agrees
that it will not use in connection with the offer or sale of Units any material
or writing which relates to another partnership supplied to it by the
Partnership or the Dealer Manager bearing a legend which states that such
material may not be used in connection with the offer or sale of any securities
other than the partnership to which it relates. Dealer further agrees that it
will not use in connection with the offer or sale of Units any materials or
writings which have not been previously approved by the Dealer Manager. Each
Dealer agrees, if the Dealer Manager so requests, to furnish a copy of any
revised preliminary Prospectus to each person to whom it has furnished a copy of
any previous preliminary Prospectus, and further agrees that it will itself mail
or otherwise deliver all preliminary and final Prospectuses required for
compliance with the provisions of Rule 15c2-8 under the Securities Exchange Act
of 1934. Regardless of the termination of this Agreement, Dealer will deliver a
Prospectus in transactions in the Units for a period of 90 days from the
effective date of the Registration Statement or such longer period as may be
required by the Securities Exchange Act of 1934. On becoming a Dealer, and in
offering and selling Units, Dealer agrees to comply with all the applicable
requirements under the Securities Act of 1933, and the Securities Exchange Act
of 1934, including, without limitation, the provisions of Rule 10b-6 and Rule
10b-7 and Rule 15c2-4 of the Securities and Exchange Commission.
Notwithstanding the termination of this Agreement or the payment of any amount
to Dealer, Dealer agrees to pay Dealer's proportionate share of any claim,
demand or liability asserted against Dealer and the other Dealers on the basis
that Dealers or any of them constitute an association, unincorporated business
3
<PAGE>
or other separate entity, including in each case Dealer's proportionate share of
any expenses incurred in defending against any such claim, demand or liability.
VIII. License and Association Membership
Dealer's acceptance of this Agreement constitutes a representation to the
Partnership and Dealer Manager that Dealer is a properly registered or licensed
broker-dealer, duly authorized to sell Units under Federal and state securities
laws and regulations and in all states where it offers or sells Units, and that
it is a member in good standing of the NASD. This Agreement shall automatically
terminate if the Dealer ceases to be a member in good standing of such
association, or in the case of a foreign dealer, so to conform. Dealer agrees
to notify the Dealer Manager immediately if Dealer ceases to be a member in good
standing, or in the case of a foreign dealer, so to conform. The Dealer Manager
also hereby agrees to abide by the Rules of Fair Practice of the NASD.
IX. Limitation of Offer
Dealer will offer Units only to persons who meet the financial qualifications
set forth in the Prospectus or in any suitability letter or memorandum sent to
it by the Partnership or Dealer Manager and will only make offers to persons in
the states in which it is advised in writing that the Units are qualified for
sale or that such qualification is not required. In offering Units, Dealer will
comply with the provisions of Appendix F of the Rules of Fair Practice set forth
in the NASD Manual, attached hereto as Attachment No. 1, as well as all other
applicable rules and regulations relating to suitability of investors, including
without limitation, the provisions of Article III.C. of the Statement of Policy
Regarding Real Estate Programs of the North American Securities Administrators
Association, Inc. Dealer will also undertake to comply with Sections 8, 24, 25
and 36 of Article III of the Rules of Fair Practice set forth in the NASD
Manual.
X. Termination
Dealer will suspend or terminate its offer and sale of Units upon the request
of the Partnership or the Dealer Manager at any time and will resume its offer
and sale of Units hereunder upon subsequent request of the Partnership or the
Dealer Manager. Any party may terminate this Agreement by written notice. Such
termination shall be effective 48 hours after the mailing of such notice. This
Agreement is the entire agreement of the parties and supersedes all prior
agreements, if any, between the parties hereto.
This Agreement may be amended at any time by the Dealer Manager by written
notice to the Dealer, and any such amendment shall be deemed accepted by Dealer
upon placing an order for sale of Units after he has received such notice.
XI. Notice
All notices will be in writing and will be duly given to the Dealer Manager
when mailed to 3885 Holcomb Bridge Road, Norcross, Georgia 30092, and to Dealer
when mailed to the address specified by Dealer herein.
XII. Attorney's Fees and Applicable Law
In any action to enforce the provisions of this Agreement or to secure damages
for its breach, the prevailing party shall recover its costs and reasonable
attorney's fees. This Agreement shall be construed under the laws of the State
4
<PAGE>
of Georgia and shall take effect when signed by Dealer and countersigned by the
Dealer Manager.
THE DEALER MANAGER:
WELLS INVESTMENT SECURITIES, INC.
Attest:
By: By: /s/ Leo F. Wells, III
------------------------------ ----------------------------------
Name: Leo F. Wells, III
---------------------------- President
Title:
---------------------------
5
<PAGE>
We have read the foregoing Agreement and we hereby accept and agree to the
terms and conditions therein set forth. We hereby represent that the list below
of jurisdictions in which we are registered or licensed as a broker or dealer
and are fully authorized to sell securities is true and correct, and we agree to
advise you of any change in such list during the term of this Agreement.
1. Identity of Dealer:
Name:
--------------------------------------------------------------------------
Type of
entity:
------------------------------------------------------------------------
(to be completed by Dealer) (corporation, partnership or proprietorship)
Organized in the State of:
-----------------------------------------------------
(to be completed by Dealer) (State)
Licensed as broker-dealer in the following
states:
------------------------------------------------------------------------
(to be completed by Dealer)
Tax I.D. #
---------------------------------------------------------------------
2. Person to receive notice pursuant to Section XI.
Name:
--------------------------------------------------------------------------
Company:
-----------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
City, State and Zip Code:
------------------------------------------------------
Telephone No.:( )
----- ----------------------------------------------------------
AGREED TO AND ACCEPTED BY THE DEALER:
- -------------------------------------------
(Dealer's Firm Name)
By:
----------------------------------------
Signature
Title:
-------------------------------------
6
<PAGE>
ATTACHMENT NO. 1
APPENDIX "F"
------------
Sec. 3
Suitability
(a) A member or person associated with a member shall not underwrite or
participate in a public offering of a direct participation program unless
standards of suitability have been established by the program for participants
therein and such standards are fully disclosed in the prospectus and are
consistent with the provisions of subsection (b) of this section.
(b) In recommending to a participant the purchase, sale or exchange of an
interest in a direct participation program, a member or person associated with a
member shall:
(1) have reasonable grounds to believe, on the basis of information
obtained from the participant concerning his investment objectives, other
investments, financial situation and needs, and any other information known by
the member or associated person, that:
(i) the participant is or will be in a financial position
appropriate to enable him to realize to a significant extent the benefits
described in the prospectus, including the tax benefits where they are a
significant aspect of the program;
(ii) the participant has a fair market net worth sufficient to
sustain the risks inherent in the program, including loss of investment and
lack of liquidity; and
(iii) the program is otherwise suitable for the participant; and
(2) maintain in the files of the member documents disclosing the basis
upon which the determination of suitability was reached as to each participant.
(c) Subsections 3(a) and 3(b) shall not apply to:
(1) a secondary public offering of or a secondary market transaction in a
unit, depositary receipt, or other interest in a direct participation program
for which quotations are displayed on the NASDAQ System or which is listed on a
registered national securities exchange, or
(2) an initial public offering of a unit, depositary receipt or other
interest in a direct participation program for which an application for
inclusion on the NASDAQ System or listing on a registered national securities
exchange has been approved by NASDAQ or such exchange and the applicant makes a
good faith representation that it believes such inclusion on NASDAQ or listing
on an exchange will occur within a reasonable period of time following the
formation of the program.
(d) Notwithstanding the provisions of subsections (a) and (b) hereof, no
member shall execute any transaction in a direct participation program in a
discretionary account without prior written approval of the transaction by the
customer.
<PAGE>
Sec. 4
Disclosure
(a) Prior to participating in a public offering of a direct participation
program, a member or person associated with a member shall have reasonable
grounds to believe, based on information made available to him by the sponsor
through a prospectus or other materials, that all material facts are adequately
and accurately disclosed and provide a basis for evaluating the program.
(b) In determining the adequacy of disclosed facts pursuant to subsection (a)
hereof, a member or person associated with a member shall obtain information on
material facts relating at a minimum to the following, if relevant in view of
the nature of the program:
(1) items of compensation;
(2) physical properties;
(3) tax aspects;
(4) financial stability and experience of the sponsor;
(5) the program's conflicts and risk factors; and
(6) appraisals and other pertinent reports.
(c) For purposes of subsections (a) or (b) hereof, a member or person
associated with a member may rely upon the results of an inquiry conducted by
another member or members, provided that:
(1) the member or person associated with a member has reasonable grounds
to believe that such inquiry was conducted with due care;
(2) the results of the inquiry were provided to the member or person
associated with a member with the consent of the member or members conducting or
directing the inquiry; and
(3) no member that participated in the inquiry is a sponsor of the
program or an affiliate of such sponsor.
(d) Prior to executing a purchase transaction in a direct participation
program, a member or person associated with a member shall inform the
prospective participant of all pertinent facts relating to the liquidity and
marketability of the program during the term of the investment; provided,
however, that this subsection shall not apply to an initial or secondary public
offering of or a secondary market transaction in a unit, depositary receipt or
other interest in a direct participation program which complies with subsection
3(c).
2
<PAGE>
EXHIBIT 3.2
CERTIFICATE OF LIMITED PARTNERSHIP
OF WELLS REAL ESTATE FUND XII, L.P.
DATED SEPTEMBER 15, 1998
<PAGE>
CERTIFICATE OF LIMITED PARTNERSHIP
OF
WELLS REAL ESTATE FUND XII, L.P.
THIS CERTIFICATE OF LIMITED PARTNERSHIP of Wells Real Estate Fund XII, L.P.
dated September 15, 1998, is made and executed by and between Wells Partners,
L.P. and Leo F. Wells, III, as General Partners, for the purpose of forming a
limited partnership pursuant to the provisions of the Georgia Revised Uniform
Limited Partnership Act, O.C.G.A. (S) 14-9-100, et seq.
-- ---
1. Name. The name of the Partnership is WELLS REAL ESTATE FUND XII, L.P.
----
2. Registered Office and Agent. The name of the Registered Agent for service
---------------------------
of process in the State of Georgia is Wells Capital, Inc., a Georgia
corporation, and the address of the Registered Agent and the Registered Office
in the State of Georgia is 3885 Holcomb Bridge Road, Norcross, Gwinnett County,
Georgia 30092.
3. General Partners. The names and business addresses of the General
----------------
Partners are as follows:
Wells Partners, L.P.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Leo F. Wells, III
3885 Holcomb Bridge Road
Norcross, Georgia 30092
4. Latest Date of Dissolution. The latest date upon which the Partnership is
--------------------------
to dissolve is December 31, 2030.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Limited
Partnership as of the date first above written.
GENERAL PARTNERS:
----------------
WELLS PARTNERS, L.P.
A Georgia Limited Partnership
By: Wells Capital, Inc.
A Georgia Corporation
(As General Partner)
By: /s/ Leo F. Wells, III
-------------------------
Leo F. Wells, III, President
[Corporate Seal]
/s/ Leo F. Wells, III
----------------------
LEO F. WELLS, III
<PAGE>
EXHIBIT 3.3
CERTIFICATE OF LIMITED PARTNERSHIP
OF WELLS REAL ESTATE FUND XIII, L.P.
DATED SEPTEMBER 15, 1998
<PAGE>
CERTIFICATE OF LIMITED PARTNERSHIP
OF
WELLS REAL ESTATE FUND XIII, L.P.
THIS CERTIFICATE OF LIMITED PARTNERSHIP of Wells Real Estate Fund XIII, L.P.
dated September 15, 1998, is made and executed by and between Wells Partners,
L.P. and Leo F. Wells, III, as General Partners, for the purpose of forming a
limited partnership pursuant to the provisions of the Georgia Revised Uniform
Limited Partnership Act, O.C.G.A. (S) 14-9-100, et seq.
-- ---
1. Name. The name of the Partnership is WELLS REAL ESTATE FUND XIII, L.P.
----
2. Registered Office and Agent. The name of the Registered Agent for service
---------------------------
of process in the State of Georgia is Wells Capital, Inc., a Georgia
corporation, and the address of the Registered Agent and the Registered Office
in the State of Georgia is 3885 Holcomb Bridge Road, Norcross, Gwinnett County,
Georgia 30092.
3. General Partners. The names and business addresses of the General
----------------
Partners are as follows:
Wells Partners, L.P.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Leo F. Wells, III
3885 Holcomb Bridge Road
Norcross, Georgia 30092
4. Latest Date of Dissolution. The latest date upon which the Partnership is
--------------------------
to dissolve is December 31, 2030.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Limited
Partnership as of the date first above written.
GENERAL PARTNERS:
----------------
WELLS PARTNERS, L.P.
A Georgia Limited Partnership
By: Wells Capital, Inc.
A Georgia Corporation
(As General Partner)
By: /s/ Leo F. Wells, III
-----------------------
Leo F. Wells, III, President
[Corporate Seal]
/s/ Leo F. Wells, III
----------------------
LEO F. WELLS, III
<PAGE>
EXHIBIT 5.1
OPINION OF HOLLAND & KNIGHT LLP REGARDING
THE LEGALITY OF THE SECURITIES OF
WELLS REAL ESTATE FUND XII, L.P. TO BE OFFERED
<PAGE>
[LETTERHEAD OF HOLLAND & KNIGHT LLP APPEARS HERE]
November 2, 1998
Wells Real Estate Fund XII, L.P.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Ladies and Gentlemen:
We are acting as your counsel in the registration of 3,500,000 units of
limited partnership interest (the "Units") of Wells Real Estate Fund XII, L.P.
(the "Partnership"), a Georgia limited partnership having Wells Partners, L.P.,
a Georgia limited partnership, and Leo F. Wells, III as the General Partners
(the "General Partners"). Such Units are to be sold for cash for $10.00 each.
The Units are being registered with the Securities and Exchange Commission under
a Registration Statement on Form S-11 to be filed with the Securities and
Exchange Commission on or about November 2, 1998 (as amended, the "Registration
Statement"). We are familiar with the documents and materials relating to the
Partnership relevant to this opinion.
In rendering our opinion, we have reviewed the Certificate of Limited
Partnership of the Partnership dated September 15, 1998, as executed by the
General Partners and filed with the Secretary of State of Georgia, and have
assumed that the Amended and Restated Agreement of Limited Partnership of the
Partnership will be executed substantially in the form included as Exhibit "B"
to the Prospectus to be filed with the Securities and Exchange Commission as a
part of the Registration Statement (the "Partnership Agreement") and that the
Partnership will be operated in accordance with the provisions of the
Partnership Agreement. We have also assumed that each of the limited partners
will execute the Subscription Agreement and Subscription Agreement Signature
Page included as Exhibit "C" to the Prospectus.
Assuming the foregoing, based on our review of the relevant documents and
materials, it is our opinion that:
(a) The Partnership is duly organized and validly existing and in good
standing under the laws of the State of Georgia; and
(b) Upon payment by subscribers for Units of their required capital
contributions, the Units will be validly authorized and legally
issued, and will be fully paid and non-assessable.
We hereby consent to the reference to our Firm under the caption "Legal
Opinions" in the Prospectus that forms a part of the Registration Statement and
to the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
HOLLAND & KNIGHT LLP
/s/ Holland & Knight LLP
<PAGE>
EXHIBIT 5.2
OPINION OF HOLLAND & KNIGHT LLP REGARDING
THE LEGALITY OF THE SECURITIES OF
WELLS REAL ESTATE FUND XIII, L.P. TO BE OFFERED
<PAGE>
[LETTERHEAD OF HOLLAND & KNIGHT APPEARS HERE]
November 2, 1998
Wells Real Estate Fund XIII, L.P.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Ladies and Gentlemen:
We are acting as your counsel in the registration of 3,500,000 units of
limited partnership interest (the "Units") of Wells Real Estate Fund XIII, L.P.
(the "Partnership"), a Georgia limited partnership having Wells Partners, L.P.,
a Georgia limited partnership, and Leo F. Wells, III as the General Partners
(the "General Partners"). Such Units are to be sold for cash for $10.00 each.
The Units are being registered with the Securities and Exchange Commission under
a Registration Statement on Form S-11 to be filed with the Securities and
Exchange Commission on or about November 2, 1998 (as amended, the "Registration
Statement"). We are familiar with the documents and materials relating to the
Partnership relevant to this opinion.
In rendering our opinion, we have reviewed the Certificate of Limited
Partnership of the Partnership dated September 15, 1998, as executed by the
General Partners and filed with the Secretary of State of Georgia, and have
assumed that the Amended and Restated Agreement of Limited Partnership of the
Partnership will be executed substantially in the form included as Exhibit "B"
to the Prospectus to be filed with the Securities and Exchange Commission as a
part of the Registration Statement (the "Partnership Agreement") and that the
Partnership will be operated in accordance with the provisions of the
Partnership Agreement. We have also assumed that each of the limited partners
will execute the Subscription Agreement and Subscription Agreement Signature
Page included as Exhibit "C" to the Prospectus.
Assuming the foregoing, based on our review of the relevant documents and
materials, it is our opinion that:
(a) The Partnership is duly organized and validly existing and in good
standing under the laws of the State of Georgia; and
(b) Upon payment by subscribers for Units of their required capital
contributions, the Units will be validly authorized and legally
issued, and will be fully paid and non-assessable.
We hereby consent to the reference to our Firm under the caption "Legal
Opinions" in the Prospectus that forms a part of the Registration Statement and
to the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
HOLLAND & KNIGHT LLP
/s/ Holland & Knight LLP
<PAGE>
EXHIBIT 8
OPINION OF HOLLAND & KNIGHT LLP
REGARDING TAX MATTERS
<PAGE>
[LETTERHEAD OF HOLLAND & KNIGHT LLP APPEARS HERE]
November 2, 1998
General Partners
Wells Real Estate Fund XII, L.P. and
Wells Real Estate Fund XIII, L.P.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Re: Wells Real Estate Fund XII, L.P. and
Wells Real Estate Fund XIII, L.P.
Ladies and Gentlemen:
You have requested our opinion concerning certain federal income tax aspects
of the offering and sale of Units of limited partnership interest in Wells Real
Estate Fund XII, L.P., a Georgia limited partnership, and Wells Real Estate Fund
XIII, L.P., a Georgia limited partnership (hereinafter singly referred to as the
"Partnership" and collectively referred to as the "Partnerships"), both of which
have Wells Partners, L.P., a Georgia limited partnership, and Leo F. Wells, III,
as general partners (the "General Partners"), all as described in the
Registration Statement on Form S-11 to be filed with the Securities and Exchange
Commission on or about November 2, 1998, as amended (as amended, the
"Registration Statement"), and the Prospectus included therein (as amended, the
"Prospectus"). Capitalized terms used herein shall have the meaning ascribed to
them in the "Glossary" section of the Prospectus or as set forth in Article III
of the Amended and Restated Agreement of Limited Partnership of the Partnership
included in the Prospectus.
In order to render our opinion, we have reviewed and relied upon (a) executed
copies of the Certificates of Limited Partnership of the Partnerships dated
September 15, 1998; (b) the Prospectus; and (c) representations of the General
Partners as provided herein and as disclosed in the Prospectus, including, inter
-----
alia, that: (i) all statements and information in the Prospectus are accurate
- ----
and complete; (ii) the Partnerships will be operated in a business-like manner
and substantially in accordance with the Partnership Agreements and Prospectus;
and (iii) the General Partners currently have an aggregate net worth on a fair
market value basis of approximately 2,667,000. We have assumed the accuracy of
the representations contained in the Prospectus, that the Amended and Restated
Agreement of Limited Partnership of each of the Partnerships (collectively, the
"Partnership Agreement") will be executed substantially in the form included as
Exhibit "B" to the Prospectus and that the Partnerships will be operated in
accordance with the provisions of the Partnership Agreement. We have also
relied upon, and based our interpretation on, pertinent provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
(including Temporary and Proposed Regulations) promulgated thereunder
("Regulations"), existing judicial decisions, and current administrative rulings
and procedures issued by the Internal Revenue Service ("IRS"), all of which are
subject to change, with or without retroactive application, by legislation,
administrative action and judicial decision. Any changes in the facts assumed
hereunder or in the Code or Regulations made subsequent to the date of this
opinion could materially affect the statements made herein and have adverse
effects on the income tax consequences of investing in the Partnership.
This opinion is strictly subject to all of the terms, conditions and
limitations set forth herein, and all references to this opinion contained in
the Prospectus are expressly qualified by reference to the entirety of this
opinion. Further, this opinion is directed primarily to individual taxpayers
who are citizens of the United States. No opinion is given with respect to
federal income tax aspects of the offering which depend upon a Limited Partner's
particular circumstances, and no opinion is given with respect to the federal
income tax consequences to
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 2
any new Limited Partner substituted for a Limited Partner. The opinions
expressed herein also do not extend to a continuation of operations following
the resignation or removal of the General Partners.
In giving this opinion, we have considered and attempted to follow the
guidelines of Formal Opinion 346 (revised) of the American Bar Association
Standing Committee on Ethics and Professional Responsibility issued January 29,
1982, which requires that an attorney should, if possible, state his opinion as
to the probable outcome on the merits of each material tax issue, i.e., each
----
issue that would have a significant effect in sheltering income from sources
other than the Partnership from federal income taxes by providing deductions in
excess of the income of the Partnership. In this regard, it should be noted
that the General Partners do not intend for an investment in the Partnership to
be a tax shelter; however, it is possible that holders of the Class B Status
Units may be allocated deductions in a given year in excess of income allocated
to them from the Partnership. Accordingly, our opinion attempts to address each
material tax issue that involves a reasonable possibility of challenge by the
IRS; however, it should be noted that this opinion is not a representation or a
guarantee that the tax results opined to herein or described in the Prospectus
will be achieved. This opinion has no binding effect or official status of any
kind, and no assurance can be given that the conclusions reached in this opinion
would be sustained by a court if contested by the IRS. For purposes of our
opinion, any statement that it is "more likely than not" that any tax position
will be sustained means that in our judgment at least a 51% chance of prevailing
exists if the IRS were to challenge the allowability of such tax position and
that challenge were to be litigated and judicially decided.
SUMMARY OF OPINIONS.
-------------------
In reliance on the representations and assumptions described herein and in the
Prospectus, and subject to the qualifications set forth herein and in the
Prospectus, we are of the opinion 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 activities contemplated by the Partnership will be considered
activities entered into for profit by the Partnership; and
(6) 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" with respect to an investment in the Partnership, as defined in the
Code and Regulations, will not exceed 2 to 1 for any investor as of the
close of any year in the Partnership's first five calendar years.
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 3
In addition, we are of the opinion that, in the aggregate, substantially more
than half of the material federal income tax benefits contemplated by the
Prospectus, in terms of their financial impact on a typical investor, will more
likely than not be realized by an investor in the Partnership.
We are unable to form opinions as to the probable outcome of certain material
tax aspects of the transactions described in the 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 application of the accuracy-related penalty provisions.
As noted above, 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. No opinion is given herein 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.
As of the date of this 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 us to opine on the
application of federal income tax laws to the specific facts which will exist
when properties are acquired by the Partnership.
DISCUSSION.
----------
1. Partnership Classification (Generally).
--------------------------------------
The availability of the income tax attributes of the Partnership's activities
to the Partners depends upon the classification of the Partnership as a
partnership for federal income tax purposes and not as an association taxable as
a corporation. 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 shareholders
with the following results, among others: (a) the Partnership would become a
taxable entity subject to the federal income tax imposed on corporations; (b)
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 (c) 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 of the Partnership, and would not be deductible
by the Partnership in computing its income tax.
Under current Regulations, an organization that qualifies as a limited
partnership under state law (such as the Partnership) will be classified as a
partnership unless it is otherwise required, under state law or pursuant to the
application of the publicly traded partnership rules discussed hereinbelow, to
be classified for federal income tax purposes as a corporation. Treas. Reg.
(S) 301.7701-2 (1996). As an "eligible entity" under the Regulations, i.e., a
----
business entity having two or more members and not otherwise required to be
classified as a corporation, no action need be taken by the Partnership in order
to be classified as a partnership for tax purposes.
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 4
Accordingly, although 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, based upon the current Regulations, IRS rulings and
judicial decisions under Section 7701(a) of the Code, and based upon certain
representations of the General Partners and other assumptions as set forth
herein and in the Prospectus, we are of the opinion that the Partnership will
more likely than not be classified as a partnership for federal income tax
purposes and not as an association taxable as a corporation.
2. Partnership Classification (Status as a Publicly Traded Partnership).
--------------------------------------------------------------------
Section 7704 of the Code provides that even though an entity may be treated as
a partnership under Section 7701(a) of the Code, entities which are deemed to be
"publicly traded partnerships" will nonetheless be treated as corporations,
rather than as partnerships, for federal income tax purposes. Under Section
7704(b), a publicly traded partnership is defined 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).
Regulations issued under Section 7704 (the "Section 7704 Regulations") contain
definitions of what constitutes an established securities market and a secondary
market or the substantial equivalent thereof and what transfers may be
disregarded in determining whether such definitions are satisfied with respect
to the activities of a partnership. Treas. Reg. (S) 1.7704-1 (1995). 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. The Section 7704 Regulations also make it clear, however, that the fact
that a partnership does not qualify for a secondary market safe harbor shall be
disregarded if, under all facts and circumstances, it is determined that
interests in the partnership are not readily tradeable on a secondary market or
the substantial equivalent thereof. Id. (S) 1.7704-1(c)(3).
--
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 interests 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, block transfers, which are defined as transfers by a
partner and any persons related to such partner during any 30 calendar day
period of partnership units representing more than 2% of the total interests in
a partnership's capital or profits, and transfers not recognized by the
partnership.
The General Partners have represented that Units in the Partnership, when
issued, will not be traded on an established securities market or a secondary
market or the substantial equivalent thereof. Further, the General Partners
have also 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 secondary market safe harbor contained in the
Section 7704 Regulations (or which shall satisfy any other applicable safe
harbor from "publicly traded partnership" status 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. Accordingly, based upon the foregoing, and assuming the
Partnership will be operated strictly in accordance with the terms of the
Partnership Agreement, we
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 5
are of the opinion that it is more likely than not that the Partnership will not
be classified as a publicly traded partnership under Section 7704 of the Code.
If, notwithstanding the foregoing, the Partnership were deemed to be a
publicly traded partnership, Section 7704(c) of the Code provides an exception
to treatment as a corporation if 90% or more of the gross income of the
Partnership 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. H.R. Rep. No. 495, 100th Cong., 1st Sess. 947, reprinted in
------------
[1987] U.S. Code Cong. & Ad. News 2313-1693. The General Partners have
represented that they 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 in an attempt to qualify for the 90% qualifying
income exception. Hence, even if the Partnership were deemed to be a publicly
traded partnership, assuming the Partnership is operated in accordance with its
stated investment objectives, it is more likely than not that the qualifying
income exception will be satisfied by the Partnership and that the Partnership
will not be treated as a corporation for federal income tax purposes. It should
also be noted, however, that even if the Partnership satisfies the qualifying
income exception, being deemed to be a publicly traded partnership would
nonetheless result in certain material adverse tax consequences to Limited
Partners, including the treatment of income of the Partnership as portfolio
income, rather than passive income, as discussed hereinbelow.
The remaining summary of federal income tax consequences in this opinion
assumes that the Partnership will be classified as a partnership for federal
income tax purposes. 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).
3. Limitations on Deduction of Partnership Losses.
----------------------------------------------
As noted, partnership deductions and losses are generally reflected in each
partner's distributive share of such deductions and losses; however, the
deductibility of a partner's share of such deductions and losses is subject to
various limitations, including limitations relating to the basis of a limited
partner's partnership interest, the deductibility of passive losses and the "at
risk" provisions of the Code.
(a) 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. I.R.C. (S) 704(d). Losses which
exceed a 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 Partner's adjusted basis in his Units has increased above zero. Id. 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 (such as any nonrecourse mortgage
financing which, although not currently contemplated, could, with the approval
of the Limited Partners, be incurred by the Partnership in the future). I.R.C.
(S)(S) 722 and 752(a). 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)
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 6
by his distributive share of the Partnership's losses and by the amount of any
cash distributions which are made to him. I.R.C. (S) 705. (A decrease in a
Limited Partner's share of nonrecourse Partnership liabilities included
previously in the basis of his Units is treated for tax purposes as though it
were a cash distribution to that Partner. I.R.C. (S) 752(b)). A cash
distribution to a Limited Partner will constitute a return of capital to the
extent of the basis of his Units and, 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.
(b) 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." I.R.C. (S) 469(a). 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). I.R.C. (S) 469(c). Based on the above-
cited authority, we are of the opinion that it is more likely than not a Limited
Partner's interest in the Partnership will be treated as a passive activity.
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 and "portfolio income," which includes
nonbusiness income derived from dividends, interest, royalties, annuities and
gains from the sale of property held for investment. I.R.C. (S) 469(e)(1).
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. I.R.C. (S) 469(f). 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. I.R.C. (S) 469(g). Under the
Regulations, suspended losses derived from a specific Partnership Property would
generally not be available to offset non-passive income or gain following the
sale of such property (other than in liquidation of the Partnership) because
similar real estate undertakings under common control and ownership of a pass-
through entity such as the Partnership are generally aggregated into a single
"activity" for purposes of these rules; hence, the sale of a single Partnership
property not in liquidation of the Partnership would not be treated as a
disposition of the entire interest in the passive activity. See Temp. Treas.
---
Reg. (S) 1.469-4T(k)(2)(ii).
In the case of partnerships which are deemed to be publicly traded
partnerships, the Code provides that the passive activity loss rules are applied
separately with respect to items attributable to a publicly traded partnership.
I.R.C. (S) 469(k). 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. H.R. Rep. No. 495, 100th
Cong., 1st Sess. 951, reprinted in [1987] U.S. Code Cong. & Ad. News 2313-1697.
------------
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 be treated as portfolio income rather than
passive income. Id.
--
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 7
(c) At Risk Limitations.
-------------------
The deductibility of partnership losses is limited further by the "at risk"
limitations in the Code. I.R.C. (S) 465(a). 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 considered to have "at risk" at the close of the partnership's
year. Id. A limited partner's amount "at risk" will include the amount of his
--
cash capital contribution to the partnership plus his pro rata share of
"qualified nonrecourse financing" of the partnership, if any. I.R.C. (S) 465(b).
Qualified nonrecourse financing is defined to mean nonrecourse financing
provided by a person unrelated to the taxpayer which is actively and regularly
engaged in the business of lending money (other than a person from whom the
property was purchased). I.R.C. (S) 465(b)(6). Unless and until the Partnership
incurs any such financing, only the cash Capital Contribution of a Limited
Partner will be taken into account when determining such Partner's amount "at
risk." A limited partner's amount "at risk" is reduced by his allocable share of
partnership losses and by partnership distributions and increased by his
allocable share of partnership income. Any deductions disallowed to a limited
partner under this limitation may be carried forward indefinitely and utilized
in subsequent years to the extent that the limited partner's amount "at risk" is
increased in those years.
4. Allocation of Profit and Loss.
-----------------------------
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,
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.
Regulations issued under Section 704(b) (the "Section 704(b) Regulations")
provide that in order to have economic effect: (i) partners' capital accounts
must be determined and maintained in accordance with the Section 704(b)
Regulations; (ii) upon the liquidation of the partnership, liquidating
distributions must be made in accordance with the positive capital account
balances of the partners after taking into account all capital account
adjustments for the partnership's taxable year during which such liquidation
occurs; and (iii) if a partner has a deficit balance in his capital account
following the liquidation of his interest in the partnership after taking into
account all capital account adjustments for the partnership taxable year during
which such liquidation occurs, he must be unconditionally obligated to restore
the amount of such deficit balance to the partnership. Treas. Reg. (S) 1.704-
1(b)(2)(ii)(b) (1991).
The Section 704(b) Regulations contain an alternate test for economic effect,
however, which sets forth circumstances under which allocations will be deemed
to have economic effect without the requirement to restore capital account
deficits upon liquidation. Such alternative test provides that an allocation
will be considered to have economic effect if the partnership agreement contains
provisions satisfying (i) and (ii) above, 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 as of the end
of the partnership's taxable year to which such allocation relates. Treas. Reg.
(S) 1.704-1(b)(2)(ii)(d) (1991). In determining whether an allocation causes or
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 8
increases the deficit balance in a partner's capital account, such partner's
capital account must be reduced for distributions that are reasonably expected
to be made to such partner to the extent they exceed offsetting increases to
such partner's capital account that are reasonably expected to occur during or
prior to the partnership taxable years in which distributions reasonably are
expected to be made. Id. A partnership agreement contains a qualified income
--
offset if it provides that a partner who unexpectedly receives an adjustment,
allocation or distribution which causes a deficit capital account balance will
be allocated items of income and 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 the deficit balance as quickly as
possible. Id.
--
The Partnership Agreement provides for the determination and maintenance of
capital accounts pursuant to the Section 704(b) Regulations and provides that
liquidation proceeds are to be distributed in accordance with capital accounts;
however, the Partnership Agreement does not contain any provision requiring
Partners having deficit capital accounts to restore the amount of such capital
account deficits upon liquidation. The Partnership Agreement does, however,
contain a qualified income offset provision. The qualified income offset
provision in the Partnership Agreement provides that 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 gain from such year) in an amount and manner
sufficient to eliminate such deficit balance as quickly as possible.
Accordingly, no Partner will be allocated items of loss or deduction which would
cause his capital account to be reduced below zero in any year. In addition,
the General Partners have represented that Partnership distributions are not
anticipated to reduce any Limited Partner's capital account below zero and that
distributions of Net Cash From Operations should not have a material effect on a
Limited Partner's capital account since such distributions are anticipated to be
matched by allocations of Net Income to such Partner.
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." 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 substantially the dollar amounts to
be received by partners from a partnership, independent of tax consequences.
Treas. Reg. (S) 1.704-1(b)(2)(iii) (1988). 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. Id. 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 insubstantial 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. Id. 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. Id.
--
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 9
It should be noted that the Partnership Agreement contains a provision
specially allocating items of depreciation, amortization and cost recovery
expenses to Limited Partners holding Class B Status Units up to the amount which
would reduce their capital accounts to zero. The Partnership Agreement also
provides that upon the sale or other disposition of a Partnership Property, Gain
on Sale is allocated first pursuant to the qualified income offset provisions
described above, then to Partners having negative capital accounts, if any,
until all negative capital accounts have been restored to zero, and then to
Limited Partners holding Class B Status Units in an amount equal to the items of
depreciation, amortization and cost recovery expense which were previously
specially allocated to them with respect to the specific Partnership Property,
the sale or disposition of which resulted in the 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. Because
of the presumption contained in the Section 704(b) Regulations that adjustments
to the adjusted basis of a partnership's property will be presumed to be matched
by corresponding changes in such property's fair market value, the foregoing
allocation of Gain on Sale should not be considered to create a strong
likelihood that the economic effect of the prior allocation of depreciation,
amortization and cost recovery expenses would be offset within the meaning of
the Section 704(b) Regulations. Moreover, the prohibition against transitory
allocations in the Section 704(b) Regulations will not render original
allocations invalid 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. Treas. Reg. (S) 1.704-1(b)(2)(iii) (1988). In
this regard, the General Partners have represented that it is contemplated that
the Partnership will hold each property which it acquires for development for a
minimum period of ten years and that it will hold existing income-producing
properties for a period of ten to 12 years.
As noted in the preceding paragraph, the Partnership Agreement contains a
provision specially allocating items of depreciation, amortization and cost
recovery expenses to Limited Partners holding Class B Status Units up to the
amount which would reduce their capital accounts to zero. In order to ensure
that such Limited Partners will bear the risk of actual economic loss in the
event that a Partnership Property is sold at a loss, the Partnership Agreement
further provides for a special allocation of Sale Proceeds in favor of Limited
Partners holding Class A Status Units in an amount equal to the excess of the
original purchase price of such Partnership Property over the sale price of such
Partnership Property but not in excess of the amount of the special allocation
to Limited Partners holding Class B Status Units of items of depreciation,
amortization and cost recovery expense with respect to the specific Partnership
Property sold. Further, since the allocation of depreciation, amortization and
cost recovery expense to Limited Partners holding Class B Status Units will
cause decreases to their capital accounts and since the Partnership Agreement
provides that liquidation proceeds will be distributed among the Partners in
accordance with their capital accounts, Limited Partners holding Class B Status
Units should be deemed to bear the economic risk of loss with respect to such
deductions.
If the allocations of profits and losses in a partnership agreement are deemed
not to have substantial economic effect, then as stated above, the allocations
will be made in accordance with partners' interests in the partnership as
determined by taking into account all facts and circumstances. Treas. Reg. (S)
1.704-1(b)(3)(i) (1991). In this regard, the Section 704(b) Regulations provide
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 that 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. Id.
--
(S) 1.704-1(b)(3)(ii).
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
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 10
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 depreciation,
cost recovery and amortization expense 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 that
the Partnership will be operated strictly in accordance with the terms of the
Partnership Agreement, we are of the 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.
5. 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. I.R.C. (S) 183(c). In general, an activity
will be considered as entered into for profit where there is a reasonable
expectation of profit in the future; however, the determination of whether an
activity is engaged in for profit is based upon the facts and circumstances of
each case. Treas. Reg. (S) 1.183-2(a) (1972).
Based upon the investment objectives of the Partnership and the
representations 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 the Prospectus, based upon our analysis of the
relevant factors to be considered set forth in the Regulations, 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 (see
---
Vorsheck v. C.I.R., 933 F.2d 757 (9th Cir. 1991); Brannen v. C.I.R., 722 F.2d
- ------------------ -----------------
695 (11th Cir. 1984)), we are of the opinion 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.
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, however, the
principles of Section 183 may be applied in the future to disallow deductions
otherwise allocable to Limited Partners from Partnership operations, and we are
unable to give an opinion on the applicability of Section 183 to the Partnership
if our underlying assumptions are changed. Further, we give no opinion as to
the application of Section 183 at the partner level.
6. Tax Shelter Registration.
------------------------
Under Section 6111 of the Code, any entity deemed to be a "tax shelter" as
defined in Section 6111(c) is required to register with the IRS. For these
purposes, a "tax shelter" is defined as any investment with respect to which (i)
a person can reasonably infer from the representations made that the "tax
shelter ratio" for any investor 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; and (ii) is either registered under federal or state
securities laws, sold pursuant to an exemption from such registration which
requires the filing of a notice with a federal or state securities agency or is
a substantial investment. Temp. Treas. Reg. (S) 301.6111-1T, Q&A 4. The "tax
shelter ratio" is determined by dividing the investor's share of the aggregate
deductions derived from the investment, determined without regard to income or
any limitations on the deductibility of passive losses, by the amount of an
investor's contributions. Id. Q&A 5, 13 and 14.
--
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 11
The aggregate amount of the deductions potentially allowable to any of the
Partners, including the General Partners, in the offering of Units in the
Partnership is not expected, and has not been represented in the Prospectus or
any other writing connected with the offering approved by the General Partners,
to exceed an amount equal to twice any such Partner's investment in the
Partnership in any of the Partnership's first five calendar years. In addition,
the General Partners have represented that, in the absence of events which are
unlikely to occur, the aggregate amount of deductions derived from any Partner's
investment in the Partnership, determined without regard to income, will not
exceed twice the amount of any such Partner's investment in the Partnership as
of the close of any year in the Partnership's first five calendar years.
Further, even if the Partnership were deemed to constitute a tax shelter under
Section 6111, the Regulations provide that the registration requirements are
suspended with respect to a tax shelter that qualifies as a "projected income
investment." Temp. Treas. Reg. (S) 301.6111-1T, Q&A 57. The Regulations define a
"projected income investment" as a tax shelter that is not expected to reduce
the cumulative tax liability of any investor for any year during the first five
years ending after the date in which the investment is offered for sale. Id. A
--
tax shelter is not expected to reduce the cumulative tax liability of an
investor for any year during the five year period only if (a) a written
financial projection or other written representation that is provided the
investor prior to sale of interests in the investment states (or leads a
reasonable investor to believe) that the investment will not reduce the
investor's tax liability with respect to any year in the five year period, and
(b) no written or oral projections or representations, other than those related
to circumstances that are highly unlikely to occur, state (or lead a reasonable
investor to believe) that the investment may reduce the cumulative tax liability
of any investor with respect to such years. Id.
--
Based upon the authority of the Regulations 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, we are of the opinion 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.
7. Other Material Tax Issues.
-------------------------
A. Depreciation and Cost Recovery. Section 167(a) of the Code provides that
------------------------------
the real property improvements acquired or constructed by the Partnership and
the personal property acquired by the Partnership shall generally be entitled to
a reasonable allowance for exhaustion, wear and tear or obsolescence. The
amount of the allowable deduction is generally determined under Section 168 of
the Code.
In this regard, Section 168(g)(1)(B) and (g)(2) of the Code provides that to
the extent real property constitutes "tax-exempt use property," the cost
recovery period will be 40 years, and in the case of personal property which
constitutes "tax-exempt use property," the recovery period will be 12 years and
the straight-line method must be utilized for determining deductions in each
case. "Tax-exempt use property" generally includes that percentage of
depreciable property owned by a partnership which equals the percentage of the
partnership interests owned by tax-exempt entities unless all allocations of
partnership items to the tax-exempt entity are "qualified allocations." I.R.C.
(S) 168(h)(6). The allocations under the Partnership Agreement will not
constitute "qualified allocations," and the General Partners have represented
that all of the Partnership's real and personal property will be treated as
"tax-exempt use property" to be depreciated for tax purposes using the straight-
line method over 40 year and 12 year recovery periods, respectively.
It should also be noted that if the Partnership were determined to be holding
one or more properties primarily for sale to customers in the ordinary course of
business, the Partnership might not be entitled to
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 12
depreciation allowances with respect to such properties, or such depreciation
allowances could be substantially curtailed. See I.R.C. (S) 167(a).
---
B. Income Tax Treatment of Certain Payments Made by the Partnership. The
----------------------------------------------------------------
income tax consequences to the Partnership as a result of certain payments made
by the Partnership will be as follows:
(i) No deduction will be allowed for the cost of organizing the Partnership,
but at the election of the Partnership certain qualified organizational
costs may be amortized ratably over a period of not less than 60 months.
I.R.C. (S) 709(b). Organizational expenses are generally defined as expenses
which are incident to the creation of a partnership, are chargeable to a
capital account and are of a character which, if expended incident to the
creation of a partnership having an ascertainable life, would be amortized
over such life.
In addition, certain start-up expenditures may, at the election of the
taxpayer, be amortized ratably over a period of not less than 60 months. I.R.C.
(S) 195. Under Section 195, start-up expenditures which may qualify for this
treatment include amounts which are paid or incurred in connection with
investigating the creation or acquisition of the business, the actual creation
of an active trade or business, and any activity engaged in for profit and the
production of income before the active trade or business begins, in anticipation
of such activity becoming an active trade or business, and which would otherwise
be deductible in the year in which paid or incurred.
The cost of syndicating the Partnership, including costs and expenditures
incurred in connection with promoting and marketing the Units such as sales
commissions, professional fees and printing costs, are neither deductible nor
amortizable. I.R.C. (S) 709(a).
(ii) The Partnership intends to claim deductions for property management fees
and leasing fees paid to Affiliates of the General Partners. Such fees
will be deductible by the Partnership only to the extent that such expenses
are ordinary and necessary and reasonable in amount. I.R.C. (S) 162(a).
Because the issue is dependent upon factual determinations which will not
be known until the actual services are performed and such fees are paid by
the Partnership, we are unable to render an opinion as to whether such fees
will constitute ordinary and necessary business expenses deductible under
Section 162 of the Code.
(iii) Any ongoing expenses of the Partnership paid to the General Partners,
such as management fees, will be deductible by the Partnership only to the
extent that such expenses are ordinary and necessary and reasonable in amount
and either are received by the General Partners otherwise than in their
capacities as Partners under Section 707(a) of the Code or if they constitute
guaranteed payments to the General Partners under Section 707(c) of the Code.
Because these issues are dependent upon factual determinations which will not be
known until actual services are performed and such fees are paid by the
Partnership, we are unable to render an opinion as to whether such fees will be
deductible by the Partnership.
In summary, 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
depend upon facts relating to and existing at the time the services are to be
rendered to the Partnership, we are 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.
C. Investment by Qualified Plans and Other Tax-Exempt Entities. The IRS may
-----------------------------------------------------------
take the position that income derived from the ownership of Units by tax-exempt
entities should be subject to federal income tax as
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 13
"unrelated business taxable income" ("UBTI"), which is defined generally 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. I.R.C. (S) 512(a).
While the types of income and gain which should be realized by the Partnership
should not generally constitute UBTI within the meaning of Section 512(a) of the
Code, all or a portion of such income would constitute UBTI if the Partnership
were to own property which is subject to "acquisition indebtedness." I.R.C.
(S) 512(b)(4). Acquisition indebtedness is defined as the unpaid amount of: (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. I.R.C. (S) 514(c)(1). The
Partnership's acquisitions of property will be made on an all cash basis;
however, the Partnership Agreement does authorize the Partnership, inter alia,
----- ----
to borrow funds in order to finance improvement of and improvements to
properties when the General Partners deem such improvements to be necessary to
protect the capital previously invested in the properties, to protect the value
of the Partnership's investment in a property or to make a particular property
more attractive for sale or lease. The General Partners have represented that
they will not exercise this authority on behalf of the Partnership unless they
have first received an opinion of counsel or an opinion of the Partnership's tax
accountants that the proposed indebtedness more likely than not will not cause
the income of the Partnership to be characterized as UBTI.
If all or any portion of the Partnership's income were to be characterized as
UBTI by reason of the "acquisition indebtedness" rules, the "dealer" status
rules (discussed at paragraph F below) or otherwise, a tax-exempt entity holding
Units would be required to report a portion of its pro rata share of the
Partnership's taxable income as UBTI. I.R.C. (S) 514(a)(1). Moreover, a
"charitable remainder trust" qualifying for exemption from income taxation under
Section 664 of the Code would lose such exemption with respect to all of its
income for a tax year in which UBTI is derived from its ownership of Units and
would be required to file an income tax return on Form 1041. A tax-exempt
entity (other than a charitable remainder trust) is required to file an Exempt
Organization Business Income Tax Return when its gross UBTI from all sources
exceeds $1,000 in any year and it is generally taxable on UBTI in excess of
$1,000 in each year.
D. 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. The tax benefits described in the Prospectus
associated with ownership of a property, such as depreciation or cost recovery
deductions, will 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. See Rev. Rul. 72-408, 1972-2 C.B. 86.
---
In this regard, judicial decisions and administrative pronouncements of the
IRS make it clear that the characterization of a transaction as either a true
lease, conditional sale or financing is determined on the basis of weighing many
factors, although courts have reached different conclusions even in instances
where the characteristics of two transactions are substantially similar. The
factors considered by courts derive primarily from the analyses in the case of
Frank Lyon Company v. United States, 435 U.S. 561 (1978) and Revenue Ruling 55-
- -----------------------------------
540, 1955-2 C.B. 39. Typically, the matters considered by courts and the IRS
are: (i) the extent to which the transaction is entered into by the lessor with
a bona fide profit motive and the extent to which the lessor will forfeit
economic benefits if it forfeits the property; (ii) the extent to which rentals
are equivalent to fair market rental value of the property and the extent to
which the lessor will derive cash flow during the term of the lease; (iii) the
extent
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 14
to which the lessor's investment is "at risk" at the inception of the lease and
at all times during the lease term; (iv) the extent to which the original cost
of the property does not exceed its fair market value at the time of purchase;
(v) the lessor's original cost for the property compared to the anticipated fair
market value at the end of the lease term; (vi) whether the lessee has the right
to purchase the property at the end of the lease term at less than fair market
value; (vii) whether the lessee furnishes funds to, or makes any guaranties on
behalf of the lessor; (viii) the extent to which the lease is entered into on a
"net" basis; (ix) the extent to which the lessee or the lessor controls the
price and terms of settlement in the event of casualty to, or condemnation of,
the leased property; (x) whether the lessee may assign its leasehold without the
lessor's consent; (xi) whether the lessor may assign its interest without the
lessee's consent; (xii) whether the lessee has any unilateral authority to
cancel the lease; and (xiii) whether the lessor or the lessee will be the
beneficiary of any appreciation in value of the leased property.
The General Partners have represented that they will use their best efforts to
structure any sale-leaseback transactions such that the lease will be
characterized as a true lease; however, if any such transaction were
characterized as a financing for federal income tax purposes, depreciation and
cost recovery deductions would not be available to the Partnership, and any
income derived from the leaseback by the Partnership would be treated as
"interest" which is "portfolio income," rather than passive activity income.
See I.R.C. (S) 469.
- ---
E. Sales of Partnership Property. The General Partners anticipate that most
-----------------------------
and perhaps all of the assets to be acquired and held by the Partnership will
constitute "Section 1231 property," defined as real property and depreciable
assets used in a trade or business and held for more than one year. I.R.C.
(S) 1231(a). To the extent that Partnership assets constitute Section 1231
property, a Limited Partner's share of the gains or losses resulting from the
sale of the Partnership's assets would 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 would be treated as
long-term capital gain (subject to depreciation or cost recovery allowance
recapture, if any) or ordinary loss, as the case may be. Net Section 1231 gains
must be treated as ordinary income, however, to the extent of the aggregate
amount of net Section 1231 losses claimed for the five most recent taxable years
(to the extent such losses have not previously been "recaptured" pursuant to
this rule). I.R.C. (S) 1231(c).
Gain will be recognized by the Partnership to the extent that the amount
realized from any sale of Partnership Property exceeds the adjusted basis of
such property. I.R.C. (S) 1001(a). The adjusted basis of Partnership Property
will in general be its original cost less depreciation and cost recovery
allowances allowed to the Partnership with respect to such property. I.R.C.
(S) 1011. Loss will be recognized to the extent that the adjusted basis of such
property exceeds the amount realized. The amount realized from a sale or other
disposition of property includes the sum of cash and property received plus the
amount of any liabilities assumed by the purchaser or to which the property
remains subject. I.R.C. (S) 1001(b).
Any excess of gains over losses realized by the Partnership on sales of
capital assets (generally all property other than property held primarily for
sale in the ordinary course of a trade or business or Section 1231 property)
held for more than one year will be long-term capital gain. I.R.C. (S) 1201. Any
excess of losses over gains by the Partnership on the sales of any such capital
assets held for more than one year will be net long-term capital loss.
F. 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," i.e., a seller of real estate held primarily for sale to
----
customers in the ordinary course of a trade or 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
Exempt Organizations. I.R.C. (S)(S) 1221(1) and 512(b)(5)(B).
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 15
Whether property is held primarily for sale to customers in the ordinary
course of a trade or business must be determined from all the facts and
circumstances surrounding the particular property and sale in question. In this
regard, the General Partners have represented that 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.
Further, the Partnership will make sales thereof only as, in the opinion of the
General Partners, are consistent with the Partnership's investment objectives.
The IRS may take the position, however, that the gain realized on the sale of a
Partnership Property should be characterized as ordinary income (and UBTI).
Because the resolution of this 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, we are 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 a trade or business.
G. Sales of Limited Partnership Units. The gain or loss realized on any sale
----------------------------------
of Units by a Limited Partner (who is not a "dealer" with respect to such Units)
who has held the Units for more than one year 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," which portion would be taxed as ordinary income. I.R.C.
(S) 741. Potential cost recovery allowance recapture on personal property
associated with Partnership Property will be treated as "unrealized receivables"
for this purpose. I.R.C. (S) 751(c). The Partnership generally must report to
the IRS the sale or exchange of any partnership interest where any portion of
the consideration received in exchange for such interest is attributable to
"unrealized receivables" or "inventory items" of the Partnership. I.R.C.
(S) 6050K.
Gain or loss on any such sale will be measured by the difference between the
gross sale price and the Limited Partner's adjusted tax basis in his Units.
I.R.C. (S) 1001(a). In computing the gross proceeds received from the sale or
other disposition of his Units, a Partner must include among other things his
share of the Partnership's nonrecourse indebtedness, if any. Treas. Reg.
(S) 1.752-3 (1991).
H. 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 Partner receives cash in
excess of the basis of his Units, such excess will be taxable as a gain. I.R.C.
(S) 731(a)(1). If a 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. I.R.C. (S) 731(a)(2).
There are a number of exceptions to such general rules, however, including but
not limited to, the effect of a special basis election under Section 732(d) of
the Code for a 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 under
Section 751(b) of the Code.
I. Foreign Investors. Non-resident aliens, foreign corporations, foreign
-----------------
partnerships, foreign trusts and foreign estates (collectively referred to as
"foreign investors") who are partners in a partnership engaged in a trade or
business in the United States will be considered to be engaged in such trade or
business, even if such foreign investors are only limited partners. A foreign
investor engaged in a U.S. trade or business who has income that is "effectively
connected" with that trade or business will be subject to regular U.S. income
taxes. I.R.C. (S) 871(b).
After the Partnership has acquired income-producing equity investments, the
anticipated activities of the Partnership will likely constitute a U. S. trade
or business and a "permanent establishment" within the meaning of
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 16
the Code and tax treaties entered into with foreign jurisdictions ("Tax
Treaties") and the income from such investments (i.e., rents) will likely be
---
deemed to be effectively connected with that trade or business. Therefore, a
foreign investor who becomes a Limited Partner in the Partnership will be
required to file a U.S. income tax return on which he must report his
distributive share of the Partnership's items of income, gain, loss, deduction
and credit, and pay U.S. income taxes at regular U.S. income tax rates on his
share of any Net Income. In addition, Section 1446 of the Code provides for
withholding taxes in an amount equal to 31% (34% in the case of foreign
corporate investors) of the effectively connected taxable income allocated to
such foreign investors. See generally Rev. Proc. 89-31, 1989-1 C.B. 895, as
-------------
modified by Rev. Proc. 92-66, 1992-2 C.B. 428.
Since a foreign investor who becomes a Limited Partner in the Partnership will
likely be considered to be engaged in a U.S. trade or business and to have a
permanent establishment in the United States, certain types of U.S. related
income from other business transactions of the foreign investor could also be
attributed to that trade or business or permanent establishment under the Code
or a Tax Treaty (e.g., rents from other U.S. real estate owned by such
----
investor). Furthermore, a foreign investor may be subject to tax on his
distributive share of the Partnership's income and gain in his country of
nationality, residence or elsewhere. The method of taxation in such
jurisdictions, if any, may vary considerably from the U.S. tax system with
respect to characterization of the Partnership and its income.
It should also be noted that a foreign investor's allocable share of escrow
earnings and interest income from funds placed in temporary investments pending
acquisition of income-producing equity investments will likely not be considered
to be U.S. source income effectively connected with a U.S. trade or business,
and the foreign investor will not be deemed to be otherwise engaging in a U.S.
trade or business with respect to those investments. Accordingly, the
Partnership will generally be obligated to withhold U.S. tax in the amount of
30% of such investor's allocable share of the income derived from these
investments. I.R.C. (S) 1441(a).
A foreign investor will also be subject to U.S. income tax on gain realized
from the sale of a United States real property interest and also, for this
purpose, the sale of a Unit. I.R.C. (S) 897. Further, under Section 1445 of the
Code, a partnership is required to withhold tax equal to 35% of the foreign
investor's allocable share of the gain realized from the sale of partnership
real property (regardless of whether an actual distribution is made to such
investor). I.R.C. (S) 1445(e)(1). The amount required to be withheld by a
purchaser of Units is generally equal to 10% of the purchase price paid for the
Units. I.R.C. (S) 1445(e)(5); Temp. Treas. Reg. (S) 1.1445-11T.
It is impossible for us to predict the impact of the above-described general
principles on specific foreign investors, or how the provisions of any Tax
Treaty between the United States and the foreign investor's country of
nationality or residence may affect these results. Accordingly, we give no
opinion as to the income tax consequences to a foreign investor investing as a
Limited Partner in the Partnership.
J. State and Local Taxes. The Partnership will conduct its activities and
---------------------
own properties in different taxing jurisdictions. Accordingly, it is likely
that an investment in the Partnership will 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. In addition, many states require partnerships to withhold
and pay state income taxes owed by non-resident partners relating to income-
producing properties located in such states.
The Prospectus makes no attempt to summarize the state and local tax
consequences to a Limited Partner in those states in which the Partnership may
own properties or carry on activities, and it is impractical for us to opine on
all state laws or to predict the states in which the Partnership may own
properties. However, the issues
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 17
which a Limited Partner should consider include: (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 be filed in those
states where the Partnership will acquire properties; and (iii) whether he will
be subject to state income tax withholding in states where the Partnership will
acquire properties.
K. General Considerations.
----------------------
(i) Partnership Items. The income tax treatment of all Partnership items
-----------------
will be determined at the partnership level. I.R.C. (S) 6221. In this regard,
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. For partnerships such as the
Partnership, where the total number of partners is more than 100, the IRS
is not required to furnish notice of the commencement of any administrative
proceeding or the final disposition of any such proceeding to any partner
having less than a 1% interest in the profits of the partnership. I.R.C.
(S) 6223(b).
(ii) Accuracy-Related Penalties. Under Section 6662 of the Code, a penalty
--------------------------
equal to 20% of any underpayment of tax due to (i) negligence or disregard
of rules or regulations, (ii) any substantial valuation misstatement, or
(iii) any "substantial understatement of income tax" can be imposed on a
taxpayer. 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 ($10,000 in the case of a corporation other
than a Subchapter S corporation or a personal holding company). I.R.C.
(S) 6662(d)(1). 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 (a) 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 (b) any item with
respect to which the taxpayer adequately discloses on his return the
relevant facts affecting the item's income tax treatment. I.R.C.
(S) 6662(d)(2). In the case of a "tax shelter," which is defined in Section
6662(d)(2)(C)(iii) of the Code as a partnership or other entity, or other
plan or arrangement, if a significant purpose of such partnership, entity,
plan or arrangement is 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. I.R.C. (S) 6662(d)(2)(C)(i).
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. 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, the definition of a "tax shelter" for these purposes
has been broadened recently to include entities which have as a "significant
purpose" the avoidance or evasion of federal income tax, rather than a
"principal purpose," as under prior law. Due to the lack of judicial or
administrative interpretation of this new standard, and because the resolution
of this 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, we are unable to render an
opinion as to whether an investment in the Partnership will be considered a tax
shelter for purposes of determining certain potential exemptions from the
application of Section 6662 of the Code.
(iii) Tax Shelter Investor Lists. Section 6112 of the Code requires that a
--------------------------
list identifying each person who has invested in a potentially abusive tax
shelter be maintained by the tax shelter organizer. The list
<PAGE>
General Partners
Wells Real Estate Fund X, L.P. and
Wells Real Estate Fund XI, L.P.
November 2, 1998
Page 18
must include the name, address and taxpayer identification number of each
investor, as well as certain other information. The organizer is also required
to make the list available for inspection upon request by the IRS. The term
"potentially abusive tax shelter" is defined for this purpose as (a) any tax
shelter with respect to which registration is required, as described above, and
(b) any other entity, plan or arrangement that is treated by applicable
Regulations as a tax shelter for purposes of the list requirements. The
Regulations under Section 6112 clarify that an entity which is a tax shelter
under Section 6111, but which is not required to register as such because it
qualifies as a "projected income investment," continues to be subject to the
list requirements of Section 6112. Although the General Partners do not believe
that the Partnership constitutes a "potentially abusive tax shelter," the
General Partners do intend to maintain a list of the Limited Partners as
required by Section 6112 of the Code.
8. Aggregate Opinion.
-----------------
Subject to the assumptions and limitations set forth herein, it is our opinion
that it is more likely than not that, in the aggregate, substantially more than
half of the material tax benefits contemplated by the Prospectus, in terms of
their financial impact on a typical investor, will be realized by an investor in
the Partnership. We advise you further that the section of the Prospectus
entitled "Federal Income Tax Consequences" accurately reflects our opinion with
respect to those matters therein as to which an opinion is specifically
attributed to us.
Consent is hereby given to the filing of this opinion as an exhibit to the
Registration Statement and to the references to this firm under the captions
"Legal Opinions" and "Federal Income Tax Consequences" in the Prospectus
concerning this opinion.
Very truly yours,
HOLLAND & KNIGHT LLP
/s/ Holland & Knight LLP
<PAGE>
EXHIBIT 10.1
ESCROW AGREEMENT BETWEEN
REGISTRANT AND NATIONSBANK, N.A.
<PAGE>
______________, 1998
NationsBank, N.A.
3700 Crestwood Parkway
Suite 1050
Duluth, GA 30136
Attn: Robert Mann
Re: Wells Real Estate Fund XII, L.P. Escrow Agreement
Ladies and Gentlemen:
Leo F. Wells, III and Wells Partners, L.P. are the general partners (the
"General Partners") of Wells Real Estate Fund XII, L.P. (the "Partnership"), the
issuer for an offering of units of limited partnership interest (the "Units").
Wells Investment Securities, Inc., a Georgia corporation (the "Dealer Manager"),
will act as Dealer Manager for the offering of the Units. The Partnership will
sell a minimum of 125,000 Units at a price of $10.00 per Unit, for a total
minimum capital raised of $1,250,000 (the "Required Capital"). The Partnership
hereby appoints you as Escrow Agent for purposes of holding the proceeds from
the sale of the Units, and the Partnership shall deposit with you such proceeds
to be held by you as Escrow Agent on the terms and conditions hereinafter set
forth:
1. Persons subscribing to purchase the Units will be instructed by the Dealer
Manager or any soliciting dealers to remit the purchase price in the form of
checks, drafts or money orders (hereinafter called "instruments of payment")
payable to the order of, or funds wired in favor of, "Nations Bank, N.A., as
Escrow Agent." Within one business day after receipt of instruments of payment
from the offering, the Dealer Manager will send to you: (a) each subscriber's
name, address, number of Units purchased and purchase price remitted, and (b)
the instruments of payment from such subscribers for deposit by you into the
deposit account entitled NationsBank, N.A., as Escrow Agent for Wells Real
Estate Fund XII, L.P. (the "Escrow Account"), which deposit shall occur within
one business day after you receive such materials. Instruments of payment and
wired funds received from residents of New York shall be placed in a separate
deposit account entitled "NationsBank, N.A., as Escrow Agent for New York
Residents (Wells Real Estate Fund XII, L.P.)."
2. The aforesaid instruments of payment are to be promptly processed for
collection by you following deposit by the Dealer Manager into the Escrow
Account. The proceeds thereof are to be held in the Escrow Account until such
funds are either returned to the subscribers in accordance with paragraph 3
hereof or otherwise disbursed in accordance with paragraph 6 hereof. In the
event any of the instruments of payment are returned to you for nonpayment prior
to receipt by you of the Required Capital, you shall promptly notify the Dealer
Manager in writing of such nonpayment, and you are authorized to debit the
Escrow Account in the amount of such return payment as well as any interest
earned on the investment represented by such payment.
3. In the event that at the close of business on _____________, 1999 (the
"Expiration Date") you are not in receipt of evidence of subscriptions accepted
on or before such date, and instruments of payment dated not later than that
date (or actual wired funds), for the purchase of Units providing for total
purchase proceeds that equal the Required Capital (exclusive of any funds
received from subscriptions for Units from entities which we have notified you
are affiliated with the General Partners or their Affiliates and exclusive of
subscriptions from New York residents), you shall promptly notify the
Partnership that such instruments of payment have not been received by you.
Thereafter, you agree to use your best efforts to obtain an executed IRS Form W-
9 from each subscriber. Promptly following the Expiration Date, and in any
event no later than five business days after the Expiration Date, you shall
promptly return by your check the funds deposited in the Escrow Account, or
shall return the instruments of payment delivered to you if such instruments
have not been processed for collection prior to such time, directly to each
subscriber at the address given to the Partnership. Included in the remittance
shall be a proportionate share
<PAGE>
of the income earned in the account allocable to each subscriber's investment in
accordance with the terms and conditions specified in paragraph 7 hereof, except
that in the case of subscribers who have not provided to you an executed Form W-
9, you shall withhold thirty-one percent (31%) of the earnings attributable to
those subscribers in accordance with IRS Regulations. In the event you receive
an executed Form W-9 from a subscriber after you have returned such subscriber's
proceeds, net of the thirty-one percent (31%) withholding, you shall promptly
refund by your check the amount withheld to such subscriber. Notwithstanding the
foregoing, you shall not be required to remit any payments until funds
represented by such payments have been collected by you.
In the event that the Partnership rejects any subscription for which you have
already collected funds, you shall promptly issue a refund check to the rejected
subscriber. If the General Partners reject any subscription for which you have
not yet collected funds but have submitted the subscriber's check for
collection, you shall promptly issue a check in the amount of the subscriber's
check to the rejected subscriber after you have cleared such funds. If you have
not yet submitted a rejected subscriber's check for collection, you shall
promptly remit the subscriber's check directly to the subscriber.
4. Following receipt by you of cash and instruments of payment (or wired
funds) of the Required Capital prior to the time provided in paragraph 3
hereinabove, you shall notify the Partnership in writing within one business day
when such funds have been collected through normal banking channels and
deposited in the Escrow Account.
5. Prior to the disbursement of funds deposited in the Escrow Account in
accordance with the provisions of paragraph 3 or 6 hereof, you shall invest all
of the funds deposited in the Escrow Account in "Short-term Investments" (as
defined below) and you are further authorized and you agree to reinvest all
earnings and interest derived therefrom in any of the Short-term Investments
specified below. In the event that instruments of payment are returned to you
for nonpayment, you are authorized to debit the Escrow Account in accordance
with paragraph 2 hereof.
"Short-term Investments" include 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, including, without
limitation, such certificates or instruments of The Bank of New York), which
mature on or before the Expiration Date, unless such instrument cannot be
readily sold or otherwise disposed of for cash by the Expiration Date without
any dissipation of the offering proceeds invested.
The following securities are not permissible investments:
(a) money-market mutual funds;
(b) corporate equity or debt securities;
(c) repurchase agreements;
(d) bankers' acceptances;
(e) commercial paper; and
(f) municipal securities.
6. All disbursements from the Escrow Account, except for disbursements under
the provisions of paragraph 3 hereof, shall be made by you only pursuant to the
provisions of this paragraph 6. Except for disbursements authorized upon court
order, you shall hold all funds in the Escrow Account until (i) the date checks
for Required Capital have cleared normal banking channels after receipt by you
of the Required Capital, and (ii) receipt of letter instructions from the
2
<PAGE>
Partnership directing disbursements of such funds to the Partnership.
Notwithstanding the foregoing, all subscriptions received from New York and
Pennsylvania residents must be retained by you until such time as the
Partnership raises a total of $2,500,000. In disbursing such funds, you are
authorized to rely solely upon such letter instructions which you receive from
the Partnership whether or not such instructions are correct, true or authentic;
provided that, if in your opinion such letter instructions from the Partnership
are unclear, you are authorized to rely upon the legal counsel to the
Partnership in distributing such funds to the effect that distribution of the
funds is authorized by the letter instructions of the Partnership and that
distribution of the funds in that manner is authorized by and in compliance with
such letter. However, you shall not be required to disburse any funds
attributable to instruments of payment which have not been collected by you,
provided that you shall use your best efforts to promptly collect such funds
after your receipt of disbursement instructions from the Partnership in
accordance with this paragraph, and shall disburse such funds in compliance with
the disbursement instructions from the Partnership.
7. In the event the offering of Units terminates prior to receipt of the
Required Capital, income earned on subscription proceeds deposited in the Escrow
Account ("Gross Escrow Income") minus the total escrow expenses ("Net Escrow
Income") shall be remitted to subscribers in compliance with paragraph 3. Each
subscriber's pro rata portion of Net Escrow Income shall be determined as
follows: The total amount of Net Escrow Income shall be multiplied by a
fraction, the numerator of which is determined by multiplying the number of
Units purchased by said subscriber times the number of days said subscriber's
proceeds are invested prior to termination of the offering, and the denominator
of which is the total of the numerators for all such subscribers.
Notwithstanding the foregoing, (i) escrow expenses may be deducted from the
Escrow Account only to the extent of Gross Escrow Income, and the General
Partners shall reimburse the Escrow Agent for any escrow expenses in excess of
such amount, and (ii) Maine, Missouri, Ohio and Pennsylvania residents will be
paid their pro rata portion of income earned on subscription proceeds deposited
in the Escrow Account without any deductions for escrow expenses. You shall
promptly notify the Partnership of the amount of Net Escrow Income which
subscribers who are Maine, Missouri, Ohio or Pennsylvania residents would have
received if escrow expenses were not deducted from Gross Escrow Income, and the
General Partner shall reimburse you for such pro rata escrow expenses
attributable to subscribers who are Maine, Missouri, Ohio or Pennsylvania
residents. You shall promptly remit all such Net Escrow Income in accordance
with paragraph 3.
8. As compensation for serving as Escrow Agent hereunder, you shall receive a
fee, as set forth on Schedule A attached hereto.
9. In performing any of your duties hereunder, you shall not incur any
liability to anyone for any damages, losses or expenses, except for willful
default, breach of trust, or gross negligence, and accordingly you shall not
incur any such liability with respect to any action taken or omitted (1) in good
faith upon advice of your counsel given with respect to any questions relating
to your duties and responsibilities under this Agreement, or (2) in reliance
upon any instrument, including any written instrument or instruction provided
for in this Agreement, not only as to its due execution and validity and
effectiveness of its provisions but also as to the truth and accuracy of
information contained therein, which you shall in good faith believe to be
genuine, to have been signed or presented by a proper person or persons and to
conform to the provisions of this Agreement.
10. The Partnership hereby agrees to indemnify and hold you harmless against
any and all losses, claims, damages, liabilities and expenses, including the
reasonable cost of attorneys' fees and disbursements, that may be imposed on you
or incurred by you in connection with your acceptance of appointment as the
Escrow Agent hereunder, or the performance of your duties hereunder, including
any litigation arising from this Agreement or involving the subject matter
hereof, except where such losses, claims, damages, liabilities and expenses
result from willful default, breach of trust or gross negligence.
11. In the event of a dispute between the parties hereto sufficient in your
discretion to justify doing so, you shall be entitled to tender into the
registry or custody of any court of competent jurisdiction all money or property
in your hands under this Agreement, together with such legal pleadings as you
deem appropriate, and thereupon be discharged from all further duties and
liabilities under this Agreement. In the event of any uncertainty as to your
duties hereunder, you may refuse to act under the provisions of this Agreement
pending order of a court of competent jurisdiction and you shall have no
liability to the Partnership or to any other person as a result of such action.
Any such legal action may be brought in such court as you shall determine to
have jurisdiction thereof. The filing of any such legal proceedings shall not
deprive you of your compensation earned prior to such filing.
3
<PAGE>
12. All written notices and letters required hereunder to you shall only be
effective if delivered personally or by certified mail, return receipt requested
to NationsBank, N.A., 3700 Crestwood Parkway, Suite 1050, Duluth, Georgia 30136,
Attn: Robert Mann. All written notices and letters required hereunder to the
Partnership or the Dealer Manager shall only be effective if delivered
personally or by certified mail, return receipt requested to Leo F. Wells, III,
3885 Holcomb Bridge Road, Norcross, Georgia 30092.
13. This Agreement shall be governed by the laws of the State of Georgia as to
both interpretation and performance.
14. The provisions of this Agreement shall be binding upon the legal
representatives, heirs, successors and assigns of the parties hereto.
15. The Partnership hereby acknowledges that you are serving as Escrow Agent
only for the limited purposes herein set forth, and hereby agrees that it will
not represent or imply that you, by serving as Escrow Agent hereunder or
otherwise, have investigated the desirabilities or advisability of investment in
the Partnership, or have approved, endorsed or passed upon the merits of the
Units or the Partnership. The Partnership further agrees to instruct the Dealer
Manager, and each of its representatives, and any other representative who may
offer Units to persons from time to time, that they shall not represent or imply
that you have investigated the desirability or advisability of investment in the
Partnership, or have approved, endorsed or passed upon the merits of the Units
or the Partnership, nor shall they use your name in any manner whatsoever in
connection with the offer or sale of the Units other than by acknowledgment that
you have agreed to serve as Escrow Agent for the limited purposes herein set
forth.
16. This Agreement and any amendment hereto may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed to be an
original.
17. In the event that you receive instruments of payment (or wired funds)
after the Required Capital has been received and the proceeds of the Escrow
Account have been distributed to the Partnership, you are hereby authorized to
deposit such instruments of payment to any deposit account as directed by the
Partnership. The application of said funds into a deposit account directed by
the Partnership shall be a full acquittance to you and you shall not be
responsible for the application of said funds.
18. The Escrow Agent shall be bound only by the terms of this Escrow
Agreement and shall not be bound or incur any liability with respect to any
other agreements or understanding between any other parties, whether or not the
Escrow Agent has knowledge of any such agreements or understandings.
19. Indemnification provisions set forth herein shall survive the termination
of this Agreement.
20. Upon acceptance and distribution of the Required Capital, this Escrow
Agreement shall terminate and the Escrow Agent shall have no further
responsibility or liability with regard to the terms of this Agreement.
21. The Escrow Agent has no responsibility for accepting, rejecting or
approving subscriptions.
22. This Agreement shall not be modified, revoked, released or terminated
unless reduced to writing and signed by all parties hereto, subject to the
following paragraph.
Should, at any time, any attempt be made to modify this Agreement in a manner
that would increase the duties and responsibilities of the Escrow Agent or to
modify this Agreement in any manner which the Escrow Agent shall deem
undesirable, or at any other time, the Escrow Agent may resign by notifying the
Partnership in writing, by certified mail, and until (i) the acceptance by a
successor escrow agent as shall be appointed by the Partnership; or (ii) thirty
(30) days following the date upon which notice was mailed, whichever occurs
sooner, the Escrow
4
<PAGE>
Agent's only remaining obligation shall be to perform its duties hereunder in
accordance with the terms of the Agreement.
23. The Escrow Agent may resign at any time from its obligations under this
Escrow Agreement by providing written notice to the Partnership. Such
resignation shall be effective on the date specified in such notice which shall
be not less than thirty (30) days after such written notice has been given. The
Escrow Agent shall have no responsibility for the appointment of a successor
escrow agent. Unless otherwise provided in this Agreement, final termination of
this Escrow Agreement shall occur on the date that all funds held in the Escrow
Account are distributed either (a) to the Partnership pursuant to paragraph 6
hereof, or (b) to subscribers pursuant to paragraphs 3 and 7 hereof.
24. The Escrow Agent may be removed for cause by the Partnership by written
notice to the Escrow Agent effective on the date specified in such notice. The
removal of the Escrow Agent shall not deprive the Escrow Agent of its
compensation earned prior to such removal.
Agreed to as of the _____ day of _______________, 1998.
WELLS REAL ESTATE FUND XII, L.P.
A Georgia Limited Partnership
By: Wells Partners, L.P.
A Georgia Limited Partnership
(General Partner)
By: Wells Capital, Inc.
A Georgia Corporation
Attest: (General Partner)
By: By:
-------------------- ----------------------
Name: Brian M. Conlon Leo F. Wells, III
Title: Assistant Secretary President
By:_____________________
LEO F. WELLS, III
General Partner
WELLS INVESTMENT SECURITIES, INC.
A Georgia Corporation
Attest:
By:_______________________ By:___________________________
Name:_____________________ Leo F. Wells, III
Title:____________________ President
[SIGNATURES CONTINUED ON NEXT PAGE]
5
<PAGE>
The terms and conditions contained above are hereby
accepted and agreed to by:
NATIONSBANK, N.A.
Attest: Escrow Agent
By:_________________ By:______________________________________
Name:_______________ Name:____________________________________
Title:______________ Title:___________________________________
6
<PAGE>
EXHIBIT 10.2
FORM OF LEASING AND TENANT COORDINATING AGREEMENT
BETWEEN REGISTRANT AND WELLS MANAGEMENT COMPANY, INC.
<PAGE>
LEASING AND TENANT COORDINATING AGREEMENT
-----------------------------------------
THIS AGREEMENT, made as of the _____ day of _____________, ______, between
WELLS REAL ESTATE FUND ___, L.P., a Georgia limited partnership (the "Owner"),
and WELLS MANAGEMENT COMPANY, INC., a Georgia corporation (the "Agent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Owner intends to raise money from the sale of limited partnership
interests for the acquisition or construction of income-producing improvements
on several tracts as yet unspecified but to be acquired by Owner (the
"Partnership Properties"); and
WHEREAS, the Owner intends to employ the Agent to manage any leasable
improvements that may be constructed on the Partnership Properties; and
WHEREAS, the Owner and Agent are entering into this Agreement to establish the
terms and conditions for such services.
NOW, THEREFORE, in consideration of the mutual premises and covenants herein
contained, the Owner and Agent agree as follows:
1. Leasing Agent. The Owner hereby engages the Agent for the term hereof as
-------------
the exclusive leasing and tenant coordinating agent for the improvements to be
developed on the Partnership Properties.
2. Effective Date and Term. This Agreement shall become effective upon the
-----------------------
date hereof. The initial term of this Agreement shall be for a period of 12
months beginning on the date the Owner notifies the Agent in writing that one or
more Partnership Properties are available for lease. The term shall be
automatically extended for an additional one year period at the end of each year
unless the Owner or Agent give sixty (60) days written notice of their intention
not to renew this Agreement. Both the Owner and the Agent may terminate this
Agreement at an earlier date upon sixty (60) days written notice to the other
party. The Agent may engage in preleasing activities as of the date hereof.
3. Leasing Functions. The Agent, by the execution hereof, accepts the
-----------------
Owner's engagement of the Agent as the exclusive leasing and tenant coordination
agent of the Partnership Properties for the term hereof, and agrees to use its
best efforts to perform the following specific functions:
(a) to seek diligently tenants and obtain signed leases for the Partnership
Properties under the terms prescribed by the Owner;
(b) to coordinate the planning of each tenant's space with the architect
and obtain such tenant's approval of the plan;
<PAGE>
(c) to coordinate the construction of each tenant's space with the
contractor or the Owner and prepare an accounting of tenant overage costs (if
any) for such tenant;
(d) to coordinate each tenant's moving into its completed offices; and
(e) not later than 30 days before the anniversary of this Agreement and
extensions thereof, the Agent shall prepare and submit to the Owner for its
approval a marketing and leasing plan for the Partnership Properties for
the calendar year immediately following such submission. The leasing plan
shall be in the form approved by the Owner prior to the date thereof. As
often as reasonably necessary during the period covered by any such plan,
Agent may submit to the Owner for its approval an updated plan
incorporating such changes as shall be necessary to reflect leasing
experience during such period. If the Owner does not disapprove any such
plan within 30 days after receipt thereof by the Owner, such plan shall be
deemed approved. If the Owner shall disapprove any such plan, it shall so
notify the Agent within said 30 day period and explain the reasons
therefor.
4. Reimbursement. The Agent shall be reimbursed by the Owner for all
-------------
expenses of the Partnership Properties that the Agent incurs in connection with
the performance of its duties and obligations pursuant to this Agreement,
provided that such expenses are expressly authorized by the Owner. Such
reimbursements may include salaries and other employee-related expenses, travel
and other out-of-pocket expenses directly related to a specific Partnership
Property to the extent permitted by the Statement of Policy Regarding Real
Estate Programs adopted on October 9 and 12, 1988, effective January 1, 1989, by
the North American Securities Administrators Association, Inc., as amended (the
"NASAA Guidelines").
5. Compensation of the Agent.
-------------------------
5.1 Agent. For performing the functions outlined in Section 3 the Agent
-----
shall be compensated as follows:
(a) The Agent shall be paid two percent (2%) of the Gross Revenues paid
monthly from rents collected;
(b) In addition to the compensation paid to the Agent under Section 5.1(a)
above, the Agent shall be entitled to receive a separate competitive fee
for the one-time initial rent-up or lease-up of a newly constructed
property, provided said fee is not included in the purchase price of the
property paid by the Owner. For this purpose, a total rehabilitation shall
be included in the phrase "newly constructed." The fee paid the Agent
under this section is intended to comply with Article IV, Section G.3 of
the NASAA Guidelines, and in all instances shall be interpreted in a
manner which will comply with said provision;
(c) The Agent's compensation under Section 5.1(a), but not Section 5.1(b)
hereof, shall apply to all renewals, extensions or expansions of leases
which the Agent has originally negotiated; and
2
<PAGE>
(d) For planning and coordinating the construction of any tenant finish
along with the Owner or any architect, contractor or other authorized person,
the payment for which shall be the responsibility of the tenant, the Agent shall
be entitled to receive from any such tenant an amount equal to 5% of the amount
as remitted by the tenant to the Owner or to a representative of the Owner in
payment for such construction.
As used herein, the term "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 Owner
and proceeds received by the Owner from a sale, exchange, condemnation, eminent
domain taking, casualty or other disposition of assets of the Owner.
5.2 Co-Brokerage. The Owner agrees that the Agent shall not be required to
------------
share or co-broker the compensation outlined in Sections 5.1(a) and (b) with
another agent. The parties further agree that the amount paid to other real
estate agents for their brokerage services shall reduce, on a dollar by dollar
basis, the amount paid to the Agent under Section 5.1(b) hereof. Any commissions
due other real estate agents for procuring a tenant shall be paid by the Owner.
5.3 Sale of Partnership Properties. If the Partnership Properties are sold,
-------------------------------
the Owner agrees to furnish the Agent with an agreement signed by the purchaser
assuming the Owner's obligations to pay compensation earned under Section 5.1 of
this Agreement.
6. Agent's Limited Liability.
-------------------------
6.1 Agent's Liability. The Agent's liability is limited in the following
-----------------
ways:
(a) The Agent shall not be responsible for acts or omissions of any
contractor, any sub-contractor or any of their agents or employees or any other
persons performing any of the work on the Partnership Properties which did not
result from the negligence or misconduct of Agent.
(b) The Agent shall not be responsible for errors or omissions of the
architect, his or its engineers, employees or agents or any other
independent engineer, surveyor or other professionals providing services in
connection with the construction of the Partnership Properties which did
not result from the negligence or misconduct of Agent.
6.2 Indemnification of Owner. In the performance of its duties hereunder,
------------------------
the Agent shall diligently endeavor to protect the property rights and interests
of the Owner as vested in the Partnership Properties. The Agent hereby agrees
to indemnify the Owner and hold the Owner harmless from and against any claims,
actions, damages, expenses (including, without limitation, attorneys' and
accountants' fees and court costs) and liabilities relating to the negligence or
misconduct of the Agent.
3
<PAGE>
7. Notices. Any notice which may be or is required to be given hereunder
-------
shall be deemed given when received by personal delivery or by registered or
certified United States mail, postage prepaid, return receipt requested,
addressed to the Owner and/or the Agent at the addresses set forth after their
respective name below, or at such different addresses as either party shall have
theretofore advised the other party in writing in accordance with this Section
7.
Owner: Wells Real Estate Fund ___, L.P.
c/o Wells Partners, L.P.
General Partner
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Agent: Wells Management Company, Inc.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
8. Limitation. Except as otherwise specifically provided in this Agreement,
----------
the Agent shall have no right to incur any liability on behalf of the Owner or
to bind the Owner by any contract or obligation.
9. Activities of Agent. The obligations of the Agent pursuant to the terms
-------------------
and provisions of this Agreement shall not be construed to preclude the Agent
from engaging in other activities or business ventures, whether or not such
other activities or ventures are in competition with the Partnership Properties
or the business of the Owner.
10. Independent Contractor. The Agent and the Owner shall not be construed
----------------------
as joint venturers or partners of each other pursuant to this Agreement, and
neither shall have the power to bind or obligate the other except as set forth
herein. In all respects the status of the Agent to the Owner under this
Agreement is that of an independent contractor.
11. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Georgia.
12. Counterparts. This Agreement may be executed in multiple counterparts,
------------
each of which shall be deemed an original, but all of which shall constitute one
and the same agreement.
13. Entire Agreement. This Agreement contains the entire understanding and
----------------
all agreements between the parties hereto respecting the leasing and
coordinating of tenant improvements on the Partnership Properties. There are no
representations, agreements, arrangements or understandings, oral or written,
among the parties hereto relating to the leasing and tenant coordinating of the
improvements on the Partnership Properties which are not fully expressed herein.
4
<PAGE>
14. Section Headings. The section headings in this Agreement are inserted
----------------
only as a matter of convenience and for reference and in no way define, limit or
describe the scope or intent of this Agreement or in any way affect this
Agreement.
15. Disputes. If there shall be a dispute among the Agent and the Owner
--------
relating to this Agreement resulting in litigation, the prevailing party in such
litigation shall be entitled to recover from the other party to such litigation
such amount as the court shall fix as reasonable attorneys' fees.
16. Binding Agreement. This Agreement shall be binding upon the parties
-----------------
hereto and their successors and assigns. This Agreement shall not be changed
orally, but may be changed only by a written agreement signed by the Owner and
the Agent. No waiver or any breach of any covenant, condition or agreement
contained herein shall be construed to be a subsequent waiver of that covenant,
condition or agreement or of any subsequent breach thereof or of this Agreement.
17. Assignment. Agent may delegate partially or in full its duties and
----------
rights under this Agreement but only with the vote of a majority in interest of
the Limited Partners of the Owner. Except as provided in the immediately
preceding sentence, this Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns.
(THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK)
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
OWNER AGENT
- ----- -----
WELLS REAL ESTATE FUND __, L.P. WELLS MANAGEMENT COMPANY, INC.,
A Georgia Limited Partnership A Georgia Corporation
By: WELLS PARTNERS, L.P.,
A Georgia Limited Partnership
General Partner By:____________________________________
Leo F. Wells, III
President
By: WELLS CAPITAL, INC., Attest:
A Georgia Corporation
General Partner By:______________________________________
Name:____________________________________
Title:___________________________________
By:______________________
Leo F. Wells, III
President
Attest:
By:__________________________
Name:________________________
Title:_______________________
By:______________________________
LEO F. WELLS, III
General Partner
6
<PAGE>
EXHIBIT 10.3
FORM OF MANAGEMENT AGREEMENT BETWEEN
REGISTRANT AND WELLS MANAGEMENT COMPANY, INC.
<PAGE>
MANAGEMENT AGREEMENT
--------------------
THIS AGREEMENT is made and entered into as of the _____ day of ____________,
______, between WELLS REAL ESTATE FUND ___, L.P., a Georgia limited partnership
("Owner"), and WELLS MANAGEMENT COMPANY, INC., a Georgia corporation with
offices in Norcross, Georgia ("Manager").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Owner intends to raise money from the sale of limited partnership
interests for the acquisition or construction of income-producing improvements
on several tracts as yet unspecified but to be acquired by Owner (the
"Partnership Properties"); and
WHEREAS, Owner intends to employ Manager to manage any leasable improvements
that may be constructed on the Partnership Properties; and
WHEREAS, Owner and Manager are entering into this Agreement to establish the
terms and conditions for such services.
NOW, THEREFORE, in consideration of the mutual covenants herein, the parties
agree as follows:
ARTICLE I.
DEFINITIONS
Except as otherwise specified or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Agreement, and the definitions of such terms are equally applicable both to
the singular and plural forms thereof:
1.1 "Gross Revenues" means 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 Owner and proceeds received by Owner
from a sale, exchange, condemnation, eminent domain taking, casualty or other
disposition of assets of Owner.
1.2 "Improvements" means all buildings, structures and equipment from time to
time located on Partnership Properties and all parking and common areas located
on Partnership Properties.
1.3 "Lease" means, unless the context otherwise requires, any lease or
sublease made by Owner as landlord or by its predecessor.
1.4 "Management Fee" means the fee payable to Manager for its services
hereunder.
<PAGE>
1.5 "Partnership Properties" means all tracts as yet unspecified but to be
acquired by Owner containing income-producing improvements or on which Owner
will construct income-producing improvements.
ARTICLE II.
APPOINTMENT OF MANAGER; SERVICES TO BE PERFORMED
2.1 Appointment of Manager. Owner hereby engages and retains Manager as the
----------------------
sole and exclusive agent and manager of the Partnership Properties and Manager
hereby accepts such appointment on the terms and conditions hereinafter set
forth, it being understood that this Agreement shall cause Manager to be, at
law, Owner's agent upon the terms contained herein.
2.2 General Duties. Manager shall devote its best efforts to performing its
--------------
duties hereunder to manage, operate and maintain the Partnership Properties in a
diligent, careful and vigilant manner. The services of Manager are to be of
scope and quality not less than those generally performed by professional
property managers of other similar properties in the area. Manager shall make
available to Owner the full benefit of the judgment, experience and advice of
the members of Manager's organization and staff with respect to the policies to
be pursued by Owner relating to the operation of the Partnership Properties.
2.3 Specific Duties. Manager's duties include the following:
---------------
(a) Lease Obligations. Manager shall perform all duties of the landlord
-----------------
under all leases insofar as such duties relate to operation, maintenance, and
day-to-day management. Manager shall also provide or cause to be provided, at
Owner's expense, all services normally provided to tenants of like premises,
including where applicable and without limitation, gas, electricity or other
utilities required to be furnished to tenants under leases, normal repairs and
maintenance, and cleaning and janitorial service. Manager shall arrange for and
supervise the performance of all installations and improvements in space leased
to any tenant which are either expressly required under the terms of the lease
of such space or which are customarily provided to tenants.
(b) Maintenance. Manager shall cause the Partnership Properties to be
-----------
maintained in the same manner as similar properties in the area. Manager's
duties and supervision in this respect shall include, without limitation,
cleaning of the interior and the exterior of the Improvements and the
public common areas on the Partnership Properties and the making and
supervision of repair, alterations and decoration of the Improvements,
subject to and in strict compliance with this Agreement and the Leases.
Non-budgeted expenses for any individual item of work which are not
reimbursed by a tenant shall not exceed the sum of $1,000 unless
specifically authorized in advance by Owner, provided that emergency
repairs which are immediately necessary for the preservation or safety of
the Partnership Properties, or for the safety of occupant or other persons,
or required to avoid the suspension of any necessary service
2
<PAGE>
of the Partnership Properties may be made by Manager without prior approval of
Owner if under the circumstances Owner cannot be conveniently notified before
the required emergency repairs must be done.
(c) Notice of Violations. Manager shall forward to Owner promptly upon
--------------------
receipt all notices of violation or other notices from any governmental
authority, and board of fire underwriters or any insurance company, and shall
make such recommendations regarding compliance with such notice as shall be
appropriate.
(d) Personnel. In the event Owner notifies Manager of the necessity of
---------
Manager employing additional personnel to manage the Partnership Properties,
Manager shall cause to be hired personnel to maintain and operate the
Partnership Properties. The persons so hired shall be the employees or
independent contractors of Manager and not of Owner. Manager shall use due care
in the selection and supervision of such employees or independent contractors
and shall not pay such employees or independent contractors out of operating
revenues from the Partnership Properties. Manager shall be responsible for the
preparation of and shall timely file all payroll tax reports and timely make
payments of all withholding and other payroll taxes with respect to each
employee.
(e) Utilities and Supplies. Manager shall, on behalf of Owner, enter
----------------------
into or renew contracts for electricity, gas, steam, landscaping, fuel, oil,
maintenance and other services as are customarily furnished or rendered in
connection with the operation of similar rental property in the area, or as it,
in its reasonable judgment, shall deem prudent, provided that Manager shall
submit to Owner for its approval such contracts for items of expense which are
not reimbursable by tenants. Unless Owner notifies Manager of its disapproval of
any such contract within 10 days after receipt thereof, Owner shall be deemed to
have approved such contract. Manager shall also purchase all supplies which
Manager shall deem necessary to maintain and operate the Partnership Properties,
provided that no such purchase which is not in the ordinary course of business
or which is of a nature not reimbursed by tenants shall be made by Manager
without the prior consent of Owner. The non-budgeted purchase of supplies
calling for an aggregate purchase price in excess of $1,000, which amount is not
reimbursed by tenants, shall not be made without the prior consent of Owner.
(f) Expenses. Manager shall analyze all bills received for services,
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work and supplies in connection with maintaining and operating the Partnership
Properties, pay all such bills, and, if requested by Owner, pay, when due,
utility and water charges, sewer rent and assessments, and any other amount
payable in respect to the Partnership Properties. All bills shall be paid by
Manager within the time required to obtain discounts, if any. Owner may from
time to time request that Manager forward certain bills to Owner promptly after
receipt, and Manager shall comply with any such request. It is understood that
the payment of real property taxes and assessment and insurance premiums will be
paid out of the Account (as hereinafter defined) by Manager at the direction of
Owner. All expenses shall be billed at net cost (i.e., less all rebates,
---
commissions, discounts and allowances, however designed).
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(g) Monies Collected. Manager shall collect all rent and other monies from
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tenants and any sums otherwise due Owner with respect to the Partnership
Properties in the ordinary course of business. In collecting such monies,
Manager shall inform tenants of the Partnership Properties that all remittances
are to be in the form of a check or money order. Owner authorizes Manager to
request, demand, collect and receipt for all such rent and other monies and to
institute legal proceedings in the name of Owner for the collection thereof and
for the dispossession of any tenant in default under its lease. Manager shall
not, however, compromise with any tenant or waive Owner's rights under any lease
without Owner's consent.
(h) Banking Accommodations. Manager shall establish and maintain a
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separate checking account (the "Account"). All monies deposited from time to
time in the Account shall be deemed to be trust funds and shall be and remain
the property of Owner and shall be withdrawn and disbursed by Manager for the
account of Owner only as expressly permitted by this Agreement for the purposes
of performing the obligations of Manager hereunder. No monies collected by
Manager on Owner's behalf shall be commingled with funds of Manager. The Account
shall be maintained, and monies shall be deposited therein and withdrawn
therefrom, in accordance with the following:
(i) All sums received from rents and other income from the Partnership
Properties shall be promptly deposited by Manager in the Account. Manager
shall have the right to designate two or more persons who shall be
authorized to draw against the Account, but only for purposes authorized by
this Agreement.
(ii) All sums due to Manager hereunder, whether for compensation,
reimbursement for expenditures, or otherwise, as herein provided, shall be
a charge against the operating revenues of the Partnership Properties and
shall be paid and/or withdrawn by Manager from the Account prior to the
making of any other disbursements therefrom.
(iii) By the 20th day of each month, Manager shall forward to Owner
net operating proceeds from the preceding month, retaining at all times,
however, a reserve of $3,000.
(i) Tenant Complaints. Manager shall maintain business-like relations with
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the tenants of the Partnership Properties.
(j) Partnership Agreement. Manager has received a copy of Owner's Agreement
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of Limited Partnership (the "Partnership Agreement") and is familiar with the
terms thereof. Manager shall use reasonable care to avoid any act or omission
which, in the performance of its duties hereunder, shall in any way conflict
with the terms of the Partnership Agreement.
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(k) Signs. Manager shall place and remove, or cause to be placed and
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removed, such signs upon the Partnership Properties as Manager deems
appropriate, subject, however, to the terms and conditions of the Leases and to
any applicable ordinances and regulations.
(l) Other Services. Manager shall recommend from time to time to Owner
--------------
such procedures with respect to Partnership Properties as Manager may deem
advisable for the most efficient and economic management services which normally
are performed in connection with the operation of first-class office and
commercial buildings or other buildings, as applicable, and perform all services
normally provided to similar premises, without additional charges to Owner.
2.4 Approval of Leases, Contracts, Etc. Manager shall not approve the
----------------------------------
execution of or otherwise enter into or bind Owner with respect to leases or any
contract or agreement without the prior consent of Owner; provided that without
such consent, except to the extent required under Section 2.3(e), Manager may
enter into any contracts or agreements (excluding Leases of space in the
Partnership Properties) on behalf of Owner in the ordinary course of the
management, operation and maintenance of the Partnership Properties for the
obtaining of utility, maintenance or other services to tenant; and further
provided that without such consent, Manager may enter into any contracts or
agreements on behalf of Owner, in the case of casualty, breakdown in machinery
or other similar emergency, if in the opinion of Manager emergency action or
immediate approval for the commencement of repairs is necessary to prevent
additional damage or greater total expenditure or to protect the Partnership
Properties from damage or prevent default on the part of Owner under any of the
Leases, in which event such action taken shall be taken concurrently with prompt
notice to Owner.
2.5 Accounting, Records and Reports.
-------------------------------
(a) Records. Manager shall maintain all office records and books of
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account and shall record therein, and keep copies of, each invoice received for
services, work and supplies ordered in connection with the maintenance and
operation of the Partnership Properties. Such records shall be maintained on a
double entry basis. Owner and persons designated by Owner shall at all
reasonable times have access to and the right to audit and make independent
examinations of such records, books and accounts and all vouchers, files and all
other material pertaining to the Partnership Properties and this Agreement, all
of which Manager agrees to keep safe, available and separate from any records
not pertaining to Partnership Properties, at a place recommended by Manager and
approved by Owner.
(b) Monthly Reports. On or before the 15th day of each month following the
---------------
month for which such report or statement is prepared and during the term of this
Agreement, Manager shall prepare and submit to Owner the following reports and
statements:
(i) Rental collection record in a form to be agreed upon by Manager and
Owner;
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(ii) Monthly operating statement in a form to be agreed upon by Manager
and Owner;
(iii) Copy of cash disbursements ledger entries for such month;
(iv) Copy of cash receipts ledger entries for such month;
(v) The original copies of all contracts entered into by Manager on
behalf of Owner during such month; and
(vi) Copy of ledger entries for such month relating to security
deposits maintained by Manager.
(c) Budgets and Leasing Plans. Not later than 30 days before the
-------------------------
anniversary of this Agreement and any extensions thereof, Manager shall prepare
and submit to Owner for its approval an operating budget and a marketing and
leasing plan on the Partnership Properties for the calendar year immediately
following such submission. The budget and leasing plan shall be in the form of
the budget and plan approved by Owner prior to the date thereof. As often as
reasonably necessary during the period covered by any such budget, Manager may
submit to Owner for its approval an updated budget or plan incorporating such
changes as shall be necessary to reflect cost over-runs and the like during such
period. If Owner does not disapprove any such budget within 30 days after
receipt thereof by Owner, such budget shall be deemed approved. If Owner shall
disapprove any such budget or plan, it shall so notify Manager within said 30-
day period and explain the reasons therefor.
(d) Returns Required by Law. Manager shall execute and file when due all
-----------------------
forms, reports, and returns required by law relating to the employment of its
personnel.
(e) Notices. Promptly after receipt, Manager shall deliver to Owner all
notices from any tenant, or any governmental authority, that are not of a
routine nature. Manager shall also report expeditiously to Owner notice of any
extensive damage to any part of the Partnership Properties.
ARTICLE III.
EXPENSES
3.1 Owner's Expenses. Except as otherwise specifically provided, all costs
----------------
and expenses incurred hereunder by Manager shall be for the account of and on
behalf of Owner. Such costs and expenses may include salaries and other
employee-related expenses, and all legal, travel and other out-of-pocket
expenses which are directly related to the management of specific Partnership
Property, to the extent permitted by the Statement of Policy Regarding Real
Estate Programs adopted by the North American Securities Administrators
Association, Inc. on October 9 and 12, 1988, effective January 1, 1989, as
amended. All costs and expenses for which
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Owner is responsible under this Agreement, shall be paid by Manager out of the
Account. In the event said account does not contain sufficient funds to pay all
said expenses, Owner shall fund all sums necessary to meet such additional costs
and expenses.
3.2 Manager's Expenses. Manager shall, out of its own funds, pay all of its
------------------
general overhead and administrative expenses.
ARTICLE IV.
MANAGER'S COMPENSATION
4.1 Management Fee. Commencing on the date hereof, Owner shall pay Manager,
--------------
as compensation for its services hereunder, an amount equal to two and one-half
percent (2.5%) of the Gross Revenues paid monthly from the rental income
received from Partnership Properties, over the term of this Agreement
("Management Fee").
4.2 Audit Adjustment. If any audit of the records, books or accounts
----------------
relating to the Partnership Properties discloses an overpayment or underpayment
of Management Fees, Owner or Manager shall promptly pay to the other party the
amount of such overpayment or underpayment, as the case may be. If such audit
discloses an overpayment of Management Fees for any fiscal year of more than the
correct Management Fees for such fiscal year, Manager shall bear the cost of
such audit.
ARTICLE V.
INSURANCE AND INDEMNIFICATION
5.1 Insurance to be Carried.
-----------------------
(a) The Partnership Properties shall be insured by Owner against such
hazards as Owner shall deem appropriate, but in any event insurance sufficient
to comply with the Leases and the Partnership Agreement shall be maintained. All
liability policies shall provide sufficient insurance satisfactory to both Owner
and Manager and shall contain waivers of subrogation for the benefit of Manager.
(b) Manager shall obtain and keep in full force and effect, in accordance
with the laws of the state in which each Partnership Property is located,
employer's liability insurance applicable to and covering all employees of
Manager at the Partnership Properties and all persons engaged in the performance
of any work required hereunder, and Manager shall furnish Owner certificates of
insurers naming Owner as a co-insured and evidencing that such insurance is in
effect. If any work under this Agreement is subcontracted as permitted herein,
Manager shall include in each subcontract a provision that the subcontractor
shall also furnish Owner with such a certificate.
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5.2 Cooperation with Insurers. Manager shall cooperate with and provide
-------------------------
reasonable access to the Partnership Properties to representatives of insurance
companies and insurance brokers or agents with respect to insurance which is in
effect or for which application has been made. Manager shall use its best
efforts to comply with all requirements of insurers.
5.3 Accidents and Claims. Manager shall promptly investigate and shall
--------------------
report in detail to Owner all accidents, claims for damage relating to the
ownership, operation or maintenance of the Partnership Properties, and any
damage or destruction to the Partnership Properties and the estimated costs of
repair thereof, and shall prepare for approval by Owner all reports required by
an insurance company in connection with any such accident, claim, damage, or
destruction. Such reports shall be given to Owner promptly and any report not
so given within 10 days after the occurrence of any such accident, claim, damage
or destruction shall be noted in the monthly report delivered to Owner pursuant
to Section 2.5(b). Manager is authorized to settle any claim against an
insurance company not exceeding $500 arising out of any policy and, in
connection with such claim, to execute proofs of loss and adjustments of loss
and to collect and receipt for loss proceeds. If a claim against an insurance
company exceeds $500, Manager shall take no action specified in the immediately
preceding sentence with respect thereto without the approval of Owner.
5.4 Indemnification. Manager shall hold Owner harmless from and indemnify
---------------
and defend Owner against any and all claims or liability for any injury or
damage to any person or property whatsoever for which Manager is responsible
occurring in, on, or about the Partnership Properties, including, without
limitation, the Improvements when such injury or damage shall be caused by the
negligence of Manager, its agents, servants, or employees, except to the extent
that Owner recovers insurance proceeds with respect to such matter. Owner will
indemnify and hold Manager harmless against all liability for injury to persons
and damage to property caused by Owner's negligence and which did not result
from the negligence or misconduct of Manager, except to the extent Manager
recovers insurance proceeds with respect to such matter.
ARTICLE VI.
TERM, TERMINATION
6.1 Term. This Agreement shall commence on the date first above written and
----
shall continue until terminated in accordance with the earliest to occur of the
following:
(a) One year from the date of the commencement of the term hereof.
However, this Agreement will be automatically extended for an additional one
year period at the end of each year unless Owner or Manager gives sixty (60)
days written notice of its intention to terminate the Agreement;
(b) Sixty (60) days after prior written notice of intention to terminate
the Agreement given by Owner or Manager;
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(c) Upon any change in control of Manager, unless Owner consents to such
change; or
(d) Immediately upon the occurrence of any of the following:
(i) A decree or order is rendered by a court having jurisdiction (A)
adjudging Manager as bankrupt or insolvent, or (B) approving as properly
filed a petition seeking reorganization, readjustment, arrangement,
composition or similar relief for Manager under the federal bankruptcy
laws or any similar applicable law or practice, or (C) appointing a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of Manager or a substantial part of the property of Manager, or for the
winding up or liquidation of its affairs, or
(ii) Manager (A) institutes proceedings to be adjudicated a voluntary
bankrupt or an insolvent, (B) consents to the filing of a bankruptcy
proceeding against it, (C) files a petition or answer or consent seeking
reorganization, readjustment, arrangement, composition or relief under
any similar applicable law or practice, (D) consents to the filing of any
such petition, or to the appointment of a receiver or liquidator or
trustee or assignee in bankruptcy or insolvency for it or for a
substantial part of its property, (E) makes an assignment for the benefit
of creditors, (F) is unable to or admits in writing its inability to pay
its debts generally as they become due unless such inability shall be the
fault of Owner, or (G) takes corporate or other action in furtherance of
any of the aforesaid purposes.
Upon termination, the obligations of the parties hereto shall cease, provided
that Manager shall comply with the provisions hereof applicable in the event of
termination and shall be entitled to receive all compensation which may be due
Manager hereunder up to the date of such termination, and provided, further,
that if this Agreement terminates pursuant to clause (d) above, Owner shall have
other remedies as may be available at law or in equity.
6.2 Manager's Obligations after Termination. Upon the termination of this
---------------------------------------
Agreement, Manager shall have the following duties:
(a) Manager shall deliver to Owner, or its designee, all books and
records with respect to the Partnership Properties.
(b) Manager shall transfer and assign to Owner, or its designee, all
service contracts and personal property relating to or used in the operation and
maintenance of the Partnership Properties, except personal property paid for and
owned by Manager. Manager shall also, for a period of sixty (60) days
immediately following the date of such termination, make itself available to
consult with and advise Owner, or its designee, regarding the operation and
maintenance of the Partnership Properties.
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(c) Manager shall render to Owner an accounting of all funds of Owner in
its possession and shall deliver to Owner a statement of Management Fees claimed
to be due Manager and shall cause funds of Owner held by Manager relating to the
Partnership Properties to be paid to Owner or its designee.
ARTICLE VII.
MISCELLANEOUS
7.1 Notices. All notices, approvals, consents and other communications
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hereunder shall be in writing, and, except when receipt is required to start the
running of a period of time, shall be deemed given when delivered in person or
on the fifth day after its mailing by either party by registered or certified
United States mail, postage prepaid and return receipt requested, to the other
party, at the addresses set forth after their respective name below or at such
different addresses as either party shall have theretofore advised the other
party in writing in accordance with this Section 7.1.
Owner: WELLS REAL ESTATE FUND ___, L.P.
c/o Wells Partners, L.P.
General Partner
3885 Holcomb Bridge Road
Norcross, Georgia 30092
Manager: WELLS MANAGEMENT COMPANY, INC.
3885 Holcomb Bridge Road
Norcross, Georgia 30092
7.2 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Georgia.
7.3 Assignment. Manager may delegate partially or in full its duties and
----------
rights under this Agreement but only with the prior written consent of Owner.
Except as provided in the immediately preceding sentence, this Agreement shall
be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns.
7.4 No Waiver. The failure of Owner to seek redress for violation or to
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insist upon the strict performance of any covenant or condition of this
Agreement, shall not constitute a waiver thereof for the future.
7.5 Amendments. This Agreement may not be amended without the vote of a
----------
majority in interest of the Limited Partners of Owner and only by an instrument
in writing signed by the party against whom enforcement of the amendment is
sought.
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7.6 Headings. The headings of the various subdivisions of this Agreement are
--------
for reference only and shall not define or limit any of the terms or provisions
hereof.
7.7 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
7.8 Entire Agreement. This Agreement contains the entire understanding and
----------------
all agreements between Owner and Manager respecting the management of the
Partnership Properties. There are no representations, agreements, arrangements
or understandings, oral or written, between Owner and Manager relating to the
management of the Partnership Properties that are not fully expressed herein.
7.9 Disputes. If there shall be a dispute between Owner and Manager relating
--------
to this Agreement resulting in litigation, the prevailing party in such
litigation shall be entitled to recover from the other party to such litigation
such amount as the court shall fix as reasonable attorneys' fees.
7.10 Activities of Manager. The obligations of Manager pursuant to the terms
---------------------
and provisions of this Agreement shall not be construed to preclude Manager from
engaging in other activities or business ventures, whether or not such other
activities or ventures are in competition with the Partnership Properties or the
business of Owner.
7.11 Independent Contractor. Manager and Owner shall not be construed as
----------------------
joint venturers or partners of each other pursuant to this Agreement, and
neither shall have the power to bind or obligate the other except as set forth
herein. In all respects, the status of Manager to Owner under this Agreement is
that of an independent contractor.
(THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
OWNER MANAGER
- ----- -------
WELLS REAL ESTATE FUND __, L.P. WELLS MANAGEMENT COMPANY, INC.
A Georgia Limited Partnership A Georgia Corporation
By: WELLS PARTNERS, L.P.
A Georgia Limited Partnership
General Partner By:_____________________________________
Leo F. Wells, III
President
By: WELLS CAPITAL, INC., Attest:
A Georgia Corporation
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
By:_____________________
Leo F. Wells, III
President
Attest:
By:__________________________
Name:________________________
Title:_______________________
By:______________________________
LEO F. WELLS, III
General Partner
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
and to all references to our Firm included in or made a part of this
registration statement.
/S/ Arthur Andersen LLP
- ---------------------------
ARTHUR ANDERSEN LLP
Atlanta, Georgia
November 2, 1998
