WELLS REAL ESTATE INVESTMENT TRUST, INC.
Dividend Reinvestment Plan
DEALER MANAGER AGREEMENT
April 5, 2004
Wells Investment Securities, Inc.
6200 The Corners Parkway
Atlanta, Georgia 30092
Ladies and Gentlemen:
Wells Real Estate Investment Trust, Inc., a Maryland corporation (the “Company”), is registering for offer and sale a maximum of 100,000,000 shares of its common stock, $.01 par value per share (the “DRP Shares”) to be issued and sold through the Company’s dividend reinvestment plan (the “DRP”) for a purchase price equal to the higher of $9.55 per share or 95% of the estimated share value as determined by the Company’s board of directors. Terms not defined herein shall have the same meaning as in the Prospectus (as defined herein). In connection therewith, the Company hereby agrees with you, the Dealer Manager, as follows:
1. Representations and Warranties of the Company
The Company represents and warrants to the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a DRP Selling Agreement in the form attached to this Agreement as Exhibit “A” (said dealers being hereinafter referred to as the “Dealers”) that:
1.1 A registration statement on Form S-3 (as may be subsequently amended, the “Registration Statement”) with respect to the Company has been prepared by the Company 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 DRP Shares. Said Registration Statement, which includes a prospectus dated April 5, 2004 relating to the DRP Shares (as may be subsequently amended, the “Prospectus”), was filed with the SEC on April 5, 2004. Copies of such Registration Statement and each amendment thereto have been or will be delivered to the Dealer Manager.
1.2 The Company has been duly and validly organized and formed as a corporation under the laws of the state of Maryland, 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, 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 Company specifically for inclusion therein.
1.4 The Company intends to use the funds received from the issuance of the DRP Shares 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 Company of this Agreement or the issuance by the Company of the DRP Shares, 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 Company, threatened against the Company 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 Company.
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 Company 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 Company, 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 Company 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 DRP Shares, the DRP Shares 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.
2. Covenants of the Company
The Company 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 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 DRP Shares of: (a) the Prospectus 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 Company 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 Company to qualify the DRP Shares for offer and sale or to qualify for an exemption for such 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 Company will furnish to the Dealer Manager a copy of such papers filed by the Company in connection with any such qualification.
2.3 It will: (a) use its best efforts to cause the Registration Statement to become effective in the states in which registration is required; (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.