Property Management Agreement

Exhibit 10.1

Master Property Management, Leasing

and Construction Management Agreement This Master Property Management, Leasing And Construction Management Agreement (" Agreement" ) is made and entered into as of the 1st day of April, 2007 by and among Wells Real Estate Investment Trust II, Inc., a Maryland corporation (" Wells REIT II" ), Wells Operating Partnership II, L.P., a Delaware limited partnership (" Wells OP II" ), and Wells Real Estate Advisory Services, Inc., a Georgia corporation (" Manager" ).

Background Wells OP II was organized to acquire, own, operate, lease and manage real estate properties on behalf of Wells REIT II. Owner (as defined below) intends to retain Manager to manage, coordinate the leasing of, and manage construction activities related to, some of the real estate properties acquired for the benefit of Wells REIT II under the terms and conditions set forth herein.

Agreement

Now, Therefore , in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.

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


1.1.

" Advisor" means Wells Capital, Inc., a Georgia corporation, or its successor as advisor of Wells REIT II.

1.2.

" Affiliate" of another Person includes only the following: (i) any Person directly or indirectly controlling, controlled by, or under common control with such other Person; (ii) any Person directly or indirectly owning, controlling, or holding with the power to vote 10% or more of the outstanding voting securities of such other Person; (iii) any legal entity for which such Person acts as an executive officer, director, trustee, or general partner; (iv) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held, with power to vote, by such other Person; and (v) any executive officer, director, trustee, or general partner of such other Person.


1.3.

" Conflicts Committee" has the meaning ascribed to that term in the articles of incorporation of Wells REIT II.

1.4.

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

1.5.

" Lease" means, unless the context otherwise requires, any lease or sublease made by Owner or Owner JV as landlord or by its predecessor.


1.6.

" Management Fees" has the meaning set forth in Section 4 hereof.

1.7.

" Owner" means Wells OP II, Wells REIT II, and each of their direct and indirect subsidiaries.

1.8.

" Owner JV" means, collectively, all joint ventures, limited liability companies and other Affiliate of Owner that are controlled or managed by Owner and that own, in whole or in part, any Improvements.


1.9.

" Ownership Agreements" has the meaning set forth in Section 2.3.B hereof.

1.10.

" Person" means any natural persons, partnership, corporation, association, trust, limited liability company or other legal entity.


1.11.

" Properties" means all real estate properties owned by Owner or Owner JV and all tracts acquired by Owner or Owner JV in the future containing income-producing Improvements or on which Owner or Owner JV will construct income-producing Improvements that are included on a Property Amendment to this Agreement (but does not include real estate property owned by Owner or Owner JV that is not included on a Property Amendment agreed to by Owner and Manager).


1.12.

" Property Amendment" means an amendment to this Agreement describing a parcel of real estate and an Improvement thereon (or, in the case of construction management services provided pursuant to Section 2.6, an Improvement or a planned Improvement, as the case may be) and describing the services to be provided by Manager to Owner or Owner JV under this Agreement.


2.

Appointment Of Manager; Services To Be Performed .

2.1.

Appointment of Manager . Owner hereby engages and retains Manager as the sole and exclusive manager of the Properties to perform such functions as are specified on the Property Amendment related to each Property and as set forth herein. Manager hereby accepts such appointment on the terms and conditions hereinafter set forth. It being understood that this Agreement causes Manager to be, at law, Owner' s and Owner JV' s agent with respect to the Properties but only for the limited purposes set forth on the Property Amendments and otherwise expressly set forth herein upon the terms contained herein. Owner represents that it has authority to grant such agency power. Nothing herein shall obligate Owner to enter into any Property Amendment.


2.2.

Dealings with Advisor . Unless Owner specifically informs Manager to the contrary, Advisor may perform any of the obligations or exercise any of the rights of Owner or Owner JV under this Agreement; provided that any actions that Advisor takes on behalf of Owner or Owner JV pursuant hereto are subject to the terms of the agreements between Advisor and Owner, and this Section 2.2 does not expand or modify the authority of Advisor to act on behalf of Owner or Owner JV. No


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Property Amendment shall be entered into by Owner or Owner JV without the approval of Owner' s Board of Directors (or a committee of the board authorized to give such approval).


2.3.

General .


A.

Efforts of Manager . Manager agrees to perform its duties under this agreement and to use reasonable commercial efforts to enhance the Properties' ability to generate income. Manager' s services are to be of scope and quality not less than those generally performed by professional managers of other similar properties in the areas in which Properties are located. Manager shall make available to Owner and Owner JV 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 and Owner JV relating to the management, operation, leasing, construction and/or buildout of the Properties.


B.

Ownership Agreements . Manager has received copies of agreements of limited partnership, joint venture partnership agreements and operating agreements of Owner and its Affiliates as well as the articles of incorporation, bylaws, and registration statement on Form S-11 (no. 333-125643) of Wells REIT II, including all prospectus supplements and post-effective amendments thereto (collectively, the " Ownership Agreements" ) and is familiar with the terms thereof. Advisor agrees to obtain and review copies of all mortgages on all Properties and inform Manager of any restrictions relating to property use thereof. Manager will use reasonable care to avoid any act or omission which, in the performance of its duties hereunder, in any way conflicts with the terms of the Ownership Agreements or the mortgages in the absence of the express direction of the Conflicts Committee, and Manager shall promptly notify Owner if any such conflict arises.


2.4.

Specific Duties as Property Manager . Manager' s duties as property manager for any of the Properties indicated on a Property Amendment as being subject to the management services as provided herein include the following:


A.

Monies Collected . Manager will collect all rent and other monies from tenants and any sums otherwise due Owner or Owner JV with respect to the Properties in the ordinary course of business in accordance with the terms and conditions of all leases and other agreements for the use and occupancy of the Properties, including any other charges that may become due at any time from any tenant or from others for services provided in connection with the use and occupancy of the Properties. In collecting such monies, Manager will inform tenants of the Properties that all remittances are to be in the form of a check, money order or wire transfer. 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 or Owner JV for the collection thereof and for the dispossession


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of any tenant in default under its Lease. All monies so collected shall be deposited in an Account (as defined in Section 2.4.K(1)). Manager shall not write-off any income items without the prior approval of Owner.


B.

Lease and Mortgage Obligations . Manager will perform all duties of the landlord under all Leases insofar as such duties relate to operation, maintenance, and day-to-day management. Manager will also provide or cause to be provided, at Owner' s or Owner JV' s (as appropriate) 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 use its commercially reasonable efforts to comply with the terms and conditions of all Leases and shall promptly advise Owner of any material breaches. Manager shall also perform all covenants and obligations required to be performed under the provisions of all mortgages, deeds of trust, deeds to secure debt or other like instrument to the extent that the performance of such covenants and obligations are within the day-to-day control of Manager or as may be requested in writing by Owner.

C.

Building Inspections . Conduct complete inspections of the Properties and the surrounding common areas and all of their mechanical facilities as is prudent to determine that the same are in good order and repair, but no less frequently than once per calendar quarter during the term of this Agreement; provided, however, that any Properties subject to triple-net leases need only be inspected semi-annually.


D.

Maintenance . Manager will cause the Properties to be maintained in the same manner as similar properties in the area. Manager' s duties and supervision in this respect include, without limitation, cleaning of the interior and the exterior of the Improvements and the public common areas on the Properties and the making and supervision of repairs, alterations, and decoration of the Improvements, subject to and in strict compliance with this Agreement and the Leases.


E.

Limitations on Expenditures . Manager will not incur any costs other than those estimated in any approved budget or approved pro forma statements or as otherwise specified in a Property Amendment except for:


(1)

costs incurred in emergency situations in which action is immediately necessary for the preservation or safety of a Property, or for the safety of occupant or other person (or to avoid the suspension of any necessary service of the Property);


(2)

expenditures for real estate taxes and assessments that exceed the amount budgeted but only to the extent that such additional amounts are the result of a tax rate increase, property value reassessment or other assessment that occurs after the preparation of the budget;


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(3)

maintenance and repair costs that are individually under $10,000 so long as such costs in the aggregate do not exceed the amount budgeted for such items by more than 5%; and


(4)

maintenance supplies calling for an aggregate purchase price of less than $5,000, unless a different amount is specified in a Property Amendment.


F.

Notice of Violations . Manager will 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.

G.

Personnel . Any personnel Manager hires to maintain and operate a Property shall be the employees or independent contractors of Manager and not of Owner or Owner JV. Manager agrees to use due care in the selection and supervision of such employees or independent contractors. Manager is 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.


H.

Utilities and Supplies . Manager shall 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 properties in the area and shall order all necessary supplies and equipment required for the proper operation, maintenance and repair of the Properties;


I.

Tenant Complaints . Manager shall maintain business-like relations with the tenants of the Properties and respond to tenant complaints in a prudent, businesslike manner. Manager shall maintain a record of all tenant complaints and Manager' s response to such complaints which record shall be available for review by Owner.

J.

Signs . Manager shall place and remove, or cause to be placed and removed, such signs upon the Properties as Manager deems appropriate, subject, however, to the terms and conditions of the Leases and to any applicable ordinances and regulations.


K.

Banking Accommodations .


(1)

Operating and Maintaining Bank Accounts . Manager shall establish and maintain one or more separate checking accounts (each, an " Account" ) in Owner' s or Owner JV' s (as appropriate) name for funds relating to the Properties. All monies deposited


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from time to time in each Account shall be and remain the property of Owner or Owner JV (as appropriate) and shall be withdrawn and disbursed by Manager for the account of Owner or Owner JV (as appropriate) 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 or Owner JV' s behalf shall be commingled with funds of Manager. Each Account shall be maintained, and monies shall be deposited therein and withdrawn therefrom, in accordance with the following:

(a)

All sums received from rents and other income from the Properties shall be promptly deposited by Manager in an Account. All checks drawn to the order of Owner, Owner JV, or Advisor should be endorsed by Manager for deposit only and deposited in an Account.


(b)

Manager shall have the right to designate two or more persons who shall be authorized to draw against each Account, but only for purposes authorized by this Agreement. Manager may not under any circumstances write a check on an Account payable to or in favor of Manager or any Affiliate of Manager other than (i) to reimburse itself for expenditures made on behalf of the Properties, and (ii) to pay itself the Management Fees payable hereunder, provided that any such expenditure, reimbursement or Management Fee shall be reflected in the monthly operating statement provided with respect to the month in which such expenditure or reimbursement is paid, and all proper procedures for payment have been followed.


(c)

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 Properties and shall be paid and/or withdrawn by Manager from an Account in accordance with the terms of the approved budgets or pro formas and to the extent funds are available therefor after taking into account other required expenses of the Properties; provided, that if Manager has received a notice in accordance with Section 7.1 that it is in default of any material provision hereof and has not cured such default within ten (10) business days, then Manager shall refrain from and be prohibited from withdrawing funds from an Account pursuant to this Subsection 2.4.K(1)(c) until such default is cured and Owner has consented to a normal resumption of the activity provided for in this Subsection 2.4.K(1)(c). In the event that Manager determines that there are insufficient funds in the Accounts for the


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Properties to pay sums due to Manager hereunder and to pay the other expenses of the Properties, then Manager shall notify Owner in writing and Owner shall promptly make sufficient funds available to satisfy such obligations.


(d)

Unless otherwise directed by Owner, by the 30 th day of the first month following each calendar quarter, Manager shall forward to Owner or Owner JV net operating proceeds from the preceding quarter, retaining at all times, however a reserve for each Property as specified on the Property Amendment related thereto, in addition to any amounts otherwise provided in the budget as approved by Owner to meet unbudgeted contingencies.

(2)

Closing Bank Accounts . All items relating to bank account closings are to be coordinated through Owner. Manager is required to process cash activity in accordance with any applicable termination agreement, purchase and sale agreement, merger agreement, etc. Manager is responsible for final bank account reconciliation at the time of close out or transfer of the account.


(3)

Bank Account Statements & Reconciliation .


(a)

Bank account statements will be delivered (via U.S. Mail) to a mailing address stipulated by Manager directly from the banking institution to Manager' s accounting offices.


(b)

Manager should reconcile all bank accounts in a timely manner and make available such reconciliation(s) on request. Manager shall provide explanations for any large, unusual or recurring reconciling items along with an indication as to when they will be resolved. Bank reconciliations must be reviewed, approved, and initialed by at least one accounting supervisor independent from the individual preparing the bank reconciliation.


(c)

Any issues relating to timely receipt of the monthly bank account statement (based on the established bank account statement cut-off date) should be directed towards the banking institution. Recurring problems relating to the timely receipt of statements should be brought to the attention of Owner.


(d)

Unless Owner specifically requires otherwise, bank account service charges/fees will be set up to be billed (by the banking institution) directly to the account.


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(e)

Outstanding checks (over 6 months old) should be researched and resolved in accordance with instructions from Owner.

(4)

Failure of Depository Institution at which an Account is Located . Manager shall have no liability to Owner or Owner JV for any amounts in an Account which are lost or not covered by insurance if the depository institution at which the Account is maintained fails or is otherwise placed in the control of a governmental or quasi governmental authority and the assets of the Account are thereby forfeited in whole or in part, provided such depository institution was selected with reasonable care.


L.

Expenses . Manager shall analyze all bills received for services, work and supplies in connection with the maintaining and operating the Properties, pay all such bills, and pay utility and water charges, sewer rent and assessments, and any other amount payable in respect to the Properties. Manager shall use reasonable commercial efforts to pay all bills 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 an Account by Manager. All expenses shall be billed at net cost (i.e., less all commissions, discounts and allowances, however designed, but excluding rebates). Additionally, Manager will be held responsible for all Property 1099 reporting to the IRS. 1099' s must be filed under Manager name and Manager taxpayer identification number (TIN), listing Manager as the " payer" . Manager will provide annually a signed declaration indicating compliance with 1099 reporting; Manager will provide this declaration to Owner with the February Reporting Package. Penalties for misfilings are not to be charged to the property, but are payable by Manager.

M.

Other Cash Management Items .


(1)

To the extent funds are available in an Account, Manager shall pay the operating expenses of the Properties (including, without limitation, sums due Manager under this Agreement) and any other payments relative to the Properties as required by the terms of this Agreement.


(2)

Any interest or other income earned on the assets of an Account shall be re-deposited in the Account, and shall for federal and state income tax purposes be deemed to be income of Owner or Owner JV.


(3)

Unless the bank account structure utilizes an automated cash concentration to Owner or Owner JV (e.g., zero balance account


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structure), amounts held in reserve should be forecasted for significant expenditures (e.g. real estate tax payments) and must be held in interest bearing vehicles until the funds are disbursed.


(4)

If a Property has petty cash, it is Manager' s responsibility to ensure that petty cash is reconciled to general ledger and replenished on a monthly basis.


N.

Books and Records .


(1)

General . Manager shall cause to be kept account books and records for the Properties. Books and records must show all receipts, expenditures and all other records necessary or convenient for the recording of the results of operations of the Properties. Such account books and records shall be kept in a secure location at the office(s) where Manager normally keeps all of its records and shall be open to inspection by Owner and its representatives at any reasonable time. Upon the effective date of expiration or termination of this Agreement, all such books and records shall be forthwith turned over to Owner so as to ensure the orderly continuance of the operations of the Properties. Manager shall take necessary measures to ensure such control over accounting and financial transactions as is reasonably required to protect Owner' s and Owner JV' s assets, from theft, error or fraudulent activity on the part of Manager' s employees or other agents. Manager shall indemnify and hold Advisor, Owner, and Owner JV harmless from all such losses, including, but not limited to, the following:

(a)

Theft of assets by Manager' s employees or other agents;


(b)

Penalties and interest due to delay in payment of invoices, bills or other like charges if funds of Owner or Owner JV or funds in an Account were available to make said payments and delays were not the result of any action or inaction on the part of Owner or Owner JV;


(c)

Overpayment or duplicate payment of invoices arising from either fraud or error;

(d)

Overpayment of labor costs arising from either fraud or error;


(e)

A sum equal to the value of any form of payment from purveyors to Manager' s employees or associates arising from the purchase of goods or services for the Properties; and


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(f)

Unauthorized use of facilities by Manager' s employees or associates.

(2)

Charts of Accounts . The format of all financial reports, documents and other statements prepared by Manager pursuant to this Agreement shall utilize the format required by Owner, as the same may be changed by Owner from time to time.


(3)

Fixed Asset Accounting . For Properties in portfolios requiring maintenance of fixed asset accounting detail and related depreciation (as specified in the Accounting Policies), Manager will be required to maintain and submit to Owner on a monthly basis, a detailed schedule of all fixed asset additions and the related depreciation/amortization and accumulated depreciation/ amortization utilizing the useful lives and various depreciation methods specified within the Accounting Policies. All such schedules shall agree to the amounts posted within the general ledger. Manager shall not be responsible for any errors in data made prior to Manager' s involvement with the data.


(4)

Periodic Meetings . As reasonably required by Owner, Manager and other personnel engaged or involved in the management and operation of the Properties shall meet to discuss the historical results of operations and to consider deviations from budget.


(5)

Right to Conduct Audit . Owner shall have the right to conduct an audit of the Properties' operations by using its own internal auditors or by employing independent auditors. Costs associated with conducting such audits by internal or independent auditors shall be borne by Owner or Owner JV. Should such audits result in the discovery of either weaknesses in internal control or errors in record keeping, these shall be communicated to Manager in writing. Manager shall correct such discrepancies either upon discovery or within a reasonable period of time after notification. Manager shall inform Owner in writing of the action taken and to be taken to correct such audit discrepancies. If any audit conducted by or on behalf of Owner or Owner JV reveals a discrepancy in excess of ten percent (10%), and greater than $10,000, for any material line item (i.e. base rent, operating escalation income, total cleaning, total repairs and maintenance, etc.), Manager shall be responsible for the reasonable expenses of such audit.


(6)

Ownership of Books and Records . The books of accounts and all other records relating to or reflecting the operations of the Properties shall at all times be the property of Owner or Owner JV, as applicable.


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O.

Accounting Policies . Manager shall use the accrual method of accounting with GAAP adjustments shown below (unless and until GAAP changes):


(1)

Straight-Line Rent Adjustment Record straight-line rent over the entire lease period on a lease by lease basis

(2)

Free Rent Adjustment Recognize any Free Rent as part of the straight-line rent calculation on a lease by lease basis

(3)

Capitalization Policy Capitalize any expenditure that replace, improve, or otherwise extend the economic life of an asset in excess of $5,000 for any given project. This includes tenant improvements and lease acquisition costs (leasing commissions, space planning fees, legal fees, etc) that are in excess of $5,000

(4)

Depreciation Expense Record monthly depreciation expense on a straight-line basis over the estimated useful life of a given asset


(5)

Amortization Expense Record monthly amortization expense on a straight-line basis over the life of the lease for which the cost was incurred


(6)

Other Adopt such other accounting policies as Owner may direct from time to time or as specified on Exhibit A.

P.

Reporting .


(1)

Monthly Financial Reporting Package . Not later than the 20th day of each month, Manager shall cause to be delivered to Owner at least two copies of the standard reporting package and the specific financial and property information and reports set forth on Exhibit B. Manager acknowledges that the transmittal and specific financial statements and/ or schedules required by Owner are subject to change from time to time and may vary based on specific Property or portfolio requirements. All such reports shall be in a form prescribed by Owner. In addition, Manager shall prepare any forms required by Owner to facilitate the input of financial information into Owner' s accounting system.


(2)

Quarterly Reports . On or before the 30 th day of the first month following each calendar quarter for which such report or statement is prepared and during the term of this Agreement, Manager shall prepare ...