As filed with the Securities and Exchange Commission on January 4, 2007
Registration No. 333-126087
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 4
TO
FORM S-11
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
KBS Real Estate Investment Trust, Inc.
(Exact name of registrant as specified in its charter)
620 Newport Center Drive, Suite 1300
Newport Beach, California 92660
(949) 417-6500
(Address, including zip code, and telephone number, including area code, of the registrant’s principal executive offices)
Charles J. Schreiber, Jr.
Chief Executive Officer
KBS Real Estate Investment Trust, Inc.
620 Newport Center Drive, Suite 1300
Newport Beach, California 92660
(949) 417-6500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Robert H. Bergdolt, Esq.
Carrie J. Hartley, Esq.
DLA Piper US LLP
4141 Parklake Avenue, Suite 300
Raleigh, North Carolina 27612-2350
(919) 786-2000
Approximate date of commencement of proposed sale to public: As soon as practicable after the effectiveness of the registration statement.
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, 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 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 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, please check the following box. ¨
This Post-Effective Amendment No. 4 consists of the following:
| | 1. | The Registrant’s final form of Prospectus dated January 13, 2006, previously filed pursuant to Rule 424(b)(3) on February 2, 2006 and refiled herewith. |
| | 2. | Supplement No. 6 dated October 6, 2006 to the Registrant’s Prospectus dated January 13, 2006, previously filed pursuant to Rule 424(b)(3) on October 6, 2006 and refiled herewith. Supplement No. 6 supersedes and replaces all prior supplements to the Prospectus. |
| | 3. | Supplement No. 13 dated January 4, 2007 to the Registrant’s Prospectus dated January 13, 2006, included herewith, which will be delivered as an unattached document along with the Prospectus dated January 13, 2006 and Supplement No. 6 dated October 6, 2006. Supplement No. 13 supersedes and replaces all supplements subsequent to Supplement No. 6 to the Prospectus. |
| | 4. | Part II included herewith. |
| | 5. | Signature, included herewith. |
| | |
 | | KBS REAL ESTATE INVESTMENT TRUST, INC. Maximum Offering of 280,000,000 Shares of Common Stock Minimum Offering of 250,000 Shares of Common Stock |
KBS Real Estate Investment Trust, Inc. is a newly organized Maryland corporation that intends to qualify as a real estate investment trust beginning with the taxable year that will end December 31, 2006. We expect to use substantially all of the net proceeds from this offering to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. Because we have not yet identified any specific properties to purchase, we are considered to be a blind pool.
We are offering up to 200,000,000 shares of common stock in our primary offering for $10 per share, with volume discounts available to investors who purchase more than 50,000 shares through the same participating broker-dealer. Discounts are also available for other categories of investors. We are also offering up to 80,000,000 shares pursuant to our dividend reinvestment plan at a purchase price initially equal to $9.50 per share. We expect to offer shares of common stock in our primary offering until January 13, 2008.
Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 24 to read about risks you should consider before buying shares of our common stock. These risks include the following:
| | • | | No public market currently exists for our shares of common stock, and we have no plans to list our shares on an exchange. Until our shares are listed, you may not sell your shares unless the buyer meets applicable suitability and minimum purchase standards. No one may own more than 9.8% of our stock unless exempted by our board. If you are able to sell your shares, you would likely have to sell them at a substantial loss. |
| | • | | We set the offering price of our shares arbitrarily. This price is unrelated to the book or net value of our assets or to our expected operating income. |
| | • | | We depend on our advisor to conduct our operations. Our advisor has no operating history or experience operating a public company. |
| | • | | We have no operating history, and our total assets consist of $200,000 cash. We have not identified any real estate assets to acquire. |
| | • | | All of our executive officers and some of our directors are also officers, managers and/or holders of a controlling interest in our advisor, our dealer manager and other affiliated KBS entities. As a result, they will face conflicts of interest, including significant conflicts created by our advisor’s compensation arrangements with us and other KBS-advised programs and investors. Fees paid to our advisor in connection with transactions involving the purchase and management of our properties will be based on the cost of the investment, not on the quality of the investment or services rendered to us. This arrangement could influence our advisor to recommend riskier transactions to us. |
| | • | | If we raise substantially less than the maximum offering, we may not be able to invest in a diverse portfolio of real estate assets and the value of your investment may vary more widely with the performance of specific assets. |
| | • | | We will pay substantial fees and expenses to our advisor, its affiliates and broker-dealers. These fees increase your risk of loss. |
| | • | | Although our distribution policy is not to use the proceeds of this offering to make distributions, our organizational documents permit us to pay distributions from any source, including offering proceeds. Distributions paid from offering proceeds would constitute a return of capital. |
| | • | | We may incur debt exceeding 75% of the cost of our assets with the approval of the conflicts committee of our board. During the early stages of this offering, we expect that our conflicts committee will approve debt in excess of this limit, and we have begun discussions with lenders to obtain up to $197,675,000 in secured debt for the purchase of $200 million in real estate. If we incur this debt and only raise the minimum offering amount, our borrowings would equal 98.8% of the cost of our assets. High debt levels increase the risk of your investment. |
Neither the SEC, the Attorney General of the State of New York nor any other state securities regulator has approved or disapproved of our common stock, determined if this prospectus is truthful or complete or passed on or endorsed the merits of this offering. Any representation to the contrary is a criminal offense.
This investment involves a high degree of risk. You should purchase these securities only if you can afford a complete loss of your investment. The use of projections or forecasts in this offering is prohibited. No one is permitted to make any oral or written predictions about the cash benefits or tax consequences you will receive from your investment.
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| | | Price
to Public | | | Selling
Commissions | | | Dealer
Manager Fee | | Net Proceeds
(Before Expenses) |
Primary Offering | | | | | | | | | | | | | | |
Per Share | | $ | 10.00 | * | | $ | 0.60 | * | | $ | 0.35 | | $ | 9.05 |
Total Minimum | | $ | 2,500,000.00 | * | | $ | 150,000.00 | * | | $ | 87,500.00 | | $ | 2,262,500.00 |
Total Maximum | | $ | 2,000,000,000.00 | * | | $ | 120,000,000.00 | * | | $ | 70,000,000.00 | | $ | 1,810,000,000.00 |
Dividend Reinvestment Plan | | | | | | | | | | | | | | |
Per Share | | $ | 9.50 | | | $ | 0.285 | | | $ | 0.00 | | $ | 9.215 |
Total Maximum | | $ | 760,000,000.00 | | | $ | 22,800,000.00 | | | $ | 0.00 | | $ | 737,200,000.00 |
| * | Discounts are available for some categories of investors. Reductions in selling commissions will result in corresponding reductions in the purchase price. |
The dealer manager, KBS Capital Markets Group LLC, our affiliate, is not required to sell any specific number or dollar amount of shares but will use its best efforts to sell the shares offered. The minimum permitted purchase is $5,000. We will not sell any shares unless we raise gross offering proceeds of $2,500,000 from persons who are not affiliated with us or our advisor by January 13, 2007. Pending satisfaction of this condition, all subscription payments will be placed in an account held by the escrow agent, First Republic Trust Company, in trust for our subscribers’ benefit, pending release to us. If we do not raise gross offering proceeds of $2,500,000 by January 13, 2007, we will promptly return all funds in the escrow account (including interest), and we will stop selling shares. We will not deduct any fees if we return funds from the escrow account.
We will not sell any shares to Pennsylvania investors unless we raise $66.7 million in gross offering proceeds (including sales made to residents of other jurisdictions) from persons not affiliated with us or our advisor. If we do not raise this amount by January 13, 2008, we will promptly return all funds held in escrow for the benefit of Pennsylvania investors.
The date of this prospectus is January 13, 2006
SUITABILITY STANDARDS
The shares we are offering through this prospectus are suitable only as a long-term investment for persons of adequate financial means and who have no need for liquidity in this investment. Because there is no public market for our shares, you will have difficulty selling your shares.
In consideration of these factors, we have established suitability standards for investors in this offering and subsequent purchasers of our shares. These suitability standards require that a purchaser of shares have either:
| | • | | a net worth of at least $150,000; or |
| | • | | gross annual income of at least $45,000 and a net worth of at least $45,000. |
In addition, the states listed below have established suitability requirements that are more stringent than ours and investors in these states must meet the special suitability standards set forth below to purchase our shares.
Arizona, California, Iowa, Kansas, Massachusetts, Michigan, Missouri, New Mexico and Tennessee - Investors must have either (1) a net worth of at least $225,000 or (2) gross annual income of at least $60,000 and a net worth of at least $60,000.
Maine - Investors must have either (1) a net worth of at least $200,000 or (2) gross annual income of at least $50,000 and a net worth of at least $50,000.
Iowa, Kansas, Missouri, Ohio and Pennsylvania - In addition to the suitability requirements described above, investors must have a net worth of at least 10 times their investment in us.
For purposes of determining the suitability of an investor, net worth in all cases should be calculated excluding the value of an investor’s home, furnishings and automobiles. In the case of sales to fiduciary accounts, these suitability standards must be met by the fiduciary account, by the person who directly or indirectly supplied the funds for the purchase of the shares if such person is the fiduciary or by the beneficiary of the account.
Those selling shares on our behalf must make every reasonable effort to determine that the purchase of shares in this offering is a suitable and appropriate investment for each stockholder based on information provided by the stockholder regarding the stockholder’s financial situation and investment objectives. See “Plan of Distribution — Suitability Standards” for a detailed discussion of the determinations regarding suitability that we require of all those selling shares on our behalf.
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TABLE OF CONTENTS
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Who can help answer my questions about the offering? | | 23 |
Risk Factors | | 24 |
Risks Related to an Investment in Us | | 24 |
Because no public trading market for your shares currently exists, it will be difficult for you to sell your shares and, if you are able to sell your shares, you will likely sell them at a substantial discount to the public offering price | | 24 |
If we are unable to find suitable investments, we may not be able to achieve our investment objectives or pay dividends | | 24 |
We may suffer from delays in locating suitable investments, which could limit our ability to make distributions and lower the overall return on your investment | | 25 |
Because this is a blind-pool offering, you will not have the opportunity to evaluate our investments before we make them, which makes your investment more speculative | | 25 |
If we are unable to raise substantial funds, we will be limited in the number and type of investments we may make and the value of your investment in us will fluctuate with the performance of the specific properties we acquire | | 26 |
Neither we nor our advisor have a prior operating history and our advisor does not have any experience operating a public company, which makes our future performance difficult to predict | | 26 |
Because we are dependent upon our advisor and its affiliates to conduct our operations, any adverse changes in the financial health of our advisor or its affiliates or our relationship with them could hinder our operating performance and the return on your investment | | 26 |
KBS Capital Markets Group is a newly formed entity with no operating history and our ability to implement our investment strategy is dependent, in part, upon the ability of KBS Capital Markets Group to successfully conduct this offering, which makes an investment in us more speculative | | 27 |
If we pay distributions from sources other than our cash flow from operations, we will have less funds available for the acquisition of properties and your overall return may be reduced | | 27 |
The loss of or inability to obtain key personnel could delay or hinder implementation of our investment strategies, which could limit our ability to make distributions and decrease the value of your investment | | 27 |
Our rights and the rights of our stockholders to recover claims against our independent directors are limited, which could reduce your and our recovery against them if they negligently cause us to incur losses | | 28 |
Risks Related to Conflicts of Interest | | 28 |
KBS Capital Advisors and its affiliates, including all of our executive officers and some of our directors, will face conflicts of interest caused by their compensation arrangements with us, which could result in actions that are not in the long-term best interests of our stockholders | | 28 |
KBS Capital Advisors will face conflicts of interest relating to the purchase and leasing of properties and such conflicts may not be resolved in our favor, meaning that we could invest in less attractive properties and obtain less creditworthy tenants, which could limit our ability to make distributions and reduce your overall investment return | | 29 |
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KBS Capital Advisors will face conflicts of interest relating to joint ventures that we may form with affiliates of KBS Capital Advisors, which conflicts could result in a disproportionate benefit to the other venture partners at our expense | | 30 |
KBS Capital Advisors, its affiliates and employees and our officers will face competing demands relating to their time and this may cause our operations and your investment to suffer | | 30 |
All of our executive officers and some of our directors face conflicts of interest related to the positions they hold with KBS Capital Advisors and its affiliates, including our dealer manager, which could hinder our ability to implement our business strategy and to generate returns to you | | 30 |
Risks Related to This Offering and Our Corporate Structure | | 31 |
Our charter limits the number of shares a person may own, which may discourage a takeover that could otherwise result in a premium price to our stockholders | | 31 |
Our charter permits our board of directors to issue stock with terms that may subordinate the rights of our common stockholders or discourage a third party from acquiring us in a manner that could result in a premium price to our stockholders | | 31 |
Your investment return may be reduced if we are required to register as an investment company under the Investment Company Act; if we become an unregistered investment company, we could not continue our business | | 31 |
You will have limited control over changes in our policies and operations, which increases the uncertainty and risks you face as a stockholder | | 32 |
Even if adopted, you may not be able to sell your shares under the proposed share redemption program and, if you are able to sell your shares under the program, you may not be able to recover the amount of your investment in our shares | | 32 |
The offering price of our shares was not established on an independent basis; the actual value of your investment may be substantially less than what you pay | | 33 |
Because the dealer manager is one of our affiliates, you will not have the benefit of an independent due diligence review of us, which is customarily performed in underwritten offerings; the absence of an independent due diligence review increases the risks and uncertainty you face as a stockholder | | 33 |
Your interest in us will be diluted if we issue additional shares, which could reduce the overall value of your investment | | 33 |
Payment of fees to KBS Capital Advisors and its affiliates will reduce cash available for investment and distribution and increases the risk that you will not be able to recover the amount of your investment in our shares | | 34 |
If we are unable to obtain funding for future capital needs, cash distributions to our stockholders and the value of our investments could decline | | 34 |
You may be more likely to sustain a loss on your investment because our sponsors do not have as strong an economic incentive to avoid losses as do sponsors who have made significant equity investments in their companies | | 34 |
General Risks Related to Investments in Real Estate | | 35 |
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Economic and regulatory changes that impact the real estate market generally may decrease the value of our investments and weaken our operating results | | 35 |
We will depend on tenants for our revenue, and, accordingly, our revenue and our ability to make distributions to you will be dependent upon the success and economic viability of our tenants | | 35 |
Properties that have significant vacancies could be difficult to sell, which could diminish the return on your investment | | 35 |
Our inability to sell a property when we want could limit our ability to pay cash distributions to you | | 36 |
If we sell a property by providing financing to the purchaser, we will bear the risk of default by the purchaser, which could delay or reduce the distributions available to our stockholders | | 36 |
Potential development and construction delays and resultant increased costs and risks may hinder our operating results and decrease our net income | | 36 |
Competition with third parties in acquiring properties and other investments may reduce our profitability and the return on your investment | | 37 |
Our joint venture partners could take actions that decrease the value of an investment to us and lower your overall return | | 37 |
The costs of complying with governmental laws and regulations may reduce our net income and the cash available for distributions to you | | 37 |
Discovery of previously undetected environmentally hazardous conditions may decrease our cash flows and limit our ability to make distributions | | 38 |
Costs associated with complying with the Americans with Disabilities Act may decrease cash available for distributions | | 38 |
Uninsured losses relating to real property or excessively expensive premiums for insurance coverage could reduce our cash flows and the return on your investment | | 38 |
Terrorist attacks and other acts of violence or war may affect the markets in which we plan to operate, which could delay or hinder our ability to meet our investment objectives and reduce your overall return | | 39 |
Risks Related to Real Estate-Related Investments | | 39 |
If we make or invest in mortgage loans, our mortgage loans may be affected by unfavorable real estate market conditions, which could decrease the value of those loans and the return on your investment | | 39 |
If we make or invest in mortgage loans, our mortgage loans will be subject to interest rate fluctuations that could reduce our returns as compared to market interest rates and reduce the value of the mortgage loans in the event we sell them; accordingly, the value of your investment would be subject to fluctuations in interest rates | | 40 |
Delays in liquidating defaulted mortgage loans could reduce our investment returns | | 40 |
Our investments in real estate-related common equity securities will be subject to specific risks relating to the particular issuer of the securities and may be subject to the general risks of investing in subordinated real estate securities, which may result in losses to us | | 40 |
Our investments in real estate-related preferred equity securities involve a greater risk of loss than traditional debt financing | | 41 |
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The CMBS in which we may invest are subject to all of the risks of the underlying mortgage loans and the risks of the securitization process | | 41 |
The mezzanine loans in which we may invest would involve greater risks of loss than senior loans secured by income-producing real properties | | 41 |
To the extent that we make investments in real estate-related securities, a portion of those investments may be illiquid and we may not be able to adjust our portfolio in response to changes in economic and other conditions | | 42 |
Our investments may be sensitive to fluctuations in interest rates, and our hedging strategies may not be effective | | 42 |
If we use leverage in connection with our investment in CMBS, the risk of loss associated with this type of investment will increase | | 42 |
Delays in restructuring or liquidating non-performing real estate securities could reduce the return on your investment | | 43 |
Risks Associated with Debt Financing | | 43 |
We may incur mortgage indebtedness and other borrowings, which debt increases our risk of loss due to foreclosure | | 43 |
High mortgage rates may make it difficult for us to finance or refinance properties, which could reduce the number of properties we can acquire, our cash flows from operations and the amount of cash distributions we can make | | 44 |
Lenders may require us to enter into restrictive covenants relating to our operations, which could limit our ability to make distributions to our stockholders | | 44 |
Increases in interest rates could increase the amount of our debt payments and limit our ability to pay dividends to our stockholders | | 44 |
We have broad authority to incur debt and high debt levels could hinder our ability to make distributions and decrease the value of your investment | | 44 |
Federal Income Tax Risks | | 45 |
Failure to qualify as a REIT would reduce our net earnings available for investment or distribution | | 45 |
You may have current tax liability on distributions you elect to reinvest in our common stock | | 45 |
Even if we qualify as a REIT for federal income tax purposes, we may be subject to other tax liabilities that reduce our cash flow and our ability to make distributions to you | | 46 |
To maintain our REIT status, we may be forced to borrow funds during unfavorable market conditions to make distributions to our stockholders, which could increase our operating costs and decrease the value of your investment | | 46 |
To maintain our REIT status, we may be forced to forego otherwise attractive opportunities, which may delay or hinder our ability to meet our investment objectives and reduce your overall return | | 46 |
Retirement Plan Risks | | 47 |
If you fail to meet the fiduciary and other standards under ERISA or the Internal Revenue Code as a result of an investment in our stock, you could be subject to criminal and civil penalties | | 47 |
Cautionary Note Regarding Forward-Looking Statements | | 47 |
Estimated Use of Proceeds | | 48 |
Management | | 52 |
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PROSPECTUS SUMMARY
This prospectus summary highlights material information contained elsewhere in this prospectus. Because it is a summary, it may not contain all of the information that is important to you. To understand this offering fully, you should read the entire prospectus carefully, including the “Risk Factors” section and the financial statements, before making a decision to invest in our common stock.
What is KBS Real Estate Investment Trust, Inc.?
KBS Real Estate Investment Trust, Inc. is a newly organized Maryland corporation that intends to qualify as a real estate investment trust, or REIT, beginning with the taxable year that will end December 31, 2006. We intend to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. We plan to diversify our portfolio by property type, geographic region, investment size and investment risk with the goal of attaining a portfolio of income-producing properties that provide attractive and stable returns to our investors. We may also invest in entities that make similar investments, mortgage loans and other real estate-related investments.
We were incorporated in the State of Maryland on June 13, 2005, and we currently do not own any real estate assets. Because we have not yet identified any specific properties to purchase, we are considered to be a blind pool.
Our external advisor, KBS Capital Advisors, will conduct our operations and manage our portfolio of real estate investments. We have no paid employees.
Our office is located at 620 Newport Center Drive, Suite 1300, Newport Beach, California 92660. Our telephone number is (949) 417-6500. Our fax number is (949) 417-6520, and our Web site address is www.kbsreit.com.
What is a REIT?
In general, a REIT is an entity that:
| | • | | combines the capital of many investors to acquire or provide financing for real estate investments; |
| | • | | allows individual investors to invest in a professionally managed, large-scale, diversified portfolio of real estate assets; |
| | • | | pays dividends to investors of at least 90% of its annual REIT taxable income (computed without regard to the dividends paid deduction and excluding net capital gain); and |
| | • | | avoids the “double taxation” treatment of income that normally results from investments in a corporation because a REIT is not generally subject to federal |
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| | corporate income taxes on that portion of its income distributed to its stockholders, provided certain income tax requirements are satisfied. |
However, under the Internal Revenue Code of 1986, as amended, REITs are subject to numerous organizational and operational requirements. If we fail to qualify for taxation as a REIT in any year after electing REIT status, our income will be taxed at regular corporate rates, and we may be precluded from qualifying for treatment as a REIT for the four-year period following our failure to qualify. Even if we qualify as a REIT for federal income tax purposes, we may still be subject to state and local taxes on our income and property and to federal income and excise taxes on our undistributed income.
What are your investment objectives?
Our primary investment objectives are:
| | • | | to provide you with attractive and stable cash dividends; and |
| | • | | to preserve and return your capital contribution. |
We will also seek to realize growth in the value of our investments by timing property sales to maximize asset value.
We may return all or a portion of your capital contribution in connection with the sale of the company or the properties we will acquire. Alternatively, you may be able to obtain a return of all or a portion of your capital contribution in connection with the sale of your shares.
Though we intend to make monthly distributions to our stockholders as soon as we have sufficient cash flow from our operations, we may be unable or limited in our ability to make distributions to you. Further, no public trading market for our shares currently exists and, until our shares are listed, if ever, it may be difficult for you to sell your shares. Until our shares are listed, you may not sell your shares unless the buyer meets the applicable suitability and minimum purchase standards.
Are there any risks involved in an investment in your shares?
Investing in our common stock involves a high degree of risk. You should carefully review the “Risk Factors” section of this prospectus beginning on page 24, which contains a detailed discussion of the material risks that you should consider before you invest in our common stock. Some of the more significant risks relating to an investment in our shares include:
| | • | | No public market currently exists for our shares of common stock, and we currently have no plans to list our shares on a national securities exchange or the Nasdaq National Market. Until our shares are listed, if ever, you may not sell your shares unless the buyer meets the applicable suitability and minimum purchase standards. In addition, our charter prohibits the ownership of more than 9.8% of our stock, unless exempted by our board of directors, which may inhibit large investors from purchasing your shares. Our shares cannot be readily sold and, if you are able to sell |
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| | your shares, you would likely have to sell them at a substantial discount from their public offering price. |
| | • | | We established the offering price of our shares on an arbitrary basis. This price may not be indicative of the price at which our shares would trade if they were listed on an exchange or actively traded, and this price bears no relationship to the book or net value of our assets or to our expected operating income. |
| | • | | We are dependent on our advisor to select investments and conduct our operations. Our advisor has no operating history nor does it have any experience operating a public company. This inexperience makes our future performance difficult to predict. |
| | • | | We have no operating history and, as of the date of this prospectus, our total assets consist of $200,000 cash. Because we have not identified any real estate assets to acquire with proceeds from this offering, you will not have an opportunity to evaluate our investments before we make them, making an investment in us more speculative. |
| | • | | All of our executive officers and some of our directors are also officers, managers and/or holders of a direct or indirect controlling interest in our advisor, our dealer manager and other affiliated KBS entities. As a result, our executive officers, some of our directors, our advisor and its affiliates will face conflicts of interest, including significant conflicts created by our advisor’s compensation arrangements with us and other programs and investors advised by KBS affiliates and conflicts in allocating time among us and these other programs and investors. These conflicts could result in action or inaction that is not in the best interests of our stockholders. |
| | • | | Our advisor and its affiliates will receive fees in connection with transactions involving the purchase and management of our properties. These fees will be based on the cost of the investment, and not based on the quality of the investment or the quality of the services rendered to us. This may influence our advisor to recommend riskier transactions to us. |
| | • | | If we raise substantially less than the maximum offering, we may not be able to invest in a diverse portfolio of real estate assets and the value of your investment may vary more widely with the performance of specific assets. |
| | • | | We will pay substantial fees and expenses to our advisor, its affiliates and participating broker-dealers, which payments increase the risk that you will not earn a profit on your investment. |
| | • | | Although our distribution policy is not to use the proceeds of this offering to make distributions, our organizational documents permit us to pay distributions from any source, including offering proceeds. Distributions paid from the net proceeds of this offering would constitute a return of capital. |
| | • | | Our policies do not limit us from incurring debt until our borrowings would exceed 75% of the cost (before deducting depreciation or other non-cash reserves) of all our assets, and we may exceed this limit with the approval of the conflicts committee of our board of directors. During the early stages of this offering, we expect that our conflicts committee will approve debt in excess of this limit, and we have begun |
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| | discussions with lenders to obtain up to $197,675,000 in secured debt for the purchase of $200 million in real estate investments. If we incur this debt and only raise the minimum offering amount, our borrowings would equal approximately 98.8% of the cost of our assets. High debt levels could limit the amount of cash we have available to distribute and could result in a decline in the value of your investment. |
What is the role of the board of directors?
We operate under the direction of our board of directors, the members of which are accountable to us and our stockholders as fiduciaries. We have five members of our board of directors, three of which are independent of KBS Capital Advisors and its affiliates. Our charter, which requires that a majority of our directors be independent of KBS Capital Advisors, creates a committee of our board consisting solely of all of our independent directors. This committee, which we call the conflicts committee, is responsible for reviewing the performance of KBS Capital Advisors and must approve other matters set forth in our charter. Our directors are elected annually by the stockholders.
Who is your advisor and what will the advisor do?
KBS Capital Advisors LLC is our advisor. As our advisor, KBS Capital Advisors will manage our day-to-day operations and our portfolio of real estate assets. Peter M. Bren and Charles J. Schreiber, Jr., two of our executive officers, and their team of real estate professionals, acting through KBS Capital Advisors, will make most of the decisions regarding the selection and the negotiation of real estate investments. KBS Capital Advisors will then make recommendations on all investments to our board of directors and the independent directors that constitute our conflicts committee will have the right to approve or reject all proposed investments. KBS Capital Advisors will also provide asset-management, marketing, investor-relations and other administrative services on our behalf with the goal of maximizing our operating cash flow.
What is the experience of your advisor?
KBS Capital Advisors is a recently organized limited liability company that was formed in the State of Delaware on October 18, 2004. Our advisor has no operating history and no experience managing a public company.
What is the experience of your sponsors?
Peter M. Bren, Charles J. Schreiber, Jr., Peter McMillan III and Keith D. Hall control and indirectly own our advisor and the dealer manager of this offering. We refer to these individuals as our “sponsors.” Of our sponsors, only Messrs. Bren and Schreiber possess management authority over our advisor’s operations.
Messrs. Bren and Schreiber each have been involved exclusively in real estate development, management, acquisition, disposition and financing for more than 30 years. Since
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1992, Messrs. Bren and Schreiber have teamed to invest, manage, develop and sell high-quality U.S. commercial real estate assets for institutional investors. Together, they founded KBS Realty Advisors, a registered investment adviser with the Securities and Exchange Commission and a nationally recognized real estate investment adviser. When we refer to a “KBS-sponsored” fund or program, we are referring to entities sponsored by an investment adviser affiliated with Messrs. Bren and Schreiber, and when we refer to a “KBS-advised” investor, we are referring to institutional investors that have engaged an investment adviser affiliated with Messrs. Bren and Schreiber to provide real estate-related investment advice.
Messrs. Bren and Schreiber will work together at KBS Capital Advisors with their team of real estate professionals. The senior real estate professionals assembled by Messrs. Bren and Schreiber, who will be employed by our advisor as well as by KBS Realty Advisors, average over 20 years of direct real estate experience. These senior real estate professionals have been through multiple real estate cycles in their careers and have the expertise gained through hands-on experience in acquisitions, asset management, dispositions, development, leasing and property and portfolio management.
Historically, the business strategy of Messrs. Bren and Schreiber has been threefold: first, identify attractive investment opportunities that meet the investment objectives of their institutional clients; second, aggressively manage each asset acquired; third, execute a well-defined exit strategy for each investment made.
We believe the experience of Messrs. Bren and Schreiber and the team of real estate professionals they have assembled to manage our operations and their disciplined investment approach will allow us to successfully execute our business model. Since 1992, the experience of the investment advisers affiliated with Messrs. Bren and Schreiber include (as of December 31, 2004):
| | • | | Sponsoring nine private real estate funds that have investment objectives similar to ours and that have invested approximately $2.8 billion (including equity, debt and investment of income and sales proceeds) in 266 real estate assets; |
| | • | | Through these nine private real estate funds, raising $1.8 billion of equity from 38 institutional investors; and |
| | • | | Selling 200 of the 266 real estate assets acquired by these nine private real estate funds. |
In addition to their experience with the nine funds described above, investment advisers affiliated with Messrs. Bren and Schreiber have also been engaged by three institutional investors to recommend real estate acquisitions and manage their investments. The investment proceeds of these investors were not commingled. The investments were made pursuant to management agreements or partnership agreements that permitted the institutional investors to reject acquisitions recommended by the investment adviser. Because the investors were not as passive as those in the nine funds described above or as those who invest in this offering, we have not described the performance of the real estate assets acquired or managed for these investors. The amounts paid for the assets acquired and/or managed pursuant to these arrangements and for subsequent capital expenditures totaled $2.1 billion. On behalf of these three institutional investors, investment advisers affiliated with Messrs. Bren and Schreiber have sold 152 real estate assets.
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With respect to the experience of our other sponsors, Messrs. McMillan and Hall founded Willowbrook Capital Group, LLC, an asset-management company. Prior to forming Willowbrook in 2000, Mr. McMillan served as the Executive Vice President and Chief Investment Officer of SunAmerica Investments, Inc., which was later acquired by AIG. As Chief Investment Officer, he was responsible for over $75 billion in assets, including residential and commercial mortgage-backed securities, public and private investment grade and non-investment grade corporate bonds and commercial mortgage loans and real estate investments.
Prior to forming Willowbrook, Mr. Hall was a Managing Director at CS First Boston, where he managed CSFB’s distribution strategy and business development for the Principal Transaction Group’s $18 billion real estate securities portfolio. Before joining CSFB in 1996, he served as a Director in the Real Estate Products Group at Nomura Securities, with responsibility for the company’s $6 billion annual pipeline of fixed-income securities. Mr. Hall spent the 1980s as a Senior Vice President in the High Yield Department of Drexel Burnham Lambert’s Beverly Hills office, where he was responsible for distribution of the group’s high-yield real estate securities.
None of our sponsors have previously sponsored or organized a publicly offered REIT. However, a KBS-sponsored fund has formed, managed and liquidated a private REIT that owned 10 retail centers.
Do you expect any of the institutions that invested in KBS-sponsored funds or that have been advised by your affiliates to invest in this offering?
We believe such institutional investors are more likely to invest in offerings that can be conducted with lower offering expenses than those found in a public offering, such as this one, in which the securities are sold by participating broker-dealers on a best-efforts basis. If institutional investors do participate in this offering, they would likely invest in amounts entitling them to volume discounts such that their returns, if any, would likely be greater than those who purchase shares in this offering at $10 per share.
How will KBS Capital Advisors select potential properties for acquisition?
To find properties that best meet our criteria for investment, our advisor has developed a disciplined investment approach that combines the experience of its team of real estate professionals with a structure that emphasizes thorough market research, stringent underwriting standards and an extensive down-side analysis of the risks of each investment. KBS Capital Advisors will generally seek to acquire a diverse portfolio of commercial properties consisting principally of office, industrial and retail properties located in large metropolitan areas in the United States. Our advisor intends to diversify our portfolio by geographic region, property type, investment size and investment risk with the goal of attaining a portfolio of income-producing properties that will provide attractive and stable returns to our investors. We expect to allocate approximately 70% of our portfolio to core investments, which are generally existing properties with at least 80% occupancy and minimal near-term lease rollover. We will seek to invest approximately 30% of our assets in enhanced-return properties, which are higher-yield and higher-risk investments that our advisor will actively manage and seek to reposition. Examples of enhanced-return properties that we will seek to acquire and reposition include: properties with moderate vacancies or near-term lease rollovers; poorly managed and positioned properties; properties owned by distressed sellers; and built-to-suit properties.
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Though these are the diversification guidelines within which our advisor will work, we believe that we are most likely to meet our investment objectives through the careful selection and underwriting of individual assets. When making an acquisition, we will emphasize the performance and risk characteristics of that individual investment, how that investment will fit with our portfolio-level performance objectives, the other assets in our portfolio and how the returns and risks of that investment compare to the returns and risks of available investment alternatives. In other words, we will not forgo a good investment opportunity because it does not precisely meet one of our diversification guidelines, but we will attempt to construct a portfolio that produces stable and attractive returns by spreading risk across different real estate investments.
May you invest in anything other than real property?
While we expect to invest principally in real properties, we may make other investments. We may invest in mortgage loans or acquire operating companies or other entities that own and operate assets that meet our investment objectives. We will make investments in other entities when we consider it more efficient to acquire an entity that already owns assets meeting our investment objectives than to acquire such assets directly. We may also participate with other entities (including non-affiliated entities) in property ownership through joint ventures, limited liability companies, partnerships and other types of common ownership. In order to diversify our portfolio or in response to changes in the real estate market, we may also invest in other property types (such as mixed-use properties) and other types of real estate-related investments. These other types of real estate-related investments include: real estate common and preferred equities, mortgage-backed securities and other forms of mortgage debt and certain illiquid securities, including mezzanine loans and bridge loans. There is no limit on the amount that we may invest in these types of real estate-related investments.
Will you use leverage?
Yes. We expect that once we have fully invested the proceeds of this offering, our debt financing will be approximately 50% of the cost of our real estate investments (before deducting depreciation or other non-cash reserves) plus the value of our other assets. There is no limitation on the amount we may borrow for the purchase of any single property. Our charter limits our borrowings to 75% of the cost (before deducting depreciation or other non-cash reserves) of all our assets; however, we may exceed that limit if a majority of the conflicts committee approves each borrowing in excess of our charter limitation and we disclose such borrowing to our stockholders in our next quarterly report with an explanation from the conflicts committee of the justification for the excess borrowing.
We do not intend to exceed the leverage limit in our charter except in the early stages of our development when the costs of our investments are most likely to exceed our net offering proceeds. To prevent a delay between the sale of shares and the purchase of properties, we have begun discussions to obtain up to $190 million in secured debt from national lenders. We would use these funds to purchase a portfolio of properties and other real estate-related investments at a cost of up to $200 million (including acquisition costs and expenses and the acquisition fee paid to our advisor). To the extent that initial sales in this offering are insufficient to fund the difference between the cost of the portfolio and the amount of debt secured from third-party lenders, we would likely secure a loan from affiliates of our advisor to fund the difference. We
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will supplement this prospectus to disclose the terms of any financing arrangement we enter for the purchase of an initial portfolio of investments. We, however, can give you no assurance that we will be able to obtain such borrowings.
Careful use of debt will help us to achieve our diversification goals because we will have more funds available for investment. However, high levels of debt could cause us to incur higher interest charges and higher debt service payments, which would decrease the amount of cash available for distribution to our investors.
How will you structure the ownership and operation of your assets?
We plan to own substantially all of our assets and conduct our operations through KBS Limited Partnership, which we refer to as our Operating Partnership in this prospectus. We are the sole general partner of the Operating Partnership and, as of the date of this prospectus, our wholly owned subsidiary, KBS REIT Holdings LLC, is the sole limited partner of the Operating Partnership. Because we plan to conduct substantially all of our operations through the Operating Partnership, we are considered an UPREIT.
What is an “UPREIT”?
UPREIT stands for “Umbrella Partnership Real Estate Investment Trust.” The UPREIT structure is used because a sale of property directly to the REIT is generally a taxable transaction to the selling property owner. In an UPREIT structure, a seller of a property who desires to defer taxable gain on the sale of his property may transfer the property to the UPREIT in exchange for limited partnership units in the UPREIT and defer taxation of gain until the seller later sells or exchanges his UPREIT units. Using an UPREIT structure may give us an advantage in acquiring desired properties from persons who may not otherwise sell their properties because of unfavorable tax results.
What conflicts of interest will your advisor face?
KBS Capital Advisors and its affiliates will experience conflicts of interest in connection with the management of our business. Messrs. Bren, McMillan, Hall and Schreiber, four of our executive officers, indirectly own and control KBS Capital Advisors. In addition, Messrs. Bren and Schreiber and several of the other employees of KBS Capital Advisors are also the key employees of KBS Realty Advisors and its affiliates, the advisors to the other KBS-sponsored programs and the investment advisers to institutional investors in real estate and real estate-related assets. Some of the material conflicts that KBS Capital Advisors and its affiliates will face include the following:
| | • | | Messrs. Bren and Schreiber, together with the other real estate professionals employed by KBS Capital Advisors and KBS Realty Advisors and its affiliates, must determine which investment opportunities to recommend to us or another KBS program or investor for whom KBS serves as an investment adviser; |
| | • | | KBS Capital Advisors and its affiliates may structure the terms of joint ventures between us and other KBS-sponsored programs or KBS-advised entities; |
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| | • | | KBS Capital Advisors and its affiliates will have to allocate their time between us and other real estate programs and activities in which they are involved; |
| | • | | KBS Capital Advisors and its affiliates will receive fees in connection with transactions involving the purchase, management and sale of our properties regardless of the quality of the property acquired or the services provided to us; |
| | • | | KBS Capital Advisors and its affiliates, including our dealer manager, KBS Capital Markets Group, will receive fees in connection with our public offerings of equity securities; |
| | • | | The negotiation of the advisory agreement and the dealer manager agreement (including the substantial fees KBS Capital Advisors and its affiliates will receive thereunder) will not be at arm’s length; and |
| | • | | KBS Capital Advisors may terminate the advisory agreement without penalty upon 60 days’ written notice and, upon termination of the advisory agreement, KBS Capital Advisors may be entitled to a termination fee if (based upon an independent appraised value of the portfolio) it would have been entitled to a subordinated participation in net cash flows had the portfolio been liquidated on the termination date. |
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Who owns and controls the advisor?
The following chart shows the ownership structure of KBS Capital Advisors and entities affiliated with KBS Capital Advisors that will perform services for us:
| (1) | Peter McMillan III is our Executive Vice President, Treasurer, Secretary and one of our directors. |
| (2) | Keith D. Hall is our Executive Vice President. |
| (3) | Peter M. Bren is our President. Other than de minimis amounts owned by family members or family trusts, Mr. Bren indirectly owns and controls PBren Investments, L.P. |
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| (4) | Charles J. Schreiber, Jr. is the Chairman of our Board, our Chief Executive Officer and one of our directors. Other than de minimis amounts owned by family members or trusts, Mr. Schreiber indirectly owns and controls Schreiber Real Estate Investments, L.P. |
As of the date of this prospectus, Messrs. McMillan, Hall, Bren and Schreiber have not received any compensation from us for services provided in their capacity as principals of KBS Capital Advisors or its affiliates. As principals of our advisor and entities that provide services to us, each of them will be eligible for stock-based awards under our Employee and Independent Director Incentive Stock Plan. In addition, in connection with this offering, we will pay or reimburse our advisor and its affiliates for the services described below.
What are the fees that you will pay to the advisor, its affiliates and your directors?
KBS Capital Advisors and its affiliates will receive compensation and reimbursement for services relating to this offering and the investment and management of our assets. We will also compensate our independent directors for their service to us. The most significant items of compensation are included in the table below. Selling commissions may vary for different categories of purchasers. This table assumes that we sell all shares at the highest possible selling commissions (with no discounts to any categories of purchasers) and assumes a $9.50 price for each share sold through our dividend reinvestment plan. No dealer manager fee is payable on shares sold through our dividend reinvestment plan.
| | | | |
Type of Compensation
| | Determination of Amount
| | Estimated Amount for Minimum
Offering (250,000 shares)/Maximum
Offering (280,000,000 shares)
|
|
| Offering Stage |
| | |
Selling Commissions | | 6.0% of gross offering proceeds in primary offering and 3.0% of gross proceeds from sales under dividend reinvestment plan; all selling commissions will be reallowed to participating broker-dealers | | $150,000/$142,800,000 |
| | |
Dealer Manager Fee | | 3.5% of gross offering proceeds; dealer manager may reallow to any participating broker-dealer up to 1% of the gross offering proceeds attributable to that participating broker-dealer as a marketing fee; no dealer manager fee is payable on shares sold under our dividend reinvestment plan | | $87,500/$70,000,000 |
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| | | | |
Type of Compensation
| | Determination of Amount
| | Estimated Amount for Minimum
Offering (250,000 shares)/Maximum
Offering (280,000,000 shares)
|
| | |
Other Organization and Offering Expenses | | To date, our advisor has paid organization and offering expenses on our behalf. We will reimburse our advisor for these costs and future organization and offering costs it may incur on our behalf but only to the extent that the reimbursement would not cause the selling commissions, the dealer manager fee and the other organization and offering expenses borne by us to exceed 15% of gross offering proceeds as of the date of the reimbursement. If we raise the maximum offering amount, we expect organization and offering expenses (other than selling commissions and the dealer manager fee) to be $22,400,000 or 0.81% of gross offering proceeds. These organization and offering expenses include all expenses (other than selling commissions and the dealer manager fee) to be paid by us in connection with the offering, including our legal, accounting, printing, mailing and filing fees, charges of our escrow holder, reimbursement of bona fide due diligence expenses of broker-dealers, reimbursement of our advisor for the salaries of its employees and other costs in connection with preparing supplemental sales materials, the cost of educational conferences held by us (including the travel, meal and lodging costs of registered representatives of broker-dealers) and attendance fees and cost reimbursement for employees of our affiliates to attend retail seminars conducted by broker-dealers. | | $137,500/$22,400,000 |
|
| Acquisition and Development Stage |
| | |
Acquisition Fees | | 0.75% of the cost of investments acquired by us, including acquisition expenses and any debt attributable to such investments | | $15,819/$13,321,340 |
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| Operational Stage |
| | |
Asset Management Fees | | Monthly fee equal to one-twelfth of 0.75% of the sum of the cost of all real estate investments we own and of our investments in joint ventures, including acquisition fees, acquisition expenses and any debt attributable to such investments | | The actual amounts
are dependent upon
the total equity and
debt capital we raise
and the results of our
operations;
therefore, we cannot
determine these
amounts at the
present time. |
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| | | | |
Type of Compensation
| | Determination of Amount
| | Estimated Amount for Minimum
Offering (250,000 shares)/Maximum
Offering (280,000,000 shares)
|
| | |
| Operating Expenses | | Reimbursement of our advisor’s cost of providing services to us, including our allocable share of the advisor’s overhead, such as rent, personnel costs, utilities and IT costs. However, we will not reimburse the advisor for personnel costs in connection with services for which our advisor earns acquisition fees or real estate commissions. | | Actual amounts are dependent upon the results of our operations; we cannot determine these amounts at the present time. |
| | |
| Stock-based Compensation Awards | | We may issue stock-based awards to our independent directors and to affiliates of our advisor. The total number of shares of common stock we have reserved for issuance under our Employee and Independent Director Incentive Stock Plan is equal to 5% of our outstanding shares at any time but may not exceed 10,000,000 shares. | | Our board has not yet determined to grant any stock-based awards. We cannot determine these amounts at the present time. |
| | |
| Independent Director Compensation | | We will pay each of our independent directors an annual retainer of $25,000. We will also pay our independent directors for attending meetings as follows: (i) $2,500 for each board meeting attended, (ii) $2,000 for each committee meeting attended (except that the committee chairman will be paid $3,000 for each meeting attended), (iii) $1,000 for each teleconference board meeting attended, and (iv) $1,000 for each teleconference committee meeting attended (except that the committee chairman will be paid $3,000 for each teleconference committee meeting attended). All directors will receive reimbursement of reasonable out-of-pocket expenses incurred in connection with attendance at meetings of the board of directors. | | Actual amounts are dependent upon the total number of board and committee meetings that each independent director attends. |
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| | | | |
Type of Compensation
| | Determination of Amount
| | Estimated Amount for Minimum
Offering (250,000 shares)/Maximum
Offering (280,000,000 shares)
|
|
| Liquidation/Listing Stage |
| | |
| Real Estate Commissions | | For substantial assistance in connection with the sale of properties or other investments, we will pay KBS Capital Advisors or its affiliates 1% of the contract sales price of each property or other investment sold; provided, however, in no event may the real estate commissions paid to KBS Capital Advisors, its affiliates and unaffiliated third parties exceed 6% of the contract sales price. The conflicts committee will determine whether the advisor or its affiliate has provided substantial assistance to us in connection with the sale of an asset. Substantial assistance in connection with the sale of a property includes the advisor’s preparation of an investment package for the property (including a new investment analysis, rent rolls, tenant information regarding credit, a property title report, an environmental report, a structural report and exhibits) or such other substantial services performed by the advisor in connection with a sale. | | Actual amounts are dependent upon the results of our operations; we cannot determine these amounts at the present time. |
| | |
| Subordinated Participation in Net Cash Flows (payable only if we are not listed on a national exchange) | | 15.0% of our net cash flows, whether from continuing operations, net sale proceeds or otherwise, after return of capital plus payment to investors of an 8.0% cumulative, non-compounded return on the capital contributed by investors | | Actual amounts are dependent upon the results of our operations; we cannot determine these amounts at the present time. |
| | |
| Subordinated Incentive Listing Fee (payable only if we are listed on a national exchange) | | 15.0% of the amount by which our adjusted market value plus distributions exceeds the aggregate capital contributed by investors plus an amount equal to an 8.0% cumulative, non-compounded return to investors | | Actual amounts are dependent upon the results of our operations; we cannot determine these amounts at the present time. |
How many real estate properties do you currently own?
We currently do not own any properties. Because we have not yet identified any specific properties to purchase, we are considered to be a blind pool. As specific property acquisitions become probable, we will supplement this prospectus to provide information regarding the likely acquisition to the extent material to an investment decision with respect to our common stock. We will also describe material changes to our portfolio, including the closing of property acquisitions, by means of a supplement to this prospectus.
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Will you acquire properties in joint ventures?
Probably. Among other reasons, joint venture investments permit us to own interests in large properties without unduly restricting the diversity of our portfolio. We may also want to acquire properties through a joint venture in order to diversify our portfolio of properties in terms of geographic region, property type and tenant industry group. In determining whether to invest in a particular joint venture, KBS Capital Advisors will evaluate the real estate assets that such joint venture owns or is being formed to own under the same criteria as our other investments.
What steps will you take to make sure you purchase environmentally compliant properties?
We will obtain a Phase I environmental assessment of each property purchased and, in our discretion, may obtain additional environmental assessments. We will not close the purchase of any property unless we are generally satisfied with the environmental status of the property.
If I buy shares, will I receive dividends and how often?
We intend to begin making distributions to our stockholders as soon as we have sufficient cash flow from our operations and we expect to pay dividends on a monthly basis. We intend to elect to be taxed as a REIT and to operate as a REIT beginning with our taxable year ending December 31, 2006. To maintain our qualification as a REIT, we will be required to make aggregate annual distributions to our stockholders of at least 90% of our REIT taxable income (computed without regard to the dividends paid deduction and excluding net capital gain). Our board of directors may authorize distributions in excess of those required for us to maintain REIT status depending on our financial condition and such other factors as our board of directors deems relevant.
Our cash available for distribution may be less than 90% of our REIT taxable income. Further, because we may receive income from interest or rents at various times during our fiscal year, we may declare dividends in anticipation of cash flow that we expect to receive during a later period and we may pay these dividends in advance of our actual receipt of these funds. As a result, in order to comply with the REIT requirements and to make distributions relatively uniform, we may borrow funds or sell assets to make distributions. Though our board has the authority under our organizational documents, our distribution policy is not to use the proceeds of this offering to pay distributions. As explained below, for tax purposes the portion of your distribution that exceeds our current or accumulated earnings and profits will be treated as a return of capital to the extent of your adjusted tax basis in your shares, and thereafter will be treated as capital gain. To the extent that we pay distributions in excess of our current or accumulated earnings and profits, we expect that we would use borrowings or proceeds from the sale of assets to fund such distributions, though our board could authorize such distributions from the proceeds of this offering or future offerings. Our charter does not require that we make distributions to our stockholders and we have not established a minimum distribution level.
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How will you calculate the payment of dividends to stockholders?
We intend to authorize, declare and pay dividends on a monthly basis. In order that investors may generally begin earning dividends immediately upon our acceptance of their subscription, we expect to use daily record dates for the determination of who is entitled to a dividend.
May I reinvest my dividends in shares of KBS Real Estate Investment Trust?
Yes. You may participate in our dividend reinvestment plan by checking the appropriate box on the Subscription Agreement or by filling out an enrollment form we will provide to you at your request. The purchase price for shares purchased under the dividend reinvestment plan will initially be $9.50. Three years after the completion of our offering stage, shares issued pursuant to our dividend reinvestment plan will be priced at the net asset value per share of our common stock, as estimated by our advisor or another firm chosen for that purpose. We will consider our offering stage complete when we are no longer publicly offering equity securities and have not done so for one year. If we pay selling commissions in connection with the sale of shares to you in our primary offering, we will pay a 3% selling commission on any dividends that you reinvest under our dividend reinvestment plan. These selling commissions may be higher than the selling commissions charged in connection with recent dividend reinvestment plan offerings by other unlisted, publicly offered REITs. Whether we pay a selling commission will not affect the purchase price you pay under the dividend reinvestment plan, but it will affect the net proceeds to us from the sale. The total return for our investors would likely be higher if we paid no selling commissions. We may amend or terminate the dividend reinvestment plan at our discretion at any time, provided that any amendment that adversely affects the rights or obligations of a participant (as determined in the sole discretion of the board of directors) will only take effect upon 10 days’ prior written notice to you.
Will the dividends I receive be taxable as ordinary income?
Yes and No. Generally, dividends that you receive, including dividends that are reinvested pursuant to our dividend reinvestment plan, will be taxed as ordinary income to the extent they are from current or accumulated earnings and profits. Participants in our dividend reinvestment plan will also be treated for tax purposes as having received an additional distribution to the extent that they purchase shares under the dividend reinvestment plan at a discount to fair market value. As a result, participants in our dividend reinvestment plan may have tax liability with respect to their share of our taxable income, but they will not receive cash dividends to pay such liability.
We expect that some portion of your dividends will not be subject to tax in the year in which they are received because depreciation expense reduces the amount of taxable income but does not reduce cash available for distribution. The portion of your distribution that is not subject to tax immediately is considered a return of capital for tax purposes and will reduce the tax basis of your investment. Dividends that constitute a return of capital, in effect, defer a portion of your tax until your investment is sold or we are liquidated, at which time you will be taxed at capital
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gains rates. However, because each investor’s tax considerations are different, we suggest that you consult with your tax advisor.
How will you use the proceeds raised in this offering?
We expect to use substantially all of the net proceeds from this offering to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. Depending primarily upon the number of shares we sell in this offering and assuming a $10.00 purchase price for shares sold in the primary offering and a $9.50 purchase price for shares sold under the dividend reinvestment plan, we estimate that we will use 84.4% to 91.0% of our gross offering proceeds, or between $8.44 and $8.97 per share, for investments and the repurchase of shares of our common stock under our proposed share redemption program. We will use the remainder to pay offering expenses, including selling commissions and the dealer manager fee, and to pay a fee to our advisor for its services in connection with the selection and acquisition of our real estate investments.
Until we invest the proceeds of this offering in real estate, we may invest in short-term, highly liquid or other authorized investments. Such short-term investments will not earn as high of a return as we expect to earn on our real estate investments, and we may be not be able to invest the proceeds in real estate promptly.
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| | | | | | | | | | | | | | | | | | | | |
| | | 250,000 Shares
| | | 280,000,000 Shares
| |
| | | Minimum Offering
($10.00/share)
| | | Primary Offering
(200,000,000 shares)
($10.00/share)
| | | Div. Reinv. Plan
(80,000,000 shares)
($9.50/share)
| | | Total (280,000,000 shares)
| |
| | | $
| | %
| | | $
| | %
| | | $
| | %
| | | $
| | %
| |
Gross Offering Proceeds | | 2,500,000 | | 100.00 | % | | 2,000,000,000 | | 100.00 | % | | 760,000,000 | | 100.00 | % | | 2,760,000,000 | | 100.00 | % |
Selling Commissions | | 150,000 | | 6.00 | % | | 120,000,000 | | 6.00 | % | | 22,800,000 | | 3.00 | % | | 142,800,000 | | 5.17 | % |
Dealer Manager Fee | | 87,500 | | 3.50 | % | | 70,000,000 | | 3.50 | % | | 0 | | 0.00 | % | | 70,000,000 | | 2.54 | % |
Other Organization and Offering Expenses | | 137,500 | | 5.50 | % | | 20,500,000 | | 1.03 | % | | 1,900,000 | | 0.25 | % | | 22,400,000 | | 0.81 | % |
Acquisition Fees | | 15,819 | | 0.63 | % | | 13,321,340 | | 0.66 | % | | 0 | | 0.00 | % | | 13,321,340 | | 0.48 | % |
Initial Working Capital Reserve | | 0 | | 0.00 | % | | 0 | | 0.00 | % | | 0 | | 0.00 | % | | 0 | | 0.00 | % |
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Amount Available for Investment | | 2,109,181 | | 84.37 | % | | 1,776,178,660 | | 88.81 | % | | 735,300,000 | | 96.75 | % | | 2,511,478,660 | | 91.00 | % |
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What kind of offering is this?
We are offering up to 280,000,000 shares of common stock on a “best efforts” basis. We are offering 200,000,000 of these shares in our primary offering at $10 per share, with volume discounts available to investors who purchase more than 50,000 shares through the same participating broker-dealer. Discounts are also available for investors who purchase shares through certain distribution channels. We are offering up to 80,000,000 shares pursuant to our dividend reinvestment plan at a purchase price initially equal to $9.50 per share.
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How does a “best efforts” offering work? What happens if you don’t raise at least $2,500,000 in gross offering proceeds?
When shares are offered on a “best efforts” basis, the broker-dealers participating in the offering have no firm commitment or obligation to purchase any of the shares but must use their best efforts to sell the shares. Therefore, we may not sell all or any of the shares that we are offering.
We will not sell any shares unless we raise a minimum of $2,500,000 in gross offering proceeds from persons who are not affiliated with us or our advisor. Pending satisfaction of this condition, all subscription payments will be placed in an account held by the escrow agent in trust for our subscribers’ benefit, pending release to us. If we do not raise $2,500,000 in gross offering proceeds by January 13, 2007, we will terminate this offering and promptly return all subscribers’ funds in the escrow account (plus interest). Funds in escrow will be invested in short-term investments that mature on or before the termination of the offering or that can be readily sold or otherwise disposed of for cash by such date without any dissipation of the offering proceeds invested. We will not deduct any fees if we return funds from the escrow account. Because of the higher minimum offering requirement for Pennsylvania investors (described below), subscription payments made by Pennsylvania investors will not count toward the $2,500,000 minimum offering for all other jurisdictions.
Notwithstanding our $2,500,000 minimum offering amount for all other jurisdictions, we will not sell any shares to Pennsylvania investors unless we raise a minimum of $66.7 million in gross offering proceeds (including sales made to residents of other jurisdictions). Pending satisfaction of this condition, all subscription payments by Pennsylvania investors will be placed in a separate account held by the escrow agent in trust for Pennsylvania subscribers’ benefit, pending release to us. If we have not reached this $66.7 million threshold within 120 days of the date that we first accept a subscription payment from a Pennsylvania investor, we will, within 10 days of the end of that 120-day period, notify Pennsylvania investors in writing of their right to receive refunds, with interest. If you request a refund within 10 days of receiving that notice, we will arrange for the escrow agent to promptly return by check your subscription amount with interest. Amounts held in the Pennsylvania escrow account from Pennsylvania investors not requesting a refund will continue to be held for subsequent 120-day periods until we raise at least $66.7 million or until the end of the subsequent escrow periods. At the end of each subsequent escrow period, we will again notify you of your right to receive a refund of your subscription amount with interest. In the event we do not raise gross offering proceeds of $66.7 million by January 13, 2008, we will promptly return all funds held in escrow for the benefit of Pennsylvania investors (in which case, Pennsylvania investors will not be required to request a refund of their investment). Purchases by persons affiliated with us or our advisor will not count toward the Pennsylvania minimum.
How long will this offering last?
We expect to sell the 200,000,000 shares offered in our primary offering over a two-year period. If we have not sold all of the shares within two years, we may continue this offering until January 13, 2009. Under rules recently promulgated by the SEC, in some circumstances we could continue our primary offering until as late as July 12, 2009. If we decide to continue our primary offering beyond two years from the date of this prospectus, we will provide that
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information in a prospectus supplement. We may continue to offer shares under our dividend reinvestment plan beyond these dates until we have sold 80,000,000 shares through the reinvestment of dividends. In many states, we will need to renew the registration statement or file a new registration statement to continue the offering beyond one year from the date of this prospectus. We may terminate this offering at any time.
Who can buy shares?
An investment in our shares is only suitable for persons who have adequate financial means and who will not need immediate liquidity from their investment. Residents of most states can buy shares in this offering provided that they have either (1) a net worth of at least $45,000 and an annual gross income of at least $45,000 or (2) a net worth of at least $150,000. For the purpose of determining suitability, net worth does not include an investor’s home, home furnishings or personal automobiles. The minimum suitability standards are more stringent for investors in Arizona, California, Iowa, Kansas, Maine, Massachusetts, Michigan, Missouri, New Mexico, Ohio, Pennsylvania and Tennessee.
Who might benefit from an investment in our shares?
An investment in our shares may be beneficial for you if you meet the minimum suitability standards described in this prospectus, seek to diversify your personal portfolio with a finite-life, real estate-based investment, seek to receive current income, seek to preserve capital, seek to obtain the benefits of potential long-term capital appreciation and are able to hold your investment for a time period consistent with our liquidity strategy. On the other hand, we caution persons who require immediate liquidity or guaranteed income, or who seek a short-term investment, that an investment in our shares will not meet those needs.
Is there any minimum investment required?
Yes. We require a minimum investment of $5,000. After you have satisfied the minimum investment requirement, any additional purchase must be in increments of at least $100. The investment minimum for subsequent purchases does not apply to shares purchased pursuant to our dividend reinvestment plan.
Are there any special restrictions on the ownership or transfer of shares?
Yes. Our charter contains restrictions on the ownership of our shares that prevent any one person from owning more than 9.8% of our aggregate outstanding shares unless exempted by our board of directors. These restrictions are designed to enable us to comply with ownership restrictions imposed on REITs by the Internal Revenue Code. Our charter also limits your ability to sell your shares unless (i) the prospective purchaser meets the suitability standards regarding income or net worth and (ii) the transfer complies with the minimum purchase requirements.
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Are there any special considerations that apply to employee benefit plans subject to ERISA or other retirement plans that are investing in shares?
Yes. The section of this prospectus entitled “ERISA Considerations” describes the effect the purchase of shares will have on individual retirement accounts and retirement plans subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA), and/or the Internal Revenue Code. ERISA is a federal law that regulates the operation of certain tax-advantaged retirement plans. Any retirement plan trustee or individual considering purchasing shares for a retirement plan or an individual retirement account should carefully read this section of the prospectus.
How do I subscribe for shares?
If you choose to purchase shares in this offering, you will need to complete and sign a Subscription Agreement (in the form attached to this prospectus as Appendix A) for a specific number of shares and pay for the shares at the time of your subscription.
If I buy shares in this offering, how may I later sell them?
At the time you purchase the shares, they will not be listed for trading on any securities exchange or over-the-counter market. In fact, we expect that there will not be any public market for the shares when you purchase them, and we cannot be sure if one will ever develop. In addition, our charter imposes restrictions on the ownership of our common stock that will apply to potential purchasers of your shares. As a result, if you wish to sell your shares, you may not be able to do so promptly or at all, or you may only be able to sell them at a substantial discount from the price you paid.
After you have held your shares for at least one year, you may be able to have your shares repurchased by us pursuant to our proposed share redemption program, although we will not adopt the program during this primary offering or any subsequent primary offering unless the SEC grants us exemptive relief from restrictions on issuer repurchases during a distribution. Under the proposed share redemption program, we would initially redeem shares at the lower of $9.00 or 90% of the price paid to acquire the shares from us. Three years after the completion of our offering stage, the redemption price per share would be equal to the net asset value per share of our common stock, as estimated by our advisor or another firm chosen for that purpose. We will consider our offering stage complete when we are no longer publicly offering equity securities and have not done so for one year. (The terms of our proposed redemption program would be more generous upon the death of a stockholder.)
The share redemption program would also contain numerous restrictions on your ability to sell your shares to us. Our share redemption program would limit the number of shares we could redeem to those that we could purchase with the net proceeds from the sale of shares under our dividend reinvestment plan during the prior calendar year. In addition, during any calendar year, we would redeem no more than 5% of the weighted average number of shares outstanding during the prior calendar year. We would also have no obligation to redeem shares if the redemption would violate the restrictions on distributions under Maryland law, which prohibits
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distributions that would cause a corporation to fail to meet statutory tests of solvency. Even if we adopted the program, we could later amend, suspend or terminate the program upon 30 days’ notice.
When will the company seek to list its shares of common stock?
We will seek to list our shares of common stock if and when our independent directors believe listing would be in the best interests of our stockholders. If we do not list our shares of common stock on a national securities exchange or on the Nasdaq National Market by November 2012, our charter requires that we either:
| | • | | seek stockholder approval of the liquidation of the company; or |
| | • | | if a majority of the conflicts committee determines that liquidation is not then in the best interests of our stockholders, postpone the decision of whether to liquidate the company. |
If a majority of the conflicts committee does determine that liquidation is not then in the best interests of our stockholders, our charter requires that the conflicts committee revisit the issue of liquidation at least annually. Further postponement of listing or stockholder action regarding liquidation would only be permitted if a majority of the conflicts committee again determined that liquidation would not be in the best interest of our stockholders. If we sought and failed to obtain stockholder approval of our liquidation, our charter would not require us to list or liquidate, and we could continue to operate as before. If we sought and obtained stockholder approval of our liquidation, we would begin an orderly sale of our properties and other assets. The precise timing of such sales would take account of the prevailing real estate and financial markets, the economic conditions in the submarkets where our properties are located and the federal income tax consequences to our stockholders. In making the decision to apply for listing of our shares, our directors will try to determine whether listing our shares or liquidating our assets will result in greater value for stockholders.
Will I be notified of how my investment is doing?
Yes, we will provide you with periodic updates on the performance of your investment in us, including:
| | • | | detailed quarterly dividend reports; |
| | • | | supplements to the prospectus, provided quarterly; and |
| | • | | three quarterly financial reports. |
We will provide this information to you via one or more of the following methods, in our discretion and with your consent, if necessary:
| | • | | U.S. mail or other courier; |
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When will I get my detailed tax information?
Your Form 1099-DIV tax information, if required, will be mailed by January 31 of each year.
Who can help answer my questions about the offering?
If you have more questions about the offering, or if you would like additional copies of this prospectus, you should contact your registered representative or contact:
KBS Capital Markets Group LLC
660 Newport Center Drive, Suite 1200
Newport Beach, California 92660
Telephone: (866) KBS-4CMG or (866) 527-4264
Fax: (949) 717-6201
www.kbs-cmg.com
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RISK FACTORS
An investment in our common stock involves various risks and uncertainties. You should carefully consider the following risk factors in conjunction with the other information contained in this prospectus before purchasing our common stock. The risks discussed in this prospectus could adversely affect our business, operating results, prospects and financial condition. This could cause the value of our common stock to decline and could cause you to lose all or part of your investment. The risks and uncertainties described below are not the only ones we face but do represent those risks and uncertainties that we believe are material to us. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also harm our business.
Risks Related to an Investment in Us
Because no public trading market for your shares currently exists, it will be difficult for you to sell your shares and, if you are able to sell your shares, you will likely sell them at a substantial discount to the public offering price.
There is no public market for our shares and we currently have no plans to list our shares on a national securities exchange or the Nasdaq National Market. Until our shares are listed, if ever, you may not sell your shares unless the buyer meets the applicable suitability and minimum purchase standards. In addition, our charter prohibits the ownership of more than 9.8% of our stock, unless exempted by our board of directors, which may inhibit large investors from purchasing your shares. Moreover, we will delay adoption of our share redemption program until the earlier of (i) the completion of this primary offering, which we expect to continue until January 13, 2008, or (ii) our receipt of SEC exemptive relief from the rules restricting issuer purchases during distributions, which relief we may not be able to obtain. Even when one of these conditions is satisfied, our board of directors could choose not to adopt the proposed share redemption program or amend its terms without stockholder approval. Our board would also be free to amend or terminate the program upon 30 days’ notice after its adoption. Further, as proposed, the share redemption program includes numerous restrictions that would limit your ability to sell your shares. We describe these restrictions in more detail under “Description of Shares—Proposed Share Redemption Program.” Therefore, it will be difficult for you to sell your shares promptly or at all. If you are able to sell your shares, you would likely have to sell them at a substantial discount to their public offering price. It is also likely that your shares would not be accepted as the primary collateral for a loan. Because of the illiquid nature of our shares, you should purchase our shares only as a long-term investment and be prepared to hold them for an indefinite period of time.
If we are unable to find suitable investments, we may not be able to achieve our investment objectives or pay dividends.
Our ability to achieve our investment objectives and to pay dividends depends upon the performance of KBS Capital Advisors, our advisor, in the acquisition of our investments, including the determination of any financing arrangements, and upon the performance of our property managers in the selection of tenants and negotiation of leasing arrangements. The current market for properties meeting our investment objectives is highly competitive as is the leasing market for such properties. The more shares we sell in this offering, the greater our challenge will be to invest all of the net offering proceeds on attractive terms. We may have to offer inducements, such as free rent and tenant improvements, to compete for attractive tenants. Except for investments that may be described in one or more supplements to this prospectus, you
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will have no opportunity to evaluate the economic merits or the terms of our investments. You must rely entirely on the management abilities of KBS Capital Advisors, the property managers KBS Capital Advisors selects and the oversight of our board of directors. We cannot assure you that KBS Capital Advisors will be successful in obtaining suitable investments on financially attractive terms or that, if KBS Capital Advisors makes investments on our behalf, our objectives will be achieved. If we, through KBS Capital Advisors, are unable to find suitable investments promptly, we will hold the proceeds from this offering in an interest-bearing account or invest the proceeds in short-term, investment-grade assets. If we would continue to be unsuccessful in locating suitable investments, we may ultimately decide to liquidate. In the event we are unable to timely locate suitable investments, we may be unable or limited in our ability to pay dividends and we may not be able to meet our investment objectives.
We may suffer from delays in locating suitable investments, which could limit our ability to make distributions and lower the overall return on your investment.
We rely upon the executive officers and other real estate professionals employed by our advisor, including Peter M. Bren and Charles J. Schreiber, Jr., to identify suitable investments. Other KBS-sponsored programs, especially those that are currently raising offering proceeds, as well as the institutional investors for whom KBS affiliates serve as investment advisers, rely upon these persons, as the executive officers and key employees of their advisor, for investment opportunities. To the extent that Messrs. Bren and Schreiber and the other real estate professionals employed by our advisor face competing demands upon their time at times when we have capital ready for investment, we may face delays in locating suitable investments. Further, the more money we raise in this offering, the more difficult it will be to invest the net offering proceeds promptly. Therefore, the large size of this offering and the continuing high demand for the types of properties we desire to purchase increase the risk of delays in investing our net offering proceeds. Delays we encounter in the selection, acquisition and development of income-producing properties would likely limit our ability to pay dividends to our stockholders and lower their overall returns. In particular, if we acquire properties 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. Therefore, you could suffer delays in the distribution of cash dividends attributable to those particular properties. You should expect to wait at least several months after the closing of a property acquisition before receiving cash dividends attributable to that property.
Because this is a blind-pool offering, you will not have the opportunity to evaluate our investments before we make them, which makes your investment more speculative.
Because we have not yet acquired or identified any investments that we may make, we are not able to provide you with any information to assist you in evaluating the merits of any specific properties or other investments that we may acquire, except for investments that may be described in one or more supplements to this prospectus. We will seek to invest substantially all of the offering proceeds available for investment, after the payment of fees and expenses, in the acquisition of interests in real estate. However, because you will be unable to evaluate the economic merit of real estate projects before we invest in them, you will have to rely entirely on the ability of our advisor to select suitable and successful investment properties. Furthermore, our board of directors will have broad discretion in implementing policies regarding tenant or mortgagor creditworthiness and you will not have the opportunity to evaluate potential tenants, managers or borrowers. These factors increase the risk that your investment may not generate returns comparable to our competitors.
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If we are unable to raise substantial funds, we will be limited in the number and type of investments we may make and the value of your investment in us will fluctuate with the performance of the specific properties we acquire.
This offering is being made on a “best efforts” basis, which means the brokers participating in the offering are only required to use their best efforts to sell our shares and have no firm commitment or obligation to purchase any of the shares. As a result, the amount of proceeds we raise in this offering may be substantially less than the amount we would need to achieve a diversified portfolio of investments. We may be unable to raise even the minimum offering amount. If we are unable to raise substantially more than the minimum offering amount, we will make fewer investments resulting in less diversification in terms of the number, types and geographic locations of the investments that we make. In that case, the likelihood that any single property’s performance would adversely affect our profitability will increase. Additionally, we are not limited in the number or size of our investments or the percentage of net proceeds we may dedicate to a single investment. Your investment in our shares will be subject to greater risk to the extent that we lack a diversified portfolio of investments. Further, we will have certain fixed operating expenses, including certain expenses as a publicly offered REIT, regardless of whether we are able to raise substantial funds in this offering. Our inability to raise substantial funds would increase our fixed operating expenses as a percentage of gross income, reducing our net income and limiting our ability to make distributions.
Neither we nor our advisor have a prior operating history and our advisor does not have any experience operating a public company, which makes our future performance difficult to predict.
We are a recently formed company, as is our advisor. Neither of us has an operating history. We were incorporated in the State of Maryland on June 13, 2005. As of the date of this prospectus, we have not made any investments in real estate or otherwise, and our total assets consist of $200,000 cash. You should not assume that our performance will be similar to the past performance of other real estate investment programs sponsored by affiliates of our advisor. We are the first publicly offered investment program sponsored by the affiliates of our advisor. Because the previous KBS-sponsored programs were conducted through privately held entities, they were subject to neither the up-front commissions, fees and expenses associated with this offering nor all of the laws and regulations that will apply to us. Finally, our executive officers and directors have limited experience managing public companies. For all of these reasons, you should be especially cautious when drawing conclusions about our future performance and you should not assume that it will be similar to the prior performance of other KBS-sponsored programs. Our lack of an operating history and differences from other KBS-sponsored programs significantly increase the risk and uncertainty you face in making an investment in our shares.
Because we are dependent upon our advisor and its affiliates to conduct our operations, any adverse changes in the financial health of our advisor or its affiliates or our relationship with them could hinder our operating performance and the return on your investment.
We are dependent on KBS Capital Advisors to manage our operations and our portfolio of real estate assets. Our advisor has no operating history and it will depend upon the fees and other compensation that it will receive from us in connection with the purchase, management and sale of our properties to conduct its operations. Any adverse changes in the financial condition of KBS Capital Advisors or our relationship with KBS Capital Advisors could hinder its ability to successfully manage our operations and our portfolio of investments.
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KBS Capital Markets Group is a newly formed entity with no operating history and our ability to implement our investment strategy is dependent, in part, upon the ability of KBS Capital Markets Group to successfully conduct this offering, which makes an investment in us more speculative.
We have retained KBS Capital Markets Group, an affiliate of our advisor, to conduct this offering. KBS Capital Markets Group is a recently formed company with no prior operating history. This offering will be the first offering conducted by our dealer manager. The success of this offering, and our ability to implement our business strategy, is dependent upon the ability of KBS Capital Markets Group to build and maintain a network of broker-dealers to sell our shares to their clients. If KBS Capital Markets Group is not successful in establishing, operating and managing this network of broker-dealers, our ability to raise proceeds through this offering will be limited and we may not have adequate capital to implement our investment strategy. If we are unsuccessful in implementing our investment strategy, you could lose all or a part of your investment.
If we pay distributions from sources other than our cash flow from operations, we will have less funds available for the acquisition of properties and your overall return may be reduced.
Our organizational documents permit us to pay dividends from any source. If we fund distributions from financings or the net proceeds from this offering, we will have less funds available for the acquisition of properties and your overall return may be reduced. Further, to the extent distributions exceed cash flow from operations, a stockholder’s basis in our stock will be reduced and, to the extent distributions exceed a stockholder’s basis, the stockholder may recognize capital gain.
The loss of or inability to obtain key personnel could delay or hinder implementation of our investment strategies, which could limit our ability to make distributions and decrease the value of your investment.
Our success depends to a significant degree upon the contributions of Peter M. Bren, Charles J. Schreiber, Jr., Peter McMillan III, Keith D. Hall and, through our dealer manager, Greg P. Brakovich, each of whom would be difficult to replace.Neither we nor our affiliates have employment agreements with Messrs. Bren, McMillan, Hall or Schreiber. Messrs. Bren, McMillan, Hall, Schreiber and Brakovich may not remain affiliated with us.If any of these persons were to cease their affiliation with us, our operating results could suffer. We do not intend to maintain key person life insurance on any person. We believe that our future success depends, in large part, upon our advisor’s and its affiliates’ ability to hire and retain highly skilled managerial, operational and marketing personnel. Competition for such personnel is intense, and our advisor and its affiliates may be unsuccessful in attracting and retaining such skilled personnel. Further, we intend to establish strategic relationships with firms that have special expertise in certain services or as to real properties in certain geographic regions. Maintaining such relationships will be important for us to effectively compete with other investors for properties in such regions. We may be unsuccessful in establishing and retaining such relationships. If we lose or are unable to obtain the services of highly skilled personnel or do not establish or maintain appropriate strategic relationships, our ability to implement our investment strategies could be delayed or hindered, and the value of your investment may decline.
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Our rights and the rights of our stockholders to recover claims against our independent directors are limited, which could reduce your and our recovery against them if they negligently cause us to incur losses.
Maryland law provides that a director has no liability in that capacity if he performs his duties in good faith, in a manner he reasonably believes to be in our best interests and with the care that an ordinarily prudent person in a like position would use under similar circumstances. Our charter provides that no independent director shall be liable to us or our stockholders for monetary damages and that we will generally indemnify them for losses unless they are grossly negligent or engage in willful misconduct. As a result, you and we may have more limited rights against our independent directors than might otherwise exist under common law, which could reduce your and our recovery from these persons if they act in a negligent manner. In addition, we may be obligated to fund the defense costs incurred by our independent directors (as well as by our other directors, officers, employees and agents) in some cases, which would decrease the cash otherwise available for distributions to you.
Risks Related to Conflicts of Interest
KBS Capital Advisors and its affiliates, including all of our executive officers and some of our directors, will face conflicts of interest caused by their compensation arrangements with us, which could result in actions that are not in the long-term best interests of our stockholders.
All of our executive officers and some of our directors are also officers, directors and/or holders of a direct or indirect controlling interest in our advisor, our dealer manager and other affiliated KBS entities. KBS Capital Advisors and its affiliates will receive substantial fees from us. These fees could influence our advisor’s advice to us as well as the judgment of affiliates of KBS Capital Advisors. Among other matters, these compensation arrangements could affect their judgment with respect to:
| | • | | the continuation, renewal or enforcement of our agreements with KBS Capital Advisors and its affiliates, including the advisory agreement and the dealer-manager agreement; |
| | • | | public offerings of equity by us, which entitle KBS Capital Markets Group to dealer-manager fees and will likely entitle KBS Capital Advisors to increased acquisition and asset-management fees; |
| | • | | property sales, which entitle KBS Capital Advisors to real estate commissions and possible success-based sale fees; |
| | • | | property acquisitions from other KBS-sponsored programs, which might entitle affiliates of KBS Capital Advisors to real estate commissions and possible success-based sale fees in connection with its services for the seller; |
| | • | | property acquisitions from third parties, which entitle KBS Capital Advisors to acquisition fees and asset-management fees; |
| | • | | borrowings to acquire properties, which borrowings will increase the acquisition and asset-management fees payable to KBS Capital Advisors; |
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| | • | | whether and when we seek to list our common stock on a national securities exchange or the Nasdaq National Market, which listing could entitle KBS Capital Advisors to a success-based listing fee; and |
| | • | | whether and when we seek to sell the company or its assets, which sale could entitle KBS Capital Advisors to a success-based fee. |
The fees our advisor receives in connection with transactions involving the purchase and management of a property are based on the cost of the investment, and not based on the quality of the investment or the quality of the services rendered to us. This may influence our advisor to recommend riskier transactions to us.
KBS Capital Advisors will face conflicts of interest relating to the purchase and leasing of properties and such conflicts may not be resolved in our favor, meaning that we could invest in less attractive properties and obtain less creditworthy tenants, which could limit our ability to make distributions and reduce your overall investment return.
We rely on our advisor, specifically its executive officers and real estate professionals, including Peter M. Bren and Charles J. Schreiber, Jr., to identify suitable investment opportunities for us. Messrs. Bren and Schreiber and several of the other employees of KBS Capital Advisors are also the key employees of KBS Realty Advisors and its affiliates, the advisors to the other KBS-sponsored programs and the investment advisers to institutional investors in real estate and real estate-related assets. As such, other KBS-sponsored programs, especially those that are currently raising offering proceeds, and these institutional investors rely on the same group of real estate professionals for investment opportunities. Many investment opportunities that are suitable for us may also be suitable for other KBS programs and investors. When these real estate professionals direct an investment opportunity to any KBS-sponsored program or KBS-advised investor, they, in their sole discretion, will offer the opportunity to the program or investor for which the investment opportunity is most suitable based on the investment objectives, portfolio and criteria of each program or investor. Our charter disclaims any interest in an investment opportunity known to KBS Capital Advisors or its affiliates that KBS Capital Advisors has not recommended to us. Thus, the executive officers and real estate professionals of KBS Capital Advisors could direct attractive investment opportunities to other entities or investors. Such events could result in us investing in properties that provide less attractive returns, reducing the level of dividends we may be able to pay to you.
We and other KBS-sponsored programs and KBS-advised investors also rely on these real estate professionals to supervise the property management and leasing of properties. If the KBS team of real estate professionals direct creditworthy prospective tenants to another KBS-sponsored program or KBS-advised investor when they could direct such tenants to our properties, our tenant base may have more inherent risk than might otherwise be the case. Further, existing and future KBS-sponsored programs and KBS-advised investors and Messrs. Bren and Schreiber are not prohibited from engaging, directly or indirectly, in any business or from possessing interests in any other business venture or ventures, including businesses and ventures involved in the acquisition, development, ownership, leasing or sale of real estate projects. For a detailed description of the conflicts of interest that our advisor will face, see “Conflicts of Interest.”
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KBS Capital Advisors will face conflicts of interest relating to joint ventures that we may form with affiliates of KBS Capital Advisors, which conflicts could result in a disproportionate benefit to the other venture partners at our expense.
If approved by a majority of our independent directors, we may enter into joint venture agreements with other KBS-sponsored programs or affiliated entities for the acquisition, development or improvement of properties. KBS Capital Advisors, our advisor, and KBS Realty Advisors and its affiliates, the advisors to the other KBS-sponsored programs and the investment advisers to institutional investors in real estate and real estate-related assets, have the same executive officers and key employees; and these persons, including Messrs. Bren and Schreiber, will face conflicts of interest in determining which KBS program or investor should enter into any particular joint venture agreement. These persons may also face a conflict in structuring the terms of the relationship between our interests and the interests of the KBS-affiliated co-venturer and in managing the joint venture. Any joint ventures agreement or transaction between us and a KBS-affiliated co-venturer will not have the benefit of arm’s-length negotiation of the type normally conducted between unrelated co-venturers. The KBS-affiliated co-venturer may have economic or business interests or goals that are or may become inconsistent with our business interests or goals. These co-venturers may thus benefit to our and your detriment.
KBS Capital Advisors, its affiliates and employees and our officers will face competing demands relating to their time and this may cause our operations and your investment to suffer.
We rely on KBS Capital Advisors and its affiliates and employees for the day-to-day operation of our business. Peter M. Bren and Charles J. Schreiber, Jr., two of our executive officers, are also executive officers of KBS Capital Advisors, our advisor, and KBS Realty Advisors and its affiliates, the advisors of the other KBS programs and the investment advisers to institutional investors in real estate and real estate-related assets. As a result of their interests in other KBS programs, their obligations to other investors and the fact that they have engaged in and they will continue to engage in other business activities, Messrs. Bren and Schreiber will face conflicts of interest in allocating their time among us, KBS Capital Advisors and other KBS programs and activities in which they are involved. In addition, KBS Capital Advisors and KBS Realty Advisors and its affiliates share the same key employees. During times of intense activity in other programs and ventures, these employees may devote less time and fewer resources to our business than are necessary or appropriate to manage our business. If this occurs, the returns on our investments, and the value of your investment, may decline.
All of our executive officers and some of our directors face conflicts of interest related to the positions they hold with KBS Capital Advisors and its affiliates, including our dealer manager, which could hinder our ability to implement our business strategy and to generate returns to you.
All of our executive officers and some of our directors are also executive officers, managers and holders of a direct or indirect controlling interest in our advisor, our dealer manager and other affiliated KBS entities. Through KBS-affiliated entities, these persons also serve as the investment advisers to institutional investors in real estate and real estate-related assets. As a result, they owe fiduciary duties to each of these entities, their members and limited partners and these investors, which fiduciary duties may from time to time conflict with the fiduciary duties that they owe to us and our stockholders. Their loyalties to these other entities and investors could result in action or inaction that is detrimental to our business, which could harm the implementation of our business strategy and our investment and leasing opportunities. If we do
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not successfully implement our business strategy, we may be unable to generate the cash needed to make distributions to you and to maintain or increase the value of our assets.
Risks Related to This Offering and Our Corporate Structure
Our charter limits the number of shares a person may own, which may discourage a takeover that could otherwise result in a premium price to our stockholders.
Our charter, with certain exceptions, authorizes our directors to take such actions as are necessary and desirable to preserve our qualification as a REIT. To help us comply with the REIT ownership requirements of the Internal Revenue Code, our charter prohibits a person from directly or constructively owning more than 9.8% of our outstanding shares, unless exempted by our board of directors. This restriction may have the effect of delaying, deferring or preventing a change in control of us, including an extraordinary transaction (such as a merger, tender offer or sale of all or substantially all of our assets) that might provide a premium price for holders of our common stock.
Our charter permits our board of directors to issue stock with terms that may subordinate the rights of our common stockholders or discourage a third party from acquiring us in a manner that could result in a premium price to our stockholders.
Our board of directors may classify or reclassify any unissued common stock or preferred stock and establish the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms or conditions of redemption of any such stock. Thus, our board of directors could authorize the issuance of preferred stock with priority as to distributions and amounts payable upon liquidation over the rights of the holders of our common stock. Such preferred stock could also have the effect of delaying, deferring or preventing a change in control of us, including an extraordinary transaction (such as a merger, tender offer or sale of all or substantially all of our assets) that might provide a premium price to holders of our common stock.
Your investment return may be reduced if we are required to register as an investment company under the Investment Company Act; if we become an unregistered investment company, we could not continue our business.
We do not intend to register as an investment company under the Investment Company Act of 1940, as amended. If we were obligated to register as an investment company, we would have to comply with a variety of substantive requirements under the Investment Company Act that impose, among other things:
| | • | | limitations on capital structure; |
| | • | | restrictions on specified investments; |
| | • | | prohibitions on transactions with affiliates; and |
| | • | | compliance with reporting, record keeping, voting, proxy disclosure and other rules and regulations that would significantly increase our operating expenses. |
In order to be excluded from regulation under the Investment Company Act, we must engage primarily in the business of buying mortgages and other liens on or interests in real estate
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within one year of our formation. The position of the SEC staff generally requires us to maintain at least 55% of our assets directly in qualifying real estate interests in order for us to maintain our exemption. To constitute a qualifying real estate interest under this 55% requirement, a real estate interest must meet various criteria. In addition, mortgaged-backed securities may or may not constitute qualifying real estate assets, depending on the characteristics of the mortgage-backed securities, including whether the securities are subject to risk of loss and the rights that we have with respect to the underlying loans. Our ownership of mortgage-backed securities, therefore, is limited by provisions of the Investment Company Act and SEC staff interpretations.
To maintain compliance with the Investment Company Act exemption, we may be unable to sell assets we would otherwise want to sell and may need to sell assets we would otherwise wish to retain. In addition, we may have to acquire additional income- or loss-generating assets that we might not otherwise have acquired or may have to forego opportunities to acquire interests in companies that we would otherwise want to acquire and would be important to our investment strategy.
If we were required to register as an investment company but failed to do so, we would be prohibited from engaging in our business and criminal and civil actions could be brought against us. In addition, our contracts would be unenforceable unless a court required enforcement and a court could appoint a receiver to take control of us and liquidate our business.
You will have limited control over changes in our policies and operations, which increases the uncertainty and risks you face as a stockholder.
Our board of directors determines our major policies, including our policies regarding financing, growth, debt capitalization, REIT qualification and distributions. Our board of directors may amend or revise these and other policies without a vote of the stockholders. Under Maryland General Corporation Law and our charter, our stockholders have a right to vote only on limited matters. Our board’s broad discretion in setting policies and our stockholders’ inability to exert control over those policies increases the uncertainty and risks you face as a stockholder.
Even if adopted, you may not be able to sell your shares under the proposed share redemption program and, if you are able to sell your shares under the program, you may not be able to recover the amount of your investment in our shares.
We will not adopt the proposed share redemption program until the earlier of (i) the completion of this primary offering, which we expect to continue until January 13, 2008, or (ii) our receipt of SEC exemptive relief from the rules restricting issuer purchases during distributions, which relief we may not be able to obtain. Even when one of these conditions is satisfied, our board of directors could choose not to adopt the proposed share redemption program or to amend its proposed terms without stockholder approval. Our board would also be free to amend or terminate the program upon 30 days’ notice after its adoption.
As proposed, the share redemption program includes numerous restrictions that would limit your ability to sell your shares. You would have to hold your shares for at least one year in order to participate in our proposed share redemption program. We would limit the number of shares redeemed pursuant to our proposed share redemption program as follows: (1) during any calendar year, we would not redeem in excess of 5% of the weighted-average number of shares outstanding during the prior calendar year and (2) funding for the redemption of shares would come exclusively from the net proceeds we received from the sale of shares under our dividend reinvestment plan during the prior calendar year. Further, we would have no obligation to
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redeem shares if the redemption would violate the restrictions on distributions under Maryland law, which prohibits distributions that would cause a corporation to fail to meet statutory tests of solvency. These limits may prevent us from accommodating all redemption requests made in any year. Initially, we would redeem shares at the lower of $9.00 or 90% of the price paid to acquire the shares from us. Three years after the completion of our offering stage, the redemption price per share would be equal to the net asset value per share of our common stock, as estimated by our advisor or another firm chosen for that purpose. We will consider our offering stage complete when we are no longer publicly offering equity securities and have not done so for one year. The share redemption program would have different rules if shares were being redeemed in connection with the death of a stockholder. See “Description of Shares — Proposed Share Redemption Program” for more information about the proposed share redemption program. Even if we adopt the proposed share redemption program, these restrictions would severely limit your ability to sell your shares should you require liquidity and would limit your ability to recover the value you invested.
The offering price of our shares was not established on an independent basis; the actual value of your investment may be substantially less than what you pay.
We established the offering price of our shares on an arbitrary basis. The selling price of our shares bears no relationship to our book or asset values or to any other established criteria for valuing shares. Because the offering price is not based upon any independent valuation, the offering price may not be indicative of the proceeds that you would receive upon liquidation. Further, the offering price may be significantly more than the price at which the shares would trade if they were to be listed on an exchange or actively traded by broker-dealers.
Because the dealer manager is one of our affiliates, you will not have the benefit of an independent due diligence review of us, which is customarily performed in underwritten offerings; the absence of an independent due diligence review increases the risks and uncertainty you face as a stockholder.
Our dealer manager, KBS Capital Markets Group, is one of our affiliates. Because KBS Capital Markets Group is an affiliate, its due diligence review and investigation of us and the prospectus cannot be considered to be an independent review. Therefore, you do not have the benefit of an independent review and investigation of this offering of the type normally performed by an unaffiliated, independent underwriter in a public securities offering.
Your interest in us will be diluted if we issue additional shares, which could reduce the overall value of your investment.
Potential investors in this offering do not have preemptive rights to any shares we issue in the future. Our charter authorizes us to issue 1,010,000,000 shares of capital stock, of which 1,000,000,000 shares are designated as common stock and 10,000,000 shares are designated as preferred stock. Our board of directors may increase the number of authorized shares of capital stock without stockholder approval. After your purchase in this offering, our board may elect to (1) sell additional shares in this or future public offerings, (2) issue equity interests in private offerings, (3) issue share-based awards to our independent directors, employees of KBS Capital Advisors and others who provide services to us under our Employee and Independent Director Incentive Stock Plan, (4) issue shares to our advisor, or its successors or assigns, in payment of an outstanding fee obligation or (5) issue shares of our common stock to sellers of properties we acquire in connection with an exchange of limited partnership interests of the Operating Partnership. To the extent we issue additional equity interests after your purchase in this offering,
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your percentage ownership interest in us will be diluted. In addition, depending upon the terms and pricing of any additional offerings and the value of our real estate investments, you may also experience dilution in the book value and fair value of your shares.
Payment of fees to KBS Capital Advisors and its affiliates will reduce cash available for investment and distribution and increases the risk that you will not be able to recover the amount of your investment in our shares.
KBS Capital Advisors and its affiliates will perform services for us in connection with the selection and acquisition of our investments, the management and leasing of our properties and the administration of our other investments. We will pay them substantial fees for these services, which will result in immediate dilution to the value of your investment and will reduce the amount of cash available for investment in properties or distribution to stockholders. Depending primarily upon the number of shares we sell in this offering and assuming a $10.00 purchase price for shares sold in the primary offering and a $9.50 purchase price for shares sold under the dividend reinvestment plan, we estimate that we will use 84.4% to 91.0% of our gross offering proceeds, or between $8.44 and $8.97 per share, for investments and the repurchase of shares of our common stock under our proposed share redemption program. Therefore, these fees increase the risk that the amount available for distribution to common stockholders upon a liquidation of our portfolio would be less than the purchase price of the shares in this offering. These substantial up-front fees also increase the risk that you will not be able to resell your shares at a profit, even if our shares are listed on a national securities exchange or on the Nasdaq National Market. For a discussion of our fee arrangement with KBS Capital Advisors and its affiliates, see “Management Compensation.”
If we are unable to obtain funding for future capital needs, cash distributions to our stockholders and the value of our investments could decline.
When tenants do not renew their leases or otherwise vacate their space, we will often need to expend substantial funds for improvements to the vacated space in order to attract replacement tenants. If we need additional capital in the future to improve or maintain our properties or for any other reason, we may have to obtain financing from other sources, such as cash flow from operations, borrowings or future equity offerings. These sources of funding may not be available on attractive terms or at all. If we cannot procure additional funding for capital improvements, our investments may generate lower cash flows or decline in value, or both, which would limit our ability to make distributions to our stockholders and could reduce the value of your investment.
You may be more likely to sustain a loss on your investment because our sponsors do not have as strong an economic incentive to avoid losses as do sponsors who have made significant equity investments in their companies.
Our sponsors have only invested $200,000 in us through the purchase of 20,000 shares of our common stock at $10 per share. Therefore, if we are successful in raising enough proceeds to be able to reimburse our sponsors for our significant organization and offering expenses, our sponsors will have little exposure to loss in the value of our shares. Without this exposure, our investors may be at a greater risk of loss because our sponsors do not have as much to lose from a decrease in the value of our shares as do those sponsors who make more significant equity investments in their companies.
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General Risks Related to Investments in Real Estate
Economic and regulatory changes that impact the real estate market generally may decrease the value of our investments and weaken our operating results.
Our properties will be subject to the risks typically associated with real estate, including:
| | • | | changes in general economic conditions; |
| | • | | adverse local conditions (such as changes in real estate zoning laws that may reduce the desirability of real estate in an area); |
| | • | | changes in the supply of or the demand for similar or competing properties in an area; |
| | • | | changes in interest rates and the availability of permanent mortgage financing, which may render the sale of a property or loan difficult or unattractive; |
| | • | | changes in tax, real estate, environmental and zoning laws; and |
| | • | | periods of high interest rates and tight money supply. |
A decrease in the value of our investments would have an adverse effect on our operations and our ability to pay dividends to our stockholders.
We will depend on tenants for our revenue, and, accordingly, our revenue and our ability to make distributions to you will be dependent upon the success and economic viability of our tenants.
The success of our investments will materially depend upon the financial stability of the tenants leasing the properties we will own. The inability of a single major tenant or a number of smaller tenants to meet their rental obligations would lower our net income. A default by a tenant on its lease payments would cause us to lose the revenue associated with such lease and require us to find an alternative source of revenue to meet mortgage payments and prevent a foreclosure if the property is subject to a mortgage. In the event of a tenant default or bankruptcy, we may experience delays in enforcing our rights as landlord of a property and may incur substantial costs in protecting our investment and re-letting the property. Tenants may have the right to terminate their leases upon the occurrence of certain customary events of default and, in other circumstances, may not renew their leases or, because of market conditions, may be able to renew their leases on terms that are less favorable to us than the terms of their initial leases. Further, some of the properties in which we will invest may be outfitted to suit the particular needs of the tenants. We may have difficulty replacing the tenants of these properties if the outfitted space limits the types of businesses that could lease that space without major renovation. Because the market value of a property will depend principally upon the value of the leases associated with such property, we may incur a loss upon the sale of a property with significant vacant space. These events could cause us to reduce the amount of distributions to stockholders.
Properties that have significant vacancies could be difficult to sell, which could diminish the return on your investment.
A property may incur vacancies either by the continued default of tenants under their leases or the expiration of tenant leases. If vacancies continue for a long period of time, we may
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suffer reduced revenues resulting in less cash available to distribute to stockholders. In addition, the resale value of the property could be diminished because the market value of a particular property will depend principally upon the value of the leases associated with that property.
Our inability to sell a property when we want could limit our ability to pay cash distributions to you.
Many factors that are beyond our control affect the real estate market and could affect our ability to sell properties for the price, on the terms or within the time frame we want. These factors include general economic conditions, the availability of financing, interest rates and other factors, including supply and demand. Because real estate investments are relatively illiquid, we will have a limited ability to vary our portfolio in response to changes in economic or other conditions. Further, before we can sell a property on the terms we want, it may be necessary to expend funds to correct defects or to make improvements. We, however, can give you no assurance that we will have the funds available to correct such defects or to make such improvements. We may be unable to sell our properties at a profit. Our inability to sell properties at the time and on the terms we want could reduce our cash flow and limit our ability to make distributions to you.
If we sell a property by providing financing to the purchaser, we will bear the risk of default by the purchaser, which could delay or reduce the distributions available to our stockholders.
If we decide to sell any of our properties, we intend to use our best efforts to sell them for cash; however, in some instances, we may sell our properties by providing financing to purchasers. When we provide financing to a purchaser, we will bear the risk that the purchaser may default, which could reduce our cash dividends to stockholders. Even in the absence of a purchaser default, the distribution of the proceeds of the sale to our stockholders, or the reinvestment of the proceeds in other assets, will be delayed until the promissory notes or other property we may accept upon a sale are actually paid, sold, refinanced or otherwise disposed.
Potential development and construction delays and resultant increased costs and risks may hinder our operating results and decrease our net income.
Although we expect that we will invest primarily in properties that have operating histories or whose construction is complete, from time to time we may acquire unimproved real property or properties that are under development or construction. Investments in such properties will be subject to the uncertainties associated with the development and construction of real property, including those related to re-zoning land for development, environmental concerns of governmental entities and/or community groups and our builders’ ability to build in conformity with plans, specifications, budgeted costs and timetables. If a builder fails to perform, we may resort to legal action to rescind the purchase or the construction contract or to compel performance. A builder’s performance may also be affected or delayed by conditions beyond the builder’s control. Delays in completing construction could also give tenants the right to terminate preconstruction leases. We may incur additional risks when we make periodic progress payments or other advances to builders before they complete construction. These and other factors 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. We also must rely on rental income and expense projections and estimates of the fair market value of property upon completion of construction when agreeing upon a purchase price at the time we acquire the property. If our projections are inaccurate, we may pay too much for a property, and the return on our investment could suffer.
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Competition with third parties in acquiring properties and other investments may reduce our profitability and the return on your investment.
We believe that the current market for properties that meet our investment objectives is extremely competitive and many of our competitors have greater resources than we do. We compete with many other entities engaged in real estate investment activities, including individuals, corporations, bank and insurance company investment accounts, other REITs, real estate limited partnerships and other entities engaged in real estate investment activities. Larger REITs may enjoy significant competitive advantages that result from, among other things, a lower cost of capital and enhanced operating efficiencies. In addition, the number of entities and the amount of funds competing for suitable investments may increase. If we pay higher prices for properties and other investments, our returns will be lower and the value of our assets may not appreciate or may decrease significantly below the amount we paid for such assets. If such events occur, you may experience a lower return on your investment.
Our joint venture partners could take actions that decrease the value of an investment to us and lower your overall return.
We may enter into joint ventures with other KBS-sponsored programs as well as third parties to acquire properties and other assets. We may also purchase and develop properties in joint ventures or in partnerships, co-tenancies or other co-ownership arrangements. Such investments may involve risks not otherwise present with other methods of investment, including, for example, the following risks:
| | • | | that our co-venturer, co-tenant or partner in an investment could become insolvent or bankrupt; |
| | • | | that such co-venturer, co-tenant or partner may at any time have economic or business interests or goals that are or that 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. |
Any of the above might subject a property to liabilities in excess of those contemplated and thus reduce our returns on that investment.
The costs of complying with governmental laws and regulations may reduce our net income and the cash available for distributions to you.
Real property and the operations conducted on real property are subject to federal, state and local laws and regulations relating to environmental protection and human health and safety. We could be subject to liability in the form of fines or damages for noncompliance with these laws and regulations. These laws and regulations generally govern wastewater discharges, air emissions, the operation and removal of underground and above-ground storage tanks, the use, storage, treatment, transportation and disposal of solid and hazardous materials, the remediation of contamination associated with the disposal of solid and hazardous materials and other health and safety-related concerns.
Some of these laws and regulations may impose joint and several liability on the tenants, owners or operators of real property for the costs to investigate or remediate contaminated
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properties, regardless of fault or whether the acts causing the contamination were legal. Our tenants’ operations, the condition of properties at the time we buy them, operations in the vicinity of our properties, such as the presence of underground storage tanks, or activities of unrelated third parties may affect our properties.
The presence of hazardous substances, or the failure to properly remediate these substances, may hinder our ability to sell, rent or pledge such property as collateral for future borrowings. Any material expenditures, fines, or damages we must pay will reduce our ability to make distributions and may reduce the value of your investment.
Discovery of previously undetected environmentally hazardous conditions may decrease our cash flows and limit our ability to make distributions.
Under various federal, state and local environmental laws, ordinances and regulations, a current or previous real property owner or operator may be liable for the cost of removing or remediating hazardous or toxic substances on, under or in such property. These costs could be substantial. 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 substantial expenditures or prevent us from entering into leases with prospective tenants that may be impacted by such laws. Environmental laws provide for sanctions for noncompliance and may be enforced by governmental agencies or, in certain circumstances, by private parties. Certain environmental laws and common law principles could be used to impose liability for the release of and exposure to hazardous substances, including asbestos-containing materials. Third parties may seek recovery from real property owners or operators for personal injury or property damage associated with exposure to released hazardous substances. The cost of defending against claims of liability, of complying with environmental regulatory requirements, of remediating any contaminated property, or of paying personal injury claims could reduce the amounts available for distribution to you.
Costs associated with complying with the Americans with Disabilities Act may decrease cash available for distributions.
Our properties may be subject to the Americans with Disabilities Act of 1990, as amended. Under the Disabilities Act, all places of public accommodation are required to comply with federal requirements related to access and use by disabled persons. The Disabilities Act has separate compliance requirements for “public accommodations” and “commercial facilities” that generally require that buildings and services be made accessible and available to people with disabilities. The Disabilities Act’s requirements could require removal of access barriers and could result in the imposition of injunctive relief, monetary penalties or, in some cases, an award of damages. Any funds used for Disabilities Act compliance will reduce our net income and the amount of cash available for distributions to you.
Uninsured losses relating to real property or excessively expensive premiums for insurance coverage could reduce our cash flows and the return on your investment.
There are types of losses, generally catastrophic in nature, such as losses due to wars, acts of terrorism, earthquakes, floods, hurricanes, pollution or environmental matters, that are uninsurable or not economically insurable, or may be insured subject to limitations, such as large deductibles or co-payments. Insurance risks associated with potential acts of terrorism could sharply increase the premiums we pay for coverage against property and casualty claims.
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Additionally, mortgage lenders in some cases have begun to insist that commercial property owners purchase coverage against terrorism as a condition for providing mortgage loans. Such insurance policies may not be available at reasonable costs, if at all, which could inhibit our ability to finance or refinance our properties. In such instances, we may be required to provide other financial support, either through financial assurances or self-insurance, to cover potential losses. We may not have adequate coverage for such losses. If any of our properties incurs a casualty loss that is not fully insured, the value of our assets will be reduced by any such uninsured loss. In addition, other than any working capital reserve or other reserves we may establish, we have no source of funding to repair or reconstruct any uninsured property. Also, to the extent we must pay unexpectedly large amounts for insurance, we could suffer reduced earnings that would result in lower distributions to stockholders.
Terrorist attacks and other acts of violence or war may affect the markets in which we plan to operate, which could delay or hinder our ability to meet our investment objectives and reduce your overall return.
Terrorist attacks or armed conflicts may directly impact the value of our properties through damage, destruction, loss or increased security costs. KBS sponsored-programs and KBS-advised investors have historically owned properties in major metropolitan areas. We expect that we will also invest in such markets. Insurance risks associated with potential acts of terrorism against office and other properties in major metropolitan areas could sharply increase the premiums we pay for coverage against property and casualty claims. Additionally, mortgage lenders in some cases have begun to insist that specific coverage against terrorism be purchased by commercial owners as a condition for providing loans. We may not be able to obtain insurance against the risk of terrorism because it may not be available or may not be available on terms that are economically feasible. The terrorism insurance that we obtain may not be sufficient to cover loss for damages to our properties as a result of terrorist attacks. In addition, certain losses resulting from these types of events are uninsurable and others may not be covered by our terrorism insurance. The costs of obtaining terrorism insurance and any uninsured losses we may suffer as a result of terrorist attacks could reduce the returns on our investments and limit our ability to make distributions to you.
Risks Related to Real Estate-Related Investments
If we make or invest in mortgage loans, our mortgage loans may be affected by unfavorable real estate market conditions, which could decrease the value of those loans and the return on your investment.
If we make or invest in mortgage loans, we will be at risk of defaults by the borrowers on those mortgage loans. These defaults may be caused by many conditions beyond our control, including interest rate levels and local and other economic conditions affecting real estate values. We will not know whether the values of the properties securing our mortgage loans will remain at the levels existing on the dates of origination of those mortgage loans. If the values of the underlying properties drop, our risk will increase because of the lower value of the security associated with such loans.
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If we make or invest in mortgage loans, our mortgage loans will be subject to interest rate fluctuations that could reduce our returns as compared to market interest rates and reduce the value of the mortgage loans in the event we sell them; accordingly, the value of your investment would be subject to fluctuations in interest rates.
If we invest in fixed-rate, long-term mortgage loans and interest rates rise, the mortgage loans could yield a return that is lower than then-current market rates. If interest rates decrease, we will be adversely affected to the extent that mortgage loans are prepaid because we may not be able to make new loans at the higher interest rate. If we invest in variable-rate loans and interest rates decrease, our revenues will also decrease. Finally, if we invest in variable-rate loans and interest rates increase, the value of the loans we own at such time would decrease, which would lower the proceeds we would receive in the event we sell such assets. For these reasons, if we invest in mortgage loans, our returns on those loans and the value of your investment will be subject to fluctuations in interest rates.
Delays in liquidating defaulted mortgage loans could reduce our investment returns.
If we make or invest in mortgage loans and there are defaults under those mortgage loans, we may not be able to repossess and sell the underlying properties quickly. The resulting time delay could reduce the value of our investment in the defaulted mortgage loans. An action to foreclose on a property securing a mortgage loan is regulated by state statutes and regulations and is subject to many of the delays and expenses of other lawsuits if the defendant raises defenses or counterclaims. In the event of default by a mortgagor, these restrictions, among other things, may impede our ability to foreclose on or sell the mortgaged property or to obtain proceeds sufficient to repay all amounts due to us on the mortgage loan.
Our investments in real estate-related common equity securities will be subject to specific risks relating to the particular issuer of the securities and may be subject to the general risks of investing in subordinated real estate securities, which may result in losses to us.
Our investments in real estate-related common equity securities will involve special risks relating to the particular issuer of the equity securities, including the financial condition and business outlook of the issuer. Issuers of real estate-related common equity securities generally invest in real estate or real estate-related assets and are subject to the inherent risks associated with real estate-related investments discussed in this prospectus.
Real estate-related common equity securities are generally unsecured and may also be subordinated to other obligations of the issuer. As a result, investments in real estate-related common equity securities are subject to risks of (i) limited liquidity in the secondary trading market, (ii) substantial market price volatility resulting from changes in prevailing interest rates, (iii) subordination to the prior claims of banks and other senior lenders to the issuer, (iv) the operation of mandatory sinking fund or call/redemption provisions during periods of declining interest rates that could cause the issuer to reinvest redemption proceeds in lower yielding assets, (v) the possibility that earnings of the issuer may be insufficient to meet its debt service and distribution obligations and (vi) the declining creditworthiness and potential for insolvency of the issuer during periods of rising interest rates and economic downturn. These risks may adversely affect the value of outstanding real estate-related common equity securities and the ability of the issuers thereof to make distribution payments.
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Our investments in real estate-related preferred equity securities involve a greater risk of loss than traditional debt financing.
We may invest in real estate-related preferred equity securities, which securities involve a higher degree of risk than traditional debt financing due to a variety of factors, including that such investments are subordinate to traditional loans and are not secured by property underlying the investment. Furthermore, should the issuer default on our investment, we would only be able to proceed against the entity in which we have an interest, and not the property owned by such entity and underlying our investment. As a result, we may not recover some or all of our investment.
The CMBS in which we may invest are subject to all of the risks of the underlying mortgage loans and the risks of the securitization process.
CMBS are securities that evidence interests in, or are secured by, a single commercial mortgage loan or a pool of commercial mortgage loans. Accordingly, these securities are subject to all of the risks of the underlying mortgage loans.
In a rising interest rate environment, the value of CMBS may be adversely affected when payments on underlying mortgages do not occur as anticipated, resulting in the extension of the security’s effective maturity and the related increase in interest rate sensitivity of a longer-term instrument. The value of CMBS may also change due to shifts in the market’s perception of issuers and regulatory or tax changes adversely affecting the mortgage securities market as a whole. In addition, CMBS are subject to the credit risk associated with the performance of the underlying mortgage properties. In certain instances, third-party guarantees or other forms of credit support can reduce the credit risk.
CMBS are also subject to several risks created through the securitization process. Subordinate CMBS are paid interest only to the extent that there are funds available to make payments. To the extent the collateral pool includes delinquent loans, there is a risk that interest payment on subordinate CMBS will not be fully paid. Subordinate CMBS are also subject to greater credit risk than those CMBS that are more highly rated.
The mezzanine loans in which we may invest would involve greater risks of loss than senior loans secured by income-producing real properties.
We may invest in mezzanine loans that take the form of subordinated loans secured by second mortgages on the underlying real property or loans secured by a pledge of the ownership interests of either the entity owning the real property or the entity that owns the interest in the entity owning the real property. These types of investments involve a higher degree of risk than long-term senior mortgage lending secured by income-producing real property because the investment may become unsecured as a result of foreclosure by the senior lender. In the event of a bankruptcy of the entity providing the pledge of its ownership interests as security, we may not have full recourse to the assets of such entity, or the assets of the entity may not be sufficient to satisfy our mezzanine loan. If a borrower defaults on our mezzanine loan or debt senior to our loan, or in the event of a borrower bankruptcy, our mezzanine loan will be satisfied only after the senior debt. As a result, we may not recover some or all of our investment. In addition, mezzanine loans may have higher loan-to-value ratios than conventional mortgage loans, resulting in less equity in the real property and increasing the risk of loss of principal.
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To the extent that we make investments in real estate-related securities, a portion of those investments may be illiquid and we may not be able to adjust our portfolio in response to changes in economic and other conditions.
Certain of the real estate-related securities that we may purchase in connection with privately negotiated transactions will not be registered under the relevant securities laws, resulting in a prohibition against their transfer, sale, pledge or other disposition except in a transaction that is exempt from the registration requirements of, or is otherwise in accordance with, those laws. As a result, our ability to vary our portfolio in response to changes in economic and other conditions may be relatively limited. The mezzanine and bridge loans we may purchase will be particularly illiquid investments due to their short life, their unsuitability for securitization and the greater difficulty of recoupment in the event of a borrower’s default.
Our investments may be sensitive to fluctuations in interest rates, and our hedging strategies may not be effective.
We may use various investment strategies to hedge interest rate risks with respect to our portfolio of real estate-related investments. Although we only expect to engage in interest rate hedging transactions to hedge interest rate risks and not for speculation, the use of interest rate hedging transactions involves certain risks. These risks include: (i) the possibility that the market will move in a manner or direction that would have resulted in gain for us had an interest rate hedging transaction not been utilized, in which case our performance would have been better had we not engaged in the interest rate hedging transaction, (ii) the risk of imperfect correlation between the risk sought to be hedged and the interest rate hedging transaction used and (iii) potential illiquidity for the hedging instrument used, which may make it difficult for us to close-out or unwind an interest rate hedging transaction. In addition, because we intend to qualify as a REIT, for federal income tax purposes we will have limitations on our income sources, and the hedging strategies available to us will be more limited than those available to companies that are not REITs. To the extent that we do not hedge our interest rate exposure and we dispose of CMBS prior to their maturity, our profitability may be negatively impacted by increases in long-term interest rates.
If we use leverage in connection with our investment in CMBS, the risk of loss associated with this type of investment will increase.
We may use leverage in connection with our investment in CMBS. Although the use of leverage may enhance returns and increase the number of investments that can be made, it may also substantially increase the risk of loss. There can be no assurance that leveraged financing will be available to us on favorable terms or that, among other factors, the terms of such financing will parallel the maturities of the underlying securities acquired. Therefore, such financing may mature prior to the maturity of the CMBS acquired by us. If alternative financing is not available, we may have to liquidate assets at unfavorable prices to pay off such financing. We may utilize repurchase agreements as a component of our financing strategy. Repurchase agreements economically resemble short-term, variable-rate financing and usually require the maintenance of specific loan-to-collateral value ratios. If the market value of the CMBS subject to a repurchase agreement decline, we may be required to provide additional collateral or make cash payments to maintain the loan to collateral value ratio. If we are unable to provide such collateral or cash repayments, we may lose our economic interest in the underlying CMBS.
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Delays in restructuring or liquidating non-performing real estate securities could reduce the return on your investment.
Real estate securities may become non-performing after acquisition for a wide variety of reasons. Such non-performing real estate investments may require a substantial amount of workout negotiations and/or restructuring, which may entail, among other things, a substantial reduction in the interest rate and a substantial write-down of such loan or asset. However, even if a restructuring is successfully accomplished, upon maturity of such real estate security, replacement “takeout” financing may not be available. We may find it necessary or desirable to foreclose on some of the collateral securing one or more of our investments. Intercreditor provisions may substantially interfere with our ability to do so. Even if foreclosure is an option, the foreclosure process can be lengthy and expensive. Borrowers often resist foreclosure actions by asserting numerous claims, counterclaims and defenses, including, without limitation, lender liability claims and defenses, in an effort to prolong the foreclosure action. In some states, foreclosure actions can take up to several years or more to litigate. At any time during the foreclosure proceedings, the borrower may file for bankruptcy, which would have the effect of staying the foreclosure action and further delaying the foreclosure process. Foreclosure litigation tends to create a negative public image of the collateral property and may result in disrupting ongoing leasing and management of the property. Foreclosure actions by senior lenders may substantially affect the amount that we may receive from an investment.
Risks Associated with Debt Financing
We may incur mortgage indebtedness and other borrowings, which debt increases our risk of loss due to foreclosure.
We may obtain lines of credit and long-term financing that may be secured by our properties and other assets. In some instances, we may acquire real properties by financing a portion of the price of the properties and mortgaging or pledging some or all of the properties purchased as security for that debt. We may also incur mortgage debt on properties that we already own in order to obtain funds to acquire additional properties. In addition, we may borrow as necessary or advisable to ensure that we maintain our qualification as a REIT for federal income tax purposes, including borrowings to satisfy the REIT requirement that we distribute at least 90% of our annual REIT taxable income to our stockholders (computed without regard to the dividends paid deduction and excluding net capital gain). We, however, can give you no assurance that we will be able to obtain such borrowings on satisfactory terms.
If we do mortgage a property and there is a shortfall between the cash flow from that property and the cash flow needed to service mortgage debt on that property, then the amount of cash available for distributions to stockholders may be reduced. In addition, incurring mortgage debt increases the risk of loss of a property since defaults on indebtedness secured by a property may result in lenders initiating foreclosure actions. In that case, we could lose the property securing the loan that is in default, reducing the value of your investment. For tax purposes, a foreclosure of any of our properties would be treated as a sale of the property for a purchase price equal to the outstanding balance of the debt secured by the mortgage. If the outstanding balance of the debt secured by the mortgage exceeds our tax basis in the property, we would recognize taxable income on foreclosure even though we would not necessarily receive any cash proceeds. We may give full or partial guaranties to lenders of mortgage debt on behalf of the entities that own our properties. When we give a guaranty on behalf of an entity that owns one of our properties, we will be responsible to the lender for satisfaction of the debt if it is not paid by such
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entity. If any mortgages contain cross-collateralization or cross-default provisions, a default on a single property could affect multiple properties.
We may also obtain recourse debt to finance our acquisitions and meet our REIT distribution requirements. If we have insufficient income to service our recourse debt obligations, our lenders could institute proceedings against us to foreclose upon our assets. If a lender successfully forecloses upon any of our assets, our ability to pay cash distributions to our stockholders will be limited and you could lose all or part of your investment.
High mortgage rates may make it difficult for us to finance or refinance properties, which could reduce the number of properties we can acquire, our cash flows from operations and the amount of cash distributions we can make.
If mortgage debt is unavailable at reasonable rates, we may not be able to finance the purchase of properties. If we place mortgage debt on properties, we run the risk of being unable to refinance the properties when the debt becomes due or of being unable to refinance on favorable terms. If interest rates are higher when we refinance the properties, our income could be reduced. We may be unable to refinance properties. If any of these events occurs, our cash flow would be reduced. This, in turn, would reduce cash available for distribution to you and may hinder our ability to raise capital by issuing more stock or borrowing more money.
Lenders may require us to enter into restrictive covenants relating to our operations, which could limit our ability to make distributions to our stockholders.
When providing financing, a lender may impose restrictions on us that affect our distribution and operating policies and our ability to incur additional debt. Loan agreements we enter may contain covenants that limit our ability to further mortgage a property or that prohibit us from discontinuing insurance coverage or replacing KBS Capital Advisors as our advisor. These or other limitations would decrease our operating flexibility and our ability to achieve our operating objectives.
Increases in interest rates could increase the amount of our debt payments and limit our ability to pay dividends to our stockholders.
We expect that we will incur debt in the future and increases in interest rates will increase the cost of that debt, which could reduce the cash we have available for distributions. Additionally, if we incur variable rate debt, increases in interest rates would increase our interest costs, which would reduce our cash flows and our ability to pay dividends to you. In addition, if we need to repay existing debt during periods of rising interest rates, we could be required to liquidate one or more of our investments in properties at times that may not permit realization of the maximum return on such investments.
We have broad authority to incur debt and high debt levels could hinder our ability to make distributions and decrease the value of your investment.
Our policies do not limit us from incurring debt until our borrowings would exceed 75% of the cost (before deducting depreciation or other non-cash reserves) of all our assets, and we may exceed this limit with the approval of the conflicts committee of our board of directors. During the early stages of this offering, we expect that our conflicts committee will approve debt in excess of this limit, and we have begun discussions with lenders to obtain up to $197,675,000 in secured debt for the purchase of $200 million in real estate investments. If we incur this debt
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and only raise the minimum offering amount, our borrowings would equal approximately 98.8% of the cost of our assets. See “Investment Objectives and Criteria — Borrowing Policies.” High debt levels would cause us to incur higher interest charges and higher debt service payments and could also be accompanied by restrictive covenants. These factors could limit the amount of cash we have available to distribute and could result in a decline in the value of your investment.
Federal Income Tax Risks
Failure to qualify as a REIT would reduce our net earnings available for investment or distribution.
DLA Piper Rudnick Gray Cary US LLP has rendered an opinion to us that we will be organized in conformity with the requirements for qualification and taxation as a REIT under the Code for our taxable year ending December 31, 2006 and that our proposed method of operations will enable us to meet the requirements for qualification and taxation as a REIT beginning with our taxable year ending December 31, 2006. This opinion is based upon, among other things, our representations as to the manner in which we are and will be owned and the manner in which we will invest in and operate assets. However, our qualification as a REIT will depend upon our ability to meet requirements regarding our organization and ownership, distributions of our income, the nature and diversification of our income and assets and other tests imposed by the Internal Revenue Code. DLA Piper Rudnick Gray Cary US LLP will not review our compliance with the REIT qualification standards on an ongoing basis, and we may fail to satisfy the REIT requirements in the future. Also, this opinion represents DLA Piper Rudnick Gray Cary US LLP’s legal judgment based on the law in effect as of the date of this prospectus. DLA Piper Rudnick Gray Cary US LLP’s opinion is not binding on the Internal Revenue Service or the courts. Future legislative, judicial or administrative changes to the federal income tax laws could be applied retroactively, which could result in our disqualification as a REIT.
If we fail to qualify as a REIT for any taxable year after electing REIT status, we will be subject to federal income tax on our taxable income at corporate rates. In addition, we would generally be disqualified from treatment as a REIT for the four taxable years following the year of losing our REIT status. Losing our REIT status would reduce our net earnings available for investment or distribution to stockholders because of the additional tax liability. In addition, distributions to stockholders would no longer qualify for the dividends-paid deduction and we would no longer be required to make distributions. If this occurs, we might be required to borrow funds or liquidate some investments in order to pay the applicable tax. For a discussion of the REIT qualification tests and other considerations relating to our election to be taxed as REIT, see “Federal Income Tax Considerations.”
You may have current tax liability on distributions you elect to reinvest in our common stock.
If you participate in our dividend reinvestment plan, you will be deemed to have received, and for income tax purposes will be taxed on, the amount reinvested in shares of our common stock to the extent the amount reinvested was not a tax-free return of capital. In addition, you will be treated for tax purposes as having received an additional distribution to the extent the shares are purchased at a discount to fair market value. As a result, unless you are a tax-exempt entity, you may have to use funds from other sources to pay your tax liability on the value of the shares of common stock received. See “Description of Shares — Dividend Reinvestment Plan — Tax Consequences of Participation.”
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Even if we qualify as a REIT for federal income tax purposes, we may be subject to other tax liabilities that reduce our cash flow and our ability to make distributions to you.
Even if we qualify as a REIT for federal income tax purposes, we may be subject to some federal, state and local taxes on our income or property. For example:
| | • | | In order to qualify as a REIT, we must distribute annually at least 90% of our REIT taxable income to our stockholders (which is determined without regard to the dividends paid deduction or net capital gain). To the extent that we satisfy the distribution requirement but distribute less than 100% of our REIT taxable income, we will be subject to federal corporate income tax on the undistributed income. |
| | • | | We will be subject to a 4% nondeductible excise tax on the amount, if any, by which distributions we pay in any calendar year are less than the sum of 85% of our ordinary income, 95% of our capital gain net income and 100% of our undistributed income from prior years. |
| | • | | If we have net income from the sale of foreclosure property that we hold primarily for sale to customers in the ordinary course of business or other non-qualifying income from foreclosure property, we must pay a tax on that income at the highest corporate income tax rate. |
| | • | | If we sell a property, other than foreclosure property, that we hold primarily for sale to customers in the ordinary course of business, our gain would be subject to the 100% “prohibited transaction” tax. |
To maintain our REIT status, we may be forced to borrow funds during unfavorable market conditions to make distributions to our stockholders, which could increase our operating costs and decrease the value of your investment.
To qualify as a REIT, we must distribute to our stockholders each year 90% of our REIT taxable income (which is determined without regard to the dividends paid deduction or net capital gain). At times, we may not have sufficient funds to satisfy these distribution requirements and may need to borrow funds to maintain our REIT status and avoid the payment of income and excise taxes. These borrowing needs could result from (i) differences in timing between the actual receipt of cash and inclusion of income for federal income tax purposes, (ii) the effect of non-deductible capital expenditures, (iii) the creation of reserves or (iv) required debt or amortization payments. We may need to borrow funds at times when the market conditions are unfavorable. Such borrowings could increase our costs and reduce the value of your investment.
To maintain our REIT status, we may be forced to forego otherwise attractive opportunities, which may delay or hinder our ability to meet our investment objectives and reduce your overall return.
To qualify as a REIT, we must satisfy tests on an ongoing basis concerning, among other things, the sources of our income, nature of our assets and the amounts we distribute to our stockholders. We may be required to make distributions to stockholders at times when it would be more advantageous to reinvest cash in our business or when we do not have funds readily available for distribution. Compliance with the REIT requirements may hinder our ability to operate solely on the basis of maximizing profits and the value of your investment.
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Retirement Plan Risks
If you fail to meet the fiduciary and other standards under ERISA or the Internal Revenue Code as a result of an investment in our stock, you could be subject to criminal and civil penalties.
There are special considerations that apply to employee benefit plans subject to ERISA (such as profit sharing, section 401(k) or pension plans) and other retirement plans or accounts subject to Section 4975 of the Internal Revenue Code (such as an IRA) that are investing in our shares. If you are investing the assets of such a plan or account in our common stock, you should satisfy yourself that:
| | • | | your investment is consistent with your fiduciary obligations under ERISA and the Internal Revenue Code; |
| | • | | your investment is made in accordance with the documents and instruments governing your plan or IRA, including your plan’s or account’s investment policy; |
| | • | | your investment satisfies the prudence and diversification requirements of Sections 404(a)(1)(B) and 404(a)(1)(C) of ERISA and other applicable provisions of ERISA and the Internal Revenue Code; |
| | • | | your investment will not impair the liquidity of the plan or IRA; |
| | • | | your investment will not produce “unrelated business taxable income” for the plan or IRA; |
| | • | | you will be able to value the assets of the plan annually in accordance with ERISA requirements and applicable provisions of the plan or IRA; and |
| | • | | your investment will not constitute a prohibited transaction under Section 406 of ERISA or Section 4975 of the Internal Revenue Code. |
Failure to satisfy the fiduciary standards of conduct and other applicable requirements of ERISA and the Internal Revenue Code may result in the imposition of civil and criminal penalties and could subject the fiduciary to equitable remedies. In addition, if an investment in our shares constitutes a prohibited transaction under ERISA or the Internal Revenue Code, the fiduciary who authorized or directed the investment may be subject to the imposition of excise taxes with respect to the amount invested. For a discussion of the considerations associated with an investment in our shares by a qualified employee benefit plan or IRA, see “ERISA Considerations.”
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements about our business, including, in particular, statements about our plans, strategies and objectives. You can generally identify forward-looking statements by our use of forward-looking terminology such as “may,” “will,” “expect,” “intend,” “anticipate,” “estimate,” “believe,” “continue” or other similar words. You should not rely on these forward-looking statements because the matters they describe are subject to known and unknown risks, uncertainties and other unpredictable factors, many of which are
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beyond our control. Our actual results, performance and achievements may be materially different from that expressed or implied by these forward-looking statements.
You should carefully review the “Risk Factors” section of this prospectus for a discussion of the risks and uncertainties that we believe are material to our business, operating results, prospects and financial condition. Except as otherwise required by federal securities laws, we do not undertake to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
ESTIMATED USE OF PROCEEDS
The following tables set forth information about how we intend to use the proceeds raised in this offering assuming that we sell the minimum of 250,000 shares, a mid-point range of 140,000,000 shares and the maximum of 280,000,000 shares of common stock. Many of the amounts set forth below represent management’s best estimate since they cannot be precisely calculated at this time. Depending primarily upon the number of shares we sell in this offering and assuming a $10.00 purchase price for shares sold in the primary offering and a $9.50 purchase price for shares sold under the dividend reinvestment plan, we estimate that we will use 84.4% to 91.0% of our gross offering proceeds, or between $8.44 and $8.97 per share, for investments and the repurchase of shares of our common stock under our proposed share redemption program. We will use the remainder of the offering proceeds to pay offering expenses, including selling commissions and the dealer manager fee, and, upon the acquisition of properties and other assets, to pay a fee to our advisor for its services in connection with the selection and acquisition of our real estate investments. Though our board has the authority under our organizational documents, our distribution policy is not to use the proceeds of this offering to pay distributions.
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| | | | | | | | | | | | | | | | | | | | |
| | | 250,000 Shares
| | | 140,000,000 Shares
| |
| | | Minimum Offering
($10.00/share)
| | | Primary Offering
(100,000,000 shares)
($10.00/share)
| | | Div. Reinv. Plan
(40,000,000 shares)
($9.50/share)
| | | Total
(140,000,000 shares)
| |
| | | $
| | %
| | | $
| | %
| | | $
| | %
| | | $
| | %
| |
Gross Offering Proceeds | | 2,500,000 | | 100.00 | % | | 1,000,000,000 | | 100.00 | % | | 380,000,000 | | 100.00 | % | | 1,380,000,000 | | 100.00 | % |
Selling Commissions | | 150,000 | | 6.00 | % | | 60,000,000 | | 6.00 | % | | 11,400,000 | | 3.00 | % | | 71,400,000 | | 5.17 | % |
Dealer Manager Fee | | 87,500 | | 3.50 | % | | 35,000,000 | | 3.50 | % | | 0 | | 0.00 | % | | 35,000,000 | | 2.54 | % |
Other Organization and Offering Expenses (1) | | 137,500 | | 5.50 | % | | 17,250,000 | | 1.73 | % | | 950,000 | | 0.25 | % | | 18,200,000 | | 1.32 | % |
Acquisition Fees (2) | | 15,819 | | 0.63 | % | | 6,608,561 | | 0.66 | % | | 0 | | 0.00 | % | | 6,608,561 | | 0.48 | % |
Initial Working Capital Reserve (3) | | 0 | | 0.00 | % | | 0 | | 0.00 | % | | 0 | | 0.00 | % | | 0 | | 0.00 | % |
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Amount Available for Investment (4) | | 2,109,181 | | 84.37 | % | | 881,141,439 | | 88.11 | % | | 367,650,000 | | 96.75 | % | | 1,248,791,439 | | 90.49 | % |
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| | | | | | | | | | | | | | | |
| | | 280,000,000 Shares
| |
| | | Primary Offering
(200,000,000 shares)
($10.00/share)
| | | Div. Reinv. Plan
(80,000,000 shares)
($9.50/share)
| | | Total
(280,000,000 shares)
| |
| | | $
| | %
| | | $
| | %
| | | $
| | %
| |
Gross Offering Proceeds | | 2,000,000,000 | | 100.00 | % | | 760,000,000 | | 100.00 | % | | 2,760,000,000 | | 100.00 | % |
Selling Commissions | | 120,000,000 | | 6.00 | % | | 22,800,000 | | 3.00 | % | | 142,800,000 | | 5.17 | % |
Dealer Manager Fee | | 70,000,000 | | 3.50 | % | | 0 | | 0.00 | % | | 70,000,000 | | 2.54 | % |
Other Organization and Offering Expenses (1) | | 20,500,000 | | 1.03 | % | | 1,900,000 | | 0.25 | % | | 22,400,000 | | 0.81 | % |
Acquisition Fees (2) | | 13,321,340 | | 0.66 | % | | 0 | | 0.00 | % | | 13,321,340 | | 0.48 | % |
Initial Working Capital Reserve (3) | | 0 | | 0.00 | % | | 0 | | 0.00 | % | | 0 | | 0.00 | % |
| | |
| |
|
| |
| |
|
| |
| |
|
|
Amount Available for Investment (4) | | 1,776,178,660 | | 88.81 | % | | 735,300,000 | | 96.75 | % | | 2,511,478,660 | | 91.00 | % |
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| 1. | Includes all expenses (other than selling commissions and the dealer manager fee) to be paid by us in connection with the offering, including our legal, accounting, printing, mailing and filing fees, charges of our escrow holder, reimbursing the dealer manager for amounts it may pay to reimburse the bona fide due diligence expenses of broker-dealers, amounts to reimburse KBS Capital Advisors for the salaries of its employees and other costs in connection with preparing supplemental sales materials, the cost of educational conferences held by us and attendance fees and cost reimbursement for employees of our affiliates to attend retail seminars conducted by broker-dealers. KBS Capital Advisors has agreed to reimburse us to the extent selling commissions, the dealer manager fee and other organization and offering expenses incurred by us exceed 15% of aggregate gross offering proceeds. See “Plan of Distribution.” |
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| 2. | This table excludes debt proceeds. To the extent we fund property acquisitions with debt, as we expect, the amount available for investment and the amount of acquisition fees will be proportionately greater. This table also assumes that we will use all net proceeds from the sale of shares under our dividend reinvestment plan to repurchase shares under our proposed share redemption program. To the extent we use such net proceeds to acquire real estate, our advisor would earn the related acquisition fees. Our acquisition fees equal 0.75% of the cost of investments. In addition to this acquisition fee, we may also incur customary third-party acquisition expenses in connection with the acquisition (or attempted acquisition) of a property. See note 4 below. |
| 3. | Because we expect that the vast majority of leases for the properties acquired by us will provide for tenant reimbursement of operating expenses, we do not anticipate that a permanent reserve for maintenance and repairs of real estate properties will be established. However, to the extent that we have insufficient funds for such purposes, we may establish reserves from gross offering proceeds, out of cash flow generated by operating properties or out of the net cash proceeds received by us from any sale or exchange of properties. |
| 4. | Amount available for investment will include customary third-party acquisition expenses, such as legal fees and expenses, costs of appraisals, accounting fees and expenses, title insurance premiums and other closing costs and miscellaneous expenses relating to the acquisition of real estate. Until required in connection with the acquisition and development of properties, substantially all of the net proceeds of the offering and, thereafter, our working capital reserves, may be invested in short-term, highly liquid investments, including government obligations, bank certificates of deposit, short-term debt obligations and interest-bearing accounts or other authorized investments as determined by our board of directors. Amount available for investment may also include anticipated capital improvement expenditures and tenant leasing costs. |
We expect to use substantially all of the net proceeds from the sale of shares under our dividend reinvestment plan to repurchase shares under our proposed share redemption program rather than for investments in real estate.
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MANAGEMENT
Board of Directors
We operate under the direction of our board of directors, the members of which are accountable to us and our stockholders as fiduciaries. The board is responsible for the management and control of our affairs. The board has retained KBS Capital Advisors to manage our day-to-day operations and our portfolio of real estate assets, subject to the board’s supervision. Because of the conflicts of interest created by the relationships among us, KBS Capital Advisors and various affiliates, many of the responsibilities of the board have been delegated to a committee consisting solely of all of our independent directors. See “Conflicts of Interest.”
We have three independent directors. An “independent director” is a person who is not one of our officers or employees or an officer or employee of KBS Capital Advisors or its affiliates and has not been so for the previous two years. Serving as a director of, or having an ownership interest in, another KBS-sponsored program will not, by itself, preclude independent-director status. As of the date of this prospectus, none of our independent directors serve as a director of or own an interest in any other KBS-sponsored programs.
Each director will serve until the next annual meeting of stockholders and until his successor has been duly elected and qualified. Although our board of directors may increase or decrease the number of directors, a decrease may not have the effect of shortening the term of any incumbent director. Any director may resign at any time or may be removed with or without cause by the stockholders upon the affirmative vote of at least a majority of all the votes entitled to be cast at a meeting called for the purpose of the proposed removal. The notice of the meeting will indicate that the purpose, or one of the purposes, of the meeting is to determine if the director shall be removed.
Unless filled by a vote of the stockholders as permitted by Maryland General Corporation Law, a vacancy created by an increase in the number of directors or the death, resignation, removal, adjudicated incompetence or other incapacity of a director will be filled by a vote of a majority of the remaining directors. As provided in our charter, nominations of individuals to fill the vacancy of a board seat previously filled by an independent director will be made by a committee consisting solely of all of our independent directors.
Our directors are accountable to us and our stockholders as fiduciaries. This means that our directors must perform their duties in good faith and in a manner each director believes to be in our and our stockholders’ best interests. Further, our directors must act with such care as a prudent person in a similar position would use under similar circumstances, including exercising reasonable inquiry when taking actions. However, our directors and executive officers are not required to devote all of their time to our business and must only devote such time to our affairs as their duties may require. We do not expect that our directors will be required to devote a substantial portion of their time to us in discharging their duties.
In addition to meetings of the various committees of the board, which committees we describe below, we expect our directors to hold at least four regular board meetings each year. Our board has the authority to fix the compensation of all officers that it selects and may pay compensation to directors for services rendered to us in any other capacity.
Our general investment and borrowing policies are set forth in this prospectus. Our directors may establish further written policies on investments and borrowings and will monitor our administrative procedures, investment operations and performance to ensure that our executive officers and advisor
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follow these policies and that these policies continue to be in the best interests of our stockholders. Unless modified by our directors, we will follow the policies on investments and borrowings set forth in this prospectus.
Committees of the Board of Directors
Our board of directors may delegate many of its powers to one or more committees. Our charter requires that each committee consist of at least a majority of independent directors, and our board has two committees, the audit committee and the conflicts committee, that consist solely of independent directors.
Audit Committee
Our board of directors has established an audit committee that consists solely of independent directors. The audit committee will assist the board in overseeing:
| | • | | our accounting and financial reporting processes; |
| | • | | the integrity and audits of our financial statements; |
| | • | | our compliance with legal and regulatory requirements; |
| | • | | the qualifications and independence of our independent auditors; and |
| | • | | the performance of our internal and independent auditors. |
The audit committee will select the independent public accountants to audit our annual financial statements, will review with the independent public accountants the plans and results of the audit engagement and will consider and approve the audit and non-audit services and fees provided by the independent public accountants. The members of the audit committee are Hank Adler, Barbara R. Cambon and Stuart Gabriel, Ph.D.
Conflicts Committee
In order to reduce or eliminate certain potential conflicts of interest, our charter creates a conflicts committee of our board of directors consisting solely of all of our independent directors, that is, all of our directors who are not affiliated with our advisor. Our charter authorizes the conflicts committee to act on any matter permitted under Maryland law. Both the board of directors and the conflicts committee must act upon those conflict-of-interest matters that cannot be delegated to a committee under Maryland law. Our charter also empowers the conflicts committee to retain its own legal and financial advisors. See “Conflicts of Interest — Certain Conflict Resolution Measures.”
Our conflicts committee will also discharge the board’s responsibilities relating to the compensation of our executives. The conflicts committee will administer the granting of share-based awards to selected employees of KBS Capital Advisors based upon recommendations from KBS Capital Advisors and will set the terms and conditions of such share-based awards in accordance with the Employee and Independent Director Incentive Stock Plan, which we describe below. The conflicts committee will also generally have the authority to amend the Employee and Independent Director Incentive Stock Plan or create other incentive compensation and equity-based plans.
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Executive Officers and Directors
We have provided below certain information about our executive officers and directors.
| | | | |
Name*
| | Age
| | Positions
|
Peter M. Bren | | 72 | | President |
Charles J. Schreiber, Jr. | | 54 | | Chairman of the Board, Chief Executive Officer and Director |
Peter McMillan III | | 47 | | Executive Vice President, Treasurer, Secretary and Director |
Keith D. Hall | | 47 | | Executive Vice President |
Stacie K. Yamane | | 41 | | Chief Financial Officer and Controller |
Hank Adler | | 59 | | Independent Director |
Barbara R. Cambon | | 52 | | Independent Director |
Stuart A. Gabriel, Ph.D. | | 51 | | Independent Director |
| * | The address of each executive officer and director listed is 620 Newport Center Drive, Suite 1300, Newport Beach, California 92660. |
Peter M. Bren is our President and the President of our advisor, KBS Capital Advisors. Other than de minimis amounts owned by family members or family trusts, Mr. Bren also indirectly owns and controls a 33 1/3% interest in KBS Holdings LLC, which entity is the sole owner of our advisor and the dealer manager of this offering. Mr. Bren and Charles J. Schreiber, Jr. possess management authority over our advisor’s operations.
Mr. Bren is also Chairman of the Board and President of KBS Realty Advisors LLC, a real estate investment adviser that, together with KBS affiliates, has been involved in the investment in or management of over $4.9 billion of real estate investments on behalf of institutional investors, including public and private pension plans, endowments and foundations. As Chairman of the Board and President, Peter Bren oversees all aspects of KBS Realty Advisors’ business activities, including the acquisition, management and disposition of assets. He is a member of KBS Realty Advisors’ Investment Committee, which evaluates and authorizes new investment opportunities for the firm. Mr. Bren is also responsible for investor relationships. Through KBS-affiliated entities, Mr. Bren has teamed with Mr. Schreiber since 1992 to invest, manage, develop and sell high-quality U.S. commercial real estate assets for institutional investors.
Mr. Bren has been involved exclusively in real estate development, management, acquisition, disposition and financing for 38 years as the President of The Bren Company; a former Senior Partner of Lincoln Property Company; President of Lincoln Property Company, Europe; and Chairman of the Board and President of KBS Realty Advisors.
Charles J. Schreiber, Jr. is the Chairman of our Board, our Chief Executive Officer and one of our directors. He is also the Chief Executive Officer of our advisor. Other than de minimis amounts owned by family members or family trusts, Mr. Schreiber indirectly owns and controls a 33 1/3% interest in KBS Holdings LLC, which entity is the sole owner of our advisor and the dealer manager of this offering. Together with Peter M. Bren, Mr. Schreiber possesses management authority over our advisor’s operations.
Mr. Schreiber also serves as Chief Executive Officer of KBS Realty Advisors LLC, a nationally recognized real estate investment adviser that, together with KBS affiliates, has been involved in the investment in or management of over $4.9 billion of real estate investments on behalf of institutional investors. Mr. Schreiber oversees all operations including the acquisition and management of individual
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investments and portfolios of income-producing real estate assets. He directs all facets of the company’s business activities and is a member of the Investment Committee, which evaluates and authorizes new investment opportunities for the firm. Mr. Schreiber is also responsible for investor relationships.
Mr. Schreiber has been involved exclusively in real estate development, management, acquisition, disposition and financing for more than 30 years. Prior to teaming with Mr. Bren in 1992, he served as the Executive Vice President of Koll Investment Management Services and Executive Vice President of Acquisitions/ Dispositions for The Koll Company. During the mid-1970s through the 1980s, he was Founder and President of Pacific Development Company and was previously Senior Vice President/ Southern California Regional Manager of Ashwill-Burke Commercial Brokerage.
Mr. Schreiber graduated from the University of Southern California with a Bachelor’s Degree in Finance with emphasis in Real Estate. During his four years at USC, he did graduate work in the then newly-formed Real Estate Department in the USC Graduate School of Business. He is currently an Executive Board Member for the USC Lusk Center for Real Estate at the University of Southern California Marshall School of Business/School of Policy, Planning and Development.
Peter McMillan III is our Executive Vice President, Treasurer, Secretary and one of our directors. Mr. McMillan also owns and controls a 50% interest in GKP Holding LLC. GKP Holding owns a 33 1/3% interest in KBS Holdings LLC, which entity is the sole owner of our advisor and the dealer manager of this offering.
Mr. McMillan is co-founder and Managing Partner of Willowbrook Capital Group, LLC. Prior to forming Willowbrook in 2000, Mr. McMillan served as the Executive Vice President and Chief Investment Officer of SunAmerica Investments, Inc., which was later acquired by AIG. As Chief Investment Officer, he was responsible for over $75 billion in assets, including residential and commercial mortgage-backed securities, public and private investment grade and non-investment grade corporate bonds and commercial mortgage loans and real estate investments. Before joining SunAmerica in 1989, he served as Assistant Vice President for Aetna Life Insurance and Annuity Company with responsibility for the company’s $6 billion fixed income portfolios. Mr. McMillan received his Master of Business Administration in Finance from the Wharton Graduate School of Business at the University of Pennsylvania and his Bachelor of Arts Degree with honors in Economics from Clark University. Mr. McMillan is a director of Steinway Musical Instruments, Inc.
Keith D. Hall is our Executive Vice President. Mr. Hall also owns and controls a 50% interest in GKP Holding LLC. GKP Holding owns a 33 1/3% interest in KBS Holdings LLC, which entity is the sole owner of our advisor and the dealer manager of this offering.
Mr. Hall is co-founder of Willowbrook Capital Group, LLC. Prior to forming Willowbrook in 2000, Mr. Hall was a Managing Director at CS First Boston, where he managed CSFB’s distribution strategy and business development for the Principal Transaction Group’s $18 billion real estate securities portfolio. Before joining CSFB in 1996, he served as a Director in the Real Estate Products Group at Nomura Securities, with responsibility for the company’s $6 billion annual pipeline of fixed income securities. Mr. Hall spent the 1980s as a Senior Vice President in the High Yield Department of Drexel Burnham Lambert’s Beverly Hills office, where he was responsible for distribution of the group’s high yield real estate securities. Mr. Hall received a Bachelor of Arts Degree with honors in Finance from Cal State Sacramento.
Stacie K. Yamane is our Chief Financial Officer and Controller. Ms Yamane is also the Fund Controller of our advisor.
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In addition, Ms. Yamane serves as Senior Vice President/ Controller, Portfolio Operations for KBS Realty Advisors LLC. At KBS Realty Advisors, Ms. Yamane is responsible for client accounting/ reporting for four real estate portfolios. These portfolios consist of industrial, office and retail properties as well as land parcels. Ms. Yamane works closely with portfolio managers, asset managers, property managers and clients to ensure the completion of timely and accurate accounting, budgeting and financial reporting. In addition, she assists in the supervision and management of KBS Realty Advisors’ accounting department.
Prior to joining an affiliate of KBS Realty Advisors in February of 1995, Ms. Yamane was an audit manager at Kenneth Leventhal & Company, a CPA firm specializing in real estate. During her eight years at Kenneth Leventhal & Company, Ms. Yamane performed or supervised a variety of auditing, accounting and consulting engagements including the audit of financial statements presented under the U.S. generally accepted accounting principles (���GAAP”) basis, as well as financial statements presented on a cash and tax basis, the valuation of asset portfolios and the review and analysis of internal control systems. Her experiences at KBS and Kenneth Leventhal & Company give her 18 years of real estate experience.
Ms. Yamane received a Bachelor of Arts Degree in Business Administration with a dual concentration in Accounting and Management Information Systems from California State University, Fullerton. She became a certified public accountant in 1990.
Hank Adler is one of our independent directors. Mr. Adler is currently an Assistant Professor of Accounting at Chapman University. Prior to his retirement from Deloitte & Touche, LLP in 2003, Mr. Adler was a partner with that firm where he had been employed for over 30 years. He specialized in tax accounting and served as client service and tax partner for a variety of public and private companies. He received a Bachelor of Science in Accounting and a Master of Business Administration from the University of California, Los Angeles. Mr. Adler currently serves on the board of directors and on the audit committee of Corinthian Colleges, Inc. and on the board of directors of Hoag Hospital Memorial Presbyterian. He also chairs the Toshiba Senior Classic charity event, a PGA Senior Tour championship event. In the 1990s, he served on the board of trustees and as President of the Irvine Unified School District.
Barbara R. Cambon is one of our independent directors. Ms. Cambon is a Managing Member of Snowcreek Management LLC, a real estate asset-management company whose business activities focus on residential development projects for institutional investors. She has been in the real estate investment business for 24 years, principally working with institutional capital sources and investment programs. From November 1999 until October 2002, she served as a Principal of Los Angeles-based Colony Capital, LLC, a private real estate investment firm, and from April 2000 until October 2002 she also served as Chief Operating Officer of Colony. Prior to joining Colony in 1999, Ms. Cambon was President and Founder of Institutional Property Consultants, Inc., a real estate consulting company. She is a past Director and Chairman of the Board of the Pension Real Estate Association and past Director of the National Council of Real Estate Investment Fiduciaries. Ms. Cambon serves on the board of directors and on the audit committee of BioMed Realty Trust, Inc. and on the University of San Diego Burnham-Moores Real Estate Institute Policy Advisory Board. Ms. Cambon received a Master of Business Administration from Southern Methodist University and a Bachelor of Science Degree in Education from the University of Delaware.
Stuart A. Gabriel, Ph.D. is one of our independent directors. Professor Gabriel is Director and Lusk Chair in Real Estate at the Lusk Center for Real Estate and serves as Professor of Finance and Business Economics in the Marshall School of Business at the University of Southern California. In 2004, he was elected President of the American Real Estate and Urban Economics Association. Professor
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Gabriel serves on the editorial boards of Real Estate Economics, Journal of Real Estate Finance and Economics, Journal of Housing Economics, Journal of Housing Research, Housing Policy Debate, Real Estate Finance and Journal of Real Estate Research. He is also a Fellow of the Homer Hoyt Institute for Advanced Real Estate Studies. Professor Gabriel has published extensively on topics of real estate finance and urban and regional economics. Also, he has received a number of awards at USC for outstanding graduate teaching. Professor Gabriel serves as a consultant to numerous corporate and governmental entities. Prior to joining the USC faculty in 1990, Professor Gabriel served on the economics staff of the Federal Reserve Board in Washington, D.C. He also has been a Visiting Scholar at the Federal Reserve Bank of San Francisco. Professor Gabriel holds a Ph.D. in Economics from the University of California, Berkeley.
Compensation of Directors
We intend to compensate each of our independent directors with an annual retainer of $25,000. In addition, we will pay independent directors for attending board and committee meetings as follows:
| | • | | $2,500 in cash for each board meeting attended. |
| | • | | $2,000 in cash for each committee meeting attended, except that the chairman of the committee will be paid $3,000 for each meeting attended. |
| | • | | $1,000 in cash for each teleconference meeting of the board. |
| | • | | $1,000 in cash for each teleconference meeting of any committee, except that the chairman of the committee will be paid $3,000 for each teleconference meeting of the committee. |
We have also reserved shares of common stock for future issuance to our independent directors and others who provide services to us pursuant to our Employee and Independent Director Incentive Stock Plan. All directors will receive reimbursement of reasonable out-of-pocket expenses incurred in connection with attendance at meetings of the board of directors. If a director is also one of our officers, we will not pay any compensation for services rendered as a director.
Employee and Independent Director Incentive Stock Plan
We have adopted an Employee and Independent Director Incentive Stock Plan to:
| | • | | furnish incentives to individuals chosen to receive share-based awards because we consider them capable of improving our operations and increasing our profits; |
| | • | | encourage selected persons to accept or continue employment with our advisor; and |
| | • | | increase the interest of our independent directors in our welfare through their participation in the growth in the value of our shares of common stock. |
Our Employee and Independent Director Incentive Stock Plan provides for the grant of awards to our employees (in the event we ever have employees), employees of our advisor, employees of entities that provide services to us, our independent directors, managers or directors of the advisor or of entities that provide services to us, certain of our consultants and certain consultants to the advisor or to entities that provide services to us. We will not, however, grant awards as compensation in connection with the sale of securities in this offering. Awards may consist of nonqualified stock options, incentive stock
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options, restricted and unrestricted shares of stock, stock appreciation rights, phantom stock awards, dividend equivalent rights and other stock-based awards.
The total number of shares of common stock we have reserved for issuance under the Employee and Independent Director Incentive Stock Plan is equal to 5% of our outstanding shares at any time, but not to exceed 10,000,000 shares. We have no timetable for the grant of any awards under the Employee and Independent Director Incentive Stock Plan.
Options granted under the plan would entitle the holder to purchase shares of common stock for a specified exercise price during a specified period. Under the Employee and Independent Director Incentive Stock Plan, we may grant options that are intended to be incentive stock options within the meaning of Section 422 of the Internal Revenue Code (“incentive stock options”) or options that are not incentive stock options (“nonqualified stock options”). Incentive stock options and nonqualified stock options generally would have an exercise price that is not less than 100% of the fair market value of the shares of common stock underlying the option on the date of grant and would expire, with certain exceptions, 10 years after such date.
Restricted share awards would entitle the recipient to shares of common stock under terms that provide for vesting over a specified period of time. Such awards would typically be forfeited with respect to the unvested shares upon the termination of the recipient’s employment or other relationship with us. Restricted shares may not, in general, be sold or otherwise transferred until restrictions are removed and the shares have vested. Holders of restricted shares would receive cash dividends prior to the time that the restrictions on the restricted shares have lapsed. Any dividends payable in shares of common stock would be subject to the same restrictions as the underlying restricted shares.
Unrestricted shares of common stock would be free of any restrictions under the Employee and Independent Director Incentive Stock Plan. We may issue unrestricted shares of common stock in recognition of past services or in lieu of cash compensation.
Share appreciation rights would entitle the recipient to receive from us at the time of exercise an amount in cash (or in some cases, shares of common stock or a combination of cash and shares) equal to the excess of the fair market value of the shares of common stock underlying the share appreciation right on the date of exercise over the price specified at the time of grant, which could not be less than the fair market value of the shares of common stock on the grant date.
Phantom stock awards are contractual rights that are equivalent in value to, but not the actual shares of, our common stock. We may condition phantom stock awards on the achievement of performance goals and/or continued employment with us through a specified date. We will determine the time or times when the recipient would be paid the value of the phantom stock award, which payment may be in cash, shares of our common stock or a combination of both. Because phantom stock awards are not actual shares of our common stock, they do not have voting rights.
Dividend equivalent rights would entitle the recipient to receive, for a specified period, a payment equal to the dividends declared and paid by us on one share of common stock. Dividend equivalent rights would be forfeited to us upon the termination of the recipient’s employment or other relationship with us.
We may also grant other awards that are based on or related to shares of our common stock or other securities. These could include incentive awards with value and payment contingent upon the recipient’s performance, other rights convertible or exchangeable into shares and purchase rights for shares of common stock or other securities.
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Limited Liability and Indemnification of Directors, Officers, Employees and Other Agents
Our charter limits the liability of our directors and officers to us and our stockholders for monetary damages and requires us to indemnify our directors, officers, KBS Capital Advisors and its affiliates for losses they may incur by reason of their service in that capacity if all of the following conditions are met:
| | • | | the party seeking exculpation or indemnification has determined, in good faith, that the course of conduct that caused the loss or liability was in our best interests; |
| | • | | the party seeking exculpation or indemnification was acting on our behalf or performing services for us; |
| | • | | in the case of an independent director, the liability or loss was not the result of gross negligence or willful misconduct by the independent director; |
| | • | | in the case of a non-independent director, KBS Capital Advisors or one of its affiliates, the liability or loss was not the result of negligence or misconduct by the party seeking exculpation or indemnification; and |
| | • | | the indemnification is recoverable only out of our net assets and not from the stockholders. |
The SEC takes the position that indemnification against liabilities arising under the Securities Act of 1933 is against public policy and unenforceable. Furthermore, our charter prohibits the indemnification of our directors, KBS Capital Advisors, its affiliates or any person acting as a broker-dealer for liabilities arising from or out of a violation of state or federal securities laws, unless one or more of the following conditions are met:
| | • | | there has been a successful adjudication on the merits of each count involving alleged securities law violations; |
| | • | | such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction; or |
| | • | | a court of competent jurisdiction approves a settlement of the claims against the indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the SEC and of the published position of any state securities regulatory authority in which the securities were offered as to indemnification for violations of securities laws. |
Our charter further provides that the advancement of funds to our directors and to KBS Capital Advisors and its affiliates for reasonable legal expenses and other costs incurred in advance of the final disposition of a proceeding for which indemnification is being sought is permissible only if all of the following conditions are satisfied: the proceeding relates to acts or omissions with respect to the performance of duties or services on our behalf; the legal proceeding was initiated by a third party who is not a stockholder or, if by a stockholder acting in his or her capacity as such, a court of competent jurisdiction approves such advancement; and the person seeking the advancement undertakes to repay the amount paid or reimbursed by us, together with the applicable legal rate of interest thereon, if it is ultimately determined that such person is not entitled to indemnification.
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We will also purchase and maintain insurance on behalf of all of our directors and executive officers against liability asserted against or incurred by them in their official capacities with us, whether or not we are required or have the power to indemnify them against the same liability.
The Advisor
Our advisor is KBS Capital Advisors. KBS Capital Advisors is a recently organized limited liability company that was formed in the State of Delaware on October 18, 2004. Our advisor has no operating history and no experience managing a public company. As our advisor, KBS Capital Advisors has contractual and fiduciary responsibilities to us and our stockholders.
Peter M. Bren and Charles J. Schreiber, Jr. indirectly own a controlling interest in and manage KBS Capital Advisors. Peter McMillan III and Keith D. Hall also indirectly own an ownership interest in KBS Capital Advisors. For more information regarding the background and experience of Messrs. Bren, Schreiber, McMillan and Hall, see “Management – Executive Officers and Directors” and “– Other Affiliates – Our Sponsors.”
The Advisory Agreement
Under the terms of the advisory agreement, KBS Capital Advisors will use its reasonable efforts to present to us investment opportunities that provide a continuing and suitable investment program for us consistent with our investment policies and objectives as adopted by our board of directors. Pursuant to the advisory agreement, KBS Capital Advisors will manage our day-to-day operations, retain the property managers for our real estate investments (subject to the authority of our board of directors and officers) and perform other duties, including, but not limited to, the following:
| | • | | finding, presenting and recommending to us real estate investment opportunities consistent with our investment policies and objectives; |
| | • | | structuring the terms and conditions of our real estate acquisitions, sales and joint ventures; |
| | • | | acquiring properties on our behalf in compliance with our investment objectives and policies; |
| | • | | arranging for financing and refinancing of properties; |
| | • | | entering into leases and service contracts for our properties; |
| | • | | supervising and evaluating each property manager’s performance; |
| | • | | reviewing and analyzing the properties’ operating and capital budgets; |
| | • | | assisting us in obtaining insurance; |
| | • | | generating an annual budget for us; |
| | • | | reviewing and analyzing financial information for each property and the overall portfolio; |
| | • | | formulating and overseeing the implementation of strategies for the administration, promotion, management, operation, maintenance, improvement, financing and refinancing, marketing, leasing and disposition of our properties and other investments; |
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| | • | | performing investor-relations services; |
| | • | | maintaining our accounting and other records and assisting us in filing all reports required to be filed with the SEC, the IRS and other regulatory agencies; |
| | • | | engaging and supervising the performance of our agents, including our registrar and transfer agent; and |
| | • | | performing any other services reasonably requested by us. |
See “Management Compensation” for a detailed discussion of the fees payable to KBS Capital Advisors under the advisory agreement. We also describe in that section our obligation to reimburse KBS Capital Advisors for organization and offering expenses, the costs of providing services to us (other than services for which it earns acquisition fees or real estate commissions) and payments made by KBS Capital Advisors to third parties in connection with potential acquisitions.
The term of the current advisory agreement ends after one year but may be renewed for an unlimited number of successive one-year periods upon the mutual consent of KBS Capital Advisors and us. Additionally, either party may terminate the advisory agreement without penalty upon 60 days’ written notice. Upon termination of the advisory agreement, KBS Capital Advisors may be entitled to a termination fee if (based upon an independent appraised value of the portfolio) KBS Capital Advisors would have been entitled to a subordinated participation in net cash flows had the portfolio been liquidated on the termination date. For more information regarding the terms of the advisory agreement, see “Management Compensation.”
KBS Capital Advisors and its affiliates expect to engage in other business ventures, and, as a result, they will not dedicate their resources exclusively to our business. However, pursuant to the advisory agreement, KBS Capital Advisors must devote sufficient resources to our business to discharge its obligations to us. KBS Capital Advisors may assign the advisory agreement to an affiliate upon our approval. We may assign or transfer the advisory agreement to a successor entity.
Initial Investment by Our Advisor
Our sponsors have invested $200,000 in us through the purchase of 20,000 shares of our common stock at $10 per share. KBS Capital Advisors is the owner of these 20,000 shares. As of the date of this prospectus, this constitutes 100% of our issued and outstanding stock. KBS Capital Advisors may not sell any of these shares during the period it serves as our advisor. Although nothings prohibits KBS Capital Advisors or its affiliates from acquiring additional shares of our common stock, KBS Capital Advisors currently has no options or warrants to acquire any shares. KBS Capital Advisors has agreed to abstain from voting any shares it acquires in any vote for the election of directors or any vote regarding the approval or termination of any contract with KBS Capital Advisors or any of its affiliates. KBS Capital Advisors is indirectly owned and controlled by Peter M. Bren, Charles J. Schreiber, Jr., Peter McMillan III and Keith D. Hall, who are our sponsors.
Other Affiliates
Our Sponsors
Peter M. Bren, Charles J. Schreiber, Jr., Peter McMillan III and Keith D. Hall control and indirectly own our advisor and the dealer manager of this offering. We refer to these individuals as our
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“sponsors.” They are also our executive officers. Of our sponsors, only Messrs. Bren and Schreiber possess management authority over our advisor’s operations.
Since 1992, Messrs. Bren and Schreiber have teamed to invest, manage, develop and sell high-quality U.S. commercial real estate assets for institutional investors. Together, they founded KBS Realty Advisors, a registered investment adviser with the Securities and Exchange Commission and a nationally recognized real estate investment adviser. When we refer to a “KBS-sponsored” fund or program, we are referring to entities sponsored by an investment adviser affiliated with Messrs. Bren and Schreiber, and when we refer to a “KBS-advised” investor, we are referring to institutional investors that have engaged an investment adviser affiliated with Messrs. Bren and Schreiber to provide real estate-related investment advice.
Messrs. Bren and Schreiber will work together at KBS Capital Advisors with their team of real estate professionals. The senior real estate professionals assembled by Messrs. Bren and Schreiber, who will be employed by our advisor as well as by KBS Realty Advisors, average over 20 years of direct real estate experience. These senior real estate professionals have been through multiple real estate cycles in their careers and have the expertise gained through hands-on experience in acquisitions, asset management, dispositions, development, leasing and property and portfolio management.
Historically, the business strategy of Messrs. Bren and Schreiber has been threefold: first, identify attractive investment opportunities that meet the investment objectives of their institutional clients; second, aggressively manage each asset acquired; third, execute a well-defined exit strategy for each investment made.
We believe the experience of Messrs. Bren and Schreiber and the team of real estate professionals they have assembled to manage our operations and their disciplined investment approach will allow us to successfully execute our business model. Since1992, the experience of the investment advisers affiliated with Messrs. Bren and Schreiber include (as of December 31, 2004):
| | • | | Sponsoring nine private real estate funds that have investment objectives similar to ours and that have invested approximately $2.8 billion (including equity, debt and investment of income and sales proceeds) in 266 real estate assets; |
| | • | | Through these nine private real estate funds, raising $1.8 billion of equity from 38 institutional investors; and |
| | • | | Selling 200 of the 266 real estate assets acquired by these nine private real estate funds. |
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The twenty largest investors (based on dollar amount invested) in these nine private real estate funds are:
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• BASF Corporation Pension Master Trust | | • International Bank for Reconstruction & Development - Staff Retirement Plan | | • School Employees’ Retirement Board of Ohio |
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• Blue Cross and Blue Shield Association National Retirement Trust | | • International Monetary Fund Staff Retirement Plan | | • State of Wisconsin Investment Board |
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• Deseret Mutual Employee Pension Plan Trust | | • International Paper Pension Plan Trust | | • The Rockefeller Foundation |
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• DRM Associates | | • Kodak Retirement Income Plan | | • U.S. Steel Retirement Plan Trust |
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• Howard Hughes Medical Institute | | • Omaha School Employees’ Retirement System | | • UMWA Health & Retirement Funds 1974 Pension Trust |
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• IBM Retirement Trust | | • Pew Memorial Trust | | • Virginia Retirement System |
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• Illinois State Board of Investment | | • Public Employees’ Retirement Association of Colorado | | |
In addition to their experience with the nine funds described above, investment advisers affiliated with Messrs. Bren and Schreiber have also been engaged by three institutional investors to recommend real estate acquisitions and manage their investments. The two largest of these investors (based on dollar amount invested) are the State Treasurer of the State of Michigan and the Teachers’ Retirement System of the State of Illinois. The investment proceeds of these three investors were not commingled. The investments were made pursuant to management agreements or partnership agreements that permitted the institutional investors to reject acquisitions recommended by the investment adviser. Because the investors were not as passive as those in the nine funds described above or as those who invest in this offering, we have not described the performance of the real estate assets acquired or managed for these three investors. The amounts paid for the assets acquired and/or managed pursuant to these arrangements and for subsequent capital expenditures totaled $2.1 billion. On behalf of these three institutional investors, investment advisers affiliated with Messrs. Bren and Schreiber have sold 152 real estate assets.
You should note that we believe that the institutional investors named above and that invested in KBS-sponsored funds or that have been advised by KBS affiliates are more likely to invest in offerings that can be conducted with lower offering expenses than those found in a public offering, such as this one, in which the securities are sold by participating broker-dealers on a best-efforts basis. If institutional investors do participate in this offering, they would likely invest in amounts entitling them to volume discounts such that their returns, if any, would likely be greater than those who purchase shares in this offering at $10 per share.
None of the institutional investors named above have endorsed this offering. By including their names, we do not suggest that any of these investors approved of the services provided by any affiliate of
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our advisor. We included their names only for purposes of your evaluation of the experience and reputation of our sponsors and their team of real estate professionals.
None of our sponsors have previously sponsored or organized a publicly offered REIT. However, a KBS-sponsored fund has formed, managed and liquidated a private REIT that owned 10 retail centers.
See “Management – Executive Officers and Directors” for more information regarding the background and experience of our sponsors.
Dealer Manager
We have retained KBS Capital Markets Group LLC, an affiliate of our advisor, to conduct this offering. KBS Capital Markets Group is a recently formed company with no prior operating history. KBS Capital Markets Group will provide wholesaling, sales, promotional and marketing assistance services to us in connection with the distribution of the shares offered pursuant to this prospectus. It may also sell shares at the retail level. The principal business of KBS Capital Markets Group will be to sell the shares registered in this offering.
Four of our executive officers, Peter M. Bren, Peter McMillan III, Keith D. Hall and Charles J. Schreiber, Jr., indirectly own a controlling interest in KBS Capital Markets Group. See “Management — Executive Officers and Directors” for a discussion of the background and experience of Messrs. Bren, McMillan, Schreiber and Hall.
Below is a brief description of the background and experience of the executive officers of KBS Capital Markets Group.
Greg P. Brakovichis the Chief Executive Officer of KBS Capital Markets Group. Mr. Brakovich has been a leader in the distribution of financial service products for over 26 years and has helped build a number of the most successful distribution franchises in the marketplace today. In 2000, Mr. Brakovich became Co-CEO of MetLife Investors Group where he headed an effort to create a brand presence for the MetLife enterprise that could be promoted in the broker-dealer community. He also served successfully as Co-CEO of Equitable Distributors, a subsidiary of the AXA Group, from 1996 to 2000. While working at Fidelity Investments and Bankers Trust Co. of New York between 1990 and 1996, Mr. Brakovich was responsible for developing load distribution strategies for each of those firm’s mutual fund product areas that were built for the financial intermediary marketplace.
Mark Brandenberger is the Chief Financial Officer of KBS Capital Markets Group LLC where he is responsible for the financial operations and strategic planning of the company. From February 2004 to August 2005, Mr. Brandenberger was the Executive Vice President and Chief Financial Officer of Retirement Capital Group, Inc. where he was responsible for all fiscal and investment-related matters. Retirement Capital Group is a consulting company that provides nonqualified executive benefit services to large public and private organizations. The services include plan design, funding, implementation and administration. Mr. Brandenberger also served as President of Duvera from February 2003 to June 2003 where he was responsible for the development of corporate strategy and oversight of sales, marketing, administration and operations. Duvera is a finance company specializing in providing capital to small and mid-size companies by purchasing and servicing a company’s accounts receivable. Duvera also provides billing and collection services. From June 2000 to June 2002, Mr. Brandenberger served as the Executive Vice President of MetLife Investors Group. His responsibilities included strategic planning and financial operations of the MetLife Investors franchise. Prior to joining MetLife Investors Group, Mr. Brandenberger was Vice President of Strategic Planning with AXA Distributors, Inc. (formerly Equitable Distributors, Inc.) from October 1996 to June 2000 where he was responsible for setting strategic
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direction for new distribution channels and product offerings and oversight of financial operations. Mr. Brandenberger is a CPA and received a Bachelor of Science Degree in Business Administration with an emphasis in Accounting from California Polytechnic State University, San Luis Obispo.
Kenneth Jaffeis the Chief Operating Officer for KBS Capital Markets Group LLC. From February 2003 to August 2005, Mr. Jaffe was President of Jaffe Technologies, Inc., a consulting firm providing custom technology solutions to the financial services industry. Prior to that, from July 2000 to January 2005, Mr. Jaffe was the Executive Vice President and Chief Information Officer of MetLife Investors, Inc., where Mr. Jaffe’s responsibilities included e-commerce initiatives for the distribution of financial services products, process re-engineering for telemarketing and customer service functions, CRM application development and the data warehousing of all proprietary information. Mr. Jaffe was the Chief Information Officer at Equitable Distributors, Inc. from 1996 to July 2000 where he was responsible for developing an IT infrastructure and staff for a newly formed business unit of AXA/Equitable. Prior to joining Equitable Distributors, Inc. Mr. Jaffe was Product Manager and Director of Management Information Systems for PIMCO Advisors. Mr. Jaffe graduated from Dartmouth College with a degree in Psychology modified with Computer Science.
Patrick J. Milleris the President of KBS Capital Markets Group LLC. Mr. Miller is responsible for the development and management of various aspects of the business including marketing and new business development. Prior to joining KBS Capital Markets Group in October 2005, Mr. Miller was a Senior Vice President at Thomson NETg, a leading provider of continuing corporate education and training that serves over 5,000 customers and millions of users worldwide. Thomson NETg is part of The Thomson Corporation (TSX:TOC; NYSE:TOC), a global leader in providing integrated information solutions to higher education, corporate, government and professional customers. From December 2001until March 2004, Mr. Miller was President and Chief Executive Officer of FinancialCampus, an online education company providing training and development services to over 150 financial services organizations. FinancialCampus was acquired by Thomson NETg in March 2004. From February 2000 to August 2001, Mr. Miller served as Chief Executive Officer of Equitable Distributors, Inc., the wholesale distribution subsidiary of AXA Financial, where he had overall management responsibility for the distribution of a broad range of investment products and services. Prior to that, Mr. Miller worked at Fidelity Investments where he developed a proprietary annuity business for distribution throughout the broker/dealer community. Mr. Miller graduated from the University of California at Los Angeles with a degree in Psychology.
Management Decisions
The primary responsibility for the management decisions of KBS Capital Advisors and its affiliates, including the selection of real estate investments to be recommended to our board of directors, the negotiation for these investments and asset-management decisions, will reside in Peter M. Bren and Charles J. Schreiber, Jr. We expect that the conflicts committee will condition the acquisition of any property or other investment on the committee’s prior approval.
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MANAGEMENT COMPENSATION
Although we have executive officers who will manage our operations, we have no paid employees. Our advisor, KBS Capital Advisors, and its affiliates will manage our day-to-day affairs and our portfolio of real estate investments, subject to the board’s supervision. The following table summarizes all of the compensation and fees that we will pay to KBS Capital Advisors and its affiliates, including amounts to reimburse their costs in providing services, and amounts that we will pay to our independent directors. Selling commissions may vary for different categories of purchasers as described under “Plan of Distribution.” This table assumes that we sell all shares at the highest possible selling commissions (with no discounts to any categories of purchasers) and assumes a $9.50 price for each share sold through our dividend reinvestment plan. No dealer manager fee is payable on shares sold through our dividend reinvestment plan.
| | | | |
Form of
Compensation and
Recipient
| | Determination of Amount
| | Estimated
Amount
for Minimum
Offering/ Maximum Offering (1)
|
| | | Organization and Offering Stage | | |
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| Selling Commissions – KBS Capital Markets Group (2) | | 6.0% of gross offering proceeds (3.0% for sales of shares under the dividend reinvestment plan) before reallowance of commissions earned by participating broker-dealers. KBS Capital Markets Group, our dealer manager, will reallow 100% of commissions earned to participating broker-dealers. | | $150,000/$142,800,000 |
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| Dealer Manager Fee – KBS Capital Markets Group | | 3.5% of gross offering proceeds; no dealer manager fee is payable on shares sold under our dividend reinvestment plan. KBS Capital Markets Group may reallow to any participating broker-dealer up to 1% of the gross offering proceeds attributable to that participating broker-dealer as a marketing fee. See “Plan of Distribution.” | | $87,500/$70,000,000 |
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| Reimbursement of Other Organization and Offering Expenses – KBS Capital Advisors and KBS Capital Markets Group (3) | | To date, KBS Capital Advisors has paid organization and offering expenses on our behalf. We will reimburse KBS Capital Advisors for these costs and future organization and offering costs it may incur on our behalf but only to the extent that the reimbursement would not cause the selling commissions, the dealer manager fee and the other organization and offering expenses borne by us to exceed 15% of gross offering proceeds as of the date of the reimbursement. If we raise the maximum offering amount, we expect organization and offering expenses (other than selling commissions and the dealer manager fee) to be $22,400,000 or 0.81% of gross offering proceeds. These organization and offering expenses include all expenses (other than selling commissions and the dealer manager fee) to be paid by us in connection with the offering, including our legal, accounting, printing, mailing and filing fees, charges of our escrow holder, reimbursement of bona fide due diligence expenses of broker-dealers, reimbursement of our advisor for the salaries of its employees and other costs in connection with preparing supplemental sales materials, the cost of educational conferences held by us (including the travel, meal and lodging costs of registered representatives of broker-dealers) and attendance fees and cost reimbursement for employees of our affiliates to attend retail seminars conducted by broker-dealers. | | $137,500/$22,400,000 |
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| | | | |
Form of Compensation and
Recipient
| | Determination of Amount
| | Estimated Amount
for Minimum
Offering/ Maximum Offering (1)
|
| | |
| | | Acquisition and Development Stage | | |
| | |
| Acquisition Fees – KBS Capital Advisors (4) | | 0.75% of the cost of investments acquired by us, including acquisition expenses and any debt attributable to such investments. This fee relates to services provided in connection with the selection and purchase of real estate investments. | | $15,819/$13,321,340 |
| | |
| Asset Management Fee – KBS Capital Advisors (5) | | Monthly fee equal to one-twelfth of 0.75% of the sum of the cost of all real estate investments we own and of our investments in joint ventures, including acquisition fees, acquisition expenses and any debt attributable to such investments. | | The actual amounts are dependent upon the total equity and debt capital we raise and the results of our operations; therefore, we cannot determine these amounts at the present time. |
| | |
| Other Operating Expenses – KBS Capital Advisors (5) | | We will reimburse the expenses incurred by KBS Capital Advisors in connection with its provision of services to us, including our allocable share of the advisor’s overhead, such as rent, personnel costs, utilities and IT costs; however, we will not reimburse for personnel costs in connection with services for which KBS Capital Advisors receives acquisition fees or real estate commissions. | | Actual amounts are dependent upon the results of our operations; we cannot determine these amounts at the present time. |
| | |
| Stock-based Compensation Awards – Independent Directors and Affiliates of KBS Capital Advisors (6) | | We may issue stock-based awards to our independent directors and to affiliates of our advisor. The total number of shares of common stock reserved for issuance under our Employee and Independent Director Incentive Stock Plan is equal to 5% of our outstanding shares at any time but may not exceed 10,000,000 shares. | | Our board has not yet determined to grant any stock-based awards. We cannot determine these amounts at the present time. |
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| | | | |
Form of Compensation
and Recipient
| | Determination of Amount
| | Estimated Amount
for Minimum
Offering/Maximum Offering (1)
|
| | |
| Independent Director Compensation | | We will pay each of our independent directors an annual retainer of $25,000. We will also pay our independent directors for attending meetings as follows: (i) $2,500 for each board meeting attended, (ii) $2,000 for each committee meeting attended (except that the committee chairman will be paid $3,000 for each meeting attended), (iii) $1,000 for each teleconference board meeting attended, and (iv) $1,000 for each teleconference committee meeting attended (except that the committee chairman will be paid $3,000 for each teleconference committee meeting attended). All directors will receive reimbursement of reasonable out-of-pocket expenses incurred in connection with attendance at meetings of the board of directors. | | Actual amounts are dependent upon the total number of board and committee meetings that each independent director attends. |
|
Liquidation/Listing Stage |
| | |
Real Estate Commissions - KBS Capital Advisors or its affiliates (7) | | For substantial assistance in connection with the sale of properties or other investments, we will pay KBS Capital Advisors or its affiliates 1% of the contract sales price of each property or other investment sold; provided, however, in no event may the real estate commissions paid to KBS Capital Advisors, its affiliates and unaffiliated third parties exceed 6% of the contract sales price. The conflicts committee will determine whether the advisor or its affiliate has provided substantial assistance to us in connection with the sale of an asset. Substantial assistance in connection with the sale of a property includes the advisor’s preparation of an investment package for the property (including a new investment analysis, rent rolls, tenant information regarding credit, a property title report, an environmental report, a structural report and exhibits) or such other substantial services performed by the advisor in connection with a sale. | | Actual amounts are dependent upon the results of our operations; we cannot determine these amounts at the present time. |
| | |
| Subordinated Participation in Net Cash Flows – KBS Capital Advisors (8) | | After investors in our offerings have received a return of their net capital contributions and an 8.0% per year cumulative, noncompounded return, KBS Capital Advisors is entitled to receive 15.0% of our net cash flows, whether from continuing operations, net sale proceeds or otherwise. This fee is payable only if we are not listed on an exchange or the Nasdaq National Market. | | Actual amounts are dependent upon the results of our operations; we cannot determine these amounts at the present time. |
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| | | | |
Form of Compensation
and Recipient
| | Determination of Amount
| | Estimated Amount
for Minimum
Offering/Maximum Offering (1)
|
| | |
Subordinated Incentive Listing Fee – KBS Capital Advisors (8)(9) | | Upon listing of our common stock on a national securities exchange or the Nasdaq National Market, a fee equal to 15.0% of the amount by which (1) the market value of our outstanding stock plus distributions paid by us prior to listing exceeds (2) the sum of the total amount of capital raised from investors and the amount of cash flow necessary to generate an 8.0% per year cumulative, noncompounded return to investors. | | Actual amounts are dependent upon the results of our operations; we cannot determine these amounts at the present time. |
| (1) | The estimated minimum dollar amounts are based on the sale of the minimum of 250,000 shares to the public and the estimated maximum dollar amounts are based on the sale of the maximum of 280,000,000 shares to the public, including 80,000,000 shares through our dividend reinvestment plan. |
| (2) | All or a portion of the selling commissions will not be charged with regard to shares sold to certain categories of purchasers. See “Plan of Distribution.” |
| (3) | After raising at least $2,500,000 in gross offering proceeds from persons who are not affiliated with us or KBS Capital Advisors, we expect to begin incurring some organization and offering expenses directly. After the termination of the primary offering, KBS Capital Advisors has agreed to reimburse us to the extent total organization and offering expenses borne by us exceed 15% of the gross proceeds raised in the primary offering. KBS Capital Advisors will do the same after termination of the offering pursuant to our dividend reinvestment plan. |
| (4) | For purposes of this table, we have assumed that we will fund acquisitions solely from net proceeds from the sale of shares in our primary offering; however, because the acquisition fees we pay our advisor are a percentage of the purchase price of an investment, the acquisition fees will be greater than that shown to the extent we also fund acquisitions through (i) the incurrence of debt (which we expect to represent 50% of the purchase price of our investments if we sell the maximum number of shares offered hereby), (ii) retained cash flow from operations, (iii) issuances of equity in exchange for properties and (iv) proceeds from the sale of shares under our dividend reinvestment plan. |
In addition to the acquisition fee, we will reimburse KBS Capital Advisors for amounts it pays to third parties in connection with the selection, acquisition or development of a property, whether or not we ultimately acquire the property. Under our charter, a majority of the independent directors would have to approve any increase in the acquisition fees payable to our advisor above 0.75% of the cost of the investments. Our charter also limits our ability to purchase property if the total of all acquisition fees and expenses relating to the purchase exceeds 6% of the contract purchase price.
| (5) | KBS Capital Advisors must reimburse us the amount by which our aggregate annual total operating expenses exceed the greater of 2% of our average invested assets or 25% of our net income, unless the conflicts committee has determined that such excess expenses were justified |
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| | based on unusual and non-recurring factors. “Average invested assets” means the average monthly book value of our assets during the 12-month period before deducting depreciation, bad debts or other non-cash reserves. “Total operating expenses” means all expenses paid or incurred by us, as determined under GAAP, that are in any way related to our operation, including advisory fees, but excluding (a) the expenses of raising capital such as organization and offering expenses, legal, audit, accounting, underwriting, brokerage, listing, registration and other fees, printing and other such expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of our stock; (b) interest payments; (c) taxes; (d) non-cash expenditures such as depreciation, amortization and bad debt reserves; (e) reasonable incentive fees based on the gain in the sale of our assets; and (f) acquisition fees, acquisition expenses (including expenses relating to potential acquisitions that we do not close), real estate commissions on the resale of property and other expenses connected with the acquisition, disposition, management and ownership of real estate interests, mortgage loans or other property (including the costs of foreclosure, insurance premiums, legal services, maintenance, repair and improvement of property). |
| (6) | Stock-based awards treated as an expense under GAAP will count against the limit on “total operating expenses” described in note 5 above. Although stock-based awards are likely to only be granted during our operational stage, their value may be linked to the success of our liquidation/listing stage. The limits on incentive fees set forth in our charter, which are described below at “Conflicts of Interest—Certain Conflict Resolution Measures,” do not limit the award of stock-based compensation to an affiliate of our advisor. |
| (7) | Although we are most likely to pay real estate commissions to KBS Capital Advisors or an affiliate in the event of our liquidation, these fees may also be earned during our operational stage. Under our charter, a majority of the independent directors would have to approve any increase in the disposition fees payable to our advisor and its affiliates above 1% of the contract sales price. Our charter also limits the maximum amount of the disposition fees payable to the advisor and its affiliates to 3% of the contract sales price. |
| (8) | To the extent this incentive fee is derived from cash flows other than net sales proceeds, the incentive fee may be limited by the restriction on “total operating expenses” described in note 5 above. Furthermore, upon termination of the advisory agreement, KBS Capital Advisors may be entitled to a similar fee if KBS Capital Advisors would have been entitled to a subordinated participation in net cash flows had the portfolio been liquidated (based on an independent appraised value of the portfolio) on the date of termination. Under our charter, we could not increase these success-based fees without the approval of a majority of our independent directors, and any increase in the subordinated participation in net sale proceeds would have to be reasonable. Our charter provides that an interest in gain from the sale of assets is “presumptively reasonable” if it does not exceed 15% of the balance of net sale proceeds remaining after investors have received a return of their net capital contributions and a 6% per year cumulative, noncompounded return. |
KBS Capital Advisors cannot earn both the subordinated participation in net cash flows and the subordinated incentive listing fee. Any portion of the subordinated participation in net cash flows that KBS Capital Advisors receives prior to our listing will offset the amount otherwise due pursuant to the subordinated incentive listing fee.
| (9) | The market value of our outstanding stock will be calculated based on the average market value of the shares issued and outstanding at listing over the 30 trading days beginning 180 days after the shares are first listed on a stock exchange. In the event the subordinated incentive listing fee |
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| | is earned by KBS Capital Advisors as a result of the listing of the shares, any previous payments of the subordinated participation in net cash flows will offset the amounts due pursuant to the subordinated incentive listing fee, and we will not be required to pay KBS Capital Advisors any further subordinated participation in net cash flows. The subordinated incentive listing fee may be limited by the restriction on “total operating expenses” described in note 5 above. |
STOCK OWNERSHIP
The following table sets forth the beneficial ownership of our common stock as of the date of this prospectus for each person or group that holds more than 5% of our common stock, for each director and executive officer and for our directors and executive officers as a group. To our knowledge, each person that beneficially owns our shares has sole voting and dispositive power with regard to such shares.
| | | | | |
Name of Beneficial Owner (1)
| | Number of Shares
Beneficially Owned (2)
| | Percent of
All Shares
| |
KBS Capital Advisors LLC | | 20,000 | | 100.0 | % |
Peter M. Bren, President | | 20,000 | | 100.0 | |
Charles J. Schreiber, Jr., Chairman of the Board, Chief Executive Officer and Director | | 20,000 | | 100.0 | |
Peter McMillan III, Executive Vice President, Treasurer, Secretary and Director | | 20,000 | | 100.0 | |
Keith D. Hall, Executive Vice President | | 20,000 | | 100.0 | |
Stacie K. Yamane, Chief Financial Officer and Controller | | — | | — | |
Hank Adler, Director | | — | | — | |
Barbara R. Cambon, Director | | — | | — | |
Stuart A. Gabriel, Ph.D., Director | | — | | — | |
| | |
| |
|
|
All directors and executive officers as a group | | 20,000 | | 100.0 | % |
| (1) | The address of each beneficial owner listed is 620 Newport Center Drive, Suite 1300, Newport Beach, California 92660. |
| (2) | As of the date of this prospectus, KBS Capital Advisors owns all of our issued and outstanding stock. KBS Capital Advisors is indirectly owned and controlled by Peter M. Bren, Charles J. Schreiber, Jr., Peter McMillan III and Keith D. Hall. |
CONFLICTS OF INTEREST
We are subject to various conflicts of interest arising out of our relationship with our advisor, KBS Capital Advisors, and its affiliates, some of whom serve as our executive officers and directors. We discuss these conflicts below and conclude this section with a discussion of the corporate governance measures we have adopted to ameliorate some of the risks posed by these conflicts.
Our Affiliates’ Interests in Other KBS Real Estate Programs
General
Upon the commencement of this offering, all of our executive officers and some of our directors will also be executive officers and/or holders of a direct or indirect controlling interest in our advisor, our dealer manager and other KBS investment advisers that are the sponsors of other real estate programs, including programs that have investment objectives that are similar to ours. Through affiliates of our advisor, some of our executive officers and directors also serve as investment advisers to institutional investors in real estate and real estate-related assets. These executive officers and directors will have legal and financial obligations with respect to those programs, entities and investors that are similar to
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their obligations to us. In the future, these executive officers and directors and other affiliates of our advisor may organize other real estate programs, serve as the investment adviser to other investors and acquire for their own account real estate investments that may be suitable for us.
As described in the “Prior Performance Summary,” investment advisers affiliated with Peter M. Bren and Charles J. Schreiber, Jr. have sponsored nine privately offered real estate programs with investment objectives that are similar to ours. Six of these programs are still operating. Conflicts of interest may arise between us and the programs that have not yet been liquidated, between us and future programs and between us and the investors for which a KBS entity serves as an investment adviser.
Allocation of Investment Opportunities
We rely on KBS Capital Advisors and its executive officers and real estate professionals, including Peter M. Bren and Chares J. Schreiber, Jr., to identify suitable investments. Messrs. Bren and Schreiber and other employees of KBS Capital Advisors are also key employees of KBS Realty Advisors and its affiliates, the advisors to the other KBS-sponsored programs and the investment advisers to institutional investors in real estate and real estate-related assets. As such, the other KBS-sponsored programs, especially those that are currently raising offering proceeds, as well as the institutional investors for whom KBS affiliates are serving as investment advisers, rely on many of the same real estate professionals for their investment opportunities. Many investment opportunities that are suitable for us may also be suitable for other KBS programs and investors. When these real estate professionals direct an investment opportunity to any KBS-sponsored program or KBS-advised investor, they, in their sole discretion, will offer the opportunity to the program or investor for which the investment opportunity is most suitable based on the investment objectives, portfolio and criteria of each program or investor. As a result, these KBS real estate professionals could direct attractive investment opportunities to other entities or investors. Our charter disclaims any interest in an investment opportunity known to KBS Capital Advisors or its affiliates or employees that KBS Capital Advisors has not specifically recommended to us. See “Certain Conflict Resolution Measures.”
Joint Ventures with Affiliates
We may enter into joint venture agreements with other KBS-sponsored programs for the acquisition, development or improvement of properties. KBS Capital Advisors, our advisor, and KBS Realty Advisors and its affiliates, the advisors to the other KBS-sponsored programs and affiliated entities, have the same executive officers and key employees and these persons, including Messrs. Bren and Schreiber, will face conflicts of interest in determining which KBS program or other KBS-advised entity should enter into any particular joint venture agreement. These persons may also face a conflict in structuring the terms of the relationship between our interests and the interests of the KBS-affiliated co-venturer and in managing the joint venture. Any joint ventures agreement or transaction between us and a KBS-affiliated co-venturer will not have the benefit of arm’s-length negotiation of the type normally conducted between unrelated co-venturers. The KBS-affiliated co-venturer may have economic or business interests or goals that are or may become inconsistent with our business interests or goals. These co-venturers may thus benefit to our and your detriment.
Competition for Tenants and Others
Conflicts of interest may exist to the extent that we acquire properties in the same geographic areas where other KBS programs or affiliated entities own properties. In such a case, a conflict could arise in the leasing of properties in the event that we and another KBS program or affiliated entity were to compete for the same tenants in negotiating leases, or a conflict could arise in connection with the resale of properties in the event that we and another KBS program or affiliated entity were to attempt to sell
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similar properties at the same time. See “Risk Factors — Risks Related to Conflicts of Interest.” Conflicts of interest may also exist at such time as we or KBS Capital Advisors seek to employ developers, contractors, building managers or other third parties. Our advisor and its affiliates, including the advisor of other KBS programs and affiliated entities, will seek to reduce conflicts that may arise with respect to properties available for sale or rent by making prospective purchasers or tenants aware of all such properties. Our advisor and its affiliates will also seek to reduce conflicts relating to the employment of developers, contractors or building managers by making prospective service providers aware of all properties in need of their services. However, KBS Capital Advisors and its affiliates cannot fully avoid these conflicts because it may establish differing terms for resales or leasing of the various properties or differing compensation arrangements for service providers at different properties.
Allocation of Our Affiliates’ Time
We rely on KBS Capital Advisors and its affiliates and employees for the day-to-day operation of our business. Peter M. Bren and Charles J. Schreiber, Jr., two of our executive officers, are also executive officers of KBS Capital Advisors, our advisor, and KBS Realty Advisors and its affiliates, the advisors of the other KBS programs and the investment advisers to institutional investors in real estate and real estate-related assets. As a result of their interests in other KBS programs, their obligations to other investors and the fact that they have engaged in and they will continue to engage in other business activities, Messrs. Bren and Schreiber will face conflicts of interest in allocating their time among us, KBS Capital Advisors and other KBS programs and activities in which they are involved. In addition, KBS Capital Advisors and KBS Realty Advisors and its affiliates share the same key employees. However, Messrs. Bren and Schreiber believe that KBS Capital Advisors and KBS Realty Advisors and its affiliates have sufficient personnel to fully discharge their responsibilities to the KBS programs and ventures in which they are involved.
Receipt of Fees and Other Compensation by KBS Capital Advisors and its Affiliates
KBS Capital Advisors and its affiliates will receive substantial fees from us, which fees will not be negotiated at arm’s length. These fees could influence our advisor’s advice to us as well as the judgment of affiliates of KBS Capital Advisors, some of whom also serve as our executive officers and directors. Among other matters, these compensation arrangements could affect their judgment with respect to:
| | • | | the continuation, renewal or enforcement of our agreements with KBS Capital Advisors and its affiliates, including the advisory agreement and the dealer-manager agreement; |
| | • | | public offerings of equity by us, which entitle KBS Capital Markets Group to dealer-manager fees and will likely entitle KBS Capital Advisors to increased acquisition and asset-management fees; |
| | • | | property sales, which entitle KBS Capital Advisors to real estate commissions and possible success-based sale fees; |
| | • | | property acquisitions from other KBS-sponsored programs, which might entitle affiliates of KBS Capital Advisors to real estate commissions and possible success-based sale fees in connection with its services for the seller; |
| | • | | property acquisitions from third parties, which entitle KBS Capital Advisors to acquisition fees and asset-management fees; |
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| | • | | borrowings to acquire properties, which borrowings will increase the acquisition and asset-management fees payable to KBS Capital Advisors; |
| | • | | whether and when we seek to list our common stock on a national securities exchange or the Nasdaq National Market, which listing could entitle KBS Capital Advisors to a success-based listing fee; and |
| | • | | whether and when we seek to sell the company or its assets, which sale could entitle KBS Capital Advisors to a success-based fee. |
Fiduciary Duties Owed by Some of Our Affiliates to Our Advisor and Our Advisor’s Affiliates
All of our executive officers and some of our directors are also executive officers, managers and holders of a direct or indirect controlling interest in:
| | • | | KBS Capital Advisors, our advisor; |
| | • | | KBS Capital Markets Group, our dealer manager; and |
| | • | | other KBS-sponsored entities (see the “Prior Performance Summary” section of this prospectus). |
Through KBS-affiliated entities, these persons also serve as the investment advisers to institutional investors in real estate and real estate-related assets. As a result, they owe fiduciary duties to each of these entities, their members and limited partners and these institutional investors, which fiduciary duties may from time to time conflict with the fiduciary duties that they owe to us.
Affiliated Dealer Manager
Since KBS Capital Markets Group, our dealer manager, is an affiliate of KBS Capital Advisors, you will not have the benefit of an independent due diligence review and investigation of the type normally performed by an independent underwriter in connection with the offering of securities. See “Plan of Distribution.”
Certain Conflict Resolution Measures
Conflicts Committee
In order to ameliorate the risks created by conflicts of interest, our charter creates a conflicts committee of our board of directors composed of all of our independent directors. An “independent director” is a person who is not one of our officers or employees or an officer or employee of KBS Capital Advisors or its affiliates and has not been so for the previous two years. Serving as a director of, or having an ownership interest in, another KBS-sponsored program will not, by itself, preclude independent-director status. Our charter authorizes the conflicts committee to act on any matter permitted under Maryland law. Both the board of directors and the conflicts committee must act upon those conflict-of-interest matters that cannot be delegated to a committee under Maryland law. Our charter also empowers the conflicts committee to retain its own legal and financial advisors. Among the matters we expect the conflicts committee to act upon are:
| | • | | the continuation, renewal or enforcement of our agreements with KBS Capital Advisors and its affiliates, including the advisory agreement and the dealer-manager agreement; |
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| | • | | public offerings of securities; |
| | • | | transactions with affiliates; |
| | • | | compensation of our officers and directors who are affiliated with our advisor; |
| | • | | whether and when we seek to list our shares of common stock on a national securities exchange or the Nasdaq National Market; and |
| | • | | whether and when we seek to sell the company or its assets. |
Other Charter Provisions Relating to Conflicts of Interest
In addition to the creation of the conflicts committee, our charter contains many other restrictions relating to conflicts of interest including the following:
Advisor Compensation. The conflicts committee will evaluate at least annually whether the compensation that we contract to pay to KBS Capital Advisors and its affiliates is reasonable in relation to the nature and quality of services performed and whether such compensation is within the limits prescribed by the charter. The conflicts committee will supervise the performance of KBS Capital Advisors and its affiliates and the compensation we pay to them to determine whether the provisions of our compensation arrangements are being carried out. This evaluation will be based on the following factors as well as any other factors deemed relevant by the conflicts committee:
| | • | | the amount of the fees paid to KBS Capital Advisors and its affiliates in relation to the size, composition and performance of our investments; |
| | • | | the success of KBS Capital Advisors in generating appropriate investment opportunities; |
| | • | | the rates charged to other companies, including other REITs, by advisors performing similar services; |
| | • | | additional revenues realized by KBS Capital Advisors and its affiliates through their relationship with us, including whether we pay them or they are paid by others with whom we do business; |
| | • | | the quality and extent of service and advice furnished by KBS Capital Advisors and its affiliates; |
| | • | | the performance of our investment portfolio; and |
| | • | | the quality of our portfolio relative to the investments generated by KBS Capital Advisors and its affiliates for their own account and for their other clients. |
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Under our charter, we can only pay KBS Capital Advisors a real estate commission in connection with the sale of a property if it provides a substantial amount of the services in the effort to sell the property and the commission does not exceed 3% of the sales price of the property. Although our charter limits this commission to 3% of the property sales price, our advisory agreement provides for a 1% fee. Any increase in this fee would require the approval of a majority of the members of our conflicts committee. Moreover, our charter also provides that the commission, when added to all other real estate commissions paid to unaffiliated parties in connection with the sale, may not exceed the lesser of a competitive real estate commission or 6% of the sales price of the property.
Our charter also requires that any gain from the sale of assets that we may pay our advisor or an entity affiliated with our advisor be reasonable. Such an interest in gain from the sale of assets is presumed reasonable if it does not exceed 15% of the balance of the net sale proceeds remaining after payment to common stockholders, in the aggregate, of an amount equal to 100% of the original issue price of the common stock, plus an amount equal to 6% of the original issue price of the common stock per year cumulative. Our advisory agreement sets a higher threshold for payment of such a success-based liquidation fee than that required by our charter. Under the advisory agreement, an incentive fee may be paid only if the stockholders first enjoy an 8% per year cumulative, noncompounded return. Any lowering of the threshold set forth in the advisory agreement would require the approval of a majority of the members of the conflicts committee.
Our charter also limits the amount of acquisition fees and acquisition expenses we can incur to a total of 6% of the contract purchase price for the property or, in the case of a mortgage loan, to 6% of the funds advanced. This limit may only be exceeded if the conflicts committee approves (by majority vote) the fees and expenses and finds the transaction to be commercially competitive, fair and reasonable to us. Although our charter permits combined acquisition fees and expenses to equal 6% of the purchase price, our advisory agreement limits the acquisition fee to 0.75% of the purchase price. Any increase in the acquisition fee stipulated in the advisory agreement would require the approval of a majority of the members of the conflicts committee.
Term of Advisory Agreement.Each contract for the services of our advisor may not exceed one year, although there is no limit on the number of times that we may retain a particular advisor. The conflicts committee or our advisor may terminate our advisory agreement with KBS Capital Advisors without cause or penalty on 60 days’ written notice.
Our Acquisitions. We will not purchase or lease properties in which KBS Capital Advisors, any of our directors or officers or any of their affiliates has an interest without a determination by a majority of the conflicts committee that such transaction is fair and reasonable to us and at a price to us no greater than the cost of the property to the affiliated seller or lessor, unless there is substantial justification for the excess amount. In no event will we acquire any such property at an amount in excess of its current appraised value as determined by an independent expert selected by our independent directors not otherwise interested in the transaction. An appraisal is “current” if obtained within the prior year. If a property with a current appraisal is acquired indirectly from an affiliated seller through the acquisition of securities in an entity that directly or indirectly owns the property, a second appraisal on the value of the securities of the entity shall not be required if (i) the conflicts committee determines that such transaction is fair and reasonable, (ii) the transaction is at a price to us no greater than the cost of the securities to the affiliated seller, (iii) the entity has conducted no business other than the financing, acquisition and ownership of the property and (iv) the price paid by the entity to acquire the property did not exceed the current appraised value.
Mortgage Loans Involving Affiliates. Our charter prohibits us from investing in or making mortgage loans in which the transaction is with KBS Capital Advisors, our directors or officers or any of
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their affiliates, unless an independent expert appraises the underlying property. We must keep the appraisal for at least five years and make it available for inspection and duplication by any of our stockholders. In addition, we must obtain a mortgagee’s or owner’s title insurance policy or commitment as to the priority of the mortgage or the condition of the title. Our charter prohibits us from making or investing in any mortgage loans that are subordinate to any mortgage or equity interest of KBS Capital Advisors, our directors or officers or any of their affiliates.
Other Transactions Involving Affiliates. A majority of the conflicts committee must conclude that all other transactions, including joint ventures, between us and KBS Capital Advisors, any of our officers or directors or any of their affiliates are fair and reasonable to us and on terms and conditions not less favorable to us than those available from unaffiliated third parties.
Limitation on Operating Expenses. KBS Capital Advisors must reimburse us the amount by which our aggregate annual total operating expenses exceed the greater of 2% of our average invested assets or 25% of our net income, unless the conflicts committee has determined that such excess expenses were justified based on unusual and non-recurring factors. “Average invested assets” means the average monthly book value of our assets during the 12-month period before deducting depreciation, bad debts or other non-cash reserves. “Total operating expenses” means all expenses paid or incurred by us, as determined under GAAP, that are in any way related to our operation, including advisory fees, but excluding (a) the expenses of raising capital such as organization and offering expenses, legal, audit, accounting, underwriting, brokerage, listing, registration and other fees, printing and other such expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of our stock; (b) interest payments; (c) taxes; (d) non-cash expenditures such as depreciation, amortization and bad debt reserves; (e) reasonable incentive fees based on the gain from the sale of our assets; and (f) acquisition fees, acquisition expenses, real estate commissions on the resale of property and other expenses connected with the acquisition, disposition, management and ownership of real estate interests, mortgage loans or other property (including the costs of foreclosure, insurance premiums, legal services, maintenance, repair and improvement of property).
Issuance of Options and Warrants to Certain Affiliates. Our charter prohibits the issuance of options or warrants to purchase our capital stock to KBS Capital Advisors, our directors or officers or any of their affiliates (a) on terms more favorable than we offer such options or warrants to the general public or (b) in excess of an amount equal to 10% of our outstanding capital stock on the date of grant.
Repurchase of Our Shares. Our charter prohibits us from paying a fee to KBS Capital Advisors or our directors or officers or any of their affiliates in connection with our repurchase of our capital stock.
Loans.We will not make any loans to KBS Capital Advisors or to our directors or officers or any of their affiliates. In addition, we will not borrow from these affiliates unless a majority of the conflicts committee approves the transaction as being fair, competitive and commercially reasonable and no less favorable to us than comparable loans between unaffiliated parties. These restrictions on loans will only apply to advances of cash that are commonly viewed as loans, as determined by the board of directors. By way of example only, the prohibition on loans would not restrict advances of cash for legal expenses or other costs incurred as a result of any legal action for which indemnification is being sought nor would the prohibition limit our ability to advance reimbursable expenses incurred by directors or officers or KBS Capital Advisors or its affiliates.
Reports to Stockholders. Our charter requires that we prepare an annual report and deliver it to our stockholders within 120 days after the end of each fiscal year. Among the matters that must be included in the annual report or included in a proxy statement delivered with the annual report are:
| | • | | the ratio of the costs of raising capital during the year to the capital raised; |
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| | • | | the aggregate amount of advisory fees and the aggregate amount of other fees paid to KBS Capital Advisors and any affiliates of KBS Capital Advisors by us or third parties doing business with us during the year; |
| | • | | our total operating expenses for the year stated as a percentage of our average invested assets and as a percentage of our net income; |
| | • | | a report from the conflicts committee that our policies are in the best interests of our common stockholders and the basis for such determination; and |
| | • | | a separately stated, full disclosure of all material terms, factors and circumstances surrounding any and all transactions involving us and our advisor, a director or any affiliate thereof during the year, which disclosure has been examined and commented upon in the report by the conflicts committee with regard to the fairness of such transactions. |
Voting of Shares Owned by Affiliates. Before becoming a stockholder, KBS Capital Advisors, our directors and officers and their affiliates must agree not to vote their shares regarding (i) the removal of any of these affiliates or (ii) any transaction between them and us.
Ratification of Charter Provisions. Our board of directors and the conflicts committee have reviewed and ratified our charter by the vote of a majority of their respective members, as required by our charter.
Allocation of Investment Opportunities
Many investment opportunities that are suitable for us may also be suitable for other KBS-sponsored programs, as well as for the institutional investors for whom KBS Realty Advisors and its affiliates serve as investment advisers. Our advisor, KBS Capital Advisors, and KBS Realty Advisors and its affiliates share the same executive officers and key employees. When these KBS real estate professionals direct an investment opportunity to any KBS-sponsored program or one of the institutional investors, they, in their sole discretion, will have to determine the program or investor for which the investment opportunity is most suitable based on the investment objectives, portfolio and criteria of each program or investor. Our advisory agreement with KBS Capital Advisors requires that this determination be made in a manner that is fair without favoring any other KBS-sponsored program or investor. The factors that the KBS real estate professionals will consider when determining the KBS-sponsored program or investor for which an investment opportunity would be the most suitable are the following:
| | • | | the investment objectives and criteria of each program or investor; |
| | • | | the cash requirements of each program or investor; |
| | • | | the effect of the acquisition both on diversification of each program’s or investor’s investments by type of commercial property and geographic area and on diversification of the tenants of its properties; |
| | • | | the policy of each program or investor relating to leverage of properties; |
| | • | | the anticipated cash flow of the property to be acquired; |
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| | • | | the income tax effects of the purchase on each program or investor; |
| | • | | the size of the investment; and |
| | • | | the amount of funds available to each program or investor and the length of time such funds have been available for investment. |
If a subsequent event or development, such as a delay in the closing of a property or a delay in the construction of a property, causes any investment, in the opinion of the KBS real estate professionals, to be more appropriate for another KBS program or investor, they may offer the investment to another KBS program or investor.
Our advisory agreement with KBS Capital Advisors requires that KBS Capital Advisors inform the conflicts committee each quarter of the investments that have been purchased by other KBS programs and investors for whom KBS Realty Advisors or one of its affiliates serves as an investment adviser so that the conflicts committee can evaluate whether we are receiving our fair share of opportunities. KBS Capital Advisors’ success in generating investment opportunities for us and the fair allocation of opportunities among KBS programs and investors are important factors in the conflicts committee’s determination to continue or renew our arrangements with KBS Capital Advisors and its affiliates. The conflicts committee has a duty to ensure that favorable investment opportunities are not disproportionately allocated to other KBS-sponsored programs and investors. Our charter disclaims any interest in an investment opportunity known to KBS Capital Advisors or its affiliates that KBS Capital Advisors has not specially recommended to us.
INVESTMENT OBJECTIVES AND CRITERIA
General
We intend to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. Our primary investment objectives are:
| | • | | to provide you with attractive and stable cash dividends and |
| | • | | to preserve and return your capital contribution. |
We will also seek to realize growth in the value of our investments by timing property sales to maximize asset value.
We may return all or a portion of your capital contribution in connection with the sale of the company or the properties we will acquire. Alternatively, you may be able to obtain a return of all or a portion of your capital contribution in connection with the sale of your shares.
We will seek to list our shares of common stock if and when our independent directors believe listing would be in the best interests of our stockholders. If we do not list our shares of common stock on a national securities exchange or on the Nasdaq National Market by November 2012, our charter requires that we either:
| | • | | seek stockholder approval of the liquidation of the company; or |
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| | • | | if a majority of the conflicts committee determines that liquidation is not then in the best interests of our stockholders, postpone the decision of whether to liquidate the company. |
If a majority of the conflicts committee does determine that liquidation is not then in the best interests of our stockholders, our charter requires that the conflicts committee revisit the issue of liquidation at least annually. Further postponement of listing or stockholder action regarding liquidation would only be permitted if a majority of the conflicts committee again determined that liquidation would not be in the best interest of our stockholders. If we sought and failed to obtain stockholder approval of our liquidation, our charter would not require us to list or liquidate, and we could continue to operate as before. If we sought and obtained stockholder approval of our liquidation, we would begin an orderly sale of our properties and other assets. The precise timing of such sales would take account of the prevailing real estate and financial markets, the economic conditions in the submarkets where our properties are located and the federal income tax consequences to our stockholders. In making the decision to apply for listing of our shares, our directors will try to determine whether listing our shares or liquidating our assets will result in greater value for stockholders.
Our board may revise our investment policies, which we describe in more detail below, without the approval of our stockholders. Our conflicts committee will review our investment policies at least annually to determine whether our policies are in the best interests of our stockholders. Our charter requires that the conflicts committee include the basis for its determination in its minutes and in an annual report delivered to our stockholders.
Acquisition and Investment Policies
Primary Investment Focus
We intend to focus our investment activities on, and use the proceeds of this offering principally for, the acquisition of a diverse portfolio of commercial properties located in large metropolitan areas in the United States. As explained below, we intend to diversify our portfolio by property type, geographic region, investment size and investment risk with the goal of attaining a portfolio of income-producing properties that provide attractive and stable returns to our investors.
The primary property types in which we intend to invest are as follows (in no order of priority):
| | • | | office properties — including low-rise, mid-rise and high-rise office buildings and office parks in urban and suburban locations, especially those that are in or near central business districts or have access to transportation; |
| | • | | retail properties— including neighborhood, community, power and lifestyle shopping centers and focusing on properties located in or nearby populated residential areas that have, or have the ability to attract, strong anchor tenants; and |
| | • | | industrial properties — including warehouse and distribution facilities, office/warehouse flex properties, research and development properties and light industrial properties. |
We will generally hold fee title or a long-term leasehold estate in the properties we acquire, although we also intend to invest in or acquire operating companies or other entities that own and operate assets that meet our investment objectives. We will make investments in other entities when we consider it more efficient to acquire an entity that already owns assets meeting our investment objectives than to acquire such assets directly. We may also participate with other entities (including non-affiliated entities) in
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property ownership through joint ventures, limited liability companies, partnerships and other types of common ownership.
Though we are not limited as to the specific geographic areas where we may conduct our operations, we expect to purchase properties in large metropolitan areas located in the United States. We will focus on markets where KBS affiliates have an established market presence, market knowledge and access to potential investments, as well as an ability to direct property management and leasing operations efficiently. We will review and change our target markets periodically in response to changing market opportunities and to maintain a diverse portfolio. Our initial target markets are:
| | | | |
Western Region
| | Central Region
| | Eastern Region
|
Denver Los Angeles/ Orange County Phoenix Riverside/ San Bernardino Sacramento San Diego San Francisco Bay Area Seattle | | Austin Chicago Dallas Houston Minneapolis | | Atlanta Boston Greater New York Area Greater Philadelphia Area Northern New Jersey Northern Virginia Washington, D.C. |
Economic and real estate market conditions vary widely both region to region and among different property types within each region and submarket, and we intend to spread our investments both across these regions and among the submarkets within these regions.
We also intend to diversify by investment size. We expect that our investments will typically range in size from $10 million to $100 million; however, we may make investments outside of this range. For example, we may make investments for less than $10 million if the acquired property will complement our existing portfolio. Further, we may invest more than $100 million in a single property if we believe that property will help us meet our investment objectives. We do not expect that we will invest more than $200 million in any single property.
We also plan to diversify our portfolio by expected investment risk. We expect to allocate approximately 70% of our portfolio to core investments, which are generally lower risk, existing properties with at least 80% occupancy and minimal near-term lease rollover. We will seek to invest approximately 30% of our assets in enhanced-return properties, which are higher-yield and higher-risk investments that our advisor will actively manage and seek to reposition. Examples of enhanced-return properties that we will seek to acquire and reposition include: properties with moderate vacancies or near-term lease rollovers; poorly managed and positioned properties; properties owned by distressed sellers and built-to-suit properties. Once stabilized, we will either hold enhanced-return properties as core investments or sell them. Whether a core or enhanced-return property, each of our potential investments will be subject to our advisor’s stringent underwriting standards (discussed below under “—Investment Decisions”) and the approval of our independent directors.
Though these are the diversification guidelines within which we will work, we believe that we are most likely to meet our investment objectives through the careful selection and underwriting of individual assets. When making an acquisition, we will emphasize the performance and risk characteristics of that individual investment and how that investment will fit with our portfolio-level performance objectives, the other assets in our portfolio and the returns and risks of available investment alternatives. In other words, we will not forgo a good investment opportunity because it does not precisely meet one of our diversification guidelines, but we will attempt to construct a portfolio that produces stable and attractive returns by spreading risk across different real estate investments.
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We generally intend to hold both our core and enhanced-return properties for five to seven years, which we believe is the optimal period to enable us to capitalize on the potential for increased income and capital appreciation of properties. However, economic and market conditions may influence us to hold our investments for different periods of time.
Other Possible Investments
Although we expect that most of our property acquisitions will be of the type described above, we may make other investments. For example, to the extent that our advisor determines that it is advantageous for us to make or invest in mortgage loans, we will also seek to obtain fixed income through the receipt of mortgage payments on mortgage loans, though we do not expect that we would make more than 25% of our investments in mortgage loans. To the extent permissible under the REIT rules, we may invest in real estate common and preferred equities, mortgage-backed securities and other forms of mortgage debt and certain illiquid securities, including mezzanine loans and bridge loans. We may also acquire properties that are under development or construction, mixed-use properties, undeveloped land, options to purchase properties and other real estate-related assets. We may 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 us a sum necessary to reach the specified cash flow level, subject in some cases to negotiated dollar limitations. In fact, we may invest in whatever types of interests in real estate that we believe are in our best interests.
Although we can purchase any type of interest in real estate, our charter does limit certain types of investments. Unless our charter is amended, we will not:
| | • | | invest more than 10% of our total assets in unimproved property or mortgage loans on unimproved property, which we define as property not acquired for the purpose of producing rental or other operating income or on which there is no development or construction in progress or planned to commence within one year; |
| | • | | make or invest in mortgage loans unless an appraisal is obtained concerning the underlying property, except for those mortgage loans insured or guaranteed by a government or government agency; |
| | • | | make or invest in mortgage loans, including construction loans, on any one property if the aggregate amount of all mortgage loans on such property would exceed an amount equal to 85% of the appraised value of such property as determined by appraisal, unless substantial justification exists for exceeding such limit because of the presence of other underwriting criteria; |
| | • | | acquire publicly traded equity interests in another issuer, unless a majority of the conflicts committee approves such investment as being fair, competitive and commercially reasonable; |
| | • | | invest in real estate contracts of sale, otherwise known as land sale contracts, unless the contract is in recordable form and is appropriately recorded in the chain of title; or |
| | • | | invest in commodities or commodity futures contracts, except for futures contracts when used solely for the purpose of hedging in connection with our ordinary business of investing in real estate assets and mortgages. |
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We do not expect to invest in properties located outside of the United States or in single-purpose properties, such as golf courses or specialized manufacturing buildings. We also do not intend to make loans to other persons (other than the mortgage loans described below), to underwrite securities of other issuers or to engage in the purchase and sale of any types of investments other than interests in real estate and real estate-related assets.
Investment Decisions and Asset Management: The KBS Approach
Within our investment policies and objectives, our advisor, KBS Capital Advisors, will have substantial discretion with respect to the selection of specific investments and the purchase and sale of our assets, subject to the approval of our conflicts committee. Our conflicts committee will review our investment policies at least annually to determine whether our investment policies continue to be in the best interests of our stockholders.
KBS Capital Advisors believes that successful real estate investment requires the implementation of strategies that permit favorable purchases, effective asset and property management and timely disposition of those assets. As such, KBS Capital Advisors has developed a disciplined investment approach that combines the experience of its team of real estate professionals with a structure that emphasizes thorough market research, stringent underwriting standards and an extensive down-side analysis of the risks of each investment. The KBS approach also includes active and aggressive management of each asset acquired. KBS Capital Advisors believes that active management is critical to creating value. Our advisor will also develop a well-defined exit strategy for each investment we make. Specifically, our advisor will assign a sale date to each asset we acquire prior to its purchase as part of the original business plan for the asset. KBS Capital Advisors will then continually re-evaluate the exit strategy of each asset in response to the performance of the individual asset, market conditions and our overall portfolio objectives to determine the optimal time to sell the asset.
KBS Capital Advisors’ senior executives, Messrs. Bren and Schreiber, each average over 30 years of real estate experience. Messrs. Bren and Schreiber will work together with their team of real estate professionals in the identification, acquisition and management of our investments. The senior real estate professionals employed by KBS Capital Advisors average over 20 years of direct real estate experience. Each of them has been through multiple real estate cycles in their careers. These seasoned professionals have the expertise gained through hands-on experience in acquisitions, asset management, dispositions, development, leasing, property management and portfolio management.
In an effort to both find better investment opportunities and enhance the performance of those investments, KBS Capital Advisors will utilize a market focused structure. KBS Capital Advisors has divided the country into three regions: the Eastern, Central and Western United States. Each region has a regional president who is responsible for executing our investment strategy and actively managing the asset managers in that region. Asset managers are typically responsible for investments in only a few markets, which allows them to have in-depth knowledge of each market for which they are responsible. This focus also allows the asset managers to establish networks of relationships with each market’s leasing and investment brokers and owners. We believe this regionally aligned organization that emphasizes local market knowledge provides better investment selection at acquisition, quicker lease-up of vacant space, better investment operating performance and more timely execution of a sale.
To execute KBS Capital Advisors’ disciplined investment approach, a team of our advisor’s real estate professionals takes responsibility for the business plan of each investment. The following practices summarize KBS Capital Advisors’ investment approach:
| | • | | National Market Research - The investment team extensively researches the acquisition and underwriting of each transaction, utilizing both “real time” market data and the transactional knowledge and experience of KBS Capital Advisors’ network of professionals. |
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| | • | | Underwriting Discipline - KBS Capital Advisors follows a tightly controlled and managed process to examine all elements of a potential investment, including, with respect to real property, its location, income-producing capacity, prospects for long-range appreciation, income tax considerations and liquidity. Only those real estate assets meeting our investment criteria will be accepted for inclusion in our portfolio. In an effort to keep an asset in compliance with those standards, the underwriting team remains involved through the investment life cycle of the asset and consults with the other KBS professionals responsible for the asset. This team of experts reviews and develops comprehensive reports for each asset throughout the holding period. |
| | • | | Risk Management - Risk management is a fundamental principle in our advisor’s construction of portfolios and in the management of each investment. Diversification of portfolios by property type and geographic location is critical to controlling risk. Operating or performance risks arise at the investment level and often require real estate operating experience to cure. KBS Capital Advisors’ senior management continuously reviews the operating performance of investments against projections and provides the oversight necessary to detect and resolve issues as they arise. |
| | • | | Asset Management - Prior to the purchase of an individual asset or portfolio, the asset managers work closely with the regional president and the acquisition and underwriting teams to develop an asset business strategy. This is a forecast of the action items to be taken and the capital needed to achieve the anticipated returns. KBS Capital Advisors reviews asset business strategies quarterly to anticipate changes or opportunities in the market during a given phase of a real estate cycle. KBS Capital Advisors designed this process to allow for realistic yet aggressive enhancement of value throughout the investment period. |
Conditions to Closing Our Acquisitions
Our advisor will perform a diligence review on each property that we purchase. As part of this review, our advisor will obtain an environmental site assessment for each proposed acquisition (which at a minimum includes a Phase I assessment). We will not close the purchase of any property unless we are generally satisfied with the environmental status of the property. All of our property acquisitions will also be supported by an appraisal prepared by a competent, independent appraiser who is a member-in-good standing of the Appraisal Institute. Our investment policy currently provides that the purchase price of each property will not exceed its appraised value at the time of our acquisition of the property. Appraisals, however, are estimates of value and should not be relied upon as measures of true worth or realizable value. We will also generally seek to condition our obligation to close the purchase of any investment on the delivery of certain documents from the seller or developer. Such documents include, where available:
| | • | | plans and specifications; |
| | • | | evidence of marketable title, subject to such liens and encumbrances as are acceptable to KBS Capital Advisors; |
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| | • | | title insurance policies; and |
| | • | | financial statements covering recent operations of properties having operating histories. |
Investing in and Originating Mortgage Loans and Other Real Estate-Related Investments
While we expect to invest primarily in real properties, we may also invest in mortgage loans and other real estate-related investments. We may invest in first and second mortgages, convertible mortgages, wraparound mortgage loans, construction mortgage loans on real property and mortgage loans on leasehold interests. We may originate, service or warehouse mortgages, though we have no present intent to do so. To the extent permitted under the REIT rules, we may also invest in: (i) equity securities such as common stocks, preferred stocks and convertible preferred securities of real estate companies; (ii) debt securities such as mortgage-backed securities, commercial mortgages, mortgage loan participations and debt securities issued by other real estate companies; and (iii) certain types of illiquid securities not actively traded on the open market that may help us reach our diversification and other investment objectives. These illiquid securities may include, but are not limited to, mezzanine loans and bridge loans. The mezzanine loans in which we may invest may take the form of subordinated loans secured by second mortgages on the underlying real property or loans secured by a pledge of the ownership interests of either the entity owning the real property or the entity that owns the interest in the entity owning the real property.
Second mortgages are secured by second deeds of trust on real property that is already subject to prior mortgage indebtedness, in an amount which, when added to the existing indebtedness, does not generally exceed 75% of the appraised value of the mortgage property. We may also invest in convertible mortgages if our directors conclude that we may benefit from the cash flow or any appreciation in the value of the subject property. Such mortgages are similar to equity participations. A wraparound mortgage loan is secured by a wraparound deed of trust on a real property that is already subject to prior mortgage indebtedness, in an amount which, when added to the existing indebtedness, does not generally exceed 75% of the appraised value of the mortgage property. A wraparound loan is one or more junior mortgage loans having a principal amount equal to the outstanding balance under the existing mortgage loan, plus the amount actually to be advanced under the wraparound mortgage loan. Under a wraparound loan, we would generally make principal and interest payments on behalf of the borrower to the holders of the prior mortgage loans.
Construction loans are loans made for either original development or renovation of property. Construction loans in which we would generally consider an investment would be secured by first deeds of trust on real property for terms of six months to two years. Loans on leasehold interests are secured by an assignment of the borrower’s leasehold interest in the particular real property. These loans are generally for terms of six months to 15 years. The leasehold interest loans are either amortized over a period that is shorter than the lease term or have a maturity date prior to the date the lease terminates. These loans would generally permit us to cure any default under the lease. Mortgage participation investments are investments in partial interests of mortgages of the type described above that are made and administered by third-party mortgage lenders.
We will not make or invest in mortgage loans unless we obtain an appraisal concerning the underlying property from a certified independent appraiser, except for mortgage loans insured or guaranteed by a government or government agency. We will maintain each appraisal in our records for at least five years and will make it available during normal business hours for inspection and duplication by any stockholder at such stockholder’s expense. In addition to the appraisal, we will seek to obtain a customary lender’s title insurance policy or commitment as to the priority of the mortgage or condition of the title.
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We will not make or invest in mortgage loans on any one property if the aggregate amount of all mortgage loans outstanding on the property, including our borrowings, would exceed an amount equal to 85% of the appraised value of the property, unless we find substantial justification due to the presence of other underwriting criteria. We may find such justification in connection with the purchase of mortgage loans in cases in which we believe there is a high probability of our foreclosure upon the property in order to acquire the underlying assets and in which the cost of the mortgage loan investment does not exceed the appraised value of the underlying property. Such mortgages may or may not be insured or guaranteed by the Federal Housing Administration, the Veterans Administration or another third party.
In evaluating prospective mortgage loan investments, our advisor will consider factors such as the following:
| | • | | the ratio of the amount of the investment to the value of the property by which it is secured; |
| | • | | the property’s potential for capital appreciation; |
| | • | | expected levels of rental and occupancy rates; |
| | • | | current and projected cash flow of the property; |
| | • | | potential for rental increases; |
| | • | | the degree of liquidity of the investment; |
| | • | | the geographic location of the property; |
| | • | | the condition and use of the property; |
| | • | | the property’s income-producing capacity; |
| | • | | the quality, experience and creditworthiness of the borrower; and |
| | • | | general economic conditions in the area where the property is located. |
We may originate loans from mortgage brokers or personal solicitations of suitable borrowers, and we may purchase existing loans originated by other lenders. Our advisor will evaluate all potential mortgage loan investments to determine if the security for the loan and the loan-to-value ratio meets our investment criteria and objectives. An officer, manager, agent or employee of our advisor will inspect the property during the loan approval process. We do not expect to make or invest in mortgage loans with a maturity of more than ten years from the date of our investment and anticipate that most loans will have a term of five years. Most loans that we will consider for investment would provide for monthly payments of interest and some may also provide for principal amortization, although we expect that most of the loans in which we will invest will provide for payments of interest only during the loan term and a payment of principal in full at the end of the loan term.
Though we do not have any policies limiting the portion of our assets that may be invested in construction loans, loans secured by leasehold interests and second and wraparound mortgage loans, we recognize that these types of loans are riskier than first deeds of trust or first priority mortgages on income-producing, fee-simple properties, and we expect to minimize the amount of these types of loans in
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our portfolio. Our advisor will evaluate the fact that these types of loans are riskier in determining the rate of interest on these loans.
Our mortgage loan investments may be subject to regulation by federal, state and local authorities and subject to laws and judicial and administrative decisions imposing various requirements and restrictions, including, among other things, regulating credit granting activities, establishing maximum interest rates and finance charges, requiring disclosure to customers, governing secured transactions and setting collection, repossession and claims handling procedures and other trade practices. In addition, certain states have enacted legislation requiring the licensing of mortgage bankers or other lenders, and these requirements may affect our ability to effectuate our proposed investments in mortgage loans. Commencement of operations in these or other jurisdictions may be dependent upon a finding of our financial responsibility, character and fitness. We may determine not to make mortgage loans in any jurisdiction in which the regulatory authority believes that we have not complied in all material respects with applicable requirements.
We expect to invest principally in a diverse portfolio of commercial properties; however, to the extent that our advisor determines that it is advantageous for us to make or invest in mortgage loans, we will also seek to obtain fixed income through the receipt of payments on mortgage loans. If we do invest in mortgage loans, we do not expect that we would make more than 25% of our investments in mortgage loans. Our charter does not limit the amount of gross offering proceeds that we may apply to mortgage loan investments. Our charter also does not place any limit or restriction on:
| | • | | the percentage of our assets that may be invested in any type of mortgage or in any single mortgage; or |
| | • | | the types of properties subject to mortgages in which we may invest. |
When determining whether to make investments in mortgage loans and real estate-related securities, we will consider such factors as: positioning the overall portfolio to achieve an optimal mix of real property and real estate-related investments; the diversification benefits of the mortgage loans or securities relative to the rest of the portfolio; the potential for the investment to deliver high current income and attractive risk-adjusted total returns; and other factors considered important to meeting our investment objectives.
Development and Construction of Properties
Although we expect that we will invest primarily in properties that have operating histories or whose construction is complete, from time to time we may acquire properties that are under development or construction or invest in undeveloped land. We will also acquire enhanced-return properties. Enhanced-return properties include properties that need to be repositioned, which may entail minor or even major construction activity. Construction and development activities will expose us to risks such as cost overruns, carrying costs of projects under construction and development, our builder’s ability to build in conformity with plans and specifications, availability and costs of materials and labor, our inability to obtain tenants, weather conditions and government regulation. In connection with our investment in development and construction properties or in undeveloped land, we may or may not obtain rent-up clauses, cash-flow guarantees or surety bonds from the property seller.
Tenant Improvements
We anticipate that tenant improvements required at the time of our acquisition of a property will be funded from our offering proceeds. However, at such time as a tenant of one of our properties does not
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renew its lease or otherwise vacates its space in one of our buildings, it is likely that, in order to attract new tenants, we will be required to expend substantial funds for tenant improvements and tenant refurbishments to the vacated space.
Terms of Leases
We expect that the vast majority of the leases we enter will provide for tenant reimbursement of operating expenses. Operating expenses typically include real estate taxes, special assessments, insurance, utilities, common area maintenance and some building repairs. We also intend to include provisions in our leases that increase the amount of base rent payable at various points during the lease term and/or provide for the payment of additional rent calculated as a percentage of a tenant’s gross sales above predetermined thresholds. However, the terms and conditions of any leases we enter with respect to the properties we acquire may vary substantially from those described. To the extent material to a decision to purchase shares in this offering, we will describe the terms of leases on properties we acquire by means of a supplement to this prospectus.
Tenant Creditworthiness
We will execute new tenant leases and tenant lease renewals, expansions and extensions with terms dictated by the current submarket conditions and the verifiable creditworthiness of each particular tenant. We will use a number of industry credit rating services to determine the creditworthiness of potential tenants and any personal guarantor or corporate guarantor of each potential tenant. The reports produced by these services will be compared to the relevant financial data collected from these parties before consummating a lease transaction. Relevant financial data from potential tenants and guarantors include income statements and balance sheets for the current year and for prior periods, net worth or cash flow statements of guarantors and other information we deem relevant. Third-party brokers will handle the lease-up of our properties with the supervision, support and assistance of the KBS Capital Advisors asset manager that is responsible for managing the lease-up and operation of the property through its sale.
Joint Venture Investments
We may enter into joint ventures, partnerships and other co-ownership arrangements or participations for the purpose of obtaining interests in real properties and other real estate investments. We may also enter into joint ventures for the development or improvement of properties. Joint venture investments permit us to own interests in large properties without unduly restricting the diversity of our portfolio. In determining whether to invest in a particular joint venture, KBS Capital Advisors will evaluate the real estate assets that such joint venture owns or is being formed to own under the same criteria described elsewhere in this prospectus for the selection of our investments.
KBS Capital Advisors will also evaluate the potential joint venture partner as to its financial condition, operating capabilities and integrity. We may enter into joint ventures with third parties or other KBS-sponsored programs; however, we may only enter into joint ventures with other KBS programs if our conflicts committee approves the transaction as being fair and reasonable to us. At such time during the term of this offering that KBS Capital Advisors believes that there is a reasonable probability that we will enter into a material joint venture with another KBS program for the acquisition of a specific property, we will supplement this prospectus to disclose the terms of such investment transaction. You should not rely upon such initial disclosure of any proposed transaction as an assurance that we will ultimately consummate the proposed transaction or that the information we provide in any supplement to this prospectus concerning any proposed transaction will not change after the date of the supplement.
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We have not established the specific terms we will require in the joint venture agreements we may enter. Instead, we will establish the terms with respect to any particular joint venture agreement on a case-by-case basis after our board of directors considers all of the facts that are relevant, such as the nature and attributes of our other potential joint venture partners, the proposed structure of the joint venture, the nature of the operations, the liabilities and assets associated with the proposed joint venture and the size of our interest when compared to the interests owned by other partners in the venture. With respect to any joint venture we enter, we expect to consider the following types of concerns and safeguards:
| | • | | Our ability to manage and control the joint venture. — We will consider whether we should obtain certain approval rights in joint ventures we do not control. For proposed joint ventures in which we are to share control with another entity, we will consider the procedures to address decisions in the event of an impasse. |
| | • | | Our ability to exit a joint venture. — We consider requiring buy/sell rights, redemption rights or forced liquidation rights. |
| | • | | Our ability to control transfers of interests held by other partners to the venture. — We will consider requiring consent provisions, a right of first refusal and/ or forced redemption rights in connection with transfers. |
Borrowing Policies
We may incur indebtedness in the form of bank borrowings, purchase money obligations to the sellers of properties we purchase and publicly and privately-placed debt instruments or financings from institutional investors or other lenders. This indebtedness may be unsecured or secured by mortgages or other interests in our properties, or may be limited to the particular property to which the indebtedness relates. We may use borrowing proceeds to finance acquisitions of new properties or assets, to pay for capital improvements, repairs or tenant build-outs, to refinance existing indebtedness, to pay dividends or to provide working capital. The form of our indebtedness may be long-term or short-term, fixed or floating rate or in the form of a revolving credit facility. KBS Capital Advisors will seek to obtain financing on our behalf on the most favorable terms available.
We intend to focus our investment activities on obtaining a diverse portfolio of investment properties. Careful use of debt will help us to achieve our diversification goals because we will have more funds available for investment. We expect that once we have fully invested the proceeds of this offering, our debt financing will be approximately 50% of the cost of our real estate investments (before deducting depreciation or other non-cash reserves) plus the value of our other assets. There is no limitation on the amount we may borrow for the purchase of any single property. Our charter limits our borrowings to 75% of the cost (before deducting depreciation or other non-cash reserves) of all our assets; however, we may exceed that limit if a majority of the conflicts committee approves each borrowing in excess of our charter limitation and we disclose such borrowing to our stockholders in our next quarterly report with an explanation from the conflicts committee of the justification for the excess borrowing. We do not intend to exceed the leverage limit in our charter except in the early stages of our development when the costs of our investments are most likely to exceed our net offering proceeds. See “Plan of Operation—Liquidity and Capital Resources.”
We expect our liability for the repayment of indebtedness to be limited to the value of the property or properties securing the liability and the rents or profits derived therefrom; however, lenders may have recourse to assets not securing the repayment of the indebtedness. To the extent that we do not obtain mortgage loans on our properties, our ability to acquire additional properties will be restricted.
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When interest rates on mortgage loans are high or financing is otherwise unavailable on a timely basis, we may purchase certain properties for cash with the intention of obtaining a mortgage loan for a portion of the purchase price at a later time. For a discussion of the risks associated with the use of debt, see “Risk Factors — Risks Associated with Debt Financing.”
Except with respect to the borrowing limits contained in our charter, we may reevaluate and change our debt policy in the future without a stockholder vote. Factors that we would consider when reevaluating or changing our debt policy include: then-current economic conditions, the relative cost of debt and equity capital, any acquisition opportunities, the ability of our properties to generate sufficient cash flow to cover debt service requirements and other similar factors. Further, we may increase or decrease our ratio of debt to book value in connection with any change of our borrowing policies.
We will not borrow from our advisor or its affiliates to purchase properties or make other investments unless a majority of the conflicts committee approves the transaction as being fair, competitive and commercially reasonable and no less favorable to us than comparable loans between unaffiliated parties.
Disposition Policies
We intend to hold our properties and other investments for an extended period, typically five to seven years, which we believe is the optimal period to enable us to capitalize on the potential for increased income and capital appreciation of our assets. Our advisor will develop a well-defined exit strategy for each investment we make. Specifically, our advisor will assign a sell date to each asset we acquire prior to its purchase as part of the original business plan for the asset. KBS Capital Advisors will continually perform a hold-sell analysis on each asset in order to determine the optimal time to sell the asset and generate a strong return for you. Periodic reviews of each asset will focus on the remaining available value enhancement opportunities for the asset and the demand for the asset in the marketplace. Economic and market conditions may influence us to hold our investments for different periods of time. We may sell an asset before the end of the expected holding period if we believe that market conditions and property positioning have maximized the asset’s value to us or the sale of the asset would otherwise be in the best interests of our stockholders.
If we do not list our shares of common stock on a national securities exchange or on the Nasdaq National Market by November 2012, our charter requires that we seek stockholder approval of the liquidation of the company, unless a majority of the conflicts committee determines that liquidation is not then in the best interests of our stockholders. If a majority of the conflicts committee does determine that liquidation is not then in the best interests of our stockholders, our charter requires that the conflicts committee revisit the issue of liquidation at least annually. Further postponement of listing or stockholder action regarding liquidation would only be permitted if a majority of the conflicts committee again determined that liquidation would not be in the best interest of our stockholders. If we sought and failed to obtain stockholder approval of our liquidation, our charter would not require us to list or liquidate, and we could continue to operate as before. If we sought and obtained stockholder approval of our liquidation, we would begin an orderly sale of our properties and other assets. The precise timing of such sales would take account of the prevailing real estate and financial markets, the economic conditions in the submarkets where our properties are located and the federal income tax consequences to our stockholders. In making the decision to apply for listing of our shares, our directors will try to determine whether listing our shares or liquidating our assets will result in greater value for our stockholders. See the discussion above under “Investment Objectives and Criteria — General.”
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Charter-imposed Investment Limitations
Our charter places numerous limitations on us with respect to the manner in which we may invest our funds or issue securities. These limitations cannot be changed unless our charter is amended, which requires approval of our stockholders. Unless our charter is amended, we will not:
| | • | | borrow in excess of 75% of the aggregate cost (before deducting depreciation or other non-cash reserves) of all assets owned by us, unless approved by a majority of the conflicts committee; |
| | • | | invest more than 10% of our total assets in unimproved property or mortgage loans on unimproved property, which we define as property not acquired for the purpose of producing rental or other operating income or on which there is no development or construction in progress or planned to commence within one year; |
| | • | | make or invest in mortgage loans unless an appraisal is obtained concerning the underlying property, except for those mortgage loans insured or guaranteed by a government or government agency; |
| | • | | make or invest in mortgage loans, including construction loans, on any one property if the aggregate amount of all mortgage loans on such property would exceed an amount equal to 85% of the appraised value of such property as determined by appraisal, unless substantial justification exists for exceeding such limit because of the presence of other underwriting criteria; |
| | • | | make an investment in a property or mortgage loan if the related acquisition fees and acquisition expenses are not reasonable or exceed 6% of the purchase price of the property or, in the case of a mortgage loan, 6% of the funds advanced, provided that the investment may be made if a majority of the conflicts committee determines that the transaction is commercially competitive, fair and reasonable to us; |
| | • | | acquire publicly traded equity interests in another issuer, unless a majority of the conflicts committee approves such investment as being fair, competitive and commercially reasonable; |
| | • | | invest in real estate contracts of sale, otherwise known as land sale contracts, unless the contract is in recordable form and is appropriately recorded in the chain of title; |
| | • | | invest in commodities or commodity futures contracts, except for futures contracts when used solely for the purpose of hedging in connection with our ordinary business of investing in real estate assets and mortgages; |
| | • | | issue equity securities on a deferred payment basis or other similar arrangement; |
| | • | | issue debt securities in the absence of adequate cash flow to cover debt service; |
| | • | | issue equity securities that are assessable after we have received the consideration for which our board of directors authorized their issuance; or |
| | • | | issue equity securities redeemable solely at the option of the holder, which restriction has no effect on our proposed share redemption program or the ability of our Operating Partnership to issue redeemable partnership interests. |
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In addition, our charter includes many other investment limitations in connection with conflict-of-interest transactions, which limitations are described above under “Conflicts of Interest.” Our charter also includes restrictions on roll-up transactions, which are described under “Description of Shares” below.
Investment Limitations to Avoid Registration as an Investment Company
We do not intend to register as an investment company under the Investment Company Act of 1940, as amended. In order to be excluded from regulation under the Investment Company Act, we must engage primarily in the business of buying mortgages and other liens on or interests in real estate within one year of our formation. Our advisor, KBS Capital Advisors, will continually review our investment activity to attempt to ensure that we will not be regulated as an investment company. Among other things, KBS Capital Advisors will attempt to monitor the proportion of our portfolio that is placed in various investments. The position of the SEC staff generally requires us to maintain at least 55% of our assets directly in qualifying real estate interests in order for us to maintain our exemption. To constitute a qualifying real estate interest under this 55% requirement, a real estate interest must meet various criteria. In addition, mortgaged-backed securities may or may not constitute qualifying real estate assets, depending on the characteristics of the mortgage-backed securities, including whether the securities are subject to risk of loss and the rights that we have with respect to the underlying loans. Our ownership of mortgage-backed securities, therefore, is limited by provisions of the Investment Company Act and SEC staff interpretations.
To maintain compliance with the Investment Company Act exemption, we may be unable to sell assets we would otherwise want to sell and may need to sell assets we would otherwise wish to retain. In addition, we may have to acquire additional income or loss generating assets that we might not otherwise have acquired or may have to forego opportunities to acquire interests in companies that we would otherwise want to acquire and would be important to our investment strategy.
PLAN OF OPERATION
General
We are a newly organized Maryland corporation that intends to qualify as a REIT beginning with the taxable year that will end December 31, 2006. We intend to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. We plan to diversify our portfolio by property type, geographic region, investment size and investment risk with the goal of attaining a portfolio of income-producing properties that provide attractive and stable returns to our investors. We may also invest in entities that make similar investments as well as mortgage loans, mezzanine debt, mortgage-backed securities and other structured finance investments. As of the date of this prospectus, we have not commenced operations nor have we identified any properties in which there is a reasonable probability that we will invest.
KBS Capital Advisors is our advisor. As our advisor, KBS Capital Advisors will manage our day-to-day operations and our portfolio of real estate assets. KBS Capital Advisors will make recommendations on all investments to our board of directors. We expect that a committee of our board of directors consisting of all of our independent directors will exercise its right to approve or reject all proposed investments. KBS Capital Advisors will also provide asset-management, marketing, investor-relations and other administrative services on our behalf.
We intend to make an election to be taxed as a REIT under the Internal Revenue Code, beginning with the taxable year ending December 31, 2006. If we qualify as a REIT for federal income tax
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purposes, we generally will not be subject to federal income tax on income that we distribute to our stockholders. If we fail to qualify as a REIT in any taxable year after electing REIT status, we will be subject to federal income tax on our taxable income at regular corporate income tax rates and generally will not be permitted to qualify for treatment as a REIT for federal income tax purposes for four years following the year in which our qualification is denied. Such an event could materially and adversely affect our net income and cash available for distribution. However, we believe that we will be organized and will operate in a manner that will enable us to qualify for treatment as a REIT for federal income tax purposes beginning with our taxable year ending December 31, 2006, and we intend to continue to operate so as to remain qualified as a REIT for federal income tax purposes thereafter.
Competition
We believe that the current market for properties that meet our investment objectives is highly competitive. The relatively low interest rates available in today’s markets have given potential buyers increased access to financing. We compete with many other entities engaged in real estate investment activities, many of which have greater resources than we do. We may at times compete with other KBS-sponsored programs and KBS-advised investors for investment opportunities. When the KBS real estate professionals direct an investment opportunity to any KBS-sponsored program or KBS-advised investor, they, in their sole discretion, will offer the opportunity to the program or investor for which the investment opportunity is most suitable based on the investment objectives, portfolio and criteria of each program or investor. Our charter disclaims any interest in an investment opportunity known to KBS Capital Advisors or its affiliates that KBS Capital Advisors has not recommended to us.
The current leasing market is also highly competitive. The high acquisition prices of properties coupled with the competitive leasing market means that buyers are generally paying more for a lower stream of rental revenue than they have in the past. To draw attractive tenants to our properties, we may have to offer inducements, such as free rent and tenant improvements.
We and other KBS-sponsored programs and KBS-advised investors will rely on many of the same real estate professionals to supervise the leasing of properties. If the KBS team of real estate professionals direct creditworthy prospective tenants to a property of another KBS-sponsored program or KBS-advised investor when they could direct such tenants to our properties, our tenant base may have more inherent risk than might otherwise be the case. However, in our experience, KBS-sponsored programs and KBS-advised investors have benefited in markets in which KBS-sponsored programs and KBS-advised investors owned multiple properties because KBS has developed strength in these markets resulting in more lead sources for tenants.
Liquidity and Capital Resources
We are dependent upon the net proceeds from this offering to conduct our proposed operations. We will obtain the capital required to purchase properties and conduct our operations from the proceeds of this offering and any future offerings we may conduct, from secured or unsecured financings from banks and other lenders and from any undistributed funds from our operations. As of the date of this prospectus, we have not made any investments in real estate or otherwise, and our total assets consist of $200,000 cash. For information regarding the anticipated use of proceeds from this offering, see “Estimated Use of Proceeds.”
We currently have no outstanding debt. Once we have fully invested the proceeds of this offering, we expect our debt financing to be approximately 50% of the cost of our real estate investments (before deducting depreciation or other non-cash reserves) plus the value of our other assets. Our charter does not limit us from incurring debt until our borrowings would exceed 75% of the cost (before
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deducting depreciation or other non-cash reserves) of all our assets, though we may exceed this limit under certain circumstances. During the early stages of this offering, we expect that the conflicts committee will approve debt in excess of this limit.
To avoid a delay between the sale of shares and the purchase of properties, we have begun discussions to obtain up to $190 million in secured debt from national lenders. We would use these funds to purchase a portfolio of properties and other real estate-related investments at a cost of up to $200 million (including acquisition costs and expenses and the acquisition fee paid to our advisor). To the extent that initial sales in this offering are insufficient to fund the difference between the cost of the portfolio and the amount of debt secured from third-party lenders, we would likely secure a loan from affiliates of our advisor to fund the difference. We will supplement this prospectus to disclose the terms of any financing arrangement we enter for the purchase of an initial portfolio of investments. We, however, can give you no assurance that we will be able to obtain such borrowings.
In addition to making investments in accordance with our investment objectives, we expect to use our capital resources to make certain payments to our advisor and the dealer manager. During our organization and offering stage, these payments will include payments to the dealer manager for selling commissions and the dealer manager fee and payments to the dealer manager and our advisor for reimbursement of certain organization and offering expenses. However, our advisor has agreed to reimburse us to the extent that selling commissions, the dealer manager fee and other organization and offering expenses incurred by us exceed 15% of our gross offering proceeds. During our acquisition and development stage, we expect to make payments to our advisor in connection with the selection and purchase of real estate investments, the management of our assets and costs incurred by our advisor in providing services to us. For a discussion of the compensation to be paid to our advisor and the dealer manager, see “Management Compensation.” The term of the current advisory agreement ends after one year but may be renewed for an unlimited number of successive one-year periods upon the mutual consent of KBS Capital Advisors and our conflicts committee.
We intend to elect to be taxed as a REIT and to operate as a REIT beginning with our taxable year ending December 31, 2006. To maintain our qualification as a REIT, we will be required to make aggregate annual distributions to our stockholders of at least 90% of our REIT taxable income (computed without regard to the dividends paid deduction and excluding net capital gain). Our board of directors may authorize distributions in excess of those required for us to maintain REIT status depending on our financial condition and such other factors as our board of directors deems relevant. Provided we have sufficient available cash flow, we intend to pay dividends on a monthly basis. We have not established a minimum distribution level.
Results of Operations
We were formed on June 13, 2005 and, as of the date of this prospectus, we have not commenced operations. We intend to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. We may also make investments in other real estate-related assets. We will not commence any significant operations until we have raised the minimum offering amount of $2,500,000 from persons who are not affiliated with us or our advisor. Our management is not aware of any material trends or uncertainties, other than national economic conditions affecting real estate generally, that may reasonably be expected to have a material impact, favorable or unfavorable, on revenues or income from the acquisition and operations of real properties, other than those referred to in this prospectus.
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Critical Accounting Policies
Below is a discussion of the accounting policies that management believes will be critical once we commence operations. We consider these policies critical because they involve difficult management judgments and assumptions, require estimates about matters that are inherently uncertain and because they are important for understanding and evaluating our reported financial results. These judgments affect the reported amounts of assets and liabilities and our disclosure of contingent assets and liabilities at the dates of the financial statements and the reported amounts of revenue and expenses during the reporting periods. With different estimates or assumptions, materially different amounts could be reported in our financial statements. Additionally, other companies may utilize different estimates that may impact the comparability of our results of operations to those of companies in similar businesses.
Principles of Consolidation and Basis of Presentation
The consolidated balance sheet includes the accounts of the Company, KBS REIT Holdings and the Operating Partnership. The balance sheets of KBS REIT Holdings and the Operating Partnership are prepared using accounting policies consistent with the Company. All significant intercompany balances and transactions are eliminated in consolidation.
Use of Estimates
The preparation of the consolidated balance sheet in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated balance sheet and accompanying notes. Actual results could materially differ from those estimates.
Real Estate Purchase Price Allocation
In accordance with Financial Accounting Standards Board Statement (“SFAS”) No. 141 “Business Combinations,” we will record above-market and below-market in-place lease values for acquired properties based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (i) the contractual amounts to be paid pursuant to the in-place leases and (ii) management’s estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining non-cancelable term of the lease. We will amortize any capitalized above-market lease values as a reduction of rental income over the remaining non-cancelable terms of the respective leases. We will amortize any capitalized below-market lease values as an increase to rental income over the initial term and any fixed-rate renewal periods in the respective leases.
We will measure the aggregate value of other intangible assets acquired based on the difference between (i) the property valued with existing in-place leases adjusted to market rental rates and (ii) the property valued as if vacant. Management’s estimates of value are expected to be made using methods similar to those used by independent appraisers (e.g., discounted cash flow analysis). Factors to be considered by management in its analysis include an estimate of carrying costs during hypothetical expected lease-up periods considering current market conditions, and costs to execute similar leases.
We will also consider information obtained about each property as a result of our pre-acquisition due diligence, marketing and leasing activities in estimating the fair value of the tangible and intangible assets acquired. In estimating carrying costs, management will also include real estate taxes, insurance and other operating expenses and estimates of lost rentals at market rates during the expected lease-up periods. Management will also estimate costs to execute similar leases including leasing
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commissions and legal and other related expenses to the extent that such costs are not already incurred in connection with a new lease origination as part of the transaction.
The total amount of other intangible assets acquired will be further allocated to in-place lease values and customer relationship intangible values based on management’s evaluation of the specific characteristics of each tenant’s lease and our overall relationship with that respective tenant. Characteristics to be considered by management in allocating these values include the nature and extent of our existing business relationships with the tenant, growth prospects for developing new business with the tenant, the tenant’s credit quality and expectations of lease renewals (including those existing under the terms of the lease agreement), among other factors.
We will amortize the value of in-place leases to expense over the initial term of the respective leases. The value of customer relationship intangibles will be amortized to expense over the initial term and any renewal periods in the respective leases, but in no event will the amortization period for intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and customer relationship intangibles would be charged to expense.
Investment in Real Estate Assets
We will have to make subjective assessments as to the useful lives of our depreciable assets. These assessments will have a direct impact on our net income, because, if we were to shorten the expected useful lives of our investments in real estate, we would depreciate these investments over fewer years, resulting in more depreciation expense and lower net income on an annual basis throughout the expected useful lives of these investments. Costs related to the acquisition, development, construction and improvement of properties will be capitalized. Repair and maintenance costs will be charged to expense as incurred and significant replacements and betterments will be capitalized. Repair and maintenance costs include all costs that do not extend the useful life of the real estate asset. We consider the period of future benefit of an asset to determine its appropriate useful life. We anticipate the estimated useful lives of our assets by class to be as follows:
| | |
Buildings | | 25 - 40 years |
Building improvements | | 10 - 25 years |
Land improvements | | 20 - 25 years |
Tenant Improvements | | Lease term |
Valuation of Real Estate Assets
We will continually monitor events and changes in circumstances that could indicate that the carrying amounts of our real estate assets, including those held through joint ventures, may not be recoverable. When indicators of potential impairment suggest that the carrying value of a real estate asset may not be recoverable, we will assess the recoverability of the asset by estimating whether we will recover the carrying value of the asset through its undiscounted future cash flows and its eventual disposition. If based on this analysis we do not believe that we will be able to recover the carrying value of the asset, we will record an impairment loss to the extent that the carrying value exceeds the estimated fair value of the asset. Projections of future cash flows require us to estimate the expected future operating income and expenses related to an asset as well as market and other trends. The use of inappropriate assumptions in our future cash flows analyses would result in an incorrect assessment of our assets’ future cash flows and fair values and could result in the overstatement of the carrying values of our real estate assets and an overstatement of our net income.
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Revenue Recognition
We will recognize minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, on a straight-line basis over the term of the related lease and we will include amounts expected to be received in later years in deferred rents. We will record property operating expense reimbursements due from tenants for common area maintenance, real estate taxes and other recoverable costs in the period the related expenses are incurred.
We will recognize gains on sales of real estate pursuant to the provisions of SFAS No. 66 “Accounting for Sales of Real Estate.” The specific timing of a sale will be measured against various criteria in SFAS No. 66 related to the terms of the transaction and any continuing involvement in the form of management or financial assistance associated with the property. If the sales criteria are not met, we will defer gain recognition and account for the continued operations of the property by applying the finance, installment or cost recovery methods, as appropriate, until the sales criteria are met.
Distribution Policy
We intend to make distributions each taxable year equal to at least 90% of our REIT taxable income (which is determined without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). We expect to authorize, declare and pay dividends on a monthly basis.
Dividends to be distributed to stockholders will be determined by our board of directors and will be dependent upon a number of factors relating to us, including funds available for the payment of dividends, financial condition, the timing of property acquisitions, capital expenditure requirements and annual distribution requirements in order to maintain our status as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”).
Income Taxes
We intend to elect to be taxed as a REIT under the Code and intend to operate as such beginning with our taxable year ending December 31, 2006, and we expect to have little or no taxable income prior to electing REIT status. To qualify as a REIT, we must meet certain organizational and operational requirements, including a requirement to distribute at least 90% of our annual REIT taxable income to our stockholders (which is computed without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). As a REIT, we generally will not be subject to federal income tax on income that we distribute to stockholders. If we fail to qualify as a REIT in any taxable year, we will be subject to federal income tax on our taxable income at regular corporate income tax rates and generally will not be permitted to qualify for treatment as a REIT for federal income tax purposes for the four taxable years following the year during which qualification is lost unless the Internal Revenue Service grants us relief under certain statutory provisions. Such an event could materially adversely affect our net income and net cash available for distribution to stockholders. However, we intend to organize and operate in such a manner as to qualify for treatment as a REIT.
PRIOR PERFORMANCE SUMMARY
During the 10-year period ending December 31, 2004, two of our sponsors, Peter M. Bren and Charles J. Schreiber, Jr., have teamed to invest, manage, develop and sell high-quality U.S. commercial real estate assets for institutional investors. Together, they founded KBS Realty Advisors LLC, a registered investment adviser with the Securities and Exchange Commission and a nationally recognized real estate investment adviser. Since the formation of the first investment adviser affiliated with Messrs.
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Bren and Schreiber in 1992, investment advisers affiliated with Messrs. Bren and Schreiber have sponsored nine private real estate funds. We refer to the investment advisers affiliated with Messrs. Bren and Schreiber as KBS investment advisers.
The information presented in this section represents the historical experience of the real estate funds sponsored by KBS investment advisers as of December 31, 2004. By purchasing shares in this offering, you will not acquire any ownership interest in any funds to which the information in this section relates and you should not assume that you will experience returns, if any, comparable to those experienced by the investors in the real estate funds discussed. Further, the funds discussed in this section were conducted through privately held entities that were subject neither to the up-front commissions, fees and expenses associated with this offering nor all of the laws and regulations that will apply to us as a publicly offered REIT. We have omitted from this discussion information regarding the prior performance of entities for which an institutional investor engaged a KBS investment adviser if the investor had the power to reject the real estate acquisitions proposed by the KBS investment adviser. Such entities are not considered “funds” or “programs” as those terms are used in this prospectus.
Of the nine real estate funds that KBS investment advisers have sponsored, six of those were multi-investor, commingled funds and three were single-client, separate accounts. All of the prior funds were limited partnerships for which affiliates of Messrs. Bren and Schreiber act or acted as a general partner. In all cases, affiliates of Messrs. Bren and Schreiber had responsibility for acquiring, investing, managing, developing and selling the real estate assets of each of the funds. One of the multi-investor, commingled funds formed, managed and liquidated a private REIT that owned 10 retail properties.
Thirty-eight institutional investors have invested approximately $1.8 billion of equity in the nine real estate funds sponsored by KBS investment advisers. These institutional investors include public and corporate pension funds, endowments and foundations. Please see Table II under “Prior Performance Tables” in this prospectus for more information regarding the experience of our sponsors in raising funds from investors.
On behalf of these 38 institutional investors, KBS investment advisers have invested approximately $2.8 billion (including equity, debt and reinvestment of income and sales proceeds) in 266 real estate investments. No debt financing was used in acquiring the properties of six of the nine funds.
Each of these funds have or had (three of the funds have been fully liquidated) investment objectives that are similar to ours. For each of the funds, the KBS investment adviser has focused on acquiring a diverse portfolio of real estate investments. The KBS investment adviser typically diversified the portfolios of the funds by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for the funds, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, focusing primarily on value-added and enhanced-return properties. Value-added and enhanced-return assets are assets that are undervalued or that could be repositioned to enhance their value. Like the prior funds, we will also seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties.
Substantially all of the assets acquired by the funds have involved commercial properties. In the aggregate, the capital invested by the funds in the various asset types is as follows: 65% office, 16% commercial mortgage-backed securities, 9% mortgage loans, 5% industrial, 4% retail and 1% in land, mezzanine debt and residential properties. The prior KBS funds have purchased, originated and serviced approximately $255 million (face value amount at purchase or origination) in 21 mortgage loans, excluding an interest in a CMBS portfolio in which a fund held a 25.78% interest. The prior funds
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purchased the bulk of these loans (approximately $179 million representing 14 of the loans) through the acquisition of loan portfolios purchased at a discount. A KBS affiliate then serviced the loans and, in many cases, foreclosed on the loans and managed the underlying assets. The balance of the loans were largely participating loans related to the development of properties (in most cases single-family residential properties). Accordingly, KBS affiliates have substantial experience investing in both commercial properties and other types of real estate-related investments.
KBS Investment Advisers - Capital Invested by
Property Type
The KBS investment advisers for the prior funds also sought to diversify the investments of the funds by geographic region as illustrated by the chart below. This chart shows investments in different geographic regions by invested capital. KBS investment advisers have emphasized their investment activity within those regions that have exhibited the potential for strong or sustainable growth. All investments by the funds were within the United States. Capital invested in the various geographic regions is as follows: 37% East, 26% South, 24% West, and 13% Midwest.
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KBS Investment Advisers - Capital Invested by Region
In seeking to diversify the portfolios of the funds by investment risk, KBS investment advisers have purchased both low risk, high-quality properties and high-quality but under-performing properties in need of repositioning. Substantially all of the properties purchased by the funds had prior owners and operators.
KBS investment advisers have invested over $2.8 billion (including equity, debt and reinvestment of income and sales proceeds) for its clients. As of December 31, 2004, KBS investment advisers had sold 200 properties on behalf of these nine funds, which is 75% of all properties they had acquired, and continued to manage 66 income-generating properties. The KBS investment advisers will manage these assets to significantly increase their operating cash flows. KBS investment advisers anticipate that they will sell these assets when they believe market conditions and property positioning have maximized their value.
Though the prior funds were not subject to the up-front commissions, fees and expenses associated with this offering, the other funds have fee arrangements with KBS affiliates structured similar to ours. The percentage of the fees varied based on the market factors at the time the particular fund was formed. Historically a majority of the other funds paid (i) asset management fees, (ii) acquisition fees and (iii) real estate commissions, disposition fees and/or incentive fees based on participation interests in the net cash flows of the funds’ assets after achieving a stipulated return for the investors or based on gains from the sale of assets.
Please see Tables II and III under “Prior Performance Tables” in this prospectus for more information regarding the fees paid to KBS affiliates by these prior funds and the operating results of these prior funds. Only two of the funds represented in Table II, which we refer to as Commingled Account 12/95 and Commingled Account 6/99, paid incentive fees during the three years ended December 31, 2004. Two of the seven funds, Commingled Account 6/98 and Commingled Account 6/99, pay incentive fees based on gains from the sale of assets. The incentive fees for the remaining five funds represented in Table II, which we refer to as Commingled Account 5/95, Commingled Account 12/95,
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Commingled Account 12/96, Separate Account 10/97 and Separate Account 12/98, are back-end fees based on participation interests in the net cash flows of the funds’ assets after achieving a stipulated return for the investors. These back-end incentive fees will be paid during the final liquidation stage of the funds. Only two of these five funds, Commingled Account 12/95 and Commingled Account 5/95, are currently in their liquidation stage. Although Commingled Account 5/95 is in its liquidation stage and had not paid incentive fees as of December 31, 2004, as of the date of this prospectus Commingled Account 5/95 had achieved the stipulated return for the investors and paid incentive fees.
Adverse changes in general economic conditions have occasionally affected the performance of the prior funds. For example, in the mid-1990s, in an effort to take advantage of what the KBS investment advisers believed was attractive, discounted portfolio pricing, five of the prior funds invested in real estate portfolios in the Southwest, primarily in Arizona and Texas. These portfolios were composed principally of smaller Class B buildings. The recession, beginning around 1999, resulted in more business failures among smaller tenants typical to Class B buildings. This resulted in higher vacancy rates for these buildings and in the funds investing additional capital to cover the costs of re-letting the properties. The funds also retained the buildings for a longer period of time so that the buildings would be sufficiently leased for disposition. The five funds that made such investments were Commingled Account 12/96, Commingled Account 6/98, Commingled Account 6/99, Separate Account 10/97 and Separate Account 12/98. Also in the late 1990s, three funds, Commingled Account 6/98, Commingled Account 6/99 and Separate Account 12/98, made investments in real estate located in the Northeast, primarily in Massachusetts. At that time, this area had a high concentration of tenants that were tech companies. While the funds did not have a significant number of tech companies as their tenants, the collapse of the dot-com market did result in a significant amount of office-building space being returned to the marketplace, increasing vacancy rates and substantially lowering market rents. As a result, rental rates in the buildings owned by these funds decreased on newly leased space and renewals in buildings. The area’s higher vacancy rates also increased the period of time it took the KBS investment advisers to get the properties to the planned stabilized occupancy level for disposition. All of the funds discussed in this paragraph are still in their operating stage. These adverse market conditions reduced the distributions made by these funds and may cause the total returns to investors to be lower than they otherwise would.
Please see Tables III, IV and V under “Prior Performance Tables” in this prospectus for more information regarding the operating results of the prior funds sponsored by KBS investment advisers, information regarding the results of the completed funds and information regarding the sales or disposals of properties by these funds.
To execute their business strategy, Messrs. Bren and Schreiber have organized their team of real estate professionals by markets. Regional Presidents, Acquisition/Disposition Officers and Asset Managers have specific market responsibility. The map below details those professionals, their regional responsibility and their target markets. The attached map also shows the regional offices KBS Realty Advisors has recently opened in San Francisco, Chicago and Washington, D.C.
This regional market focus provides the real estate professionals at KBS Realty Advisors with the ability to gather better local market knowledge and establish relationships with local owners, developers, brokers and lenders. These relationships provide KBS Realty Advisors with access to a unique deal flow.
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FEDERAL INCOME TAX CONSIDERATIONS
The following summary describes the material federal income tax considerations relating to our qualification and taxation as a REIT beginning with our taxable year ending December 31, 2006, and the ownership and disposition of our common stock that you, as a stockholder, may consider relevant. The summary is not intended as a detailed description of the federal income tax consequences applicable to any particular stockholder in view of such stockholder’s particular circumstances, nor is it intended as a detailed description of the federal income tax consequences applicable to certain types of stockholders subject to special treatment under the federal income tax laws (such as insurance companies, financial institutions, broker-dealers and, except to the extent discussed below, tax-exempt organizations and non-U.S. persons). This summary does not address state, local or non-U.S. tax considerations. Also, this summary deals only with our stockholders that hold common stock as “capital assets” within the meaning of Section 1221 of the Internal Revenue Code (the “Code”).
We base the information in this section on the current Code, current, temporary and proposed Treasury regulations, the legislative history of the Code and current administrative interpretations of the Internal Revenue Service (the “IRS”), including its practices and policies as endorsed in private letter rulings, which are not binding on the IRS, and existing court decisions. We cannot assure you that new laws, interpretations of laws or court decisions, any of which may take effect retroactively, will not cause statements in this section to be inaccurate.
DLA Piper Rudnick Gray Cary US LLP, acting as our tax counsel in connection with this offering, has reviewed this summary and opined that, to the extent that it constitutes matters of federal income tax law or legal conclusions relating thereto, this summary is accurate in all material respects. This opinion is filed as an exhibit to the registration statement of which this prospectus is a part. The opinion of DLA Piper Rudnick Gray Cary US LLP is based on various assumptions, is subject to limitations and is not binding on the Internal Revenue Service or on any court.
We urge you to consult with your own tax advisor regarding the tax consequences to you of ownership of our common stock and our election to be taxed as a REIT. Specifically, you should consult with your own tax advisor regarding the federal, state, local, non-U.S. and other tax consequences of such ownership and election, and regarding potential changes in applicable tax laws.
Federal Income Taxation of the Company
General
We plan to make an election to be taxed as a REIT under the Code effective for the taxable year ending December 31, 2006. We believe that beginning with that taxable year we will be organized and operating in such a manner as to qualify for taxation as a REIT under the Code, and we intend to continue to operate in such manner. We can provide no assurance, however, that we have operated or will operate in a manner so as to qualify or remain qualified as a REIT.
The sections of the Code relating to qualification and operation as a REIT are highly technical and complex. The following discussion sets forth the material aspects of the Code sections that govern the federal income tax treatment of a REIT and its stockholders. This summary is qualified in its entirety by the applicable Code provisions, relevant rules and regulations and administrative and judicial interpretations of Code provisions and regulations. We have not requested a ruling from the IRS with
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respect to any issues relating to our qualification as a REIT. Therefore, we can provide no assurance that the IRS will not challenge our REIT status.
Opinion of Counsel
In connection with this offering, DLA Piper Rudnick Gray Cary US LLP has rendered an opinion to us that we will be organized in conformity with the requirements for qualification and taxation as a REIT under the Code for our taxable year ending December 31, 2006 and our proposed method of operations will enable us to meet the requirements for qualification and taxation as a REIT beginning with our taxable year ending December 31, 2006. In providing its opinion, DLA Piper Rudnick Gray Cary US LLP has relied, as to certain factual matters, upon the statements and representations contained in certificates provided by us. These certificates include representations regarding the manner in which we are and will be owned, the nature of our assets and the past, present and future conduct of our operations. DLA Piper Rudnick Gray Cary US LLP has not independently verified these facts. Moreover, our continued qualification and taxation as a REIT depends on our ability to meet on a continuing basis, through actual annual operating results, the qualification tests set forth in the federal income tax laws and described below. DLA Piper Rudnick Gray Cary US LLP will not review our continuing compliance with those tests. The statements made in the opinion of DLA Piper Rudnick Gray Cary US LLP are based upon existing law and Treasury regulations, as currently applicable, currently published administrative positions of the IRS and judicial decisions, all of which are subject to change, either prospectively or retroactively. We cannot assure you that any changes will not modify the conclusions expressed in our counsel’s opinion. Moreover, an opinion of counsel is not binding on the IRS.
REIT Taxation
Our qualification as a REIT depends, among other things, upon our meeting the various qualification tests imposed by the Code discussed below, including through annual operating results, asset diversification, distribution levels and diversity of stock ownership each year. Accordingly, because our satisfaction of such requirements will depend upon future events, including the final determination of our financial and operational results, we can give you no assurance that we will satisfy the REIT requirements during the taxable year that will end December 31, 2006 or in any future year.
If we qualify as a REIT, we generally will not be subject to federal income tax on the income that we distribute to our stockholders each year. To the extent that we are not subject to income tax on the income we distribute, we will avoid “double taxation,” or taxation at both the corporate and stockholder levels, which generally results from owning stock in a corporation. However, we will be subject to federal tax in the following circumstances:
First, we will be taxed at regular corporate rates on our undistributed REIT taxable income, including undistributed net capital gains.
Second, we may be subject to the “alternative minimum tax” on our items of tax preference.
Third, we will be subject to tax at the highest corporate income tax rate on net income from “foreclosure property” (generally property we acquire through foreclosure or after default on a loan secured by the property or a lease of the property) held primarily for sale to customers in the ordinary course of business and other non-qualifying income from foreclosure property.
Fourth, if we have net income from prohibited transactions (which are, in general, certain sales or other dispositions of property, other than foreclosure property, that is held primarily for sale to customers in the ordinary course of business), we will be subject to a 100% tax on such income.
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Fifth, if we fail to satisfy either the 75% or 95% gross income test (discussed below) but have nonetheless maintained our qualification as a REIT because we have met certain other requirements, we will be subject to a 100% tax on the net income attributable to the greater of (a) the amount by which we fail the 75% gross income test or (b) the amount by which we fail the 95% gross income test, in either case multiplied by a fraction intended to reflect our profitability.
Sixth, if we (1) fail to satisfy the REIT asset tests (discussed below) and continue to qualify as a REIT because we meet certain other requirements, we will have to pay a tax equal to the greater of $50,000 or the highest corporate income tax rate multiplied by the net income generated by the non-qualifying assets during the period of time we failed to satisfy the asset tests or (2) if we fail to satisfy REIT requirements other than the gross income tests and the asset tests and continue to qualify as a REIT because we meet other requirements, we will have to pay $50,000 for each other failure.
Seventh, if we fail to distribute each year at least the sum of:
| | (1) | 85% of our REIT ordinary income for such year; |
| | (2) | 95% of our REIT capital gain net income for such year; and |
| | (3) | any undistributed taxable income from prior periods, |
then we will be subject to a 4% excise tax on the excess of the required distribution over the sum of (a) the amounts actually distributed and (b) retained amounts on which we pay income tax at the corporate level.
Eighth, if we acquire assets from a corporation generally subject to full corporate-level tax in a merger or other transaction in which our initial basis in the assets is determined by reference to the transferor corporation’s basis in the assets, the fair market value of the assets acquired in any such transaction exceeds the aggregate basis of such assets, and we subsequently recognize gain on the disposition of any such asset during the 10-year period beginning on the date on which we acquired the asset, then we generally will be subject to tax at the highest regular corporate income tax rate on the lesser of the amount of gain that we recognize at the time of the sale or disposition and the amount of gain that we would have recognized if we had sold the asset at the time we acquired the asset, pursuant to guidelines issued by the IRS (the “Built-In Gain Rules”). As we will hold only cash or cash items prior to electing REIT status, these rules should have no impact on us in respect of assets held prior to our REIT election.
Ninth, subject to certain exceptions, we will be subject to a 100% tax on transactions with our “taxable REIT subsidiaries” if such transactions are not at arm’s length.
Requirements for Qualification
To qualify as a REIT, we must elect to be treated as a REIT and must meet the requirements, discussed below, relating to our organization, sources of income, the nature of assets and amount of distributions.
Organizational Requirements
The Code defines a REIT as a corporation, trust or association that:
| | (1) | is managed by one or more trustees or directors; |
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| | (2) | has transferable shares or transferable certificates of beneficial ownership; |
| | (3) | would be taxable as a domestic corporation but for Sections 856 through 860 of the Code; |
| | (4) | is neither a financial institution nor an insurance company within the meaning of the applicable provisions of the Code; |
| | (5) | has at least 100 persons as beneficial owners; |
| | (6) | during the last half of each taxable year, is not closely held, i.e., not more than 50% of the value of its outstanding stock is owned, directly or indirectly, by five or fewer “individuals,” as defined in the Code to include certain entities; |
| | (7) | files an election or continues such election to be taxed as a REIT on its return for each taxable year; and |
| | (8) | meets other tests described below, including with respect to the nature of its assets and income and the amount of its distributions. |
The Code provides that conditions (1) through (4) must be met during the entire taxable year and that condition (5) must be met during at least 335 days of a taxable year of 12 months or during a proportionate part of a taxable year of less than 12 months. Conditions (5) and (6) will not apply until after the first taxable year for which we make an election to be taxed as a REIT. For purposes of condition (6), an “individual” generally includes a supplemental unemployment compensation benefit plan, a private foundation or a portion of a trust permanently set aside or used exclusively for charitable purposes but does not include a qualified pension plan or profit sharing trust. We believe that we will issue sufficient stock in this offering to satisfy conditions (5) and (6). Our charter currently includes certain restrictions regarding the transfer of our common stock, which are intended to assist us in continuing to satisfy conditions (5) and (6). If we comply with all the requirements for ascertaining the ownership of our outstanding stock in a taxable year and have no reason to know that we have violated condition (6), we will be deemed to have satisfied condition (6) for that taxable year.
In addition, a corporation generally may not elect to become a REIT unless its taxable year is the calendar year. We satisfy this requirement.
If a REIT owns a corporate subsidiary that is a “qualified REIT subsidiary,” the separate existence of that subsidiary will be disregarded for federal income tax purposes. Generally, a qualified REIT subsidiary is a corporation, other than a taxable REIT subsidiary, all of the capital stock of which is owned by the REIT. All assets, liabilities and items of income, deduction and credit of the qualified REIT subsidiary will be treated as assets, liabilities and items of income, deduction and credit of the REIT itself. Thus, in applying the requirements described herein, any qualified REIT subsidiary that we own will be ignored for federal income tax purposes and all assets, liabilities and items of income, deduction and credit of such subsidiary will be treated as our assets, liabilities and items of income, deduction and credit, although the subsidiary may be subject to state and local income tax in some states. Unincorporated domestic entities that are wholly owned by a REIT, including single member limited liability companies, are also generally disregarded as separate entities for federal income tax purposes, including for purposes of the REIT income and asset tests.
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A REIT is also permitted to own up to 100% of the stock of one or more “taxable REIT subsidiaries.” The subsidiary and the REIT must jointly elect to treat the subsidiary as a taxable REIT subsidiary. In addition, if a taxable REIT subsidiary owns, directly or indirectly, securities representing 35% or more of the vote or value of a subsidiary corporation, that subsidiary will automatically be treated as a taxable REIT subsidiary of the parent REIT. A taxable REIT subsidiary is subject to federal, state and local income tax (where applicable), as a regular “C” corporation.
Generally, a taxable REIT subsidiary may earn income that would not be qualifying income under the REIT income tests if earned directly by the parent REIT. However, several provisions regarding the arrangements between a REIT and its taxable REIT subsidiary ensure that the taxable REIT subsidiary will be subject to an appropriate level of federal income tax. For example, the Code limits the ability of a taxable REIT subsidiary to deduct interest payments in excess of a certain amount made to its parent REIT. In addition, the Code imposes a 100% tax on transactions between a taxable REIT subsidiary and its parent REIT or the REIT’s tenants that are not conducted on an arm’s-length basis. Moreover, the value of securities of taxable REIT subsidiaries held by the REIT cannot be worth more than 20% of the REIT’s total asset value. We currently do not have any taxable REIT subsidiaries. Should we form a taxable REIT subsidiary in the future we can give you no assurance that our taxable REIT subsidiary will not be limited in its ability to deduct interest payments (if any) made to us. We also cannot assure you that the IRS would not seek to impose a 100% tax on services performed by our taxable REIT subsidiary for our tenants, or on a portion of the payments received by us from, or expenses deducted by, our taxable REIT subsidiary.
In the case of a REIT that is a partner in a partnership, the REIT will be deemed to own its proportionate share (based on its capital interest in the partnership and any debt securities issued by such partnership held by the REIT) of the assets of the partnership and will be deemed to be entitled to the income of the partnership attributable to such share. In addition, the character of the assets and gross income of the partnership retain the same character in the hands of the REIT. Thus, our proportionate share of the assets, liabilities and items of income of our Operating Partnership will be treated as our assets, liabilities and items of income for purposes of applying and meeting the various REIT requirements. In addition, the Operating Partnership’s proportionate share of the assets, liabilities and items of income with respect to any partnership (including any limited liability company treated as a partnership) in which it holds an interest would be considered assets, liabilities and items of income of the Operating Partnership for purposes of applying and meeting the various REIT requirements.
Income Tests
To maintain qualification as a REIT, we must meet two gross income requirements annually. First, we must derive directly or indirectly at least 75% of our gross income (excluding gross income from prohibited transactions) from investments relating to real property, including investments in other REITs or mortgages on real property (including “rents from real property” and, in certain circumstances, interest), and, as discussed below, income from certain temporary investments. Second, we must derive at least 95% of our gross income (excluding gross income from prohibited transactions) from the real property investments described in the preceding sentence as well as from dividends, interest or gain from the sale or disposition of stock or securities (or from any combination of the foregoing).
Prior to investing amounts received from the issuance of our stock and certain securities in real property assets, we may invest in liquid assets such as government securities or certificates of deposit, but earnings from those types of assets are qualifying income under the 75% gross income test only for one year from the receipt of proceeds. Accordingly, to the extent that we have not invested the offering proceeds in properties prior to the expiration of this one-year period, in order to satisfy the 75% gross income test, we may invest the offering proceeds in less liquid investments approved by our board of
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directors such as certain mortgage-backed securities or shares in other REITs. We intend to trace offering proceeds received for purposes of determining the one-year period for “new capital investments.” The IRS has not issued any rulings or regulations under the provisions of the Code governing “new capital investments,” so there can be no assurance that the IRS will agree with this method.
Rents that we receive or that we are deemed to receive will qualify as “rents from real property” in satisfying the gross income requirements described above only if several conditions are met. First, the amount of rent must not be based in whole or in part on the income or profits of any person but can be based on a fixed percentage of gross receipts or gross sales. Second, rent received from a tenant will not qualify as “rents from real property” if we own, or are treated as owning, 10% or more of (i) the total combined voting power of all classes of voting stock of a corporate tenant, (ii) the total value of shares of all classes of stock of a corporate tenant or (iii) the interests in total assets or net profits in any tenant which is an entity that is not a corporation. Third, rent attributable to personal property is generally excluded from “rents from real property,” except where such personal property is leased in connection with such real property and the rent attributable to such personal property is less than or equal to 15% of the total rent received under the lease. Finally, amounts that are attributable to services furnished or rendered in connection with the rental of real property, whether or not separately stated, will not constitute “rents from real property” unless such services are customarily provided in the geographic area in connection with the rental of space for occupancy only and are not otherwise considered rendered to the occupant of the property. Customary services that are not provided to a particular tenant (e.g., furnishing heat and light, the cleaning of public entrances and the collection of trash) can be provided directly by the REIT. Where, however, such services are provided primarily for the convenience of the tenants or are provided to such tenants, such services must be provided by an independent contractor or a taxable REIT subsidiary. In the event that an independent contractor provides such services, the REIT must adequately compensate such independent contractor, the REIT must not derive any income from the independent contractor and neither the independent contractor nor certain of its stockholders may, directly or indirectly, own more than 35% of the REIT, taking into consideration the applicable attributed ownership. Our rental income should not cease to qualify as “rents from real property” merely because we perform a de minimis amount of services for tenants of a property that are not usually and customarily provided and are considered rendered to the occupant. The income from these services will be considered de minimis if the value of such services (valued at not less than 150% of our direct cost of performing such services) is less than 1% of the total income derived from such property, and such de minimis services income will not be treated as rents from real property.
We do not anticipate deriving rent attributable to personal property leased in connection with real property that exceeds 15% of the total rent attributable to such lease or receiving rent from related-party tenants.
The Operating Partnership may provide certain services with respect to our properties. We believe that these services will only be of the type that are usually or customarily rendered in connection with the rental of space for occupancy and that are not otherwise rendered to the tenants. Therefore, we believe that the provision of such customary services will not cause rents received with respect to our properties to fail to qualify as “rents from real property.” Noncustomary services and services rendered primarily for the tenants’ convenience will be provided by an independent contractor or a taxable REIT subsidiary to avoid jeopardizing the qualification of rent as “rents from real property.”
Except for amounts received with respect to certain investments of cash reserves, we anticipate that substantially all of our gross income will be derived from sources that will allow us to satisfy the income tests described above; however, we can make no assurance in this regard.
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If we fail one or both of the 75% and 95% gross income tests for any taxable year, we may nevertheless qualify as a REIT for that year if we are eligible for relief under the Code. This relief generally will be available if: (1) our failure to meet such gross income tests is due to reasonable cause and not to willful neglect; and (2) we properly disclose the failure to the IRS. We, however, cannot state whether in all circumstances we would be entitled to the benefit of this relief provision. For example, if we fail to satisfy the gross income tests because non-qualifying income that we intentionally receive exceeds the limits on such income, the IRS could conclude that our failure to satisfy the tests was not due to reasonable cause. As discussed above in “—Federal Income Taxation of the Company,” even if this relief provision applies, a 100% tax would be imposed on the greater of the amount by which we fail the 75% gross income test or the amount by which we fail the 95% gross income test, in either case multiplied by a fraction intended to reflect our profitability.
Asset Tests
At the close of each quarter of our taxable year, we must also satisfy four tests relating to the nature and diversification of our assets. First, at least 75% of the value of our total assets must be represented by real estate assets, cash and cash items (including receivables) and government securities. Second, not more than 25% of the value of our total assets may consist of securities (other than those securities includible in the 75% asset test). Third, except for stock or securities of REITs, qualified REIT subsidiaries, taxable REIT subsidiaries, equity interests in partnerships and other securities that qualify as “real estate assets” for purposes of the 75% asset test: (1) the value of any one issuer’s securities owned by us may not exceed 5% of the value of our total assets; (2) we may not own more than 10% of any one issuer’s outstanding voting securities; and (3) we may not own more than 10% of the value of the outstanding securities of any one issuer. Fourth, no more than 20% of the value of our total assets may be represented by securities of one or more taxable REIT subsidiaries.
Securities for purposes of the asset tests may include debt securities. The 10% value limitation will not apply, however, to (i) any security qualifying for the “straight debt exception” discussed below, (ii) any loan to an individual or an estate; (iii) any rental agreement described in Section 467 of the Internal Revenue Code, other than with a “related person”; (iv) any obligation to pay qualifying rents from real property; (v) certain securities issued by a State or any political subdivision thereof, the District of Columbia, a foreign government, or any political subdivision thereof, or the Commonwealth of Puerto Rico; (vi) any security issued by a REIT; and (vii) any other arrangement that, as determined by the Secretary of the Treasury, is excepted from the definition of a security. For purposes of the 10% value test, any debt instrument issued by a partnership (other than straight debt or another excluded security) will not be considered a security issued by the partnership if at least 75% of the partnership’s gross income is derived from sources that would qualify for the 75% REIT gross income test and any debt instrument issued by a partnership (other than straight debt or other excluded security) will not be considered a security issued by the partnership to the extent of the REIT’s interest as a partner in the partnership. There are special look-through rules for determining a REIT’s share of securities held by a partnership in which the REIT holds an interest.
The straight debt exception starts with the definition of straight debt in Section 1361 of the Code (as modified) but permits certain contingent payments. The timing of payments of principal or interest may be contingent if such contingency causes specified limited changes to the debt’s effective yield to maturity or the REIT does not hold more than $1 million (by face amount or issue price) of the issuer’s debt instruments and not more than 12 months of unaccrued interest can be required to be prepaid on such debt instruments. In addition, the time or amount of payments may be contingent if such contingency arises only upon default or upon the issuer’s exercise of a prepayment right and such contingencies are consistent with customary commercial practice.
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The straight debt exception will not apply to any securities issued by a corporation or partnership if the REIT and any controlled taxable REIT subsidiaries also own securities of such issuer that would not qualify for the straight debt exception and that are worth more than 1% of the issuer’s outstanding securities.
With respect to each issuer in which we acquire an interest that does not qualify as a REIT, a qualified REIT subsidiary or a taxable REIT subsidiary, we will seek to structure our acquisition to ensure that our pro rata share of the value of the securities, including debt, of any such issuer will not exceed 5% of the total value of our assets and so that we will comply with the 10% voting securities limitation and the 10% value limitation. We, however, cannot provide any assurance that the IRS will agree with our determinations.
After initially meeting the asset tests at the close of any quarter, we will not lose our status as a REIT for failure to satisfy the asset tests at the end of a later quarter solely by reason of changes in asset values. If the failure to satisfy the asset tests results from an acquisition of securities or other property during a quarter, we can cure the failure by disposing of a sufficient amount of non-qualifying assets within 30 days after the close of that quarter. Even after the 30-day cure period, if we fail the 5% securities limitation or either of the 10% securities limitations, we may avoid disqualification as a REIT by disposing of a sufficient amount of non-qualifying assets to cure the violation if the assets causing the violation do not exceed the lesser of 1% of our assets at the end of the relevant quarter or $10,000,000, provided that, in either case, the disposition occurs within six months following the last day of the quarter in which we first identified the violation. For other violations of any of the REIT asset tests due to reasonable cause, we may avoid disqualification as a REIT after the 30-day cure period by taking certain steps, including the disposition of sufficient non-qualifying assets within the six month period described above to meet the applicable asset test, paying a tax equal to the greater of $50,000 or the highest corporate tax rate multiplied by the net income generated by the non-qualifying assets during the period of time that the assets were held as non-qualifying assets and filing a schedule with the IRS that describes the non-qualifying assets. We intend to maintain adequate records of the value of our assets to ensure compliance with the asset tests and to take such other actions within 30 days after the close of any quarter as necessary to cure any noncompliance.
Annual Distribution Requirements
To qualify for taxation as a REIT, we must meet the following annual distribution requirements.
First, we must make distributions (other than capital gain distributions) to our stockholders in an amount at least equal to:
| | (1) | the sum of (a) 90% of our “REIT taxable income” (computed without regard to the dividends paid deduction and by excluding our net capital gain) and (b) 90% of the net income, if any, from foreclosure property in excess of the excise tax on income from foreclosure property |
| | (2) | minus the sum of certain items of non-cash income. |
We must pay these distributions in the taxable year to which they relate. Dividends distributed in the subsequent year, however, will be treated as if distributed in the prior year for purposes of such prior year’s 90% distribution requirement if one of the following two sets of criteria are satisfied: (1) the dividends were declared in October, November or December, the dividends were payable to stockholders of record on a specified date in such month, and the dividends were actually distributed during January of the subsequent year; or (2) the dividends were declared before we timely filed our federal income tax
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return for such year, the dividends were distributed in the 12-month period following the close of the prior year and not later than the first regular dividend payment after such declaration, and we elected on our tax return for the prior year to have a specified amount of the subsequent dividend treated as if distributed in the prior year. Even if we satisfy this annual distribution requirement, we will be subject to tax at regular corporate tax rates to the extent that we do not distribute all of our net capital gain or “REIT taxable income” as adjusted.
Second, we must distribute during each calendar year at least the sum of:
| | (1) | 85% of our ordinary income for that year; |
| | (2) | 95% of our capital gain net income for that year; and |
| | (3) | any undistributed taxable income from prior periods. |
In the event that we do not satisfy this distribution requirement, we will be subject to a 4% excise tax on the excess of such required distribution over the amounts actually distributed. For these purposes, dividends that are declared in October, November or December of the relevant taxable year, are payable to stockholders of record on a specified date in such month and are actually distributed during January of the subsequent year are treated as distributed in the prior year.
Third, if we dispose of any asset that is subject to the Built-In Gain Rules during the 10-year period beginning on the date on which we acquired the asset, we will be required to distribute at least 90% of the Built-In Gain (after tax), if any, recognized on the disposition of the asset.
We intend to make timely distributions sufficient to satisfy the annual distribution requirements and to avoid the 4% excise tax. In this regard, the Operating Partnership’s partnership agreement will authorize us, as the sole general partner of the Operating Partnership, to take such steps as may be necessary to cause the Operating Partnership to distribute to its partners an amount sufficient to permit us to meet these distribution requirements.
In order for us to deduct dividends we distribute to our stockholders, such distributions must not be “preferential” within the meaning of Section 562(c) of the Code. Every holder of a particular class of stock must be treated the same as every other holder of shares of such class, and no class of stock may be treated otherwise than in accordance with its dividend rights as a class. We do not intend to make any preferential dividends.
We expect that our REIT taxable income will be less than our cash flow due to the allowance of depreciation and other non-cash charges in computing REIT taxable income. Accordingly, we anticipate that we generally will have sufficient cash or liquid assets to enable us to satisfy the 90% distribution requirement. It is possible, however, that we may not have sufficient cash or other liquid assets to meet the 90% distribution requirement or to distribute such greater amount as may be necessary to avoid income and excise tax. In such event, we may find it necessary to borrow funds to pay the required distribution or, if possible, pay taxable stock dividends in order to meet the distribution requirement.
In the event that we are subject to an adjustment to our REIT taxable income (as defined in Section 860(d)(2) of the Code) resulting from an adverse determination by either a final court decision, a closing agreement between us and the IRS under Section 7121 of the Code, an agreement as to tax liability between us and an IRS district director or a statement by us attached to an amendment or supplement to our federal income tax return, we may be able to correct any resulting failure to meet the 90% annual distribution requirement by paying “deficiency dividends” to our stockholders that relate to
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the adjusted year but that are paid in the subsequent year. To qualify as a deficiency dividend, the distribution must be made within 90 days of the adverse determination and we also must satisfy certain other procedural requirements. If the statutory requirements of Section 860 of the Code are satisfied, a deduction is allowed for any deficiency dividend subsequently paid by us to offset an increase in our REIT taxable income resulting from an adverse determination. We, however, will be required to pay statutory interest on the amount of any deduction taken for deficiency dividends to compensate for the deferral of the tax liability.
Earnings and Profits
Throughout the remainder of this discussion, we frequently will refer to “earnings and profits.” Earnings and profits is a concept used extensively throughout corporate tax law but it is undefined in the Code. Each corporation maintains an “earnings and profits” account that helps to measure whether a distribution originates from corporate earnings or from other sources. Distributions generally decrease earnings and profits while income generally increases earnings and profits. If a corporation has positive earnings and profits, distributions generally will be considered to come from corporate earnings. If a corporation has no earnings and profits, distributions generally will be considered a return of capital and then capital gain. At the close of any taxable year, a REIT cannot have accumulated C corporation earnings and profits and remain qualified as a REIT. As noted above, we will not elect to be a REIT for our 2005 taxable year, but we expect to generate no C corporation earnings and profits during 2005. Moreover, even if we did have such C corporation earnings and profits, such amounts would be distributed in 2006 and would not affect our REIT compliance.
Statutory Relief
In addition to the statutory relief provisions discussed above, the American Jobs Creation Act of 2004 created additional relief provisions for REITs. If we fail to satisfy one or more of the requirements for qualification as a REIT, other than the income tests and asset tests discussed above, we will not lose our status as a REIT if our failure was due to reasonable cause and not willful neglect and we paid a penalty of $50,000 for each such failure.
Failure to Qualify
If we fail to qualify as a REIT in any year after electing REIT status, and the relief provisions do not apply, we will be subject to tax (including any applicable alternative minimum tax) on our taxable income at regular corporate rates. Distributions to stockholders in any year in which we fail to qualify will not be deductible by us, but we also will not be required to make distributions during those years. In such event, to the extent of positive current or accumulated earnings and profits, all distributions to stockholders will be dividends that are taxable to individuals at preferential rates under the Jobs and Growth Relief Reconciliation Act of 2003 (the “2003 Act”) through 2008. Subject to certain limitations of the Code, corporate distributees may be eligible for the dividends-received deduction. Unless we are entitled to relief under specific statutory provisions, we also will be disqualified from taxation as a REIT for the four taxable years following the year during which qualification was lost. It is not possible to state whether in all circumstances we would be entitled to such statutory relief.
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Taxation of U.S. Stockholders
When we use the term “U.S. Stockholder,” we mean a holder of common stock that for federal income tax purposes:
| | (1) | is a citizen or resident of the United States; |
| | (2) | is a corporation (including an entity treated as a corporation for United States federal income tax purposes) created or organized in or under the laws of the United States or any of its political subdivisions; |
| | (3) | is an estate the income of which is subject to federal income taxation regardless of its source; or |
| | (4) | is a trust, provided that a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust. |
If an entity classified as a partnership for federal income tax purposes holds our stock, the tax treatment of a partner will depend on the status of the partner and on the activities of the partnership. Partners of partnerships holding our stock should consult their tax advisors.
For any taxable year for which we qualify for taxation as a REIT, amounts distributed to taxable U.S. Stockholders will be taxed as discussed below.
Distributions Generally
Distributions to U.S. Stockholders, other than capital gain dividends (which are discussed below), will constitute taxable dividends up to the amount of our positive current or accumulated earnings and profits. We were not a REIT for our 2005 taxable year, and we made no distributions to our stockholders during our 2005 taxable year.
Dividends received from REITs are generally not eligible to be taxed at the preferential qualified dividend income rates applicable to individuals who receive dividends from taxable C corporations pursuant to the 2003 Act. However, there are exceptions: individual stockholders are taxed at such rates on dividends designated by and received from REITs to the extent that the dividends are attributable to (i) income that the REIT previously retained in a prior year and on which it was subject to corporate level tax, (ii) dividends received by the REIT from taxable corporations (including taxable REIT subsidiaries) or (iii) income from sales of appreciated property subject to the Built-in Gain Rules. Because a REIT is not subject to tax on income distributed to its stockholders, the distributions made to corporate stockholders are not eligible for the dividends-received deduction. To the extent that we make a distribution in excess of our positive current or accumulated earnings and profits, the distribution will be treated first as a tax-free return of capital (reducing the tax basis in the U.S. Stockholder’s shares of our common stock) and then the distribution in excess of the tax basis will be taxable as gain realized from the sale of the common stock. Dividends we declare in October, November or December of any year payable to stockholders of record on a specified date in any such month are treated as both paid by us and received by the stockholders on December 31 of that year, provided that we actually pay the dividends during January of the following calendar year.
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Capital Gain Distributions
Distributions to U.S. Stockholders that we properly designate as capital gain dividends will be treated as long-term capital gains (to the extent they do not exceed our actual net capital gain) for the taxable year without regard to the period for which the U.S. Stockholder has held the stock. However, corporate U.S. Stockholders may be required to treat up to 20% of certain capital gain dividends as ordinary income. Capital gain dividends are not eligible for the dividends-received deduction for corporations. In the case of individuals, long-term capital gains are generally taxable at maximum federal rates of 15% (through 2008), except that capital gains attributable to the sale of depreciable real property held for more than 12 months are subject to a 25% maximum federal income tax rate to the extent of previously claimed depreciation deductions.
We may elect to retain and pay federal income tax on any net long-term capital gain. In this instance, U.S. Stockholders will include in their income their proportionate share of the undistributed long-term capital gain. The U.S. Stockholders also will be deemed to have paid their proportionate share of tax on such long-term capital gain and, therefore, will receive a credit or refund for the amount of such tax. In addition, the basis of the U.S. Stockholders’ shares will be increased in an amount equal to the excess of the amount of capital gain included in his or her income over the amount of tax he or she is deemed to have paid.
Certain Dispositions of Shares
In general, U.S. Stockholders will realize capital gain or loss on the sale of common stock equal to the difference between (1) the amount of cash and the fair market value of any property received by the U.S. Stockholder on such disposition and (2) the U.S. Stockholder’s adjusted basis of such common stock. Losses incurred on the sale or exchange of our common stock that a U.S. Stockholder holds for less than six months (after applying certain holding period rules) will be treated as long-term capital loss to the extent of any capital gain dividend the stockholder has received with respect to those shares.
The applicable tax rate will depend on the U.S. Stockholder’s holding period in the asset (generally, if the U.S. Stockholder has held the asset for more than one year, it will produce long-term capital gain) and the U.S. Stockholder’s tax bracket. The IRS has the authority to prescribe, but has not yet prescribed, regulations that would apply a capital gain tax rate of 25% (which is generally higher than the long-term capital gain tax rates for non-corporate stockholders) to a portion of the capital gain realized by a non-corporate stockholder on the sale of common stock that would correspond to our “unrecaptured Section 1250 gain.” U.S. Stockholders should consult with their own tax advisors with respect to their capital gain tax liability. In general, any loss recognized by a U.S. Stockholder upon the sale or other disposition of common stock that the U.S. Stockholder has held for six months or less, after applying the holding period rules, will be treated as long-term capital loss to the extent of distributions received by the U.S. Stockholder from us that were required to be treated as long-term capital gains.
If a U.S. Stockholder has shares of our common stock redeemed by us, such U.S. Stockholder will be treated as if such U.S. Stockholder sold the redeemed shares if all of such U.S. Stockholder’s shares of our common stock are redeemed or if such redemption is not essentially equivalent to a dividend within the meaning of Section 302(b)(1) of the Code or substantially disproportionate within the meaning of Section 302(b)(2) of the Code. If a redemption is not treated as a sale of the redeemed shares, it will be treated as a dividend distribution. U.S. Stockholders should consult with their tax advisors regarding the taxation of any particular redemption of our shares.
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Passive Activity Loss and Investment Interest Limitations
U.S. Stockholders may not treat distributions we make to them or any gain from disposing of our common stock as passive activity income. Therefore, U.S. Stockholders will not be able to apply any “passive losses” against such income. Dividends we pay (to the extent they do not constitute a return of capital) generally will be treated as investment income for purposes of the investment interest limitation. Net capital gain from the disposition of our common stock (or capital gain dividends) generally will be excluded from investment income unless the stockholder elects to have such gain taxed at ordinary income rates.
Treatment of Tax-Exempt Stockholders
Distributions we make to a tax-exempt employee pension trust or other domestic tax-exempt stockholder generally will not constitute unrelated business taxable income (“UBTI”), unless the tax-exempt stockholder has borrowed to acquire or carry our shares of our common stock. Qualified trusts that hold more than 10% (by value) of the shares of pension-held REITs may be required to treat a certain percentage of such REIT’s distributions as UBTI. We expect that our ownership limitations will prevent us from becoming a pension-held REIT, unless our board of directors grants qualified plans waivers from our ownership limitations.
Special Tax Considerations for Non-U.S. Stockholders
The rules governing United States income taxation of non-U.S. Stockholders (beneficial owners of shares of our common stock who are not U.S. Stockholders) are complex. We intend the following discussion to be only a summary of these rules. Prospective non-U.S. Stockholders should consult with their own tax advisors to determine the impact of federal, state, local and foreign tax laws on an investment in our common stock, including any reporting requirements.
In general, non-U.S. Stockholders will be subject to regular federal income tax with respect to their investment in us if the income from the investment is “effectively connected” with the non-U.S. Stockholder’s conduct of a trade or business in the United States. A corporate non-U.S. Stockholder that receives income that is (or is treated as) effectively connected with a U.S. trade or business also may be subject to the branch profits tax under Section 884 of the Code, which is imposed in addition to regular federal income tax at the rate of 30%, subject to reduction under a tax treaty, if applicable. Effectively connected income must meet various certification requirements to be exempt from withholding. The following discussion will apply to non-U.S. Stockholders whose income from their investments in us is not effectively connected (except to the extent that the FIRPTA rules discussed below treat such income as effectively connected income).
A distribution payable out of our current or accumulated earnings and profits that is not attributable to gain from the sale or exchange by us of a “United States real property interest” and that we do not designate as a capital gain distribution will be subject to federal income tax, required to be withheld by us, equal to 30% of the gross amount of the dividend, unless an applicable tax treaty reduces this tax. A distribution in excess of our earnings and profits will be treated first as a return of capital that will reduce a non-U.S. Stockholder’s basis in his or her common stock (but not below zero) and then as gain from the disposition of such stock, the tax treatment of which is described under the rules discussed below with respect to dispositions of common stock.
As long as our stock is not regularly traded on an established securities market in the United States, distributions by us that are attributable to gain from the sale or exchange of a United States real property interest will be taxed to a non-U.S. Stockholder under the Foreign Investment in Real Property
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Tax Act of 1980, or “FIRPTA.” Such distributions are taxed to a non-U.S. Stockholder as if the distributions were gains “effectively connected” with a United States trade or business. Accordingly, a non-U.S. Stockholder will be taxed at the normal capital gain rates applicable to a U.S. Stockholder (subject to any applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident-alien individuals). Such distributions also may be subject to a 30% branch profits tax when made to a foreign corporation that is not entitled to an exemption or reduced branch profits tax rate under a tax treaty. If our shares of common stock are ever “regularly traded” on an established securities market in the United States, then, with respect to distributions by us that are attributable to gain from the sale or exchange of a United States real property interest, a non-U.S. Stockholder who does not own more than 5% of our common stock at any time during the taxable year: (i) will be taxed on such capital gain dividend as if the distribution was an ordinary dividend, (ii) will generally not be required to report distributions received from us on U.S. federal income tax returns and (iii) will not be subject to a branch profits tax with respect to such distribution. At the time you purchase shares in this offering, our shares will not be publicly traded, and we can give you no assurance that our shares will ever be publicly traded on an established securities exchange.
Although the law is not clear on this matter, it appears that amounts designated by us as undistributed capital gains in respect of the common stock generally should be treated with respect to non-U.S. Stockholders in the same manner as actual distributions by us of capital gain dividends. Under that approach, the non-U.S. Stockholder would be able to offset as a credit against his or her resulting federal income tax liability an amount equal to his or her proportionate share of the tax paid by us on the undistributed capital gains and to receive from the IRS a refund to the extent his or her proportionate share of this tax paid by us was to exceed his or her actual federal income tax liability.
We generally will be required to withhold tax from distributions to non-U.S. Stockholders, and remit to the IRS, 35% of designated capital gain dividends (or, if greater, 35% of the amount of any distributions that could be designated as capital gain dividends), and 30% (as reduced or eliminated by tax treaties or otherwise) of ordinary dividends paid out of earnings and profits. In addition, if we designate prior distributions as capital gain dividends, subsequent distributions, up to the amount of such prior distributions that we designated as capital gain dividends, will be treated as capital gain dividends for purposes of withholding. In addition, we may be required to withhold 10% of distributions in excess of our current and accumulated earnings and profits. If the amount of tax withheld by us with respect to a distribution to a non-U.S. Stockholder exceeds the stockholder’s United States tax liability, the non-U.S. Stockholder may file for a refund of such excess from the IRS.
We expect to withhold federal income tax at the rate of 30% on all distributions (including distributions that later may be determined to have been in excess of current and accumulated earnings and profits) made to a non-U.S. Stockholder, unless:
| | • | | a lower treaty rate applies and the non-U.S. Stockholder files with us an IRS Form W-8BEN evidencing eligibility for that reduced treaty rate; |
| | • | | the non-U.S. Stockholder files with us an IRS Form W-8ECI claiming that the distribution is income effectively connected with the non-U.S. Stockholder’s trade or business so that no withholding tax is required; or |
| | • | | the distributions are treated for FIRPTA withholding tax purposes as attributable to a sale of a U.S. real property interest, in which case tax will be withheld at a 35% rate. |
Unless our common stock constitutes a “U.S. real property interest” within the meaning of FIRPTA, a sale of common stock by a non-U.S. Stockholder generally will not be subject to federal
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income taxation. Our common stock will not constitute a U.S. real property interest if we are a “domestically controlled qualified investment entity.” A REIT is “domestically controlled” under these rules if at all times during a specified testing period less than 50% in value of its shares is held directly or indirectly by non-U.S. Stockholders. We currently anticipate that we will be a domestically controlled qualified investment entity and, therefore, that the sale of our common stock will not be subject to taxation under FIRPTA. We cannot assure non-U.S. Stockholders, however, that we will be a domestically controlled qualified investment entity. If we were not a domestically controlled qualified investment entity, a non-U.S. Stockholder’s sale of common stock would be subject to tax under FIRPTA as a sale of a U.S. real property interest, unless the common stock were “regularly traded” on an established securities market and the selling stockholder owned no more than 5% of the common stock throughout the applicable testing period. If the gain on the sale of common stock was subject to taxation under FIRPTA, the non-U.S. Stockholder would be subject to the same treatment as a U.S. Stockholder with respect to the gain (subject to applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident-alien individuals). However, even if our common stock is not a U.S. real property interest, a nonresident-alien individual’s gains from the sale of our common stock will be taxable if the nonresident-alien individual is present in the United States for 183 days or more during the taxable year and certain other conditions apply, in which case the nonresident-alien individual will be subject to a 30% tax on his or her U.S.-source capital gains.
A purchaser of common stock from a non-U.S. Stockholder will not be required to withhold under FIRPTA on the purchase price if the purchased common stock is “regularly traded” on an established securities market or if we are a domestically controlled qualified investment entity. Otherwise, the purchaser of common stock from a non-U.S. Stockholder may be required to withhold 10% of the purchase price and remit this amount to the IRS. At the time you purchase shares in this offering, our shares will not be publicly traded, and we can give you no assurance that our shares will ever be publicly traded on an established securities exchange or that we will be a domestically controlled qualified investment entity.
If a non-U.S. Stockholder has shares of our common stock redeemed by us, such non-U.S. Stockholder will be treated as if such non-U.S. Stockholder sold the redeemed shares if all of such non-U.S. Stockholder’s shares of our common stock are redeemed or if such redemption is not essentially equivalent to a dividend within the meaning of Section 302(b)(1) of the Code or substantially disproportionate within the meaning of Section 302(b)(2) of the Code. If a redemption is not treated as a sale of the redeemed shares, it will be treated as a dividend distribution. Non-U.S. Stockholders should consult with their tax advisors regarding the taxation of any particular redemption of our shares.
Upon the death of a nonresident-alien individual, that individual’s common stock will be treated as part of his or her U.S. estate for purposes of the U.S. estate tax, except as may be otherwise provided in an applicable estate tax treaty.
Information Reporting Requirements and Backup Withholding Tax
U.S. Stockholders
In general, information reporting requirements will apply to payments of distributions on our common stock and to payments of the proceeds of the sale of our common stock, unless an exception applies. Further, under certain circumstances, U.S. Stockholders may be subject to backup withholding at a current rate of 28% on payments made with respect to, or cash proceeds of a sale or exchange of, our common stock. Backup withholding will apply only if:
| | (1) | the payee fails to furnish his or her taxpayer identification number (which, for an individual, would be his or her Social Security Number) to the payor as required; |
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| | (2) | the IRS notifies the payor that the taxpayer identification number furnished by the payee is incorrect; |
| | (3) | the IRS has notified the payee that such payee has failed to properly include reportable interest and dividends in the payee’s return or has failed to file the appropriate return and the IRS has assessed a deficiency with respect to such underreporting; or |
| | (4) | the payee has failed to certify to the payor, under penalties of perjury, that the payee is not subject to withholding. |
In addition, backup withholding will not apply with respect to payments made to certain exempt recipients, such as corporations and tax-exempt organizations. U.S. Stockholders should consult their own tax advisors regarding their qualifications for exemption from backup withholding and the procedure for obtaining such an exemption.
Backup withholding is not an additional tax. Rather, the amount of any backup withholding with respect to a payment to a U.S. Stockholder will be allowed as a credit against the U.S. Stockholder’s federal income tax liability and may entitle the stockholder to a refund, provided that the stockholder furnishes the required information to the IRS.
Non-U.S. Stockholders
Generally information reporting will apply to payments of distributions on our common stock and backup withholding at a current rate of 28% may apply, unless the payee certifies that he or she is not a U.S. person or otherwise establishes an exemption.
The payment of the proceeds from the disposition of our common stock to or through the U.S. office of a U.S. or foreign broker will be subject to information reporting and, possibly, backup withholding, unless the non-U.S. Stockholder certifies as to his or her non-U.S. status or otherwise establishes an exemption and provided that the broker does not have actual knowledge that the stockholder is a U.S. person or that the conditions of any other exemption are not, in fact, satisfied. The proceeds of the disposition of our common stock by a non-U.S. Stockholder to or through a foreign office of a broker generally will not be subject to information reporting or backup withholding. However, if the broker is a U.S. person, a controlled foreign corporation for U.S. tax purposes or a foreign person 50% or more of whose gross income from all sources for specified periods is from activities that are effectively connected with a U.S. trade or business, information reporting generally will apply, unless the broker has documentary evidence as to the non-U.S. Stockholder’s foreign status and has no actual knowledge to the contrary.
Applicable Treasury regulations provide presumptions regarding the status of stockholders when payments to the stockholders cannot be reliably associated with appropriate documentation provided to the payor. These Treasury regulations require some stockholders to have provided new certifications with respect to payments made after December 31, 2000. Because the application of these Treasury regulations varies depending on the stockholder’s particular circumstances, non-U.S. Stockholders should consult their tax advisors with regard to U.S. information reporting and backup withholding.
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Tax Aspects of the Operating Partnership
General
We expect that substantially all of our investments will be held through our Operating Partnership. In general, partnerships are “pass-through” entities that are not subject to federal income tax. Rather, partners are allocated their proportionate share of the items of income, gain, loss, deduction and credit of a partnership and are potentially subject to tax thereon, without regard to whether the partners receive distributions from the partnership. We will include in our income our proportionate share of the Operating Partnership’s income, gain, loss, deduction and credit for purposes of the various REIT income tests and in the computation of our REIT taxable income. In addition, we will include our proportionate share of the assets held by the Operating Partnership in the REIT asset tests.
Basis in Operating Partnership Interest
Our adjusted tax basis in our interest in the Operating Partnership generally:
| | (1) | will be equal to the amount of cash and the basis of any other property that we contribute to the Operating Partnership; |
| | (2) | will be increased by (a) our allocable share of the Operating Partnership’s income and (b) our allocable share of indebtedness of the Operating Partnership; and |
| | (3) | will be reduced, but not below zero, by our allocable share of (a) losses suffered by the Operating Partnership, (b) the amount of cash distributed to us, and (c) constructive distributions resulting from a reduction in our share of indebtedness of the Operating Partnership. |
If the allocation of our distributive share of the Operating Partnership’s loss exceeds the adjusted tax basis of our partnership interest in the Operating Partnership, the recognition of such excess loss will be deferred until such time and to the extent that we have an adjusted tax basis in our partnership interest. To the extent that the Operating Partnership’s distributions, or any decrease in our share of the indebtedness of the Operating Partnership (such decreases being considered a cash distribution to the partners), exceed our adjusted tax basis, such excess distributions (including such constructive distributions) will constitute taxable income to us. Such taxable income normally will be characterized as a capital gain if the interest in the Operating Partnership has been held for longer than one year, subject to reduced tax rates described above (See “ — Taxation of U.S. Stockholders — Capital Gain Distributions”). Under current law, capital gains and ordinary income of corporations generally are taxed at the same marginal rates.
Sale of the Properties
Our share of the gain realized by the Operating Partnership on the sale of any property held by the Operating Partnership as inventory or other property held primarily for sale to customers in the ordinary course of the Operating Partnership’s trade or business will be treated as income from a prohibited transaction that is subject to a 100% penalty tax. See “ — Requirements for Qualification — Income Tests.” Under existing law, whether property is held as inventory or primarily for sale to customers in the ordinary course of the Operating Partnership’s trade or business is a question of fact that depends on all the facts and circumstances with respect to the particular transaction. We, however, do not presently intend to acquire or hold or allow the Operating Partnership to acquire or hold any property that
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represents inventory or other property held primarily for sale to customers in the ordinary course of our or the Operating Partnership’s trade or business.
State and Local Tax
We may be subject to state and local tax in various states and localities. Our stockholders may also be subject to state and local tax in various states and localities. The tax treatment to us and to our stockholders in such jurisdictions may differ from the federal income tax treatment described above. Consequently, before you buy our common stock, you should consult your own tax advisor regarding the effect of state and local tax laws on an investment in our common stock.
ERISA CONSIDERATIONS
The following is a summary of some considerations associated with an investment in our shares by a qualified employee pension benefit plan or an individual retirement account (IRA). This summary is based on provisions of the Employee Retirement Income Security Act of 1974 (ERISA) and the Code, each as amended through the date of this prospectus, and the relevant regulations, opinions and other authority issued by the Department of Labor and the IRS. We cannot assure you that there will not be adverse tax or labor decisions or legislative, regulatory or administrative changes that would significantly modify the statements expressed herein. Any such changes may apply to transactions entered into prior to the date of their enactment.
Each fiduciary of an employee pension benefit plan subject to ERISA (such as a profit sharing, section 401(k) or pension plan) or any other retirement plan or account subject to Section 4975 of the Code, such as an IRA, seeking to invest plan assets in our shares must, taking into account the facts and circumstances of each such plan or IRA (Benefit Plan), consider, among other matters:
| | • | | whether the investment is consistent with the applicable provisions of ERISA and the Code; |
| | • | | whether, under the facts and circumstances pertaining to the Benefit Plan in question, the fiduciary’s responsibility to the plan has been satisfied; |
| | • | | whether the investment will produce “unrelated business taxable income” (“UBTI”) to the Benefit Plan (see “Federal Income Tax Considerations — Taxation of U.S. Stockholders — Treatment of Tax-Exempt Stockholders”); and |
| | • | | the need to value the assets of the Benefit Plan annually. |
Under ERISA, a plan fiduciary’s responsibilities include the following duties:
| | • | | to act solely in the interest of plan participants and beneficiaries and for the exclusive purpose of providing benefits to them, as well as defraying reasonable expenses of plan administration; |
| | • | | to invest plan assets prudently; |
| | • | | to diversify the investments of the plan, unless it is clearly prudent not to do so; |
| | • | | to ensure sufficient liquidity for the plan; |
| | • | | to ensure that plan investments are made in accordance with plan documents; and |
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| | • | | to consider whether an investment would constitute or give rise to a prohibited transaction under ERISA or the Code. |
ERISA also requires that, with certain exceptions, the assets of an employee benefit plan be held in trust and that the trustee, or a duly authorized named fiduciary or investment manager, have exclusive authority and discretion to manage and control the assets of the plan.
Prohibited Transactions
Section 406 of ERISA and Section 4975 of the Code prohibit specified transactions involving the assets of a Benefit Plan that are between the plan and any “party in interest” or “disqualified person” with respect to that Benefit Plan, unless an administrative or statutory exemption applies. These transactions are prohibited regardless of how beneficial they may be for the Benefit Plan. Prohibited transactions include the sale, exchange or leasing of property, and the lending of money or the extension of credit, between a Benefit Plan and a party in interest or disqualified person. The transfer to (or use by or for the benefit of) a party in interest or disqualified person of any assets of a Benefit Plan is also prohibited, as is the furnishing of services between a plan and a party in interest. A fiduciary of a Benefit Plan is also prohibited from engaging in self-dealing, acting for a person who has an interest adverse to the plan in connection with a transaction involving the plan or receiving any consideration for its own account from a party dealing with the plan in a transaction involving plan assets. Furthermore, Section 408 of the Code states that assets of an IRA trust may not be commingled with other property except in a common trust fund or common investment fund.
Plan Asset Considerations
In order to determine whether an investment in our shares by a Benefit Plan creates or gives rise to the potential for either prohibited transactions or a commingling of assets as referred to above, a fiduciary must consider whether an investment in our shares will cause our assets to be treated as assets of the investing Benefit Plan. Neither ERISA nor the Code defines the term “plan assets”; however, regulations promulgated by the Department of Labor provide guidelines as to whether, and under what circumstances, the underlying assets of an entity will be deemed to constitute assets of a Benefit Plan when the plan invests in that entity (Plan Assets Regulation). Under the Plan Assets Regulation, the assets of an entity in which a Benefit Plan makes an equity investment will generally be deemed to be assets of the Benefit Plan, unless one of the exceptions to this general rule applies.
In the event that our underlying assets were treated as the assets of investing Benefit Plans, our management would be treated as fiduciaries with respect to each Benefit Plan stockholder and an investment in our shares might constitute an ineffective delegation of fiduciary responsibility to KBS Capital Advisors, our advisor, and expose the fiduciary of the Benefit Plan to co-fiduciary liability under ERISA for any breach by KBS Capital Advisors of the fiduciary duties mandated under ERISA. Further, if our assets are deemed to be “plan assets,” an investment by an IRA in our shares might be deemed to result in an impermissible commingling of IRA assets with other property.
If KBS Capital Advisors or its affiliates were treated as fiduciaries with respect to Benefit Plan stockholders, the prohibited transaction restrictions of ERISA and the Code would apply to any transaction involving our assets. These restrictions could, for example, require that we avoid transactions with persons that are affiliated with or related to us or our affiliates or require that we restructure our activities in order to obtain an administrative exemption from the prohibited transaction restrictions. Alternatively, we might have to provide Benefit Plan stockholders with the opportunity to sell their shares to us or we might dissolve.
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If a prohibited transaction were to occur, the Code imposes an excise tax equal to 15% of the amount involved and authorizes the IRS to impose an additional 100% excise tax if the prohibited transaction is not “corrected” in a timely manner. These taxes would be imposed on any disqualified person who participates in the prohibited transaction. In addition, KBS Capital Advisors and possibly other fiduciaries of Benefit Plan stockholders subject to ERISA who permitted the prohibited transaction to occur or who otherwise breached their fiduciary responsibilities (or a non-fiduciary participating in a prohibited transaction) could be required to restore to the Benefit Plan any profits they realized as a result of the transaction or breach and make good to the Benefit Plan any losses incurred by the Benefit Plan as a result of the transaction or breach. With respect to an IRA that invests in our shares, the occurrence of a prohibited transaction involving the individual who established the IRA, or his or her beneficiary, would cause the IRA to lose its tax-exempt status under Section 408(e)(2) of the Code.
The Plan Assets Regulation provides that the underlying assets of an entity such as a REIT will be treated as assets of a Benefit Plan investing therein unless the entity satisfies one of the exceptions to the general rule. We believe that we will satisfy one or more of the exceptions described below.
Exception for “Publicly-Offered Securities.” If a Benefit Plan acquires “publicly-offered securities,” the assets of the issuer of the securities will not be deemed to be “plan assets” under the Plan Assets Regulation. A publicly-offered security must be:
| | • | | sold as part of a public offering registered under the Securities Act of 1933, as amended, and be part of a class of securities registered under the Securities Exchange Act of 1934, as amended, within a specified time period; |
| | • | | part of a class of securities that is owned by 100 or more persons who are independent of the issuer and one another; and |
Our shares are being sold as part of an offering of securities to the public pursuant to an effective registration statement under the Securities Act of 1933 and are part of a class that will be registered under the Securities Exchange Act of 1934 within the specified period. In addition, we anticipate having in excess of 100 independent stockholders; however, having 100 independent stockholders is not a condition to our selling shares in this offering.
Whether a security is “freely transferable” depends upon the particular facts and circumstances. For example, our shares are subject to certain restrictions on transferability intended to ensure that we continue to qualify for federal income tax treatment as a REIT. The Plan Assets Regulation provides, however, that where the minimum investment in a public offering of securities is $10,000 or less, the presence of a restriction on transferability intended to prohibit transfers that would result in a termination or reclassification of the entity for state or federal tax purposes will not ordinarily affect a determination that such securities are “freely transferable.” The minimum investment in our shares is less than $10,000; thus, we believe the restrictions imposed in order to maintain our status as a REIT should not cause the shares to be deemed not to be “freely transferable.”
If our common stock is held by 100 or more independent stockholders, and assuming that no other facts and circumstances other than those referred to in the preceding paragraph exist that restrict transferability of our common stock and the offering takes place as described in this prospectus, our common stock should constitute “publicly-offered securities” and, accordingly, we believe our underlying assets should not be considered “plan assets” under the Plan Assets Regulation.
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Exception for Insignificant Participation by Benefit Plan Investors. The Plan Assets Regulation provides that the assets of an entity will not be deemed to be the assets of a Benefit Plan if equity participation in the entity by employee benefit plans, including Benefit Plans, is not significant. An equity participation in an entity is not deemed to be significant if Benefit Plans hold less than 25% of the value of each class of equity interests in that entity. In calculating the value of a class of equity interests, the value of any equity interests held by us or any of our affiliates must be excluded. Although we expect to qualify for this exception, neither our organizational documents nor our escrow arrangements restrict ownership of each class of equity interests held by Benefit Plans to less than 25%.
Exception for Operating Companies.The Plan Assets Regulation provides an exception with respect to securities issued by an operating company, which includes a “real estate operating company” or a “venture capital operating company.” Generally, we will be deemed to be a real estate operating company if during the relevant valuation periods at least 50% of our assets are invested in real estate that is managed or developed and with respect to which we have the right to participate substantially in management or development activities. To constitute a venture capital operating company, 50% or more of our assets must be invested in “venture capital investments” during the relevant valuation periods. A venture capital investment is an investment in an operating company, including a “real estate operating company,” as to which the investing entity has or obtains direct management rights. If we do not qualify as a “real estate operating company” because our ownership of interests in our Operating Partnership is not deemed to be an investment in real estate, then our investment in our Operating Partnership, an entity we manage and that will invest directly in real estate, should constitute a venture capital investment. However, because of the uncertainty of the application of standards set forth in the Plan Assets Regulation with respect to the operating company exception and because we currently own no real estate assets, we cannot assure that we will qualify for one of the operating company exceptions.
Other Prohibited Transactions
Regardless of whether the shares qualify for the “publicly-offered security” exception of the Plan Assets Regulation, a prohibited transaction could occur if we, KBS Capital Advisors, any selected broker-dealer or any of their affiliates is a fiduciary (within the meaning of Section 3(21) of ERISA) with respect to any Benefit Plan purchasing our shares. Accordingly, unless an administrative or statutory exemption applies, shares should not be purchased by a Benefit Plan with respect to which any of the above persons is a fiduciary. A person is a fiduciary with respect to a Benefit Plan under Section 3(21) of ERISA if, among other things, the person has discretionary authority or control with respect to the Benefit Plan or “plan assets” or provides investment advice for a fee with respect to “plan assets.” Under a regulation issued by the Department of Labor, a person shall be deemed to be providing investment advice if that person renders advice as to the advisability of investing in our shares and that person regularly provides investment advice to the Benefit Plan pursuant to a mutual agreement or understanding (written or otherwise) (1) that the advice will serve as the primary basis for investment decisions and (2) that the advice will be individualized for the Benefit Plan based on its particular needs.
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Annual Valuation
A fiduciary of an employee benefit plan subject to ERISA is required to determine annually the fair market value of each asset of the plan as of the end of the plan’s fiscal year and to file a report reflecting that value with the Department of Labor. When the fair market value of any particular asset is not available, the fiduciary is required to make a good faith determination of that asset’s fair market value, assuming an orderly liquidation at the time the determination is made. In addition, a trustee or custodian of an IRA must provide an IRA participant with a statement of the value of the IRA each year. In discharging its obligation to value assets of a plan, a fiduciary subject to ERISA must act consistently with the relevant provisions of the plan and the general fiduciary standards of ERISA.
Unless and until our shares are listed on a national securities exchange or are included for quotation on the Nasdaq National Market, we do not expect that a public market for our shares will develop. To date, neither the IRS nor the Department of Labor has promulgated regulations specifying how a plan fiduciary should determine the fair market value of shares when the fair market value of such shares is not determined in the marketplace. Therefore, to assist fiduciaries in fulfilling their valuation and annual reporting responsibilities, we intend to have our advisor prepare annual reports of the estimated value of our shares.
We expect that we will engage our advisor to value our shares, though in the future we may hire a third-party valuation firm for that purpose. Until three years after we have completed our offering stage, our advisor has indicated that it intends to use the most recent price paid to acquire a share in our offering (ignoring purchase price discounts for certain categories of purchasers) as its estimated per share value of our shares. Although this approach to valuing our shares has the advantage of avoiding the cost of paying for appraisals or other valuation services, the estimated value may bear little relationship and will likely exceed what you might receive for your shares if you tried to sell them or if we liquidated our portfolio. We will consider our offering stage complete when we are no longer publicly offering equity securities and have not done so for one year. (For purposes of this definition, we do not consider a “public equity offering” to include offerings on behalf of selling stockholders or offerings related to a dividend reinvestment plan, employee benefit plan or the redemption of interests in the Operating Partnership).
When determining the net asset value of our shares after completion of our offering stage, our advisor, or another firm we choose for that purpose, will estimate the value of our shares based upon a number of assumptions that may not be accurate or complete. We do not currently anticipate obtaining appraisals for our properties and, accordingly, the estimates should not be viewed as an accurate reflection of the fair market value of our properties nor will they represent the amount of net proceeds that would result from an immediate sale of our properties. For these reasons, the estimated valuations should not be utilized for any purpose other than to assist plan fiduciaries in fulfilling their annual valuation and reporting responsibilities. Even after our advisor no longer uses the most recent offering price as the estimated value of our shares, you should be aware of the following:
| | • | | the estimated values may not be realized by us or by you upon liquidation (in part because estimated values do not necessarily indicate the price at which assets could be sold and because the estimates may not take into account the expenses of selling our assets); |
| | • | | you may not realize these values if you were to attempt to sell your shares; and |
| | • | | the estimated values, or the method used to establish values, may not comply with the ERISA or IRA requirements described above. |
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DESCRIPTION OF SHARES
Our amended and restated charter authorizes the issuance of 1,010,000,000 shares of capital stock, of which 1,000,000,000 shares are designated as common stock with a par value of $0.01 per share and 10,000,000 shares are designated as preferred stock with a par value of $0.01 per share. In addition, our board of directors may amend our charter to increase or decrease the amount of our authorized shares. As of the date of this prospectus, 20,000 shares of our common stock were issued and outstanding, and no shares of preferred stock were issued and outstanding.
Common Stock
The holders of our common stock are entitled to one vote per share on all matters submitted to a stockholder vote, including the election of our directors. Our charter does not provide for cumulative voting in the election of our directors. Therefore, the holders of a majority of our outstanding common shares can elect our entire board of directors. Unless applicable law requires otherwise, and except as our charter may provide with respect to any series of preferred stock that we may issue in the future, the holders of our common stock will possess exclusive voting power.
Holders of our common stock will be entitled to receive such distributions as declared from time to time by our board of directors out of legally available funds, subject to any preferential rights of any preferred stock that we issue in the future. In any liquidation, each outstanding share of common stock entitles its holder to share (based on the percentage of shares held) in the assets that remain after we pay our liabilities and any preferential distributions owed to preferred stockholders. Holders of shares of our common stock will not have preemptive rights, which means that you will not have an automatic option to purchase any new shares that we issue.
Our board of directors has authorized the issuance of shares of our capital stock without certificates. We expect that, until our shares are listed on a national securities exchange or the Nasdaq National Market, we will not issue shares in certificated form. We maintain a stock ledger that contains the name and address of each stockholder and the number of shares that the stockholder holds. With respect to uncertificated stock, we will continue to treat the stockholder registered on our stock ledger as the owner of the shares until the new owner delivers a properly executed form to us, which form we will provide to any registered holder upon request.
Preferred Stock
Our charter authorizes our board of directors to designate and issue one or more classes or series of preferred stock without stockholder approval. Our board of directors may determine the relative rights, preferences and privileges of each class or series of preferred stock so issued, which may be more beneficial than the rights, preferences and privileges attributable to our common stock. The issuance of preferred stock could have the effect of delaying or preventing a change in control. Our board of directors has no present plans to issue preferred stock but may do so at any time in the future without stockholder approval.
Meetings and Special Voting Requirements
An annual meeting of our stockholders will be held each year, at least 30 days after delivery of our annual report. Special meetings of stockholders may be called only upon the request of a majority of our directors, a majority of our independent directors, our chief executive officer, our president or upon the written request of stockholders holding at least 10% of the shares entitled to be cast on any issue proposed to be considered at the special meeting. Upon receipt of a written request of stockholders
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holding at least 10% of the shares entitled to be cast stating the purpose of the special meeting, our secretary will provide all of our stockholders written notice of the meeting and the purpose of such meeting. The meeting must be held not less than 15 days or more than 60 days after the distribution of the notice of the meeting. The presence in person or by proxy of stockholders entitled to cast a majority of all the votes entitled to be cast at any stockholder meeting constitutes a quorum. Unless otherwise provided by the Maryland General Corporation Law or our charter, the affirmative vote of a majority of all votes cast is necessary to take stockholder action, except that a plurality of the votes cast is sufficient to elect a director.
Our charter provides that the concurrence of the board is not required in order for the stockholders to amend the charter, dissolve the corporation or remove directors. However, we have been advised that Maryland law does require board approval in order to amend our charter or dissolve. Without the approval of a majority of the shares entitled to vote on the matter, the board of directors may not:
| | • | | amend the charter to adversely affect the rights, preferences and privileges of the stockholders; |
| | • | | amend charter provisions relating to director qualifications, fiduciary duties, liability and indemnification, conflicts of interest, investment policies or investment restrictions; |
| | • | | cause our liquidation or dissolution after our initial investment in property; |
| | • | | sell all or substantially all of our assets other than in the ordinary course of business; or |
| | • | | cause our merger or reorganization. |
The term of the current advisory agreement with KBS Capital Advisors ends after one year but may be renewed for an unlimited number of successive one-year periods upon the mutual consent of KBS Capital Advisors and us. Our independent directors will annually review our advisory agreement with KBS Capital Advisors. While the stockholders do not have the ability to vote to replace KBS Capital Advisors or to select a new advisor, stockholders do have the ability, by the affirmative vote of a majority of the shares entitled to vote on such matter, to remove a director from our board.
Advance Notice for Stockholder Nominations for Directors and Proposals of New Business
In order for a stockholder to nominate a director or propose new business at the annual stockholders’ meeting, our bylaws generally require that the stockholder give notice of the nomination or proposal at least 90 days but not more than 120 days prior to the first anniversary of the date of the mailing of the notice for the preceding year’s annual stockholders’ meeting, unless such nomination or proposal is made pursuant to the company’s notice of the meeting or by or at the direction of our board of directors. Our bylaws contain a similar notice requirement in connection with nominations for directors at a special meeting of stockholders called for the purpose of electing one or more directors. Failure to comply with the notice provisions will make stockholders unable to nominate directors or propose new business.
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Restriction on Ownership of Shares
Ownership Limit
To maintain our REIT qualification, not more than 50% in value of our outstanding shares may be owned, directly or indirectly, by five or fewer individuals (including certain entities treated as individuals under the Internal Revenue Code) during the last half of each taxable year. In addition, at least 100 persons who are independent of us and each other must beneficially own our outstanding shares for at least 335 days per 12-month taxable year or during a proportionate part of a shorter taxable year. Each of the requirements specified in the two preceding sentences shall not apply until after 2006, the first taxable year for which we will make an election to be taxed as a REIT. We may prohibit certain acquisitions and transfers of shares so as to ensure our continued qualification as a REIT under the Internal Revenue Code. However, we cannot assure you that this prohibition will be effective.
To help ensure that we meet these tests, our charter prohibits any person or group of persons from acquiring, directly or indirectly, beneficial ownership of more than 9.8% of our aggregate outstanding shares unless exempted by our board of directors. Our board of directors may waive this ownership limit with respect to a particular person if the board receives evidence that ownership in excess of the limit will not jeopardize our REIT status. For purposes of this provision, we treat corporations, partnerships and other entities as single persons.
Any attempted transfer of our shares that, if effective, would result in a violation of our ownership limit or would result in our shares being owned by fewer than 100 persons will be null and void and will cause the number of shares causing the violation to be automatically transferred to a trust for the exclusive benefit of one or more charitable beneficiaries. The prohibited transferee will not acquire any rights in the shares. The automatic transfer will be deemed to be effective as of the close of business on the business day prior to the date of the attempted transfer. We will designate a trustee of the trust that will not be affiliated with us or the prohibited transferee. We will also name one or more charitable organizations as a beneficiary of the share trust.
Shares held in trust will remain issued and outstanding shares and will be entitled to the same rights and privileges as all other shares of the same class or series. The prohibited transferee will not benefit economically from any of the shares held in trust, will not have any rights to dividends or distributions and will not have the right to vote or any other rights attributable to the shares held in the trust. The trustee will receive all dividends and distributions on the shares held in trust and will hold such dividends or distributions in trust for the benefit of the charitable beneficiary. The trustee may vote any shares held in trust.
Within 20 days of receiving notice from us that any of our shares have been transferred to the trust for the charitable beneficiary, the trustee will sell those shares to a person designated by the trustee whose ownership of the shares will not violate the above restrictions. Upon the sale, the interest of the charitable beneficiary in the shares sold will terminate and the trustee will distribute the net proceeds of the sale to the prohibited transferee and to the charitable beneficiary as follows. The prohibited transferee will receive the lesser of (i) the price paid by the prohibited transferee for the shares or, if the prohibited transferee did not give value for the shares in connection with the event causing the shares to be held in the trust (e.g., a gift, devise or other similar transaction), the market price (as defined in our charter) of the shares on the day of the event causing the shares to be held in the trust and (ii) the price received by the trustee from the sale or other disposition of the shares. Any net sale proceeds in excess of the amount payable to the prohibited transferee will be paid immediately to the charitable beneficiary. If, prior to our discovery that shares have been transferred to the trust, the shares are sold by the prohibited transferee, then (i) the shares shall be deemed to have been sold on behalf of the trust and (ii) to the extent that the
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prohibited transferee received an amount for the shares that exceeds the amount he was entitled to receive, the excess shall be paid to the prohibited trustee upon demand.
In addition, shares held in the trust for the charitable beneficiary will be deemed to have been offered for sale to us, or our designee, at a price per share equal to the lesser of (i) the price per share in the transaction that resulted in the transfer to the trust (or, in the case of a devise or gift, the market price at the time of the devise or gift) and (ii) the market price on the date we, or our designee, accept the offer. We will have the right to accept the offer until the trustee has sold the shares. Upon a sale to us, the interest of the charitable beneficiary in the shares sold will terminate and the trustee will distribute the net proceeds of the sale to the prohibited transferee.
Any person who acquires or attempts to acquire shares in violation of the foregoing restrictions or who would have owned the shares that were transferred to any such trust must give us immediate written notice of such event, and any person who proposes or attempts to acquire or receive shares in violation of the foregoing restrictions must give us at least 15 days’ written notice prior to such transaction. In both cases, such persons shall provide to us such other information as we may request in order to determine the effect, if any, of such transfer on our status as a REIT.
The foregoing restrictions will continue to apply until our board of directors determines it is no longer in our best interest to continue to qualify as a REIT. The ownership limit does not apply to any underwriter in an offering of our shares or to a person or persons exempted from the ownership limit by our board of directors based upon appropriate assurances that our qualification as a REIT would not be jeopardized.
Within 30 days after the end of each taxable year, every owner of 5% or more of our outstanding capital stock will be asked to deliver to us a statement setting forth the number of shares owned directly or indirectly by such person and a description of how such person holds the shares. Each such owner shall also provide us with such additional information as we may request in order to determine the effect, if any, of his or her beneficial ownership on our status as a REIT and to ensure compliance with our ownership limit.
These restrictions could delay, defer or prevent a transaction or change in control of our company that might involve a premium price for our shares of common stock or otherwise be in the best interests of our stockholders.
Suitability Standards and Minimum Purchase Requirements
State securities laws and our charter require that purchasers of our stock meet standards regarding (i) net worth or income and (ii) minimum purchase amounts. These standards are described above at “Suitability Standards” immediately following the cover page of this prospectus and below at “Plan of Distribution — Minimum Purchase Requirements.” The standards apply not only to purchasers in this offering but also to potential purchasers of your shares. These suitability and minimum purchase amount requirements are applicable until our shares of common stock are listed on a national securities exchange or the Nasdaq National Market, and these requirements may make it more difficult for you to sell your shares.
Dividends
We expect to authorize, declare and pay dividends on a monthly basis as soon as we have sufficient cash flow from our operations. In order that investors may generally begin earning dividends
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immediately upon our acceptance of their subscription, we expect to use daily record dates for the determination of who is entitled to a dividend.
To maintain our qualification as a REIT, we must make aggregate annual distributions to our stockholders of at least 90% of our REIT taxable income (which is computed without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). If we meet the REIT qualification requirements, we generally will not be subject to federal income tax on the income that we distribute to our stockholders each year. See “Federal Income Tax Considerations — Annual Distribution Requirements.”
Our board of directors will declare dividends at its discretion. Generally, our policy will be to pay dividends from cash flow from operations and not to pay dividends from offering proceeds; however, our board has the authority under our organizational documents, to the extent permitted by Maryland law, to pay dividends from any source, including borrowings, offering proceeds or the proceeds from the issuance of securities. Our board will be guided, in substantial part, by its desire to cause us to comply with the REIT requirements. Because we may receive income from interest or rents at various times during our fiscal year, dividends may not reflect our income earned in that particular distribution period. Instead, in an attempt to make dividends relatively uniform, we may declare dividends in anticipation of cash flow that we expect to receive during a later period and we may pay these dividends in advance of our actual receipt of these funds. In these instances, we expect to look first to borrowings to fund our distributions.
We may distribute our own securities in lieu of making cash dividends to stockholders, provided that the securities so distributed are readily marketable. Stockholders who receive marketable securities in lieu of cash dividends may incur transaction expenses in liquidating those securities.
Inspection of Books and Records
As a part of our books and records, we will maintain at our principal office an alphabetical list of the names of our stockholders, along with their addresses and telephone numbers and the number of shares held by each of them. We will update this stockholder list at least monthly and it will be available for inspection at our principal office by a stockholder or his or her designated agent upon such stockholder’s request. We will also mail this list to any stockholder within 10 days of receipt of his or her request. We may impose a reasonable charge for expenses incurred in reproducing such list. Stockholders, however, may not sell or use this list for commercial purposes. The purposes for which stockholders may request this list include matters relating to their voting rights.
If our advisor or our board of directors neglects or refuses to exhibit, produce or mail a copy of the stockholder list as requested, our advisor or board, as the case may be, shall be liable to the stockholder requesting the list for the costs, including attorneys’ fees, incurred by that stockholder for compelling the production of the stockholder list and any actual damages suffered by the stockholder for the neglect or refusal to produce the list. It shall be a defense that the actual purpose and reason for the request for inspection or for a copy of the stockholder list is to secure such list of stockholders or other information for the purpose of selling such list or copies thereof, or of using the same for a commercial purpose (such as to solicit the purchase of our shares) other than in the interest of the applicant as a stockholder relative to the affairs of our company. We may require that the stockholder requesting the stockholder list represent that the request is not for a commercial purpose unrelated to the stockholder’s interest in our company. The remedies provided by our charter to stockholders requesting copies of the stockholder list are in addition to, and do not in any way limit, other remedies available to stockholders under federal law, or the law of any state.
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Dividend Reinvestment Plan
We have adopted an amended and restated dividend reinvestment plan pursuant to which you may elect to have your dividends and other distributions reinvested in additional shares of our common stock. The following discussion summarizes the principal terms of this plan. Appendix B to this prospectus contains the full text of our amended and restated dividend reinvestment plan as is currently in effect.
Eligibility
All of our stockholders are eligible to participate in our dividend reinvestment plan; however, we may elect to deny your participation in the dividend reinvestment plan if you reside in a jurisdiction or foreign country where, in our judgment, the burden or expense of compliance with applicable securities laws makes your participation impracticable or inadvisable.
At any time prior to the listing of our shares on a national stock exchange or the Nasdaq National Market, you must cease participation in our dividend reinvestment plan if you no longer meet the suitability standards or cannot make the other investor representations set forth in the then-current prospectus or in the subscription agreement. Participants must agree to notify us promptly when they no longer meet these standards. See the “Suitability Standards” section of this prospectus (immediately following the cover page) and the form of subscription agreement attached hereto as Appendix A.
Election to Participate
You may elect to participate in the dividend reinvestment plan by completing the Subscription Agreement or other approved enrollment form available from the dealer manager or a participating broker-dealer. Your participation in the dividend reinvestment plan will begin with the next distribution made after receipt of your enrollment form. You can choose to have all or a portion of your dividends reinvested through the dividend reinvestment plan. You may also change the percentage of your dividends that will be reinvested at any time by completing a new enrollment form or other form provided for that purpose. You must make any election to increase your level of participation through your participating broker-dealer or the dealer manager.
Stock Purchases
Shares will be purchased under the dividend reinvestment plan on the monthly distribution payment dates. The purchase of fractional shares is a permissible and likely result of the reinvestment of dividends under the dividend reinvestment plan.
The purchase price for shares purchased under the dividend reinvestment plan will initially be $9.50 per share. Three years after the completion of our offering stage, shares issued pursuant to our dividend reinvestment plan will be priced at the net asset value per share of our common stock, as estimated by our advisor or another firm chosen for that purpose. We will consider our offering stage complete when we are no longer publicly offering equity securities and have not done so for one year. (For purposes of this definition, we do not consider “public equity offerings” to include offerings on behalf of selling stockholders or offerings related to any dividend reinvestment plan, employee benefit plan or the redemption of interests in our Operating Partnership.)
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Account Statements
You or your designee will receive a confirmation of your purchases under the dividend reinvestment plan no less than quarterly. Your confirmation will disclose the following information:
| | • | | each distribution reinvested for your account during the period; |
| | • | | the date of the reinvestment; |
| | • | | the number and price of the shares purchased by you; and |
| | • | | the total number of shares in your account. |
In addition, within 90 days after the end of each calendar year, we will provide you with an individualized report on your investment, including the purchase dates, purchase price, number of shares owned and the amount of distributions made in the prior year. We will also send to all participants in the plan, without charge, all supplements to and updated versions of this prospectus, as required under applicable securities laws.
Fees and Commissions
If we pay a selling commission in connection with the sale of shares to you in our primary offering, we will pay a 3% selling commission on any dividends that you reinvest under our dividend reinvestment plan (which commission may be higher than the selling commission charged in connection with recent dividend reinvestment plan offerings by other unlisted, publicly offered REITs). Otherwise, we will not pay selling commissions on shares sold under our dividend reinvestment plan. We will not pay any dealer manager fees in connection with shares sold under this plan. Whether we pay a selling commission will not affect the purchase price you pay under the dividend reinvestment plan, but it will affect the net proceeds to us from the sale. The total return for our investors would likely be higher if we paid no selling commissions. We will not receive a fee for selling shares under the dividend reinvestment plan. Sales under our dividend reinvestment plan, however, will result in greater fee income for our advisor. See “Management Compensation.”
Voting
You may vote all whole shares that you acquire through the dividend reinvestment plan.
Tax Consequences of Participation
If you elect to participate in the dividend reinvestment plan and are subject to federal income taxation, you will incur a tax liability for distributions allocated to you even though you have elected not to receive the distributions in cash but rather to have the distributions withheld and reinvested pursuant to the dividend reinvestment plan. Specifically, you will be treated as if you have received the distribution from us in cash and then applied such distribution to the purchase of additional shares. In addition, to the extent you purchase shares through our dividend reinvestment plan at a discount to their fair market value, you will be treated for tax purposes as receiving an additional distribution equal to the amount of the discount. At least until our offering stage is complete, we expect that (i) we will sell shares under the dividend reinvestment plan at $9.50 per share, (ii) no secondary trading market for our shares will develop and (iii) our advisor will estimate the fair market value of a share to be $10.00. Therefore, at least until our offering stage is complete, participants in our dividend reinvestment plan will be treated as having received a dividend of $10.00 for each $9.50 reinvested by them under our dividend reinvestment
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plan. You will be taxed on the amount of such distribution as a dividend to the extent such distribution is from current or accumulated earnings and profits, unless we have designated all or a portion of the dividend as a capital gain dividend. See “Federal Income Tax Considerations — Taxation of U.S. Stockholders and Distributions Generally.” We will withhold 28% of the amount of dividends or distributions paid if you fail to furnish a valid taxpayer identification number, fail to properly report interest or dividends or fail to certify that you are not subject to withholding.
Termination of Participation
Once enrolled, you may continue to purchase shares under our dividend reinvestment plan until we have sold all of the shares registered in this offering, have terminated this offering or have terminated the dividend reinvestment plan. You may terminate your participation in the dividend reinvestment plan at any time by providing us with written notice. For your termination to be effective for a particular distribution, we must have received your notice of termination at least 10 business days prior to the last day of the fiscal period to which the distribution relates. Any transfer of your shares will effect a termination of the participation of those shares in the dividend reinvestment plan. We will terminate your participation in the dividend reinvestment plan to the extent that a reinvestment of your dividends would cause you to violate the ownership limit contained in our charter, unless you have obtained an exemption from the ownership limit from our board of directors.
Amendment or Termination of Plan
We may amend or terminate the dividend reinvestment plan for any reason at any time, provided that any amendment that adversely affects the rights or obligations of a participant (as determined in the sole discretion of the board of directors) will only take effect upon 10 days’ written notice to participants.
Proposed Share Redemption Program
Our board of directors has approved (but delayed the adoption of) a share redemption program that may enable you to sell your shares to us in limited circumstances. However, we will not adopt the program during this primary offering or any subsequent primary offering unless the SEC grants us exemptive relief from the rules restricting issuer purchases during distributions, which relief we may never obtain. Moreover, our board of directors could choose not to adopt the proposed share redemption program or to amend its provisions without stockholder approval. Upon adoption, our proposed share redemption program would permit you to sell your shares back to us after you have held them for at least one year, subject to the significant conditions and limitations described below.
Initially, we will redeem shares at the lower of $9.00 or 90% of the price paid to acquire the shares from us, unless the shares are being redeemed in connection with the death of a stockholder. Three years after the completion of our offering stage, the redemption price per share would be equal to the net asset value per share of our common stock, as estimated by our advisor or another firm chosen for that purpose. We will consider our offering stage complete when we are no longer publicly offering equity securities and have not done so for one year. We would report this redemption price to you in our annual report and the three quarterly reports that we publicly file with the SEC. (For purposes of this definition, we do not consider “public equity offerings” to include offerings on behalf of selling stockholders or offerings related to a dividend reinvestment plan, employee benefit plan or the redemption of interests in the Operating Partnership).
Our share redemption program would limit the number of shares we could redeem to those that we could purchase with the net proceeds from the sale of shares under our dividend reinvestment plan during the prior calendar year. In addition, during any calendar year, we would redeem no more than 5%
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of the weighted average number of shares outstanding during the prior calendar year. We would also have no obligation to redeem shares if the redemption would violate the restrictions on distributions under Maryland law, which prohibits distributions that would cause a corporation to fail to meet statutory tests of solvency.
We intend to engage a third party to administer the share redemption program and will notify you of the administrator’s name and contact information. As proposed, we would redeem shares on the last business day of each month. The program administrator would have to receive your written request for redemption at least five business days before that date in order for us to repurchase your shares that month. If we could not repurchase all shares presented for redemption in any month, we would attempt to honor redemption requests on a pro rata basis. We would deviate from pro rata purchases in two minor ways: (i) if a pro rata redemption would result in you owning less than half of the minimum amount described below under “Plan of Distribution — Minimum Purchase Requirements,” then we would redeem all of your shares; and (ii) if a pro rata redemption would result in you owning more than half but less than all of the minimum amount, then we would not redeem any shares that would reduce your holdings below the minimum amount. In the event that you were redeeming all of your shares, there would be no holding period requirement for shares purchased pursuant to our dividend reinvestment plan.
If we did not completely satisfy a stockholder’s redemption request at month-end because the program administrator did not receive the request in time or because of the restrictions on the number of shares we could redeem under the program, we would treat the unsatisfied portion of the redemption request as a request for redemption in the following month unless the stockholder withdrew his or her request before the next date for redemptions. Any stockholder could withdraw a redemption request upon written notice to the program administrator if such notice is received by us at least five business days before the date for redemptions.
In several respects we would treat redemptions sought upon the death of a stockholder differently from other redemptions:
| | • | | there would be no one-year holding requirement; |
| | • | | until three years after the completion of our offering stage, the redemption price would be the amount paid to acquire the shares from us; and |
| | • | | three years after the completion of our offering stage, the redemption price would be the net asset value of the shares, as estimated by our advisor or another firm chosen for that purpose. |
We will notify you upon adoption of the share redemption program. After adoption of the share redemption program, our board of directors could amend, suspend or terminate the program upon 30 days’ notice. We would notify you of such developments in the annual or quarterly reports mentioned above or by means of a separate mailing to you, accompanied by disclosure in a current or periodic report under the Securities Exchange Act of 1934. During this offering, we would also include this information in a prospectus supplement or post-effective amendment to the registration statement, as required under federal securities laws.
Our proposed share redemption program would only provide stockholders a limited ability to redeem shares for cash until a secondary market develops for our shares, at which time the program would terminate. No such market presently exists, and we cannot assure you that any market for your shares will ever develop.
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Registrar and Transfer Agent
We will engage a third party to serve as the registrar and transfer agent for our common stock.
Restrictions on Roll-Up Transactions
A Roll-up Transaction is a transaction involving the acquisition, merger, conversion or consolidation, directly or indirectly, of us and the issuance of securities of an entity that is created or would survive after the successful completion of a Roll-up Transaction, which we refer to as a Roll-up Entity. This term does not include:
| | • | | a transaction involving our securities that have been for at least 12 months listed on a national securities exchange or included for quotation on the Nasdaq National Market; or |
| | • | | a transaction involving only our conversion into a trust or association if, as a consequence of the transaction, there will be no significant adverse change in the voting rights of our stockholders, the term of our existence, the compensation to our advisor or our investment objectives. |
In connection with any proposed Roll-up Transaction, an appraisal of all our assets will be obtained from a competent independent appraiser. Our assets will be appraised on a consistent basis, and the appraisal will be based on an evaluation of all relevant information and will indicate the value of our assets as of a date immediately preceding the announcement of the proposed Roll-up Transaction. The appraisal will assume an orderly liquidation of assets over a 12-month period. The terms of the engagement of the independent appraiser will clearly state that the engagement is for our benefit and the benefit of our stockholders. A summary of the appraisal, indicating all material assumptions underlying the appraisal, will be included in a report to our stockholders in connection with any proposed Roll-up Transaction.
In connection with a proposed Roll-up Transaction, the person sponsoring the Roll-up Transaction must offer to our stockholders who vote “no” on the proposal the choice of:
| | (1) | accepting the securities of the Roll-up Entity offered in the proposed Roll-up Transaction; or |
| | (A) | remaining as stockholders of us and preserving their interests in us on the same terms and conditions as existed previously; or |
| | (B) | receiving cash in an amount equal to the stockholders’ pro rata share of the appraised value of our net assets. |
We are prohibited from participating in any proposed Roll-up Transaction:
| | • | | that would result in our stockholders having democracy rights in a Roll-up Entity that are less than those provided in our charter and bylaws, including rights with respect to the election and removal of directors and the other voting rights of our stockholders, annual reports, annual and special meetings of stockholders, the amendment of our charter and our dissolution; |
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| | • | | that includes provisions that would operate to 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, or that would limit the ability of an investor to exercise the voting rights of its securities of the Roll-up Entity on the basis of the number of shares held by that investor; |
| | • | | in which investors’ rights of access to the records of the Roll-up Entity would be less than those provided in our charter and described in the section of this prospectus entitled “Description of Shares — Meetings and Special Voting Requirements;” or |
| | • | | in which any of the costs of the Roll-up Transaction would be borne by us if the Roll-up Transaction would not be approved by our stockholders. |
THE OPERATING PARTNERSHIP AGREEMENT
General
KBS Limited Partnership, which we refer to as the Operating Partnership, is a newly formed Delaware limited partnership. We expect to own substantially all of our assets and conduct our operations through the Operating Partnership. We are the sole general partner of the Operating Partnership and, as of the date of this prospectus, our wholly owned subsidiary, KBS REIT Holdings LLC, is the sole limited partner of the Operating Partnership.As the sole general partner, we have the exclusive power to manage and conduct the business of the Operating Partnership.
As we accept subscriptions for shares in this offering, we will transfer substantially all of the net proceeds of the offering to our Operating Partnership as a capital contribution in exchange for units of limited partnership interest that will be held by our wholly owned subsidiary, KBS REIT Holdings; however, we will be deemed to have made capital contributions in the amount of the gross offering proceeds received from investors. The Operating Partnership will be deemed to have simultaneously paid the selling commissions and other costs associated with the offering.
As a result of this structure, we are considered an UPREIT, or an umbrella partnership real estate investment trust. An UPREIT is a structure that REITs often use to acquire real property from sellers on a tax-deferred basis because the sellers can generally accept partnership units and defer taxable gain otherwise required to be recognized by them upon the disposition of their properties. Such sellers may also desire to achieve diversity in their investment and other benefits afforded to stockholders in a REIT. For purposes of satisfying the asset and income tests for qualification as a REIT, the REIT’s proportionate share of the assets and income of the Operating Partnership will be deemed to be assets and income of the REIT.
If we ever decide to acquire properties in exchange for units of limited partnership interest in the Operating Partnership, we expect to amend and restate the partnership agreement to provide substantially as set forth below.
Capital Contributions
We would expect the partnership agreement to require us to contribute the proceeds of any offering of our shares of stock to the Operating Partnership as an additional capital contribution. If we did contribute additional capital to the Operating Partnership, we would receive additional partnership units and our percentage interest in the Operating Partnership would be increased on a proportionate basis based upon the amount of such additional capital contributions and the value of the Operating Partnership
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at the time of such contributions. We also expect that the partnership agreement would allow us to cause the Operating Partnership to issue partnership interests for less than their fair market value if we conclude in good faith that such issuance is in the best interest of the Operating Partnership and us. The Operating Partnership would also be able to issue preferred partnership interests in connection with acquisitions of property or otherwise. These preferred partnership interests could have priority over common partnership interests with respect to distributions from the Operating Partnership, including priority over the partnership interests that we would own as a limited partner. If the Operating Partnership would require additional funds at any time in excess of capital contributions made by us or from borrowing, we could borrow funds from a financial institution or other lender and lend such funds to the Operating Partnership on the same terms and conditions as are applicable to our borrowing of such funds.
Operations
We would expect the partnership agreement to provide that, so long as we remain qualified as a REIT, the Operating Partnership would be operated in a manner that would enable us to satisfy the requirements for being classified as a REIT for tax purposes. We would also have the power to take actions to ensure that the Operating Partnership would not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Internal Revenue Code. Classification as a publicly traded partnership could result in the Operating Partnership being taxed as a corporation, rather than as a partnership.
Distributions and Allocations of Profits and Losses
The partnership agreement would provide that the Operating Partnership would distribute cash flow from operations to its partners in accordance with their respective percentage interests on at least a monthly basis in amounts that we determine. The effect of these distributions would be that a holder of one unit of limited partnership interest in our Operating Partnership would receive the same amount of annual cash flow distributions as the amount of annual dividends paid to the holder of one of our shares of common stock.
Similarly, the partnership agreement would provide that the Operating Partnership would allocate taxable income to its partners in accordance with their respective percentage interests. Subject to compliance with the provisions of Sections 704(b) and 704(c) of the Internal Revenue Code and the corresponding Treasury regulations, the effect of these allocations would be that a holder of one unit of limited partnership interest in the Operating Partnership would be allocated taxable income for each taxable year in an amount equal to the amount of taxable income to be recognized by a holder of one of our shares of common stock. Losses, if any, would generally be allocated among the partners in accordance with their respective percentage interests in the Operating Partnership. Losses could not be passed through to our stockholders.
Upon liquidation of the Operating Partnership, after payment of, or adequate provision for, debts and obligations of the Operating Partnership, including partner loans, any remaining assets of the Operating Partnership would be distributed to its partners in accordance with their respective positive capital account balances.
Rights, Obligations and Powers of the General Partner
We would expect to be the sole general partner of the Operating Partnership. As sole general partner, we generally would have complete and exclusive discretion to manage and control the Operating Partnership’s business and to make all decisions affecting its assets. Under an amended and restated partnership agreement, we would also expect to have the authority to:
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| | • | | acquire, purchase, own, operate, lease and dispose of any real property and any other assets; |
| | • | | construct buildings and make other improvements on owned or leased properties; |
| | • | | authorize, issue, sell, redeem or otherwise purchase any debt or other securities; |
| | • | | make or revoke any tax election; |
| | • | | maintain insurance coverage in amounts and types as we determine is necessary; |
| | • | | retain employees or other service providers; |
| | • | | form or acquire interests in joint ventures; and |
| | • | | merge, consolidate or combine the Operating Partnership with another entity. |
As it will upon commencement of this offering, under an amended and restated partnership agreement, we expect that the Operating Partnership would pay all of the administrative and operating costs and expenses it incurs in acquiring and operating real properties. The Operating Partnership would also pay all of our administrative costs and expenses and such expenses would be treated as expenses of the Operating Partnership. Such expenses would include:
| | • | | all expenses relating to our formation and continuity of existence; |
| | • | | all expenses relating to the public offering and registration of our securities; |
| | • | | all expenses associated with the preparation and filing of our periodic reports under federal, state or local laws or regulations; |
| | • | | all expenses associated with our compliance with applicable laws, rules and regulations; and |
| | • | | all of our other operating or administrative costs incurred in the ordinary course of business. |
The only costs and expenses we could incur that the Operating Partnership would not reimburse would be costs and expenses relating to properties we may own outside of the Operating Partnership. We would pay the expenses relating to such properties directly.
Exchange Rights
We expect that an amended and restated partnership agreement would also provide for exchange rights. We expect the limited partners of the Operating Partnership would have the right to cause the Operating Partnership to redeem their units of limited partnership interest for cash equal to the value of an equivalent number of our shares, or, at our option, we could purchase their units of limited partnership interest for cash or by issuing one share of our common stock for each unit redeemed. Limited partners, however, would not be able to exercise this exchange right if and to the extent that the delivery of our shares upon such exercise would:
| | • | | result in any person owning shares in excess of the ownership limit in our charter (unless exempted by our board of directors); |
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| | • | | result in our shares being owned by fewer than 100 persons; |
| | • | | result in our shares being “closely held” within the meaning of Section 856(h) of the Code; or |
| | • | | cause us to own 10% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. |
Furthermore, limited partners could exercise their exchange rights only after their units of limited partnership interest had been outstanding for one year. A limited partner could not deliver more than two exchange notices each calendar year and would not be able to exercise an exchange right for less than 1,000 units of limited partnership interest, unless such limited partner held less than 1,000 units. In that case, he would be required to exercise his exchange right for all of his units.
Change in General Partner
We expect that we generally would not be able to withdraw as the general partner of the Operating Partnership or transfer our general partnership interest in the Operating Partnership (unless we transferred our interest to a wholly owned subsidiary). The principal exception to this would be if we merged with another entity and (1) the holders of a majority of partnership units (including those we held) approved the transaction; (2) the limited partners received or had the right to receive an amount of cash, securities or other property equal in value to the amount they would have received if they had exercised their exchange rights immediately before such transaction; (3) we were the surviving entity and our stockholders did not receive cash, securities or other property in the transaction; or (4) the successor entity contributed substantially all of its assets to the Operating Partnership in return for an interest in the Operating Partnership and agreed to assume all obligations of the general partner of the Operating Partnership. If we voluntarily sought protection under bankruptcy or state insolvency laws, or if we were involuntarily placed under such protection for more than 90 days, we would be deemed to be automatically removed as the general partner. Otherwise, the limited partners would not have the right to remove us as general partner.
Transferability of Interests
With certain exceptions, the limited partners would not be able to transfer their interests in the Operating Partnership, in whole or in part, without our written consent as the general partner.
Amendment of Limited Partnership Agreement
We expect amendments to the amended and restated partnership agreement would require the consent of the holders of a majority of the partnership units including the partnership units we and our affiliates held. Additionally, we, as general partner, would be required to approve any amendment. We expect that certain amendments would have to be approved by a majority of the units held by third-party limited partners.
PLAN OF DISTRIBUTION
General
We are publicly offering a minimum of 250,000 shares and a maximum of 280,000,000 shares of our common stock on a “best efforts” basis through KBS Capital Markets Group, our dealer manager. Because this is a “best efforts” offering, KBS Capital Markets Group must use only its best efforts to sell the shares and has no firm commitment or obligation to purchase any of our shares. We are offering up to
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200,000,000 shares of common stock in our primary offering at $10 per share, with discounts available for certain categories of purchasers as described below. We are also offering up to 80,000,000 shares pursuant to our dividend reinvestment plan at a purchase price initially equal to $9.50 per share. After the completion of our offering stage, shares issued pursuant to our dividend reinvestment plan will be priced at the net asset value per share of our common stock, as estimated by our advisor or another firm chosen for that purpose. We expect to sell the 200,000,000 shares offered in our primary offering over a two-year period. If we have not sold all of the primary offering shares within two years, we may continue this offering until January 13, 2009. Under rules recently promulgated by the SEC, in some circumstances we could continue our primary offering until as late as July 12, 2009. If we decide to continue our primary offering beyond two years from the date of this prospectus, we will provide that information in a prospectus supplement. We may continue to offer shares under our dividend reinvestment plan beyond these dates until we have sold 80,000,000 shares through the reinvestment of dividends. In many states, we will need to renew the registration statement or file a new registration statement to continue the offering beyond one year from the date of this prospectus. We may terminate this offering at any time.
Our dealer manager, KBS Capital Markets Group, is a recently formed company with no prior operating history. KBS Capital Markets Group registered as a broker-dealer with the Securities and Exchange Commission in October 2004, and this offering will be the first offering conducted by our dealer manager. The principal business of KBS Capital Markets Group will be to sell the shares registered in this offering. KBS Capital Markets Group is indirectly owned and controlled by four of our executive officers, Peter M. Bren, Charles J. Schreiber, Jr., Peter McMillan III and Keith D. Hall. For additional information about our dealer manager, including information related to its affiliation with us and our advisor, see “Management — Other Affiliates — Dealer Manager,” and “Conflicts of Interest — Affiliated Dealer Manager” and “— Certain Conflict Resolution Measures.”
Compensation of Dealer Manager and Participating Broker-Dealers
Except as provided below, KBS Capital Markets Group will receive selling commissions of 6.0% of the gross offering proceeds for shares sold in our primary offering and 3.0% of the gross offering proceeds for shares sold pursuant to our dividend reinvestment plan. The dealer manager will receive 3.5% of the gross offering proceeds as compensation for acting as the dealer manager; however, we will not pay any dealer manager fee for shares sold under our dividend reinvestment plan. We will also reimburse the dealer manager for specified out-of-pocket offering-related costs as described below.
We expect the dealer manager to authorize other broker-dealers that are members of the NASD, which we refer to as participating broker-dealers, to sell our shares. Except as provided below, our dealer manager will reallow all of its selling commissions attributable to a participating broker-dealer.
We may also sell shares at a discount to the primary offering price of $10.00 per share through the following distribution channels in the event that the investor:
| | • | | pays a broker a single fee, e.g., a percentage of assets under management, for investment advisory and broker services, which is frequently referred to as a “wrap fee”; |
| | • | | has engaged the services of a registered investment adviser with whom the investor has agreed to pay compensation for investment advisory services or other financial or investment advice (whether or not such adviser is affiliated with a participating broker-dealer); or |
| | • | | is investing through a bank acting as trustee or fiduciary. |
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If an investor purchases shares through one of these channels in our primary offering, we will sell the shares at a 6.0% discount, or at $9.40 per share, reflecting that selling commissions will not be paid in connection with such purchases. We will receive the same net proceeds for sales of shares through these channels. Neither the Dealer Manager nor its affiliates will compensate any person engaged as an investment adviser by a potential investor as an inducement for such investment adviser to advise favorably for an investment in us.
All sales of shares under our dividend reinvestment plan will be at the same price, which initially will be $9.50 per share, regardless of the distribution channel through which we sell the shares. However, we will only pay selling commissions on shares sold through the dividend reinvestment plan if the shares are sold through distribution channels that would be eligible for selling commissions in our primary offering.
The dealer manager may reallow to any participating broker-dealer up to 1% of the gross offering proceeds attributable to that participating broker-dealer as a marketing fee. This fee would be paid by the dealer manager out of its dealer manager fee. In addition, subject to the limits described below, the dealer manager may reimburse broker-dealers for their bona fide due diligence expenses.
In addition to the compensation described above, we will also reimburse the dealer manager and its affiliates for some of their costs in connection with the offering as described in the table below, which table sets forth the nature and estimated amount of all items viewed as “underwriting compensation” by the NASD assuming we sell all of the shares offered hereby. To show the maximum amount of dealer manager and participating broker-dealer compensation that we may pay in this offering, this table assumes that all shares are sold through distribution channels associated with the highest possible selling commissions and dealer manager fees.
| | | | |
Dealer Manager and Participating Broker-Dealer Compensation | |
| |
Selling commissions (maximum) | | $ | 142,800,000 | |
Dealer manager fee (maximum) | | | 70,000,000 | |
Expense reimbursements for retail conferences(1) (2) | | | 4,210,000 | (3) |
Expense reimbursement for issuer educational conferences(2) (4) | | | 1,450,000 | (3) |
Legal fees allocable to the dealer manager(2) | | | 150,000 | (3) |
Reimbursement of due diligence expenses(2) (5) | | | 250,000 | (3) |
Promotional items(2) | | | 100,000 | (3) |
| | |
|
|
|
Total | | $ | 218,960,000 | |
| | |
|
|
|
| (1) | These fees consist of reimbursements for travel, meals, lodging and attendance fees incurred by employees of KBS Capital Markets Group and its affiliates to attend educational seminars sponsored by participating broker-dealers. |
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| (2) | Subject to the cap on organization and offering expenses described below, we will reimburse KBS Capital Markets Group or its affiliates for these expenses. In some cases, these payments will serve to reimburse KBS Capital Markets Group for amounts it has paid to participating broker-dealers for the items noted. |
| (3) | Amounts shown are estimates. |
| (4) | These fees consist of expense reimbursements for actual costs incurred in connection with attending educational conferences hosted by us. The expenses consist of the travel, meals and lodging of (i) representatives of participating broker-dealers and (ii) wholesalers and others receiving transaction-based compensation associated with KBS Capital Markets Group or another of our affiliates. |
| (5) | We will reimburse the dealer manager for reimbursements it may make to broker-dealers for bona fide due diligence expenses up to a maximum of 0.5% of our gross offering proceeds. |
Under the rules of the NASD, total underwriting compensation in this offering, including selling commissions, the dealer manager fee and the underwriter expense reimbursement, may not exceed 10% of our gross offering proceeds, except for bona fide due diligence expenses, which may not exceed in the aggregate 0.5% of our gross offering proceeds. The NASD and many states also limit our total organization and offering expenses to 15% of gross offering proceeds. After the termination of the primary offering and again after termination of the offering under our dividend reinvestment plan, KBS Capital Advisors has agreed to reimburse us to the extent that organization and offering expenses incurred by us exceed 15% of our gross proceeds from the applicable offering. However, we expect our total organization and offering expenses to be approximately 8.52% of our gross offering proceeds, assuming we raise the maximum offering amount.
To the extent permitted by law and our charter, we will indemnify the participating broker-dealers and the dealer manager against some civil liabilities, including certain liabilities under the Securities Act and liabilities arising from breaches of our representations and warranties contained in the dealer manager agreement. See “Management — Limited Liability and Indemnification of Directors, Officers, Employees and Other Agents.”
The dealer manager has agreed to sell up to 5% of the shares offered hereby in our primary offering to persons to be identified by us at a discount from the public offering price. We intend to use this “friends and family” program to sell shares to our directors, officers, business associates and others to the extent consistent with applicable laws and regulations. We will require all such purchasers to represent that they are purchasing shares for investment only and to enter into one-year lock-up agreements with respect to the purchased shares. The purchase price for such shares will be $9.40 per share, reflecting that selling commissions in the amount of $0.60 per share will not be payable in connection with such sales. The net proceeds to us from such sales made net of commissions will be substantially the same as the net proceeds we receive from other sales of shares. Purchases under this “friends and family” program will not count toward meeting the minimum offering threshold.
We may sell shares to participating broker-dealers, their retirement plans, their representatives and the family members, IRAs and the qualified plans of their representatives at a purchase price of $9.40 per share, reflecting that selling commissions in the amount of $0.60 per share will not be payable in consideration of the services rendered by such broker-dealers and representatives in the offering. For purposes of this discount, we consider a family member to be a spouse, parent, child, sibling, mother- or father-in-law, son- or daughter-in law or brother- or sister-in-law. The net proceeds to us from the sales of these shares will be substantially the same as the net proceeds we receive from other sales of shares.
We are offering volume discounts to investors who purchase more than 50,000 shares through the same participating broker-dealer in our primary offering. The net proceeds to us from a sale eligible for a volume discount will be the same, but the selling commissions we will pay to the participating broker-
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dealer will be reduced. The following table shows the discounted price per share and the reduced selling commissions payable for volume sales of our shares.
| | | | | | | | | | |
Shares Purchased in the Transaction
| | Commission Rate
(Based on a $10.00
Price Per Share)
| | | Price
Per Share
to Investor
|
| 1 | | to | | 50,000 | | 6.0 | % | | $ | 10.00 |
| 50,001 | | to | | 100,000 | | 5.0 | % | | $ | 9.90 |
| 100,001 | | to | | 250,000 | | 3.0 | % | | $ | 9.70 |
| 250,001 | | to | | 500,000 | | 2.0 | % | | $ | 9.60 |
| 500,001 | | | | and up | | 1.0 | % | | $ | 9.50 |
We will apply the reduced selling price per share and selling commissions to the incremental shares falling within the indicated range only. All commission rates are calculated assuming a price per share of $10.00. Thus, for example, a purchase of 125,000 shares would result in a purchase price of $1,237,500 as shown below:
| | • | | 50,000 shares at $10.00 per share (total: $500,000) and a 6.0% commission; |
| | • | | 50,000 shares at $9.90 per share (total: $495,000) and a 5.0% commission; and |
| | • | | 25,000 shares at $9.70 per share (total: $242,500) and a 3.0% commission. |
To qualify for a volume discount as a result of multiple purchases of our shares you must use the same participating broker-dealer and you must mark the “Additional Investment” space on the subscription agreement. We are not responsible for failing to combine purchases if you fail to mark the “Additional Investment” space. Once you qualify for a volume discount, you will be eligible to receive the benefit of such discount for subsequent purchases of shares in our primary offering through the same participating broker-dealer.
To the extent purchased through the same participating broker-dealer, the following persons may combine their purchases as a “single purchaser” for the purpose of qualifying for a volume discount:
| | • | | an individual, his or her spouse, their children under the age of 21 and all pension or trust funds established by each such individual; |
| | • | | 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 Internal Revenue Code; and |
| | • | | all commingled trust funds maintained by a given bank. |
In the event a person wishes to have his or her order combined with others as a “single purchaser,” that person must request such treatment in writing at the time of subscription setting forth the basis for the discount and identifying the orders to be combined. Any request will be subject to our verification that the orders to be combined are made by a single purchaser. If the subscription agreements for the combined orders of a single purchaser are submitted at the same time, then the commissions payable and discounted share price will be allocated pro rata among the combined orders on the basis of the respective
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amounts being combined. Otherwise, the volume discount provisions will apply only to the order that qualifies the single purchaser for the volume discount and the subsequent orders of that single purchaser.
Only shares purchased in our primary offering are eligible for volume discounts. Shares purchased through our dividend reinvestment plan will not be eligible for a volume discount nor will such shares count toward the threshold limits listed above that qualify you for the different discount levels.
Volume discounts for California residents will be available in accordance with the foregoing table of uniform discount levels based on the number of shares purchased. However, with respect to California residents, no discounts will be allowed to any group of purchasers and no subscriptions may be aggregated as part of a combined order for purposes of determining the dollar amount of shares purchased.
Deferred Commission Option
Determination of the Number of Shares to be Issued and the Amount of the Deferred Selling Commissions
You may agree with your participating broker-dealer, or the dealer manager if you purchase shares directly from the dealer manager, to have selling commissions due with respect to the purchase of your shares paid over a period of up to five years pursuant to a deferred commission option arrangement. Our net proceeds from this offering will not be affected by your election of the deferred commission option. If you elect the deferred commission option:
| | • | | you will be required to pay a total of $9.50 per share rather than $10.00 per share; |
| | • | | we will pay $0.10 per share in selling commissions upon accepting your subscription; and |
| | • | | for each of up to the next five years following the subscription, on a date or dates to be determined from time to time by the dealer manager (initially contemplated to be monthly when we expect to pay distributions), we will deduct $0.10 per share on an annual basis from cash distributions otherwise payable to you to pay deferred commission obligations. |
As in any volume discount situation, selling commissions are reduced on any shares issued for a volume discount. Therefore, if you elected the deferred commission option, we will make adjusted deductions for your deferred commission obligations from cash distributions payable on the shares issued for a volume discount.
Taxes
If you elect the deferred commission option and you are subject to federal income taxation, you will incur tax liability for cash distributions payable to you with respect to your shares even though we will withhold such cash distributions and will instead pay third parties to satisfy deferred commission obligations.
Subscription Agreement
If you wish to elect the deferred commission option, you must make the election on your Subscription Agreement. In addition, your participating broker-dealer must also complete and sign the Subscription Agreement to acknowledge its agreement to the deferred commission option.
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Authorization to Withhold Cash Distributions
If you elect the deferred commission option, you will be authorizing us to withhold cash distributions otherwise payable to you for the purpose of paying selling commissions due under the deferred commission arrangement; provided, however, that in no event may we withhold in excess of $0.50 per share in the aggregate (lower when volume discounts are applicable) under the deferred commission arrangement.
Acceleration of Deferred Commission Obligation
If our shares become listed for trading on a national securities exchange or on the Nasdaq National Market, or such listing is reasonably anticipated to occur at any time prior to the satisfaction of the remaining deferred commission obligations, we will accelerate the remaining selling commissions due under the deferred commission option. In such event, we will provide notice of such acceleration to stockholders who have elected the deferred commission option. The amount of the remaining selling commissions due will be deducted and paid by us out of cash distributions otherwise payable to such stockholders during the time period prior to any such listing of the shares for trading on a national securities exchange or the Nasdaq National Market. However, in no event may we withhold in excess of $0.50 per share in the aggregate during the five-year period following the subscription. The maximum amount that we may withhold will be lower when volume discounts are applicable. To the extent that the cash distributions during such time period are insufficient to satisfy the remaining deferred selling commissions due, the obligation of us and our stockholders to make any further payments of deferred selling commissions under the deferred commission option shall terminate and the participating broker-dealers and the dealer manager will not be entitled to receive any further portion of the unpaid deferred selling commissions following any such listing for trading or inclusion for quotation of our shares.
In addition, if you elect the deferred commission option and subsequently decide to participate in the share redemption program (which our board of directors has approved but delayed the adoption of) or request that we transfer your shares for any other reason prior to the time that the remaining deferred selling commissions have been deducted from cash distributions otherwise payable to you, we will accelerate the remaining selling commissions due under the deferred commission option. In such event, we shall provide notice of such acceleration to you, and:
| | • | | in the case of an election to sell your shares under the proposed share redemption program, you will be required to pay us the unpaid portion of the remaining deferred commission obligation prior to or concurrently with our purchase of your shares pursuant to our share redemption program or we may deduct such unpaid portion of the remaining deferred commission obligation from the amount otherwise due to you for our purchase of your shares under our share redemption program; or |
| | • | | if you request that we transfer your shares for any other reason, you will not be entitled to effect any such transfer until you first either: |
| | • | | pay to us the unpaid portion of the remaining deferred commission obligation; or |
| | • | | provide a written instrument in form and substance satisfactory to us, and appropriately signed by the transferee, to the effect that the proposed transferee agrees to have the unpaid portion of the remaining deferred commission obligation deducted from cash distributions otherwise payable to the transferee during the remaining portion of the specified five-year deferred commission period. |
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Legend
Our board of directors has authorized the issuance of shares of our capital stock without certificates. We expect that we will not issue shares in certificated form until such time, if ever, as we list our shares on a national securities exchange or the Nasdaq National Market. However, if we do issue certificates representing our shares before we list our shares on an exchange or the Nasdaq National Market, then any shares subject to the deferred commission option (including any shares issued for the volume discount in connection with the election of the deferred commission option) will bear a legend referring to the fact that such shares are subject to the terms of the deferred commission option, including the withholding of cash distributions otherwise payable to the stockholders for the purpose of paying the deferred selling commission obligation.
Marketing Contribution and Due Diligence Expenses Allowance
The dealer manager fee of 3.5% of gross offering proceeds and our reimbursement of the dealer manager for amounts it may pay to reimburse the bona fide due diligence expenses of broker-dealers in an aggregate amount of up to 0.5% of our gross offering proceeds will be payable by us based on an assumed price of $10 per share regardless of your election of the deferred commission option. We will pay those amounts from the proceeds we receive at the time of your initial investment.
Subscription Procedures
We will not sell any shares unless we raise a minimum of $2,500,000 by January 13, 2007 from persons who are not affiliated with us or our advisor. Until we have raised this amount, all subscription payments will be placed in an account held by the escrow agent, First Republic Trust Company, in trust for subscribers’ benefit, pending release to us. If we do not raise at least $2,500,000 by January 13, 2007, we will promptly return all funds in the escrow account (including interest), and we will stop selling shares. We will not deduct any fees if we return funds from the escrow account. Different escrow procedures apply to Pennsylvania investors. Because of the higher minimum offering requirement for Pennsylvania investors, subscription payments made by Pennsylvania investors will not count toward the $2,500,000 minimum offering for all other jurisdictions. See “— Special Notice to Pennsylvania Investors” below.
To purchase shares in this offering, you must complete and sign a Subscription Agreement (in the form attached to this prospectus as Appendix A) for a specific number of shares and pay for the shares at the time of your subscription. Until such time as we have raised the minimum offering amount, you should make your check payable to “First Republic Trust Company, as agent for KBS Real Estate Investment Trust, Inc.” Once we have raised $2,500,000, you should make your check payable to “KBS Real Estate Investment Trust, Inc.,” except that Pennsylvania investors should follow the instructions below under “—Special Notice to Pennsylvania Investors.” Subscriptions will be effective only upon our acceptance, and we reserve the right to reject any subscription in whole or in part. After we have raised the minimum offering amount, subscription payments will be deposited into a special account in our name under the joint authorization of the dealer manager and us until such time as we have accepted or rejected the subscriptions. We will accept or reject subscriptions within 30 days of our receipt of such subscriptions and, if rejected, we will return all funds to the rejected subscribers within 10 business days. If accepted, the funds will be transferred into our general account. You will receive a confirmation of your purchase. We generally admit stockholders on a daily basis.
You are required to represent in the Subscription Agreement that you have received a copy of this prospectus. In order to ensure that you have had sufficient time to review this prospectus, we will not accept your subscription until at least five business days after your receipt of this prospectus.
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Investors who desire to purchase shares in this offering at regular intervals may be able to do so by electing to participate in the automatic investment program by completing an enrollment form that we will provide upon request. Only investors who have already met the minimum purchase requirement of $5,000 may participate in the automatic investment program. The minimum periodic investment is $100 per month. We will pay dealer manager fees and selling commissions in connection with sales under the automatic investment program to the same extent that we pay those fees and commissions on shares sold in this offering outside of the automatic investment program. If you elect to participate in both the automatic investment program and our dividend reinvestment plan, dividends earned from shares purchased pursuant to the automatic investment program will automatically be reinvested pursuant to the dividend reinvestment plan. For a discussion of the dividend reinvestment plan, see “Description of Shares — Dividend Reinvestment Plan.”
You will receive a confirmation of your purchases under the automatic investment program no less than quarterly. The confirmation will disclose the following information:
| | • | | the amount invested for your account during the period; |
| | • | | the date of the investment; |
| | • | | the number and price of the shares purchased by you; and |
| | • | | the total number of shares in your account. |
To qualify for a volume discount as a result of purchases under the automatic investment program, you must notify us in writing when you initially become eligible to receive a volume discount and at each time your purchase of shares through the program would qualify you for an additional reduction in the price of shares under the volume discount provisions described in this prospectus. For a discussion of volume discounts, see “— Compensation of Dealer Manager and Participating Broker-Dealers.”
You may terminate your participation in the automatic investment program at any time by providing us with written notice. If you elect to participate in the automatic investment program, you must agree that if at any time you fail to meet the applicable investor suitability standards or cannot make the other investor representations or warranties set forth in the then current prospectus or in the subscription agreement, you will promptly notify us in writing of that fact and your participation in the plan will terminate. See the “Suitability Standards” section of this prospectus (immediately following the cover page) and the form of subscription agreement attached hereto as Appendix A.
Suitability Standards
Those selling shares on our behalf have the responsibility to make every reasonable effort to determine that your purchase of shares in this offering is a suitable and appropriate investment for you based on information provided by you regarding your financial situation and investment objectives. In making this determination, those selling shares on our behalf have a responsibility to ascertain that you:
| | • | | meet the minimum income and net worth standards set forth under “Suitability Standards” immediately following the cover page of this prospectus; |
| | • | | can reasonably benefit from an investment in our shares based on your overall investment objectives and portfolio structure; |
146
| | • | | are able to bear the economic risk of the investment based on your overall financial situation; |
| | • | | are in a financial position appropriate to enable you to realize to a significant extent the benefits described in this prospectus of an investment in our shares; and |
| | • | | have apparent understanding of: |
| | • | | the fundamental risks of the investment; |
| | • | | the risk that you may lose your entire investment; |
| | • | | the lack of liquidity of our shares; |
| | • | | the restrictions on transferability of our shares; |
| | • | | the background and qualifications of our sponsors and their affiliates; and |
| | • | | the tax consequences of your investment. |
Relevant information for this purpose will include at least your age, investment objectives, investment experience, income, net worth, financial situation and other investments as well as any other pertinent factors. Those selling shares on our behalf must maintain, for a six-year period, records of the information used to determine that an investment in shares is suitable and appropriate for you.
Minimum Purchase Requirements
You must initially invest at least $5,000 in our shares to be eligible to participate in this offering.In order to satisfy this minimum purchase requirement, unless otherwise prohibited by state law, a husband and wife may jointly contribute funds from their separate IRAs, provided that each such contribution is made in increments of $100. You should note that an investment in our shares will not, in itself, create a retirement plan and that, in order to create a retirement plan, you must comply with all applicable provisions of the Internal Revenue Code. If you have satisfied the applicable minimum purchase requirement, any additional purchase must be in amounts of at least $100. The investment minimum for subsequent purchases does not apply to shares purchased pursuant to our dividend reinvestment plan.
Until our shares of common stock are listed on a national securities exchange, you may not transfer your shares in a manner that causes you or your transferee to own fewer than the number of shares required for the minimum purchase described above, except in the following circumstances: transfers by gift, transfers by inheritance, intrafamily transfers, family dissolutions, transfers to affiliates and by operation of law.
Special Notice to Pennsylvania Investors
Because the minimum offering of our common stock is less than $133,333,333, we caution you to carefully evaluate our ability to fully accomplish our stated objectives and to inquire as to the current dollar volume of our subscription proceeds. Notwithstanding our $2.5 million minimum offering amount for all other jurisdictions, we will not sell any shares to Pennsylvania investors unless we raise a minimum of $66.7 million in gross offering proceeds (including sales made to residents of other jurisdictions) prior to January 13, 2008. In the event we do not raise gross offering proceeds of $66.7 million by January 13, 2008, we will promptly return all funds held in escrow for the benefit of
147
Pennsylvania investors (in which case, Pennsylvania investors will not be required to request a refund of their investment). Pending satisfaction of this condition, all Pennsylvania subscription payments will be placed in a separate account held by the escrow agent, First Republic Trust Company, in trust for Pennsylvania subscribers’ benefit, pending release to us. Purchases by persons affiliated with us or our advisor will not count toward satisfaction of the Pennsylvania minimum.
If we have not reached this $66.7 million threshold within 120 days of the date that we first accept a subscription payment from a Pennsylvania investor, we will, within 10 days of the end of that 120-day period, notify Pennsylvania investors in writing of their right to receive refunds, with interest. If you request a refund within 10 days of receiving that notice, we will arrange for the escrow agent to promptly return to you by check your subscription amount with interest. Amounts held in the Pennsylvania escrow account from Pennsylvania investors not requesting a refund will continue to be held for subsequent 120-day periods until we raise at least $66.7 million or until the end of the subsequent escrow periods. At the end of each subsequent escrow period, we will again notify you of your right to receive a refund of your subscription amount with interest. Until we have raised $66.7 million, Pennsylvania investors should make their checks payable to “First Republic Trust Company, as agent for KBS Real Estate Investment Trust, Inc.” Once we have reached the Pennsylvania minimum, Pennsylvania investors should make their checks payable to “KBS Real Estate Investment Trust, Inc.”
SUPPLEMENTAL SALES MATERIAL
In addition to this prospectus, we may utilize additional sales materials in connection with the offering of the shares, although only when accompanied by or preceded by the delivery of this prospectus. These supplemental sales materials may include information relating to this offering, the past performance of KBS programs managed by affiliates of our advisor, property brochures and articles and publications concerning real estate. Some or all of our supplemental sales materials may not be available in certain jurisdictions.
We are offering shares only by means of this prospectus. Although the information contained in our supplemental sales materials will not conflict with any of the information contained in this prospectus, the supplemental materials do not purport to be complete and should not be considered a part of or as incorporated by reference in this prospectus or the registration statement of which this prospectus is a part.
LEGAL MATTERS
The validity of the shares of our common stock being offered hereby has been passed upon for us by DLA Piper Rudnick Gray Cary US LLP, Raleigh, North Carolina. DLA Piper Rudnick Gray Cary US LLP has also reviewed the statements relating to certain federal income tax matters that are likely to be material to U.S. holders of our common stock under the caption “Federal Income Tax Considerations” and has passed upon our qualification as a REIT for federal income tax purposes.
EXPERTS
The consolidated balance sheet of KBS Real Estate Investment Trust, Inc. at September 30, 2005, appearing in this prospectus and registration statement has been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon appearing elsewhere herein, and is included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-11 with the SEC with respect to the shares of our common stock to be issued in this offering. This prospectus is a part of that registration statement and, as permitted by SEC rules, does not include all of the information you can find in the registration statement or the exhibits to the registration statement. For additional information relating to us, we refer you to the registration statement and the exhibits to the registration statement. Statements contained in this prospectus as to the contents of any contract or document are necessarily summaries of such contract or document and in each instance, if we have filed the contract or document as an exhibit to the registration statement, we refer you to the copy of the contract or document filed as an exhibit to the registration statement.
After commencement of this offering, we will file annual, quarterly and special reports, proxy statements and other information with the SEC. We intend to furnish our stockholders with annual reports containing consolidated financial statements certified by an independent public accounting firm. The registration statement is, and any of these future filings with the SEC will be, available to the public over the Internet at the SEC’s Web site at http://www.sec.gov. You may read and copy any filed document at the SEC’s public reference room in Washington, D.C. at 100 F. Street, N.E., Room 1580, Washington, D.C. Please call the SEC at (800) SEC-0330 for further information about the public reference room.
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INDEX TO CONSOLIDATED BALANCE SHEET AND PRIOR PERFORMANCE TABLES
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholder of
KBS Real Estate Investment Trust, Inc.
We have audited the accompanying consolidated balance sheet of KBS Real Estate Investment Trust, Inc. (the “Company”) as of September 30, 2005. The consolidated balance sheet is the responsibility of the Company’s management. Our responsibility is to express an opinion on this consolidated balance sheet based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated balance sheet is free of material misstatement. We were not engaged to perform an audit of the Company’s internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated balance sheet, assessing the accounting principles used and significant estimates made by management, and evaluating the overall consolidated balance sheet presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated balance sheet referred to above presents fairly, in all material respects, the financial position of KBS Real Estate Investment Trust, Inc. at September 30, 2005 in conformity with U.S. generally accepted accounting principles.
/s/ Ernst & Young LLP
Irvine, California
October 14, 2005
F-2
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED BALANCE SHEET
September 30, 2005
| | | |
Assets | | | |
Cash | | $ | 200,000 |
| | |
|
|
Total assets | | $ | 200,000 |
| | |
|
|
Liabilities and stockholder’s equity | | | |
Liabilities | | | |
Total liabilities | | $ | — |
Commitments and contingencies | | | |
Stockholder’s equity | | | |
Preferred stock, $.01 par value; 10,000,000 shares authorized, no shares issued and outstanding | | | — |
Common stock, $.01 par value; 1,000,000,000 shares authorized, 20,000 shares issued and outstanding | | | 200 |
Additional paid-in capital | | | 199,800 |
| | |
|
|
Total stockholder’s equity | | | 200,000 |
| | |
|
|
Total liabilities and stockholder’s equity | | $ | 200,000 |
| | |
|
|
See accompanying notes to consolidated balance sheet.
F-3
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET
September 30, 2005
KBS Realty Corporation was formed on June 13, 2005 as a Maryland corporation that intends to qualify as a real estate investment trust (“REIT”). On June 15, 2005, KBS Realty Corporation and KBS Real Estate Investment Trust, Inc., a Maryland corporation (“KBS REIT”), filed Articles of Merger (the “Articles of Merger”) with the State of Maryland. Pursuant to the Articles of Merger, KBS REIT was merged into KBS Realty Corporation with KBS Realty Corporation surviving the merger, and KBS Realty Corporation’s name was changed to KBS Real Estate Investment Trust, Inc. (the “Company”).
Prior to the merger, KBS Capital Advisors LLC (the “Advisor”) owned 20,000 shares of common stock of KBS REIT, which were all of the outstanding shares of KBS REIT. Pursuant to the Articles of Merger, the Advisor’s 20,000 shares in KBS REIT were converted on a one-for-one basis into shares of common stock of the Company. As of September 30, 2005, the 20,000 shares of common stock owned by the Advisor were the only issued and outstanding shares of the Company.
As a result of the merger, the Company succeeded, without other transfer, to all of the rights and assets of KBS REIT. The Company also became subject to all of the debts and liabilities of KBS REIT in the same manner as if the Company itself had incurred those debts and liabilities. As of June 15, 2005, the effective date of the merger, the Company directly owned all of the interests in KBS REIT Holdings LLC, a Delaware limited liability company (“KBS REIT Holdings”). Also as of June 15, 2005, the Company became the sole general partner of and directly owned a 0.1% general partnership interest in KBS Limited Partnership, a Delaware limited partnership (the “Operating Partnership”). The Company, through KBS REIT Holdings, also became the sole limited partner of the Operating Partnership, owning a 99.9% limited partnership interest in the Operating Partnership. As of September 30, 2005, the Operating Partnership had no operations and no assets other than the partners’ initial capital contributions of $196,997. The Company anticipates that it will conduct substantially all of its operations through the Operating Partnership.
The Company expects to invest in a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located throughout the United States. All such real estate assets may be acquired directly by the Company or the Operating Partnership, though the Company may invest in other entities that make similar investments. The Company may also make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance investments. Subject to certain restrictions and limitations, the business of the Company will be managed by the Advisor pursuant to the Advisory Agreement the Company anticipates executing with the Advisor.
In its initial public offering, the Company’s board of directors intends to offer a minimum of 250,000 shares (the “Minimum Number of Shares”) and a maximum of 280,000,000 shares of common stock for sale to the public (the “Offering”), of which 80,000,000 shares are being offered pursuant to the Company’s dividend reinvestment plan. The Company intends to retain KBS Capital Markets Group LLC (the “Dealer Manager”), an affiliate of the Advisor, to serve as the dealer manager of the Offering. The Dealer Manager will be responsible for marketing the Company’s shares being offered pursuant to the Offering. The Company intends to use substantially all of the net proceeds from the Offering to invest in a diverse portfolio of real estate assets as described above.
F-4
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 1. | ORGANIZATION (CONTINUED) |
As of September 30, 2005, neither the Company nor the Operating Partnership has purchased or contracted to purchase any properties. Also as of September 30, 2005, the Advisor has not identified any properties in which there is a reasonable probability that the Company or the Operating Partnership will invest.
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
Principles of Consolidation and Basis of Presentation
The consolidated balance sheet includes the accounts of the Company, KBS REIT Holdings and the Operating Partnership. The balance sheets of KBS REIT Holdings and the Operating Partnership are prepared using accounting policies consistent with those of the Company. All significant intercompany balances and transactions are eliminated in consolidation.
Use of Estimates
The preparation of the consolidated balance sheet in conformity with U.S. generally accepted accounting principles (“GAAP”) requires management to make estimates and assumptions that affect the amounts reported in the consolidated balance sheet and accompanying notes. Actual results could materially differ from those estimates.
Cash and Cash Equivalents
The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents. Cash equivalents may include cash and short-term investments. Short-term investments are stated at cost, which approximates fair value. The Operating Partnership’s account balance exceeds federally insurable limits. The Company mitigates this risk by depositing funds with a major financial institution. There are no restrictions on the use of the Company’s cash as of September 30, 2005.
Real Estate Purchase Price Allocation
In accordance with Financial Accounting Standards Board Statement (“SFAS”) No. 141 “Business Combinations,” the Company will record above-market and below-market in-place lease values for acquired properties based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (i) the contractual amounts to be paid pursuant to the in-place leases and (ii) management’s estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining non-cancelable term of the lease. The Company will amortize any capitalized above-market lease values as a reduction of rental income over the remaining non-cancelable terms of the respective leases. The Company will amortize any capitalized below-market lease values as an increase to rental income over the initial term and any fixed-rate renewal periods in the respective leases.
F-5
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) |
Real Estate Purchase Price Allocation (Continued)
The Company will measure the aggregate value of other intangible assets acquired based on the difference between (i) the property valued with existing in-place leases adjusted to market rental rates and (ii) the property valued as if vacant. Management’s estimates of value are expected to be made using methods similar to those used by independent appraisers (e.g., discounted cash flow analysis). Factors to be considered by management in its analysis include an estimate of carrying costs during hypothetical expected lease-up periods considering current market conditions and costs to execute similar leases.
The Company will also consider information obtained about each property as a result of its pre-acquisition due diligence, marketing and leasing activities in estimating the fair value of the tangible and intangible assets acquired. In estimating carrying costs, management will also include real estate taxes, insurance and other operating expenses and estimates of lost rentals at market rates during the expected lease-up periods. Management will also estimate costs to execute similar leases including leasing commissions and legal and other related expenses to the extent that such costs are not already incurred in connection with a new lease origination as part of the transaction.
The total amount of other intangible assets acquired will be further allocated to in-place lease values and customer relationship intangible values based on management’s evaluation of the specific characteristics of each tenant’s lease and the Company’s overall relationship with that respective tenant. Characteristics to be considered by management in allocating these values include the nature and extent of the Company’s existing business relationships with the tenant, growth prospects for developing new business with the tenant, the tenant’s credit quality and expectations of lease renewals (including those existing under the terms of the lease agreement), among other factors.
The Company will amortize the value of in-place leases to expense over the initial term of the respective leases. The value of customer relationship intangibles will be amortized to expense over the initial term and any renewal periods in the respective leases, but in no event will the amortization period for intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and customer relationship intangibles would be charged to expense.
Investment in Real Estate Assets
Costs related to the acquisition, development, construction and improvement of properties will be capitalized. Repair and maintenance costs will be charged to expense as incurred and significant replacements and betterments will be capitalized. Repair and maintenance costs include all costs that do not extend the useful life of the real estate asset. The Company considers the period of future benefit of an asset to determine its appropriate useful life. The Company anticipates the estimated useful lives of its assets by class to be as follows:
| | |
Buildings | | 25 - 40 years |
Building improvements | | 10 - 25 years |
Land improvements | | 20 - 25 years |
Tenant Improvements | | Lease term |
F-6
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) |
Valuation of Real Estate Assets
The Company will continually monitor events and changes in circumstances that could indicate that the carrying amounts of its real estate assets, including those held through joint ventures, may not be recoverable. When indicators of potential impairment suggest that the carrying value of a real estate asset may not be recoverable, the Company will assess the recoverability of the asset by estimating whether the Company will recover the carrying value of the asset through its undiscounted future cash flows and its eventual disposition. If based on this analysis the Company does not believe that it will be able to recover the carrying value of the asset, the Company will record an impairment loss to the extent that the carrying value exceeds the estimated fair value of the asset.
Revenue Recognition
The Company will recognize minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, on a straight-line basis over the term of the related lease and it will include amounts expected to be received in later years in deferred rents. The Company will record property operating expense reimbursements due from tenants for common area maintenance, real estate taxes and other recoverable costs in the period the related expenses are incurred.
The Company will recognize gains on sales of real estate pursuant to the provisions of SFAS No. 66 “Accounting for Sales of Real Estate.” The specific timing of a sale will be measured against various criteria in SFAS No. 66 related to the terms of the transaction and any continuing involvement in the form of management or financial assistance associated with the property. If the sales criteria are not met, the Company will defer gain recognition and account for the continued operations of the property by applying the finance, installment or cost recovery methods, as appropriate, until the sales criteria are met.
Allowance for Rents and Other Receivables
The Company will periodically evaluate the collectibility of amounts due from tenants and maintain an allowance for doubtful accounts for estimated losses resulting from the inability of tenants to make required payments under lease agreements. The Company will maintain an allowance for deferred rent receivable that arises from the straight-lining of rents. The Company will exercise judgment in establishing these allowances and consider payment history and current credit status in developing these estimates.
Stock-Based Compensation
The Company intends to adopt an Employee and Independent Director Incentive Stock Plan. The Company will account for such stock plan in accordance with SFAS No. 123RShare-Based Payment, which requires the fair value of the stock option to be recognized as compensation expense over the vesting period.
F-7
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) |
Distribution Policy
The Company intends to elect to be taxed as a REIT and to operate as a REIT beginning with its taxable year ending December 31, 2006. To maintain its qualification as a REIT, the Company intends to make distributions each taxable year equal to at least 90% of its REIT taxable income (which is determined without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). The Company expects to authorize, declare and pay dividends on a monthly basis.
Dividends to be distributed to stockholders will be determined by the board of directors of the Company and will be dependent upon a number of factors relating to the Company, including funds available for the payment of dividends, financial condition, the timing of property acquisitions, capital expenditure requirements, and annual distribution requirements in order to maintain the Company’s status as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”).
Organization, Offering and Related Costs
Organization and offering costs of the Company are initially being paid by the Advisor or the Dealer Manager on behalf of the Company. These organization and offering costs include all expenses (other than selling commissions and the dealer manager fee) to be paid by the Company in connection with the Offering, including but not limited to (i) legal, accounting, printing, mailing and filing fees; (ii) charges of the escrow holder; (iii) reimbursement of the dealer manager for amounts it may pay to reimburse the bona fide diligence expenses of broker-dealers; and (iv) reimbursement to the Advisor for the salaries of its employees and other costs in connection with preparing supplemental sales materials, the cost of educational conferences held by the Company (including the travel, meal and lodging costs of registered representatives of broker-dealers) and attendance fees and cost reimbursement for employees of the Company’s affiliates to attend retail seminars conducted by broker-dealers. The Company anticipates that, pursuant to the Advisory Agreement, the Company will be obligated to reimburse the Advisor or the Dealer Manager, as applicable, for organization and offering costs associated with the Offering, provided that the Advisor would be obligated to reimburse the Company to the extent selling commissions, the dealer manager fee and other organization and offering costs exceed 15% of gross offering proceeds. In the event the Minimum Number of Shares of the Company’s common stock is not sold to the public, the Company will terminate the Offering and will have no obligation to reimburse the Advisor or the Dealer Manager for any organization and offering costs. As of September 30, 2005, the Advisor has incurred on behalf of the Company organization and offering costs of approximately $1,633,680. These costs are not recorded in the financial statements of the Company as of September 30, 2005 because such costs are not a liability of the Company until the Advisory Agreement is executed and the Minimum Number of Shares of the Company’s common stock is issued, and such costs will only become a liability of the Company to the extent selling commissions, the dealer manager fee and other organization and offering costs do not exceed 15% of the gross proceeds of the Offering. When recorded by the Company, organization costs will be expensed as incurred, and offering costs will be deferred and charged to stockholder’s equity as such amounts are reimbursed to the Advisor or the Dealer Manager from the gross proceeds of the Offering.
F-8
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) |
Income Taxes
The Company intends to elect to be taxed as a REIT under the Code and intends to operate as such beginning with its taxable year ending December 31, 2006. To qualify as a REIT, the Company must meet certain organizational and operational requirements, including a requirement to distribute at least 90% of the Company’s annual REIT taxable income to stockholders (which is computed without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). As a REIT, the Company generally will not be subject to federal income tax on income that it distributes to stockholders. If the Company fails to qualify as a REIT in any taxable year, it will be subject to federal income tax on its taxable income at regular corporate income tax rates and generally will not be permitted to qualify for treatment as a REIT for federal income tax purposes for the four taxable years following the year during which qualification is lost unless the Internal Revenue Service grants the Company relief under certain statutory provisions. Such an event could materially adversely affect the Company’s net income and net cash available for distribution to stockholders. However, the Company intends to organize and operate in such a manner as to qualify for treatment as a REIT.
General
Under the Articles of Incorporation of the Company, the total number of shares of capital stock authorized for issuance is 1,010,000,000 shares, consisting of 1,000,000,000 shares of common stock and 10,000,000 shares of preferred stock, each as defined by the Company’s Articles of Incorporation.
The shares of common stock have a par value of $.01 per share and entitle the holders to one vote per share on all matters upon which stockholders are entitled to vote, to receive dividends and other distributions as authorized by the board of directors in accordance with the Maryland General Corporation Law and to all rights of a stockholder pursuant to the Maryland General Corporation Law. The common stock has no preferences or preemptive, conversion or exchange rights. As of September 30, 2005, the Company has authorized 1,000,000,000 shares of common stock and issued 20,000 shares of common stock.
The Company is authorized to issue one or more classes or series of preferred stock. Prior to the issuance of such shares, the board of directors shall have the power from time to time to classify or reclassify, in one or more series, any unissued shares and designate the preferences, rights and privileges of such shares. As of September 30, 2005, the Company has authorized 10,000,000 shares of preferred stock and none have been issued.
F-9
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 3. | STOCKHOLDER’S EQUITY (CONTINUED) |
Employee and Independent Director Incentive Stock Plan
The Company intends to adopt an Employee and Independent Director Incentive Stock Plan to provide for the grant of awards to its employees (in the event it ever has employees), employees of the Advisor, employees of entities that provide services to the Company, the Company’s independent directors, managers or directors of the Advisor or of entities that provide services to the Company, certain of the Company’s consultants and certain consultants to the Advisor or to entities that provide services to the Company. Such awards may consist of nonqualified stock options, incentive stock options, restricted and unrestricted shares of stock, stock appreciation rights, phantom stock awards, dividend equivalent rights and other stock-based awards. The total number of shares of common stock expected to be reserved for issuance under the Employee and Independent Director Incentive Stock Plan is equal to 5% of the Company’s outstanding shares at any time but not to exceed 10,000,000 shares.
Dividend Reinvestment Plan
The Company has adopted a dividend reinvestment plan (the “DRP”) through which common stockholders may elect to reinvest an amount equal to the dividends declared on their shares in additional shares of the Company’s common stock in lieu of receiving cash dividends. The initial purchase price per share under the DRP will be $9.50. Three years after the completion of the offering stage, shares issued pursuant to the plan will be priced at the net asset value per share of the Company’s common stock, as estimated by the Advisor or a firm chosen for that purpose. The offering stage will be considered complete when the Company is no longer publicly offering equity securities and has not done so for one year. The Company intends to pay 3% selling commissions in connection with sales of shares under the DRP to the extent it paid selling commissions on the shares to which the dividends relate. Otherwise, the Company does not plan to pay selling commissions on the shares sold under the DRP. The Company does not intend to pay any dealer manager fees in connection with shares sold under the DRP. The board of directors of the Company may amend or terminate the DRP for any reason, provided that any amendment that adversely affects the rights or obligations of a participant shall only take effect upon 10 days’ written notice to participants.
Proposed Share Redemption Program
As the Company’s stock is currently not listed on a national exchange, there is no market for the Company’s stock. As a result, there is risk that a stockholder may not be able to sell the Company’s stock at a time or price acceptable to the stockholder.
Prior to the commencement of its initial public offering, the Company expects its board of directors to approve (but delay the adoption of) a share redemption program that would enable its stockholders to sell their shares to the Company in limited circumstances. However, the Company will not adopt the program during the primary offering or any subsequent primary offering, unless the SEC grants the Company exemptive relief from restrictions on issuer repurchases during a distribution.
There would be numerous restrictions on a stockholder’s ability to sell its shares to the Company under the program. Stockholders would have to hold their shares for one year before selling their shares. In
F-10
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 3. | STOCKHOLDER’S EQUITY (CONTINUED) |
Proposed Share Redemption Program (Continued)
addition, the Company would limit the number of shares redeemed pursuant to the proposed share redemption program as follows: (1) during any calendar year, the Company would not redeem in excess of 5% of the weighted average number of shares outstanding during the prior calendar year and (2) funding for the redemption of shares would come exclusively from the net proceeds the Company received from the sale of shares under the dividend reinvestment plan during the prior calendar year. Further, the Company would have no obligation to redeem shares if the redemption would violate the restrictions on distributions under Maryland law, which prohibit distributions that would cause a corporation to fail to meet statutory tests of solvency. These limits may prevent the Company from accommodating all requests made in any year. Initially, the Company would redeem shares at the lower of $9.00 or 90% of the price paid to acquire the shares from the Company. Three years after the completion of the Company’s offering stage, the redemption price per share would be equal to the net asset value per share of common stock, as estimated by the Advisor or another firm chosen for that purpose. The Company will consider its offering stage complete when it is no longer publicly offering equity securities and has not done so for one year. The proposed share redemption program would have different rules if shares were being redeemed in connection with the death of a stockholder. Even if adopted, the Company’s board of directors could amend or terminate the proposed share redemption program with 30 days’ advance notice.
| 4. | RELATED-PARTY TRANSACTIONS |
The Company anticipates executing the Advisory Agreement with the Advisor and a Dealer Manager Agreement with the Dealer Manager. These agreements will entitle the Advisor and the Dealer Manager to specified fees upon the provision of certain services with regard to the Offering and the investment of funds in real estate assets, among other services, as well as reimbursement of organization and offering costs incurred by the Advisor and the Dealer Manager on behalf of the Company (as discussed in Note 2) and certain costs incurred by the Advisor in providing services to the Company. The fees and reimbursement obligations are as follows:
| | |
Form of Compensation
| | Amount
|
| Selling Commission | | The Company will pay the Dealer Manager up to 6% of the gross offering proceeds (3% for sales of shares under the dividend reinvestment plan) before reallowance of commissions earned by participating broker-dealers. The Dealer Manager will reallow 100% of commissions earned to participating broker-dealers. Assuming all shares are sold at the highest possible selling commissions (with no discounts to any categories of purchasers) and a $9.50 price for each share sold through the dividend reinvestment plan, estimated selling commissions are approximately $150,000 if the Company sells the minimum of 250,000 shares and approximately $142,800,000 if the Company sells the maximum of 280,000,000 shares. |
F-11
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 4. | RELATED-PARTY TRANSACTIONS (CONTINUED) |
| | |
| Dealer Management Fee | | The Company will pay the Dealer Manager 3.5% of gross offering proceeds. No dealer manager fee is payable on shares sold under the dividend reinvestment plan. The Dealer Manager may reallow to any participating broker-dealer up to 1% of the gross offering proceeds attributable to that participating broker-dealer as a marketing fee. The estimated dealer management fee is approximately $87,500 if the Company sells the minimum of 250,000 shares and approximately $70,000,000 if the Company sells the maximum of 280,000,000 shares. |
| |
| Reimbursement of Organization and Offering Expenses | | The Company will reimburse the Advisor for organization and offering expenses (as discussed in Note 2) incurred by the Advisor or its affiliates on behalf of the Company to the extent that reimbursement would not cause selling commissions, the dealer manager fee and the other organization and offering expenses borne by the Company to exceed 15% of gross offering proceeds as of the date of reimbursement. |
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| | | The Company estimates organization and offering costs of approximately $137,500 if the Company sells the minimum of 250,000 shares and approximately $22,400,000 if the Company sells the maximum of 280,000,000 shares. |
| |
| Acquisition Fee | | The Company will pay the Advisor 0.75% of the cost of investments acquired, including acquisition expenses and any debt attributable to such investments. |
| |
| Asset Management Fee* | | The Company will pay the Advisor a monthly asset management fee equal to one-twelfth of 0.75% of the sum of the cost of all real estate investments the Company owns and of the Company’s investments in joint ventures, including acquisition fees, acquisition expenses and any debt attributable to such investments. |
| |
| Reimbursement of Operating Expenses* | | The Company will reimburse the expenses incurred by the Advisor or its affiliates in connection with their provision of services to the Company, including the Company’s allocable share of the Advisor’s overhead, such as rent, personnel costs, utilities and IT costs. However, the Company will not reimburse the Advisor or its affiliates for personnel costs in connection with services for which the Advisor or its affiliates receive acquisition fees or disposition fees. |
F-12
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 4. | RELATED-PARTY TRANSACTIONS (CONTINUED) |
| | |
| Stock-based Compensation Awards* | | The Company may issue stock-based awards to affiliates of the Advisor. |
| |
| Disposition Fee | | For substantial assistance in connection with the sale of properties or other investments, the Company will pay the Advisor or its affiliate a disposition fee of 1% of the contract sales price of the properties or other investments sold. However, in no event may the real estate commissions paid to the Advisor, its affiliates and unaffiliated third parties exceed 6% of the contract sales price of the properties or other investments sold. |
| |
| Subordinated Participation in Net Cash Flows* | | After investors receive a return of their net capital contributions and an 8.0% per year cumulative, noncompounded return, the Advisor is entitled to receive 15.0% of the net cash flows produced by the Company, whether from continuing operations, net sale proceeds or otherwise. |
| |
| Subordinated Incentive Listing Fee | | Upon listing the Company’s common stock on a national securities exchange or the Nasdaq National Market, the Advisor or its affiliates will receive 15% of the amount by which (1) the market value of the Company’s outstanding stock plus distributions paid by the Company prior to listing exceeds (2) the sum of invested capital and the amount of cash flow necessary to generate an 8.0% per year cumulative, noncompounded return to stockholders. |
| * | The Advisor must reimburse the Company the amount by which the Company’s aggregate annual total operating expenses exceed the greater of 2% of its average invested assets or 25% of its net income, unless the conflicts committee of the Company’s board of directors has determined that such excess expenses were justified based on unusual and non-recurring factors. “Average invested assets” means the average monthly book value of the Company’s assets during the 12-month period before deducting depreciation, bad debts or other non-cash reserves. “Total operating expenses” means all expenses paid or incurred by the Company, as determined under GAAP, that are in any way related to the Company’s operation, including advisory fees, but excluding (a) the expenses of raising capital such as organization and offering expenses, legal, audit, accounting, underwriting, brokerage, listing, registration and other fees, printing and other such expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s stock; (b) interest payments; (c) taxes; (d) non-cash expenditures such as depreciation, amortization and bad debt reserves; (e) reasonable incentive fees based on the gain in the sale of the Company’s assets; and (f) acquisition fees, acquisition expenses (including expenses relating to potential acquisitions that the Company does not close), real estate commissions on the resale of property and other expenses connected with the acquisition, disposition, management and ownership of real estate interests, mortgage loans or other property (including the costs of foreclosure, insurance premiums, legal services, maintenance, repair and improvement of property). To the extent the Advisor receives the fee described above at “Subordinated Participation in Net Cash Flows” and such fee is derived from cash flows other |
F-13
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
September 30, 2005
| 4. | RELATED-PARTY TRANSACTIONS (CONTINUED) |
| | than net sales proceeds, that fee may be limited by the restriction on “total operating expenses.” In addition, stock-based awards treated as an expense under GAAP will count toward the restriction on “total operating expenses.” |
The Advisory Agreement will have a one-year term. The Company may terminate the Advisory Agreement on 60 days’ written notice.
Conflicts of Interest
All of the Company’s executive officers and some of its directors are also executive officers, managers and/or holders of a direct or indirect controlling interest in the Advisor, the Dealer Manager and other KBS-affiliated entities. Through KBS-affiliated entities, these persons also serve as investment advisers to institutional investors in real estate and real estate-related assets. As a result, they owe fiduciary duties to each of these entities, their members and limited partners and these investors, which fiduciary duties may from time to time conflict with the fiduciary duties that they owe to the Company and its stockholders.
Some of the material conflicts that the Advisor, the Dealer Manager or its affiliates will face are 1) the determination of whether an investment opportunity should be recommended to the Company or another KBS-sponsored program or KBS-advised investor; 2) the allocation of the time of key executive officers, directors, and other real estate professionals among the Company, other KBS-sponsored programs and KBS-advised investors, and the activities in which they are involved; 3) the fees received by the Advisor and its affiliates in connection with transactions involving the purchase, management and sale of properties regardless of the quality of the property acquired or the service provided the Company; and 4) the fees received by the Advisor, the Dealer Manager, and its affiliates in connection with the Company’s public offering of equity securities.
The Company will be dependent on the Advisor and the Dealer Manager for certain services that are essential to the Company, including the sale of the Company’s shares of common and preferred stock available for issue; the identification, evaluation, negotiation, purchase and disposition of properties; management of the daily operations of the Company’s real estate portfolio; and other general and administrative responsibilities. In the event that these companies are unable to provide the respective services, the Company will be required to obtain such services from other sources.
F-14
PRIOR PERFORMANCE TABLES
During the 10-year period ending December 31, 2004, two of our sponsors, Peter M. Bren and Charles J. Schreiber, Jr., have teamed to invest, manage, develop and sell high-quality U.S. commercial real estate assets for institutional investors. Together, they founded KBS Realty Advisors LLC, a registered investment adviser with the Securities and Exchange Commission and a nationally recognized real estate investment adviser. Since the formation of the first investment adviser affiliated with Messrs. Bren and Schreiber in 1992, investment advisers affiliated with Messrs. Bren and Schreiber have sponsored nine private real estate funds. We refer to the investment advisers affiliated with Messrs. Bren and Schreiber as KBS investment advisers.
The tables presented in this section provide summary information related to the historical experience of the real estate funds sponsored by KBS investment advisers. Of the nine real estate funds that KBS investment advisers have sponsored, six of those were multi-investor, commingled funds and three were single-client, separate accounts. All of the prior funds were limited partnerships for which affiliates of Messrs. Bren and Schreiber act or acted as a general partner. In all cases, affiliates of Messrs. Bren and Schreiber had responsibility for acquiring, investing, managing, developing and selling the real estate assets of each of the funds. One of the multi-investor, commingled funds formed, managed and liquidated a private REIT that owned 10 retail properties.
Each of these funds have or had (three of the funds have been fully liquidated) investment objectives that are similar to ours. For each of the funds, the KBS investment adviser has focused upon acquiring a diverse portfolio of real estate investments. The KBS investment adviser typically diversified the portfolios of the funds by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for the funds, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, focusing primarily on value-added and enhanced-return properties. Value-added and enhanced-return assets are assets that are undervalued or that could be repositioned to enhance their value. Like the prior funds, we will also seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties.
By purchasing shares in this offering, you will not acquire any ownership interest in any funds to which the information in this section relates and you should not assume that you will experience returns, if any, comparable to those experienced by the investors in the real estate funds discussed. Further, the funds discussed in this section were conducted through privately-held entities that were subject neither to the up-front commissions, fees and expenses associated with this offering nor all of the laws and regulations that will apply to us as a publicly offered REIT.
The information in this section should be read together with the summary information in the prospectus under “Prior Performance Summary.” The following tables are included in this section:
| | • | | Table II – Compensation to Sponsor; |
| | • | | Table III – Operating Results of Prior Programs; |
| | • | | Table IV – Results of Completed Programs; and |
| | • | | Table V – Sales or Disposals of Properties. |
F-15
TABLE II
COMPENSATION TO SPONSOR
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
Table II summarizes the amount and type of compensation paid to KBS affiliates during the three years ended December 31, 2004 in connection with 1) each program sponsored by a KBS investment adviser that had offerings close during this period and 2) all other programs that have made payments to KBS affiliates during this period. All of the programs represented in the table below have or had investment objectives similar to those of KBS Real Estate Investment Trust. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for these programs, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, with a focus primarily on value-added and enhanced-return assets. Like the prior funds, we will also seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties. All figures are as of December 31, 2004.
| | | | | | | | | | | | | | | | | | | | | |
| | | Commingled
Account
5/95 (1)
| | Commingled
Account
12/95 (2)
| | Commingled
Account
12/96 (3)
| | Commingled
Account
6/98 (4)
| | Commingled
Account
6/99 (5)
| | Separate
Account
10/97 (6)
| | Separate
Account
12/98 (7)
|
Date offering commenced | | | (1) | | | (2) | | | (3) | | | (4) | | | (5) | | | (6) | | | (7) |
Dollar amount raised | | $ | 273,100,000 | | $ | 212,500,000 | | $ | 266,125,050 | | $ | 216,650,000 | | $ | 187,000,000 | | $ | 153,016,700 | | $ | 210,967,612 |
Amount paid to sponsor from proceeds of offering: | | | | | | | | | | | | | | | | | | | | | |
Underwriting fees | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Acquisition fees: | | | | | | | | | | | | | | | | | | | | | |
- real estate commisssions | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
- advisory fees (8) | | | — | | | — | | | — | | | — | | | — | | | — | | $ | 33,000 |
- other (identify and quantify) | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Other | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Dollar amount of cash generated from operations before deducting payments to sponsors | | $ | 3,431,000 | | $ | 653,678 | | $ | 40,413,000 | | $ | 49,537,000 | | $ | 61,670,000 | | $ | 24,535,000 | | $ | 71,848,000 |
Amount paid to sponsor from operations: | | | | | | | | | | | | | | | | | | | | | |
Property management fees (9) | | $ | 808,000 | | $ | 25,000 | | $ | 5,583,000 | | | — | | | — | | | — | | | — |
Partnership and asset management fees | | $ | 490,000 | | $ | 92,096 | | $ | 2,143,000 | | $ | 3,414,000 | | $ | 7,132,000 | | $ | 1,973,000 | | $ | 6,226,000 |
Reimbursements | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Leasing commissions (9) | | $ | 355,000 | | | — | | $ | 1,223,000 | | | — | | | — | | | — | | | — |
Construction management fees (9) | | | — | | | — | | $ | 169,000 | | | — | | | — | | | — | | | — |
Loan servicing fees | | $ | 61,000 | | | — | | | — | | | — | | | — | | | — | | | — |
Dollar amount of property sales and refinancing before deducting payments to sponsors | | | | | | | | | | | | | | | | | | | | | |
- cash | | $ | 55,717,000 | | $ | 21,366,686 | | $ | 71,480,000 | | $ | 91,397,000 | | $ | 69,072,000 | | $ | 34,626,000 | | $ | 176,951,000 |
- notes | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Amounts paid to sponsor from property sales and refinancing: | | | | | | | | | | | | | | | | | | | | | |
-Real estate commissions (9) | | $ | 55,000 | | $ | 302,500 | | $ | 385,000 | | | — | | | — | | | — | | | — |
-Disposition fees | | | — | | | — | | | — | | $ | 196,000 | | $ | 181,000 | | | — | | | — |
- Incentive fees (10) | | | — | | $ | 6,425,500 | | | — | | | — | | $ | 310,000 | | | — | | | — |
- Other (identify and quantify) | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
| (1) | This program made payments to KBS affiliates during the three years ended December 31, 2004; however, it did not close any offerings during this period. Commingled Account 5/95 represents a multi-investor commingled fund that makes investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in May 1995. |
F-16
TABLE II
COMPENSATION TO SPONSOR
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| (2) | This program made payments to KBS affiliates during the three years ended December 31, 2004; however, it did not close any offerings during this period. Commingled Account 12/95 was a multi-investor commingled fund that made investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber was the general partner. This program made its first investment in December 1995 and its assets have been liquidated other than de minimis amounts held in reserve. |
| (3) | This program made payments to KBS affiliates during the three years ended December 31, 2004; however, it did not close any offerings during this period. Commingled Account 12/96 represents a multi-investor commingled fund that makes investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in December 1996. |
| (4) | This program made payments to KBS affiliates during the three years ended December 31, 2004; however, it did not close any offerings during this period. Commingled Account 6/98 represents a multi-investor commingled fund that makes investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in June 1998. |
| (5) | This program made payments to KBS affiliates during the three years ended December 31, 2004; however, it did not close any offerings during this period. Commingled Account 6/99 represents a multi-investor commingled fund that makes investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. The account made its first investment in June 1999. |
| (6) | This program made payments to KBS affiliates during the three years ended December 31, 2004; however, it did not close any offerings during this period. Separate Account 10/97 represents a single-client account that made investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in October 1997. |
| (7) | This program made payments to KBS affiliates during the three years ended December 31, 2004; however, it did not close any offerings during this period. Separate Account 12/98 represents a single-client account that made investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in December 1998. |
| (8) | Advisory fees are acquisition fees that are calculated as a percentage of equity invested and are paid to the sponsor. |
| (9) | Fees paid to parties affiliated with the general partner of the program. |
| (10) | Only two of the funds represented in this table, Commingled Account 12/95 and Commingled Account 6/99, paid incentive fees during the three years ended December 31, 2004. Two of the seven funds, Commingled Account 6/98 and Commingled Account 6/99, pay incentive fees based on gains from the sale of assets. The incentive fees for the remaining five funds represented in this table (Commingled Account 5/95, Commingled Account 12/95, Commingled Account 12/96, Separate Account 10/97 and Separate Account 12/98) are back-end fees based on participation interests in the net cash flows of the funds’ assets after achieving a stipulated return for the investors. These back-end incentive fees will be paid during the final liquidation stage of the funds. Only two of these five funds, Commingled Account 12/95 and Commingled Account 5/95, are currently in their liquidation stage. Although Commingled Account 5/95 is in its liquidation stage and had not paid incentive fees as of December 31, 2004, as of the date of this prospectus Commingled Account 5/95 had achieved the stipulated return for the investors and paid incentive fees. |
F-17
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
This table summarizes the operating results of programs sponsored by KBS investment advisers that have had offerings close since December 31, 1999. For these programs, this table shows: the income or loss of such programs (based upon U.S. generally accepted accounting principles (“GAAP”)); the cash they generated from operations, sales and refinancings; and information regarding cash distributions. Each of these programs has investment objectives similar to those of KBS Real Estate Investment Trust. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for these programs, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, with a focus primarily on value-added and enhanced-return assets. Like the prior funds, we will also seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties. All figures are as of December 31 of the year indicated, except as otherwise noted.
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| | | Separate Account 12/98
| |
| | | 2000
| | | 2001
| | | 2002
| | | 2003
| | | 2004
| |
Gross revenues | | $ | 66,724,000 | | | $ | 72,226,000 | | | $ | 36,163,000 | | | $ | 19,449,000 | | | $ | 13,974,000 | |
Profit (loss) on sale of properties | | | 14,088,000 | | | | 1,032,000 | | | | 11,831,000 | | | | (7,996,000 | ) | | | (5,834,000 | ) |
Less: Operating expenses(1) | | | (15,245,000 | ) | | | (18,307,000 | ) | | | (14,669,000 | ) | | | (15,986,000 | ) | | | (25,187,000 | ) |
Interest expense | | | (10,802,000 | ) | | | (8,470,000 | ) | | | (3,761,000 | ) | | | (1,432,000 | ) | | | (1,170,000 | ) |
Depreciation(2) | | | — | | | | — | | | | — | | | | — | | | | — | |
Unrealized gain (loss)(2) | | | 8,506,000 | | | | (21,952,000 | ) | | | (21,103,000 | ) | | | 4,128,000 | | | | 16,146,000 | |
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Net income (loss) - GAAP basis(2) | | $ | 63,271,000 | | | $ | 24,529,000 | | | $ | 8,461,000 | | | $ | (1,837,000 | ) | | $ | (2,071,000 | ) |
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Taxable income: | | | | | | | | | | | | | | | | | | | | |
From operations | | $ | 54,963,000 | | | $ | 48,623,000 | | | $ | 32,619,000 | | | $ | 12,769,000 | | | $ | 9,851,000 | |
From gain (loss) on sale | | $ | 5,005,000 | | | $ | 79,000 | | | $ | 16,574,000 | | | $ | (2,941,000 | ) | | | — | |
Cash generated (deficiency) from operations(3) | | $ | 21,782,000 | | | $ | 21,738,000 | | | $ | 33,585,000 | | | $ | 16,704,000 | | | $ | 15,333,000 | |
Cash generated (deficiency) from sales | | | 17,405,000 | | | | 6,750,000 | | | | 33,895,000 | | | | 19,435,000 | | | | 16,282,000 | |
Cash generated from refinancing | | | 16,022,000 | | | | — | | | | — | | | | — | | | | 32,229,000 | |
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Total cash generated from operations, sales and refinancing | | $ | 55,209,000 | | | $ | 28,488,000 | | | $ | 67,480,000 | | | $ | 36,139,000 | | | $ | 63,844,000 | |
Less: Cash distributions to investors | | | | | | | | | | | | | | | | | | | | |
- From operating cash flow | | | (18,077,000 | ) | | | (27,660,000 | ) | | | (34,632,000 | ) | | | (5,518,000 | ) | | | (200,000 | ) |
- From sales and refinancing | | | (17,088,000 | ) | | | (6,506,000 | ) | | | (32,638,000 | ) | | | (23,408,000 | ) | | | (59,375,000 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
F-18
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | | | | | | | | | | | | | |
| | | Separate Account 12/98
| |
| | | 2000
| | | 2001
| | | 2002
| | | 2003
| | | 2004
| |
Cash generated (deficiency) after cash distributions | | $ | 20,044,000 | | | $ | (5,678,000 | ) | | $ | 210,000 | | | $ | 7,213,000 | | | $ | 4,269,000 | |
Less: Special items (not including sales and refinancing)(4) | | | (14,118,000 | ) | | | — | | | | — | | | | — | | | | — | |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Cash generated (deficiency) after cash distributions and special items(5) | | $ | 5,926,000 | | | $ | (5,678,000 | ) | | $ | 210,000 | | | $ | 7,213,000 | | | $ | 4,269,000 | |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Tax and Distribution Data per $1,000 Invested | | | | | | | | | | | | | | | | | | | | |
Federal Income Tax Results: | | | | | | | | | | | | | | | | | | | | |
Ordinary income (loss) | | | | | | | | | | | | | | | | | | | | |
-from operations | | $ | 264 | | | $ | 264 | | | $ | 179 | | | $ | 81 | | | $ | 84 | |
-from recapture | | | — | | | | — | | | | — | | | | — | | | | — | |
Capital gain (loss) | | $ | 30 | | | | — | | | $ | 91 | | | $ | (19 | ) | | | — | |
Cash distributions to investors | | | | | | | | | | | | | | | | | | | | |
Source (on GAAP basis) | | | | | | | | | | | | | | | | | | | | |
-from investment income | | $ | (149 | ) | | $ | (153 | ) | | $ | (252 | ) | | $ | (35 | ) | | $ | (2 | ) |
-from return of capital | | | (63 | ) | | | (32 | ) | | | (117 | ) | | | (149 | ) | | | (506 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Total distribution on GAAP basis | | $ | (212 | ) | | $ | (185 | ) | | $ | (369 | ) | | $ | (184 | ) | | $ | (508 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Source (on cash basis) | | | | | | | | | | | | | | | | | | | | |
-from sales | | $ | (103 | ) | | $ | (35 | ) | | $ | (179 | ) | | $ | (149 | ) | | $ | (231 | ) |
-from refinancing | | | — | | | | — | | | | — | | | | — | | | | (275 | ) |
-from operations | | | (109 | ) | | | (150 | ) | | | (190 | ) | | | (35 | ) | | | (2 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Total distributions on cash basis | | $ | (212 | ) | | $ | (185 | ) | | $ | (369 | ) | | $ | (184 | ) | | $ | (508 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Amounts (in percentage terms) remaining invested in program properties as of December 31, 2004(6) | | | | | | | | | | | | | | | | | | | 26 | % |
| (1) | Operating expenses include all general and administrative expenses. |
F-19
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| (2) | The accompanying financial information has been prepared in conformity with accounting principles generally accepted in the United States for investment companies. Accordingly, the real estate investments are reflected at their estimated current values as determined by the general partner, using current appraisals or market information and the general partner’s good faith estimate of value. All other assets and liabilities are generally valued based on the actual costs or liabilities incurred, which management believes approximates current value. |
The major differences between GAAP basis income for investment companies and taxable income are the following:
GAAP basis income for investment companies does not record depreciation expense while taxable income recognizes depreciation expense.
GAAP basis income for investment companies carries its assets at market value and records the changes in market value as unrealized gain or loss in the income statement. Taxable income records no such adjustment.
| (3) | For Separate Account 12/98, “cash generated from operations” includes distributions from two unconsolidated subsidiaries, which we refer to as Madison and Manager. Madison invests in commercial mortgage backed securities and makes distributions of principal and interest to its investors. Separate Account 12/98 owns a 25.78% interest in Madison and parties unaffiliated with Separate Account 12/98 own the remaining interest. Madison made the following distributions to Separate Account 12/98 net of financing requirements at the Separate Account 12/98 level: $15,052,000 in year 2000; $13,470,000 in year 2001; $26,473,000 in year 2002; $10,128,000 in year 2003; and $11,660,000 in year 2004. Manager is the asset manager for Madison and receives an asset management fee for this service. Separate Account 12/98 owns a 50% interest in Manager and a party unaffiliated with Separate Account 12/98 owns the remaining interest. Manager made the following distributions to Separate Account 12/98 during the periods indicated: $2,075,000 in 2000, $2,285,000 in 2001, $2,033,000 in 2002, $1,208,000 in 2003 and $895,000 in 2004. |
| (4) | For Separate Account 12/98 in the year 2000, $14,118,000 of cash generated from refinancing was used to fund properties under development. |
| (5) | Cash deficiencies after cash distributions and special items in 2001 were funded by cash generated from operations and sales in the year 2000. |
| (6) | Calculated as original total acquisition cost of properties retained divided by original total acquisition cost of all properties in program. |
F-20
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | | | | | | | | | | | | | |
| | | Commingled Account 6/99
| |
| | | 2000
| | | 2001
| | | 2002
| | | 2003
| | | 2004
| |
Gross revenues | | $ | 45,417,000 | | | $ | 50,179,000 | | | $ | 49,096,000 | | | $ | 48,448,000 | | | $ | 41,800,000 | |
Profit (loss) on sale of properties | | | 1,500,000 | | | | — | | | | 998,000 | | | | (22,000 | ) | | | 2,464,000 | |
Less: Operating expenses(1) | | | (23,724,000 | ) | | | (24,885,000 | ) | | | (25,291,000 | ) | | | (25,452,000 | ) | | | (22,106,000 | ) |
Interest expense | | | (8,872,000 | ) | | | (6,871,000 | ) | | | (4,418,000 | ) | | | (3,679,000 | ) | | | (4,509,000 | ) |
Depreciation (2) | | | — | | | | — | | | | — | | | | — | | | | — | |
Unrealized gain (loss)(2) | | | 3,211,000 | | | | (9,611,000 | ) | | | (20,226,000 | ) | | | (1,562,000 | ) | | | (1,507,000 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Net income (loss) - GAAP basis (2) | | $ | 17,532,000 | | | $ | 8,812,000 | | | $ | 159,000 | | | $ | 17,733,000 | | | $ | 16,142,000 | |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Taxable income: | | | | | | | | | | | | | | | | | | | | |
From operations | | $ | 8,577,000 | | | $ | 12,244,000 | | | $ | 12,280,000 | | | $ | 11,087,000 | | | $ | 6,513,000 | |
From gain (loss) on sale | | | — | | | | — | | | $ | 1,776,000 | | | $ | (22,000 | ) | | $ | 6,429,000 | |
Cash generated (deficiency) from operations | | $ | 16,277,000 | | | $ | 17,748,000 | | | $ | 20,443,000 | | | $ | 18,794,000 | | | $ | 15,301,000 | |
Cash generated (deficiency) from sales | | | 5,939,000 | | | | — | | | | 7,507,000 | | | | — | | | | 22,643,000 | |
Cash generated from refinancing | | | — | | | | — | | | | — | | | | — | | | | 19,352,000 | |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Total cash generated from operations, sales and refinancing | | $ | 22,216,000 | | | $ | 17,748,000 | | | $ | 27,950,000 | | | $ | 18,794,000 | | | $ | 57,296,000 | |
Less: Cash distributions to investors | | | | | | | | | | | | | | | | | | | | |
- From operating cash flow | | | (16,673,000 | ) | | | (18,765,000 | ) | | | (7,674,000 | ) | | | (10,999,000 | ) | | | (5,061,000 | ) |
- From sales and refinancing | | | (5,813,000 | ) | | | — | | | | (6,826,000 | ) | | | — | | | | (42,124,000 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Cash generated (deficiency) after cash distributions | | $ | (270,000 | ) | | $ | (1,017,000 | ) | | $ | 13,450,000 | | | $ | 7,795,000 | | | $ | 10,111,000 | |
Less: Special items (not including sales and refinancing) | | | — | | | | — | | | | — | | | | — | | | | — | |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Cash generated (deficiency) after cash distributions and special items (3) | | $ | (270,000 | ) | | $ | (1,017,000 | ) | | $ | 13,450,000 | | | $ | 7,795,000 | | | $ | 10,111,000 | |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
F-21
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | | | | | | | | | | | | | |
| | | Commingled Account 6/99
| |
| | | 2000
| | | 2001
| | | 2002
| | | 2003
| | | 2004
| |
Tax and Distribution Data per $1,000 Invested | | | | | | | | | | | | | | | | | | | | |
Federal Income Tax Results: | | | | | | | | | | | | | | | | | | | | |
Ordinary income (loss) | | | | | | | | | | | | | | | | | | | | |
- from operations | | $ | 54 | | | $ | 70 | | | $ | 67 | | | $ | 63 | | | $ | 40 | |
- from recapture | | | — | | | | — | | | | — | | | | — | | | | — | |
Capital gain (loss) | | | — | | | | — | | | $ | 10 | | | | — | | | $ | 40 | |
Cash distributions to investors | | | | | | | | | | | | | | | | | | | | |
Source (on GAAP basis) | | | | | | | | | | | | | | | | | | | | |
- from investment income | | $ | (114 | ) | | $ | (107 | ) | | $ | (48 | ) | | $ | (62 | ) | | $ | (52 | ) |
- from return of capital | | | (28 | )(4) | | | — | | | | (31 | ) | | | — | | | | (240 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Total distribution on GAAP basis | | $ | (142 | ) | | $ | (107 | ) | | $ | (79 | ) | | $ | (62 | ) | | $ | (292 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Source (on cash basis) | | | | | | | | | | | | | | | | | | | | |
- from sales | | $ | (37 | ) | | | — | | | $ | (37 | ) | | | — | | | $ | (139 | ) |
- from refinancing | | | — | | | | — | | | | — | | | | — | | | | (122 | ) |
- from operations | | | (105 | ) | | | (107 | ) | | | (42 | ) | | | (62 | ) | | | (31 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Total distributions on cash basis | | $ | (142 | ) | | $ | (107 | ) | | $ | (79 | ) | | $ | (62 | ) | | $ | (292 | ) |
| | |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
|
Amounts (in percentage terms) remaining invested in program properties as of December 31, 2004(5) | | | | | | | | | | | | | | | | | | | 83 | % |
| (1) | Operating expenses include all general and administrative expenses. |
| (2) | The accompanying financial information has been prepared in conformity with accounting principles generally accepted in the United States for investment companies. Accordingly, the real estate investments are reflected at their estimated current values as determined by the general partner, using current appraisals or market information and the general partner’s good faith estimate of value. All other assets and liabilities are generally valued based on the actual costs or liabilities incurred, which management believes approximates current value. |
The major differences between GAAP basis income for investment companies and taxable income are the following:
GAAP basis income for investment companies does not record depreciation expense while taxable income recognizes depreciation expense.
F-22
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
GAAP basis income for investment companies carries its assets at market value and records the changes in market value as unrealized gain or loss in the income statement. Taxable income records no such adjustment.
| (3) | Cash deficiencies after cash distributions and special items in 2000 and 2001 were funded by cash generated from operations during the period June 1999 to December 1999. During the period June 15, 1999 to December 31, 1999, cash generated from operations was approximately $8.7 million compared to distributions to investors of approximately $2.7 million. |
| (4) | For the year 2000, the return of capital of “$28 per $1000 invested” was a result of year 2000 cash flow, as evidenced by “cash generated from sales” of $5,939,000 compared to “cash distributions to investors from sales” of $5,813,000. |
| (5) | Calculated as original total acquisition cost of properties retained divided by original total acquisition cost of all properties in program. |
F-23
TABLE IV
RESULTS OF COMPLETED PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
Table IV summarizes the results of programs sponsored by KBS investment advisers that during the five years ended December 31, 2004 have completed their operations and sold all of their properties. Each of the programs represented in the table below had investment objectives that were similar to those of KBS Real Estate Investment Trust. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for these programs, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, with a focus primarily on value-added and enhanced-return assets. Like the prior funds, we will also seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties.
| | | | |
| | | Commingled
Account 12/95(1)
| |
Dollar amount raised | | $ | 212,500,000 | (1) |
Number of properties purchased/developed | | | 62 | |
Date of closing of offering | | | | (1) |
Date of first sale of property | | | 8/97 | |
Date of final sale of property | | | 6/02 | |
Tax and distribution data per $1,000 invested through | | | | |
Federal income tax results: | | | | |
Ordinary income (loss): | | | | |
- from operations | | $ | 277 | |
- from recapture | | | — | |
Capital gain | | $ | 340 | |
Deferred gain: | | | | |
Capital | | | — | |
Ordinary | | | — | |
Cash distributions to investors | | | | |
Source (on GAAP basis) | | | | |
- from investment income | | $ | 613 | |
- from return of capital | | $ | 1,000 | |
| | |
|
|
|
Total distribution on GAAP basis | | $ | 1,613 | |
| | |
|
|
|
Source (on cash basis) | | | | |
- from sales | | $ | 1,459 | |
- from refinancing | | | — | |
- from operations | | $ | 154 | |
| (1) | This program was a multi-investor, commingled fund that made investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber served as the general partner. The investors in this partnership contributed a total of $212,500,000 in nine capital raises between December 1995 and October 1997. |
F-24
TABLE V
SALES OR DISPOSALS OF PROPERTIES
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
Table V presents summary information with respect to the results of sales or disposals of properties by programs sponsored by KBS investment advisers during the three years ended December 31, 2004. The Table includes information about the sales proceeds received, the cash invested in the properties, the taxable gain or loss from the sales and the cash flow from the operation of the properties. Each of the programs represented in the table have or had investment objectives similar to those of KBS Real Estate Investment Trust. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for these programs, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, with a focus primarily on value-added and enhanced-return assets. Like the prior funds, we will also seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | Selling Price, Net of Closing Costs and GAAP Adjustments
| | Cost of Properties Including Closing
and Soft Costs
| | | |
Property
| | Date Acquired
| | Date of Sale
| | Cash Received Net of Closing Costs
| | Mortgage Balance
at Time of
Sale
| | Purchase
Money Mortgage
Taken Back by
Program
| | Adjustments Resulting
from Application
of GAAP
| | Total(1)
| | Original
Mortgage Financing
| | Total
Acquisition Costs, Capital Improvements
Closing and Soft
Costs(2)
| | Total
| | Excess (Deficiency) of Property Operating Cash Receipts Over Cash Expenditures(3)
| |
Separate Account 12/98 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
American Place | | 3/99 | | 12/03 | | $ | 26,473,374 | | — | | — | | — | | $ | 26,473,374 | | | — | | $ | 34,766,176 | | $ | 34,766,176 | | $ | 15,127,345 | |
Landerhaven | | 1/99 | | 1/03 | | $ | 22,302,616 | | — | | — | | — | | $ | 22,302,616 | | | — | | $ | 22,005,986 | | $ | 22,005,986 | | $ | (9,784 | ) |
80 Tech | | 2/99 | | 6/02 | | $ | 13,596,827 | | — | | — | | — | | $ | 13,596,827 | | | — | | $ | 17,424,771 | | $ | 17,424,771 | | $ | 5,299,712 | |
90 Tech | | 2/99 | | 5/02 | | $ | 30,604,656 | | — | | — | | — | | $ | 30,604,656 | | | — | | $ | 14,911,308 | | $ | 14,911,308 | | $ | 2,703,557 | |
Broadway | | 11/99 | | 3/02 | | $ | 51,100,287 | | — | | — | | — | | $ | 51,100,287 | | $ | 23,000,000 | | $ | 28,134,421 | | $ | 51,134,421 | | $ | 12,401,731 | |
Commingled Account 5/95 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Plaza I -III | | 7/95 | | 3/03,
7/03
&
3/04 | | $ | 55,662,506 | | — | | — | | — | | $ | 55,662,506 | | | — | | $ | 46,454,243 | | $ | 46,454,243 | | $ | 20,625,408 | |
Commingled Account 12/95 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Blackhawk | | 12/95 | | 6/02 | | $ | 21,366,686 | | — | | — | | — | | $ | 21,366,686 | | | — | | $ | 30,649,033 | | $ | 30,649,033 | | $ | 9,228,230 | |
Commingled Account 12/96 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Red Oak | | 7/97 | | 1/02 | | $ | 2,926,615 | | — | | — | | — | | $ | 2,926,615 | | | — | | $ | 4,283,708 | | $ | 4,283,708 | | $ | 720,594 | |
Longmont | | 5/97 | | 7/03
&
11/03 | | $ | 3,359,170 | | — | | — | | — | | $ | 3,359,170 | | | — | | $ | 3,359,170 | | $ | 3,359,170 | | | — | |
Boulder County | | 5/97 | | 10/04 | | $ | 36,380,130 | | — | | — | | — | | $ | 36,380,130 | | | — | | $ | 38,380,896 | | $ | 38,380,896 | | $ | 6,447,448 | |
Commingled Account 6/98 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
SW Freeway | | 7/98 | | 8/02 | | $ | 2,344,580 | | — | | — | | — | | $ | 2,344,580 | | | — | | $ | 4,937,374 | | $ | 4,937,374 | | $ | 675,264 | |
7th Gate | | 7/98 | | 2/04 | | $ | 3,621,079 | | — | | — | | — | | $ | 3,621,079 | | | — | | $ | 3,701,633 | | $ | 3,701,633 | | $ | 1,801,962 | |
Meridian | | 7/98 | | 4/04 | | $ | 2,839,460 | | — | | — | | — | | $ | 2,839,460 | | | — | | $ | 4,443,215 | | $ | 4,443,215 | | $ | 1,015,640 | |
N 7th Street | | 7/98 | | 7/04 | | $ | 3,297,931 | | — | | — | | — | | $ | 3,297,931 | | | — | | $ | 4,887,422 | | $ | 4,887,422 | | $ | 1,737,940 | |
Aztec | | 7/98 | | 9/04 | | $ | 3,390,786 | | — | | — | | — | | $ | 3,390,786 | | | — | | $ | 5,591,578 | | $ | 5,591,578 | | $ | 2,110,433 | |
South Tucson | | 7/98 | | 10/04 | | $ | 8,728,083 | | — | | — | | — | | $ | 8,728,083 | | | — | | $ | 8,986,280 | | $ | 8,986,280 | | $ | 1,340,648 | |
N Central | | 7/98 | | 12/04 | | $ | 30,133,059 | | — | | — | | — | | $ | 30,133,059 | | | — | | $ | 22,788,259 | | $ | 22,788,259 | | $ | 7,156,389 | |
F-25
TABLE V
SALES OR DISPOSALS OF PROPERTIES
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | Selling Price, Net of Closing Costs and GAAP Adjustments
| | Cost of Properties Including Closing
and Soft Costs
|
Property
| | Date Acquired
| | Date of Sale
| | Cash Received Net of Closing Costs
| | Mortgage Balance
at Time of
Sale
| | Purchase
Money Mortgage
Taken Back by
Program
| | Adjustments Resulting
from Application
of GAAP
| | Total(1)
| | Original
Mortgage Financing
| | Total
Acquisition Costs, Capital Improvements
Closing and Soft
Costs(2)
| | Total
| | Excess (Deficiency) of Property Operating Cash Receipts Over Cash Expenditures(3)
|
Commingled Account 6/99 | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Fox Valley | | 6/99 | | 12/02 | | $ | 11,272,021 | | — | | — | | — | | $ | 11,272,021 | | — | | $ | 10,296,495 | | $ | 10,296,495 | | $ | 2,611,880 |
Galleria | | 10/99 | | 2/04 | | $ | 11,039,602 | | — | | — | | — | | $ | 11,039,602 | | — | | $ | 11,126,308 | | $ | 11,126,308 | | $ | 5,120,256 |
Weslayan | | 10/99 | | 8/04 | | $ | 6,674,417 | | — | | — | | — | | $ | 6,674,417 | | — | | $ | 6,691,337 | | $ | 6,691,337 | | $ | 3,121,069 |
Atrium | | 12/99 | | 11/04 | | $ | 10,647,637 | | — | | — | | — | | $ | 10,647,637 | | — | | $ | 10,706,206 | | $ | 10,706,206 | | $ | 5,042,081 |
Nagog | | 9/99 | | 11/04 | | $ | 9,889,060 | | — | | — | | — | | $ | 9,889,060 | | — | | $ | 7,262,719 | | $ | 7,262,719 | | $ | 4,356,982 |
Separate Account 10/97 | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Arapahoe | | 1/98 | | 8/03 | | $ | 7,432,751 | | — | | — | | — | | $ | 7,432,751 | | — | | $ | 10,622,358 | | $ | 10,622,358 | | $ | 2,426,230 |
| (1) | See also the table immediately below that sets forth the allocation of taxable gain (loss) associated with individual property sales between capital gain (loss) and ordinary gain (loss). |
| (2) | Acquisition costs include acquisition fees paid to sponsor. Soft costs include legal fees, environmental studies, title and closing costs related to the acquisition and closing of the asset. Amounts shown do not include pro rata share of program offering costs nor do they include any program administration costs not related to the operation of the property. |
| (3) | Does not include any program administration costs not related to the operation of the property. |
F-26
TABLE V
SALES OR DISPOSALS OF PROPERTIES — ALLOCATION OF TAXABLE GAIN
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
This table sets forth the allocation of taxable gain (loss) associated with individual property sales between capital gain (loss) and ordinary gain (loss) for properties sold by programs sponsored by KBS investment advisers during the three years ended December 31, 2004.
| | | | | | | | | | | | |
Property
| | Taxable Gain
(Loss)
| | | Capital Gain
(Loss)
| | | Ordinary Gain
(Loss)
| |
Separate Account 12/98 | | | | | | | | | | | | |
American Place | | $ | (4,531,787 | ) | | $ | (4,531,787 | ) | | | — | |
Landerhaven | | $ | 1,535,164 | | | $ | 1,535,164 | | | | — | |
80 Tech | | $ | (2,227,612 | ) | | $ | (2,227,612 | ) | | | — | |
90 Tech | | $ | 15,943,841 | | | $ | 12,152,718 | | | $ | 3,791,123 | |
Broadway | | $ | 2,371,560 | | | $ | 2,371,560 | | | | — | |
Commingled Account 5/95 | | | | | | | | | | | | |
Plaza I –III | | $ | 4,995,873 | | | $ | 4,995,873 | | | | — | |
Commingled Account 12/95 | | | | | | | | | | | | |
Blackhawk | | $ | (7,617,947 | ) | | $ | (7,617,947 | ) | | | — | |
Commingled Account 12/96 | | | | | | | | | | | | |
Red Oak | | $ | (836,222 | ) | | $ | — | | | $ | (836,222 | ) |
Longmont | | $ | 1,501,426 | | | $ | 1,501,426 | | | | — | |
Boulder County | | $ | 2,794,480 | | | $ | 2,794,480 | | | | — | |
Commingled Account 6/98 | | | | | | | | | | | | |
SW Freeway | | $ | (2,166,560 | ) | | | — | | | $ | (2,166,560 | ) |
7th Gate | | $ | 355,385 | | | $ | 355,385 | | | | — | |
Meridian | | $ | (1,087,935 | ) | | $ | (1,087,935 | ) | | | — | |
N 7th Street | | $ | (1,049,954 | ) | | $ | (1,049,954 | ) | | | — | |
Aztec | | $ | (1,498,832 | ) | | $ | (1,498,832 | ) | | | — | |
South Tucson | | $ | 1,012,991 | | | $ | 1,012,991 | | | | — | |
N Central | | $ | 10,753,764 | | | $ | 10,753,764 | | | | — | |
Commingled Account 6/99 | | | | | | | | | | | | |
Fox Valley | | $ | 1,754,862 | | | $ | 1,754,862 | | | | — | |
Galleria | | $ | 1,101,117 | | | $ | 1,101,117 | | | | — | |
Weslayan | | $ | 749,959 | | | $ | 749,959 | | | | — | |
Atrium | | $ | 1,259,525 | | | $ | 1,259,525 | | | | — | |
Nagog Retail | | $ | 3,318,032 | | | $ | 3,318,032 | | | | — | |
Separate Account 10/97 | | | | | | | | | | | | |
Arapahoe | | $ | (1,871,718 | ) | | | — | | | $ | (1,871,718 | ) |
F-27
APPENDIX A
| | |
 | | KBS Real Estate Investment Trust, Inc. Investor Instructions |
Please follow these instructions carefully. Failure to do so could result in the rejection of your subscription.
PLEASE NOTE:We do not accept money orders, traveler’s checks, starter checks, foreign checks, counter checks, third-party checks or cash.
A minimum initial investment of $5,000 is required. Until we have raised the minimum offering amount, you should make your check payable to “First Republic Trust Company, as escrow agent for KBS Real Estate Investment Trust, Inc.” Once we have raised $2,500,000 in the offering from persons who are not affiliated with us or our advisor, you should make your check payable to “KBS Real Estate Investment Trust, Inc.,” except that Pennsylvania investors should follow the instructions in the Prospectus under “Plan of Distribution—Special Notice to Pennsylvania Investors.”
All additional investments must be for at least $100. The “Additional Investment” boxmust be checked in order for your subscription to be combined with another subscription for purposes of a volume discount. If you wish your subscription to be combined with another person who together with you constitutes a “single purchaser” as described in the Prospectus under “Plan of Distribution,” you must attach a statement to this Subscription Agreement setting forth the basis for the discount and the orders to be combined.
Deferred Commission Option: Check this box if you have agreed with your Financial Advisor to elect the Deferred Commission Option described in the Prospectus under “Plan of Description—Deferred Commission Option.” If you check this box and your Financial Advisor completes and signs the corresponding provision in Section 9 of the Subscription Agreement, commissions will be deferred and later paid from the distributions otherwise payable to you as set forth in the Prospectus.
PLEASE NOTE:You must include a permanent street address even if your mailing address is a P.O. Box. If the investment is to be held by joint owners, you must provide the requested investor information for each joint owner.
Enter the name(s), mailing address and telephone numbers of the registered owner of the investment. Partnerships, corporations and other organizations should include the name of an individual to whom correspondence should be addressed. Non-resident aliens must also supply IRS Form W-8BEN.
PLEASE NOTE:All investors must complete the space provided for taxpayer identification number or social security number. By signing in Section 8, you are certifying that this number is correct.
Please print the exact name(s) in which Shares are to be registered. Include the trust name, if applicable. If the investor is an IRA or qualified plan, include the names and taxpayer identification numbers of both the investor and the custodian or trustee.
| 4. | QUALIFIED PLANS ONLY – TRUSTEE (CUSTODIAN) INFORMATION |
Complete this section if the registered owner of the investment will be a Qualified Plan or Trust.
Please check the appropriate box to indicate the account type of the subscribing investor.
| 6. | DISTRIBUTION INFORMATION |
PLEASE NOTE:If you elect to participate in the Dividend Reinvestment Plan, you must agree that if at any time you fail to meet the applicable investor suitability standards or cannot make the other investor representations or warranties set forth in the then current Prospectus or the Subscription Agreement relating to such investment, you will promptly notify KBS Real Estate Investment Trust in writing of that fact.
Complete this section to enroll in the Dividend Reinvestment Plan, to elect to receive distributions by direct deposit and/or to elect to receive distributions by check. If you elect direct deposit, you must attach a voided check with this completed subscription
A-1
agreement. You can choose to have all or a portion of your distributions reinvested through the Dividend Reinvestment Plan. You must indicate the percentage of your distribution to be applied to each option selected and the sum of the allocationsmustequal 100%. If you do not complete this section, distributions will be paid to the registered owner at the address in Section 2. IRA accounts may not direct distributions without the Custodian’s approval.
| 7. | BROKER-DEALER AND REGISTERED REPRESENTATIVE INFORMATION |
PLEASE NOTE:The Broker-Dealer or Registered Investment Adviser must complete this section to complete the subscription. All fields are mandatory.
Please separately initial each of the representations in paragraphs (a) through (e). Except in the case of fiduciary accounts, you may not grant any person a power of attorney to make such representations on your behalf.
By signing this Subscription Agreement, you agree to provide this information and confirm that this information is true and correct. If we are unable to verify your identity or that of another person authorized to act on your behalf or if we believe we have identifiedpotential criminal activity, we reserve the right to take action as we deem appropriate, including refusing to open or closing your account.
| 9. | FINANCIAL REPRESENTATIVE SIGNATURES |
Please Note:The Broker-Dealer or Registered Investment Adviser must sign this section to complete the subscription.
Required Representations: By signing Section 9, the registered representative of the Broker-Dealer or Registered Investment Adviser confirms on behalf of the Broker-Dealer that he or she:
| | • | | has reasonable grounds to believe that the information and representations concerning the investor identified herein are true, correct and complete in all respects; |
| | • | | has discussed the investor’s prospective purchase of Shares with such investor; |
| | • | | has advised such investor of all pertinent facts with regard to the lack of liquidity and marketability of the Shares, the restrictions on transfer of the Shares and the risk that the investor could lose his or her entire investment in the Shares; |
| | • | | has delivered to the investor a current Prospectus and all Supplements, if any, required to be delivered in connection with this subscription; |
| | • | | has reasonable grounds to believe that the investor is purchasing these Shares for his or her own account; and |
| | • | | has reasonable grounds to believe that the purchase of Shares is a suitable investment for such investor, that such investor meets the suitability standards applicable to the investor set forth in the current Prospectus and related Supplements, if any, and that such investor is in a financial position to enable the investor to realize the benefits of such an investment and to suffer any loss that may occur with respect thereto. |
In addition, the registered representative of the Broker-Dealer or Registered Investment Adviser represents that he or she and the Broker-Dealer, (1) are duly licensed and may lawfully offer and sell the Shares in the state where the investment was made and in the state designated as the investor’s legal residence in Section 2; and (2) agree to maintain records of the information used to determine that an investment in Shares is suitable and appropriate for the investor for a period of six years.
Deferred Commission Option: The Financial Advisor should select this option and sign in the space provided if he or she has agreed with the subscriber to elect the Deferred Commission Option described in the Prospectus under “Plan of Distribution — Deferred Commission Option.”
PLEASE NOTE:Only original, completed copies of the Subscription Agreement can be accepted. We cannot accept photocopied or otherwise duplicated Subscription Agreements. The Subscription Agreement, together with a check for the full purchase price, should be delivered or mailed to:
KBS Capital Markets Group LLC
2401 Kerner Blvd., San Rafael, California 94901
(866) 584-1381
A-2
SAMPLE
| | |
| | KBS Real Estate Investment Trust, Inc. Subscription Agreement |
| |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Amount of Subscription: $ | | | | | | | | | | , | | | | | | | | , | | | | | | | | . | | | | | | | | ¨ Initial Investment - OR - |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | ¨ Additional Investment in this offering |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| State of Sale: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Existing account number __________ |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | ¨ Shares are being purchased net of commissions |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | ¨ Deferred Commission Option |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Investor 1 Name | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | |
| | | | | (Last/ First/ Middle) | | |
| Investor 2 Name | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | |
| | | | | (Last/ First/ Middle) | | |
| Address Line 1 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | |
| | | | | PLEASE NOTE:You must include a permanent street address even if your mailing address is a P.O. Box. | | |
| Address Line 2 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Phone (daytime) | | | | | | | | | | - | | | | | | | | - | | | | | | | | | | | | | | | | | | | | | | Phone (evening) | | | | | | | | | | - | | | | | | | | - | | | | | | | | |
¨ US Citizen ¨ US Citizen residing outside the US
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
¨ Foreign Citizen, country | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
¨ Check here if you are subject to backup withholding Date of Birth (MM/DD/YYYY): / /
Please print names in which shares of Common Stock are to be registered. Include trust name if applicable. If IRA or qualified plan, include both custodian and investor names and taxpayer ID numbers. If same as above, write same.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Title Line 1 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | |
| Title Line 2 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Social Security Number or
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Tax Identification Number | | | | | | | | | | - | | | | | | - | | | | | | | | | | | | Secondary Tax Identification Number | | | | | | | | | | - | | | | | | - | | | | | | |
| 4. | QUALIFIED PLANS ONLY – TRUSTEE (CUSTODIAN) INFORMATION |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Trustee Name | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | |
| Trustee Address 1 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | |
| Trustee Address 2 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Trustee City | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | State | | | | | | Zip Code | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Trustee Telephone No. | | | | | | | | | | - | | | | | | | | - | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Trustee Tax Identification Number | | | | | | | | | | - | | | | | | - | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Investor’s Account Number with Trustee | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| 5. | INVESTMENT TYPE (CHECK ONE) |
| | | | |
¨ Individual | | ¨ Married Person, Separate Property | | ¨ IRA |
¨ Joint Tenants * | | ¨ Custodian for: ¨ UGMA ¨ UTMA | | ¨ SEP IRA |
¨ Community Property* | | State of UGMA or UTMA:¨¨ | | ¨ ROTH IRA |
¨ Tenants-In-Common* | | ¨ TOD (attach appropriate form) | | ¨ Keogh (H.R. 10) |
¨ Pension Plan | | ¨ Profit Sharing Plan * Both parties must sign |
A-3
SAMPLE
| | | | |
q | | Corporation or Partnership (Please attach agreement/corporate resolution) |
| | | q | | Non-Profit Organization (Please attach agreement/corporate resolution) |
| | | | | | | | | | | | | | | | |
q | | Trust: | | | | q | | | Taxable | | q | | | | | Tax-Exempt |
| | | (Please attach pages of trust which list name of trust, trustees, signatures and date) |
| | |
q | | Charitable Remainder Trust |
| | | (Please attach pages of trust which list name of trust, trustees, signatures and date) |
| 6. | DISTRIBUTION INFORMATION (CHOOSE ONE OR MORE OF THE FOLLOWING OPTIONS) |
| | | | |
If you select more than one option you must indicate the percentage of your distribution to be applied to each option | | % of |
and the sum of the allocationsmust equal 100%. | | distribution |
q | | I prefer to participate in the Dividend Reinvestment Plan, as described in the Prospectus. | | _________ |
q | | Send distributions via check to investor’s home address (not available for qualified plans) | | _________ |
q | | Send distributions via check to alternate payee listed here (not available for qualified plans without custodial approval) | | _________ |
| | |
| qDirect Deposit (Attach Voided Check)I authorize KBS Real Estate Investment Trust, Inc. or its agent (collectively, KBS) to deposit my distributions in the checking or savings account identified below. This authority will remain in force until I notify KBS in writing to cancel it. In the event that KBS deposits funds erroneously into my account, KBS is authorized to debit my account for an amount not to exceed the amount of the erroneous deposit. | | % of |
| | distribution |
| | _________ |
| | |
| | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Financial Institution Name | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | ¨ Checking | | q Savings |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
ABA/Routing Number | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | _____________________ | | |
Signature of Account Owner
| 7. | BROKER-DEALER AND REGISTERED REPRESENTATIVE INFORMATION |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Rep’s City | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | State | | | | | | Zip Code | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Rep’s Phone No. | | | | | | | | - | | | | | | | | - | | | | | | | | | | | | | | Fax No. | | | | | | | | - | | | | | | | | - | | | | | | | | |
qREGISTERED INVESTMENT ADVISER (RIA): All sales of shares of Common Stock must be made through a Broker-Dealer. If an RIA has introduced a sale, the sale must be conducted through (i) the RIA in its Capacity as a Registered Representative, if applicable; (ii) a Registered Representative of a Broker-Dealer that is affiliated with the RIA, if applicable; or (iii) if neither (i) or (ii) is applicable, an unaffiliated Broker-Dealer.
TAXPAYER IDENTIFICATION NUMBER CONFIRMATION (REQUIRED): The investor signing below, under penalties of perjury, certifies that (i) the number shown on this subscription agreement is his or her correct Taxpayer Identification number (or he or she is waiting for a number to be issued to him or her ) and (ii) he or she is not subject to backup withholding either because he or she has not been notified by the Internal Revenue Service (“IRS”) that he or she is subject to backup withholding as a result of a failure to report all interest or dividends, or the IRS has notified him or her that he or she is no longer subject to backup withholding and (iii) he or she is a U.S. Citizen unless otherwise indicated in Section 2. NOTE: CLAUSE (ii) IN THIS CERTIFICATION SHOULD BE CROSSED OUT IF THE WITHHOLDING BOX HAS BEEN CHECKED IN THE INVESTOR INFORMATION SECTION.
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 KBS Real Estate Investment Trust, Inc. to accept this subscription, I hereby represent and warrant to you as follows:
A-4
SAMPLE
| | | | | | |
| | | | | OWNER
| | JOINT OWNER
|
(a) | | (i) I have received the final Prospectus of KBS Real Estate Investment Trust, Inc.: (ii) Check one of the following (not required for Minnesota residents): ¨ I received the prospectus at least five business days before signing this subscription agreement. OR ¨ I received the prospectus on . Date | | Initials | | Initials |
| | | | |
| |
|
(b) | | I have (i) a minimum net worth (exclusive of home, home furnishings and personal automobiles) of at least $150,000 or (ii) a minimum net worth (as previously described) of at least $45,000 and a minimum annual gross income of at least $45,000,and,if applicable, I meet the higher net worth and gross income requirements imposed by my state of primary residence as set forth in the Prospectus under “Suitability Standards.” I will not purchase additional Shares unless I meet the applicable suitability requirements set forth in the then current Prospectus at the time of purchase. | | Initials | | Initials |
| | | | | | |
| | | | |
| |
|
(c) | | I acknowledge that there is no public market for the Shares and, thus, my investment in Shares is not liquid. | | Initials | | Initials |
| | | | |
| |
|
(d) | | I am purchasing the Shares for my own account. | | Initials | | Initials |
| | | | |
| |
|
(e) | | I understand that I will not be admitted as a stockholder until my investment has been accepted. The acceptance process includes, but is not limited to, reviewing the Subscription Agreement for completeness and signatures, conducting anAnti-Money Laundering check as required by theUSA Patriot Act and payment of the full purchase price of the Shares. | | Initials | | Initials |
The Internal Revenue Service does not require your consent to any provision of this document other than the certifications required to avoid backup withholding.
| | | | | | | | | | | | |
| | | | | | |
| | | | | | | | | | | | | |
Signature of Investor | | | | Date | | | | Signature of Joint Investor or, for Qualified Plans, of Trustee/ Custodian | | | | Date |
| 8. | FINANCIAL REPRESENTATIVE SIGNATURES |
The Broker’s Financial Advisor must sign below to complete order. Financial Advisor hereby warrants that he is duly licensed and may lawfully sell shares of Common Stock in the state designated as the investor’s legal residence. The Financial Advisor agrees to maintain records of the information used to determine that an investment in Shares is suitable and appropriate for the investor for a period of six years. The undersigned confirm by their signatures that they (i) have reasonable grounds to believe that the information and representations concerning the investor identified herein are true, correct and complete in all respects; (ii) have discussed such investor’s prospective purchase of Shares with such investor; (iii) have advised such investor of all pertinent facts with regard to the liquidity and marketability of the Shares; (iv) have delivered a current Prospectus and related supplements, if any, to such investor; (v) have reasonable grounds to believe that the investor is purchasing these Shares for his or her own account; and (vi) have reasonable grounds to believe that the purchase of Shares is a suitable investment for such investor, that such investor meets the suitability standards applicable to such investor set forth in the Prospectus and related supplements, if any, and that such investor is in a financial position to enable such investor to realize the benefits of such an investment and to suffer any loss that may occur with respect thereto.
I understand this subscription agreement is for KBS Real Estate Investment Trust, Inc.
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Signature of Financial Representative | | | | Date | | | | Branch Manager Signature (If required by Broker/Dealer) | | | | Date |
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SAMPLE
| ¨ | DEFERRED COMMISSION OPTION. Please check this box and sign below if you have agreed with the subscriber to elect the Deferred Commission Option as described in the Prospectus. |
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Signature of Financial Representative | | | | Date | | | | | | | | |
***** FOR OFFICE USE ONLY *****
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| Check # ____________________________ | | Complied by: ______________________ | | W/S ___________________________ |
| Batch # _____________________________ | | Input By: _________________________ | | Region ________________________ |
| Subscription #________________________ | | Proofed By: _______________________ | | Territory _______________________ |
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APPENDIX B
AMENDED AND RESTATED DIVIDEND REINVESTMENT PLAN
KBS Real Estate Investment Trust, Inc., a Maryland corporation (the “Company”), has adopted a Dividend Reinvestment Plan (the “DRP”), the terms and conditions of which are set forth below. Capitalized terms shall have the same meaning as set forth in the Company’s charter unless otherwise defined herein.
1.Number of Shares Issuable. The number of shares of Common Stock authorized for issuance under the DRP is 80,000,000.
2.Participants. “Participants” are holders of the Company’s shares of Common Stock who elect to participate in the DRP.
3.Dividend Reinvestment. The Company will apply that portion (as designated by a Participant) of the dividends and other distributions (“Distributions”) declared and paid in respect of a Participant’s shares of Common Stock to the purchase of additional shares of Common Stock for such Participant. To the extent required by state securities laws, such shares will be sold through the broker-dealer and/or dealer manager through whom the Company sold the underlying shares to which the Distributions relate unless the Participant makes a new election through a different distribution channel. The Company will pay selling commissions on shares of Common Stock purchased in the DRP if the Company paid selling commissions on the underlying shares to which the Distributions relate.
4.Procedures for Participation. Qualifying stockholders may elect to become a Participant by completing and executing the Subscription Agreement, an enrollment form or any other Company-approved authorization form as may be available from the Company, the dealer manager or participating broker-dealers. To increase their participation, Participants must complete a new enrollment form and, to the extent required by state securities laws, make the election through the dealer manager or the Participant’s broker-dealer, as applicable. Participation in the DRP will begin with the next Distribution payable after receipt of a Participant’s subscription, enrollment or authorization. Shares will be purchased under the DRP on the date that the Company makes a Distribution. Distributions will be paid monthly as authorized and declared by the Company’s board of directors.
5.Purchase of Shares. Until completion of the Company’s offering stage, Participants will acquire Common Stock at a price of $9.50 per share. Three years after completion of the Company’s offering stage, Participants will acquire Common Stock at a price equal to the net asset value per share of the Company’s Common Stock, as estimated by the Company’s advisor or other firm chosen by the board of directors for that purpose. The Company’s offering stage will be complete when the Company is no longer publicly offering equity securities and has not done so for one year. For the purpose of determining when the Company’s offering stage is complete, public equity offerings do not include offerings on behalf of selling stockholders or offerings related to any dividend reinvestment plan, employee benefit plan or redemption of interests in KBS Limited Partnership, the Company’s operating
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partnership. Participants in the DRP may purchase fractional shares so that 100% of the Distributions will be used to acquire shares. However, a Participant will not be able to acquire shares under the DRP to the extent such purchase would cause it to exceed the ownership limits set forth in the Company’s charter, as amended, unless exempted by the Company’s board of directors.
6.Taxation of Distributions. The reinvestment of Distributions in the DRP does not relieve Participants of any taxes that may be payable as a result of those Distributions and their reinvestment pursuant to the terms of this DRP.
7.Share Certificates. The shares issuable under the DRP shall be uncertificated until the board of directors determines otherwise.
8.Voting of DRP Shares. In connection with any matter requiring the vote of the Company’s stockholders, each Participant will be entitled to vote all of the whole shares acquired by the Participant through the DRP. Fractional shares will not be voted.
9.Reports. Within 90 days after the end of the calendar year, the Company shall provide each Participant with (i) an individualized report on the Participant’s investment, including the purchase date(s), purchase price and number of shares owned, as well as the amount of Distributions received during the prior year; and (ii) all material information regarding the DRP and the effect of reinvesting dividends, including the tax consequences thereof. The Company shall provide such information reasonably requested by the dealer manager or a participating broker-dealer, in order for the dealer manager or participating broker-dealer to meet its obligations to deliver written notification to Participants of the information required by Rule 10b-10(b) promulgated under the Securities Exchange Act of 1934.
10.Termination by Participant. A Participant may terminate participation in the DRP at any time by delivering to the Company a written notice. To be effective for any Distribution, such notice must be received by the Company at least ten business days prior to the last day of the fiscal period to which the Distribution relates. Any transfer of shares by a Participant will terminate participation in the DRP with respect to the transferred shares. Upon termination of DRP participation, Distributions will be distributed to the stockholder in cash.
11.Amendment or Termination of DRP by the Company. The board of directors of the Company may amend or terminate the DRP for any reason; provided that any amendment that adversely affects the rights or obligations of a Participant (as determined in the sole discretion of the board of directors) shall only take effect upon ten days’ written notice to the Participants.
12.Liability of the Company. The Company shall not be liable for any act done in good faith, or for any good faith omission to act.
13.Governing Law. The DRP shall be governed by the laws of the State of Maryland.
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Until April 27, 2006, all dealers that effect transactions in these securities, whether or not participating in this offering, 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.
We have not authorized any dealer, salesperson or other individual to give any information or to make any representations that are not contained in this prospectus. If any such information or statements are given or made, you should not rely upon such information or representation. This prospectus does not constitute an offer to sell any securities other than those to which this prospectus relates, or an offer to sell, or a solicitation of an offer to buy, to any person in any jurisdiction where such an offer or solicitation would be unlawful. This prospectus speaks as of the date set forth below. You should not assume that the delivery of this prospectus or that any sale made pursuant to this prospectus implies that the information contained in this prospectus will remain fully accurate and correct as of any time subsequent to the date of this prospectus.
TABLE OF CONTENTS
Our shares are not FDIC insured, may lose value and are not bank guaranteed. See “Risk Factors” beginning on page 24 to read about risks you should consider before buying shares of our common stock.
KBS REAL ESTATE
INVESTMENT TRUST, INC.
Maximum Offering of
280,000,000 Shares
of Common Stock
Minimum Offering of
250,000 Shares
of Common Stock
PROSPECTUS
KBS CAPITAL MARKETS
GROUP LLC
January 13, 2006
KBS REAL ESTATE INVESTMENT TRUST, INC.
SUPPLEMENT NO. 6 DATED OCTOBER 6, 2006
TO THE PROSPECTUS DATED JANUARY 13, 2006
This document supplements, and should be read in conjunction with, the prospectus of KBS Real Estate Investment Trust, Inc. dated January 13, 2006. This Supplement No. 6 supersedes and replaces all prior supplements to the prospectus. As used herein, the terms “we,” “our” and “us” refer to KBS Real Estate Investment Trust, Inc. and, as required by context, KBS Limited Partnership, which we refer to as our “Operating Partnership” and to their subsidiaries. Capitalized terms used in this supplement have the same meanings as set forth in the prospectus. The purpose of this supplement is to disclose:
| | • | | the status of the offering; |
| | • | | changes to the suitability standards applicable to investors in Arkansas, North Carolina and Ohio; |
| | • | | a change to make the minimum investment requirement in the offering $4,000 and information about the transferability of our shares; |
| | • | | information about our estimated use of proceeds; |
| | • | | a change to our investment objectives and additional information with respect to the types of real estate-related investments in which we expect to invest and the risks related to such investments; |
| | • | | a change to our investment policies with respect to conflicts committee approval of our acquisitions and dispositions of real estate investments; |
| | • | | the adoption of our share redemption program and subsequent amendment to our share redemption program; |
| | • | | information regarding our acquisitions since inception; |
| | • | | information regarding our indebtedness; |
| | • | | changes to our charter designed to improve your ability to influence the composition of the board of directors; |
| | • | | a clarification requested by the Pennsylvania Securities Commission regarding stockholder action; |
| | • | | in response to restrictions imposed by the Ohio Division of Securities on selling commissions related to sales under our dividend reinvestment plan in Ohio, a restriction on the amount of selling commissions that we will pay with respect to such sales under certain circumstances; |
| | • | | the use of supplemental selling literature; |
| | • | | the declaration of daily dividends and an amendment to our advisory agreement made in connection with the declaration of dividends; |
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| | • | | “Management’s Discussion and Analysis of Financial Condition and Results of Operations” similar to that filed in our Quarterly Report on Form 10-Q for the three months ended June 30, 2006, filed on August 14, 2006; |
| | • | | our audited consolidated balance sheet as of December 31, 2005; |
| | • | | our unaudited financial statements and the notes thereto as of and for the three and six months ended June 30, 2006; |
| | • | | updated information regarding the prior performance of KBS-sponsored programs; |
| | • | | information with respect to the market for and dividends on our common stock and related stockholder matters; |
| | • | | information with respect to certain relationships and related transactions with an affiliate of our sponsor; and |
| | • | | all other material items that have been previously disclosed by supplement to the prospectus. |
Status of the Offering
We commenced this offering of 280,000,000 shares of common stock on January 27, 2006. As of October 4, 2006, we had accepted aggregate gross offering proceeds of approximately $25.6 million.
Special Suitability Standards
Arkansas, North Carolina and Ohio have established special suitability standards for investors in our offering that are more stringent than the general suitability standards described in the prospectus. Investors in these states must meet the special suitability standards set forth below to purchase our shares:
Arkansas –Investors must have either (1) a net worth of at least $225,000, or (2) gross annual income of at least $60,000 and a net worth of at least $60,000;and investors must have a net worth of at least 10 times their investment in us.
North Carolina –Investors must have either (1) a net worth of at least $225,000, or (2) gross annual income of at least $60,000 and a net worth of at least $60,000.
Ohio –Investors must have either (1) a net worth of at least $250,000, or (2) gross annual income of at least $70,000 and a net worth of at least $70,000;and investors must have a net worth of at least 10 times their investment in us and our affiliates.
For purposes of determining suitability of an investor, net worth in all cases should be calculated excluding the value of an investor’s home, furnishings and automobiles. In the case of sales to fiduciary accounts, these suitability standards must be met by the fiduciary account, by the person who directly or indirectly supplied the funds for the purchase of the shares if such person is the fiduciary or by the beneficiary of the account.
Those selling shares on our behalf must make every reasonable effort to determine that the purchase of shares in this offering is a suitable and appropriate investment for each stockholder based on information provided by the stockholder regarding the stockholder’s financial situation and investment objectives.
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Minimum Investment Requirement and Transferability of Shares
We have amended the minimum investment requirement such that subscribers must initially invest at least $4,000 in our shares to be eligible to participate in this offering. In order to satisfy this minimum purchase requirement, unless otherwise prohibited by state law, a husband and wife may jointly contribute funds from their separate IRAs, provided that each such contribution is made in increments of $100. You should note that an investment in our shares will not, in itself, create a retirement plan and that, in order to create a retirement plan, you must comply with all applicable provisions of the Internal Revenue Code. If you have satisfied the applicable minimum purchase requirement, any additional purchase must be in amounts of at least $100. The investment minimum for subsequent purchases does not apply to shares purchased pursuant to our dividend reinvestment plan.
Until our shares of common stock are listed on a national securities exchange, unless you are transferring all of your shares, you may not transfer your shares in a manner that causes you or your transferee to own fewer than the number of shares required to meet the minimum purchase requirements described above, except for the following transfers without consideration: transfers by gift, transfers by inheritance, intrafamily transfers, family dissolutions, transfers to affiliates and transfers by operation of law.
Estimated Use of Proceeds
The following table sets forth information about how we intend to use the proceeds raised in our primary offering assuming that we sell the minimum of 250,000 shares, a mid-point range of 100,000,000 shares and the maximum of 200,000,000 shares of common stock. This table contains the same information as that in the prospectus dated January 13, 2006 except that this table omits proceeds from sales under our dividend reinvestment plan. Many of the amounts set forth below represent management’s best estimate because they cannot be precisely calculated at this time. This table assumes that we will sell all shares at the highest possible selling commissions (with no discounts to any categories of purchasers).
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| | | Minimum Offering ($10.00/share) 250,000 shares | | Mid-range Offering ($10.00/share) 100,000,000 shares | | Maximum Offering ($10.00/share) 200,000,000 shares |
| | | $ | | % | | $ | | % | | $ | | % |
Gross Offering Proceeds | | 2,500,000 | | 100.00 | | 1,000,000,000 | | 100.00 | | 2,000,000,000 | | 100.00 |
Selling Commissions | | 150,000 | | 6.00 | | 60,000,000 | | 6.00 | | 120,000,000 | | 6.00 |
Dealer Manager Fee | | 87,500 | | 3.50 | | 35,000,000 | | 3.50 | | 70,000,000 | | 3.50 |
Other Organization and Offering Expenses (1) | | 137,500 | | 5.50 | | 17,250,000 | | 1.73 | | 20,500,000 | | 1.03 |
Acquisition Fees (2) | | 15,819 | | 0.63 | | 6,608,561 | | 0.66 | | 13,321,340 | | 0.66 |
Initial Working Capital Reserve (3) | | 0 | | 0.00 | | 0 | | 0.00 | | 0 | | 0.00 |
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Amount Available for Investment (4) | | 2,109,181 | | 84.37 | | 881,141,439 | | 88.11 | | 1,776,178,660 | | 88.81 |
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| (1) | Includes all expenses (other than selling commissions and the dealer manager fee) to be paid by us in connection with the offering, including our legal, accounting, printing, mailing and filing fees, charges of our escrow holder, reimbursing the dealer manager for amounts it may pay to reimburse the bona fide due diligence expenses of broker-dealers, amounts to reimburse KBS Capital Advisors for the salaries of its employees and other costs in connection with preparing supplemental sales materials, the cost of educational conferences held by us, and attendance fees and cost reimbursement for employees of our affiliates to attend retail seminars conducted by broker-dealers. KBS Capital Advisors has agreed to reimburse us to the extent selling commissions, the dealer manager fee and other organization and offering expenses incurred by us exceed 15% of aggregate gross offering proceeds. See “Plan of Distribution” in the prospectus. |
| (2) | This table excludes debt proceeds. To the extent we fund property acquisitions with debt, as we expect, the amount available for investment and the amount of acquisition fees will be proportionately greater. In addition to this acquisition fee, we may also incur customary third-party acquisition expenses in connection with the acquisition (or attempted acquisition) of a property. See note 4 below. |
| (3) | Because we expect that the vast majority of leases for the properties acquired by us will provide for tenant reimbursement of operating expenses, we do not anticipate that a permanent reserve for maintenance and repairs of real estate properties will be established. However, to the extent that we have insufficient funds for such purposes, we may establish reserves from gross offering proceeds, out of cash flow generated by operating properties or out of the net cash proceeds received by us from any sale or exchange of properties. |
| (4) | Amount available for investment will include customary third-party acquisition expenses, such as legal fees and expenses, costs of appraisals, accounting fees and expenses, title insurance premiums and other closing costs and miscellaneous expenses relating to the acquisition of real estate. Until required in connection with the acquisition and development of properties, substantially all of the net proceeds of the offering and, thereafter, our working capital reserves, may be invested in short-term, highly liquid investments, including government obligations, bank certificates of deposit, short-term debt obligations and interest-bearing accounts or other authorized investments as determined by our board of directors. Amount available for investment may also include anticipated capital improvement expenditures and tenant leasing costs. |
Investment Objectives
We intend to acquire and manage a diverse portfolio of real estate assets. We plan to diversify our portfolio by property type, geographic region, investment size and investment risk with the goal of attaining a portfolio of income producing real estate and real estate-related assets that provide attractive and stable returns to our investors. We still intend to allocate approximately 70% of our portfolio to core investments, which are generally existing properties with at least 80% occupancy and minimal near-term lease rollover, and we now expect the remaining approximately 30% of our assets to include enhanced-return properties (as originally planned) and other real estate-related investments. Though our target portfolio would consist of 30% real estate-related investments and enhanced-return properties, we will not forgo a good investment opportunity because it does not precisely fit our expected portfolio composition. Thus, to the extent that our advisor presents us with good investment opportunities that allow us to meet the REIT requirements under the Internal Revenue Code, our portfolio may consist of a greater percentage of enhanced-return properties and real estate-related investments.
Real estate-related investments and enhanced-return properties are higher-yield and higher-risk investments that our advisor will actively manage. The real estate-related investments in which we may invest include: (i) mortgage loans; (ii) equity securities such as common stocks, preferred stocks and convertible preferred securities of real estate companies; (iii) debt securities such as mortgage-backed securities, commercial mortgages, mortgage loan participations and debt securities issued by other real estate companies; and (iv) certain types of illiquid securities not actively traded on the open market, such as mezzanine loans and bridge loans. While we may invest in any of these real estate-related investments,
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we expect that the substantial majority of these investments will consist of mezzanine loans, commercial mortgage-backed securities and B-Notes as well as collateralized debt obligations. The enhanced-return properties that we will seek to acquire and reposition include: properties with moderate vacancies or near-term lease rollovers; poorly managed and positioned properties; properties owned by distressed sellers; and built-to-suit properties.
Mezzanine Loans
The mezzanine loans in which we may invest will generally take the form of subordinated loans secured by a pledge of the ownership interests of an entity that directly or indirectly owns real property. Such loans may also take the form of subordinated loans secured by second mortgages on real property. We may hold senior or junior positions in mezzanine loans, such senior or junior position denoting the particular leverage strip that may apply.
We may require other collateral to secure mezzanine loans, including letters of credit, personal guarantees or collateral unrelated to the property. We may structure our mezzanine loans so that we receive a stated fixed or variable interest rate on the loan as well as a percentage of gross revenues and a percentage of the increase in the fair market value of the property securing the loan, payable upon maturity, refinancing or sale of the property. Our mezzanine loans may also have prepayment lockouts, penalties, minimum profit hurdles and other mechanisms to protect and enhance returns in the event of premature repayment.
These investments typically range in size from $10 to $50 million, have terms from 2 to 10 years and bear interest at a rate of 275 to 800 basis points over the applicable interest rate index. Mezzanine loans may have maturities that match the maturity of the related mortgage loan but may have shorter terms. We expect to hold these investments to maturity. Mezzanine loans usually have loan-to-value ratios between 66% and 90%.
These types of investments generally involve a lower degree of risk than an equity investment in an entity that owns real property because the mezzanine investment is generally secured by the ownership interests in the property-owning entity and, as a result, is senior to the equity. Upon a default by the borrower under the mezzanine loan, the mezzanine lender generally can take immediate control and ownership of the property-owning entity, subject to the senior mortgage on the property that stays in place in the event of a mezzanine default and change of control of the borrower.
These types of investments involve a higher degree of risk relative to the long-term senior mortgage secured by the underlying real property because the investment may become unsecured as a result of foreclosure by the senior lender. In the event of a bankruptcy of the entity providing the pledge of its ownership interests as security, we may not have full recourse to the assets of such entity, or the assets of the entity may not be sufficient to satisfy the mezzanine loan. If a borrower defaults on our mezzanine loan or debt senior to our loan, or in the event of a borrower bankruptcy, our mezzanine loan will be satisfied only after the senior debt.
Commercial Mortgage-Backed Securities
Commercial mortgage-backed securities, or CMBS, are securities that evidence interests in, or are secured by, a single commercial mortgage loan or a pool of commercial mortgage loans. Accordingly, these securities are subject to all of the risks of the underlying mortgage loans.
CMBS are generally pass-through certificates that represent beneficial ownership interests in common law trusts whose assets consist of defined portfolios of one or more commercial mortgage loans.
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They are typically issued in multiple tranches whereby the more senior classes are entitled to priority distributions from the trust’s income. Losses and other shortfalls from expected amounts to be received on the mortgage pool are borne by the most subordinate classes, which receive payments only after the more senior classes have received all principal and/or interest to which they are entitled.
The credit quality of mortgage-backed securities depends on the credit quality of the underlying mortgage loans, which is a function of factors such as:
| | • | | the principal amount of the loans relative to the value of the related properties; |
| | • | | the mortgage loan terms (e.g. amortization); |
| | • | | market assessment and geographic location; |
| | • | | construction quality of the property; and |
| | • | | the creditworthiness of the borrowers. |
The securitization process is governed by one or more of the rating agencies, including Fitch, Moody’s and Standard & Poor’s, who determine the respective bond class sizes, generally based on a sequential payment structure. Bonds that are rated from AAA to BBB by the rating agencies are considered “investment grade.” Bond classes that are subordinate to the BBB class are considered “non-investment” grade. The respective bond class sizes are determined based on the review of the underlying collateral by the rating agencies. The payments received from the underlying loans are used to make the payments on the CMBS. Based on the sequential payment priority, the risk of nonpayment for the AAA CMBS is lower than the risk of nonpayment for the non-investment grade bonds. Accordingly, the AAA class is typically sold at a lower yield compared to the non-investment grade classes that are sold at higher yields. We may invest in investment grade and non-investment grade CMBS classes.
B-Notes
We may invest in B-Notes generated from structured transactions that may or may not have been rated by a recognized rating agency. B-Notes are junior participations in a first mortgage loan on a single property or group of related properties. The senior participation is known as an A-Note. Although a B-Note may be evidenced by its own promissory note, it shares a single borrower and mortgage with the A-Note and is secured by the same collateral. B-Note lenders have the same obligations, collateral and borrower as the A-Note lender, but in most instances B-Note lenders are contractually limited in rights and remedies in the event of a default. The B-Note is subordinate to the A-Note by virtue of a contractual or intercreditor arrangement between the A-Note lender and the B-Note lender. For the B-Note lender to actively pursue its available remedies (if any), it must, in most instances, purchase the A-Note or maintain its performing status in the event of a default on the B-Note. The B-Note lender may in some instances require a security interest in the stock or partnership interests of the borrower as part of the transaction. If the B-Note holder can obtain a security interest, it may be able to accelerate gaining control of the underlying property, subject to the rights of the A-Note holder. These debt instruments are senior to the mezzanine debt tranches described above though may be junior to another junior participation in the first mortgage loan.
B-Notes typically are secured by a single property, and the associated credit risk is concentrated in that single property. B-Notes share certain credit characteristics with second mortgages in that both are subject to more credit risk with respect to the underlying mortgage collateral than the corresponding first mortgage or the A-Note. We may acquire B-Notes in negotiated transactions with the originators on large
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single and portfolio private debt placements, as well as in the secondary market. Our management believes that B-Notes are one of the safest subordinated debt instruments because B-Notes share a single mortgage with the A-Note and, as a result, its position survives an event of foreclosure. After the A-Note is satisfied, any remaining recoveries go next to the B-Note holder.
Collateralized Debt Obligations
To the extent permitted by the REIT rules, we may also invest in collateralized debt obligations, or CDO. Collateralized debt obligations are multiple class debt securities, or bonds, secured by pools of assets, such as mortgage-backed securities, B-Notes, mezzanine loans and REIT debt. Like typical securitization structures, in a collateralized debt obligation the assets are pledged to a trustee for the benefit of the holders of the bonds. The bonds may be rated by one or more rating agencies.
Risks Related to Real Estate-Related Investments
In addition to the risks described in the prospectus under “Risk Factors – Risks Related to Real Estate-Related Investments,” you should carefully consider the following risks related to our investments in B-Notes, non-conforming and non-investment grade loans and subordinated debt.
The B-Notes in which we invest may be subject to additional risks relating to the privately negotiated structure and terms of the transaction, which may result in losses to us.
A B-Note is a mortgage loan typically (i) secured by a first mortgage on a single large commercial property or group of related properties and (ii) subordinated to an A-Note secured by the same first mortgage on the same collateral. As a result, if a borrower defaults, there may not be sufficient funds remaining for B-Note holders after payment to the A-Note holders. Since each transaction is privately negotiated, B-Notes can vary in their structural characteristics and risks. For example, the rights of holders of B-Notes to control the process following a borrower default may be limited in certain investments. We cannot predict the terms of each B-Note investment. Further, B-Notes typically are secured by a single property, and so reflect the increased risks associated with a single property compared to a pool of properties.
Investment in non-conforming and non-investment grade loans may involve increased risk of loss.
Loans we may acquire may not conform to conventional loan criteria applied by traditional lenders and may not be rated or may be rated as non-investment grade. Non-investment grade ratings for these loans typically result from the overall leverage of the loans, the lack of a strong operating history for the properties underlying the loans, the borrowers’ credit history, the properties’ underlying cash flow or other factors. As a result, loans we acquire may have a higher risk of default and loss than conventional loans. Any loss we incur may reduce distributions to stockholders and adversely affect the value of our common stock.
Our investments in subordinated loans and subordinated mortgage-backed securities may be subject to losses.
We intend to acquire subordinated loans and invest in subordinated mortgage-backed securities. In the event a borrower defaults on a loan and lacks sufficient assets to satisfy our loan, we may suffer a loss of principal or interest. In the event a borrower declares bankruptcy, we may not have full recourse to the assets of the borrower, or the assets of the borrower may not be sufficient to satisfy the loan. In addition, certain of our loans may be subordinate to other debt of the borrower. If a borrower defaults on
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our loan or on debt senior to our loan, or in the event of a borrower bankruptcy, our loan will be satisfied only after the senior debt is paid in full. Where debt senior to our loan exists, the presence of intercreditor arrangements may limit our ability to amend our loan documents, assign our loans, accept prepayments, exercise our remedies (through “standstill periods”) and control decisions made in bankruptcy proceedings relating to borrowers.
Investment Policies — Conflicts Committee Approval of Acquisitions and Dispositions
Our board of directors has adopted a policy that requires our conflicts committee to approve by a majority vote all of our acquisitions and dispositions of real estate investments. Our board of directors may revise this policy without the approval of our stockholders.
Share Redemption Program
As described in the prospectus, our board of directors had previously approved (but delayed the adoption of) the share redemption program until we received an exemption from the SEC from the rules restricting issuer purchases during distributions. On February 16, 2006, the SEC granted us this exemption, based solely on our representations and the facts presented to the staff. On March 8, 2006, our board of directors adopted the share redemption program, which is now in effect. Until the amendment described below becomes effective, the terms of the program remain as described in the prospectus under “Description of Shares – Proposed Share Redemption Program.”
Our board of directors has amended our share redemption program so that the special terms available upon the death of a stockholder will also be available upon a stockholder’s award of disability benefits from the Social Security Administration or, in limited circumstances, from the other governmental agencies described below. The amendment will become effective upon the earlier of (i) 30 days after the filing of our next quarterly report on Form 10-Q or (ii) 30 days after mailing a notice of the amendment to our stockholders. Set forth below is a full description of our amended share redemption program.
Our board of directors has adopted a share redemption program that, after the notice period described above, would permit you to sell your shares back to us, subject to the significant conditions and limitations described below. Initially, we will redeem shares at the lower of $9.00 or 90% of the price paid to acquire the shares from us, unless the shares are being redeemed in connection with a stockholder’s death or “qualifying disability” (as defined below). Three years after the completion of our offering stage, the redemption price per share would be equal to the net asset value per share of our common stock, as estimated by our advisor or another firm chosen for that purpose. We will consider our offering stage complete when we are no longer publicly offering equity securities and have not done so for one year. We would report this redemption price to you in our annual report and the three quarterly reports that we publicly file with the SEC. (For purposes of this definition, we do not consider “public equity offerings” to include offerings on behalf of selling stockholders or offerings related to a dividend reinvestment plan, employee benefit plan or the redemption of interests in the Operating Partnership).
There are several limitations on our ability to redeem shares:
| | • | | Unless the shares are being redeemed in connection with a stockholder’s death or “qualifying disability,” we may not redeem shares until they have been outstanding for one year. |
| | • | | Our share redemption program limits the number of shares we may redeem to those that we could purchase with the net proceeds from the sale of shares under our dividend reinvestment plan during the prior calendar year. |
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| | • | | During any calendar year, we may redeem no more than 5% of the weighted-average number of shares outstanding during the prior calendar year. |
| | • | | We have no obligation to redeem shares if the redemption would violate the restrictions on distributions under Maryland law, which prohibits distributions that would cause a corporation to fail to meet statutory tests of solvency. |
We have engaged a third party to administer the share redemption program. We will redeem shares on the last business day of each month. The program administrator must receive your written request for redemption at least five business days before that date in order for us to repurchase your shares that month. If we could not repurchase all shares presented for redemption in any month, we will attempt to honor redemption requests on a pro rata basis. We will deviate from pro rata purchases in two minor ways: (i) if a pro rata redemption would result in you owning less than half of the minimum purchase amount described in this supplement under “Minimum Investment Requirement and Transferability of Shares,” then we would redeem all of your shares; and (ii) if a pro rata redemption would result in you owning more than half but less than all of the minimum purchase amount, then we would not redeem any shares that would reduce your holdings below the minimum purchase amount. In the event that you were redeeming all of your shares, there would be no holding period requirement for shares purchased pursuant to our dividend reinvestment plan.
If we did not completely satisfy a stockholder’s redemption request at month-end because the program administrator did not receive the request in time or because of the restrictions on the number of shares we could redeem under the program, we would treat the unsatisfied portion of the redemption request as a request for redemption in the following month unless the stockholder withdrew his or her request before the next date for redemptions. Any stockholder could withdraw a redemption request upon written notice to the program administrator if such notice is received by us at least five business days before the date for redemptions.
In several respects we would treat redemptions sought upon a stockholder’s death or “qualifying disability” differently from other redemptions:
| | • | | there would be no one-year holding requirement; |
| | • | | until three years after the completion of our offering stage, the redemption price would be the amount paid to acquire the shares from us; and |
| | • | | three years after the completion of our offering stage, the redemption price would be the net asset value of the shares, as estimated by our advisor or another firm chosen for that purpose. |
In order for a disability to entitle a stockholder to the special redemption terms described above (a “qualifying disability”), (1) the stockholder must receive a determination of disability based upon a physical or mental condition or impairment arising after the date the stockholder acquired the shares to be redeemed, and (2) such determination of disability must be made by the governmental agency responsible for reviewing the disability retirement benefits that the stockholder could be eligible to receive (the “applicable governmental agency”). The “applicable governmental agencies” are limited to the following: (i) if the stockholder paid Social Security taxes and, therefore, could be eligible to receive Social Security disability benefits, then the applicable governmental agency is the Social Security Administration or the agency charged with responsibility for administering Social Security disability benefits at that time if other than the Social Security Administration; (ii) if the stockholder did not pay Social Security benefits and, therefore, could not be eligible to receive Social Security disability benefits, but the stockholder could be eligible to receive disability benefits under the Civil Service Retirement
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System (“CSRS”), then the applicable governmental agency is the U.S. Office of Personnel Management or the agency charged with responsibility for administering CSRS benefits at that time if other than the Office of Personnel Management; or (iii) if the stockholder did not pay Social Security taxes and therefore could not be eligible to receive Social Security benefits but suffered a disability that resulted in the stockholder’s discharge from military service under conditions that were other than dishonorable and, therefore, could be eligible to receive military disability benefits, then the applicable governmental agency is the Veteran’s Administration or the agency charged with the responsibility for administering military disability benefits at that time if other than the Veteran’s Administration.
Disability determinations by governmental agencies for purposes other than those listed above, including but not limited to worker’s compensation insurance, administration or enforcement of the Rehabilitation Act or Americans with Disabilities Act, or waiver of insurance premiums will not entitle a stockholder to the special redemption terms described above. Redemption requests following an award by the applicable governmental agency of disability benefits must be accompanied by: (1) the investor’s initial application for disability benefits and (2) a Social Security Administration Notice of Award, a U.S. Office of Personnel Management determination of disability under CSRS, a Veteran’s Administration record of disability-related discharge or such other documentation issued by the applicable governmental agency that the we deem acceptable and demonstrates an award of the disability benefits.
We understand that the following disabilities do not entitle a worker to Social Security disability benefits:
| | • | | disabilities occurring after the legal retirement age, |
| | • | | temporary disabilities and |
| | • | | disabilities that do not render a worker incapable of performing substantial gainful activity. |
Therefore, such disabilities will not qualify for the special redemption terms, except in the limited circumstances when the investor is awarded disability benefits by the other “applicable governmental agencies” described above.
Our board of directors could amend, suspend or terminate the program upon 30 days’ notice. We would notify you of such developments in the annual or quarterly reports mentioned above or by means of a separate mailing to you, accompanied by disclosure in a current or periodic report under the Securities Exchange Act of 1934. During this offering, we would also include this information in a prospectus supplement or post-effective amendment to the registration statement, as required under federal securities laws.
Our share redemption program only provides stockholders a limited ability to redeem shares for cash until a secondary market develops for our shares, at which time the program will terminate. No such market presently exists, and we cannot assure you that any market for your shares will ever develop.
Qualifying stockholders who desire to redeem their shares must give written notice to us at KBS Real Estate Investment Trust, c/o Phoenix Transfer, Inc., 2401 Kerner Boulevard, San Rafael CA 94901.
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Recent Acquisitions
Included below is a description of all of our acquisitions since inception.
Acquisition of Sabal Pavilion Building
On July 7, 2006, we purchased, through an indirect wholly-owned subsidiary a four-story office building containing approximately 120,500 rentable square feet (the “Sabal Pavilion Building”) from NCFLA II Owner LLC, which is not affiliated with us or our advisor. The Sabal Pavilion Building is located on an approximate 11.9-acre parcel of land at 3620 Queen Palm Drive in Tampa, Florida. The purchase price of the Sabal Pavilion Building was approximately $24,250,000, plus closing costs.
In connection with the acquisition of the Sabal Pavilion Building, we obtained a $14,700,000 fixed rate mortgage loan from Wells Fargo Bank. The loan matures on August 1, 2036 and bears interest at a rate of 6.38% per annum. Monthly installments on the loan will be interest-only and the entire principal amount will be due on the maturity date, assuming no prior principal prepayment. Under the promissory note, if Ford Motor Credit Company were to default on its lease prior to March of 2008, we would be required either to execute a guarantee to repay the outstanding amount of the loan or to deliver to the lender a cash deposit in an amount equal to $1.5 million plus an amount equal to the principal amount of the loan that would have been repaid as of such date had the loan been a fully-amortizing loan with a 30-year amortization period. This loan will be secured by the Sabal Pavilion Building.
Also in connection with the acquisition of the Sabal Pavilion Building, we obtained a $4,898,000 mezzanine loan from Wells Fargo Bank secured by a 100% equity interest in our indirect wholly-owned subsidiary that holds title to the property. This loan matures on January 7, 2007 and bears interest at a variable rate equal to LIBOR plus 225 basis points. Monthly installments related to the loan will be interest-only and the entire principal amount will be due on the maturity date, assuming no prior principal prepayment. The full amount of the mezzanine loan has been jointly and severally guaranteed by our Operating Partnership and by Charles J. Schreiber, Jr., Peter M. Bren, Peter McMillan III and Keith D. Hall, who are our sponsors and each of whom is one of our officers and/or directors. On October 5, 2006, we paid off the principal amount outstanding under the loan.
Our Operating Partnership also borrowed $5,572,137 from KBS Holdings LLC in connection with the acquisition of the Sabal Pavilion Building. KBS Holdings is a limited liability company that is wholly owned by Charles J. Schreiber, Jr., Peter M. Bren, Peter McMillan III and Keith D. Hall. Pursuant to the promissory note entered in connection with this loan, the Operating Partnership agreed to repay any advances, up to an aggregate principal amount of $10,000,000, plus any interest on the unpaid principal advanced under the note, by July 6, 2008. The unpaid principal under the promissory note bears simple interest from the date advanced at the rate of 6% per annum. The Operating Partnership may prepay the unpaid principal balance under the promissory note, in whole or in part, together with all interest then accrued under the note, at any time, without premium or penalty. KBS Holdings may upon written demand require the Operating Partnership to prepay outstanding amounts under the promissory note, in whole or in part, provided that funds are available from the proceeds of this offering. Pursuant to the promissory note, funds are deemed available from our offering if neither the Operating Partnership nor any of our subsidiaries have used or become contractually obligated to use such proceeds for another purpose, including the repayment of third-party debt related to the properties or other assets acquired by us or our subsidiaries. The promissory note is unsecured. After a subsequent draw of $2,875,000 under the promissory note in connection with the acquisition of the Tribeca Mezzanine Loan and a $2,500,000 partial payment on principal under the note, as of October 5, 2006, we had $5,947,137 of principal outstanding under the note.
The Sabal Pavilion Building, which was completed in 1998, is 100% leased to Ford Motor Credit Company. Ford Motor Credit Company, a subsidiary of Ford Motor Company, is one of the world’s largest auto financing companies. It provides wholesale financing, mortgages and capital loans for
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dealers, as well as individual and fleet financing. Ford Motor Credit Company has nearly 20,000 employees in 36 countries, providing financial services to more than 11 million individual and corporate customers.
The current aggregate annual base rent payable under Ford Motor Credit Company lease, which expires in March of 2010, is approximately $2,476,275. The average effective annual rental rate per square foot for each of the last five years for the Sabal Pavilion Building was:
| | | |
Year | | Average Effective
Annual Rental Rate
per Square Foot |
2001 | | $ | 18.79 |
2002 | | $ | 19.15 |
2003 | | $ | 17.79 |
2004 | | $ | 19.79 |
2005 | | $ | 20.15 |
We calculate average effective annual rental rate per square foot as the annual base rent, net of free rent, for the year divided by the average leased square feet for the year. Ford Motor Credit Company has the right, at its option, to extend the initial lease term of its lease for two additional five-year periods.
The following table shows how we will depreciate the value of the building for tax purposes as well as certain tax information related to the Sabal Pavilion Building:
| | | | | | | | | |
| | | Federal Tax Basis | | Rate of
Depreciation | | Method of
Depreciation | | Depreciable Life |
Land | | $ | 3,245,319 | | Non-depreciable | | N/A | | N/A |
Building | | $ | 21,499,004 | | 39 years | | Straight-line | | 39 years |
| | | | | | | | | |
Total | | $ | 24,744,323 | | | | | | |
We do not intend to make significant renovations or improvements to the Sabal Pavilion Building. Our management believes that the Sabal Pavilion Building is adequately insured.
Acquisition of Tribeca Mezzanine Loan
On July 18, 2006, we purchased, through an indirect wholly owned subsidiary, a $15,896,000 junior mezzanine loan (the “Tribeca Mezzanine Loan”). We purchased this loan from AIG Mortgage Capital, LLC, which is not affiliated with us or our advisor. The purchase price of the Tribeca Mezzanine Loan was $12,949,510 plus closing costs, which was the amount funded to the borrower under the loan to date. The borrower under the loan is 415 Greenwich Mezzanine Owner LLC. We are obligated to fund up to an additional $2,946,490 under the loan.
In connection with the acquisition of the Tribeca Mezzanine Loan, on July 18, 2006 the indirect wholly owned subsidiary through which we purchased the loan entered into a $7,122,231 repurchase agreement with Greenwich Capital Financial Products, Inc. Subject to certain conditions, the advance under the repurchase agreement may be increased up to an aggregate amount of $8,742,800. The financing under this agreement matures on July 17, 2007, but may be accelerated on any event of default and may be prepaid by us subject to certain conditions. The financing bears interest at a rate of 30-day LIBOR plus 200 basis points, reset monthly, prior to any event of default. On an event of default, the interest rate will be LIBOR plus 400 basis points. This financing is effectively secured under the repurchase agreement by principal and interest payments on the Tribeca Mezzanine Loan. The
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obligations under this financing are guaranteed by us and by Charles J. Schreiber, Jr., Peter M. Bren, Peter McMillan III and Keith D. Hall, who are our sponsors and each of whom is one of our officers and/or directors. This guarantee will expire, as to the foregoing individuals, once we have received capital contributions of $25 million or more in this offering and provided our consolidated debt to equity ratio does not exceed 2 to 1.
The remainder of the purchase price of the Tribeca Mezzanine Loan was funded with a $2,875,000 advance under the loan from KBS Holdings (which loan is described above under “– Acquisition of Sabal Pavilion Building”) and with proceeds from this offering.
The Tribeca Mezzanine Loan bears interest at a variable rate equal to LIBOR plus 850 basis points and has an initial maturity date of March 1, 2008 with a one-year extension option subject to the payment of an extension fee and certain other conditions. Prior to the maturity date, the borrower under the Tribeca Mezzanine Loan is required to make monthly interest-only payments to us, with the outstanding principal balance being due on the maturity date (or on the extended maturity date, if applicable). In addition, the borrower under the Tribeca Mezzanine Loan must pay us an amount that brings the annualized internal rate of return on the Tribeca Mezzanine Loan to 25% prior to satisfaction of the loan. The Tribeca Mezzanine Loan is being used to fund future soft costs related to the conversion of an eight-story loft building into a 10-story condominium building with a mix of 66 single-level to tri-level luxury condominium units totaling approximately 153,400 square feet, approximately 5,100 square feet of grade level retail area and a garage with approximately 75 parking stalls (the “Tribeca Building”). The Tribeca Building is located at 415 Greenwich Street in New York, New York. There is approximately $125,000,000 of senior financing on the project.
The Tribeca Mezzanine Loan is secured by, among other things, a first lien priority pledge of the borrower’s member interest (the “Member Interest”) in 415 Greenwich Senior Mezzanine Owner LLC (the “Owner Member”). Owner Member is the sole member in 415 Greenwich Fee Owner LLC (“Fee Owner”), which is the owner of the Tribeca Building. With respect to certain “bad boy” acts, amounts outstanding under the Tribeca Mezzanine Loan are guaranteed by the two individuals who have indirect interests in the Tribeca Building.
Pursuant to an intercreditor agreement, our right to payment under the Tribeca Mezzanine Loan is subordinate to the right to payment of the lenders under a $100,000,000 mortgage loan made to the Fee Owner and a $25,000,000 first mezzanine loan made to Owner Member. The intercreditor agreement provides that in the event of a default under the Tribeca Mezzanine Loan, we would be entitled to foreclose on the Member Interest and thereby take control and ownership of Owner Member and Fee Owner.
Unlike foreclosure under a deed of trust or mortgage, the foreclosure of a member interest entitles the foreclosing party (in this case, our indirectly wholly owned subsidiary) to take title to an equity interest rather than actually taking title to the real property. Foreclosure on the Member Interest in this transaction would allow us to take indirect control of the Tribeca Building, subject to the senior debt related to the property. In addition, as described above, our rights under the Tribeca Mezzanine Loan following a default thereunder are subject to the rights of Greenwich Capital Financial Products, Inc. under the master repurchase agreement pursuant to which we financed, in part, our purchase of Tribeca Mezzanine Loan.
Acquisition of the Plaza in Clayton
On September 27, 2006, we purchased, through an indirect wholly-owned subsidiary, a 16-story office building containing approximately 325,172 rentable square feet (the “Plaza in Clayton”) from THF
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Plaza Office, L.L.C., which is not affiliated with us or our advisor. The Plaza in Clayton is located on an approximate 2.31-acre parcel of land at 190 Carondelet Plaza in St. Louis, Missouri (which parcel includes a condominium tower that is not the subject of the purchase and sale agreement). The purchase price of the Plaza in Clayton was approximately $93,281,000 plus closing costs. We funded the purchase of the Plaza in Clayton with proceeds from the two loans described below and with proceeds from this offering.
In connection with the acquisition, we obtained a $62,200,000 fixed rate mortgage loan from Greenwich Capital Financial Products, Inc. The loan matures on October 6, 2016 and bears interest at a fixed rate of 5.899% per annum. Monthly installments on the loan will be interest-only and the entire principal amount will be due on the maturity date, assuming no prior principal prepayment. We have the right to defease the entire loan (but not prepay) upon the earlier to occur of: (a) the forty-second payment date and (b) two years after the “start up day” of the REMIC trust established by Greenwich Capital Financial Products, Inc. This loan is secured by the Plaza in Clayton.
We also obtained a $22,300,000 mezzanine loan from Greenwich Capital Financial Products, Inc. secured by a 100% equity interest in our indirect wholly-owned subsidiary that holds title to the property. This loan matures on October 6, 2016 and bears interest at a variable rate. The interest rate for the first full eight months is 30-day LIBOR plus 150 basis points and for the next four months is 30-day LIBOR plus 250 to 350 basis points depending upon the outstanding balance on the debt. We intend to repay this debt by October 2007. After October 2007, the interest rate increases on a sliding scale of LIBOR plus 500 basis points to LIBOR plus 1000 basis points depending on the period of time the debt is outstanding. Monthly installments related to the loan will be interest-only and the entire principal amount will be due on the maturity date, assuming no prior principal prepayment. The mezzanine loan has been guaranteed by our Operating Partnership, with respect to certain “bad boy” acts. The mezzanine loan may be prepaid in whole or in part without payment of any prepayment premium, except that interest through the next payment date must be paid.
The Plaza in Clayton, which was completed in 2001, is 97% leased by the following tenants: the law firm of Husch & Eppenberger, LLC (approximately 46%), Ernst & Young (approximately 29%), Metropolitan Life Insurance Company (approximately 11%), Northern Trust (approximately 3%) and various other office and retail tenants (approximately 8%). Husch & Eppenberger, LLC is a full service law firm with more than 275 attorneys in 8 offices throughout the Midwest and Mid-South. Ernst & Young is the U.S. arm of Ernst & Young International, one of the “big four” accounting firms. Ernst & Young International provides audit, tax and transaction services to public and private companies in a wide variety of industries. Metropolitan Life Insurance Company, through its subsidiaries and affiliates, is a leading provider of insurance and other financial services to individual and institutional customers.
The average occupancy rate for the Plaza in Clayton for the last four years is as follows:
| | | |
Year | | Average Occupancy Rate | |
2002 | | 94 | % |
2003 | | 96 | % |
2004 | | 96 | % |
2005 | | 98 | % |
The current aggregate annual base rent for the tenants of the Plaza in Clayton is approximately $8.5 million. As of September 2006, the current weighted-average remaining lease term for the current tenants of the Plaza in Clayton is approximately five years. The Husch & Eppenberger lease expires on March 31, 2012, and the average annual rental rate for the Husch & Eppenberger lease over the lease term is $28.60 per square foot. Husch & Eppenberger has the right, at its option, to extend the initial term of
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its lease for two additional five-year periods. The Ernst & Young lease expires on December 31, 2011, and the average annual rental rate for the Ernst & Young lease over the lease term is $28.50 per square foot. Ernst & Young has the right, at its option, to extend the initial term of its lease for two additional five-year periods. The Metropolitan Life Insurance Company lease expires on May 31, 2010, and the average annual rental rate for the Metropolitan Life Insurance Company lease over the lease term is $28.50 per square foot. Metropolitan Life Insurance Company has the right, at its option, to extend the initial term of its lease by one additional five-year period.
The average effective annual rental rate per square foot for each of the last four years for the Plaza at Clayton was:
| | | |
Year | | Average Effective
Annual Rental Rate
per Square Foot |
2002 | | $ | 20.74 |
2003 | | $ | 26.46 |
2004 | | $ | 27.88 |
2005 | | $ | 27.94 |
We calculate average effective annual rental rate per square foot as the annual base rent, net of free rent, for the year divided by the average leased square feet for the year.
The table below sets forth the lease expirations of the Plaza in Clayton for each of the next 10 years, including the number of tenants whose leases will expire, the total area in square feet covered by such leases and the percentage of gross annual rent represented by such leases.
| | | | | | | | | | |
| | | No. of
Leases Expiring | | Total Square
Feet of Expiring Leases | | Gross Annual
Rent of
Expiring
Leases | | % of Gross Annual Rent Represented by Expiring Leases | |
2006 | | 2 | | 6,399 | | $ | 170,598 | | 1.88 | % |
2007 | | 4 | | 6,516 | | $ | 105,396 | | 1.16 | % |
2008 | | 2 | | 6,236 | | $ | 187,257 | | 2.07 | % |
2009 | | — | | — | | | — | | — | |
2010 | | 1 | | 34,434 | | $ | 964,152 | | 10.63 | % |
2011 | | 1 | | 94,767 | | $ | 2,649,711 | | 29.22 | % |
2012 | | 2 | | 155,579 | | $ | 4,659,162 | | 51.38 | % |
2013 | | — | | — | | | — | | — | |
2014 | | — | | — | | | — | | — | |
2015 | | — | | — | | | — | | — | |
Gross annual rent of expiring leases, for each of the years indicated, is based on the contractual base rent, net of free rent, due for the calendar year ended December 31, 2006.
The following table shows how we will depreciate the value of the building for tax purposes as well as certain tax information related to the Plaza at Clayton:
| | | | | | | | | |
| | | Federal Tax Basis | | Rate of
Depreciation | | Method of
Depreciation | | Depreciable Life |
Land | | $ | 2,793,353 | | Non-depreciable | | N/A | | N/A |
Building | | $ | 91,458,043 | | 39 years | | Straight-line | | 39 years |
| | | | | | | | | |
Total | | $ | 94,251,396 | | | | | | |
We do not intend to make significant renovations or improvements to the Plaza in Clayton Building. Our management believes that the Plaza in Clayton Building is adequately insured.
Indebtedness
As of October 5, 2006, the outstanding principal balance on our long-term indebtedness, or indebtedness with a maturity of longer than one year, was approximately $112,534,000, which consists of
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approximately $17,772,000 of debt outstanding in connection with the acquisition of the Sabal Pavilion Building in Tampa, Florida, approximately $10,262,000 of debt incurred in connection with the acquisition of the Tribeca Mezzanine Loan, and approximately $84,500,000 of debt incurred in connection with the acquisition of the Plaza in Clayton.
Amended and Restated Charter
We have amended certain provisions of our charter relating to the election of directors. Prior to this amendment and restatement of our charter, our charter provided that directors would be elected by a plurality of the votes cast at a stockholder meeting. Under a plurality voting standard, the director nominees with the most votes are elected to the board seats to be filled. In uncontested elections, the number of nominees equals the number of board seats to be filled; therefore, in uncontested elections, a nominee need only receive a single “for” vote to be elected. Under a plurality standard, abstentions and “withhold” votes would have no effect on the outcome of the election (although they would count toward the establishment of a quorum).
In order to enhance your ability to influence the composition of the board of directors, we amended our charter to require that each candidate nominated for election to the board of directors receive a majority of the votes present, in person or by proxy, in order to be elected. Therefore, if a nominee receives fewer “for” votes than “withhold” votes in an election, then the nominee will not be elected.
Clarification Requested by Pennsylvania Securities Commission Regarding Stockholder Action
The staff of the Pennsylvania Securities Commission has requested that we clarify that unless a different threshold is required by the Maryland General Corporation Law or our charter, the affirmative vote of a majority of all votes cast by the holders of our common stock is necessary to take stockholder action.
Change to Selling Commissions Related to Dividend Reinvestment Plan Sales in Ohio
In response to restrictions imposed by the Ohio Division of Securities on selling commissions related to sales under our dividend reinvestment plan in Ohio, we have modified the amount of selling commissions that we will pay with respect to such sales under certain circumstances. In the event that we declare and pay a distribution to our stockholders, the aggregate amount of which exceeds our actual funds from operations for the corresponding period (calculated in accordance with the current National Association of Real Estate Investment Trust definition), and an Ohio stockholder elects to reinvest all or a portion of his share of such distribution pursuant to our dividend reinvestment plan, then we will pay a selling commission to the broker-dealer through whom such Ohio stockholder purchased the shares to which the distribution relates (or to such other broker-dealer subsequently elected by the Ohio stockholder) in an amount equal to 3% of the reinvested amount multiplied by our funds from operations for the corresponding period and divided by the aggregate amount of the distribution. In the event that the funds from operations for the corresponding period cannot be determined at the time of the reinvestment, we will defer the payment of the entire selling commission relating to such reinvestment until the funds from operations for the corresponding period have been determined, which in no event will be later than 45 days after the close of the fiscal quarter in which we pay the distribution. The amount of the selling commission paid on purchases through the dividend reinvestment plan will not affect the purchase price to investors under the plan, but it will affect the net proceeds to us from the sale.
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Supplemental Sales Material
In addition to the prospectus, as supplemented, we are using supplemental sales material in connection with the offering of the shares. The supplemental sales material does not contain all of the information material to an investment decision and should only be reviewed after reading the prospectus. In some states, the use of supplemental sales material may not be permitted.
The following is a brief description of the supplemental sales material currently used in permitted jurisdictions:
| | • | | The “KBS REIT Fact Sheet,” first used February 22, 2006, briefly summarizes (i) the terms of the offering; (ii) our objectives and strategy; (iii) a profile of the investors for whom an investment in us is appropriate; (iv) exit alternatives available to investors; (v) information regarding our sponsor’s experience and (vi) various risks to be considered before investing in us. |
| | • | | The KBS Real Estate Investment Trust brochure, first used February 22, 2006, provides prospective investors with general information concerning investments in real estate, as well as information specific to an investment in us, including summary descriptions of (i) our sponsor’s track record with prior real estate investments; (ii) the principles of our investment strategy; (iii) the organization and geographic reach of our advisor; (iv) the steps comprising our acquisition process and (v) various risks to be considered before investing in us. |
| | • | | The KBS Real Estate Investment Trust client seminar presentation, first used April 2006, includes general information about real estate as an asset class, as well as information specific to an investment in us, including slides related to (i) the importance of diversifying by asset class; (ii) the benefits of the REIT structure; (iii) the reasons to consider investing in a non-traded REIT; (iv) our investment strategy and (v) various risks to be considered before investing in us. |
We are offering shares only by means of the prospectus, as supplemented. Although the information contained in our supplemental sales materials will not conflict with any of the information contained in the prospectus, as supplemented, the supplemental materials do not purport to be complete and should not be considered a part of or as incorporated by reference in the prospectus, or the registration statement of which the prospectus is a part.
Declaration of Dividends and Amendment to Advisory Agreement
On July 18, 2006, our board of directors declared a daily dividend for the period from July 18, 2006 through July 31, 2006, which dividend was paid in cash in August 2006. The board also declared a daily dividend for the period from August 1, 2006 through August 31, 2006, which dividend was paid in cash in September 2006. On August 8, 2006, our board of directors declared a daily dividend for the period from September 1, 2006 through September 30, 2006, which dividend will be paid in cash in October 2006. The board also declared a daily dividend for the period from October 1, 2006 through October 31, 2006, which dividend will be paid in cash in November 2006. The dividends are calculated based on stockholders of record each day during these periods at a rate of $0.0019178 per day and equal a daily amount that, if paid each day for a 365-day period, would equal a 7.0% annualized rate based on a purchase price of $10.00 per share.
Generally, our policy is to pay distributions from cash flow from operations. In order that our stockholders could begin receiving cash distributions, we entered into an amendment to the advisory
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agreement with our advisor. Pursuant to the amendment, our advisor has agreed to advance funds to us equal to the cumulative amount of distributions declared by our board of directors from inception through October 31, 2006 less the amount of our funds from operations (as defined by NAREIT) from January 1, 2006 through October 31, 2006, provided that in no event will the amount of the advance be more than the cumulative amount of distributions declared by our board of directors from inception through October 31, 2006. Under the amendment, we are only obligated to reimburse the advisor for these expenses if and to the extent that our cumulative funds from operations for the period commencing January 1, 2006 through the date of any such reimbursement exceed the lesser of (i) the cumulative amount of any distributions declared and payable to our stockholders as of the date of such reimbursement or (ii) an amount that is equal to a 7.0% cumulative, non-compounded, annual return on invested capital for our stockholders for the period from July 18, 2006 through the date of such reimbursement. No interest will accrue on the advance being made by the advisor. The advisor is wholly owned by KBS Holdings LLC, a limited liability company that is wholly owned by Charles J. Schreiber, Jr., Peter M. Bren, Peter McMillan III and Keith D. Hall, our sponsors and each of whom is one of our officers and/or directors.
Management’s Discussion and Analysis of Financial Condition and Results of Operations as of and for the Three and Six Months Ended June 30, 2006
The following discussion and analysis should be read in conjunction with our accompanying consolidated financial statements and the notes thereto as of and for the three and six months ended June 30, 2006 as well as our consolidated financial statements and the notes thereto as of and for the year ended December 31, 2005, both included in this supplement. This discussion contains forward-looking statements that can be identified with the use of forward-looking terminology such as “may,” “will,” “seeks,” “anticipates,” “believes,” “estimates,” “expects,” “plans,” “intends,” “should” or similar expressions. Actual results may differ from those described in forward-looking statements. For a discussion of the factors that could cause actual results to differ from those anticipated, see “Risk Factors” in the prospectus and “Risks Related to Real Estate-Related Investments” contained herein.
Overview
We are a newly organized Maryland corporation that intends to qualify as a real estate investment trust, or REIT, beginning with the taxable year that will end December 31, 2006. We launched this offering on January 27, 2006. Prior to raising the minimum offering amount of $2,500,000, all subscription payments were placed in an account held by an escrow agent in trust for subscribers’ benefit. As of June 30, 2006, we had received gross offering proceeds exceeding the minimum offering amount of $2,500,000; however, we opted to delay the disbursement of funds from the escrow account pending the closing of our first property acquisition. On July 5, 2006, we instructed our escrow agent to transfer all proceeds in the escrow account, less interest, to us and we commenced our real estate operations. As of October 4, 2006, we have received approximate offering proceeds for 2.6 million shares of common stock or $25.6 million. We are dependent upon the net proceeds from this offering to conduct our proposed operations.
We intend to use the proceeds of this offering to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. We plan to own substantially all of our assets and conduct our operations through our Operating Partnership, of which we are the sole general partner. We have no paid employees. Our advisor, KBS Capital Advisors, will conduct our operations and manage our portfolio of real estate investments.
We intend to acquire and manage a diverse portfolio of real estate assets, targeting approximately 70% in core investments, which are generally existing properties with at least 80% occupancy and
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minimal near-term lease rollover, and approximately 30% in real estate-related investments and enhanced-return properties. Though our target portfolio would consist of 30% real estate-related investments and enhanced-return properties, we will not forgo a good investment opportunity because it does not precisely fit our expected portfolio composition. Thus, to the extent that our advisor presents us with good investment opportunities that allow us to meet the REIT requirements under the Internal Revenue Code, our portfolio may consist of a greater percentage of enhanced-return properties and real estate-related investments.
Real estate-related investments and enhanced-return properties are higher-yield and higher-risk investments that our advisor will actively manage. The real estate-related investments in which we may invest include: (i) mortgage loans; (ii) equity securities such as common stocks, preferred stocks and convertible preferred securities of real estate companies; (iii) debt securities such as mortgage-backed securities, commercial mortgages, mortgage loan participations and debt securities issued by other real estate companies; and (iv) certain types of illiquid securities, such as mezzanine loans and bridge loans. While we may invest in any of these real estate-related investments, we expect that the substantial majority of these investments will consist of mezzanine loans, commercial mortgage-backed securities and B-Notes as well as collateralized debt obligations. The enhanced-return properties that we will seek to acquire and reposition include: properties with moderate vacancies or near-term lease rollovers; poorly managed and positioned properties; properties owned by distressed sellers; and built-to-suit properties.
Liquidity and Capital Resources
As of June 30, 2006, we had cash on hand of $196,633. We are dependent upon the net proceeds from this offering to conduct our proposed operations. We will obtain the capital required to purchase properties and conduct our operations from the proceeds of this offering and any future offerings we may conduct, from secured or unsecured financings from banks and other lenders and from any undistributed funds from our operations.
As of June 30, 2006, our liabilities totaled $1,381,913 and were comprised of accrued liabilities of $372,495 and amounts due to affiliates of $1,009,418. Accrued liabilities consisted primarily of amounts due as of June 30, 2006 for independent director fees and professional fees. Due to affiliates consisted primarily of amounts payable to the advisor or an affiliate of the advisor for reimbursement of insurance premiums and organization and offering expenses, which includes amounts payable for selling commissions and dealer manager fees related to offering proceeds received for the purchase of our common stock.
As of October 5, 2006, the outstanding principal balance on our long-term indebtedness, or indebtedness with a maturity of longer than one year, was approximately $112,534,000, which consists of approximately $17,772,000 of debt outstanding in connection with the acquisition of the Sabal Pavilion Building, approximately $10,262,000 of debt incurred in connection with the acquisition of the Tribeca Mezzanine Loan and approximately $84,500,000 of debt incurred in connection with the acquisition of the Plaza in Clayton. These acquisitions and their related financings are described above under “Recent Acquisitions.” We expect to use debt to acquire our properties. Once we have fully invested the proceeds of this offering, we expect our debt financing to be approximately 50% of the cost of our real estate investments (before deducting depreciation or other non-cash reserves) plus the value of our other assets. Our charter limits our borrowings to 75% of the cost (before deducting depreciation or other non-cash reserves) of all our assets; however, we may exceed that limit if a majority of the conflicts committee approves each borrowing in excess of our charter limitation and we disclose such borrowing to our stockholders in our next quarterly report with an explanation from the conflicts committee of the justification for the excess borrowing. Due to borrowings we have made subsequent to June 30, 2006, we will exceed our charter limitation on borrowing during the third quarter of 2006. The conflicts committee
approved the borrowings. In each case, the conflicts committee determined that the excess leverage was justified for the following reasons:
| | • | | the borrowings enabled us to purchase the assets and earn rental and interest income more quickly; |
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| | • | | the acquisitions are likely to increase the net offering proceeds from this offering, thereby improving our ability to meet our goal of acquiring a diversified portfolio of properties to generate current income for investors and preserve investor capital; and |
| | • | | the prospectus disclosed the likelihood that we would exceed our charter’s leverage guidelines during the early stages of this offering. |
In addition to making investments in accordance with our investment objectives, we expect to use our capital resources to make certain payments to our advisor and the dealer manager. During our organization and offering stage, these payments will include payments to the dealer manager for selling commissions and the dealer manager fee and payments to the dealer manager, our advisor and their affiliates for reimbursement of certain organization and offering expenses. However, our advisor has agreed to reimburse us to the extent that selling commissions, the dealer manager fee and other organization and offering expenses incurred by us exceed 15% of our gross offering proceeds. During our acquisition and development stage, we expect to make payments to our advisor in connection with the selection and purchase of real estate investments, the management of our assets and costs incurred by our advisor in providing services to us.
We intend to elect to be taxed as a REIT and to operate as a REIT beginning with our taxable year ending December 31, 2006. To maintain our qualification as a REIT, we will be required to make aggregate annual distributions to our stockholders of at least 90% of our REIT taxable income (computed without regard to the dividends paid deduction and excluding net capital gain). Our board of directors may authorize distributions in excess of those required for us to maintain REIT status depending on our financial condition and such other factors as our board of directors deems relevant. Provided we have sufficient available cash flow, we intend to pay dividends on a monthly basis. We have not established a minimum distribution level.
Results of Operations
Our results of operations as of June 30, 2006 are not indicative of those expected in future periods as we were in our organizational stage and had not commenced real estate operations. During the period from inception (June 13, 2005) to December 31, 2005, we had been formed but had not yet commenced operations, as we had not yet begun this offering. As a result, we had no material results of operations for that period. The SEC declared the registration statement for this offering effective on January 13, 2006 and we launched this offering on January 27, 2006 upon retaining KBS Capital Markets Group LLC, an affiliate of our advisor, to serve as the dealer manager of this offering.
For the three and six months ended June 30, 2006, we had a net loss of $359,647 and $463,815, respectively, due primarily to general and administrative costs of $359,647 and $464,137, respectively, incurred in connection with the commencement of our operations. These general and administrative costs consisted primarily of insurance premiums, independent director fees and professional fees. We expect general and administrative costs to increase in the future based on a full year of operations as well as increased activity as we make real estate investments.
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Our organization and offering costs are initially being paid by our advisor, the dealer manager and their affiliates on our behalf. These organization and offering costs include all expenses (other than selling commissions and the dealer manager fee) to be paid by us in connection with this offering, including but not limited to (i) legal, accounting, printing, mailing and filing fees; (ii) charges of the escrow holder; (iii) reimbursement of the dealer manager for amounts it may pay to reimburse the bona fide diligence expenses of broker-dealers; (iv) reimbursement to the advisor for the salaries of its employees and other costs in connection with preparing supplemental sales materials; (v) the cost of educational conferences held by us (including the travel, meal and lodging costs of registered representatives of broker-dealers); and (vi) reimbursement to the dealer manager for travel, meals, lodging and attendance fees incurred by employees of the dealer manager to attend retail seminars conducted by broker-dealers.
Pursuant to the advisory agreement and the dealer manager agreement, we are obligated to reimburse the advisor, the dealer manager or their affiliates, as applicable, for organization and offering costs associated with this offering, provided that the advisor is obligated to reimburse us to the extent selling commissions, the dealer manager fee and other organization and offering costs exceed 15% of our gross offering proceeds. Our advisor and its affiliates have incurred on our behalf organization and offering costs of approximately $2,928,000 through June 30, 2006. Such costs are only a liability of the Company to the extent selling commissions, the dealer manager fee and other organization and offering costs do not exceed 15% of the gross proceeds of the offering. Pursuant to the advisory agreement, we have no obligation to reimburse the advisor or its affiliates for any organization and offering costs unless we sell the minimum number of shares in this offering. As of June 30, 2006, our escrow agent had received gross offering proceeds of $5,401,069 for the purchase of 541,161 shares, an amount in excess of the minimum number of shares required to break escrow, and we recorded organization expenses of $8,912, offering costs of $288,147 and selling commissions and dealer manager fees of $503,193 at June 30, 2006. We broke escrow in this offering on July 5, 2006.
We will also pay our independent directors an annual retainer of $25,000 plus fees for attendance at board and committee meetings. At June 30, 2006, independent director fees payable were approximately $178,356. No independent director fees are payable unless we sell the minimum number of shares in this offering. Although we had not broken escrow at June 30, 2006, we had received gross offering proceeds of $5,401,069, an amount exceeding that required to break escrow. As a result, we accrued for these fees and recorded them as general and administrative expense in the accompanying financial statements.
Critical Accounting Policies
Below is a discussion of the accounting policies that management believes will be critical once we commence real estate operations. We consider these policies critical because they involve significant management judgments and assumptions, require estimates about matters that are inherently uncertain and because they are important for understanding and evaluating our reported financial results. These judgments affect the reported amounts of assets and liabilities and our disclosure of contingent assets and liabilities at the dates of the financial statements and the reported amounts of revenue and expenses during the reporting periods. With different estimates or assumptions, materially different amounts could be reported in our financial statements. Additionally, other companies may utilize different estimates that may impact the comparability of our results of operations to those of companies in similar businesses.
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Use of Estimates
The preparation of the consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could materially differ from those estimates.
Real Estate Purchase Price Allocation
In accordance with Statement of Financial Accounting Standards (“SFAS”) No. 141 “Business Combinations,” we will record above-market and below-market in-place lease values for acquired properties based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (i) the contractual amounts to be paid pursuant to the in-place leases and (ii) management’s estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining non-cancelable term of the lease. We will amortize any capitalized above- or below-market lease values as an increase or reduction to rental income over the remaining non-cancelable terms of the respective leases.
We will measure the aggregate value of other intangible assets acquired based on the difference between (i) the property valued with existing in-place leases adjusted to market rental rates and (ii) the property valued as if vacant. Management’s estimates of value are expected to be made using methods similar to those used by independent appraisers (e.g., discounted cash flow analysis). Factors to be considered by management in its analysis include an estimate of carrying costs during hypothetical expected lease-up periods considering current market conditions and costs to execute similar leases.
We will also consider information obtained about each property as a result of our pre-acquisition due diligence, marketing and leasing activities in estimating the fair value of the tangible and intangible assets acquired. In estimating carrying costs, management will also include real estate taxes, insurance and other operating expenses and estimates of lost rentals at market rates during the expected lease-up periods. Management will also estimate costs to execute similar leases including leasing commissions and legal and other related expenses to the extent that such costs are not already incurred in connection with a new lease origination as part of the transaction.
The total amount of other intangible assets acquired will be further allocated to in-place lease values and customer relationship intangible values based on management’s evaluation of the specific characteristics of each tenant’s lease and our overall relationship with that respective tenant. Characteristics to be considered by management in allocating these values include the nature and extent of our existing business relationships with the tenant, growth prospects for developing new business with the tenant, the tenant’s credit quality and expectations of lease renewals (including those existing under the terms of the lease agreement), among other factors.
We will amortize the value of in-place leases to expense over the initial term of the respective leases. The value of customer relationship intangibles will be amortized to expense over the initial term and any renewal periods in the respective leases, but in no event will the amortization period for intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and customer relationship intangibles would be charged to expense.
Investment in Real Estate Assets
We will have to make subjective assessments as to the useful lives of our depreciable assets. These assessments will have a direct impact on our net income, because, if we were to shorten the
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expected useful lives of our investments in real estate, we would depreciate these investments over fewer years, resulting in more depreciation expense and lower net income on an annual basis throughout the expected useful lives of these investments. Costs related to the acquisition, development, construction and improvement of properties will be capitalized. Repair and maintenance costs will be charged to expense as incurred and significant replacements and betterments will be capitalized. Repair and maintenance costs include all costs that do not extend the useful life of the real estate asset. We consider the period of future benefit of an asset to determine its appropriate useful life. We anticipate the estimated useful lives of our assets by class to be as follows:
| | |
Buildings | | 25 - 40 years |
Building improvements | | 10 - 25 years |
Land improvements | | 20 - 25 years |
Tenant improvements | | Lease term |
Valuation of Real Estate Assets
We will continually monitor events and changes in circumstances that could indicate that the carrying amounts of our real estate assets, including those held through joint ventures, may not be recoverable. When indicators of potential impairment suggest that the carrying value of a real estate asset may not be recoverable, we will assess the recoverability of the asset by estimating whether we will recover the carrying value of the asset through its undiscounted future cash flows and its eventual disposition. If based on this analysis we do not believe that we will be able to recover the carrying value of the asset, we will record an impairment loss to the extent that the carrying value exceeds the estimated fair value of the asset. Projections of future cash flows require us to estimate the expected future operating income and expenses related to an asset as well as market and other trends. The use of inappropriate assumptions in our future cash flows analyses would result in an incorrect assessment of our assets’ future cash flows and fair values and could result in the overstatement of the carrying values of our real estate assets and an overstatement of our net income.
Revenue Recognition
We will recognize minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, on a straight-line basis over the term of the related lease and we will include amounts expected to be received in later years in deferred rents. We will record property operating expense reimbursements due from tenants for common area maintenance, real estate taxes and other recoverable costs in the period the related expenses are incurred.
We will recognize gains on sales of real estate pursuant to the provisions of SFAS No. 66 “Accounting for Sales of Real Estate.” The specific timing of a sale will be measured against various criteria in SFAS No. 66 related to the terms of the transaction and any continuing involvement in the form of management or financial assistance associated with the property. If the sales criteria are not met, we will defer gain recognition and account for the continued operations of the property by applying the finance, installment or cost recovery methods, as appropriate, until the sales criteria are met.
Distribution Policy
We intend to make distributions each taxable year equal to at least 90% of our REIT taxable income (which is determined without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). We expect to authorize, declare and pay dividends on a monthly basis.
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Dividends to be distributed to stockholders will be determined by our board of directors and will be dependent upon a number of factors relating to us, including funds available for the payment of dividends, financial condition, the timing of property acquisitions, capital expenditure requirements and annual distribution requirements in order to maintain our status as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”).
Income Taxes
We intend to elect to be taxed as a REIT under the Code and intend to operate as such beginning with our taxable year ending December 31, 2006. To qualify as a REIT, we must meet certain organizational and operational requirements, including a requirement to distribute at least 90% of our annual REIT taxable income to our stockholders (which is computed without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). As a REIT, we generally will not be subject to federal income tax on income that we distribute to stockholders. If we fail to qualify as a REIT in any taxable year, we will be subject to federal income tax on our taxable income at regular corporate income tax rates and generally will not be permitted to qualify for treatment as a REIT for federal income tax purposes for the four taxable years following the year during which qualification is lost unless the Internal Revenue Service grants us relief under certain statutory provisions. Such an event could materially adversely affect our net income and net cash available for distribution to stockholders. However, we intend to organize and operate in such a manner as to qualify for treatment as a REIT.
Prior Performance Summary
The information contained on pages 96-101 under the “Prior Performance Summary” section of the prospectus is revised by the deletion of that section in its entirety and the insertion of the following in lieu thereof:
Since 1992, two of our sponsors, Peter M. Bren and Charles J. Schreiber, Jr., have teamed to invest, manage, develop and sell high-quality U.S. commercial real estate assets for institutional investors. Since the formation of the first investment adviser affiliated with Messrs. Bren and Schreiber in 1992, investment advisers affiliated with Messrs. Bren and Schreiber have sponsored 11 private real estate funds that have raised $1.9 billion of equity from 39 institutional investors. Together, Messrs. Bren and Schreiber founded KBS Realty Advisors LLC, a registered investment adviser with the Securities and Exchange Commission and a nationally recognized real estate investment adviser. We refer to the investment advisers affiliated with Messrs. Bren and Schreiber as KBS investment advisers.
The information presented below represents the historical experience of the real estate funds sponsored by KBS investment advisers as of the ten years ending December 31, 2005. By purchasing shares in this offering, you will not acquire any ownership interest in any funds to which the information in this section relates and you should not assume that you will experience returns, if any, comparable to those experienced by the investors in the real estate funds discussed. Further, the funds discussed in this section were conducted through privately held entities that were subject neither to the up-front commissions, fees and expenses associated with this offering nor all of the laws and regulations that will apply to us as a publicly offered REIT. We have omitted from this discussion information regarding the prior performance of entities for which an institutional investor engaged a KBS investment adviser if the investor had the power to reject the real estate acquisitions proposed by the KBS investment adviser. Such entities are not considered “funds” or “programs” as those terms are used in this supplement and the prospectus.
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During the 10-year period ending December 31, 2005, KBS investment advisers have managed eleven real estate funds, six of those were multi-investor, commingled funds and five were single-client, separate accounts. All of the prior funds were limited partnerships for which affiliates of Messrs. Bren and Schreiber act or acted as a general partner. In all cases, affiliates of Messrs. Bren and Schreiber had responsibility for acquiring, investing, managing, developing and selling the real estate assets of each of the funds. Three of the eleven funds managed by KBS investment advisers during the 10-year period ending December 31, 2005 used private REITs to structure the ownership of some of their investments.
Ten of the eleven real estate funds managed by KBS investment advisers raised approximately $1.3 billion of equity capital from 34 institutional investors during the 10-year period ending December 31, 2005. In the case of two funds, commitments to invest capital were made during 1995 and funds were raised from the investors in 1996 as investments were identified by the KBS investment advisers for the funds. The institutional investors investing in the prior funds include public and corporate pension funds, endowments and foundations. See Table I and Table II under “Prior Performance Tables” in this supplement for more information regarding the experience of our sponsors in raising funds from investors. One of the eleven funds managed by KBS investment advisers did not raise capital to acquire new properties during this 10-year period.
During the 10-year period ending December 31, 2005, KBS investment advisers invested approximately $2.4 billion (including equity, debt and reinvestment of income and sales proceeds) in 135 real estate investments on behalf of the ten funds raising capital for investment during this period. No debt financing was used in acquiring the properties of five of these ten funds.
Each of the funds managed by KBS investment advisers during the 10-year period ending December 31, 2005 have or had (three of the funds have been fully liquidated) investment objectives that are similar to ours. For each of the funds, the KBS investment adviser has focused on acquiring a diverse portfolio of real estate investments. The KBS investment adviser typically diversified the portfolios of the funds by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for nine of the eleven funds, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, focusing primarily on value-added and enhanced-return properties. Value-added and enhanced-return assets are assets that are undervalued or that could be repositioned to enhance their value. For two of the eleven funds, the KBS investment adviser is focusing on the acquisition of core real estate assets. We will seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in real estate-related investments and enhanced-return properties.
Substantially all of the assets acquired by the funds have involved commercial properties. During the 10-year period ending December 31, 2005, KBS investment advisers invested in the following asset types on behalf of the funds: 73% office, 19% commercial mortgage-backed securities, 4% industrial, 3% mortgage loans, and 1% retail. On behalf of these ten KBS funds, KBS investment advisers have purchased or originated and then serviced approximately $70 million (face value amount at purchase or origination) in 7 mortgage loans, excluding an interest in a CMBS portfolio in which a fund held a 25.78% interest. The loans were largely participating or mezzanine loans related to the development of properties (in most cases single-family residential properties). Accordingly, KBS affiliates have substantial experience investing in both commercial properties and other types of real estate-related investments.
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The KBS investment advisers for the prior funds also sought to diversify the investments of the funds by geographic region as illustrated by the chart below. This chart shows investments in different geographic regions by capital invested during the 10-year period ending December 31, 2005. KBS investment advisers have emphasized their investment activity within those regions that have exhibited the potential for strong or sustainable growth. All investments by the funds were within the United States. Capital invested in acquired properties during the 10-year period ending December 31, 2005 by geographic region is as follows: 36% East, 33% South, 20% West, and 11% Midwest.
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In seeking to diversify the portfolios of the funds by investment risk, KBS investment advisers have purchased both low risk, high-quality properties and high-quality but under-performing properties in need of repositioning. Substantially all of the properties purchased by the funds had prior owners and operators.
For more detailed information regarding acquisitions by the funds in the three years ending December 31, 2005, see Table VI contained in Part II of the registration statement, which is not part of this supplement or the prospectus. We will provide a copy of Table VI to you upon written request and without charge.
During the 10-year period ending December 31, 2005, KBS investment advisers have invested approximately $2.4 billion (including equity, debt and reinvestment of income and sales proceeds) for its clients. Of the properties acquired during the 10-year period ending December 31, 2005, KBS investment advisers had sold 70 properties on behalf of the ten funds, which is 52% of all properties these funds had acquired. During the 10-year period ending December 31, 2005, KBS investment advisers also sold another 87 properties on behalf of these funds, which properties had been purchased prior to January 1, 1996. KBS investment advisers continue to actively manage the unsold properties of these funds to significantly increase their operating cash flows. KBS investment advisers anticipate that they will sell these assets when they believe market conditions and property positioning have maximized their value.
Though the prior funds were not subject to the up-front commissions, fees and expenses associated with this offering, the other funds have fee arrangements with KBS affiliates structured similar to ours. The percentage of the fees varied based on the market factors at the time the particular fund was formed. Historically a majority of the other funds paid (i) asset management fees, (ii) acquisition fees and (iii) real estate commissions, disposition fees and/or incentive fees based on participation interests in the net cash flows of the funds’ assets after achieving a stipulated return for the investors or based on gains from the sale of assets.
Please see Tables II and III under “Prior Performance Tables” in this supplement for more information regarding the fees paid to KBS affiliates by these prior funds and the operating results of these prior funds. Only three of the funds represented in Table II, which we refer to as Commingled Account 5/95, Commingled Account 12/95 and Commingled Account 6/99, paid incentive fees during the three years ended December 31, 2005. Two of the nine funds, Commingled Account 6/98 and Commingled Account 6/99, pay incentive fees based on gains from the sale of assets. The incentive fees for the remaining seven funds represented in Table II, which we refer to as Commingled Account 5/95, Commingled Account 12/95, Commingled Account 12/96, Separate Account 10/97, Separate Account 12/98, Separate Account 6/05 and Separate Account 8/05, are back-end fees based on participation interests in the net cash flows of the funds’ assets after achieving a stipulated return for the investors. These back-end incentive fees will be paid during the final liquidation stage of the funds. Only two of these seven funds, Commingled Account 12/95 and Commingled Account 5/95, are currently in their liquidation stage.
Adverse changes in general economic conditions have occasionally affected the performance of the prior funds. For example, in the mid-1990s, in an effort to take advantage of what the KBS investment advisers believed was attractive, discounted portfolio pricing, five of the prior funds invested in real estate portfolios in the Southwest, primarily in Arizona and Texas. These portfolios were composed principally of smaller Class B buildings. The recession, beginning around 1999, resulted in more business failures among smaller tenants typical to Class B buildings. This resulted in higher vacancy rates for these buildings and in the funds investing additional capital to cover the costs of re-letting the properties. The funds also retained the buildings for a longer period of time so that the buildings would be sufficiently leased for disposition. The five funds that made such investments were
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Commingled Account 12/96, Commingled Account 6/98, Commingled Account 6/99, Separate Account 10/97 and Separate Account 12/98. Also in the late 1990s, three funds, Commingled Account 6/98, Commingled Account 6/99 and Separate Account 12/98, made investments in real estate located in the Northeast, primarily in Massachusetts. At that time, this area had a high concentration of tenants that were tech companies. While the funds did not have a significant number of tech companies as their tenants, the collapse of the dot-com market did result in a significant amount of office-building space being returned to the marketplace, increasing vacancy rates and substantially lowering market rents. As a result, rental rates in the buildings owned by these funds decreased on newly leased space and renewals in buildings. The area’s higher vacancy rates also increased the period of time it took the KBS investment advisers to get the properties to the planned stabilized occupancy level for disposition. All of the funds discussed in this paragraph are still in their operating stage. These adverse market conditions reduced the distributions made by these funds and may cause the total returns to investors to be lower than they otherwise would.
Please see Tables III, IV and V under “Prior Performance Tables” in this supplement for more information regarding the operating results of the prior funds sponsored by KBS investment advisers, information regarding the results of the completed funds and information regarding the sales or disposals of properties by these funds.
To execute their business strategy, Messrs. Bren and Schreiber have organized their team of real estate professionals by markets. Regional Presidents, Acquisition/Disposition Officers and Asset Managers have specific market responsibility. The map below details those professionals, their regional responsibility and their target markets. The attached map also shows the regional offices KBS Realty Advisors has recently opened in San Francisco, Chicago and Washington, D.C.
This regional market focus provides the real estate professionals at KBS Realty Advisors with the ability to gather better local market knowledge and establish relationships with local owners, developers, brokers and lenders. These relationships provide KBS Realty Advisors with access to a unique deal flow.
Note with Respect to Prior Performance Information Included in the Prospectus
The information presented in the prospectus under the heading “Prior Performance Summary,” which is summarized in the introduction to the prior performance tables on page F-15 to the prospectus, represents the historical experience of real estate funds sponsored by Peter M. Bren and Charles J. Schreiber, Jr., two of our sponsors, over the 11-year period ending December 31, 2004, not the ten years ending December 31, 2004. The prior performance information included in this supplement for the ten years ending December 31, 2005 supersedes and replaces the prior performance information contained in the prospectus.
The taxable income information with respect to Separate Account 12/98 presented in Table III of the Prior Performance Tables, which appears on pages F-18 and F-19 of the prospectus, is incorrect. The correct information is as follows:
For 2000
| | • | | under federal income tax results, ordinary income (loss) from operations was $333 per $1,000 invested. |
For 2004
| | • | | taxable income from operations was $6,634,000; |
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| | • | | taxable income from gain (loss) on sale was ($26,041,000); and |
| | • | | under federal income tax results, ordinary income (loss) from operations was $57 per $1,000 invested and capital gain (loss) was ($223) per $1,000 invested. |
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Market for and Dividends on Our Common Stock and Related Stockholder Matters
Stockholder Information
As of October 4, 2006, we had approximately 2.6 million shares of common stock outstanding held by a total of approximately 566 stockholders. The number of stockholders is based on the records of Phoenix Transfer, Inc., who serves as our transfer agent.
Market Information
No public market currently exists for our shares of common stock, and we currently have no plans to list our shares on a national securities exchange or the Nasdaq National Market. Until our shares are listed, if ever, you may not sell your shares unless the buyer meets the applicable suitability and minimum purchase requirements. In addition, our charter prohibits the ownership of more than 9.8% of our stock, unless exempted by our board of directors. Consequently, there is the risk that you may not be able to sell your shares at a time or price acceptable to you.
Our board of directors has adopted a share redemption program; however, there are numerous restrictions on your ability to sell your shares to us under the plan. See “Share Redemption Program” in this supplement for more information.
Dividend Information
We intend to elect to be taxed as a REIT and to operate as a REIT beginning with our taxable year ending December 31, 2006. To maintain our qualification as a REIT, we will be required to make aggregate annual distributions to our stockholders of at least 90% of our REIT taxable income (computed without regard to the dividends paid deduction and excluding net capital gain). Our board of directors may authorize distributions in excess of those required for us to maintain REIT status depending on our financial condition and such other factors as our board of directors deems relevant.
We intend to authorize, declare and pay dividends on a monthly basis. On July 18, 2006, our board of directors declared a daily dividend for the period from July 18, 2006 through July 31, 2006, which dividend was paid in cash in August 2006. The board also declared a daily dividend for the period from August 1, 2006 through August 31, 2006, which dividend was paid in cash in September 2006. On August 8, 2006, our board of directors declared a daily dividend for the period from September 1, 2006 through September 30, 2006, which dividend will be paid in cash in October 2006. The board also declared a daily dividend for the period from October 1, 2006 through October 31, 2006, which dividend will be paid in cash in November 2006. The dividends are calculated based on stockholders of record each day during these periods at a rate of $0.0019178 per day and equal a daily amount that, if paid each day for a 365-day period, would equal a 7.0% annualized rate based on a purchase price of $10.00 per share. For more information, see “Declaration of Dividends and Amendment to Advisory Agreement” in this supplement.
Equity Compensation Plan
We have adopted an Employee and Independent Director Incentive Stock Plan to (i) furnish incentives to individuals chosen to receive share-based awards because we consider them capable of improving our operations and increasing our profits; (ii) encourage selected persons to accept or continue employment with our advisor; and (iii) increase the interest of our independent directors in our welfare through their participation in the growth in the value of our shares of common stock. The total number of
31
shares of common stock we have reserved for issuance under the Employee and Independent Director Incentive Stock Plan is equal to 5% of our outstanding shares at any time, but not to exceed 10,000,000 shares. No awards have been granted under the plan as of the date of this supplement, and we have no timetable for the grant of any awards under the Employee and Independent Director Incentive Stock Plan. Our Employee and Independent Director Incentive Stock Plan was approved prior to the commencement of our initial public offering by our board of directors and initial stockholder, KBS Capital Advisors, our advisor. See “Management – Employee and Independent Director Incentive Stock Plan” in the prospectus for more information with respect to this plan.
Certain Relationships and Related Transactions
On July 6, 2006, our Operating Partnership entered into a promissory note with KBS Holdings LLC pursuant to which the Operating Partnership agreed to repay any advances under the note, up to an aggregate principal amount of $10,000,000, plus any interest on the unpaid principal advanced under the note, by July 6, 2008. KBS Holdings is a limited liability company that is wholly owned by Charles J. Schreiber, Jr., Peter M. Bren, Peter McMillan III and Keith D. Hall, who are our sponsors and each of whom is one of our officers and/ or directors. Any unpaid principal under the promissory note bears simple interest from the date advanced at the rate of 6% per annum. The Operating Partnership may prepay the unpaid principal balance under the promissory note, in whole or in part, together with all interest then accrued under the note, at any time, without premium or penalty. KBS Holdings may upon written demand require the Operating Partnership to prepay outstanding amounts under the promissory note, in whole or in part, provided that funds are available from the proceeds of this offering. Pursuant to the promissory note, funds are deemed available from our offering if neither the Operating Partnership nor any of our subsidiaries have used or become contractually obligated to use such proceeds for another purpose, including the repayment of third-party debt related to the properties or other assets acquired by us or our subsidiaries. The promissory note is unsecured. As of October 5, 2006, the remaining principal balance under the note was $5,947,137.
For more information with respect to our relationship with our sponsors and their affiliates, see “Management,” “Management Compensation” and “Conflicts of Interest” in the prospectus and “Declaration of Dividends and Amendment to Advisory Agreement” in this supplement.
Investments through IRA Accounts
Sterling Trust Company has agreed to act as an IRA custodian for purchasers of our common stock who would like to purchase shares though an IRA account and desire to establish a new IRA account for that purpose. We will pay the fees related to the establishment of investor accounts with Sterling Trust Company and the first-year annual IRA maintenance fee. Thereafter, investors will be responsible for the annual IRA maintenance fees. Further information about custodial services is available through your broker or through our dealer manager atwww.kbs-cmg.com.
Information Regarding Uncertificated Shares
We expect that, until our shares are listed on a national securities exchange or the Nasdaq National Market, we will not issue shares in certificated form. Information regarding restrictions on the transferability of our shares that, under Maryland law, would otherwise have been required to appear on our share certificates will instead be furnished to stockholders upon request and without charge. These requests should be delivered or mailed to: KBS Real Estate Investment Trust, c/o Phoenix Transfer, Inc., 2401 Kerner Boulevard, San Rafael CA 94901.
32
Change in Escrow Procedures
On April 12, 2006, we executed an amendment to the escrow agreement that entitled subscribers to receive the interest earned on their subscription payments while held in the escrow account. As amended, upon raising the applicable minimum offering amount and instructing the escrow agent to disburse the funds in the account, the escrow agent disburses funds representing the gross purchase price for the shares to us and disburses directly to subscribers any interest earned on their subscription payments while held in the escrow account.
As disclosed in our prospectus under “Plan of Distribution,” subscription proceeds from investors who are not Pennsylvania residents must be placed in escrow until we raise an aggregate of at least $2.5 million of gross offering proceeds, and subscription proceeds from Pennsylvania residents must be placed in escrow until we raise a minimum of $66.7 million in gross offering proceeds (including proceeds from sales made to residents of other jurisdictions). As of June 30, 2006, we had received gross offering proceeds exceeding the minimum offering amount of $2,500,000, and on July 5, 2006, we instructed our escrow agent to transfer all proceeds in the escrow account (except for proceeds from Pennsylvania investors), less interest, to us and we commenced our real estate operations.
Until we raise a minimum of $66.7 million of gross proceeds in this offering, subscription proceeds from Pennsylvania residents will be placed into an interest-bearing account held by the escrow agent, First Republic Trust Company, in trust for subscribers’ benefit, pending release to us. We will not issue any shares to Pennsylvania investors unless we raise a minimum of $66.7 million in gross offering proceeds prior to January 13, 2008. In the event we do not raise gross offering proceeds of $66.7 million by January 13, 2008, we will promptly return all funds held in escrow for the benefit of Pennsylvania investors (in which case, Pennsylvania investors will not be required to request a refund of their investment). Purchases by persons affiliated with us or our advisor will not count toward satisfaction of the Pennsylvania minimum.
If we have not reached this $66.7 million threshold within 120 days of the date that we first accept a subscription payment from a Pennsylvania investor, we will, within 10 days of the end of that 120-day period, notify Pennsylvania investors in writing of their right to receive refunds, with interest. If you request a refund within 10 days of receiving that notice, we will arrange for the escrow agent to promptly return to you by check your subscription amount with interest. Amounts held in the Pennsylvania escrow account from Pennsylvania investors not requesting a refund will continue to be held for subsequent 120-day periods until we raise at least $66.7 million or until the end of the subsequent escrow periods. At the end of each subsequent escrow period, we will again notify you of your right to receive a refund of your subscription amount with interest. Until we have raised $66.7 million, Pennsylvania investors should make their checks payable to “First Republic Trust Company, as agent for KBS Real Estate Investment Trust, Inc.” Once we have reached the Pennsylvania minimum, Pennsylvania investors should make their checks payable to “KBS Real Estate Investment Trust, Inc.”
Experts
The (i) consolidated balance sheet of KBS Real Estate Investment Trust, Inc. at December 31, 2005; (ii) the statement of Revenues Over Certain Operating Expenses of the Sabal Pavilion Building for the year ended December 31, 2005; and (iii) the statement of Revenues Over Certain Operating Expenses of the Plaza at Clayton for the year ended December 31, 2005, appearing in this supplement have all been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
33
Index to Financial Statements
| | |
Consolidated Financial Statements | | |
| |
Consolidated Balance Sheets as of June 30, 2006 (unaudited) and December 31, 2005 | | F-2 |
Consolidated Statements of Operations for the Three and Six Months Ended June 30, 2006 (unaudited) | | F-3 |
Consolidated Statements of Stockholders’ Equity for the Six Months Ended June 30, 2006 and the Period from June 13, 2005 (Inception) to December 31, 2005 (unaudited) | | F-4 |
Consolidated Statement of Cash Flows for the Six Months Ended June 30, 2006 (unaudited) | | F-5 |
Condensed Notes to Consolidated Financial Statements as of June 30, 2006 (unaudited) | | F-6 |
Report of Independent Registered Public Accounting Firm | | F-20 |
Consolidated Balance Sheet as of December 31, 2005 | | F-21 |
Notes to Consolidated Balance Sheet as of December 31, 2005 | | F-22 |
| |
Sabal Pavilion Building | | |
| |
Report of Independent Registered Public Accounting Firm | | F-34 |
Statements of Revenues Over Certain Operating Expenses for the Six Months Ended June 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-35 |
Notes to Statements of Revenues Over Certain Operating Expenses for the Six Months Ended June 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-36 |
| |
Plaza in Clayton Building | | |
| |
Report of Independent Registered Public Accounting Firm | | F-38 |
Statements of Revenues Over Certain Operating Expenses for the Six Months Ended June 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-39 |
Notes to Statements of Revenues Over Certain Operating Expenses for the Six Months Ended June 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-40 |
| |
Unaudited Pro Forma Financial Statements | | |
| |
Summary of Unaudited Pro Forma Financial Statements | | F-42 |
Pro Forma Balance Sheet as of June 30, 2006 (unaudited) | | F-43 |
Pro Forma Statement of Operations for the Six Months Ended June 30, 2006 (unaudited) | | F-45 |
Pro Forma Statement of Operations for the Year Ended December 31, 2005 (unaudited) | | F-47 |
| |
Prior Performance Tables | | |
| |
Prior Performance Tables (unaudited) | | F-49 |
F-1
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED BALANCE SHEETS
As of June 30, 2006 and December 31, 2005
| | | | | | | |
| | | June 30, 2006 | | | December 31, 2005 |
| | | (unaudited) | | | |
ASSETS | | | | | | | |
Cash and cash equivalents | | $ | 196,633 | | | $ | 200,000 |
Restricted cash | | | 5,401,069 | | | | — |
Prepaid insurance | | | 130,125 | | | | — |
| | | | | | | |
Total assets | | $ | 5,727,827 | | | $ | 200,000 |
| | | | | | | |
LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | | | |
Accrued liabilities | | $ | 372,495 | | | $ | — |
Due to affiliates | | | 1,009,418 | | | | — |
| | | | | | | |
Total liabilities | | | 1,381,913 | | | | — |
Commitments and contingencies | | | | | | | |
Stockholders’ equity: | | | | | | | |
Preferred stock, $.01 par value; 10,000,000 shares authorized, no shares issued and outstanding | | | — | | | | — |
Common stock, $.01 par value; 1,000,000,000 shares authorized, 20,000 shares issued and outstanding | | | 200 | | | | 200 |
Common stock issuable upon breaking escrow, 541,161 shares, $.01 par value | | | 5,412 | | | | — |
Additional paid-in capital | | | 4,804,117 | | | | 199,800 |
Accumulated deficit | | | (463,815 | ) | | | — |
| | | | | | | |
Total stockholders’ equity | | | 4,345,914 | | | | 200,000 |
| | | | | | | |
Total liabilities and stockholders’ equity | | $ | 5,727,827 | | | $ | 200,000 |
| | | | | | | |
See accompanying notes.
F-2
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three and Six Months Ended June 30, 2006
(unaudited)
| | | | | | | | |
| | | Three Months
Ended June 30, 2006 | | | Six Months Ended June 30, 2006 | |
Interest income | | $ | — | | | $ | 322 | |
Expenses: | | | | | | | | |
General and administrative | | | (359,647 | ) | | | (464,137 | ) |
| | | | | | | | |
Net loss | | $ | (359,647 | ) | | $ | (463,815 | ) |
| | | | | | | | |
Loss per common share, basic and diluted | | $ | (3.60 | ) | | $ | (7.71 | ) |
| | | | | | | | |
Weighted-average number of common shares, issuable and outstanding | | | 99,950 | | | | 60,196 | |
| | | | | | | | |
See accompanying notes.
F-3
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
For the Six Months Ended June 30, 2006 and the
Period from June 13, 2005 (Inception) to December 31, 2005
(unaudited)
| | | | | | | | | | | | | | | | | | | | | | |
| | | Common Stock | | Common Stock
Issuable upon
Breaking Escrow | | | | | | | | | | | |
| | | Shares | | Amount | | Shares | | Amount | | Additional
Paid-in
Capital | | | Accumulated
Deficit | | | Total
Stockholders’
Equity | |
Balance, June 13, 2005 (inception) | | — | | $ | — | | — | | $ | — | | $ | — | | | $ | — | | | $ | — | |
Issuance of common stock | | 20,000 | | | 200 | | — | | | — | | | 199,800 | | | | — | | | | 200,000 | |
| | | | | | | | | | | | | | | | | | | | | | |
Balance, December 31, 2005 | | 20,000 | | | 200 | | — | | | — | | | 199,800 | | | | — | | | | 200,000 | |
Common stock issuable upon breaking escrow | | — | | | — | | 541,161 | | | 5,412 | | | 5,395,657 | | | | — | | | | 5,401,069 | |
Commissions on stock sales and related dealer manager fees | | — | | | — | | — | | | — | | | (503,193 | ) | | | — | | | | (503,193 | ) |
Other offering costs | | — | | | — | | — | | | — | | | (288,147 | ) | | | — | | | | (288,147 | ) |
Net loss | | — | | | — | | — | | | — | | | — | | | | (463,815 | ) | | | (463,815 | ) |
| | | | | | | | | | | | | | | | | | | | | | |
Balance, June 30, 2006 | | 20,000 | | $ | 200 | | 541,161 | | $ | 5,412 | | $ | 4,804,117 | | | $ | (463,815 | ) | | $ | 4,345,914 | |
| | | | | | | | | | | | | | | | | | | | | | |
See accompanying notes.
F-4
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
For the Six Months Ended June 30, 2006
(unaudited)
| | | | |
Cash Flows from Operating Activities | | | | |
Net loss | | $ | (463,815 | ) |
Adjustments to reconcile net loss to net cash provided by operating activities: | | | | |
Changes in assets and liabilities: | | | | |
Prepaid insurance | | | (130,125 | ) |
Accrued liabilities | | | 372,495 | |
Due to affiliates | | | 218,078 | |
| | | | |
Net cash used by operating activities | | | (3,367 | ) |
| | | | |
Cash Flows from Financing Activities | | | | |
Common stock issuable upon breaking escrow | | | 5,401,069 | |
Restricted cash | | | (5,401,069 | ) |
| | | | |
Net cash provided by financing activities | | | — | |
| | | | |
Net change in cash and cash equivalents | | | (3,367 | ) |
Cash and cash equivalents, beginning of period | | | 200,000 | |
| | | | |
Cash and cash equivalents, end of period | | $ | 196,633 | |
| | | | |
Supplemental schedule of non-cash financing activities: | | | | |
Amounts accrued as due to affiliates: | | | | |
Commissions on stock sales and related dealer manager fees | | $ | 503,193 | |
Other offering costs | | | 288,147 | |
| | | | |
| | $ | 791,340 | |
| | | | |
See accompanying notes.
F-5
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2006
(unaudited)
1. ORGANIZATION
KBS Realty Corporation was formed on June 13, 2005 as a Maryland corporation that intends to qualify as a real estate investment trust (“REIT”) beginning with the taxable year that will end December 31, 2006. On June 15, 2005, KBS Realty Corporation and KBS Real Estate Investment Trust, Inc., a Maryland corporation (“KBS REIT”), filed Articles of Merger (the “Articles of Merger”) with the State of Maryland. Pursuant to the Articles of Merger, KBS REIT was merged into KBS Realty Corporation with KBS Realty Corporation surviving the merger, and KBS Realty Corporation’s name was changed to KBS Real Estate Investment Trust, Inc. (the “Company”).
Prior to the merger, KBS Capital Advisors LLC (the “Advisor”) owned 20,000 shares of common stock of KBS REIT, which were all of the outstanding shares of KBS REIT. Pursuant to the Articles of Merger, the Advisor’s 20,000 shares in KBS REIT were converted on a one-for-one basis into shares of common stock of the Company. As of June 30, 2006, the 20,000 shares of common stock owned by the Advisor were the only issued and outstanding shares of the Company. At June 30, 2006, the Company had received offering proceeds for an additional 541,161 shares of its common stock, which shares were issued on July 5, 2006. See Note 6, “Subsequent Events – Status of the Offering.”
As a result of the merger, the Company succeeded, without other transfer, to all of the rights and assets of KBS REIT. The Company also became subject to all of the debts and liabilities of KBS REIT in the same manner as if the Company itself had incurred those debts and liabilities. As of June 15, 2005, the effective date of the merger, the Company directly owned all of the interests in KBS REIT Holdings LLC, a Delaware limited liability company (“KBS REIT Holdings”). Also as of June 15, 2005, the Company became the sole general partner of and directly owned a 0.1% partnership interest in KBS Limited Partnership, a Delaware limited partnership (the “Operating Partnership”). KBS REIT Holdings owned the remaining 99.9% partnership interest in the Operating Partnership and was the sole limited partner of the Operating Partnership.
In connection with securing financing for a property acquisition, on June 29, 2006, KBS REIT Holdings transferred the majority of its partnership interests in the Operating Partnership to the Company. As a result of the transfer, KBS REIT Holdings retained a 1% partnership interest in the Operating Partnership and remained the sole limited partner of the Operating Partnership, and the Company, as sole general partner, became the direct owner of the remaining 99% partnership interest in the Operating Partnership. As of June 30, 2006, the Operating Partnership had no real estate operations. The Company anticipates that it will conduct substantially all of its operations through the Operating Partnership.
The Company expects to invest in a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located throughout the United States. All such real estate assets may be acquired directly by the Company or the Operating Partnership, though the Company may invest in other entities that make similar investments. The Company also intends to make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance investments. Subject to certain restrictions and limitations, the business of the Company will be managed by the Advisor pursuant to the Advisory Agreement the Company entered
F-6
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
1. ORGANIZATION (CONTINUED)
with the Advisor on November 8, 2005 (the “Advisory Agreement”). The term of the Advisory Agreement ends after one year but may be renewed for an unlimited number of one-year periods upon the mutual consent of the Advisor and the Company. Either party may terminate the Advisory Agreement upon 60 days’ written notice.
On June 23, 2005, the Company filed a registration statement on Form S-11 with the Securities and Exchange Commission (the “SEC”) to offer a minimum of 250,000 shares (the “Minimum Number of Shares”) and a maximum of 280,000,000 shares of common stock for sale to the public (the “Offering”), of which 80,000,000 shares would be offered pursuant to the Company’s dividend reinvestment plan. The SEC declared the Company’s registration statement effective on January 13, 2006 and the Company launched the Offering on January 27, 2006, upon retaining KBS Capital Markets Group LLC (the “Dealer Manager”), an affiliate of the Advisor, to serve as the dealer manager of the Offering. The Dealer Manager is responsible for marketing the Company’s shares in the Offering. The Company intends to use substantially all of the net proceeds from the Offering to invest in a diverse portfolio of real estate assets as described above.
As of June 30, 2006, neither the Company nor the Operating Partnership had purchased any properties. On March 28, 2006, the Advisor entered into a purchase and sale agreement with an unaffiliated seller to purchase a 120,500 rentable-square-foot office building located in Tampa, Florida (the “Sabal Pavilion Building”) for a gross purchase price of $24,250,000 plus closing costs. On April 26, 2006, this purchase and sale agreement was assigned by the Advisor to an indirect, wholly owned subsidiary of the Operating Partnership. The acquisition of the Sabal Pavilion Building was completed on July 7, 2006. See Note 6, “Subsequent Events – Acquisitions.”
On May 2, 2006, the Advisor entered into a purchase and sale agreement with an unaffiliated seller to purchase a 16-story office building containing approximately 325,172 rentable square feet (the “Plaza in Clayton”) located on an approximate 2.31-acre parcel of land at 190 Carondelet Plaza in St. Louis, Missouri. On August 11, 2006, this purchase and sale agreement was assigned by the Advisor to an indirect, wholly owned subsidiary of the Operating Partnership. The Company acquired the Plaza in Clayton on September 27, 2006 for a purchase price of $93,281,000, plus closing costs. See Note 6, “Subsequent Events – Acquisitions.”
On July 18, 2006, the Company purchased a $15,896,000 junior mezzanine loan (the “Tribeca Mezzanine Loan”) from an unaffiliated seller. The purchase price of the Tribeca Mezzanine Loan was $12,949,510 plus closing costs, which was the amount funded to the borrower under the loan to date. The Company is obligated to fund an additional $2,946,490 under the loan. The Tribeca Mezzanine Loan is being used by the borrower to fund soft costs related to the conversion of an eight-story loft building into a 10-story condominium building with 66 single-level to tri-level luxury condominium units (the “Tribeca Building”). The Tribeca Building is located at 415 Greenwich Street in New York, New York. See Note 6, “Subsequent Events – Acquisitions.”
F-7
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation and Basis of Presentation
The consolidated financial statements include the accounts of the Company, KBS REIT Holdings and the Operating Partnership. All significant intercompany balances and transactions are eliminated in consolidation. The financial statements of KBS REIT Holdings and the Operating Partnership are prepared using accounting policies consistent with those of the Company. The consolidated financial statements are prepared in accordance with the rules and regulations of the SEC, including the instructions to Form 10-Q and Article 10 of Regulation S-X. Certain information and footnote disclosures required by U.S. generally accepted accounting principles (“GAAP”) for complete financial statements have been condensed or omitted, although management believes the disclosures are adequate to make the information presented not misleading. In the opinion of management, the consolidated financial statements for the unaudited interim periods presented include all adjustments necessary to present a fair statement of the results for those periods. These consolidated financial statements should be read in conjunction with the balance sheet and notes thereto as of December 31, 2005 included in this supplement to the Company’s prospectus.
Use of Estimates
The preparation of the consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could materially differ from those estimates.
Cash and Cash Equivalents
The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents. Cash equivalents may include cash and short-term investments. Short-term investments are stated at cost, which approximates fair value. The Operating Partnership’s account balance exceeds federally insurable limits. The Company mitigates this risk by depositing funds with a major financial institution. There are no restrictions on the use of the Company’s cash as of June 30, 2006, except as set forth in Note 4, “Restricted Cash.”
Organization, Offering and Related Costs
Organization and offering costs of the Company are initially being paid by the Advisor, the Dealer Manager and their affiliates on behalf of the Company. These organization and offering costs include all expenses (other than selling commissions and the dealer manager fee) to be paid by the Company in connection with the Offering, including but not limited to (i) legal, accounting, printing, mailing and filing fees; (ii) charges of the escrow holder; (iii) reimbursement of the Dealer Manager for amounts it may pay to reimburse the bona fide diligence expenses of broker-dealers; (iv) reimbursement to the Advisor for the salaries of its employees and other costs in connection with preparing supplemental sales materials; (v) the cost of educational conferences held by the Company (including the travel, meal and
F-8
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Organization, Offering and Related Costs (Continued)
lodging costs of registered representatives of broker-dealers); and (vi) reimbursement to the Dealer Manager for travel, meals, lodging and attendance fees incurred by employees of the Dealer Manager to attend retail seminars conducted by broker-dealers. Pursuant to the Advisory Agreement and the Dealer Manager Agreement, the Company is obligated to reimburse the Advisor, the Dealer Manager or their affiliates, as applicable, for organization and offering costs associated with the Offering, provided that the Advisor is obligated to reimburse the Company to the extent selling commissions, the dealer manager fee and other organization and offering costs exceed 15% of gross offering proceeds. As of June 30, 2006, the Advisor and its affiliates have incurred on behalf of the Company organization and offering costs of approximately $2,928,000. These costs are only a liability of the Company to the extent selling commissions, the dealer manager fee and other organization and offering costs do not exceed 15% of the gross proceeds of the Offering. The Company has no obligation to reimburse the Advisor, the Dealer Manager or their affiliates for any organization and offering costs unless the Company sells the Minimum Number of Shares in the Offering. Although the Company had not broken escrow in the Offering at June 30, 2006, it had received gross offering proceeds of $5,401,069 for the purchase of 541,161 shares, an amount in excess of the Minimum Number of Shares required to break escrow. As a result, the Company accrued organization costs of $8,912, offering costs of $288,147 and selling commissions and dealer manager fees of $503,193 at June 30, 2006. The Company broke escrow in the Offering on July 5, 2006. See Note 6, “Subsequent Events – Status of the Offering.” Organization costs are expensed as incurred, and offering costs, which include selling commissions and dealer manager fees, are charged to stockholders’ equity as such amounts are reimbursed from the gross proceeds of the Offering.
Independent Director Compensation
The Company will pay each of the independent directors an annual retainer of $25,000. In addition, the independent directors will be paid for attending meetings as follows: (i) $2,500 for each board meeting attended, (ii) $2,000 for each committee meeting attended (except that the committee chairman will be paid $3,000 for each meeting attended), (iii) $1,000 for each teleconference board meeting attended, and (iv) $1,000 for each teleconference committee meeting attended (except that the committee chairman will be paid $3,000 for each teleconference committee meeting attended). All directors will also receive reimbursement of reasonable out-of-pocket expenses incurred in connection with attendance at meetings of the board of directors. At June 30, 2006, independent director fees payable were approximately $178,356. No independent director fees are payable unless the Company sells the Minimum Number of Shares in the Offering. Although the Company had not broken escrow in the Offering at June 30, 2006, it had received gross offering proceeds of $5,401,069 for the purchase of 541,161 shares, an amount in excess of the Minimum Number of Shares required to break escrow. As a result, the Company accrued for these fees and recorded them as general and administrative expense in the accompanying financial statements of the Company. Director compensation is an operating expense of the Company that is subject to the operating expense reimbursement obligation of the Advisor discussed in Note 3. Pursuant to the operating expense reimbursement obligation, the Advisor will reimburse the Company at the end of
F-9
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Independent Director Compensation (Continued)
any fiscal quarter for total operating expenses (as defined in Note 3) that in the four consecutive fiscal quarters then ended exceed the greater of 2% of its average invested assets or 25% of its net income for the year, unless the conflicts committee of the Company’s board of directors has determined that such excess expenses were justified based on unusual and non-recurring factors.
General and Administrative Expenses
General and administrative expenses, totaling $359,647 and $464,137, for the three and six months ended June 30, 2006, respectively, consisted primarily of insurance premiums, independent director fees and professional fees. To the extent included in the definition of total operating expenses (as set forth in Note 3), general and administrative expenses are an operating expense of the Company that is subject to the operating expense reimbursement obligation of the Advisor discussed in Note 3. Pursuant to the operating expense reimbursement obligation, the Advisor will reimburse the Company at the end of any fiscal quarter for total operating expenses that in the four consecutive fiscal quarters then ended exceed the greater of 2% of its average invested assets or 25% of its net income for the year, unless the conflicts committee of the Company’s board of directors has determined that such excess expenses were justified based on unusual and non-recurring factors.
Income Taxes
The Company intends to elect to be taxed as a REIT under the Internal Revenue Code of 1986, as amended, and intends to operate as such beginning with its taxable year ending December 31, 2006. To qualify as a REIT, the Company must meet certain organizational and operational requirements, including a requirement to distribute at least 90% of the Company’s annual REIT taxable income to stockholders (which is computed without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). As a REIT, the Company generally will not be subject to federal income tax on income that it distributes to stockholders. If the Company fails to qualify as a REIT in any taxable year, it will be subject to federal income tax on its taxable income at regular corporate income tax rates and generally will not be permitted to qualify for treatment as a REIT for federal income tax purposes for the four taxable years following the year during which qualification is lost unless the Internal Revenue Service grants the Company relief under certain statutory provisions. Such an event could materially adversely affect the Company’s net income and net cash available for distribution to stockholders. However, the Company intends to organize and operate in such a manner as to qualify for treatment as a REIT. The Company was not a REIT for its 2005 taxable year.
F-10
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Per Share Data
Loss per basic share of common stock is calculated by dividing net loss by the weighted-average number of shares of common stock issuable and outstanding during such period. Shares issuable and outstanding include both shares issued and outstanding at June 30, 2006 and shares issuable upon breaking escrow. Diluted loss per share of common stock equals basic loss per share of common stock as there were no potentially dilutive shares of common stock for the three and six months ended June 30, 2006.
Recently Issued Accounting Standards
In July 2006, the Financial Accounting Standards Board (the “FASB”) issued Interpretation No. 48, “Accounting for Uncertainty in Income Taxes” (“FIN 48”). This interpretation, among other things, creates a two step approach for evaluating uncertain tax positions. Recognition (step one) occurs when an enterprise concludes that a tax position, based solely on its technical merits, is more-likely-than-not to be sustained upon examination. Measurement (step two) determines the amount of benefit that more-likely-than-not will be realized upon settlement. Derecognition of a tax position that was previously recognized would occur when a company subsequently determines that a tax position no longer meets the more-likely-than-not threshold of being sustained. FIN 48 specifically prohibits the use of a valuation allowance as a substitute for derecognition of tax positions, and it has expanded disclosure requirements. FIN 48 is effective for fiscal years beginning after December 15, 2006, in which the impact of adoption should be accounted for as a cumulative-effect adjustment to the beginning balance of retained earnings. The Company is evaluating FIN 48 and has not yet determined the impact the adoption will have on the consolidated financial statements.
3. RELATED PARTY TRANSACTIONS
Fees to Affiliates
On November 8, 2005, the Company executed an Advisory Agreement with the Advisor, and on January 27, 2006, upon the launch of the Offering, the Company executed a Dealer Manager Agreement with the Dealer Manager. These agreements entitle the Advisor and the Dealer Manager to specified fees upon the provision of certain services with regard to the Offering and the investment of
F-11
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
3. RELATED PARTY TRANSACTIONS (CONTINUED)
Fees to Affiliates (Continued)
funds in real estate assets, among other services, as well as reimbursement of organization and offering costs incurred by the Advisor, the Dealer Manager and their affiliates on behalf of the Company (as discussed in Note 2) and certain costs incurred by the Advisor in providing services to the Company. The fees and reimbursement obligations are as follows:
| | |
| Form of Compensation | | Amount |
| Selling Commission | | The Company will pay the Dealer Manager up to 6% of the gross offering proceeds (3% for sales of shares under the dividend reinvestment plan) before reallowance of commissions earned by participating broker-dealers. The Dealer Manager will reallow 100% of commissions earned to participating broker-dealers. Assuming all shares are sold at the highest possible selling commissions (with no discounts to any categories of purchasers) and a $9.50 price for each share sold through the dividend reinvestment plan, estimated selling commissions are approximately $150,000 if the Company sells the minimum of 250,000 shares and approximately $142,800,000 if the Company sells the maximum of 280,000,000 shares. |
| |
| Dealer Manager Fee | | The Company will pay the Dealer Manager 3.5% of gross offering proceeds. No dealer manager fee is payable on shares sold under the dividend reinvestment plan. The Dealer Manager may reallow to any participating broker-dealer up to 1% of the gross offering proceeds attributable to that participating broker-dealer as a marketing fee. The estimated dealer manager fee is approximately $87,500 if the Company sells the minimum of 250,000 shares and approximately $70,000,000 if the Company sells the maximum of 280,000,000 shares. |
F-12
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
3. RELATED PARTY TRANSACTIONS (CONTINUED)
Fees to Affiliates (Continued)
| | |
| Form of Compensation | | Amount |
| |
Reimbursement of Organization
and Offering Expenses | | The Company will reimburse the Advisor or its affiliates for organization and offering expenses (as discussed in Note 2) incurred by the Advisor or its affiliates on behalf of the Company to the extent that reimbursement would not cause selling commissions, the dealer manager fee and the other organization and offering expenses borne by the Company to exceed 15% of gross offering proceeds as of the date of reimbursement. The Company estimates organization and offering costs of approximately $137,500 if the Company sells the minimum of 250,000 shares and approximately $22,400,000 if the Company sells the maximum of 280,000,000 shares. |
| |
| Acquisition Fee | | The Company will pay the Advisor 0.75% of the cost of investments acquired, including acquisition expenses and any debt attributable to such investments. |
| |
| Asset Management Fee* | | The Company will pay the Advisor a monthly asset management fee equal to one-twelfth of 0.75% of the sum of the cost of all real estate investments the Company owns and of the Company’s investments in joint ventures, including acquisition fees, acquisition expenses and any debt attributable to such investments. |
| |
Reimbursement of Operating
Expenses* | | The Company will reimburse the expenses incurred by the Advisor or its affiliates in connection with their provision of services to the Company, including the Company’s allocable share of the Advisor’s overhead, such as rent, personnel costs, utilities and IT costs. However, the Company will not reimburse the Advisor or its affiliates for personnel costs in connection with services for which the Advisor or its affiliates receive acquisition fees or disposition fees. |
| |
Stock-based Compensation
Awards* | | The Company may issue stock-based awards to affiliates of the Advisor. |
F-13
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
3. RELATED PARTY TRANSACTIONS (CONTINUED)
Fees to Affiliates (Continued)
| | |
| Form of Compensation | | Amount |
| Disposition Fee | | For substantial assistance in connection with the sale of properties or other investments, the Company will pay the Advisor or its affiliate a disposition fee of 1% of the contract sales price of the properties or other investments sold. However, in no event may the real estate commissions paid to the Advisor, its affiliates and unaffiliated third parties exceed 6% of the contract sales price of the properties or other investments sold. |
| |
Subordinated Participation in Net
Cash Flows* | | After investors receive a return of their net capital contributions and an 8.0% per year cumulative, noncompounded return, the Advisor is entitled to receive 15.0% of the net cash flows produced by the Company, whether from continuing operations, net sale proceeds or otherwise. |
| |
Subordinated Incentive Listing
Fee | | Upon listing the Company’s common stock on a national securities exchange or the Nasdaq National Market, the Advisor or its affiliates will receive 15% of the amount by which (1) the market value of the Company’s outstanding stock plus distributions paid by the Company prior to listing exceeds (2) the sum of invested capital and the amount of cash flow necessary to generate an 8.0% per year cumulative, noncompounded return to stockholders. |
| * | The Advisor will reimburse the Company at the end of any fiscal quarter for total operating expenses that in the four consecutive fiscal quarters then ended exceed the greater of 2% of its average invested assets or 25% of its net income for such year, unless the conflicts committee of the Company’s board of directors has determined that such excess expenses were justified based on unusual and non-recurring factors. “Average invested assets” means the average monthly book value of the Company’s assets during the 12-month period before deducting depreciation, bad debts or other non-cash reserves. “Total operating expenses” means all expenses paid or incurred by the Company, as determined under GAAP, that are in any way related to the Company’s operation, including advisory fees, but excluding (a) the expenses of raising capital such as organization and offering expenses, legal, audit, accounting, underwriting, brokerage, listing, registration and other fees, printing and other such expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s stock; (b) interest payments; (c) taxes; (d) non-cash expenditures such as depreciation, amortization and bad debt reserves; (e) reasonable incentive fees based on the gain in the sale of the Company’s assets; and (f) acquisition fees, acquisition expenses (including expenses relating to potential acquisitions that the Company does not close), real estate commissions on the resale of property and other |
F-14
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
3. RELATED PARTY TRANSACTIONS (CONTINUED)
Fees to Affiliates (Continued)
expenses connected with the acquisition, disposition, management and ownership of real estate interests, mortgage loans or other property (including the costs of foreclosure, insurance premiums, legal services, maintenance, repair and improvement of property). To the extent the Advisor receives the fee described above at “Subordinated Participation in Net Cash Flows” and such fee is derived from cash flows other than net sales proceeds, that fee may be limited by the restriction on “total operating expenses.” In addition, stock-based awards treated as an expense under GAAP will count toward the restriction on “total operating expenses.”
Conflicts of Interest
All of the Company’s executive officers and some of its directors are also executive officers, managers and/or holders of a direct or indirect controlling interest in the Advisor, the Dealer Manager and other KBS-affiliated entities. Through KBS-affiliated entities, these persons also serve as investment advisers to institutional investors in real estate and real estate-related assets. As a result, they owe fiduciary duties to each of these entities, their members and limited partners and these investors, which fiduciary duties may from time to time conflict with the fiduciary duties that they owe to the Company and its stockholders.
Some of the material conflicts that the Advisor, the Dealer Manager or its affiliates will face are 1) the determination of whether an investment opportunity should be recommended to the Company or another KBS-sponsored program or KBS-advised investor; 2) the allocation of the time of key executive officers, directors, and other real estate professionals among the Company, other KBS-sponsored programs and KBS-advised investors, and the activities in which they are involved; 3) the fees received by the Advisor and its affiliates in connection with transactions involving the purchase, management and sale of properties regardless of the quality of the property acquired or the service provided the Company; and 4) the fees received by the Advisor, the Dealer Manager, and its affiliates in connection with the Company’s public offering of equity securities.
Due to Affiliates
As of June 30, 2006, $1,009,418 was payable to the Advisor or an affiliate of the Advisor primarily for reimbursement of insurance premiums and organization and offering expenses, which includes amounts payable for selling commissions and dealer manager fees related to offering proceeds received for the purchase of shares of the Company’s common stock.
4. RESTRICTED CASH
Restricted cash as of June 30, 2006 consisted of offering proceeds amounting to $5,401,069 maintained in an escrow account on behalf of the Company. Such restricted cash represents offering proceeds received
F-15
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
4. RESTRICTED CASH (CONTINUED)
to purchase shares of the Company’s common stock, which shares, on an aggregate basis, exceeded the Minimum Number of Shares required to break escrow; however, the Company elected to delay the breaking of escrow until July 5, 2006, shortly before the purchase of its first investment. See Note 6, “Subsequent Events – Status of the Offering.”
5. ECONOMIC DEPENDENCY
The Company is dependent on the Advisor and the Dealer Manager for certain services that are essential to the Company, including the sale of the Company’s shares of common and preferred stock available for issue; the identification, evaluation, negotiation, purchase and disposition of properties; management of the daily operations of the Company’s real estate portfolio; and other general and administrative responsibilities. In the event that these companies are unable to provide the respective services, the Company will be required to obtain such services from other sources.
6. SUBSEQUENT EVENTS
Status of the Offering
As of July 5, 2006, the Company’s escrow agent had received approximately $5.45 million of gross offering proceeds to purchase 546,035 shares of its common stock, which is sufficient to satisfy the minimum offering amount in the Company’s Offering. On July 5, 2006, the Company instructed the escrow agent to transfer all proceeds in the escrow account, less interest, to the Company. As of October 4, 2006, the Company had received $25.6 million of gross proceeds in the Offering to purchase shares of common stock.
Acquisitions
On July 7, 2006, the Company purchased the Sabal Pavilion Building, a four-story office building containing approximately 120,500 rentable square feet, from an unaffiliated seller. The Sabal Pavilion Building is located on an 11.9-acre parcel of land at 3620 Queen Palm Drive in Tampa, Florida. The purchase price of the Sabal Pavilion Building was approximately $24,250,000, plus closing costs.
In connection with the acquisition of the Sabal Pavilion Building, the Company obtained a $14,700,000 fixed rate mortgage loan from Wells Fargo Bank. The loan matures on August 1, 2036 and bears interest at a rate of 6.38% per annum. This loan is secured by the Sabal Pavilion Building. Also in connection with the acquisition, the Company obtained a $4,898,000 mezzanine loan from Wells Fargo Bank secured by a 100% equity interest in the wholly-owned subsidiary that holds title to the property. This loan matures on January 7, 2007 and bears interest at a variable rate equal to LIBOR plus 225 basis points. On October 5, 2006, the Company paid off the principal amount outstanding under the loan.
F-16
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
6. SUBSEQUENT EVENTS (CONTINUED)
Acquisitions (Continued)
The Company also borrowed $5,572,137 from KBS Holdings LLC in connection with the purchase of the Sabal Pavilion Building. KBS Holdings LLC is a limited liability company that is wholly owned by the Company’s sponsors, each of whom is an officer and/or director of the Company. Pursuant to the promissory note entered in connection with this loan, the Company agreed to repay any advances, up to an aggregate principal amount of $10,000,000, plus any interest on the unpaid principal advanced under the note, by July 6, 2008. KBS Holdings may, upon written demand, require the Company to prepay outstanding amounts under the promissory note, in whole or in part, provided that funds are available from the proceeds of the Offering. Pursuant to the promissory note, funds are deemed available from the Offering if the Company has not used or become contractually obligated to use such proceeds for another purpose, including the repayment of third-party debt related to the properties or other assets the Company acquires. The promissory note is unsecured. The unpaid principal under the promissory note bears simple interest from the date advanced at the rate of 6% per annum. After a subsequent draw of $2,875,000 under the promissory note in connection with the acquisition of the Tribeca Mezzanine Loan (defined below) and a $2,500,000 partial payment on principal under the note, as of October 5, 2006, the Company had $5,947,137 of principal outstanding under the note.
On July 18, 2006, the Company purchased a $15,896,000 junior mezzanine loan (the “Tribeca Mezzanine Loan”) from an unaffiliated seller. The purchase price of the Tribeca Mezzanine Loan was $12,949,510 plus closing costs, which was the amount funded to the borrower under the loan to date. The Company is obligated to fund an additional $2,946,490 under the loan for future soft costs. The Tribeca Mezzanine Loan bears interest at a variable rate equal to LIBOR plus 850 basis points and has an initial maturity date of March 1, 2008 with a one-year extension option subject to the payment of an extension fee and certain other conditions. Prior to the maturity date, the borrower under the Tribeca Mezzanine Loan is required to make monthly interest-only payments to the Company, with the outstanding principal balance being due on the maturity date (or on the extended maturity date, if applicable). In addition, the borrower under the Tribeca Mezzanine Loan shall pay the Company an amount that brings the annualized internal rate of return on the Tribeca Mezzanine Loan to 25% prior to satisfaction of the loan. The Tribeca Mezzanine Loan is being used to fund future soft costs related to the conversion of an eight-story loft building into a 10-story condominium building with 66 single-level to tri-level luxury condominium units (the “Tribeca Building”). The Tribeca Building is located at 415 Greenwich Street in New York, New York. There is approximately $125,000,000 of senior financing on the project.
The acquisition of the Tribeca Mezzanine Loan was funded with proceeds from a $7,122,231 repurchase agreement with Greenwich Capital Financial Products, Inc., a $2,875,000 advance under the loan from KBS Holdings (which loan is described above) and with proceeds from the Company’s initial public offering. The financing under the repurchase agreement with Greenwich Capital Financial Products, Inc. matures on July 17, 2007, but may be accelerated on any event of default and may be prepaid by the Company subject to certain conditions. The financing bears interest at a rate of 30-day LIBOR plus 200 basis points, reset monthly, prior to any event of default. This financing is effectively secured under the repurchase agreement by principal and interest payments on the Tribeca Mezzanine Loan.
F-17
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
6. SUBSEQUENT EVENTS (CONTINUED)
Acquisitions (Continued)
On September 27, 2006, the Company purchased the Plaza in Clayton, a 16-story office building containing approximately 325,172 rentable square feet, from an unaffiliated seller. The Plaza in Clayton is located on an 2.31-acre parcel of land at 190 Carondelet Plaza in St. Louis, Missouri (which parcel includes a condominium tower that is not the subject of the purchase and sale agreement). The purchase price of the Plaza in Clayton was approximately $93,281,000, plus closing costs.
In connection with the acquisition of the Plaza in Clayton, the Company obtained a $62,200,000 fixed rate mortgage loan from Greenwich Capital Financial Products, Inc. The loan matures on October 6, 2016 and bears interest at a fixed rate of 5.899% per annum. This loan is secured by the Plaza in Clayton. The Company also obtained a $22,300,000 mezzanine loan from Greenwich Capital Financial Products, Inc. secured by a 100% equity interest in the Company’s indirect wholly-owned subsidiary that holds title to the property. This loan matures on October 6, 2016 and bears interest at a variable rate. The interest rate for the first full eight months is 30-day LIBOR plus 150 basis points and for the next four months is 30-day LIBOR plus 250 to 350 basis points depending upon the outstanding balance on the debt. After the first twelve months, the interest rate increases on a sliding scale of LIBOR plus 500 basis points to LIBOR plus 1000 basis points depending on the period of time the debt is outstanding. The full amount of the mezzanine loan has been guaranteed by the Operating Partnership.
Dividends and Amendment to Advisory Agreement
On July 18, 2006, the Company’s board of directors declared a daily dividend for the period from July 18, 2006 through July 31, 2006, which dividend was paid in cash in August 2006. The board also declared a daily dividend for the period from August 1, 2006 through August 31, 2006, which dividend was paid in cash in September 2006. On August 8, 2006, the Company’s board of directors declared a daily dividend for the period from September 1, 2006 through September 30, 2006, which dividend will be paid in cash in October 2006, and a daily dividend for the period from October 1, 2006 through October 31, 2006, which dividend will be paid in cash in November 2006. The dividends will be calculated based on stockholders of record each day during these periods at a rate of $0.0019178 per share per day and will equal a daily amount that, if paid each day for a 365-day period, would equal a 7.0% annualized rate based on a purchase price of $10.00 per share.
In order that the Company’s investors could begin earning cash dividends, the Company and its Advisor entered into an amendment to the Advisory Agreement. Pursuant to the amendment, the Advisor has agreed to advance funds to the Company equal to the cumulative amount of distributions declared by the Company from inception through October 31, 2006 less the amount of the Company’s funds from operations (as defined by NAREIT) from January 1, 2006 through October 31, 2006, provided that in no event will the amount of the advance be more than the cumulative amount of distributions declared by the Company from inception through October 31, 2006. The Advisor agreed that the Company will only be
F-18
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, 2006
(unaudited)
6. SUBSEQUENT EVENTS (CONTINUED)
Dividends and Amendment to Advisory Agreement (Continued)
obligated to reimburse the Advisor for these expenses if and to the extent that the Company’s cumulative funds from operations for the period commencing January 1, 2006 through the date of any such reimbursement exceed the lesser of (i) the cumulative amount of any distributions declared and payable to the Company’s stockholders as of the date of such reimbursement or (ii) an amount that is equal to a 7.0% cumulative, non-compounded, annual return on invested capital for the Company’s stockholders for the period from July 18, 2006 through the date of such reimbursement. No interest will accrue on the advance being made by the Advisor.
F-19
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholder of
KBS Real Estate Investment Trust, Inc.
We have audited the accompanying consolidated balance sheet of KBS Real Estate Investment Trust, Inc. (the “Company”) as of December 31, 2005. The consolidated balance sheet is the responsibility of the Company’s management. Our responsibility is to express an opinion on this consolidated balance sheet based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated balance sheet is free of material misstatement. We were not engaged to perform an audit of the Company’s internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated balance sheet, assessing the accounting principles used and significant estimates made by management, and evaluating the overall consolidated balance sheet presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated balance sheet referred to above presents fairly, in all material respects, the financial position of KBS Real Estate Investment Trust, Inc. at December 31, 2005 in conformity with U.S. generally accepted accounting principles.
| | |
| | | /s/ Ernst & Young LLP |
| |
Irvine, California | | |
March 24, 2006 | | |
F-20
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED BALANCE SHEET
December 31, 2005
| | | |
Assets | | | |
Cash | | $ | 200,000 |
| | | |
Total assets | | $ | 200,000 |
| | | |
Liabilities and stockholder’s equity | | | |
| |
Liabilities | | | |
| |
Total liabilities | | $ | — |
| |
Commitments and contingencies | | | |
| |
Stockholder’s equity | | | |
| |
Preferred stock, $.01 par value; 10,000,000 shares authorized, no shares issued and outstanding | | | — |
Common stock, $.01 par value; 1,000,000,000 shares authorized, 20,000 shares issued and outstanding | | | 200 |
Additional paid-in capital | | | 199,800 |
| | | |
Total stockholder’s equity | | | 200,000 |
| | | |
Total liabilities and stockholder’s equity | | $ | 200,000 |
| | | |
See accompanying notes to consolidated balance sheet.
F-21
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET
December 31, 2005
1. ORGANIZATION
KBS Realty Corporation was formed on June 13, 2005 as a Maryland corporation that intends to qualify as a real estate investment trust (“REIT”). On June 15, 2005, KBS Realty Corporation and KBS Real Estate Investment Trust, Inc., a Maryland corporation (“KBS REIT”), filed Articles of Merger (the “Articles of Merger”) with the State of Maryland. Pursuant to the Articles of Merger, KBS REIT was merged into KBS Realty Corporation with KBS Realty Corporation surviving the merger, and KBS Realty Corporation’s name was changed to KBS Real Estate Investment Trust, Inc. (the “Company”).
Prior to the merger, KBS Capital Advisors LLC (the “Advisor”) owned 20,000 shares of common stock of KBS REIT, which were all of the outstanding shares of KBS REIT. Pursuant to the Articles of Merger, the Advisor’s 20,000 shares in KBS REIT were converted on a one-for-one basis into shares of common stock of the Company. As of December 31, 2005, the 20,000 shares of common stock owned by the Advisor were the only issued and outstanding shares of the Company.
As a result of the merger, the Company succeeded, without other transfer, to all of the rights and assets of KBS REIT. The Company also became subject to all of the debts and liabilities of KBS REIT in the same manner as if the Company itself had incurred those debts and liabilities. As of June 15, 2005, the effective date of the merger, the Company directly owned all of the interests in KBS REIT Holdings LLC, a Delaware limited liability company (“KBS REIT Holdings”). Also as of June 15, 2005, the Company became the sole general partner of and directly owned a 0.1% general partnership interest in KBS Limited Partnership, a Delaware limited partnership (the “Operating Partnership”). The Company, through KBS REIT Holdings, also became the sole limited partner of the Operating Partnership, owning a 99.9% limited partnership interest in the Operating Partnership. As of December 31, 2005, the Operating Partnership had no operations and no assets other than the partners’ initial capital contributions of $196,997. The Company anticipates that it will conduct substantially all of its operations through the Operating Partnership.
The Company expects to invest in a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located throughout the United States. All such real estate assets may be acquired directly by the Company or the Operating Partnership, though the Company may invest in other entities that make similar investments. The Company may also make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance investments. Subject to certain restrictions and limitations, the business of the Company will be managed by the Advisor pursuant to the Advisory Agreement the Company entered with the Advisor on November 8, 2005. The term of the Advisory Agreement ends after one year but may be renewed for an unlimited number of one-year periods upon the mutual consent of the Advisor and the Company. Either party may terminate the Advisory Agreement upon 60 days’ written notice.
On June 23, 2005, the Company filed a registration statement on Form S-11 with the Securities and Exchange Commission (the “SEC”) to offer a minimum of 250,000 shares (the “Minimum Number of Shares”) and a maximum of 280,000,000 shares of common stock for sale to the public (the “Offering”), of which 80,000,000 shares would be offered pursuant to the Company’s dividend reinvestment plan. The SEC declared the Company’s registration statement effective on January 13, 2006 and the Company launched the Offering on January 27, 2006, upon retaining KBS Capital Markets Group LLC (the “Dealer Manager”), an affiliate of the Advisor, to serve as the dealer manager of the Offering. The Dealer Manager is responsible for marketing the Company’s shares in the Offering. The Company intends to use substantially all of the net proceeds from the Offering to invest in a diverse portfolio of real estate assets as described above.
F-22
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
1. ORGANIZATION (CONTINUED)
As of December 31, 2005, neither the Company nor the Operating Partnership had purchased or contracted to purchase any properties. Also as of December 31, 2005, the Advisor had not identified any properties in which there was a reasonable probability that the Company or the Operating Partnership would invest.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation and Basis of Presentation
The consolidated balance sheet includes the accounts of the Company, KBS REIT Holdings and the Operating Partnership. The balance sheets of KBS REIT Holdings and the Operating Partnership are prepared using accounting policies consistent with those of the Company. All significant intercompany balances and transactions are eliminated in consolidation.
Use of Estimates
The preparation of the consolidated balance sheet in conformity with U.S. generally accepted accounting principles (“GAAP”) requires management to make estimates and assumptions that affect the amounts reported in the consolidated balance sheet and accompanying notes. Actual results could materially differ from those estimates.
Cash and Cash Equivalents
The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents. Cash equivalents may include cash and short-term investments. Short-term investments are stated at cost, which approximates fair value. The Operating Partnership’s account balance exceeds federally insurable limits. The Company mitigates this risk by depositing funds with a major financial institution. There are no restrictions on the use of the Company’s cash as of December 31, 2005.
Real Estate Purchase Price Allocation
In accordance with Statement of Financial Accounting Standards (“SFAS”) No. 141 “Business Combinations,” the Company will record above-market and below-market in-place lease values for acquired properties based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (i) the contractual amounts to be paid pursuant to the in-place leases and (ii) management’s estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining non-cancelable term of the lease. The Company will amortize any capitalized above-market lease values as a reduction of rental income over the remaining non-cancelable terms of the respective leases. The Company will amortize any capitalized below-market lease values as an increase to rental income over the initial term and any fixed-rate renewal periods in the respective leases.
The Company will measure the aggregate value of other intangible assets acquired based on the difference between (i) the property valued with existing in-place leases adjusted to market rental rates and
F-23
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Real Estate Purchase Price Allocation (Continued)
(ii) the property valued as if vacant. Management’s estimates of value are expected to be made using methods similar to those used by independent appraisers (e.g., discounted cash flow analysis). Factors to be considered by management in its analysis include an estimate of carrying costs during hypothetical expected lease-up periods considering current market conditions and costs to execute similar leases.
The Company will also consider information obtained about each property as a result of its pre-acquisition due diligence, marketing and leasing activities in estimating the fair value of the tangible and intangible assets acquired. In estimating carrying costs, management will also include real estate taxes, insurance and other operating expenses and estimates of lost rentals at market rates during the expected lease-up periods. Management will also estimate costs to execute similar leases including leasing commissions and legal and other related expenses to the extent that such costs are not already incurred in connection with a new lease origination as part of the transaction.
The total amount of other intangible assets acquired will be further allocated to in-place lease values and customer relationship intangible values based on management’s evaluation of the specific characteristics of each tenant’s lease and the Company’s overall relationship with that respective tenant. Characteristics to be considered by management in allocating these values include the nature and extent of the Company’s existing business relationships with the tenant, growth prospects for developing new business with the tenant, the tenant’s credit quality and expectations of lease renewals (including those existing under the terms of the lease agreement), among other factors.
The Company will amortize the value of in-place leases to expense over the initial term of the respective leases. The value of customer relationship intangibles will be amortized to expense over the initial term and any renewal periods in the respective leases, but in no event will the amortization period for intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and customer relationship intangibles would be charged to expense.
Investment in Real Estate Assets
Costs related to the acquisition, development, construction and improvement of properties will be capitalized. Repair and maintenance costs will be charged to expense as incurred and significant replacements and betterments will be capitalized. Repair and maintenance costs include all costs that do
F-24
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Investment in Real Estate Assets (Continued)
not extend the useful life of the real estate asset. The Company considers the period of future benefit of an asset to determine its appropriate useful life. The Company anticipates the estimated useful lives of its assets by class to be as follows:
| | |
Buildings | | 25 - 40 years |
Building improvements | | 10 - 25 years |
Land improvements | | 20 - 25 years |
Tenant Improvements | | Lease term |
Valuation of Real Estate Assets
The Company will continually monitor events and changes in circumstances that could indicate that the carrying amounts of its real estate assets, including those held through joint ventures, may not be recoverable. When indicators of potential impairment suggest that the carrying value of a real estate asset may not be recoverable, the Company will assess the recoverability of the asset by estimating whether the Company will recover the carrying value of the asset through its undiscounted future cash flows and its eventual disposition. If based on this analysis the Company does not believe that it will be able to recover the carrying value of the asset, the Company will record an impairment loss to the extent that the carrying value exceeds the estimated fair value of the asset.
Revenue Recognition
The Company will recognize minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, on a straight-line basis over the term of the related lease and it will include amounts expected to be received in later years in deferred rents. The Company will record property operating expense reimbursements due from tenants for common area maintenance, real estate taxes and other recoverable costs in the period the related expenses are incurred.
The Company will recognize gains on sales of real estate pursuant to the provisions of SFAS No. 66 “Accounting for Sales of Real Estate.” The specific timing of a sale will be measured against various criteria in SFAS No. 66 related to the terms of the transaction and any continuing involvement in the form of management or financial assistance associated with the property. If the sales criteria are not met, the Company will defer gain recognition and account for the continued operations of the property by applying the finance, installment or cost recovery methods, as appropriate, until the sales criteria are met.
Allowance for Rents and Other Receivables
The Company will periodically evaluate the collectibility of amounts due from tenants and maintain an allowance for doubtful accounts for estimated losses resulting from the inability of tenants to make required payments under lease agreements. The Company will maintain an allowance for deferred rent receivable that arises from the straight-lining of rents. The Company will exercise judgment in establishing these allowances and consider payment history and current credit status in developing these estimates.
F-25
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Stock-Based Compensation
The Company has adopted an Employee and Independent Director Incentive Stock Plan. The Company will account for such stock plan in accordance with SFAS No. 123R Share-Based Payment, which requires the fair value of the stock option to be recognized as compensation expense over the vesting period.
Distribution Policy
The Company intends to elect to be taxed as a REIT and to operate as a REIT beginning with its taxable year ending December 31, 2006. To maintain its qualification as a REIT, the Company intends to make distributions each taxable year equal to at least 90% of its REIT taxable income (which is determined without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). The Company expects to authorize, declare and pay dividends on a monthly basis.
Dividends to be distributed to stockholders will be determined by the board of directors of the Company and will be dependent upon a number of factors relating to the Company, including funds available for the payment of dividends, financial condition, the timing of property acquisitions, capital expenditure requirements, and annual distribution requirements in order to maintain the Company’s status as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”).
Organization, Offering and Related Costs
Organization and offering costs of the Company are initially being paid by the Advisor or the Dealer Manager on behalf of the Company. These organization and offering costs include all expenses (other than selling commissions and the dealer manager fee) to be paid by the Company in connection with the Offering, including but not limited to (i) legal, accounting, printing, mailing and filing fees; (ii) charges of the escrow holder; (iii) reimbursement of the Dealer Manager for amounts it may pay to reimburse the bona fide diligence expenses of broker-dealers; (iv) reimbursement to the Advisor for the salaries of its employees and other costs in connection with preparing supplemental sales materials; (v) the cost of educational conferences held by the Company (including the travel, meal and lodging costs of registered representatives of broker-dealers) and (vi) reimbursement to the Dealer Manager for travel, meals, lodging and attendance fees incurred by employees of the Dealer Manager to attend retail seminars conducted by broker-dealers. Pursuant to the Advisory Agreement and the Dealer Manager Agreement, the Company is obligated to reimburse the Advisor or the Dealer Manager, as applicable, for organization and offering costs associated with the Offering, provided that the Advisor is obligated to reimburse the Company to the extent selling commissions, the dealer manager fee and other organization and offering costs exceed 15% of gross offering proceeds. In the event the Minimum Number of Shares of the Company’s common stock is not sold to the public, the Company will terminate the Offering and will have no obligation to reimburse the Advisor or the Dealer Manager for any organization and offering costs. As of December 31, 2005, the Advisor has incurred on behalf of the Company organization and offering costs of approximately $2,220,693. These costs are not recorded in the financial statements of the Company as of December 31, 2005 because such costs are not a liability of the Company until the Minimum Number of Shares of the Company’s common stock is issued, and such costs will only become
F-26
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Organization, Offering and Related Costs (Continued)
a liability of the Company to the extent selling commissions, the dealer manager fee and other organization and offering costs do not exceed 15% of the gross proceeds of the Offering. When recorded by the Company, organization costs will be expensed as incurred, and offering costs will be deferred and charged to stockholder’s equity as such amounts are reimbursed to the Advisor or the Dealer Manager from the gross proceeds of the Offering.
Independent Director Compensation
The Company will pay each of the independent directors an annual retainer of $25,000. In addition, the independent directors will be paid for attending meetings as follows: (i) $2,500 for each board meeting attended, (ii) $2,000 for each committee meeting attended (except that the committee chairman will be paid $3,000 for each meeting attended), (iii) $1,000 for each teleconference board meeting attended, and (iv) $1,000 for each teleconference committee meeting attended (except that the committee chairman will be paid $3,000 for each teleconference committee meeting attended). All directors will also receive reimbursement of reasonable out-of-pocket expenses incurred in connection with attendance at meetings of the board of directors. No independent director fees are payable unless the Company sells the Minimum Number of Shares in its Offering. At December 31, 2005, independent director fees payable upon selling the Minimum Number of Shares were approximately $97,856. These fees are not recorded in the financial statements of the Company as of December 31, 2005 because such fees are not a liability of the Company until the Company sells the Minimum Number of Shares.
Income Taxes
The Company intends to elect to be taxed as a REIT under the Code and intends to operate as such beginning with its taxable year ending December 31, 2006. To qualify as a REIT, the Company must meet certain organizational and operational requirements, including a requirement to distribute at least 90% of the Company’s annual REIT taxable income to stockholders (which is computed without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). As a REIT, the Company generally will not be subject to federal income tax on income that it distributes to stockholders. If the Company fails to qualify as a REIT in any taxable year, it will be subject to federal income tax on its taxable income at regular corporate income tax rates and generally will not be permitted to qualify for treatment as a REIT for federal income tax purposes for the four taxable years following the year during which qualification is lost unless the Internal Revenue Service grants the Company relief under certain statutory provisions. Such an event could materially adversely affect the Company’s net income and net cash available for distribution to stockholders. However, the Company intends to organize and operate in such a manner as to qualify for treatment as a REIT.
F-27
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
3. STOCKHOLDER’S EQUITY
General
Under the Articles of Incorporation of the Company, the total number of shares of capital stock authorized for issuance is 1,010,000,000 shares, consisting of 1,000,000,000 shares of common stock and 10,000,000 shares of preferred stock, each as defined by the Company’s Articles of Incorporation.
The shares of common stock have a par value of $.01 per share and entitle the holders to one vote per share on all matters upon which stockholders are entitled to vote, to receive dividends and other distributions as authorized by the board of directors in accordance with the Maryland General Corporation Law and to all rights of a stockholder pursuant to the Maryland General Corporation Law. The common stock has no preferences or preemptive, conversion or exchange rights. As of December 31, 2005, the Company has authorized 1,000,000,000 shares of common stock and issued 20,000 shares of common stock.
The Company is authorized to issue one or more classes or series of preferred stock. Prior to the issuance of such shares, the board of directors shall have the power from time to time to classify or reclassify, in one or more series, any unissued shares and designate the preferences, rights and privileges of such shares. As of December 31, 2005, the Company has authorized 10,000,000 shares of preferred stock and none have been issued.
Employee and Independent Director Incentive Stock Plan
The Company has adopted an Employee and Independent Director Incentive Stock Plan to provide for the grant of awards to its employees (in the event it ever has employees), employees of the Advisor, employees of entities that provide services to the Company, the Company’s independent directors, managers or directors of the Advisor or of entities that provide services to the Company, certain of the Company’s consultants and certain consultants to the Advisor or to entities that provide services to the Company. Such awards may consist of nonqualified stock options, incentive stock options, restricted and unrestricted shares of stock, stock appreciation rights, phantom stock awards, dividend equivalent rights and other stock-based awards. The total number of shares of common stock reserved for issuance under the Employee and Independent Director Incentive Stock Plan is equal to 5% of the Company’s outstanding shares at any time but not to exceed 10,000,000 shares. At December 31, 2005, no awards had been granted under the plan.
Dividend Reinvestment Plan
The Company has adopted an amended and restated dividend reinvestment plan (the “DRP”) through which common stockholders may elect to reinvest an amount equal to the dividends declared on their shares in additional shares of the Company’s common stock in lieu of receiving cash dividends. The initial purchase price per share under the DRP will be $9.50. Three years after the completion of the offering stage, shares issued pursuant to the plan will be priced at the net asset value per share of the Company’s common stock, as estimated by the Advisor or a firm chosen for that purpose. The offering stage will be considered complete when the Company is no longer publicly offering equity securities and
F-28
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
3. STOCKHOLDER’S EQUITY (CONTINUED)
Dividend Reinvestment Plan (Continued)
has not done so for one year. The Company will pay 3% selling commissions in connection with sales of shares under the DRP to the extent it paid selling commissions on the shares to which the dividends relate. Otherwise, the Company will not pay selling commissions on the shares sold under the DRP. The Company will not pay any dealer manager fees in connection with shares sold under the DRP. The board of directors of the Company may amend or terminate the DRP for any reason, provided that any amendment that adversely affects the rights or obligations of a participant shall only take effect upon ten days’ written notice to participants.
Share Redemption Program
As the Company’s stock is currently not listed on a national exchange, there is no market for the Company’s stock. As a result, there is risk that a stockholder may not be able to sell the Company’s stock at a time or price acceptable to the stockholder.
On October 31, 2005, the Company’s board of directors approved (but delayed the adoption of) a share redemption program that would enable the Company’s stockholders to sell their shares to the Company in limited circumstances. However, the board of directors had not adopted the program at December 31, 2005 because the Company was seeking exemptive relief from the SEC from restrictions on issuer repurchases during a distribution. On February 16, 2006, the SEC granted the Company an exemption, based solely on the Company’s representations and the facts presented to the staff. On March 8, 2006, the Company’s board of directors adopted the share redemption program.
There are numerous restrictions on a stockholder’s ability to sell his or her shares to the Company under the program. Stockholders have to hold their shares for one year before selling their shares. In addition, the Company limits the number of shares redeemed pursuant to the share redemption program as follows: (1) during any calendar year, the Company will not redeem in excess of 5% of the weighted average number of shares outstanding during the prior calendar year and (2) funding for the redemption of shares comes exclusively from the net proceeds the Company received from the sale of shares under the dividend reinvestment plan during the prior calendar year. Further, the Company has no obligation to redeem shares if the redemption would violate the restrictions on distributions under Maryland law, which prohibit distributions that would cause a corporation to fail to meet statutory tests of solvency. These limits may prevent the Company from accommodating all requests made in any year. Initially, the Company would redeem shares at the lower of $9.00 or 90% of the price paid to acquire the shares from the Company. Three years after the completion of the Company’s offering stage, the redemption price per share would be equal to the net asset value per share of common stock, as estimated by the Advisor or another firm chosen for that purpose. The Company will consider its offering stage complete when it is no longer publicly offering equity securities and has not done so for one year. The share redemption program has different rules if shares are being redeemed in connection with the death of a stockholder. The Company’s board of directors can amend or terminate the share redemption program with 30 days’ advance notice.
F-29
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
4. RELATED PARTY TRANSACTIONS
On November 8, 2005, the Company executed an Advisory Agreement with the Advisor, and on January 27, 2006, upon the launch of the Offering, the Company executed a Dealer Manager Agreement with the Dealer Manager. These agreements entitle the Advisor and the Dealer Manager to specified fees upon the provision of certain services with regard to the Offering and the investment of funds in real estate assets, among other services, as well as reimbursement of organization and offering costs incurred by the Advisor and the Dealer Manager on behalf of the Company (as discussed in Note 2) and certain costs incurred by the Advisor in providing services to the Company. The fees and reimbursement obligations are as follows:
| | |
Form of Compensation | | Amount |
| Selling Commission | | The Company will pay the Dealer Manager up to 6% of the gross offering proceeds (3% for sales of shares under the dividend reinvestment plan) before reallowance of commissions earned by participating broker-dealers. The Dealer Manager will reallow 100% of commissions earned to participating broker-dealers. Assuming all shares are sold at the highest possible selling commissions (with no discounts to any categories of purchasers) and a $9.50 price for each share sold through the dividend reinvestment plan, estimated selling commissions are approximately $150,000 if the Company sells the minimum of 250,000 shares and approximately $142,800,000 if the Company sells the maximum of 280,000,000 shares. |
| |
| Dealer Manager Fee | | The Company will pay the Dealer Manager 3.5% of gross offering proceeds. No dealer manager fee is payable on shares sold under the dividend reinvestment plan. The Dealer Manager may reallow to any participating broker-dealer up to 1% of the gross offering proceeds attributable to that participating broker-dealer as a marketing fee. The estimated dealer management fee is approximately $87,500 if the Company sells the minimum of 250,000 shares and approximately $70,000,000 if the Company sells the maximum of 280,000,000 shares. |
F-30
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
4. RELATED PARTY TRANSACTIONS (CONTINUED)
| | |
Form of Compensation | | Amount |
| Reimbursement of Organization and Offering Expenses | | The Company will reimburse the Advisor or its affiliates for organization and offering expenses (as discussed in Note 2) incurred by the Advisor or its affiliates on behalf of the Company to the extent that reimbursement would not cause selling commissions, the dealer manager fee and the other organization and offering expenses borne by the Company to exceed 15% of gross offering proceeds as of the date of reimbursement. The Company estimates organization and offering costs of approximately $137,500 if the Company sells the minimum of 250,000 shares and approximately $22,400,000 if the Company sells the maximum of 280,000,000 shares. |
| |
| Acquisition Fee | | The Company will pay the Advisor 0.75% of the cost of investments acquired, including acquisition expenses and any debt attributable to such investments. |
| |
| Asset Management Fee* | | The Company will pay the Advisor a monthly asset management fee equal to one-twelfth of 0.75% of the sum of the cost of all real estate investments the Company owns and of the Company’s investments in joint ventures, including acquisition fees, acquisition expenses and any debt attributable to such investments. |
| |
| Reimbursement of Operating Expenses* | | The Company will reimburse the expenses incurred by the Advisor or its affiliates in connection with their provision of services to the Company, including the Company’s allocable share of the Advisor’s overhead, such as rent, personnel costs, utilities and IT costs. However, the Company will not reimburse the Advisor or its affiliates for personnel costs in connection with services for which the Advisor or its affiliates receive acquisition fees or disposition fees. |
| |
| Stock-based Compensation Awards* | | The Company may issue stock-based awards to affiliates of the Advisor. |
F-31
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
4. RELATED PARTY TRANSACTIONS (CONTINUED)
| | |
Form of Compensation | | Amount |
| Disposition Fee | | For substantial assistance in connection with the sale of properties or other investments, the Company will pay the Advisor or its affiliate a disposition fee of 1% of the contract sales price of the properties or other investments sold. However, in no event may the real estate commissions paid to the Advisor, its affiliates and unaffiliated third parties exceed 6% of the contract sales price of the properties or other investments sold. |
| |
| Subordinated Participation in Net Cash Flows* | | After investors receive a return of their net capital contributions and an 8.0% per year cumulative, noncompounded return, the Advisor is entitled to receive 15.0% of the net cash flows produced by the Company, whether from continuing operations, net sale proceeds or otherwise. |
| |
| Subordinated Incentive Listing Fee | | Upon listing the Company’s common stock on a national securities exchange or the Nasdaq National Market, the Advisor or its affiliates will receive 15% of the amount by which (1) the market value of the Company’s outstanding stock plus distributions paid by the Company prior to listing exceeds (2) the sum of invested capital and the amount of cash flow necessary to generate an 8.0% per year cumulative, noncompounded return to stockholders. |
| * | The Advisor must reimburse the Company the amount by which the Company’s aggregate annual total operating expenses exceed the greater of 2% of its average invested assets or 25% of its net income, unless the conflicts committee of the Company’s board of directors has determined that such excess expenses were justified based on unusual and non-recurring factors. “Average invested assets” means the average monthly book value of the Company’s assets during the 12-month period before deducting depreciation, bad debts or other non-cash reserves. “Total operating expenses” means all expenses paid or incurred by the Company, as determined under GAAP, that are in any way related to the Company’s operation, including advisory fees, but excluding (a) the expenses of raising capital such as organization and offering expenses, legal, audit, accounting, underwriting, brokerage, listing, registration and other fees, printing and other such expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s stock; (b) interest payments; (c) taxes; (d) non-cash expenditures such as depreciation, amortization and bad debt reserves; (e) reasonable incentive fees based on the gain in the sale of the Company’s assets; and (f) acquisition fees, acquisition expenses (including expenses relating to potential acquisitions that the Company does not close), real estate commissions on the resale of property and other expenses connected with the acquisition, disposition, management and ownership of real estate interests, mortgage loans or other property (including the costs of foreclosure, insurance premiums, legal services, maintenance, repair and improvement of property). To the extent the Advisor receives the fee described above at “Subordinated Participation in Net Cash Flows” and such fee is derived from cash flows other than net sales proceeds, that fee may be limited by the restriction on “total operating expenses.” In addition, stock-based awards treated as an expense under GAAP will count toward the restriction on “total operating expenses.” |
F-32
KBS REAL ESTATE INVESTMENT TRUST, INC.
NOTES TO CONSOLIDATED BALANCE SHEET (CONTINUED)
December 31, 2005
4. RELATED PARTY TRANSACTIONS (CONTINUED)
Conflicts of Interest
All of the Company’s executive officers and some of its directors are also executive officers, managers and/or holders of a direct or indirect controlling interest in the Advisor, the Dealer Manager and other KBS-affiliated entities. Through KBS-affiliated entities, these persons also serve as investment advisers to institutional investors in real estate and real estate-related assets. As a result, they owe fiduciary duties to each of these entities, their members and limited partners and these investors, which fiduciary duties may from time to time conflict with the fiduciary duties that they owe to the Company and its stockholders.
Some of the material conflicts that the Advisor, the Dealer Manager or its affiliates will face are 1) the determination of whether an investment opportunity should be recommended to the Company or another KBS-sponsored program or KBS-advised investor; 2) the allocation of the time of key executive officers, directors, and other real estate professionals among the Company, other KBS-sponsored programs and KBS-advised investors, and the activities in which they are involved; 3) the fees received by the Advisor and its affiliates in connection with transactions involving the purchase, management and sale of properties regardless of the quality of the property acquired or the service provided the Company; and 4) the fees received by the Advisor, the Dealer Manager, and its affiliates in connection with the Company’s public offering of equity securities.
5. ECONOMIC DEPENDENCY
The Company is dependent on the Advisor and the Dealer Manager for certain services that are essential to the Company, including the sale of the Company’s shares of common and preferred stock available for issue; the identification, evaluation, negotiation, purchase and disposition of properties; management of the daily operations of the Company’s real estate portfolio; and other general and administrative responsibilities. In the event that these companies are unable to provide the respective services, the Company will be required to obtain such services from other sources.
F-33
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
KBS Real Estate Investment Trust, Inc.
We have audited the accompanying statement of revenues over certain operating expenses of Sabal Pavilion for the year ended December 31, 2005. This statement is the responsibility of Sabal Pavilion’s management. Our responsibility is to express an opinion on the statement based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the statement of revenues over certain operating expenses is free of material misstatement. We were not engaged to perform an audit of Sabal Pavilion’s internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of Sabal Pavilion’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the statement of revenues over certain operating expenses, assessing the accounting principles used and significant estimates made by management, and evaluating the overall presentation of the statement of revenues over certain operating expenses. We believe that our audit provides a reasonable basis for our opinion.
The accompanying statement of revenues over certain operating expenses was prepared for the purpose of complying with the rules and regulations of the Securities and Exchange Commission, as described in Note 2, and is not intended to be a complete presentation of Sabal Pavilion’s revenues and expenses.
In our opinion, the statement of revenues over certain operating expenses referred to above presents fairly, in all material respects, the revenues and certain operating expenses, as described in Note 2, of Sabal Pavilion for the year ended December 31, 2005, in conformity with U.S. generally accepted accounting principles.
/s/ Ernst & Young LLP
Irvine, California
May 1, 2006
F-34
SABAL PAVILION BUILDING
STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
for the Six Months Ended June 30, 2006 (unaudited)
and the Year Ended December 31, 2005
| | | | | | |
| | | Six Months Ended June 30, 2006 | | Year Ended December 31, 2005 |
| | | (unaudited) | | |
Revenues: | | | | | | |
Base rent | | $ | 1,266,535 | | $ | 2,385,024 |
Tenant reimbursements | | | 160,053 | | | 297,549 |
Other revenues | | | 150 | | | 270 |
| | | | | | |
Total revenues | | | 1,426,738 | | | 2,682,843 |
| | |
Expenses: | | | | | | |
Repairs and maintenance | | | 79,407 | | | 167,779 |
Real estate taxes | | | 119,658 | | | 231,516 |
Utilities | | | 138,710 | | | 267,265 |
Janitorial | | | 75,203 | | | 149,013 |
Other operating expenses | | | 115,616 | | | 173,110 |
| | | | | | |
Total expenses | | | 528,594 | | | 988,683 |
| | | | | | |
Revenues over certain operating expenses | | $ | 898,144 | | $ | 1,694,160 |
| | | | | | |
See accompanying notes.
F-35
SABAL PAVILION BUILDING
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
for the Six Months Ended June 30, 2006 (unaudited)
and the Year Ended December 31, 2005
1. Description of Real Estate Property Acquired
On July 7, 2006, KBS Real Estate Investment Trust, Inc. (“KBS REIT”), through an indirectly wholly owned subsidiary, acquired the Sabal Pavilion (the “Sabal Pavilion Building”), a four-story building containing 120,500 square feet located in Tampa, Florida, from NCFLA II Owner LLC (“NCFLA”). Total consideration for the acquisition was approximately $24,250,000, plus closing costs. KBS REIT is a Maryland corporation formed to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. KBS REIT also intends to make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance investments.
2. Basis of Presentation
The accompanying statements of revenues over certain operating expenses have been prepared to comply with the rules and regulations of the Securities and Exchange Commission.
The Sabal Pavilion Building is not a legal entity and the accompanying statements are not representative of the actual operations for the periods presented, as certain revenues and expenses that may not be comparable to the revenues and expenses we expect to incur in the future operations of the Sabal Pavilion Building have been excluded. Excluded items consist of interest, depreciation and amortization, and general and administrative costs not directly comparable to the future operations of the Sabal Pavilion Building.
An audited statement of revenues over certain operating expenses is being presented for the most recent fiscal year available instead of the three most recent years based on the following factors: (i) the Sabal Pavilion Building was acquired from an unaffiliated party and (ii) based on due diligence of the Sabal Pavilion Building by KBS REIT, management is not aware of any material factors relating to the Sabal Pavilion Building that would cause this financial information not to be necessarily indicative of future operating results.
3. Significant Accounting Policies
Rental Revenues
KBS REIT will recognize minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, on a straight-line basis over the term of the related lease and it will include amounts expected to be received in later years in deferred rents. The adjustment to deferred rents decreased revenue by approximately $43,052 for the year ended December 31, 2005 and increased revenue by approximately $37,435 for the six months ended June 30, 2006.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of revenues and expenses during the reporting period. Actual results could materially differ from those estimates.
F-36
SABAL PAVILION BUILDING
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
for the Six Months Ended June 30, 2006 (unaudited)
and the Year Ended December 31, 2005 (continued)
4. Description of Leasing Arrangements
The Sabal Pavilion Building is 100% occupied by Ford Motor Credit Company (“Ford Motor Credit”) under a long-term lease agreement (the “Ford Motor Credit Lease”). Under the terms of the Ford Motor Credit Lease, Ford Motor Credit is required to reimburse all operating expenses in excess of a base year amount.
5. Future Minimum Rental Commitments
Future minimum rental commitments for the years ended December 31 are as follows (in thousands):
| | | |
2006 | | $ | 2,467 |
2007 | | | 2,513 |
2008 | | | 2,556 |
2009 | | | 2,607 |
2010 | | | 655 |
| | | |
| | $ | 10,798 |
| | | |
Ford Motor Credit contributed 100% of the rental income for the year ended December 31, 2005. It will also contribute 100% of the future minimum rental income until March 31, 2010, the lease expiration date. Ford Motor Credit has the right, at its option, to extend the initial term of its lease for two additional five-year periods commencing on April 1, 2010. The first extended term, if exercised, will expire on March 31, 2015. The second extended term, if exercised, will expire on March 31, 2020.
6. Interim Unaudited Financial Information
The statement of revenues over certain operating expenses for the six months ended June 30, 2006 is unaudited; however, in the opinion of management, all adjustments (consisting solely of normal, recurring adjustments) necessary for the fair presentation of the financial statement for the interim period have been included. The results of the interim period are not necessarily indicative of the results to be obtained for a full fiscal year.
F-37
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
KBS Real Estate Investment Trust, Inc.
We have audited the accompanying statement of revenues over certain operating expenses of the Plaza in Clayton for the year ended December 31, 2005. This statement is the responsibility of the Plaza in Clayton’s management. Our responsibility is to express an opinion on the statement based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the statement of revenues over certain operating expenses is free of material misstatement. We were not engaged to perform an audit of the Plaza in Clayton’s internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Plaza in Clayton’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the statement of revenues over certain operating expenses, assessing the accounting principles used and significant estimates made by management, and evaluating the overall presentation of the statement of revenues over certain operating expenses. We believe that our audit provides a reasonable basis for our opinion.
The accompanying statement of revenues over certain operating expenses was prepared for the purpose of complying with the rules and regulations of the Securities and Exchange Commission, as described in Note 2, and is not intended to be a complete presentation of the Plaza in Clayton’s revenues and expenses.
In our opinion, the statement of revenues over certain operating expenses referred to above presents fairly, in all material respects, the revenues and certain operating expenses, as described in Note 2, of the Plaza in Clayton for the year ended December 31, 2005, in conformity with U.S. generally accepted accounting principles.
/s/ Ernst & Young LLP
Irvine, California
September 29, 2006
F-38
THE PLAZA IN CLAYTON
STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
for the Six Months Ended June 30, 2006 (unaudited)
and the Year Ended December 31, 2005
| | | | | | |
| | | Six Months Ended June 30, 2006 | | Year Ended December 31, 2005 |
| | | (unaudited) | | |
Revenues: | | | | | | |
Base rent | | $ | 4,445,821 | | $ | 8,891,643 |
Parking income | | | 511,360 | | | 1,010,269 |
Tenant reimbursements | | | 269,673 | | | 550,260 |
Other revenues | | | 72,331 | | | 133,667 |
| | | | | | |
Total revenues | | | 5,299,185 | | | 10,585,839 |
| | |
Expenses: | | | | | | |
Repairs and maintenance | | | 247,195 | | | 476,408 |
Real estate taxes | | | 785,891 | | | 1,533,445 |
Utilities | | | 273,678 | | | 542,722 |
Janitorial | | | 197,409 | | | 364,221 |
Other operating expenses | | | 484,714 | | | 930,631 |
| | | | | | |
Total expenses | | | 1,988,887 | | | 3,847,427 |
| | | | | | |
Revenues over certain operating expenses | | $ | 3,310,298 | | $ | 6,738,412 |
| | | | | | |
See accompanying notes.
F-39
THE PLAZA IN CLAYTON
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
for the Six Months Ended June 30, 2006 (unaudited)
and the Year Ended December 31, 2005
1. Description of Real Estate Property Acquired
On September 27, 2006, KBS Real Estate Investment Trust, Inc. (“KBS REIT”) acquired the Plaza in Clayton (the “Plaza in Clayton Building”), a 16-story office building containing approximately 325,172 rentable square feet. The Plaza in Clayton is located on an approximate 2.31-acre parcel of land in St. Louis, Missouri (which includes a condominium tower that is not the subject of the purchase and sale agreement). Total consideration for the acquisition was approximately $93,281,000 plus closing costs. KBS REIT is a Maryland corporation formed to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. KBS REIT also intends to make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance investments.
2. Basis of Presentation
The accompanying statements of revenues over certain operating expenses have been prepared to comply with the rules and regulations of the Securities and Exchange Commission.
The Plaza in Clayton Building is not a legal entity and the accompanying statements are not representative of the actual operations for the periods presented, as certain revenues and expenses that may not be comparable to the revenues and expenses we expect to incur in the future operations of the Plaza in Clayton Building have been excluded. Excluded items consist of interest, depreciation and amortization, and general and administrative costs not directly comparable to the future operations of the Plaza in Clayton Building.
An audited statement of revenues over certain operating expenses is being presented for the most recent fiscal year available instead of the three most recent years based on the following factors: (i) the Plaza in Clayton Building was acquired from an unaffiliated party and (ii) based on due diligence of the Plaza in Clayton Building by KBS REIT, management is not aware of any material factors relating to the Plaza in Clayton Building that would cause this financial information not to be necessarily indicative of future operating results.
3. Significant Accounting Policies
Rental Revenues
KBS REIT will recognize minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, on a straight-line basis over the term of the related lease and it will include amounts expected to be received in later years in deferred rents. The adjustment to deferred rents decreased revenue by approximately $11,700 for the year ended December 31, 2005 and decreased revenue by approximately $66,682 for the six months ended June 30, 2006.
F-40
THE PLAZA IN CLAYTON
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
for the Six Months Ended June 30, 2006 (unaudited)
and the Year Ended December 31, 2005 (continued)
3. Significant Accounting Policies (Continued)
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of revenues and expenses during the reporting period. Actual results could materially differ from those estimates.
4. Description of Leasing Arrangements
As of June 30, 2006, the Plaza in Clayton Building is 97% leased by the following tenants: the law firm of Husch & Eppenberger, LLC (approximately 46%), Ernst & Young (approximately 29%), Metropolitan Life Insurance Company (approximately 11%), Northern Trust (approximately 3%) and various other office and retail tenants (approximately 8%).
5. Future Minimum Rental Commitments
Future minimum rental payments due under lease commitments for the years ended December 31 are as follows (in thousands):
| | | |
2006 | | $ | 9,068 |
2007 | | | 8,830 |
2008 | | | 8,635 |
2009 | | | 8,637 |
2010 | | | 8,134 |
| | | |
| | $ | 43,304 |
| | | |
6. Interim Unaudited Financial Information
The statement of revenues over certain operating expenses for the six months ended June 30, 2006 is unaudited; however, in the opinion of management, all adjustments (consisting solely of normal, recurring adjustments) necessary for the fair presentation of the financial statement for the interim period have been included. The results of the interim period are not necessarily indicative of the results to be obtained for a full fiscal year.
F-41
KBS REAL ESTATE INVESTMENT TRUST, INC.
SUMMARY OF UNAUDITED PRO FORMA FINANCIAL STATEMENTS
This pro forma information should be read in conjunction with the consolidated financial statements and notes of KBS Real Estate Investment Trust, Inc. (“KBS REIT”) included in its special report on Form 10-K for the year ended December 31, 2005 and its quarterly report on Form 10-Q for the three and six months ended June 30, 2006. In addition, this pro forma information should be read in conjunction with the financial statements and notes of the Sabal Pavilion Building and the Plaza in Clayton Building included in this prospectus.
The following unaudited pro forma balance sheet as of June 30, 2006 has been prepared to give effect to the acquisitions of the Sabal Pavilion Building, the Tribeca Mezzanine Debt and the Plaza in Clayton Building as if the acquisitions occurred on June 30, 2006. Other adjustments provided in the following unaudited pro forma balance sheet are composed of certain pro forma financing-related activities, including borrowings subsequent to the pro forma balance sheet date.
The following unaudited pro forma statements of operations for the six months ended June 30, 2006 and for the year ended December 31, 2005 have been prepared to give effect to the acquisitions of the Sabal Pavilion Building, the Tribeca Mezzanine Debt and the Plaza in Clayton Building as if the acquisitions occurred on January 1, 2005.
These unaudited pro forma financial statements are prepared for informational purposes only and are not necessarily indicative of future results or of actual results that would have been achieved had the acquisition of the Sabal Pavilion Building, the Tribeca Mezzanine Debt and the Plaza in Clayton Building been consummated as of January 1, 2005. In addition, the pro forma balance sheet includes pro forma allocations of the purchase prices of these assets based upon preliminary estimates of the fair value of the assets and liabilities acquired in connection with the acquisitions. These allocations may be adjusted in the future upon finalization of these preliminary estimates.
F-42
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA BALANCE SHEET
As of June 30, 2006
(unaudited)
| | | | | | | | | | | | | | | | | | | | |
| | | | | | Pro Forma Adjustments | | | | |
| | | KBS Real Estate Investment Trust
Historical (a) | | | Sabal Pavilion Building (b) | | | Tribeca Mezzanine Debt (c) | | | The Plaza in Clayton Building (d) | | | Pro Forma June 30, 2006 | |
| ASSETS | | | | | | | | | | | | | | | | | | | | |
| | | | | |
Cash and cash equivalents | | $ | 196,633 | | | $ | 224,202 | (e) | | $ | — | | | $ | — | | | $ | 420,835 | |
Restricted cash | | | 5,401,069 | | | | — | | | | — | | | | — | | | | 5,401,069 | |
Prepaid insurance | | | 130,125 | | | | — | | | | — | | | | — | | | | 130,125 | |
Land | | | — | | | | 3,245,319 | (f) | | | — | | | | 2,793,353 | (f) | | | 6,038,672 | |
Buildings and improvements | | | — | | | | 19,578,354 | (f) | | | — | | | | 83,883,034 | (f) | | | 103,461,388 | |
Lease intangible costs | | | — | | | | 2,867,509 | (f) | | | — | | | | 7,278,661 | (f) | | | 10,146,170 | |
Net intangible – above market leases | | | — | | | | — | | | | — | | | | 1,068,249 | (f) | | | 1,068,249 | |
Loan receivable | | | — | | | | — | | | | 12,949,511 | | | | — | | | | 12,949,511 | |
Prepaid loan fees | | | — | | | | 154,879 | (g) | | | 130,857 | (g) | | | 335,939 | (g) | | | 621,675 | |
Other assets | | | — | | | | 46,733 | | | | 181,924 | (h) | | | — | | | | 228,657 | |
| | | | | | | | | | | | | | | | | | | | |
Total assets | | $ | 5,727,827 | | | $ | 26,116,996 | | | $ | 13,262,292 | | | $ | 95,359,236 | | | $ | 140,466,351 | |
| | | | | | | | | | | | | | | | | | | | |
| LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | | | | | | | | | | | | | | | | |
| | | | | |
Accrued liabilities | | $ | 372,495 | | | $ | — | | | $ | — | | | $ | — | | | $ | 372,495 | |
Due to affiliates | | | 1,009,418 | | | | — | | | | — | | | | — | | | | 1,009,418 | |
Prepaid interest income | | | — | | | | — | | | | 87,268 | (i) | | | — | | | | 87,268 | |
Net intangible – below market leases | | | — | | | | 946,859 | (f) | | | — | | | | 771,901 | (f) | | | 1,718,760 | |
Short-term notes payable | | | — | | | | 4,898,000 | | | | 7,122,231 | | | | 22,300,000 | | | | 34,320,231 | |
Affiliate note payable | | | — | | | | 5,572,137 | | | | 2,875,000 | | | | — | | | | 8,447,137 | |
Long-term notes payable | | | — | | | | 14,700,000 | | | | — | | | | 62,200,000 | | | | 76,900,000 | |
| | | | | | | | | | | | | | | | | | | | |
Total liabilities | | | 1,381,913 | | | | 26,116,996 | | | | 10,084,499 | | | | 85,271,901 | | | | 122,855,309 | |
| | | | | |
Commitments and contingencies | | | | | | | | | | | | | | | | | | | | |
| | | | | |
Stockholders’ equity: | | | | | | | | | | | | | | | | | | | | |
Preferred stock, $.01 par value; 10,000,000 shares authorized, no shares issued and outstanding | | | — | | | | — | | | | — | | | | — | | | | ��� | |
Common stock $.01 par value; 1,000,000,000 shares authorized, 20,000 shares issued and outstanding | | | 200 | | | | — | | | | — | | | | — | | | | 200 | |
Common stock issuable upon breaking escrow, 541,161 shares, $.01 par value | | | 5,412 | | | | — | | | | 3,739 | (c) | | | 11,867 | (d) | | | 21,018 | |
Additional paid-in capital | | | 4,804,117 | | | | — | | | | 3,174,054 | (c) | | | 10,075,468 | (d) | | | 18,053,639 | |
Accumulated deficit | | | (463,815 | ) | | | — | | | | — | | | | — | | | | (463,815 | ) |
| | | | | | | | | | | | | | | | | | | | |
Total stockholders’ equity | | | 4,345,914 | | | | — | | | | 3,177,793 | | | | 10,087,335 | | | | 17,611,042 | |
| | | | | | | | | | | | | | | | | | | | |
Total liabilities and stockholders’ equity | | $ | 5,727,827 | | | $ | 26,116,996 | | | $ | 13,262,292 | | | $ | 95,359,236 | | | $ | 140,466,351 | |
| | | | | | | | | | | | | | | | | | | | |
| (a) | Historical financial information derived from KBS REIT’s quarterly report on Form 10-Q as of June 30, 2006. |
| (b) | Represents the purchase price of the assets acquired and liabilities incurred or assumed by KBS REIT in connection with the acquisition of the Sabal Pavilion Building. The purchase price of approximately $25.2 million (including closing costs) was funded with an approximate $14.7 million fixed rate loan, a $4.9 million mezzanine loan, and a $5.6 million advance from an affiliate. |
| (c) | Represents the purchase price of the assets acquired and liabilities incurred or assumed by KBS REIT in connection with the acquisition of the Tribeca Mezzanine Debt. The purchase price of approximately $12.9 million plus closing costs was funded with an approximate $7.1 million repurchase agreement, an approximate $2.8 million advance from an affiliate, and proceeds from the issuance of approximately 373,858 shares of stock from KBS REIT’s initial public offering. |
| (d) | Represents the purchase price of the assets acquired and liabilities incurred or assumed by KBS REIT in connection with the acquisition of the Plaza in Clayton Building. The purchase price of approximately $94.3 million (including closing costs) was funded with a $62.2 million fixed rate loan, a $22.3 million mezzanine loan, and proceeds from the issuance of approximately 1,186,745 shares of stock from KBS REIT’s initial public offering. |
F-43
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA BALANCE SHEET
As of June 30, 2006
(unaudited)
| (e) | Represents cash received at escrow as a result of operating expense prorations. |
| (f) | KBS REIT intends to account for the acquisition in accordance with Statements of Financial Standards No. 141, “Business Combinations,” and No. 142, “Goodwill and Other Intangibles.” The purchase price allocation is preliminary and subject to change. |
| (g) | Represents loan fees incurred on the financing of the Sabal Pavilion Building, the Tribeca Mezzanine Debt and the Plaza in Clayton Building. |
| (h) | Represents closing costs incurred on the acquisition of the Tribecca Mezzanine Debt. |
| (i) | Represents interest rate lock fees received from borrower under the Tribeca Mezzanine Debt. |
F-44
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
for the Six Months Ended June 30, 2006
(unaudited)
| | | | | | | | | | | | | | | | | |
| | | KBS Real Estate Investment Trust Historical (a) | | | Acquired Properties | | | | | Pro Forma
Total | |
| | | Historical (b) | | Pro Forma
Adjustments (c) | | | |
Revenues: | | | | | | | | | | | | | | | | | |
Base rent | | $ | — | | | $ | 5,712,356 | | $ | 107,945 | | | (d) | | $ | 5,820,301 | |
Parking income | | | — | | | | 511,360 | | | — | | | | | | 511,360 | |
Amortization of below/(above) market leases, net | | | — | | | | — | | | 62,785 | | | (e) | | | 62,785 | |
Tenant reimbursements | | | — | | | | 429,726 | | | — | | | | | | 429,726 | |
Interest income | | | 322 | | | | — | | | 828,780 | | | (f) | | | 829,102 | |
Other revenues | | | — | | | | 72,481 | | | — | | | | | | 72,481 | |
| | | | | | | | | | | | | | | | | |
Total revenues | | | 322 | | | | 6,725,923 | | | 999,510 | | | | | | 7,725,755 | |
| | | | | |
Expenses: | | | | | | | | | | | | | | | | | |
Property operating costs | | | — | | | | 2,517,481 | | | — | | | | | | 2,517,481 | |
General and administrative | | | 464,137 | | | | — | | | 494,795 | | | (g) | | | 958,932 | |
Depreciation and amortization | | | — | | | | — | | | 3,104,184 | | | (h) | | | 3,104,184 | |
Interest expense | | | — | | | | — | | | 3,777,456 | | | (i) | | | 3,777,456 | |
| | | | | | | | | | | | | | | | | |
Total expenses | | | 464,137 | | | | 2,517,481 | | | 7,376,435 | | | | | | 10,358,053 | |
| | | | | | | | | | | | | | | | | |
Net loss | | $ | (463,815 | ) | | $ | 4,208,442 | | $ | (6,376,925 | ) | | | | $ | (2,632,298 | ) |
| | | | | | | | | | | | | | | | | |
Loss per share, basic and diluted | | $ | (7.71 | ) | | | | | | | | | | | $ | (1.62 | ) |
| | | | | | | | | | | | | | | | | |
Weighted-average number of common shares, issuable and outstanding | | | 60,196 | | | | | | | 1,560,603 | | | (j) | | | 1,620,799 | |
| | | | | | | | | | | | | | | | | |
| (a) | Historical financial information derived from KBS REIT’s quarterly report on Form 10-Q for the six months ended June 30, 2006. |
| (b) | Reflects the operations of the Sabal Pavilion Building (acquired July 2006) and the Plaza in Clayton Building (acquired September 2006) for the six months ended June 30, 2006, as follows: |
| | | | | | | | | |
| | | Sabal
Pavilion
Building | | The Plaza
in Clayton
Building | | Acquired
Properties |
Revenues | | | | | | | | | |
Base rent | | $ | 1,266,535 | | $ | 4,445,821 | | $ | 5,712,356 |
Parking income | | | — | | | 511,360 | | | 511,360 |
Tenant reimbursements | | | 160,053 | | | 269,673 | | | 429,726 |
Other revenues | | | 150 | | | 72,331 | | | 72,481 |
| | | | | | | | | |
Total revenues | | | 1,426,738 | | | 5,299,185 | | | 6,725,923 |
| | | |
Expenses: | | | | | | | | | |
Property operating costs | | | 528,594 | | | 1,988,887 | | | 2,517,481 |
| | | | | | | | | |
Total expenses | | | 528,594 | | | 1,988,887 | | | 2,517,481 |
| | | | | | | | | |
Operating income | | $ | 898,144 | | $ | 3,310,298 | | $ | 4,208,442 |
| | | | | | | | | |
KBS REIT also acquired the Tribeca Mezzanine Debt in July 2006. The Tribeca Mezzanine Debt was originated on February 28, 2006. As a result, a full year’s historical financial information is not available. Activity with respect to the Tribeca Mezzanine Debt is reflected above under “Pro Forma Adjustments” assuming the loan was originated January 1, 2005.
| (c) | KBS REIT intends to account for the acquisition of the Sabal Pavilion Building and the Plaza in Clayton Building in accordance with Statements of Financial Standards No. 141, “Business Combinations,” and No. 142, “Goodwill and Other Intangibles.” The purchase price allocation is preliminary and subject to change. |
| (d) | Represents adjustment to straight-line rent assuming a lease start date of January 1, 2005. |
| (e) | Amortization of below- and above-market leases, which is recognized on a straight-line basis over the life of the leases. |
F-45
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
for the Six Months Ended June 30, 2006 (continued)
(unaudited)
| (f) | Represents interest income from loan receivable for the Tribeca Mezzanine Debt, at a fixed rate of 13.25% per annum, amortization of prepaid interest income over the term of the loan receivable, and an offset for the amortization of closing costs related to the acquisition over the term of the loan receivable. |
| (g) | Asset management fee calculated as 0.75% of the cost of investments acquired, including acquisition fee, acquisition expenses and any debt attributable to such investments. |
| (h) | Depreciation expense on portion of purchase price allocated to building is recognized using the straight-line method and a 39-year life. Depreciation expense on portion of purchase price allocated to tenant improvement is recognized using the straight-line method over life of lease. Amortization expense on lease intangible costs is recognized using the straight-line method over life of lease. |
| (i) | Represents interest expenses incurred on the following short-term and long-term loans secured to purchase the Sabal Pavilion Building, the Tribeca Mezzanine Debt and the Plaza in Clayton Building: |
| | | |
Fixed rate loan secured by the Sabal Pavilion Building, which bears interest at a rate of 6.38% per annum | | $ | 14,700,000 |
| |
Mezzanine loan secured by a 100% equity interest in the subsidiary that holds title to the Sabal Pavilion Building, which bears interest at a variable rate equal to 30-day LIBOR plus 225 basis points (average rate of 7.17% for the period) | | $ | 4,898,000 |
| |
Repurchase agreement secured by principal and interest payments on the Tribeca Mezzanine Debt, which bears interest at a variable rate equal to 30-day LIBOR plus 200 basis points (average rate of 6.92% for the period) | | $ | 7,122,231 |
| |
Fixed rate loan secured by the Plaza in Clayton Building, which bears interest at a rate of 5.899% per annum | | $ | 62,200,000 |
| |
Mezzanine loan secured by a 100% equity interest in the subsidiary that holds title to the Plaza in Clayton Building, which bears interest at a variable rate equal to 30-day LIBOR plus 225 basis points (average rate of 6.42% for the period) | | $ | 22,300,000 |
| |
Loan from affiliate, which bears simple interest at a fixed rate of 6% and is unsecured | | $ | 8,447,137 |
Interest expense includes amortization of loan fees related to short-term and long-term loans, amortized over the life of the related loan.
| (j) | Represents the weighted-average number of shares including approximately 373,858 and 1,186,745 shares of stock from KBS REIT’s initial public offering required to generate sufficient offering proceeds to fund the purchase of the Tribeca Mezzanine Debt and the Plaza in Clayton Building, respectively. The calculation assumes that both investments were acquired on January 1, 2005. |
F-46
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
for the Year Ended December 31, 2005
(unaudited)
| | | | | | | | | | | | | | | | |
| | | KBS Real Estate
Investment
Trust
Historical (a) | | Acquired Properties | | | | | Pro Forma Total | |
| | | | Historical (b) | | Pro Forma
Adjustments (c) | | | |
Revenues: | | | | | | | | | | | | | | | | |
Base rent | | $ | — | | $ | 11,276,667 | | $ | 363,935 | | | (d) | | $ | 11,640,602 | |
Parking income | | | — | | | 1,010,269 | | | — | | | | | | 1,010,269 | |
Amortization of below/(above) market leases | | | — | | | — | | | 107,177 | | | (e) | | | 107,177 | |
Tenant reimbursements | | | — | | | 847,809 | | | — | | | | | | 847,809 | |
Interest income | | | — | | | — | | | 1,657,560 | | | (f) | | | 1,657,560 | |
Other revenues | | | — | | | 133,937 | | | — | | | | | | 133,937 | |
| | | | | | | | | | | | | | | | |
Total revenues | | | — | | | 13,268,682 | | | 2,128,672 | | | | | | 15,397,354 | |
| | | | | |
Expenses: | | | | | | | | | | | | | | | | |
Property operating costs | | | — | | | 4,836,110 | | | — | | | | | | 4,836,110 | |
General and administrative | | | — | | | — | | | 989,588 | | | (g) | | | 989,588 | |
Depreciation and amortization | | | — | | | — | | | 6,078,175 | | | (h) | | | 6,078,175 | |
Interest expense | | | — | | | — | | | 7,143,370 | | | (i) | | | 7,143,370 | |
| | | | | | | | | | | | | | | | |
Total expenses | | | — | | | 4,836,110 | | | 14,211,133 | | | | | | 19,047,243 | |
| | | | | | | | | | | | | | | | |
Net loss | | $ | — | | $ | 8,432,572 | | $ | (12,082,461 | ) | | | | $ | (3,649,889 | ) |
| | | | | | | | | | | | | | | | |
Loss per share, basic and diluted | | $ | — | | | | | | | | | | | $ | (2.31 | ) |
| | | | | | | | | | | | | | | | |
Weighted-average number of common shares, issued and outstanding | | | 20,000 | | | | | | 1,560,603 | | | (j) | | | 1,580,603 | |
| | | | | | | | | | | | | | | | |
| (a) | Historical financial information derived from KBS REIT’s annual report on Form 10-K for the year ended December 31, 2005. As noted on Form 10-K for the year ended December 31, 2005, KBS REIT had been formed but had not yet commenced operations. As such, no statement of operations for the year ended December 31, 2005 was disclosed since results of operation were not material. |
| (b) | Reflects the operations of the Sabal Pavilion Building (acquired July 2006) and the Plaza in Clayton Building (acquired September 2006) for the year ended December 31, 2005, as follows: |
| | | | | | | | | |
| | | Sabal
Pavilion
Building | | The Plaza
in Clayton
Building | | Acquired
Properties |
Revenues | | | | | | | | | |
Base rent | | $ | 2,385,024 | | $ | 8,891,643 | | $ | 11,276,667 |
Parking income | | | — | | | 1,010,269 | | | 1,010,269 |
Tenant reimbursements | | | 297,549 | | | 550,260 | | | 847,809 |
Other revenues | | | 270 | | | 133,667 | | | 133,937 |
| | | | | | | | | |
Total revenues | | | 2,682,843 | | | 10,585,839 | | | 13,268,682 |
| | | | | | | | | |
Expenses: | | | | | | | | | |
Property operating costs | | | 988,683 | | | 3,847,427 | | | 4,836,110 |
| | | | | | | | | |
Total expenses | | | 988,683 | | | 3,847,427 | | | 4,836,110 |
| | | | | | | | | |
Operating income | | $ | 1,694,160 | | $ | 6,738,412 | | $ | 8,432,572 |
| | | | | | | | | |
KBS REIT also acquired the Tribeca Mezzanine Debt in July 2006. The Tribeca Mezzanine Debt was originated on February 28, 2006. As a result, a full year’s historical financial information is not available. Activity with respect to the Tribeca Mezzanine Debt is reflected above under “Pro Forma Adjustments” assuming the loan was originated January 1, 2005.
| (c) | KBS REIT intends to account for the acquisition of the Sabal Pavilion Building and the Plaza in Clayton Building in accordance with Statements of Financial Standards No. 141, “Business Combinations,” and No. 142, “Goodwill and Other Intangibles.” The purchase price allocation is preliminary and subject to change. |
| (d) | Represents adjustment to straight-line rent assuming a lease start date of January 1, 2005. |
| (e) | Amortization of below- and above-market leases, which is recognized on a straight-line basis over the life of the leases. |
| (f) | Represents interest income from loan receivable for the Tribeca Mezzanine Debt, at a fixed rate of 13.25% per annum, amortization of prepaid interest income over the term of the loan receivable, and an offset for the amortization of closing costs related to the acquisition over the term of the loan receivable. |
F-47
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
for the Year Ended December 31, 2005 (continued)
(unaudited)
| (g) | Asset management fee calculated as 0.75% of the cost of investments acquired, including acquisition fee, acquisition expenses and any debt attributable to such investments. |
| (h) | Depreciation expense on portion of purchase price allocated to building is recognized using the straight-line method and a 39-year life. Depreciation expense on portion of purchase price allocated to tenant improvement is recognized using the straight-line method over life of lease. Amortization expense on lease intangible costs is recognized using the straight-line method over life of lease. |
| (i) | Represents interest expenses incurred on the following short-term and long-term loans secured to purchase the Sabal Pavilion Building, the Tribeca Mezzanine Debt and the Plaza in Clayton Building: |
| | | |
Fixed rate loan secured by the Sabal Pavilion Building, which bears interest at a rate of 6.38% per annum | | $ | 14,700,000 |
| |
Mezzanine loan secured by a 100% equity interest in the subsidiary that holds title to the Sabal Pavilion Building, which bears interest at a variable rate equal to 30-day LIBOR plus 225 basis points (average rate of 5.71% for the period) | | $ | 4,898,000 |
| |
Repurchase agreement secured by principal and interest payments on the Tribeca Mezzanine Debt, which bears interest at a variable rate equal to 30-day LIBOR plus 200 basis points (average rate of 5.46% for the period) | | $ | 7,122,231 |
| |
Fixed rate loan secured by the Plaza in Clayton Building, which bears interest at a rate of 5.899% per annum | | $ | 62,200,000 |
| |
Mezzanine loan secured by a 100% equity interest in the subsidiary that holds title to the Plaza in Clayton Building, which bears interest at a variable rate equal to 30-day LIBOR plus 225 basis points (average rate of 5.29% for the period) | | $ | 22,300,000 |
| |
Loan from affiliate, which bears simple interest at a fixed rate of 6% and is unsecured | | $ | 8,447,137 |
Interest expense includes amortization of loan fees related to short-term and long-term loans, amortized over the life of the related loan.
| (j) | Represents the weighted-average number of shares including approximately 373,858 and 1,186,745 shares of stock from KBS REIT’s initial public offering required to generate sufficient offering proceeds to fund the purchase of the Tribeca Mezzanine Debt and the Plaza in Clayton Building, respectively. The calculation assumes that both investments were acquired on January 1, 2005. |
F-48
PRIOR PERFORMANCE TABLES
The information contained on pages F-15 – F-27 of the prospectus is replaced in its entirety by the deletion of those pages in their entirety and the insertion of the following in lieu thereof:
Since 1992, two of our sponsors, Peter M. Bren and Charles J. Schreiber, Jr., have teamed to invest, manage, develop and sell high-quality U.S. commercial real estate assets for institutional investors. Since the formation of the first investment adviser affiliated with Messrs. Bren and Schreiber in 1992, investment advisers affiliated with Messrs. Bren and Schreiber have sponsored 11 private real estate funds that have raised $1.9 billion of equity from 39 institutional investors. Together, Messrs. Bren and Schreiber founded KBS Realty Advisors LLC, a registered investment adviser with the Securities and Exchange Commission and a nationally recognized real estate investment adviser. We refer to the investment advisers affiliated with Messrs. Bren and Schreiber as KBS investment advisers.
The tables presented in this section provide summary information related to the historical experience of the real estate funds sponsored by KBS investment advisers. During the 10-year period ending December 31, 2005, KBS investment advisers have managed eleven real estate funds, six of those were multi-investor, commingled funds and five were single-client, separate accounts. All of these eleven prior funds were limited partnerships for which affiliates of Messrs. Bren and Schreiber act or acted as a general partner. In all cases, affiliates of Messrs. Bren and Schreiber had responsibility for acquiring, investing, managing, developing and selling the real estate assets of each of the funds. Three of the eleven funds managed by KBS investment advisers during the 10-year period ending December 31, 2005 used private REITs to structure the ownership of some of their investments.
Each of these funds have or had (three of the funds have been fully liquidated) investment objectives that are similar to ours. For each of the funds, the KBS investment adviser has focused upon acquiring a diverse portfolio of real estate investments. The KBS investment adviser typically diversified the portfolios of the funds by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for nine of the eleven funds, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, focusing primarily on value-added and enhanced-return properties. Value-added and enhanced-return assets are assets that are undervalued or that could be repositioned to enhance their value. For two of the eleven funds, the KBS investment adviser is focusing on the acquisition of core real estate assets. We will seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties and other real estate-related assets. Real estate-related assets include mortgage loans, mezzanine debt, mortgage-backed securities and other similar structured finance investments.
By purchasing shares in this offering, you will not acquire any ownership interest in any funds to which the information in this section relates and you should not assume that you will experience returns, if any, comparable to those experienced by the investors in the real estate funds discussed. Further, the funds discussed in this section were conducted through privately-held entities that were subject neither to the up-front commissions, fees and expenses associated with this offering nor all of the laws and regulations that will apply to us as a publicly offered REIT.
F-49
The information in this section should be read together with the summary information in this supplement under “Prior Performance Summary.” The following tables are included in this section:
| | • | | Table I – Experience in Raising and Investing Funds; |
| | • | | Table II – Compensation to Sponsor; |
| | • | | Table III – Operating Results of Prior Programs; |
| | • | | Table IV – Results of Completed Programs; and |
| | • | | Table V – Sales or Disposals of Properties. |
For information regarding the acquisitions of the funds sponsored by KBS investment advisers during the three years ending December 31, 2005, see Table VI contained in Part II of the registration statement, which is not a part of this supplement or the prospectus. We will provide a copy of Table VI to you upon written request and without charge.
F-50
TABLE I
EXPERIENCE IN RAISING AND INVESTING FUNDS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
Table I provides a summary of the experience of KBS investment advisers in raising and investing funds for programs that have had offerings close during the three years ended December 31, 2005. Information is provided as to the manner in which the proceeds of the offerings have been applied. Both of the programs presented have investment objectives similar to those of KBS Real Estate Investment Trust. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for these programs, the KBS investment adviser is focusing on the acquisition of core real estate assets. We will seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties and real estate-related assets. All percentage amounts except “Percent leveraged” represent percentages of the “Dollar amount offered” for each program.
| | | | | | | | |
| | | SEPARATE ACCOUNT 6/05 (1) | | | SEPARATE
ACCOUNT 8/05 (2) | |
Dollar amount offered | | $ | 50,043,000 | (1) | | $ | 44,180,000 | (2) |
Percentage amount raised | | | 100.0 | %(1) | | | 100.0 | %(2) |
Less offering expenses: | | | | | | | | |
Selling commissions | | | — | | | | — | |
Organizational expenses | | | — | | | | — | |
Reserves | | | — | | | | — | |
| | | | | | | | |
Percentage available for investment | | | 100.0 | % | | | 100.0 | % |
| | | | | | | | |
Acquisition costs: | | | | | | | | |
Prepaid items and fees related to purchase of property | | | — | | | | — | |
Purchase price (cash down payment)(3) | | | 220.9 | % | | | 191.6 | % |
Acquisition fees(4) | | | 1.6 | % | | | 1.3 | % |
Other capitalized costs(5) | | | 1.0 | % | | | 1.1 | % |
| | | | | | | | |
Total acquisition costs (includes mortgage financing)(6) | | | 223.5 | % | | | 194.0 | % |
| | | | | | | | |
Percent leveraged(7) | | | 56.4 | % | | | 50.7 | % |
| | | | | | | | |
Date offering began | | | (1 | ) | | | (2 | ) |
Length of offering (in months) | | | (1 | ) | | | (2 | ) |
Months to invest 90% of amount available for investment | | | (1 | ) | | | (2 | ) |
| (1) | This program represents a single-client account whereby dollars are raised only as assets are identified pursuant to a partnership agreement between a KBS affiliate and an institutional investor. Under the partnership agreement, when the KBS investment adviser for the partnership identifies properties for investment, the KBS investment adviser invests funds on behalf of the investor, manages the assets in the investor’s portfolio and ultimately sells the assets on behalf of the investor. Separate Account |
F-51
TABLE I
EXPERIENCE IN RAISING AND INVESTING FUNDS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | 6/05 made its first investment in June 2005, and the KBS investment adviser continues to identify potential properties for purchase by this program. The program has made a total of four separate investments through December 2005. |
| (2) | This program represents a single-client account whereby dollars are raised only as assets are identified pursuant to a partnership agreement between a KBS affiliate and an institutional investor. Under the partnership agreement, when the KBS investment adviser for the partnership identifies properties for investment, the KBS investment adviser invests funds on behalf of the investor, manages the assets in the investor’s portfolio and ultimately sells the assets on behalf of the investor. Separate Account 8/05 made its first investment in October 2005, and the KBS investment adviser continues to identify potential properties for purchase by this program. The program has made a total of three separate investments through December 2005. |
| (3) | “Purchase price (cash down payment)” includes both debt- and equity-financed payments. See the “Percent leveraged” line for the approximate percentage of the purchase price financed with mortgage or other debt. |
| (4) | Acquisition fees are calculated as a percentage of purchase price plus other capitalized costs and are paid to the KBS sponsor. |
| (5) | Other capitalized costs include legal fees, outside broker fees, environmental studies, title and other closing costs. |
| (6) | Total acquisition costs include the cash down payment, acquisition fees, other capitalized costs and mortgage financing. |
| (7) | “Percent leveraged” represents total mortgage financing divided by total acquisition cost for properties acquired. |
F-52
TABLE II
COMPENSATION TO SPONSOR
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
Table II summarizes the amount and type of compensation paid to KBS affiliates during the three years ended December 31, 2005 in connection with 1) each program sponsored by a KBS investment adviser that had offerings close during this period and 2) all other programs that have made payments to KBS affiliates during this period. All of the programs represented in the table below have or had investment objectives similar to those of KBS Real Estate Investment Trust. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for these programs, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, with a focus primarily on value-added and enhanced-return assets, except that for Separate Account 6/05 and Separate Account 8/05, the KBS investment adviser is focusing on the acquisition of core real estate assets. We will seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties and real estate-related assets. All figures are as of December 31, 2005.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Commingled
Account 5/95 (1) | | | Commingled Account 12/95 (2) | | | Commingled Account 12/96 (3) | | Commingled Account 6/98 (4) | | Commingled Account 6/99 (5) | | Separate Account 10/97 (6) | | Separate Account 12/98 (7) | | Separate Account 6/05 (8) | | Separate Account 8/05 (9) |
Date offering commenced | | | (1) | | | | (2) | | | | (3) | | | (4) | | | (5) | | | (6) | | | (7) | | | (8) | | | (9) |
Dollar amount raised | | $ | 273,100,000 | | | $ | 212,500,000 | | | $ | 266,125,050 | | $ | 216,650,000 | | $ | 187,000,000 | | $ | 153,016,700 | | $ | 210,967,612 | | $ | 50,043,000 | | $ | 44,180,000 |
Amount paid to sponsor from proceeds of offering: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Underwriting fees | | | — | | | | — | | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Acquisition fees: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
- real estate commissions | | | — | | | | — | | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
- advisory fees (10) | | | — | | | | — | | | | — | | | — | | | — | | | — | | $ | 3,000 | | $ | 1,107,000 | | $ | 855,000 |
- other (identify and quantify) | | | — | | | | — | | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Other | | | — | | | | — | | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Dollar amount of cash generated from operations before deducting payments to sponsors | | $ | (1,402,000 | ) | | $ | (116,585 | ) | | $ | 37,149,000 | | $ | 43,292,000 | | $ | 49,366,000 | | $ | 23,022,000 | | $ | 42,218,000 | | $ | 1,863,000 | | $ | 2,337,000 |
Amount paid to sponsor from operations: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Property management fees (11) | | $ | 246,000 | | | | — | | | $ | 5,137,000 | | | — | | | — | | | — | | | — | | | — | | | — |
Partnership and asset management fees | | $ | 296,000 | | | | — | | | $ | 1,932,000 | | $ | 2,691,000 | | $ | 4,586,000 | | $ | 1,910,000 | | $ | 5,019,000 | | $ | 262,000 | | | — |
Reimbursements | | | — | | | | — | | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Leasing commissions (11) | | $ | 15,000 | | | | — | | | $ | 1,093,000 | | | — | | | — | | | — | | | — | | | — | | | — |
Construction management fees (11) | | | — | | | | — | | | $ | 67,000 | | | — | | | — | | | — | | | — | | | — | | | — |
Loan servicing fees | | | — | | | | — | | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Dollar amount of property sales and refinancing before deducting payments to sponsors | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
- cash | | $ | 86,607,000 | | | | — | | | $ | 42,358,000 | | $ | 105,533,000 | | $ | 75,698,000 | | $ | 7,432,000 | | $ | 75,768,000 | | | — | | | — |
- notes | | | — | | | | — | | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
Amounts paid to sponsor from property sales and refinancing: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
-Real estate commissions (11) | | $ | 55,000 | | | | — | | | $ | 476,000 | | | — | | | — | | | — | | | — | | | — | | | — |
-Disposition fees | | | — | | | | — | | | | — | | $ | 248,000 | | $ | 246,000 | | | — | | | — | | | — | | | — |
- Incentive fees (12) | | $ | 1,445,000 | | | $ | 40,000 | | | | — | | | — | | $ | 236,000 | | | — | | | — | | | — | | | — |
- Other (identify and quantify) | | | — | | | | — | | | | — | | | — | | | — | | | — | | | — | | | — | | | — |
F-53
TABLE II
COMPENSATION TO SPONSOR
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| (1) | This program made payments to KBS affiliates during the three years ended December 31, 2005; however, it did not close any offerings during this period. Commingled Account 5/95 represents a multi-investor commingled fund that makes investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in May 1995. |
| (2) | This program made payments to KBS affiliates during the three years ended December 31, 2005; however, it did not close any offerings during this period. Commingled Account 12/95 was a multi-investor commingled fund that made investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber was the general partner. This program made its first investment in December 1995 and its assets have been liquidated other than de minimis amounts held in reserve. |
| (3) | This program made payments to KBS affiliates during the three years ended December 31, 2005; however, it did not close any offerings during this period. Commingled Account 12/96 represents a multi-investor commingled fund that makes investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in December 1996. |
| (4) | This program made payments to KBS affiliates during the three years ended December 31, 2005; however, it did not close any offerings during this period. Commingled Account 6/98 represents a multi-investor commingled fund that makes investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in June 1998. |
| (5) | This program made payments to KBS affiliates during the three years ended December 31, 2005; however, it did not close any offerings during this period. Commingled Account 6/99 represents a multi-investor commingled fund that makes investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. The account made its first investment in June 1999. |
| (6) | This program made payments to KBS affiliates during the three years ended December 31, 2005; however, it did not close any offerings during this period. Separate Account 10/97 represents a single-client account that made investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in October 1997. |
| (7) | This program made payments to KBS affiliates during the three years ended December 31, 2005; however, it did not close any offerings during this period. Separate Account 12/98 represents a single-client account that made investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber acts as the general partner. This program made its first investment in December 1998. |
| (8) | This program represents a single-client account whereby dollars are raised only as assets are identified pursuant to a partnership agreement between a KBS affiliate and an institutional investor. Under the partnership agreement, when the KBS investment adviser for the partnership identifies properties for investment, the KBS investment adviser invests funds on behalf of the investor, manages the assets in the investor’s portfolio and ultimately sells the assets on behalf of the investor. Separate Account 6/05 made its first investment in June 2005, and the KBS investment adviser continues to identify potential properties for purchase by this program. The program has made a total of four separate investments through December 2005. For more information about this program’s experience in raising capital, see Table I. |
| (9) | This program represents a single-client account whereby dollars are raised only as assets are identified pursuant to a partnership agreement between a KBS affiliate and an institutional investor. Under the partnership agreement, when the KBS investment adviser for the partnership identifies properties for investment, the KBS investment adviser invests funds on behalf of the investor, manages the assets in the investor’s portfolio and ultimately sells the assets on behalf of the investor. Separate Account 8/05 made its first investment in October 2005, and the KBS investment adviser continues to identify potential properties for purchase by this program. The program has made a total of three separate investments through December 2005. For more information about this program’s experience in raising capital, see Table I. |
F-54
TABLE II
COMPENSATION TO SPONSOR
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| (10) | Advisory fees are acquisition fees that are calculated as a percentage of purchase price plus other capitalized costs and are paid to the KBS sponsor. |
| (11) | Fees paid to parties affiliated with the general partner of the program. |
| (12) | Only three of the funds represented in this table, Commingled Account 5/95, Commingled Account 12/95 and Commingled Account 6/99, paid incentive fees during the three years ended December 31, 2005. Two of the nine funds, Commingled Account 6/98 and Commingled Account 6/99, pay incentive fees based on gains from the sale of assets. The incentive fees for the remaining seven funds represented in this table (Commingled Account 5/95, Commingled Account 12/95, Commingled Account 12/96, Separate Account 10/97, Separate Account 12/98, Separate Account 6/05 and Separate Account 8/05) are back-end fees based on participation interests in the net cash flows of the funds’ assets after achieving a stipulated return for the investors. These back-end incentive fees will be paid during the final liquidation stage of the funds. Only two of these seven funds, Commingled Account 12/95 and Commingled Account 5/95, are currently in their liquidation stage. |
F-55
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
This table summarizes the operating results of programs sponsored by KBS investment advisers that have had offerings close during the five years ended December 31, 2005. In the case of Separate Account 12/98 and Commingled Account 6/99, commitments to invest capital were made in 1998 and 1999, respectively, and funds were raised from investors as assets were identified. For these programs, this table shows: the income or loss of such programs (based upon U.S. generally accepted accounting principles (“GAAP”)); the cash they generated from operations, sales and refinancings; and information regarding cash distributions. Each of these programs has investment objectives similar to those of KBS Real Estate Investment Trust. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for two of these programs, Separate Account 12/98 and Separate Account 6/99, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, with a focus primarily on value-added and enhanced-return assets. In constructing the portfolios for Separate Account 6/05 and Separate Account 8/05, the KBS investment adviser is focusing on the acquisition of core real estate assets. We will seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties and real estate-related assets. All figures are as of December 31 of the year indicated, except as otherwise noted.
| | | | | | | | | | | | | | | | | | | | |
| | | Separate Account 12/98 | |
| | | 2001 | | | 2002 | | | 2003 | | | 2004 | | | 2005 | |
Gross revenues | | $ | 72,226,000 | | | $ | 36,163,000 | | | $ | 19,449,000 | | | $ | 13,974,000 | | | $ | 14,402,000 | |
Profit (loss) on sale of properties | | | 1,032,000 | | | | 11,831,000 | | | | (7,996,000 | ) | | | (5,834,000 | ) | | | 1,910,000 | |
Less: Operating expenses(1) | | | (18,307,000 | ) | | | (14,669,000 | ) | | | (15,986,000 | ) | | | (25,187,000 | ) | | | (15,234,000 | ) |
Interest expense | | | (8,470,000 | ) | | | (3,761,000 | ) | | | (1,432,000 | ) | | | (1,170,000 | ) | | | (2,100,000 | ) |
Depreciation(2) | | | — | | | | — | | | | — | | | | — | | | | — | |
Unrealized gain (loss)(2) | | | (21,952,000 | ) | | | (21,103,000 | ) | | | 4,128,000 | | | | 16,146,000 | | | | 10,408,000 | |
| | | | | | | | | | | | | | | | | | | | |
Net income (loss) - GAAP basis(2) | | $ | 24,529,000 | | | $ | 8,461,000 | | | $ | (1,837,000 | ) | | $ | (2,071,000 | ) | | $ | 9,386,000 | |
| | | | | | | | | | | | | | | | | | | | |
Taxable income: | | | | | | | | | | | | | | | | | | | | |
From operations | | $ | 48,623,000 | | | $ | 36,619,000 | | | $ | 12,769,000 | | | $ | 6,634,000 | | | $ | 2,355,000 | |
From gain (loss) on sale | | $ | 79,000 | | | $ | 16,574,000 | | | $ | (2,941,000 | ) | | $ | (26,040,000 | ) | | $ | (31,747,000 | ) |
Cash generated (deficiency) from operations(3) | | $ | 21,738,000 | | | $ | 33,585,000 | | | $ | 16,704,000 | | | $ | 15,333,000 | | | $ | 5,162,000 | |
Cash generated (deficiency) from sales | | | 6,750,000 | | | | 33,895,000 | | | | 19,435,000 | | | | 16,282,000 | | | | 7,822,000 | |
Cash generated from refinancing | | | — | | | | — | | | | — | | | | 32,229,000 | | | | — | |
| | | | | | | | | | | | | | | | | | | | |
Total cash generated from operations, sales and refinancing | | $ | 28,488,000 | | | $ | 67,480,000 | | | $ | 36,139,000 | | | $ | 63,844,000 | | | $ | 12,984,000 | |
F-56
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | | | | | | | | | | | | | |
| | | Separate Account 12/98 | |
| | | 2001 | | | 2002 | | | 2003 | | | 2004 | | | 2005 | |
Less: Cash distributions to investors | | | | | | | | | | | | | | | | | | | | |
- From operating cash flow | | | (27,660,000 | ) | | | (34,632,000 | ) | | | (5,518,000 | ) | | | (200,000 | ) | | | (5,200,000 | ) |
- From sales and refinancing | | | (6,506,000 | ) | | | (32,638,000 | ) | | | (23,408,000 | ) | | | (59,375,000 | ) | | | (6,050,000 | ) |
| | | | | | | | | | | | | | | | | | | | |
Cash generated (deficiency) after cash distributions | | $ | (5,678,000 | ) | | $ | 210,000 | | | $ | 7,213,000 | | | $ | 4,269,000 | | | $ | 1,734,000 | |
Less: Special items (not including sales and refinancing) | | | — | | | | — | | | | — | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | |
Cash generated (deficiency) after cash distributions and special items(4) | | $ | (5,678,000 | ) | | $ | 210,000 | | | $ | 7,213,000 | | | $ | 4,269,000 | | | $ | 1,734,000 | |
| | | | | | | | | | | | | | | | | | | | |
| | | | | |
Tax and Distribution Data per $1,000 Invested | | | | | | | | | | | | | | | | | | | | |
| | | | | |
Federal Income Tax Results: | | | | | | | | | | | | | | | | | | | | |
Ordinary income (loss) | | | | | | | | | | | | | | | | | | | | |
- from operations | | $ | 264 | | | $ | 179 | | | $ | 81 | | | $ | 57 | | | $ | 27 | |
- from recapture | | | — | | | | — | | | | — | | | | — | | | | — | |
Capital gain (loss) | | | — | | | $ | 91 | | | $ | (19 | ) | | $ | (223 | ) | | $ | (370 | ) |
Cash distributions to investors | | | | | | | | | | | | | | | | | | | | |
Source (on GAAP basis) | | | | | | | | | | | | | | | | | | | | |
- from investment income | | $ | (153 | ) | | $ | (252 | ) | | $ | (35 | ) | | $ | (2 | ) | | | — | |
- from return of capital | | | (32 | ) | | | (117 | ) | | | (149 | ) | | | (506 | ) | | | (131 | ) |
| | | | | | | | | | | | | | | | | | | | |
Total distribution on GAAP basis | | $ | (185 | ) | | $ | (369 | ) | | $ | (184 | ) | | $ | (508 | ) | | $ | (131 | ) |
| | | | | | | | | | | | | | | | | | | | |
Source (on cash basis) | | | | | | | | | | | | | | | | | | | | |
- from sales | | $ | (35 | ) | | $ | (179 | ) | | $ | (149 | ) | | $ | (231 | ) | | $ | (64 | ) |
- from refinancing | | | — | | | | — | | | | — | | | | (275 | ) | | | (6 | ) |
- from operations | | | (150 | ) | | | (190 | ) | | | (35 | ) | | | (2 | ) | | | (61 | ) |
| | | | | | | | | | | | | | | | | | | | |
Total distributions on cash basis | | $ | (185 | ) | | $ | (369 | ) | | $ | (184 | ) | | $ | (508 | ) | | $ | (131 | ) |
| | | | | | | | | | | | | | | | | | | | |
Amounts (in percentage terms) remaining invested in program properties as of December 31, 2005(5) | | | | | | | | | | | | | | | | | | | 22 | % |
F-57
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| (1) | Operating expenses include all general and administrative expenses. |
| (2) | The accompanying financial information has been prepared in conformity with accounting principles generally accepted in the United States for investment companies. Accordingly, the real estate investments are reflected at their estimated current values as determined by the general partner, using current appraisals or market information and the general partner’s good faith estimate of value. All other assets and liabilities are generally valued based on the actual costs or liabilities incurred, which management believes approximates current value. |
The major differences between GAAP basis income for investment companies and taxable income are the following:
GAAP basis income for investment companies does not record depreciation expense while taxable income recognizes depreciation expense.
GAAP basis income for investment companies carries its assets at market value and records the changes in market value as unrealized gain or loss in the income statement. Taxable income records no such adjustment.
| (3) | For Separate Account 12/98, “cash generated from operations” includes distributions from two unconsolidated subsidiaries, which we refer to as Madison and Manager. Madison invests in commercial mortgage-backed securities and makes distributions of principal and interest to its investors. Separate Account 12/98 owns a 25.78% interest in Madison and parties unaffiliated with Separate Account 12/98 own the remaining interest. Madison made the following distributions to Separate Account 12/98 net of financing requirements at the Separate Account 12/98 level: $13,470,000 in year 2001; $26,473,000 in year 2002; $10,128,000 in year 2003; $11,660,000 in year 2004; and $2,611,000 in year 2005. Manager is the asset manager for Madison and receives an asset management fee for this service. Separate Account 12/98 owns a 50% interest in Manager and a party unaffiliated with Separate Account 12/98 owns the remaining interest. Manager made the following distributions to Separate Account 12/98 during the periods indicated: $2,285,000 in 2001, $2,033,000 in 2002, $1,208,000 in 2003, $895,000 in 2004, and $648,000 in 2005. |
| (4) | Cash deficiencies after cash distributions and special items in 2001 were funded by cash generated from operations and sales in the year 2000. |
| (5) | Calculated as original total acquisition cost of properties retained divided by original total acquisition cost of all properties in program. |
F-58
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | | | | | | | | | | | | | |
| | | Commingled Account 6/99 | |
| | | 2001 | | | 2002 | | | 2003 | | | 2004 | | | 2005 | |
Gross revenues | | $ | 50,179,000 | | | $ | 49,096,000 | | | $ | 48,448,000 | | | $ | 41,800,000 | | | $ | 36,680,000 | |
Profit (loss) on sale of properties | | | — | | | | 998,000 | | | | (22,000 | ) | | | 2,464,000 | | | | (373,000 | ) |
Less: Operating expenses(1) | | | (24,885,000 | ) | | | (25,291,000 | ) | | | (25,452,000 | ) | | | (22,106,000 | ) | | | (20,568,000 | ) |
Interest expense | | | (6,871,000 | ) | | | (4,418,000 | ) | | | (3,679,000 | ) | | | (4,509,000 | ) | | | (5,147,000 | ) |
Depreciation(2) | | | — | | | | — | | | | — | | | | — | | | | — | |
Unrealized gain (loss)(2) | | | (9,611,000 | ) | | | (20,226,000 | ) | | | (1,562,000 | ) | | | (1,507,000 | ) | | | (2,572,000 | ) |
| | | | | | | | | | | | | | | | | | | | |
Net income (loss) - GAAP basis(2) | | $ | 8,812,000 | | | $ | 159,000 | | | $ | 17,733,000 | | | $ | 16,142,000 | | | $ | 8,020,000 | |
| | | | | | | | | | | | | | | | | | | | |
Taxable income: | | | | | | | | | | | | | | | | | | | | |
From operations | | $ | 12,244,000 | | | $ | 12,280,000 | | | $ | 11,087,000 | | | $ | 6,513,000 | | | $ | 3,235,000 | |
From gain (loss) on sale | | | — | | | $ | 1,776,000 | | | $ | (22,000 | ) | | $ | 6,429,000 | | | $ | 1,878,000 | |
Cash generated (deficiency) from operations | | $ | 17,748,000 | | | $ | 20,443,000 | | | $ | 18,794,000 | | | $ | 15,301,000 | | | $ | 10,460,000 | |
Cash generated (deficiency) from sales | | | — | | | | 7,507,000 | | | | — | | | | 22,643,000 | | | | 2,783,000 | |
Cash generated from refinancing | | | — | | | | — | | | | — | | | | 19,352,000 | | | | — | |
| | | | | | | | | | | | | | | | | | | | |
Total cash generated from operations, sales and refinancing | | $ | 17,748,000 | | | $ | 27,950,000 | | | $ | 18,794,000 | | | $ | 57,296,000 | | | $ | 13,243,000 | |
Less: Cash distributions to investors | | | | | | | | | | | | | | | | | | | | |
- From operating cash flow | | | (18,765,000 | ) | | | (7,674,000 | ) | | | (10,999,000 | ) | | | (5,061,000 | ) | | | (1,510,000 | ) |
- From sales and refinancing | | | — | | | | (6,826,000 | ) | | | — | | | | (42,124,000 | ) | | | (2,134,000 | ) |
| | | | | | | | | | | | | | | | | | | | |
Cash generated (deficiency) after cash distributions | | $ | (1,017,000 | ) | | $ | 13,450,000 | | | $ | 7,795,000 | | | $ | 10,111,000 | | | $ | 9,599,000 | |
Less: Special items (not including sales and refinancing) | | | — | | | | — | | | | — | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | |
Cash generated (deficiency) after cash distributions and special items(3) | | $ | (1,017,000 | ) | | $ | 13,450,000 | | | $ | 7,795,000 | | | $ | 10,111,000 | | | $ | 9,599,000 | |
| | | | | | | | | | | | | | | | | | | | |
F-59
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | | | | | | | | | | | | | |
| | | Commingled Account 6/99 | |
| | | 2001 | | | 2002 | | | 2003 | | | 2004 | | | 2005 | |
Tax and Distribution Data per $1,000 Invested | | | | | | | | | | | | | | | | | | | | |
| | | | | |
Federal Income Tax Results: | | | | | | | | | | | | | | | | | | | | |
Ordinary income (loss) | | | | | | | | | | | | | | | | | | | | |
- from operations | | $ | 70 | | | $ | 67 | | | $ | 63 | | | $ | 40 | | | $ | 24 | |
- from recapture | | | — | | | | — | | | | — | | | | — | | | | — | |
Capital gain (loss) | | | — | | | $ | 10 | | | | — | | | $ | 40 | | | $ | 14 | |
Cash distributions to investors | | | | | | | | | | | | | | | | | | | | |
Source (on GAAP basis) | | | | | | | | | | | | | | | | | | | | |
- from investment income | | $ | (107 | ) | | $ | (48 | ) | | $ | (62 | ) | | $ | (52 | ) | | $ | (18 | ) |
- from return of capital | | | — | | | | (31 | ) | | | — | | | | (240 | ) | | | (8 | ) |
| | | | | | | | | | | | | | | | | | | | |
Total distribution on GAAP basis | | $ | (107 | ) | | $ | (79 | ) | | $ | (62 | ) | | $ | (292 | ) | | $ | (26 | ) |
| | | | | | | | | | | | | | | | | | | | |
Source (on cash basis) | | | | | | | | | | | | | | | | | | | | |
- from sales | | | — | | | $ | (37 | ) | | | — | | | $ | (139 | ) | | $ | (15 | ) |
- from refinancing | | | — | | | | — | | | | — | | | | (122 | ) | | | — | |
- from operations | | | (107 | ) | | | (42 | ) | | | (62 | ) | | | (31 | ) | | | (11 | ) |
| | | | | | | | | | | | | | | | | | | | |
Total distributions on cash basis | | $ | (107 | ) | | $ | (79 | ) | | $ | (62 | ) | | $ | (292 | ) | | $ | (26 | ) |
| | | | | | | | | | | | | | | | | | | | |
Amounts (in percentage terms) remaining invested in program properties as of December 31, 2005(4) | | | | | | | | | | | | | | | | | | | 78 | % |
| (1) | Operating expenses include all general and administrative expenses. |
| (2) | The accompanying financial information has been prepared in conformity with accounting principles generally accepted in the United States for investment companies. Accordingly, the real estate investments are reflected at their estimated current values as determined by the general partner, using current appraisals or market information and the general partner’s good faith estimate of value. All other assets and liabilities are generally valued based on the actual costs or liabilities incurred, which management believes approximates current value. |
F-60
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | The major differences between GAAP basis income for investment companies and taxable income are the following: |
GAAP basis income for investment companies does not record depreciation expense while taxable income recognizes depreciation expense.
GAAP basis income for investment companies carries its assets at market value and records the changes in market value as unrealized gain or loss in the income statement. Taxable income records no such adjustment.
| (3) | Cash deficiencies after cash distributions and special items in 2001 were funded by cash generated from operations during the period June 1999 to December 1999. During the period June 15, 1999 to December 31, 1999, cash generated from operations was approximately $8.7 million compared to distributions to investors of approximately $2.7 million. |
| (4) | Calculated as original total acquisition cost of properties retained divided by original total acquisition cost of all properties in program. |
F-61
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | |
| | | Separate Account 6/05 | | | Separate Account 8/05 | |
| | | 2005 | | | 2005 | |
Gross revenues | | $ | 4,045,000 | | | $ | 1,110,000 | |
Profit (loss) on sale of properties | | | — | | | | — | |
Less: Operating expenses(1) | | | (2,098,000 | ) | | | (599,000 | ) |
Interest expense | | | (1,524,000 | ) | | | (454,000 | ) |
Depreciation(2) | | | — | | | | — | |
Unrealized gain (loss)(2) | | | — | | | | — | |
| | | | | | | | |
Net income (loss) - GAAP basis(2) | | $ | 423,000 | | | $ | 57,000 | |
| | | | | | | | |
Taxable income: | | | | | | | | |
From operations | | $ | 482,000 | | | $ | 23,000 | |
From gain (loss) on sale | | | — | | | | — | |
Cash generated (deficiency) from operations | | $ | 2,337,000 | | | $ | 1,601,000 | |
Cash generated (deficiency) from sales | | | — | | | | — | |
Cash generated from refinancing | | | — | | | | — | |
| | | | | | | | |
Total cash generated from operations, sales and refinancing | | $ | 2,337,000 | | | $ | 1,601,000 | |
Less: Cash distributions to investors | | | | | | | | |
- From operating cash flow | | | (1,505,000 | ) | | | (470,000 | ) |
- From sales and refinancing | | | — | | | | | |
| | | | | | | | |
Cash generated (deficiency) after cash distributions | | $ | 832,000 | | | $ | 1,131,000 | |
Less: Special items (not including sales and refinancing) | | | — | | | | — | |
| | | | | | | | |
Cash generated (deficiency) after cash distributions and special items | | $ | 832,000 | | | $ | 1,131,000 | |
| | | | | | | | |
F-62
TABLE III
OPERATING RESULTS OF PRIOR PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | |
| | | Separate Account 6/05 | | | Separate Account 8/05 | |
| | | 2005 | | | 2005 | |
Tax and Distribution Data per $1,000 Invested | | | | | | | | |
| | |
Federal Income Tax Results: | | | | | | | | |
Ordinary income (loss) | | | | | | | | |
- from operations | | $ | 12 | | | $ | 1 | |
- from recapture | | | — | | | | — | |
Capital gain (loss) | | | — | | | | — | |
Cash distributions to investors | | | | | | | | |
Source (on GAAP basis) | | | | | | | | |
- from investment income | | $ | 38 | | | $ | 13 | |
- from return of capital | | | — | | | | — | |
| | | | | | | | |
Total distribution on GAAP basis | | $ | 38 | | | $ | 13 | |
| | | | | | | | |
Source (on cash basis) | | | | | | | | |
- from sales | | | — | | | | — | |
- from refinancing | | | — | | | | — | |
- from operations | | $ | 38 | | | $ | 13 | |
| | | | | | | | |
Total distributions on cash basis | | $ | 38 | | | $ | 13 | |
| | | | | | | | |
Amounts (in percentage terms) remaining invested in program properties as of December 31, 2005(3) | | | 100 | % | | | 100 | % |
| (1) | Operating expenses include all general and administrative expenses. |
| (2) | The accompanying financial information has been prepared in conformity with accounting principles generally accepted in the United States for investment companies. Accordingly, the real estate investments are reflected at their estimated current values as determined by the general partner, using current appraisals or market information and the general partner’s good faith estimate of value. All other assets and liabilities are generally valued based on the actual costs or liabilities incurred, which management believes approximates current value. |
| | The major differences between GAAP basis income for investment companies and taxable income are the following: |
GAAP basis income for investment companies does not record depreciation expense while taxable income recognizes depreciation expense.
GAAP basis income for investment companies carries its assets at market value and records the changes in market value as unrealized gain or loss in the income statement. Taxable income records no such adjustment.
| (3) | Calculated as original total acquisition cost of properties retained divided by original total acquisition cost of all properties in program. |
F-63
TABLE IV
RESULTS OF COMPLETED PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
Table IV summarizes the results of programs sponsored by KBS investment advisers that have completed their operations and sold all of their properties during the five years ended December 31, 2005. Each of the programs represented in the table below had investment objectives that were similar to those of KBS Real Estate Investment Trust. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for these programs, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, with a focus primarily on value-added and enhanced-return assets. Like these funds, we will also seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties and real estate-related assets.
| | | | | | | | |
| | | Commingled
Account 12/95 (1) | | | Commingled
Account 5/95(2) | |
Dollar amount raised | | $ | 212,500,000 | (1) | | $ | 273,100,000 | (2) |
Number of properties purchased/developed | | | 62 | | | | 32 | |
Date of closing of offering | | | (1 | ) | | | (2 | ) |
Date of first sale of property | | | 8/97 | | | | 11/95 | |
Date of final sale of property | | | 6/02 | | | | 9/06 | |
Tax and distribution data per $1,000 invested through | | | | | | | | |
Federal income tax results: | | | | | | | | |
Ordinary income (loss): | | | | | | | | |
- from operations | | $ | 277 | | | $ | 295 | |
- from recapture | | | — | | | | — | |
Capital gain | | $ | 338 | | | $ | 230 | |
Deferred gain: | | | | | | | | |
Capital | | | — | | | | — | |
Ordinary | | | — | | | | — | |
Cash distributions to investors | | | | | | | | |
Source (on GAAP basis) | | | | | | | | |
- from investment income | | $ | 613 | | | $ | 517 | |
- from return of capital | | $ | 1,000 | | | $ | 1,000 | |
| | | | | | | | |
Total distribution on GAAP basis | | $ | 1,613 | | | $ | 1,517 | |
| | | | | | | | |
Source (on cash basis) | | | | | | | | |
- from sales | | $ | 1,459 | | | $ | 1,188 | |
- from refinancing | | | — | | | | — | |
- from operations | | $ | 154 | | | $ | 329 | |
F-64
TABLE IV
RESULTS OF COMPLETED PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| (1) | This program was a multi-investor, commingled fund that made investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber served as the general partner. The investors in this partnership contributed a total of $212,500,000 in nine capital raises between December 1995 and October 1997. |
| (2) | This program was a multi-investor, commingled fund that made investments through a limited partnership for which an affiliate of Messrs. Bren and Schreiber served as the general partner. The investors in this partnership contributed a total of $273,100,000 between April 1995 and May 1998. |
F-65
TABLE V
SALES OR DISPOSALS OF PROPERTIES
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
Table V presents summary information with respect to the results of sales or disposals of properties by programs sponsored by KBS investment advisers during the three years ended December 31, 2005. The table includes information about the sales proceeds received, the cash invested in the properties, the taxable gain or loss from the sales and the cash flow from the operation of the properties. Each of the programs represented in the table have or had investment objectives similar to those of KBS Real Estate Investment Trust. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for these programs, the KBS investment adviser specialized in acquiring a mix of value-added, enhanced-return and core real estate assets, with a focus primarily on value-added and enhanced-return assets. Like these funds, we will also seek to diversify our assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. We expect to invest primarily in core investments but to make approximately 30% of our investments in enhanced-return properties and real estate-related assets.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | Selling Price, Net of
Closing Costs and GAAP Adjustments | | Cost of Properties Including Closing
and Soft Costs | | | |
Property | | Date Acquired | | Date of Sale | | Cash Received Net of Closing Costs | | Mortgage Balance at Time of
Sale | | Purchase
Money Mortgage
Taken Back by
Program | | Adjustments Resulting
from Application
of GAAP | | Total(1) | | Original
Mortgage
Financing | | Total Acquisition Costs, Capital Improvements
Closing and Soft Costs(2) | | Total | | Excess
(Deficiency) of Property
Operating Cash
Receipts Over
Cash
Expenditures(3) | |
| Separate Account 12/98 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
American Place | | 3/99 | | 12/03 | | $ | 26,473,374 | | — | | — | | — | | $ | 26,473,374 | | | — | | $ | 34,766,176 | | $ | 34,766,176 | | $ | 15,127,344 | |
Landerhaven | | 1/99 | | 1/03 | | $ | 22,302,616 | | — | | — | | — | | $ | 22,302,616 | | | — | | $ | 22,005,986 | | $ | 22,005,986 | | $ | (9,784 | ) |
5 Omni Way | | 7/00 | | 8/05 | | $ | 17,832,579 | | — | | — | | — | | $ | 17,832,579 | | $ | 5,638,980 | | $ | 10,283,573 | | $ | 15,922,553 | | $ | 848,953 | |
| Commingled Account 5/95 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
International Plaza I -III | | 7/95 | | 3/03, 7/03
& 3/04 | | $ | 55,660,964 | | — | | — | | — | | $ | 55,660,964 | | | — | | $ | 46,454,243 | | $ | 46,454,243 | | $ | 20,625,408 | |
Plaza Lot 3 and Sunpark | | 7/95 | | 1/05, 9/05 | | $ | 29,254,441 | | — | | — | | — | | $ | 29,254,441 | | | — | | $ | 15,367,059 | | $ | 15,367,059 | | $ | 18,935,257 | |
| Commingled Account 12/96 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Longmont Land Lots 10, 12 and 14 | | 5/97 | | 7/03 &
11/03 | | $ | 3,359,170 | | — | | — | | — | | $ | 3,359,170 | | | — | | $ | 3,359,170 | | $ | 3,359,170 | | | — | |
Boulder County | | 5/97 | | 10/04 | | $ | 36,380,130 | | — | | — | | — | | $ | 36,380,130 | | | — | | $ | 38,380,896 | | $ | 38,380,896 | | $ | 6,447,448 | |
Longmont Land Lots 6, 7, 8, 9, 11 | | 5/97 | | 1/05 | | $ | 2,142,657 | | — | | — | | — | | $ | 2,142,657 | | | — | | $ | 421,369 | | $ | 421,369 | | $ | (891,335 | ) |
| Commingled Account 6/98 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
7th Gate | | 7/98 | | 2/04 | | $ | 3,621,079 | | — | | — | | — | | $ | 3,621,079 | | | — | | $ | 3,701,633 | | $ | 3,701,633 | | $ | 1,801,962 | |
Meridian | | 7/98 | | 4/04 | | $ | 2,839,460 | | — | | — | | — | | $ | 2,839,460 | | | — | | $ | 4,443,215 | | $ | 4,443,215 | | $ | 1,015,640 | |
N 7th Street | | 7/98 | | 7/04 | | $ | 3,297,931 | | — | | — | | — | | $ | 3,297,931 | | | — | | $ | 4,887,422 | | $ | 4,887,422 | | $ | 1,737,940 | |
Aztec | | 7/98 | | 9/04 | | $ | 3,390,786 | | — | | — | | — | | $ | 3,390,786 | | | — | | $ | 5,591,578 | | $ | 5,591,578 | | $ | 2,110,433 | |
South Tucson | | 7/98 | | 10/04 | | $ | 8,728,083 | | — | | — | | — | | $ | 8,728,083 | | | — | | $ | 8,986,280 | | $ | 8,986,280 | | $ | 1,340,648 | |
N Central | | 7/98 | | 12/04 | | $ | 30,133,059 | | — | | — | | — | | $ | 30,133,059 | | | — | | $ | 22,788,259 | | $ | 22,788,259 | | $ | 7,156,389 | |
26th Place | | 7/98 | | 2/05 | | $ | 1,933,857 | | — | | — | | — | | $ | 1,933,857 | | | — | | $ | 3,859,124 | | $ | 3,859,124 | | $ | 109,139 | |
Tudor Plaza | | 7/98 | | 2/05 | | $ | 1,650,418 | | — | | — | | — | | $ | 1,650,418 | | | — | | $ | 2,166,761 | | $ | 2,166,761 | | $ | 790,671 | |
Metro Exec Park | | 7/98 | | 4/05 | | $ | 5,586,063 | | — | | — | | — | | $ | 5,586,063 | | | — | | $ | 7,930,933 | | $ | 7,930,933 | | $ | 3,400,504 | |
S Tucson | | 7/98 | | 5/05 | | $ | 160,701 | | — | | — | | — | | $ | l60,701 | | | — | | $ | 299,224 | | $ | 299,224 | | $ | 1,080,658 | |
F-66
TABLE V
SALES OR DISPOSALS OF PROPERTIES
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Property | | Date Acquired | | Date of Sale | | Selling Price, Net of Closing Costs and GAAP Adjustments | | Cost of Properties Including Closing
and Soft Costs | | |
| | | | Cash Received Net of Closing Costs | | Mortgage Balance at Time of
Sale | | Purchase
Money Mortgage
Taken Back by
Program | | Adjustments Resulting
from Application
of GAAP | | Total(1) | | Original
Mortgage
Financing | | Total Acquisition Costs, Capital Improvements
Closing and Soft Costs(2) | | Total | | Excess
(Deficiency) of Property
Operating Cash
Receipts Over
Cash
Expenditures(3) |
Westmount | | 7/98 | | 9/05 | | $ | 7,109,456 | | — | | — | | — | | $ | 7,109,456 | | — | | $ | 5,892,426 | | $ | 5,892,426 | | $ | 2,153,581 |
| Commingled Account 6/99 | | | | | | | | | | | | | | | | | | | | $ | | | | | | $ | |
Galleria | | 10/99 | | 2/04 | | $ | 11,039,602 | | — | | — | | — | | $ | 11,039,602 | | — | | $ | 11,126,308 | | $ | 11,126,308 | | $ | 5,120,256 |
Weslayan | | 10/99 | | 8/04 | | $ | 6,674,417 | | — | | — | | — | | $ | 6,674,417 | | — | | $ | 6,691,337 | | $ | 6,691,337 | | $ | 3,121,069 |
Atrium | | 12/99 | | 11/04 | | $ | 10,647,637 | | — | | — | | — | | $ | 10,647,637 | | — | | $ | 10,706,206 | | $ | 10,706,206 | | $ | 5,042,081 |
Nagog | | 9/99 | | 11/04 | | $ | 9,889,060 | | — | | — | | — | | $ | 9,889,060 | | — | | $ | 7,262,719 | | $ | 7,262,719 | | $ | 4,356,982 |
Reston | | 8/99 | | 3/05 | | $ | 11,279,937 | | — | | — | | — | | $ | 11,279,937 | | — | | $ | 10,967,837 | | $ | 10,967,837 | | $ | 4,679,722 |
Harrison Oaks | | 10/99 | | 12/05 | | $ | 6,569,320 | | — | | — | | — | | $ | 6,569,320 | | — | | $ | 7,254,705 | | $ | 7,254,705 | | $ | 2,690,574 |
Separate Account 10/97 | | | | | | | | | | | | | | | | | | | | $ | | | | | | $ | |
Arapahoe | | 1/98 | | 8/03 | | $ | 7,432,751 | | — | | — | | — | | $ | 7,432,751 | | — | | $ | 10,622,358 | | $ | 10,622,358 | | $ | 2,426,230 |
| (1) | See also the table immediately below that sets forth the allocation of taxable gain (loss) associated with individual property sales between capital gain (loss) and ordinary gain (loss). |
| (2) | Acquisition costs include acquisition fees paid to sponsor. Soft costs include legal fees, environmental studies, title and closing costs related to the acquisition and closing of the asset. Amounts shown do not include pro rata share of program offering costs nor do they include any program administration costs not related to the operation of the property. |
| (3) | Does not include any program administration costs not related to the operation of the property. |
F-67
TABLE V
SALES OR DISPOSALS OF PROPERTIES
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
This table sets forth the allocation of taxable gain (loss) associated with individual property sales between capital gain (loss) and ordinary gain (loss) for properties sold by programs sponsored by KBS investment advisers during the three years ended December 31, 2005.
| | | | | | | | | | |
Property | | Taxable Gain
(Loss) | | | Capital Gain
(Loss) | | | Ordinary Gain
(Loss) |
| Separate Account 12/98 | | | | | | | | | | |
American Place | | $ | (4,531,787 | ) | | $ | (4,531,787 | ) | | — |
Landerhaven | | $ | 1,535,164 | | | $ | 1,535,164 | | | — |
5 Omni Way | | $ | 3,251,004 | | | $ | 3,251,004 | | | — |
| Commingled Account 5/95 | | | | | | | | | | |
Plaza I –III | | $ | 4,995,873 | | | $ | 4,995,873 | | | — |
Lot 3 and Plaza Sunpark | | $ | 18,229,839 | | | $ | 18,229,839 | | | — |
| Commingled Account 12/96 | | | | | | | | | | |
Longmont Land Lots 10, 12 and 14 | | $ | 1,501,426 | | | $ | 1,501,426 | | | — |
Boulder County Business Center | | $ | 2,794,480 | | | $ | 2,794,480 | | | — |
Longmont Land Lots 6, 7, 8, 9 and 11 | | $ | (1,683,407 | ) | | $ | (1,683,407 | ) | | — |
| Commingled Account 6/98 | | | | | | | | | | |
7th Gate | | $ | 355,385 | | | $ | 355,385 | | | — |
Meridian | | $ | (1,087,935 | ) | | $ | (1,087,935 | ) | | — |
N 7th Street | | $ | (1,049,954 | ) | | $ | (1,049,954 | ) | | — |
Aztec | | $ | (1,498,832 | ) | | $ | (1,498,832 | ) | | — |
South Tucson | | $ | 1,012,991 | | | $ | 1,012,991 | | | — |
N Central | | $ | 10,753,764 | | | $ | 10,753,764 | | | — |
26th Place | | $ | (1,375,480 | ) | | $ | (1,375,480 | ) | | — |
Tudor Plaza | | $ | (225,060 | ) | | $ | (225,060 | ) | | — |
Metro Exec Park | | $ | (1,185,370 | ) | | $ | (1,185,370 | ) | | — |
F-68
TABLE V
SALES OR DISPOSALS OF PROPERTIES
(UNAUDITED)
Prior Performance Is Not Indicative of Future Results
| | | | | | | | | | | |
Property | | Taxable Gain Loss) | | | Capital Gain (Loss) | | Ordinary Gain (Loss) | |
Westmount | | $ | 2,052,267 | | | $ | 2,052,267 | | | — | |
| Commingled Account 6/99 | | | | | | | | | | | |
Galleria | | $ | 1,101,117 | | | $ | 1,101,117 | | | — | |
Weslayan | | $ | 749,959 | | | $ | 749,959 | | | — | |
Atrium | | $ | 1,259,525 | | | $ | 1,259,525 | | | — | |
Nagog Retail | | $ | 3,318,032 | | | $ | 3,318,032 | | | — | |
Reston | | $ | 1,565,666 | | | $ | 1,565,666 | | | — | |
Harrison Oaks | | $ | 312,011 | | | $ | 312,011 | | | — | |
| Separate Account 10/97 | | | | | | | | | | | |
Arapahoe | | $ | (1,871,718 | ) | | | — | | $ | (1,871,718 | ) |
F-69
KBS REAL ESTATE INVESTMENT TRUST, INC.
SUPPLEMENT NO. 13 DATED JANUARY 4, 2007
TO THE PROSPECTUS DATED JANUARY 13, 2006
This document supplements, and should be read in conjunction with, the prospectus of KBS Real Estate Investment Trust, Inc. dated January 13, 2006, as supplemented by supplement no. 6 dated October 6, 2006. This supplement no. 13 supersedes and replaces supplement no. 7, dated November 16, 2006, supplement no. 8, dated November 30, 2006, supplement no. 9, dated December 11, 2006, supplement no. 10, dated December 12, 2006, supplement no. 11, dated December 27, 2006 and supplement no. 12, dated December 29, 2006. As used herein, the terms “we,” “our” and “us” refer to KBS Real Estate Investment Trust, Inc. and, as required by context, KBS Limited Partnership, which we refer to as our “Operating Partnership” and to their subsidiaries. Capitalized terms used in this supplement have the same meanings as set forth in the prospectus. The purpose of this supplement is to disclose:
| | • | | the status of the offering; |
| | • | | information regarding acquisitions and related financings since October 6, 2006 and acquisitions that are reasonably probable as of the date of this supplement; |
| | • | | the declaration of daily dividends and an advance by our advisor in connection with the declaration of dividends; |
| | • | | information regarding our indebtedness; |
| | • | | the renewal of our advisory agreement; |
| | • | | information with respect to our distribution policy; |
| | • | | the adoption of a policy by our board of directors prohibiting awards of shares of common stock to any person under our Employee and Independent Director Stock Plan; |
| | • | | an amendment to our share redemption program; |
| | • | | the use of supplemental sales material; |
| | • | | “Management’s Discussion and Analysis of Financial Condition and Results of Operations” similar to that filed in our Quarterly Report on Form 10-Q for the three months ended September 30, 2006, filed on November 14, 2006; |
| | • | | changes to the suitability standards applicable to investors in Kansas; |
| | • | | a change to the dealer manager’s reallowance of its dealer manager fee; and |
| | • | | our unaudited financial statements and the notes thereto as of and for the three and nine months ended September 30, 2006. |
Status of the Offering
We commenced this offering of 280,000,000 shares of common stock on January 27, 2006. As of January 3, 2007, we had accepted aggregate gross offering proceeds of approximately $116.5 million.
1
Because we had satisfied the special minimum offering for Pennsylvania investors, on November 29, 2006, we began admitting Pennsylvania investors as stockholders.
Recent Acquisitions
Included below is a description of our acquisitions and the related financings since October 6, 2006. Refer to supplement no. 6 for all acquisitions and related financings prior to October 6, 2006.
Acquisition and Related Financing of the Southpark Commerce Center II Buildings
On November 21, 2006, we purchased, through an indirect wholly owned subsidiary, four light industrial/flex buildings containing 372,125 rentable square feet (the “Southpark Commerce Center II Buildings”) from Transwestern SF Partners I, L.P., which is not affiliated with us or our advisor. The Southpark Commerce Center II Buildings are located on an approximate 26-acre parcel of land at 4509 Freidrich Lane in Austin, Texas. The purchase price of the Southpark Commerce Center II Buildings was $28,400,000 plus closing costs. The acquisition was funded with proceeds from the two loans described below and proceeds from this offering.
In connection with the acquisition, we obtained an $18,000,000 fixed rate mortgage loan from a financial institution. The loan matures on December 6, 2016 and bears interest at a fixed rate of 5.6725% per annum. Monthly installments on the loan are interest-only and the entire principal amount is due on the maturity date, assuming no prior principal prepayment. We have the right to defease the entire loan (but not prepay) upon the later to occur of: (a) the forty-second payment date and (b) two years after the “start up day” of the REMIC trust established by the lender. This loan is secured by the Southpark Commerce Center II Buildings.
Also in connection with the acquisition, we obtained a $5,200,000 mezzanine loan from a financial institution secured by a 100% equity interest in our indirect wholly owned subsidiary that holds title to the property. This loan matures on December 6, 2007 and bears interest at a variable rate. The interest rate for the first full eight months is 30-day LIBOR plus 150 basis points and thereafter is 30-day LIBOR plus 250 to 350 basis points depending upon the outstanding balance of the debt. Monthly installments related to the loan are interest-only and the entire principal amount is due on the maturity date, assuming no prior principal prepayment. The full payment of the mezzanine loan when due is guaranteed by our Operating Partnership with respect to certain “bad boy” acts. The mezzanine loan may be prepaid in whole and in part without payment of any prepayment premium or penalties, except that interest through the next payment date must be paid.
The Southpark Commerce Center II Buildings were built in 2000 and are currently 98% leased by seven tenants, including the following: Travis Association for the Blind (approximately 27%), Legerity, Inc. (approximately 19%), Wayport, Inc. (approximately 19%) and Esoterix, Inc. (approximately 11%). Travis Association for the Blind is a service oriented non-profit organization that receives, stores and ships clothing items for use by the armed forces. Wayport, Inc. serves the hospitality industry as a broadband provider and delivers high-speed Wi-Fi wireless and wired internet access to travelers in airports, hotels and McDonald’s nationwide. Legerity, Inc. is a leading provider of analog/mixed signal integrated circuits for wireless voice and data networks. Esoterix, Inc. is a wholly owned subsidiary of Laboratory Corporation of America Holdings and is one of the top providers of clinical laboratory services in the world. Esoterix, Inc.’s client base includes hospitals, physicians, pharmaceutical and biotechnology companies, research laboratories and managed care operations.
2
The average occupancy rate for the Southpark Commerce Center II Buildings for the last five years was as follows:
| | | | |
| Year | | | | Average Occupancy Rate |
| 2001 | | | | 59% |
| 2002 | | | | 81% |
| 2003 | | | | 81% |
| 2004 | | | | 88% |
| 2005 | | | | 91% |
The current aggregate annual base rent for the tenants of the Southpark Commerce Center II Buildings is approximately $1.9 million. As of December 2006, the current weighted-average remaining lease term for the current tenants of the Southpark Commerce Center II Buildings was approximately 3 years. The Travis Association for the Blind lease expires on August 31, 2011, and the average annual rental rate for the Travis Association for the Blind lease over the remaining lease term is $5.35 per square foot. Travis Association for the Blind has the right, at its option, to terminate its lease if its contract with the US Department of Defense is (i) cancelled or (ii) amended to require the Travis Association for the Blind to reduce or expand by 25% or more and we cannot accommodate this requirement. If Travis Association for the Blind were to terminate its lease, six months notice is required with the payment of three months gross rent plus unamortized commissions. The Wayport, Inc. lease expires on March 31, 2010, and the average annual rental rate for the Wayport, Inc. lease over the remaining lease term is $6.17 per square foot. Wayport, Inc. has the right, at its option, to extend the initial term of its lease for one additional five-year period provided that the tenant leases at least all of the original premises. The Legerity, Inc. lease expires on May 31, 2008, and the average annual rental rate for the Legerity, Inc. lease over the remaining lease term is $5.33 per square foot. The Esoterix, Inc. lease expires on December 31, 2008, and the average annual rental rate for the Esoterix, Inc. lease over the remaining lease term is $6.09 per square foot. Esoterix, Inc. has the right, at its option, to extend the initial term of its lease for two additional one-year periods.
The average effective annual rental rate per square foot for each of the last five years for the Southpark Commerce Center II Buildings was:
| | | | |
| Year | | | | Average Effective
Annual Rental Rate per
Square Foot |
| 2001 | | | | $12.40 |
| 2002 | | | | $10.64 |
| 2003 | | | | $ 8.98 |
| 2004 | | | | $ 6.03 |
| 2005 | | | | $ 5.92 |
We calculate average effective annual rental rate per square foot as the annual base rent, net of free rent, for the year divided by the average leased square feet for the year.
The table below sets forth the lease expirations of the Southpark Commerce Center II Buildings for the next ten years, including the number of tenants whose leases will expire, the total area in square feet covered by such leases and the percentage of gross annual rent represented by such leases. All leases expire by 2011.
3
| | | | | | | | | |
| | | No. of
Leases Expiring | | Total Square
Feet of Expiring Leases | | Gross Annual
Rent of
Expiring
Leases | | % of Gross Annual Rent Represented by Expiring Leases |
2007 | | — | | — | | | — | | — |
2008 | | 2 | | 113,298 | | $ | 758,683 | | 41.17% |
2009 | | 2 | | 53,323 | | $ | 349,057 | | 18.94% |
2010 | | 1 | | 70,700 | | $ | 318,324 | | 17.27% |
2011 | | 2 | | 126,373 | | $ | 416,890 | | 22.62% |
2012 | | — | | — | | | — | | — |
2013 | | — | | — | | | — | | — |
2014 | | — | | — | | | — | | — |
2015 | | — | | — | | | — | | — |
2016 | | — | | — | | | — | | — |
Gross annual rent of expiring leases, for each of the years indicated, is based on the minimum contractual base rent, net of free rent, due for the calendar year ending December 31, 2006.
The following table shows how we will depreciate the value of the building for tax purposes as well as certain tax information related to the Southpark Commerce Center II Buildings:
| | | | | | | | | |
| | | Federal Tax Basis | | Rate of
Depreciation | | Method of
Depreciation | | Depreciable Life |
Land | | $ | 3,099,999 | | Non-depreciable | | N/A | | N/A |
Building | | | 25,662,066 | | 39 years | | Straight-line | | 39 years |
| | | | | | | | | |
Total | | $ | 28,762,065 | | | | | | |
| | | | | | | | | |
We do not intend to make significant renovations or improvements to the Southpark Commerce Center II Buildings. Our management believes that the Southpark Commerce Center II Buildings are adequately insured.
Acquisition and Related Financing of the 825 University Avenue Building
On December 5, 2006, we purchased, through an indirect wholly owned subsidiary, a one-and two-story corporate research building containing 166,574 rentable square feet (the “825 University Avenue Building”) from CFRI/Doherty University Avenue, L.L.C., which is not affiliated with us or our advisor. The 825 University Avenue Building is located on an approximate 19-acre parcel of land at 825 University Avenue in Norwood, Massachusetts. The purchase price of the 825 University Avenue Building was $28,800,000 plus closing costs. The acquisition was funded with proceeds from the two loans described below and proceeds from this offering.
In connection with the acquisition, we obtained a $19,000,000 fixed rate mortgage loan from a financial institution. The loan matures on December 6, 2013 and bears interest at a fixed rate of 5.591% per annum. Monthly installments on the loan are interest-only and the entire principal amount is due on the maturity date, assuming no prior principal prepayment. We have the right to defease the entire loan (but not prepay) upon the later to occur of: (a) the forty-second payment date and (b) two years after the “start up day” of the REMIC trust established by the lender. This loan is secured by the 825 University Avenue Building.
Also in connection with the acquisition, we obtained a $5,600,000 mezzanine loan from a financial institution secured by a 100% equity interest in our indirect wholly owned subsidiary that holds title to the property. This loan matures on December 6, 2007 and bears interest at a variable rate. The interest rate for the first full eight months is 30-day LIBOR plus 150 basis points and thereafter is 30-day
4
LIBOR plus 250 to 350 basis points depending upon the outstanding balance of the debt. Monthly installments related to the loan are interest-only and the entire principal amount is due on the maturity date, assuming no prior principal prepayment. The full payment of the mezzanine loan when due is guaranteed by our Operating Partnership with respect to certain “bad boy” acts. The mezzanine loan may be prepaid in whole and in part without payment of any prepayment premium or penalties, except that interest through the next payment date must be paid.
The 825 University Avenue Building was fully renovated between 2004 and 2006 and is currently 100% leased by the following tenants: Instron Corporation (approximately 66%) and LTX Corporation (approximately 34%). Instron Corporation, a division of Illinois Tool Works, is a premier maker of instruments, systems and software used to test the mechanical properties and performance of ceramics, composites, metals, plastics, rubber and textiles. LTX Corporation has been designing, developing and marketing advanced test solutions for the semiconductor industry for 30 years.
The average occupancy rate for the 825 University Avenue Building for the last five years was as follows:
| | | | |
| Year | | | | Average Occupancy Rate |
| 2001 | | | | * |
| 2002 | | | | * |
| 2003 | | | | * |
| 2004 | | | | * |
| 2005 | | | | 66% |
| * | Information is not available for 2001. The 825 University Building was vacant when it was acquired in 2002 by an unaffiliated buyer who converted the building from a single-tenant building to a multi-tenant building between 2004 and 2006. |
The current aggregate annual base rent for the tenants of the 825 University Avenue Building is approximately $1.7 million. As of December 2006, the current weighted-average remaining lease term for the current tenants of the 825 University Avenue Building was approximately 9 years. The Instron Corporation lease expires in March 2015, and the average annual rental rate for the Instron Corporation lease over the remaining lease term is $12.86 per square foot. Instron Corporation has the right, at its option, to extend the initial term of its lease for two additional five-year periods. The LTX Corporation lease expires in June 2016, and the average annual rental rate for the LTX Corporation lease over the remaining lease term is $15.39 per square foot. LTX Corporation has the right, at its option, to extend the initial term of its lease for two additional five-year periods.
The average effective annual rental rate per square foot for each of the last five years for the 825 University Avenue Building was:
| | | | |
| Year | | | | Average Effective
Annual Rental Rate per
Square Foot |
| 2001 | | | | * |
| 2002 | | | | * |
| 2003 | | | | * |
| 2004 | | | | * |
| 2005 | | | | $12.07 |
| * | Information is not available for 2001. The 825 University Building was vacant when it was acquired in 2002 by an unaffiliated buyer who converted the building from a single-tenant building to a multi-tenant building between 2004 and 2006. |
5
We calculate average effective annual rental rate per square foot as the annual base rent, net of free rent, for the year divided by the average leased square feet for the year.
The table below sets forth the lease expirations of the 825 University Avenue Building for each of the next ten years, including the number of tenants whose leases will expire, the total area in square feet covered by such leases and the percentage of gross annual rent represented by such leases.
| | | | | | | | | |
| | | No. of
Leases Expiring | | Total Square
Feet of Expiring Leases | | Gross Annual
Rent of
Expiring
Leases | | % of Gross Annual Rent Represented by Expiring Leases |
2007 | | — | | — | | | — | | — |
2008 | | — | | — | | | — | | — |
2009 | | — | | — | | | — | | — |
2010 | | — | | — | | | — | | — |
2011 | | — | | — | | | — | | — |
2012 | | — | | — | | | — | | — |
2013 | | — | | — | | | — | | — |
2014 | | — | | — | | | — | | — |
2015 | | 1 | | 110,194 | | $ | 1,330,042 | | 76.99% |
2016 | | 1 | | 56,380 | | $ | 397,479 | | 23.01% |
Gross annual rent of expiring leases, for each of the years indicated, is based on the minimum contractual base rent, net of free rent, due for the calendar year ending December 31, 2006.
The following table shows how we will depreciate the value of the building for tax purposes as well as certain tax information related to the 825 University Avenue Building:
| | | | | | | | | |
| | | Federal Tax Basis | | Rate of Depreciation | | Method of
Depreciation | | Depreciable Life |
Land | | $ | 4,165,000 | | Non-depreciable | | N/A | | N/A |
Building | | | 25,015,091 | | 39 years | | Straight-line | | 39 years |
| | | | | | | | | |
Total | | $ | 29,180,091 | | | | | | |
| | | | | | | | | |
We do not intend to make significant renovations or improvements to the 825 University Avenue Building. Our management believes that the 825 University Avenue Building is adequately insured.
Acquisition and Related Financing of the Midland Industrial Portfolio
On December 22, 2006, we purchased, through an indirect wholly owned subsidiary, three bulk distribution buildings containing 785,790 rentable square feet (the “Midland Industrial Portfolio”) from DP Partners, which is not affiliated with us or our advisor. The Midland Industrial Portfolio is located on three parcels of land at 90 King Mill Road (approximately 15 acres), 197 King Mill Road (approximately 16 acres) and 220 Midland Court (approximately 7 acres) in McDonough, Georgia. The purchase price of the Midland Industrial Portfolio was $37,100,000 plus closing costs. The acquisition was funded with proceeds from the two loans described below and proceeds from this offering.
In connection with the acquisition, we obtained a $24,050,000 fixed rate mortgage loan from a financial institution. The loan matures on January 6, 2011 and bears interest at a fixed rate of 5.755% per annum for the first two years and 5.855% thereafter. Monthly installments on the loan are interest-only and the entire principal amount is due on the maturity date, assuming no prior principal prepayment. We have the right to defease the entire loan (but not prepay) upon the later to occur of: (a) the forty-second
6
payment date and (b) two years after the “start up day” of the REMIC trust established by the lender. This loan is secured by the Midland Industrial Portfolio.
Also in connection with the acquisition of the Midland Industrial Portfolio, we obtained a $8,700,000 mezzanine loan from a financial institution secured by a 100% equity interest in our wholly owned subsidiary that holds title to the property. This loan matures on January 6, 2008 and bears interest at a variable rate. The interest rate for the first full four months is 30-day LIBOR plus 150 basis points, then for the next four months is 30-day LIBOR plus 150 to 175 basis points depending on the outstanding balance of the debt. Thereafter the interest rate is 30-day LIBOR plus 250 to 350 basis points depending upon the outstanding balance of the debt. Monthly installments related to the loan are interest-only and the entire principal amount is due on the maturity date, assuming no prior principal prepayment. The full payment of the mezzanine loan when due is guaranteed by our Operating Partnership with respect to certain “bad boy” acts. The mezzanine loan may be prepaid in whole and in part without payment of any prepayment premium or penalties, except that interest through the next payment date must be paid.
The Midland Industrial Portfolio was completed in 2000 and is currently 100% leased to Ozburn-Hessey Logistics, LLC (“Ozburn-Hessey”) under three separate lease agreements. Ozburn-Hessey is the largest privately held third party logistics provider in the United States. It supplies its clients with complete supply chain solutions nationwide, including custom brokerage and freight forwarding, real estate, small parcel transportation, and transportation management, value-added services and warehousing.
The average occupancy rate for the Midland Industrial Portfolio for the last five years was as follows:
| | | | |
Year | | | | Average Occupancy Rate |
2001 | | | | 100% |
2002 | | | | 100% |
2003 | | | | 100% |
2004 | | | | 100% |
2005 | | | | 100% |
The current aggregate annual base rent payable under the Ozburn-Hessey leases is approximately $2.7 million. As of December 2006, the current weighted-average remaining lease term for the Ozburn-Hessey leases was approximately 8 years. The Ozburn-Hessey lease at 90 King Mill Road expires in May 2013, and the average annual rental rate for the lease over the remaining lease term is $3.04 per square foot. The Ozburn-Hessey lease at 197 King Mill Road expires in August 2015, and the average annual rental rate for the lease over the remaining lease term is $2.88 per square foot. The Ozburn-Hessey lease at 220 Midland Court expires in March 2014, and the average annual rental rate for the lease over the remaining lease term is $3.66 per square foot.
7
The average effective annual rental rate per square foot for each of the last five years for the Midland Industrial Portfolio was:
| | | | |
| Year | | | | Average Effective
Annual Rental Rate per
Square Foot |
| 2001 | | | | $3.07 |
| 2002 | | | | $3.10 |
| 2003 | | | | $3.10 |
| 2004 | | | | $3.10 |
| 2005 | | | | $3.10 |
We calculate average effective annual rental rate per square foot as the annual base rent, net of free rent, for the year divided by the average leased square feet for the year.
The table below sets forth the lease expirations of the Midland Industrial Portfolio for each of the next ten years, including the number of tenants whose leases will expire, the total area in square feet covered by such leases and the percentage of gross annual rent represented by such leases.
| | | | | | | | |
| | | No. of
Leases Expiring | | Total Square
Feet of Expiring Leases | | Gross Annual
Rent of
Expiring
Leases | | % of Gross Annual Rent Represented by Expiring Leases |
2007 | | — | | — | | — | | — |
2008 | | — | | — | | — | | — |
2009 | | — | | — | | — | | — |
2010 | | — | | — | | — | | — |
2011 | | — | | — | | — | | — |
2012 | | — | | — | | — | | — |
2013 | | 1 | | 320,160 | | $974,387 | | 40.05% |
2014 | | 1 | | 150,875 | | $552,227 | | 22.70% |
2015 | | 1 | | 314,755 | | $906,494 | | 37.25% |
2016 | | — | | — | | — | | — |
Gross annual rent of expiring leases, for each of the years indicated, is based on the minimum contractual base rent, net of free rent, due for the calendar year ending December 31, 2006.
The following table shows how we will depreciate the value of the building for tax purposes as well as certain tax information related to the Midland Industrial Portfolio:
| | | | | | | | | |
| | | Federal Tax Basis | | Rate of
Depreciation | | Method of
Depreciation | | Depreciable Life |
Land | | $ | 5,040,000 | | Non-depreciable | | N/A | | N/A |
Building | | | 32,488,372 | | 39 years | | Straight-line | | 39 years |
| | | | | | | | | |
Total | | $ | 37,528,372 | | | | | | |
| | | | | | | | | |
We do not intend to make significant renovations or improvements to the Midland Industrial Portfolio. Our management believes that the Midland Industrial Portfolio is adequately insured.
8
Probable Aquisitions
Sandmar Mezzanine Loan
We expect to purchase an $8,000,000 mezzanine loan in January 2007 (the “Sandmar Mezzanine Loan”). The seller of this loan is AIG Mortgage Capital, LLC, which is not affiliated with us or our advisor. The purchase price of the Sandmar Mezzanine Loan is approximately $8,000,000 plus closing costs. We expect to fund the entire purchase price with proceeds from this offering.
There are six borrowers under the Sandmar Mezzanine Loan: Westmarket Associates 2006 MB LLC, Little River Associates 2006 MB LLC, Clinton Associates 2006 MB LLC, Newmarket Associates 2006 MB LLC, Apopka Associates 2006 MB LLC and Westgate Associates 2006 MB LLC. Neither we nor our advisor are affiliated with any of the borrowers. We expect the Sandmar Mezzanine Loan will bear interest at a fixed rate of 12% and will have an initial maturity date of ten years from origination. Prior to the maturity date, the borrowers under the Sandmar Mezzanine Loan would be required to make monthly interest-only payments to us, with the outstanding principal balance being due on the maturity date.
The Sandmar Mezzanine Loan is being used by the borrowers to partially fund the acquisition of six grocery-anchored, small neighborhood and single tenant retail centers, which together comprise 818,888 square feet (the “Sandmar Portfolio”), plus approximately $2.8 million in future capital expenditures and leasing costs. The properties are located in three states, North Carolina (three properties), Florida (two properties), and Tennessee (one property), and have an average occupancy of 91%. Each borrower indirectly owns one of the six properties through a wholly owned subsidiary that holds title to the property. There is $49,600,000 of senior financing on the Sandmar Portfolio.
The Sandmar Mezzanine Loan would be secured by, among other things, a pledge by each borrower of its interests in the respective wholly owned subsidiary that each holds title to one of the six properties in the Sandmar Portfolio. With respect to certain “bad boy” acts, amounts outstanding under the Sandmar Mezzanine Loan would be guaranteed by two individuals who have indirect interests in the Sandmar Portfolio.
Pursuant to an intercreditor agreement, our right to payment under the Sandmar Mezzanine Loan would be subordinate to the right to payment of the lender under the $49,600,000 mortgage loan made to the limited liability companies that directly hold title to the properties. The intercreditor agreement would provide that in the event of a default under the Sandmar Mezzanine Loan, we would be entitled to foreclose on the borrowers’ membership interests in the limited liability companies that hold title to the properties subject to the satisfaction of customary transfer provisions set forth in the intercreditor agreement.
Unlike a foreclosure under a deed of trust or mortgage, the foreclosure of a membership interest entitles the foreclosing party (in this case, our indirectly wholly owned subsidiary) to take title to an equity interest rather than actually taking title to the real property. Foreclosure on the membership interests in this transaction would allow us to take indirect control of the Sandmar Portfolio, subject to the senior debt related to the properties.
There can be no assurance that we will complete the acquisition.
9
Crescent Green Buildings Purchase and Sale Agreement
On December 19, 2006, our advisor, KBS Capital Advisors, entered into a purchase and sale agreement with Crescent 1100, LLC, Crescent 1200, LLC and Crescent 1300, LLC to purchase three office buildings located in Cary, North Carolina (the “Crescent Green Buildings”). On December 21, 2006, the advisor assigned this purchase and sale agreement to us for no consideration. Pursuant to the purchase and sale agreement, we would be obligated to purchase the property only after satisfactory completion of agreed upon closing conditions. The sellers are not affiliated with us or our advisor.
The purchase price of the Crescent Green Buildings is $48,140,000 plus closing costs. We would fund the purchase of the Crescent Green Buildings with proceeds from a loan from an unaffiliated lender and with proceeds from this offering. We are currently negotiating the terms of the loan.
The Crescent Green Buildings are three office buildings comprising 248,832 rentable square feet and are located on an approximate 24-acre parcel of land at 1100 Crescent Green, 1200 Crescent Green and 1300 Crescent Green in Cary, North Carolina. The Crescent Green Buildings were completed in 1996, 1997 and 1998, respectively, and are currently 99% leased by fifteen tenants, including the largest tenant, Affiliated Computer Services (approximately 63%). Affiliated Computer Services is a premier provider of diversified business process outsourcing and information technology outsourcing solutions to commercial and government clients worldwide. Affiliated Computer Services also provides a variety of systems integration and technology outsourcing services, including data center operations, network management, and technical support and training services.
The average occupancy rate for the Crescent Green Buildings for the last five years was as follows:
| | | | |
| Year | | | | Average Occupancy Rate |
| 2001 | | | | 69% |
| 2002 | | | | 70% |
| 2003 | | | | 78% |
| 2004 | | | | 84% |
| 2005 | | | | 88% |
The current aggregate annual base rent for the tenants of the Crescent Green Buildings is approximately $3.8 million. As of December 31, 2006, the current weighted-average remaining lease term for the current tenants of the Crescent Green Buildings is approximately 5 years. The Affiliated Computer Services lease expires in June 2013, and the average annual rental rate for the Affiliated Computer Services lease over the remaining lease term is $1.34 per square foot. Beginning in June 2011, Affiliated Computer Services has the right, at its option, to terminate its lease in the 1200 building (76,316 square feet) with 12 months notice.
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The average effective annual rental rate per square foot for each of the last five years for the Crescent Green Buildings was:
| | | | |
| Year | | | | Average Effective
Annual Rental Rate per
Square Foot |
| 2001 | | | | $17.88 |
| 2002 | | | | $18.93 |
| 2003 | | | | $17.25 |
| 2004 | | | | $17.28 |
| 2005 | | | | $17.25 |
We calculate average effective annual rental rate per square foot as the annual base rent, net of free rent, for the year divided by the average leased square feet for the year.
The table below sets forth the lease expirations of the Crescent Green Buildings for each of the next ten years, including the number of tenants whose leases will expire, the total area in square feet covered by such leases and the percentage of gross annual rent represented by such leases.
| | | | | | | | | |
| | | No. of
Leases Expiring | | Total Square
Feet of Expiring Leases | | Gross Annual
Rent of
Expiring Leases | | % of Gross Annual Rent Represented by Expiring Leases |
2007 | | 1 | | 1,574 | | $ | 30,365 | | 1.27% |
2008 | | 4 | | 42,230 | | $ | 753,739 | | 31.51% |
2009 | | 2 | | 4,267 | | $ | 62,123 | | 2.60% |
2010 | | 3 | | 16,382 | | $ | 98,492 | | 4.12% |
2011 | | 4 | | 10,496 | | $ | 76,964 | | 3.22% |
2012 | | 1 | | 3,224 | | $ | 61,715 | | 2.58% |
2013 | | 2 | | 154,519 | | $ | 1,041,132 | | 43.52% |
2014 | | 1 | | 13,721 | | $ | 267,374 | | 11.18% |
2015 | | — | | — | | | — | | — |
2016 | | — | | — | | | — | | — |
Gross annual rent of expiring leases, for each of the years indicated, is based on the minimum contractual base rent, net of free rent, due for the calendar year ending December 31, 2006.
The following table shows how we will depreciate the value of the building for tax purposes as well as certain tax information related to the Crescent Green Buildings:
| | | | | | | | | |
| | | Federal Tax Basis | | Rate of
Depreciation | | Method of
Depreciation | | Depreciable Life |
Land | | $ | 6,988,000 | | Non-depreciable | | N/A | | N/A |
Building | | | 41,994,450 | | 39 years | | Straight-line | | 39 years |
| | | | | | | | | |
Total | | $ | 48,982,450 | | | | | | |
| | | | | | | | | |
We do not intend to make significant renovations or improvements to the Crescent Green Buildings. There can be no assurance that we will complete the acquisition. Under certain circumstances, if we fail to complete the acquisition, we may forfeit $1 million of earnest money.
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Declaration of Dividends and Advance from Advisor
On October 18, 2006, our board of directors declared a daily dividend for the period from November 1, 2006 through November 30, 2006, which dividend was paid in December 2006. On November 8, 2006, our board of directors declared a daily dividend for the period from December 1, 2006 through December 31, 2006, which we expect will be paid in January 2007, and a daily dividend for the period from January 1, 2007 through January 31, 2007, which we expect will be paid in February 2007. Investors may choose to receive cash distributions or purchase additional shares through our dividend reinvestment plan. The dividends are calculated based on stockholders of record each day during these periods at a rate of $0.0019178 per share per day and equal a daily amount that, if paid each day for a 365-day period, would equal a 7.0% annualized rate based on a purchase price of $10.00 per share.
Generally, our policy is to pay distributions from cash flow from operations. In order that our stockholders could begin earning cash dividends, our advisor, KBS Capital Advisors, has agreed to advance funds to us equal to the amount by which the cumulative amount of distributions declared by our board of directors from January 1, 2006 through the period ending January 31, 2007 exceeds the amount of our funds from operations (as defined by NAREIT) from January 1, 2006 through January 31, 2007. The terms of the advance are described below under “Renewal of Advisory Agreement.” Through January 3, 2007 our advisor has advanced $900,000 to us for cash dividends and expenses in excess of revenues, all of which is outstanding. In addition, our advisor has agreed to defer its asset management fee, without interest, for the months of July, August, September, October, November and December 2006 and January 2007 but may choose to take the deferred asset management fee in such future period as the advisor may determine.
The advisor is wholly owned by KBS Holdings LLC, a limited liability company that is wholly owned by Charles J. Schreiber, Jr., Peter M. Bren, Peter McMillan III and Keith D. Hall, our sponsors and each of whom is one of our officers and/or directors.
Indebtedness
As of January 3, 2007, our total long-term indebtedness, or indebtedness with a maturity of longer than one year, was $192,650,000. For more information see the discussion under “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Liquidity and Capital Resources.”
Renewal of Advisory Agreement
On November 8, 2006, we renewed our advisory agreement with KBS Capital Advisors. The renewed advisory agreement is effective through November 8, 2007; however, either party may terminate the renewed advisory agreement without cause or penalty upon providing 60 days’ written notice. The terms of the renewed advisory agreement are identical to those of the advisory agreement that was in effect through November 8, 2006, which is described in the prospectus, except as follows:
| | • | | A change altering the timing and the source (but not the amount) of the payment of the subordinated performance fee due upon termination of the advisory agreement. Specifically, instead of being due immediately upon termination of the advisory agreement and being paid from operating cash flow, the change makes the fee payable in the form of a promissory note that becomes due only upon the sale of one or more of our real estate assets and the fee is payable solely from proceeds of the sale of an asset and future asset sales. For more information, see Note (8) under “Management Compensation” in the prospectus. |
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| | • | | In order that our stockholders could begin earning cash dividends, our advisor has agreed to advance funds to us equal to the amount by which the cumulative amount of distributions declared by our board of directors from January 1, 2006 through the period ending January 31, 2007 exceeds the amount of our funds from operations (as defined by NAREIT) from January 1, 2006 through January 31, 2007. We are only obligated to reimburse the advisor for these expenses if and to the extent that our cumulative funds from operations for the period commencing January 1, 2006 through the date of any such reimbursement exceed the lesser of (i) the cumulative amount of any distributions declared and payable to our stockholders as of the date of such reimbursement or (ii) an amount that is equal to a 7.0% cumulative, non-compounded, annual return on invested capital for our stockholders for the period from July 18, 2006 through the date of such reimbursement. No interest will accrue on the advance being made by the advisor. |
Distribution Policy
In connection with our application to register shares of common stock in this offering in the State of Ohio, we have amended our distribution policy as follows:
| | • | | Concurrently with the payment of any distribution, we will file a Form 8-K or other appropriate form or report with the SEC disclosing the source of the funds distributed. If the information is not available at the time of payment of the distribution, we will instead disclose the reasons why the information is not available and will provide the information to our stockholders within 45 days after the end of the quarter in which we paid the distribution. |
| | • | | We will maintain a cumulative record of the dollar amount by which the aggregate distributions to our stockholders from the October 11, 2006 record date for distributions (the “Effective Date”) and all subsequent record dates for distributions exceed our actual to-date funds from operations from the Effective Date. Such dollar amount, if greater than zero, is a “Fund-to-Date Deficit.” After the first anniversary of the Effective Date, if we have a Fund-to-Date Deficit for a continuous 365-day period, then thereafter until such time as the Fund-to-Date Deficit has been recovered, we must reduce the amount of distributions to our stockholders to a level that, based upon the conflicts committee’s good faith analysis of our projected operating cash flows, would eliminate the Fund-to-Date Deficit within 730 days from the date that the Fund-to-Date Deficit was initially incurred, except insofar as such a distribution is necessary to satisfy the requirement that we distribute at least the percentage of our REIT taxable income required for annual distribution by the Internal Revenue Code or otherwise as necessary or advisable to assure that we maintain our qualification as a REIT for federal tax purposes. We do not have to reduce our then-current dividend yield more than once in any 365-day period in order to satisfy the foregoing undertaking. We define funds from operations in accordance with the current NAREIT definition. |
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Policy Prohibiting Awards of Shares of Common Stock under Our Employee and Independent Director Stock Plan
Our board of directors has adopted a policy that prohibits grants of any awards of shares of common stock to any person under the Employee and Independent Director Stock Plan. For more information with respect to the Employee and Independent Director Stock Plan, see “Management –Employee and Independent Director Stock Plan” in the prospectus.
Share Redemption Program
Our board of directors has amended our share redemption program so that the special terms available upon the death of a stockholder will also be available upon a stockholder’s award of disability benefits from the Social Security Administration or, in limited circumstances, from the other governmental agencies described below. The amendment became effective on December 14, 2006. Set forth below is a full description of our amended share redemption program.
The share redemption program permits you to sell your shares back to us, subject to the significant conditions and limitations described below. Initially, we will redeem shares at the lower of $9.00 or 90% of the price paid to acquire the shares from us, unless the shares are being redeemed in connection with a stockholder’s death or “qualifying disability” (as defined below). Three years after the completion of our offering stage, the redemption price per share would be equal to the net asset value per share of our common stock, as estimated by our advisor or another firm chosen for that purpose. We will consider our offering stage complete when we are no longer publicly offering equity securities and have not done so for one year. We would report this redemption price to you in our annual report and the three quarterly reports that we publicly file with the SEC. (For purposes of this definition, we do not consider “public equity offerings” to include offerings on behalf of selling stockholders or offerings related to a dividend reinvestment plan, employee benefit plan or the redemption of interests in the Operating Partnership).
There are several limitations on our ability to redeem shares:
| | • | | Unless the shares are being redeemed in connection with a stockholder’s death or “qualifying disability,” we may not redeem shares until they have been outstanding for one year. |
| | • | | Our share redemption program limits the number of shares we may redeem to those that we could purchase with the net proceeds from the sale of shares under our dividend reinvestment plan during the prior calendar year. |
| | • | | During any calendar year, we may redeem no more than 5% of the weighted-average number of shares outstanding during the prior calendar year. |
| | • | | We have no obligation to redeem shares if the redemption would violate the restrictions on distributions under Maryland law, which prohibits distributions that would cause a corporation to fail to meet statutory tests of solvency. |
We have engaged a third party to administer the share redemption program. We will redeem shares on the last business day of each month. The program administrator must receive your written request for redemption at least five business days before that date in order for us to repurchase your shares that month. If we could not repurchase all shares presented for redemption in any month, we will attempt to honor redemption requests on a pro rata basis. We will deviate from pro rata purchases in two minor ways: (i) if a pro rata redemption would result in you owning less than half of the minimum purchase
14
amount described in our current prospectus, as supplemented, then we would redeem all of your shares; and (ii) if a pro rata redemption would result in you owning more than half but less than all of the minimum purchase amount, then we would not redeem any shares that would reduce your holdings below the minimum purchase amount. In the event that you were redeeming all of your shares, there would be no holding period requirement for shares purchased pursuant to our dividend reinvestment plan.
If we did not completely satisfy a stockholder’s redemption request at month-end because the program administrator did not receive the request in time or because of the restrictions on the number of shares we could redeem under the program, we would treat the unsatisfied portion of the redemption request as a request for redemption in the following month unless the stockholder withdrew his or her request before the next date for redemptions. Any stockholder could withdraw a redemption request upon written notice to the program administrator if such notice is received by us at least five business days before the date for redemptions.
In several respects we would treat redemptions sought upon a stockholder’s death or “qualifying disability” differently from other redemptions:
| | • | | there would be no one-year holding requirement; |
| | • | | until three years after the completion of our offering stage, the redemption price would be the amount paid to acquire the shares from us; and |
| | • | | three years after the completion of our offering stage, the redemption price would be the net asset value of the shares, as estimated by our advisor or another firm chosen for that purpose. |
In order for a disability to entitle a stockholder to the special redemption terms described above (a “qualifying disability”), (1) the stockholder must receive a determination of disability based upon a physical or mental condition or impairment arising after the date the stockholder acquired the shares to be redeemed, and (2) such determination of disability must be made by the governmental agency responsible for reviewing the disability retirement benefits that the stockholder could be eligible to receive (the “applicable governmental agency”). The “applicable governmental agencies” are limited to the following: (i) if the stockholder paid Social Security taxes and, therefore, could be eligible to receive Social Security disability benefits, then the applicable governmental agency is the Social Security Administration or the agency charged with responsibility for administering Social Security disability benefits at that time if other than the Social Security Administration; (ii) if the stockholder did not pay Social Security benefits and, therefore, could not be eligible to receive Social Security disability benefits, but the stockholder could be eligible to receive disability benefits under the Civil Service Retirement System (“CSRS”), then the applicable governmental agency is the U.S. Office of Personnel Management or the agency charged with responsibility for administering CSRS benefits at that time if other than the Office of Personnel Management; or (iii) if the stockholder did not pay Social Security taxes and therefore could not be eligible to receive Social Security benefits but suffered a disability that resulted in the stockholder’s discharge from military service under conditions that were other than dishonorable and, therefore, could be eligible to receive military disability benefits, then the applicable governmental agency is the Veteran’s Administration or the agency charged with the responsibility for administering military disability benefits at that time if other than the Veteran’s Administration.
Disability determinations by governmental agencies for purposes other than those listed above, including but not limited to worker’s compensation insurance, administration or enforcement of the Rehabilitation Act or Americans with Disabilities Act, or waiver of insurance premiums will not entitle a stockholder to the special redemption terms described above. Redemption requests following an award by the applicable governmental agency of disability benefits must be accompanied by: (1) the investor’s
15
initial application for disability benefits and (2) a Social Security Administration Notice of Award, a U.S. Office of Personnel Management determination of disability under CSRS, a Veteran’s Administration record of disability-related discharge or such other documentation issued by the applicable governmental agency that we deem acceptable and demonstrates an award of the disability benefits.
We understand that the following disabilities do not entitle a worker to Social Security disability benefits:
| | • | | disabilities occurring after the legal retirement age; |
| | • | | temporary disabilities; and |
| | • | | disabilities that do not render a worker incapable of performing substantial gainful activity. |
Therefore, such disabilities will not qualify for the special redemption terms, except in the limited circumstances when the investor is awarded disability benefits by the other “applicable governmental agencies” described above.
Our board of directors could amend, suspend or terminate the program upon 30 days’ notice. We would notify you of such developments in our annual or quarterly reports that we publicly file with the SEC or by means of a separate mailing to you, accompanied by disclosure in a current or periodic report under the Securities Exchange Act of 1934. During this offering, we would also include this information in a prospectus supplement or post-effective amendment to the registration statement, as required under federal securities laws.
Our share redemption program only provides stockholders a limited ability to redeem shares for cash until a secondary market develops for our shares, at which time the program will terminate. No such market presently exists, and we cannot assure you that any market for your shares will ever develop.
Qualifying stockholders who desire to redeem their shares must give written notice to us at KBS Real Estate Investment Trust, c/o Phoenix Transfer, Inc., 2401 Kerner Boulevard, San Rafael CA 94901.
Supplemental Sales Material
In addition to the prospectus, as supplemented, we are using supplemental sales material in connection with the offering of the shares. The supplemental sales material does not contain all of the information material to an investment decision and should only be reviewed after reading the prospectus. In some states, the use of supplemental sales material may not be permitted.
The following is a brief description of the supplemental sales material currently used in permitted jurisdictions:
| | • | | The “KBS REIT Fact Sheet,” first used February 22, 2006, briefly summarizes (i) the terms of the offering; (ii) our objectives and strategy; (iii) a profile of the investors for whom an investment in us is appropriate; (iv) exit alternatives available to investors; (v) information regarding our sponsors’ experience and (vi) various risks to be considered before investing in us. |
| | • | | The KBS Real Estate Investment Trust brochure, first used February 22, 2006, provides prospective investors with general information concerning investments in real estate, as well as information specific to an investment in us, including summary descriptions of (i) our |
16
sponsors’ track record with prior real estate investments; (ii) the principles of our investment strategy; (iii) the organization and geographic reach of our advisor; (iv) the steps comprising our acquisition process and (v) various risks to be considered before investing in us.
| | • | | The KBS Real Estate Investment Trust client seminar presentation, first used April 2006, includes general information about real estate as an asset class, as well as information specific to an investment in us, including slides related to (i) the importance of diversifying by asset class; (ii) the benefits of the REIT structure; (iii) the reasons to consider investing in a non-traded REIT; (iv) our investment strategy and (v) various risks to be considered before investing in us. |
| | • | | The KBS Real Estate Investment Trust asset flyer for the Sabal Pavilion, first used June 2006, includes information about the acquisition of a four-story office building containing 120,500 rentable square feet in Tampa, Florida. |
| | • | | The KBS Real Estate Investment Trust asset flyer for the Plaza in Clayton, first used June 2006, includes information about the acquisition of a 16-story office building containing 325,172 rentable square feet in St. Louis, Missouri. |
| | • | | The KBS Real Estate Investment Trust asset flyer for the Tribeca Mezzanine Debt, first used July 2006, includes information about the acquisition of a junior mezzanine loan. |
| | • | | The KBS Real Estate Investment Trust asset flyer for Southpark Commerce Center II, first used November 2006, includes information about the acquisition of four light industrial/flex buildings containing 372,125 rentable square feet in Austin, Texas. |
| | • | | The KBS Real Estate Investment Trust asset flyer for 825 University Avenue, first used November 2006, includes information about the acquisition of a one and two story corporate research building containing 166,574 rentable square feet in Norwood, Massachusetts. |
| | • | | The KBS Real Estate Investment Trust asset flyer for the Midland Industrial Portfolio, first used January 2007, includes information about the acquisition of three bulk distribution buildings containing 785,790 rentable square feet in McDonough, Georgia. |
We are offering shares only by means of the prospectus, as supplemented. Although the information contained in our supplemental sales materials will not conflict with any of the information contained in the prospectus, as supplemented, the supplemental materials do not purport to be complete and should not be considered a part of or as incorporated by reference in the prospectus, or the registration statement of which the prospectus is a part.
Management’s Discussion and Analysis of Financial Condition and Results of Operations as of and for the Three and Nine Months Ended September 30, 2006
The following discussion and analysis should be read in conjunction with our accompanying consolidated financial statements and the notes thereto as of and for the three and nine months ended September 30, 2006, included in this supplement, as well as our consolidated financial statements and the notes thereto as of and for the year ended December 31, 2005, included in supplement no. 6. This discussion contains forward-looking statements that can be identified with the use of forward-looking terminology such as “may,” “will,” “seeks,” “anticipates,” “believes,” “estimates,” “expects,” “plans,” “intends,” “should” or similar expressions. Actual results may differ from those described in forward-looking statements. For a discussion of the factors that could cause actual results to differ from those anticipated, see “Risk Factors” in the prospectus and “Risks Related to Real Estate-Related Investments” in supplement no. 6.
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Overview
We are a Maryland corporation that intends to qualify as a real estate investment trust, or REIT, beginning with the taxable year ended December 31, 2006. On June 23, 2005, we filed a registration statement on Form S-11 (File No. 333-126087) with the SEC to offer a minimum of 250,000 shares and a maximum of 280,000,000 shares of common stock for sale to the public. The SEC declared the registration statement effective on January 13, 2006, and we launched this offering on January 27, 2006. As of January 3, 2007, we had sold 11,697,146 shares of common stock in this offering for gross offering proceeds of approximately $116.5 million. We are dependent upon the net proceeds from this offering to conduct our proposed operations.
We intend to use the proceeds of this offering to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. We plan to own substantially all of our assets and conduct our operations through our Operating Partnership, of which we are the sole general partner. We have no paid employees. Our advisor, KBS Capital Advisors, conducts our operations and manages our portfolio of real estate investments.
In constructing our portfolio, we intend to target approximately 70% core investments, which are generally existing properties with at least 80% occupancy and minimal near-term lease rollover, and approximately 30% real estate-related investments and enhanced-return properties. Though our target portfolio would consist of 30% real estate-related investments and enhanced-return properties, we will not forgo a good investment opportunity because it does not precisely fit our expected portfolio composition. Thus, to the extent that our advisor presents us with good investment opportunities that allow us to meet the REIT requirements under the Internal Revenue Code, our portfolio may consist of a greater percentage of enhanced-return properties and real estate-related investments.
Real estate-related investments and enhanced-return properties are higher-yield and higher-risk investments that our advisor will actively manage. The real estate-related investments in which we may invest include: (i) mortgage loans; (ii) equity securities such as common stocks, preferred stocks and convertible preferred securities of real estate companies; (iii) debt securities such as mortgage-backed securities, commercial mortgages, mortgage loan participations and debt securities issued by other real estate companies; and (iv) certain types of illiquid securities, such as mezzanine loans and bridge loans. While we may invest in any of these real estate-related investments, we expect that the substantial majority of these investments will consist of mezzanine loans, commercial mortgage-backed securities and B-Notes as well as collateralized debt obligations. The enhanced-return properties that we will seek to acquire and reposition include: properties with moderate vacancies or near-term lease rollovers; poorly managed and positioned properties; properties owned by distressed sellers; and built-to-suit properties.
We began raising capital and commenced our real estate operations during the three months ended September 30, 2006. At this early stage in our growth, our general and administrative expenses are relatively high compared with our funds from operations and our net assets. Our conflicts committee has determined that the relationship of our general and administrative expenses to our funds from operations and our net assets is justified given the costs of operating a public company and the early stage of our operations.
Liquidity and Capital Resources
During the three months ended September 30, 2006, we broke escrow in this offering and commenced operations as a real estate company. Net cash flows from financing activities for the nine months ended September 30, 2006 were $135,783,583 consisting of net offering proceeds of $19,485,880,
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after payment of selling commissions, dealer manager fees and other organization and offering expenses of $3,438,685, and $116,023,730 from indebtedness. With this capital, we invested approximately $132,329,374 in real estate investments, including acquisition fees and expenses of $2,261,823. Primarily from the operations and interest income of the assets we acquired, we generated $730,566 in net cash flows from operating activities. This amount includes rental revenues from the properties and interest earned on our investment in a mezzanine loan net of operating expenses and interest expenses. We paid dividends to stockholders of $81,778. The excess cash generated from operating and financing activities (net of cash used by investing activities) of $4,184,775 is expected to be used to reduce indebtedness, pay liabilities or to make additional real estate investments.
As of September 30, 2006, our liabilities totaled $120,911,453 and consisted primarily of long-term indebtedness, or indebtedness with a maturity of longer than one year, of $107,147,137 and short-term indebtedness of $13,764,316.
During the three months ended September 30, 2006, we borrowed a total of $25,170,137 pursuant to three separate loans in order to fund the purchase of a property in Tampa, Florida, borrowed $9,997,231 to fund the acquisition of a junior mezzanine loan, and borrowed $84,500,000 pursuant to two separate loans in connection with the acquisition of a property in St. Louis, Missouri. These financings are described below under “—Contractual Commitments and Contingencies.”
We expect to continue to use debt to acquire properties and other real-estate related investments. Once we have fully invested the proceeds of this offering, we expect our debt financing to be approximately 50% of the cost of our real estate investments (before deducting depreciation or other non-cash reserves) plus the value of our other assets. Our charter limits our borrowings to 75% of the cost (before deducting depreciation or other non-cash reserves) of all our assets; however, we may exceed that limit if a majority of the conflicts committee approves each borrowing in excess of our charter limitation and we disclose such borrowing to our stockholders in our next quarterly report with an explanation from the conflicts committee of the justification for the excess borrowing. Due to borrowings described below under “Contractual Commitments and Contingencies,” we exceeded our charter limitation on borrowing during the third quarter of 2006. The conflicts committee approved each of these borrowings. In each case, the conflicts committee determined that the excess leverage was justified for the following reasons:
| | • | | the borrowings enabled us to purchase the assets and earn rental and interest income more quickly; |
| | • | | the acquisitions are likely to increase the net offering proceeds from this offering, thereby improving our ability to meet our goal of acquiring a diversified portfolio of properties to generate current income for investors and preserve investor capital; and |
| | • | | the prospectus disclosed the likelihood that we would exceed our charter’s leverage guidelines during the early stages of this offering. |
In addition to making investments in accordance with our investment objectives, we expect to use our capital resources to make certain payments to our advisor and the dealer manager. During our organization and offering stage, these payments will include payments to the dealer manager for selling commissions and the dealer manager fee and payments to the dealer manager, our advisor and their affiliates for reimbursement of certain organization and offering expenses. However, our advisor has agreed to reimburse us to the extent that selling commissions, the dealer manager fee and other organization and offering expenses incurred by us exceed 15% of our gross offering proceeds. During our acquisition and development stage, we expect to make payments to our advisor in connection with the
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selection and purchase of real estate investments, the management of our assets and costs incurred by our advisor in providing services to us.
We intend to elect to be taxed as a REIT and to operate as a REIT beginning with our taxable year ending December 31, 2006. To maintain our qualification as a REIT, we will be required to make aggregate annual distributions to our stockholders of at least 90% of our REIT taxable income (computed without regard to the dividends paid deduction and excluding net capital gain). Our board of directors may authorize distributions in excess of those required for us to maintain REIT status depending on our financial condition and such other factors as our board of directors deems relevant. Provided we have sufficient available cash flow, we intend to pay dividends on a monthly basis. We have not established a minimum distribution level.
We expect to continue to generate capital from this offering and to utilize indebtedness to assist in the funding for and timing of our acquisitions. We are dependent upon the net proceeds from this offering to conduct our operations. We will obtain the capital required to purchase properties and conduct our operations from the proceeds of this offering and any future offerings we may conduct, from secured or unsecured financings from banks and other lenders and from any undistributed funds from our operations.
Contractual Commitments and Contingencies
The following is a summary of our contractual obligations as of September 30, 2006:
| | | | | | | | | | | | | |
| | | Total | | Remainder
of 2006 | | Payments Due During the Years Ending December 31, |
Contractual Obligations | | | | 2007-2008 | | 2009-2010 | | Thereafter |
Outstanding debt obligations(1) | | $ | 116,023,730 | | — | | $ | 16,823,730 | | — | | $ | 99,200,000 |
| (1) | Amounts include principal payments only. We incurred interest expense of $706,898 during the three months ending September 30, 2006 and expect to incur interest in future periods on outstanding debt obligations based on the rates and terms disclosed below. |
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Our outstanding debt obligations as of September 30, 2006 were as follows:
| | | | | | | | | | | |
Debt Obligation | | Principal | | Effective Interest Rate for
Period | | Fixed/ Variable Interest
Rate | | Maturity(1) | | Percentage of Total Indebtedness |
Sabal Pavilion Building – Mortgage Loan | | $ | 14,700,000 | | 6.38% | | Fixed | | August 1, 2036 | | 12.67% |
Sabal Pavilion Building – Mezzanine Loan(2) | | | 1,598,000 | | 7.60% | | Variable | | January 7, 2007 | | 1.38 |
Plaza in Clayton Building – Mortgage Loan | | | 62,200,000 | | 5.90% | | Fixed | | October 6, 2016 | | 53.61 |
Plaza in Clayton Building – Mezzanine Loan | | | 22,300,000 | | 6.82% | | Variable | | October 6, 2016 | | 19.22 |
| | | | | | | | | | | |
Notes payable | | | 100,798,000 | | | | | | | | |
Note payable to affiliate (3) | | | 7,947,137 | | 6.00% | | Fixed | | July 6, 2008 | | 6.85 |
Tribeca Mezzanine Debt – Repurchase Agreement(4) | | | 7,278,593 | | 7.34% | | Variable | | July 17, 2007 | | 6.27 |
| | | | | | | | | | | |
| | $ | 116,023,730 | | | | | | | | 100.00% |
| | | | | | | | | | | |
| (1) | Represents initial maturity date; subject to certain conditions, the maturity dates of some loans may be extended. |
| (2) | On October 5, 2006, we paid off the principal amount outstanding under the loan. |
| (3) | October 27, 2006, we paid off the principal and interest outstanding on the loan. |
| (4) | On December 27, 2006, we paid off the principal amount outstanding under the loan. |
As of January 3, 2007, the outstanding principal balance on our long-term indebtedness, or indebtedness with a maturity of longer than one year, was approximately $192,650,000, which consists of debt outstanding in connection with the acquisition of our investments. These acquisitions and their related financings are described under “Recent Acquisitions” in this supplement and in supplement no. 6.
In addition to the contractual obligations set forth above, we have contingent liabilities with respect to advances to us from our advisor in the amount of $188,662 for payment of distributions and $711,338 to cover expenses, excluding depreciation and amortization, in excess of our revenues. We are only obligated to reimburse the advisor for these advances if and to the extent that our cumulative funds from operations for the period commencing January 1, 2006 through the date of any such reimbursement exceed the lesser of (i) the cumulative amount of any distributions declared and payable to our stockholders as of the date of such reimbursement or (ii) an amount that is equal to a 7.0% cumulative, non-compounded, annual return on invested capital for our stockholders for the period from July 18, 2006 through the date of such reimbursement. No interest will accrue on the advance being made by the advisor. We also have contingent liability with respect to the deferral of the asset management fee payable to our advisor for the three months ended September 30, 2006 in the amount of $71,348. Our advisor has agreed to defer its asset management fee, without interest, for the months of July, August and September 2006 but may choose to take the deferred asset management fee in such future period as the advisor may determine.
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Results of Operations
Our results of operations for the three and nine months ended September 30, 2006 are not indicative of those expected in future periods as we broke escrow in this offering on July 5, 2006 and commenced real estate operations on July 7, 2006 in connection with our first investment. During the period from inception (June 13, 2005) to September 30, 2005, we had been formed but had not yet commenced this offering or real estate operations. As a result, we had no material results of operations for that period. The SEC declared the registration statement for this offering effective on January 13, 2006 and we launched the offering on January 27, 2006 upon retaining KBS Capital Markets Group LLC, an affiliate of our advisor, to serve as the dealer manager of the offering.
As of September 30, 2006, we had acquired two office properties and a junior mezzanine loan for an aggregate purchase price of approximately $130,480,510, plus closing costs. We funded the acquisition of these investments with a combination of debt and proceeds from this offering. We expect that rental income, tenant reimbursements, depreciation expense, amortization expense, operating expenses, interest income from our investment in the mezzanine loan, asset management fees and net income will each increase in future periods as a result of owning the assets acquired during the three months ended September 30, 2006 for an entire period and as a result of anticipated future acquisitions of real estate assets.
Rental income for the two office properties, both of which were acquired during the three months ended September 30, 2006 totaled $756,530 and tenant reimbursements totaled $118,825. Property operating costs were $199,776 for the three months ended September 30, 2006. Depreciation expense for the three months ended September 30, 2006 was $395,237, and real estate and other property-related taxes were $77,713. We acquired one of these office properties on July 7, 2006 and the other office property on September 27, 2006, and these properties represent approximately 19% and 71%, respectively, of the cost of our portfolio of real estate assets at September 30, 2006. Neither properties’ operations represent a full quarter of revenues and expenses.
General and administrative expenses for the three and nine months ended September 30, 2006 totaled $406,881 and $871,018, respectively. These general and administrative costs consisted primarily of insurance premiums, independent director fees and professional fees. We expect general and administrative costs to increase in the future based on a full year of operations as well as increased activity as we make real estate investments but to decrease as a percentage of total revenue.
Interest income and other revenues for the three and nine months ended September 30, 2006 were $382,633 and $382,955, respectively, and consisted primarily of interest income from the junior mezzanine loan we acquired on July 18, 2006.
Asset management fees payable to our advisor with respect to real estate investments totaled $71,348 for the three and nine months ended September 30, 2006 but have been deferred by our advisor without interest. These asset management fees may be taken by the advisor in a subsequent period.
The three acquisitions we made during the three months ended September 30, 2006 were financed primarily with debt. See above “—Contractual Commitments and Contingencies.” During the three months ended September 30, 2006, we incurred interest expense of $706,898 related to our use of this debt. Our interest expense in future periods will vary based on our level of future borrowings, which will depend on the amount of proceeds raised in this offering, the cost of borrowings and the opportunity to acquire real estate assets meeting our investment objectives.
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For the three and nine months ended September 30, 2006, we had a net loss of $528,517 and $992,332, respectively, due primarily to general and administrative costs and interest expense.
Our organization and offering costs (other than selling commissions and the dealer manager fee) are initially being paid by our advisor, the dealer manager and their affiliates on our behalf. These other organization and offering costs include all expenses to be paid by us in connection with this offering, including but not limited to (i) legal, accounting, printing, mailing and filing fees; (ii) charges of the escrow holder; (iii) reimbursement of the dealer manager for amounts it may pay to reimburse the bona fide diligence expenses of broker-dealers; (iv) reimbursement to the advisor for the salaries of its employees and other costs in connection with preparing supplemental sales materials; (v) the cost of educational conferences held by us (including the travel, meal and lodging costs of registered representatives of broker-dealers); and (vi) reimbursement to the dealer manager for travel, meals, lodging and attendance fees incurred by employees of the dealer manager to attend retail seminars conducted by broker-dealers. Pursuant to the advisory agreement and the dealer manager agreement, we are obligated to reimburse the advisor, the dealer manager or their affiliates, as applicable, for organization and offering costs associated with this offering, provided that the advisor is obligated to reimburse us to the extent selling commissions, the dealer manager fee and other organization and offering costs exceed 15% of our gross offering proceeds. Our advisor and its affiliates have incurred on our behalf organization and offering costs (excluding selling commissions and the dealer manager fee) of $3,560,275 through September 30, 2006. Such costs are only a liability to us to the extent selling commissions, the dealer manager fee and other organization and offering costs do not exceed 15% of the gross proceeds of the offering. Through September 30, 2006, we had sold 2,296,074 shares for gross offering proceeds of $22,924,565 and recorded organization and offering costs of $1,295,565 and selling commissions and dealer manager fees of $2,143,120.
Funds From Operations
We believe that funds from operations (“FFO”) is a beneficial indicator of the performance of any equity REIT. Because FFO calculations exclude such factors as depreciation and amortization of real estate assets and gains from sales of operating real estate assets (which can vary among owners of identical assets in similar conditions based on historical cost accounting and useful-life estimates), they facilitate comparisons of operating performance between periods and between other REITs. Our management believes that historical cost accounting for real estate assets in accordance with U.S. generally accepted accounting principles (“GAAP”) implicitly assumes that the value of real estate assets diminishes predictability over time. Since real estate values have historically risen or fallen with market conditions, many industry investors and analysts have considered the presentation of operating results for real estate companies that use historical cost accounting to be insufficient by themselves. As a result, we believe that the use of FFO, together with the required GAAP presentations, provides a more complete understanding of our performance relative to our competitors and a more informed and appropriate basis on which to make decisions involving operating, financing, and investing activities. Other REITs may not define FFO in accordance with the current National Association of Real Estate Investment Trusts (“NAREIT”) definition or may interpret the current NAREIT definition differently than we do.
FFO is a non-GAAP financial measure and does not represent net income as defined by GAAP. Net income as defined by GAAP is the most relevant measure in determining our operating performance because FFO includes adjustments that investors may deem subjective, such as adding back expenses such as depreciation and amortization. Accordingly, FFO should not be considered as an alternative to net income as an indicator of our operating performance.
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Our calculation of FFO, which we believe is consistent with the calculation of FFO as defined by NAREIT, is presented in the following table for the three and nine months ended September 30, 2006:
| | | | | | | | |
| | | For the Three
Months Ended September 30,
2006 | | | For the Nine
Months Ended September 30,
2006 | |
Net loss | | $ | (528,517 | ) | | $ | (992,332 | ) |
Add: | | | | | | | | |
Depreciation of real estate assets | | | 122,229 | | | | 122,229 | |
Amortization of lease-related costs | | | 273,008 | | | | 273,008 | |
| | | | | | | | |
FFO | | $ | (133,280 | ) | | $ | (597,095 | ) |
| | | | | | | | |
Weighted-average shares outstanding, basic and diluted | | | 1,148,531 | | | | 400,311 | |
| | | | | | | | |
Critical Accounting Policies
Below is a discussion of the accounting policies that management considers critical in that they involve significant management judgments and assumptions, require estimates about matters that are inherently uncertain and because they are important for understanding and evaluating our reported financial results. These judgments affect the reported amounts of assets and liabilities and our disclosure of contingent assets and liabilities at the dates of the financial statements and the reported amounts of revenue and expenses during the reporting periods. With different estimates or assumptions, materially different amounts could be reported in our financial statements. Additionally, other companies may utilize different estimates that may impact the comparability of our results of operations to those of companies in similar businesses.
Real Estate Assets
We have to make subjective assessments as to the useful lives of our depreciable assets. These assessments have a direct impact on our net income, because, if we were to shorten the expected useful lives of our investments in real estate, we would depreciate these investments over fewer years, resulting in more depreciation expense and lower net income on an annual basis throughout the expected useful lives of these investments. Costs related to the acquisition, development, construction and improvement of properties are capitalized. Repair and maintenance costs are charged to expense as incurred and significant replacements and betterments are capitalized. Repair and maintenance costs include all costs that do not extend the useful life of the real estate asset. We consider the period of future benefit of an asset to determine its appropriate useful life. We anticipate the estimated useful lives of our assets by class to be generally as follows:
| | |
| Buildings | | 25 - 40 years |
| Building improvements | | 10 - 25 years |
| Land improvements | | 20 - 25 years |
| Tenant improvements | | Lease term or expected useful life |
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Real Estate Purchase Price Allocation
In accordance with Statement of Financial Accounting Standards (“SFAS”) No. 141Business Combinations, we record above-market and below-market in-place lease values for acquired properties based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (i) the contractual amounts to be paid pursuant to the in-place leases and (ii) management’s estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining non-cancelable term of the lease. We amortize any capitalized above- or below-market lease values as an increase or reduction to rental income over the remaining non-cancelable terms of the respective leases.
We measure the aggregate value of other intangible assets acquired based on the difference between (i) the property valued with existing in-place leases adjusted to market rental rates and (ii) the property valued as if vacant. Management’s estimates of value are made using methods similar to those used by independent appraisers (e.g., discounted cash flow analysis). Factors considered by management in its analysis include an estimate of carrying costs during hypothetical expected lease-up periods considering current market conditions and costs to execute similar leases.
We also consider information obtained about each property as a result of our pre-acquisition due diligence, marketing and leasing activities in estimating the fair value of the tangible and intangible assets acquired. In estimating carrying costs, management also includes real estate taxes, insurance and other operating expenses and estimates of lost rentals at market rates during the expected lease-up periods. Management also estimates costs to execute similar leases including leasing commissions and legal and other related expenses to the extent that such costs are not already incurred in connection with a new lease origination as part of the transaction.
The total amount of other intangible assets acquired is further allocated to in-place lease values and customer relationship intangible values based on management’s evaluation of the specific characteristics of each tenant’s lease and our overall relationship with that respective tenant. Characteristics considered by management in allocating these values include the nature and extent of our existing business relationships with the tenant, growth prospects for developing new business with the tenant, the tenant’s credit quality and expectations of lease renewals (including those existing under the terms of the lease agreement), among other factors.
We amortize the value of in-place leases to expense over the initial term of the respective leases. The value of customer relationship intangibles are amortized to expense over the initial term and any renewal periods in the respective leases, but in no event do the amortization periods for the intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and customer relationship intangibles would be charged to expense.
Impairment of Real Estate Assets
We continually monitor events and changes in circumstances that could indicate that the carrying amounts of our real estate assets may not be recoverable. When indicators of potential impairment suggest that the carrying value of a real estate asset may not be recoverable, we assess the recoverability of the asset by estimating whether we will recover the carrying value of the asset through its undiscounted future cash flows and its eventual disposition. If based on this analysis we do not believe that we will be able to recover the carrying value of the asset, we record an impairment loss to the extent that the carrying value exceeds the estimated fair value of the asset. We did not record any impairment losses during the three and nine months ended September 30, 2006.
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Projections of future cash flows require us to estimate the expected future operating income and expenses related to an asset as well as market and other trends. The use of inappropriate assumptions in our future cash flows analyses would result in an incorrect assessment of our assets’ future cash flows and fair values and could result in the overstatement of the carrying values of our real estate assets and an overstatement of our net income.
Real Estate Loans Receivable
Real estate loans receivable are recorded at cost, adjusted for net closing costs. Closing costs are amortized over the term of the loan and accreted as an adjustment to interest income. The real estate loan receivable is reviewed for potential impairment at each balance sheet date. A loan receivable is considered impaired when it becomes probable, based on current information, that we will be unable to collect all amounts due according to the loan’s contractual terms. The amount of impairment, if any, is measured by comparing the recorded amount of the loan to the present value of the expected cash flows or the fair value of the collateral. If a loan was deemed to be impaired, we would record a reserve for loan losses through a charge to income for any shortfall. To date, no such impairment charges have been recognized.
Revenue Recognition
We recognize minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, on a straight-line basis over the term of the related lease and amounts expected to be received in later years are recorded as deferred rent. We record property operating expense reimbursements due from tenants for common area maintenance, real estate taxes and other recoverable costs in the period the related expenses are incurred.
We recognize gains on sales of real estate pursuant to the provisions of SFAS No. 66Accounting for Sales of Real Estate (“SFAS 66”). The specific timing of a sale is measured against various criteria in SFAS 66 related to the terms of the transaction and any continuing involvement in the form of management or financial assistance associated with the property. If the criteria for profit recognition under the full-accrual method are not met, we will defer gain recognition and account for the continued operations of the property by applying the deposit, installment or cost recovery methods, as appropriate, until the appropriate criteria are met.
Interest income from a loan receivable is recognized based on the contractual terms of the debt instrument. Fees related to the buydown of the interest rate were deferred as prepaid interest income and amortized over the term of the loan as an adjustment to interest income. Closing costs related to the purchase of the loan receivable are amortized over the term of the loan and accreted as an adjustment against interest income.
Distribution Policy
We intend to make distributions each taxable year equal to at least 90% of our REIT taxable income (which is determined without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). We expect to authorize, declare and pay dividends on a monthly basis.
Dividends to be distributed to stockholders will be determined by our board of directors and will be dependent upon a number of factors relating to us, including funds available for the payment of dividends, financial condition, the timing of property acquisitions, capital expenditure requirements and
26
annual distribution requirements in order to maintain our status as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”).
Income Taxes
We intend to elect to be taxed as a REIT under the Code and intend to operate as such beginning with our taxable year ended December 31, 2006. To qualify as a REIT, we must meet certain organizational and operational requirements, including a requirement to distribute at least 90% of our annual REIT taxable income to our stockholders (which is computed without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). As a REIT, we generally will not be subject to federal income tax on income that we distribute to stockholders. If we fail to qualify as a REIT in any taxable year, we will be subject to federal income tax on our taxable income at regular corporate income tax rates and generally will not be permitted to qualify for treatment as a REIT for federal income tax purposes for the four taxable years following the year during which qualification is lost, unless the Internal Revenue Service grants us relief under certain statutory provisions. Such an event could materially adversely affect our net income and net cash available for distribution to stockholders. However, we intend to organize and operate in such a manner as to qualify for treatment as a REIT.
We have elected to treat KBS REIT Holdings, our wholly owned subsidiary, as a taxable REIT subsidiary, and KBS REIT Holdings will be subject to federal income tax at regular corporate income tax rates. KBS REIT Holdings is the sole limited partner of the Operating Partnership and owns a 1% ownership interest in the Operating Partnership. As a result, KBS REIT Holdings will be taxed on income allocable to it from the Operating Partnership in respect of its limited partnership interest.
Revision to Suitability Standards in Kansas
As of January 4, 2007, we will not sell shares to investors in Kansas unless they meet the following special suitability standards:
Investors must have either (1) a net worth of at least $225,000, or (2) gross annual income of at least $60,000 and a net worth of at least $60,000.
Furthermore, it is recommended by the Office of the Kansas Securities Commissioner that Kansas investors not invest, in the aggregate, more than 10% of their liquid net worth in this and similar direct participation investments. Liquid net worth is defined as that portion of net worth that consists of cash, cash equivalents and readily marketable securities.
For purposes of determining suitability of an investor, net worth in all cases should be calculated excluding the value of an investor’s home, furnishings and automobiles. In the case of sales to fiduciary accounts, these suitability standards must be met by the fiduciary account, by the person who directly or indirectly supplied the funds for the purchase of the shares if such person is the fiduciary or by the beneficiary of the account.
Those selling shares on our behalf must make every reasonable effort to determine that the purchase of shares in this offering is a suitable and appropriate investment for each stockholder based on information provided by the stockholder regarding the stockholder’s financial situation and investment objectives.
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Reallowance of Dealer Manager Fee
For all sales, we pay our dealer manager a fee equal to 3.5% of the gross proceeds from the sale. As described in the prospectus, currently our dealer manager may reallow to participating broker-dealers out of its dealer manager fee up to 1% of gross offering proceeds attributable to that participating broker-dealer as a marketing fee. However, our dealer manager has determined that it may increase the amount of the reallowance in special cases. Whether the reallowance to any participating broker-dealer will exceed 1%, and the extent of any excess, will not depend on the actual amount of gross proceeds raised by that broker-dealer. Rather, the dealer manager expects that any distinctions among broker-dealers that the dealer manager might make with respect to the amount of the reallowance would be based solely on projected sales volume of at least $200 million on an annualized basis by the participating broker-dealer at the time it enters into a selling agreement and marketing fee agreement with the dealer manager.
Experts
The (i) the Statement of Revenues Over Certain Operating Expenses of the Southpark Commerce Center II Buildings for the year ended December 31, 2005; (ii) the Statement of Revenues Over Certain Operating Expenses of the 825 University Avenue Building for the year ended December 31, 2005; (iii) the Statement of Revenues Over Certain Operating Expenses of the Midland Industrial Portfolio for the year ended December 31, 2005; and (iv) the Statement of Revenues Over Certain Operating Expenses of the Crescent Green Buildings for the year ended December 31, 2005, all appearing in this supplement and Registration Statement have all been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
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Index to Financial Statements
| | |
| Consolidated Financial Statements | | |
| |
Consolidated Balance Sheets as of September 30, 2006 (unaudited) and December 31, 2005 | | F-2 |
| |
Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2006 (unaudited) | | F-3 |
| |
Consolidated Statements of Stockholders’ Equity for the Nine Months Ended September 30, 2006 (unaudited) | | F-4 |
| |
Consolidated Statement of Cash Flows for the Nine Months Ended September 30, 2006 (unaudited) | | F-5 |
| |
Condensed Notes to Consolidated Financial Statements as of September 30, 2006 (unaudited) | | F-6 |
| |
| Southpark Commerce Center II Buildings | | |
| |
Report of Independent Registered Public Accounting Firm | | F-29 |
| |
Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-30 |
| |
Notes to Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-31 |
| |
| 825 University Avenue Building | | |
| |
Report of Independent Registered Public Accounting Firm | | F-33 |
| |
Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-34 |
| |
Notes to Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-35 |
| |
| Midland Industrial Portfolio | | |
| |
Report of Independent Registered Public Accounting Firm | | F-37 |
| |
Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-38 |
| |
Notes to Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-39 |
| |
| Crescent Green Buildings | | |
| |
Report of Independent Registered Public Accounting Firm | | F-41 |
| |
Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-42 |
| |
Notes to Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005 | | F-43 |
| |
| Unaudited Pro Forma Financial Statements | | |
| |
Summary of Unaudited Pro Forma Financial Statements | | F-45 |
| |
Pro Forma Balance Sheet as of September 30, 2006 (unaudited) | | F-46 |
| |
Pro Forma Statement of Operations for the Nine Months Ended September 30, 2006 (unaudited) | | F-48 |
| |
Pro Forma Statement of Operations for the Year Ended December 31, 2005 (unaudited) | | F-52 |
F-1
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED BALANCE SHEETS
As of September 30, 2006 and December 31, 2005
| | | | | | | |
| | | September 30,
2006 | | | December 31, 2005 |
| | | (unaudited) | | | |
Assets | | | | | | | |
Real estate: | | | | | | | |
Land | | $ | 6,038,672 | | | $ | — |
Buildings and improvements, less accumulated depreciation of $192,455 as of September 30, 2006 | | | 103,280,562 | | | | — |
Tenant origination and absorption costs, less accumulated amortization of $202,783 as of September 30, 2006 | | | 9,943,387 | | | | — |
| | | | | | | |
Total real estate, net | | | 119,262,621 | | | | — |
Real estate loan receivable | | | 13,322,027 | | | | — |
| | | | | | | |
Total real estate investments, net | | | 132,584,648 | | | | — |
Cash and cash equivalents | | | 4,384,775 | | | | 200,000 |
Rents and other receivables | | | 456,269 | | | | — |
Above-market leases, net of accumulated amortization of $2,873 as of September 30, 2006 | | | 1,065,376 | | | | — |
Prepaid and other assets | | | 925,271 | | | | — |
| | | | | | | |
Total assets | | $ | 139,416,339 | | | $ | 200,000 |
| | | | | | | |
Liabilities and stockholders’ equity | | | | | | | |
Notes payable | | $ | 100,798,000 | | | $ | — |
Note payable to affiliate | | | 7,947,137 | | | | — |
Repurchase agreement | | | 7,278,593 | | | | |
Accounts payable and accrued liabilities | | | 2,151,630 | | | | — |
Due to affiliates | | | 986,613 | | | | — |
Below-market leases, net of accumulated amortization of $61,786 as of September 30, 2006 | | | 1,656,974 | | | | — |
Other liabilities | | | 92,506 | | | | — |
| | | | | | | |
Total liabilities | | | 120,911,453 | | | | — |
| | | | | | | |
Commitments and contingencies (Note 11) | | | | | | | |
Redeemable common stock; 10,437 shares issued and outstanding as of September 30, 2006 | | | 99,157 | | | | — |
Stockholders’ equity: | | | | | | | |
Preferred stock, $.01 par value; 10,000,000 shares authorized, no shares issued and Outstanding | | | — | | | | — |
Common stock, $.01 par value; 1,000,000,000 shares authorized, and 2,305,637 and 20,000 shares issued and outstanding as of September 30, 2006 and December 31, 2005, respectively | | | 23,057 | | | | 200 |
Additional paid-in capital | | | 19,563,666 | | | | 199,800 |
Cumulative distributions and net loss | | | (1,180,994 | ) | | | — |
| | | | | | | |
Total stockholders’ equity | | | 18,405,729 | | | | 200,000 |
| | | | | | | |
Total liabilities and stockholders’ equity | | $ | 139,416,339 | | | $ | 200,000 |
| | | | | | | |
See accompanying notes.
F-2
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three and Nine Months Ended September 30, 2006
(unaudited)
| | | | | | | | |
| | | Three Months
Ended
September 30,
2006 | | | Nine Months
Ended September 30,
2006 | |
Revenues: | | | | | | | | |
Rental income | | $ | 756,530 | | | $ | 756,530 | |
Tenant reimbursements | | | 118,825 | | | | 118,825 | |
Interest income and other revenues | | | 382,633 | | | | 382,955 | |
| | | | | | | | |
Total revenues | | | 1,257,988 | | | | 1,258,310 | |
| | | | | | | | |
Operating expenses: | | | | | | | | |
Operating, maintenance, and management | | | (199,776 | ) | | | (199,776 | ) |
Real estate and other property-related taxes | | | (77,713 | ) | | | (77,713 | ) |
General and administrative expenses | | | (406,881 | ) | | | (871,018 | ) |
Depreciation and amortization | | | (395,237 | ) | | | (395,237 | ) |
| | | | | | | | |
Total operating expenses | | | (1,079,607 | ) | | | (1,543,744 | ) |
Operating income | | | 178,381 | | | | (285,434 | ) |
Non-operating expenses: | | | | | | | | |
Interest expense | | | (706,898 | ) | | | (706,898 | ) |
| | | | | | | | |
Total non-operating expenses | | | (706,898 | ) | | | (706,898 | ) |
| | | | | | | | |
Net loss | | $ | (528,517 | ) | | $ | (992,332 | ) |
| | | | | | | | |
Loss per common share, basic and diluted | | $ | (0.46 | ) | | $ | (2.48 | ) |
| | | | | | | | |
Weighted average number of common shares outstanding | | | 1,148,531 | | | | 400,311 | |
| | | | | | | | |
Distributions declared per common share | | $ | 0.14 | | | $ | 0.14 | |
| | | | | | | | |
See accompanying notes.
F-3
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
For the Nine Months Ended September 30, 2006
(unaudited)
| | | | | | | | | | | | | | | | | | | |
| | | Common Stock | | | Additional
Paid-in
Capital | | | Cumulative
Distributions
and Losses | | | Total
Stockholders’
Equity | |
| | | Shares | | | Amount | | | | |
Balance, December 31,2005 | | 20,000 | | | $ | 200 | | | $ | 199,800 | | | $ | — | | | $ | 200,000 | |
Issuance of common stock | | 2,296,074 | | | | 22,961 | | | | 22,901,604 | | | | — | | | | 22,924,565 | |
Redeemable common stock | | (10,437 | ) | | | (104 | ) | | | (99,053 | ) | | | — | | | | (99,157 | ) |
Distributions declared | | — | | | | — | | | | — | | | | (188,662 | ) | | | (188,662 | ) |
Commissions and dealer-manager fees | | — | | | | — | | | | (2,143,120 | ) | | | — | | | | (2,143,120 | ) |
Other offering costs | | — | | | | — | | | | (1,295,565 | ) | | | — | | | | (1,295,565 | ) |
Net loss | | — | | | | — | | | | — | | | | (992,332 | ) | | | (992,332 | ) |
| | | | | | | | | | | | | | | | | | | |
Balance, September 30, 2006 | | 2,305,637 | | | $ | 23,057 | | | $ | 19,563,666 | | | $ | (1,180,994 | ) | | $ | 18,405,729 | |
| | | | | | | | | | | | | | | | | | | |
See accompanying notes.
F-4
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
For the Nine Months Ended September 30, 2006
(unaudited)
| | | | |
Cash Flows from Operating Activities: | | | | |
Net loss | | $ | (992,332 | ) |
Adjustments to reconcile net loss to net cash provided by operating activities: | | | | |
Non-cash provisions: | | | | |
Deferred rent | | | (19,132 | ) |
Depreciation and amortization | | | 395,237 | |
Amortization of deferred financing costs | | | 39,425 | |
Amortization of above- and below-market leases, net | | | (58,913 | ) |
Changes in operating assets and liabilities: | | | | |
Rents and other receivables | | | (437,137 | ) |
Prepaid and other assets | | | (333,834 | ) |
Accounts payable and accrued liabilities | | | 2,044,746 | |
Other liabilities | | | 92,506 | |
| | | | |
Net cash provided by operating activities | | | 730,566 | |
| | | | |
Cash Flows from Investing Activities: | | | | |
Purchase of real estate loan receivable | | | (12,949,510 | ) |
Advances on real estate loan receivable | | | (372,517 | ) |
Purchases of real estate | | | (119,007,347 | ) |
| | | | |
Net cash used by investing activities | | | (132,329,374 | ) |
| | | | |
Cash Flows from Financing Activities: | | | | |
Distributions paid | | | (81,778 | ) |
Proceeds from notes payable | | | 104,098,000 | |
Payments on notes payable | | | (3,300,000 | ) |
Proceeds from repurchase agreement | | | 7,278,593 | |
Proceeds from note payable to affiliate | | | 8,447,137 | |
Payments on note payable to affiliate | | | (500,000 | ) |
Advances from affiliate | | | 986,613 | |
Deferred financing costs | | | (630,862 | ) |
Proceeds from sale of common stock | | | 22,924,565 | |
Commissions on stock sales and related dealer manager fees | | | (2,143,120 | ) |
Other offering costs | | | (1,295,565 | ) |
| | | | |
Net cash provided by financing activities | | | 135,783,583 | |
| | | | |
Net change in cash and cash equivalents | | | 4,184,775 | |
Cash and cash equivalents, beginning of period | | | 200,000 | |
| | | | |
Cash and cash equivalents, end of period | | $ | 4,384,775 | |
| | | | |
Supplemental Disclosure of Cash Flow Information: | | | | |
Interest paid | | $ | 527,619 | |
| | | | |
Supplemental Disclosure of Non-Cash Financing Activities: | | | | |
Distributions declared and unpaid | | $ | 106,884 | |
| | | | |
See accompanying notes.
F-5
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2006
(unaudited)
1. ORGANIZATION
KBS Realty Corporation was formed on June 13, 2005 as a Maryland corporation that intends to qualify as a real estate investment trust (“REIT”) beginning with the taxable year that will end December 31, 2006. On June 15, 2005, KBS Realty Corporation and KBS Real Estate Investment Trust, Inc., a Maryland corporation (“KBS REIT”), filed Articles of Merger (the “Articles of Merger”) with the State of Maryland. Pursuant to the Articles of Merger, KBS REIT was merged into KBS Realty Corporation with KBS Realty Corporation surviving the merger, and KBS Realty Corporation’s name was changed to KBS Real Estate Investment Trust, Inc. (the “Company”).
Prior to the merger, KBS Capital Advisors LLC (the “Advisor”) owned 20,000 shares of common stock of KBS REIT, which were all of the outstanding shares of KBS REIT. Pursuant to the Articles of Merger, the Advisor’s 20,000 shares in KBS REIT were converted on a one-for-one basis into shares of common stock of the Company. As of September 30, 2006, the Advisor owns 20,000 shares of the Company’s common stock.
As a result of the merger, the Company succeeded, without other transfer, to all of the rights and assets of KBS REIT. The Company also became subject to all of the debts and liabilities of KBS REIT in the same manner as if the Company itself had incurred those debts and liabilities. As of June 15, 2005, the effective date of the merger, the Company directly owned all of the interests in KBS REIT Holdings LLC, a Delaware limited liability company (“KBS REIT Holdings”). Also as of June 15, 2005, the Company became the sole general partner of and directly owned a 0.1% partnership interest in KBS Limited Partnership, a Delaware limited partnership (the “Operating Partnership”). KBS REIT Holdings owned the remaining 99.9% partnership interest in the Operating Partnership and was the sole limited partner of the Operating Partnership.
In connection with securing financing for a property acquisition, on June 29, 2006, KBS REIT Holdings transferred the majority of its partnership interests in the Operating Partnership to the Company. As a result of the transfer, KBS REIT Holdings retained a 1% partnership interest in the Operating Partnership and remained the sole limited partner of the Operating Partnership, and the Company, as sole general partner, became the direct owner of the remaining 99% partnership interest in the Operating Partnership. On July 5, 2006, the Company elected to treat KBS REIT Holdings as a taxable REIT subsidiary. The Company anticipates that it will conduct substantially all of its operations through the Operating Partnership.
The Company expects to invest in a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located throughout the United States. All such real estate assets may be acquired directly by the Company or the Operating Partnership, though the Company may invest in other entities that make similar investments. The Company also intends to make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance investments. As of September 30, 2006, the Company, through wholly owned subsidiaries, owned two office properties and one mezzanine loan. See Note 3, “Real Estate,” and Note 4, “Real Estate Loan Receivable.”
F-6
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
1. ORGANIZATION (CONTINUED)
Subject to certain restrictions and limitations, the business of the Company is managed by the Advisor pursuant to an Advisory Agreement with the Company (the “Advisory Agreement”) in effect through November 8, 2007. The Advisory Agreement may be renewed for an unlimited number of one-year periods upon the mutual consent of the Advisor and the Company. Either party may terminate the Advisory Agreement upon 60 days’ written notice.
On June 23, 2005, the Company filed a registration statement on Form S-11 with the Securities and Exchange Commission (the “SEC”) to offer a minimum of 250,000 shares (the “Minimum Number of Shares”) and a maximum of 280,000,000 shares of common stock for sale to the public (the “Offering”), of which 80,000,000 shares would be offered pursuant to the Company’s dividend reinvestment plan. The SEC declared the Company’s registration statement effective on January 13, 2006 and the Company launched the Offering on January 27, 2006, upon retaining KBS Capital Markets Group LLC (the “Dealer Manager”), an affiliate of the Advisor, to serve as the dealer manager of the Offering. The Dealer Manager is responsible for marketing the Company’s shares in the Offering. The Company intends to use substantially all of the net proceeds from the Offering to invest in a diverse portfolio of real estate assets as described above.
As of July 5, 2006, the Company’s escrow agent had received approximately $5.45 million of gross proceeds to purchase 546,035 shares of common stock, an amount sufficient to satisfy the Minimum Number of Shares in the Offering. Through September 30, 2006, the Company had sold 2,296,074 shares for gross proceeds of $22,924,565.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation and Basis of Presentation
The consolidated financial statements include the accounts of the Company, KBS REIT Holdings and the Operating Partnership. All significant intercompany balances and transactions are eliminated in consolidation. The financial statements of KBS REIT Holdings and the Operating Partnership are prepared using accounting policies consistent with those of the Company. The consolidated financial statements are prepared in accordance with the rules and regulations of the SEC, including the instructions to Form 10-Q and Article 10 of Regulation S-X. Certain information and footnote disclosures required by U.S. generally accepted accounting principles (“GAAP”) for complete financial statements have been condensed or omitted, although management believes the disclosures are adequate to make the information presented not misleading. In the opinion of management, the consolidated financial statements for the unaudited interim periods presented include all adjustments necessary to present a fair statement of the results for those periods. These consolidated financial statements should be read in conjunction with the balance sheet and notes thereto as of December 31, 2005 included in supplement no. 6 to the Company’s prospectus dated October 6, 2006.
F-7
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Use of Estimates
The preparation of the consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could materially differ from those estimates.
Real Estate Assets
Costs related to the acquisition, development, construction and improvement of properties are capitalized. Repair and maintenance costs are charged to expense as incurred and significant replacements and betterments are capitalized. Repair and maintenance costs include all costs that do not extend the useful life of the real estate asset. The Company considers the period of future benefit of an asset to determine its appropriate useful life. The Company anticipates the estimated useful lives of its assets by class to be generally as follows:
| | |
| Buildings | | 25-40 years |
| Building improvements | | 10-25 years |
| Land improvements | | 20-25 years |
| Tenants improvements | | Lease term or expected useful life |
Real Estate Purchase Price Allocation
In accordance with Statement of Financial Accounting Standards (“SFAS”) No. 141Business Combinations, the Company records above-market and below-market in-place lease values for acquired properties based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (i) the contractual amounts to be paid pursuant to the in-place leases and (ii) management’s estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining non-cancelable term of the lease. The Company amortizes any capitalized above- or below-market lease values as an increase or reduction to rental income over the remaining non-cancelable terms of the respective leases.
The Company measures the aggregate value of other intangible assets acquired based on the difference between (i) the property valued with existing in-place leases adjusted to market rental rates and (ii) the property valued as if vacant. Management’s estimates of value are made using methods similar to those used by independent appraisers (e.g., discounted cash flow analysis). Factors considered by management in its analysis include an estimate of carrying costs during hypothetical expected lease-up periods considering current market conditions and costs to execute similar leases.
The Company also considers information obtained about each property as a result of its pre-acquisition due diligence, marketing and leasing activities in estimating the fair value of the tangible and intangible assets acquired. In estimating carrying costs, management also includes real estate taxes, insurance and
F-8
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Real Estate Assets (Continued)
other operating expenses and estimates of lost rentals at market rates during the expected lease-up periods. Management also estimates costs to execute similar leases including leasing commissions and legal and other related expenses to the extent that such costs are not already incurred in connection with a new lease origination as part of the transaction.
The total amount of other intangible assets acquired is further allocated to in-place lease values and customer relationship intangible values based on management’s evaluation of the specific characteristics of each tenant’s lease and the Company’s overall relationship with that respective tenant. Characteristics considered by management in allocating these values include the nature and extent of the Company’s existing business relationships with the tenant, growth prospects for developing new business with the tenant, the tenant’s credit quality and expectations of lease renewals (including those existing under the terms of the lease agreement), among other factors.
The Company amortizes the value of in-place leases to expense over the initial term of the respective leases. The value of customer relationship intangibles are amortized to expense over the initial term and any renewal periods in the respective leases, but in no event do the amortization periods for the intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and customer relationship intangibles would be charged to expense.
Impairment of Real Estate Assets
The Company continually monitors events and changes in circumstances that could indicate that the carrying amounts of its real estate assets may not be recoverable. When indicators of potential impairment suggest that the carrying value of a real estate asset may not be recoverable, the Company assesses the recoverability of the asset by estimating whether the Company will recover the carrying value of the asset through its undiscounted future cash flows and its eventual disposition. If based on this analysis the Company does not believe that it will be able to recover the carrying value of the asset, the Company records an impairment loss to the extent that the carrying value exceeds the estimated fair value of the asset. There were no impairment losses recorded by the Company during the three and nine months ended September 30, 2006.
F-9
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Real Estate Loan Receivable
The real estate loan receivable is recorded at cost, adjusted for net closing costs. The real estate loan receivable is reviewed for potential impairment at each balance sheet date. A loan receivable is considered impaired when it becomes probable, based on current information, that the Company will be unable to collect all amounts due according to the loan’s contractual terms. The amount of impairment, if any, is measured by comparing the recorded amount of the loan receivable to the present value of the expected cash flows or the fair value of the collateral. If a loan was deemed to be impaired, the Company would record a reserve for loan losses through a charge to income for any shortfall. To date, no such impairment charges have been recognized.
Cash and Cash Equivalents
The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents. Cash equivalents may include cash and short-term investments. Short-term investments are stated at cost, which approximate fair value. The Operating Partnership’s account balance exceeds federally insurable limits. The Company mitigates this risk by depositing funds with a major financial institution. There are no restrictions on the use of the Company’s cash as of September 30, 2006.
Rents and Other Receivables
The Company periodically evaluates the collectibility of amounts due from tenants and maintains an allowance for doubtful accounts for estimated losses resulting from the inability of tenants to make required payments under lease agreements. The Company maintains an allowance for deferred rent receivable that arises from the straight-lining of rents when deemed necessary. The Company exercises judgment in establishing these allowances and considers payment history and current credit status in developing these estimates.
Redeemable Common Stock
The Company’s share redemption program limits all redemptions during any calendar year to those that the Company could purchase with the net proceeds from the sale of shares under its dividend reinvestment plan during the prior calendar year. As the use of the proceeds for redemptions is outside the Company’s control, they are considered to be temporary equity under Accounting Series Release No. 268,Presentation in Financial Statements of Redeemable Preferred Stock. Therefore, the Company has included an amount equal to the net proceeds from shares issued through the Company’s dividend reinvestment plan in the current calendar year as redeemable common stock in the accompanying consolidated financial statements as of September 30, 2006.
F-10
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Redeemable Common Stock (Continued)
The Company has adopted SFAS No. 150,Accounting for Certain Financial Instruments with Characteristics of Both Liabilities and Equity (“SFAS 150”), which requires, among other things, that financial instruments that represent a mandatory obligation of the Company to repurchase shares be classified as liabilities and reported at settlement value. The Company’s redeemable common shares are contingently redeemable at the option of the holder. As such, SFAS 150 is not applicable until such shares are tendered for redemption by the holder, at which time the Company will reclassify such obligations from mezzanine equity to a liability based upon their respective settlement values. As of September 30, 2006, no shares had been tendered for redemption.
Organization, Offering and Related Costs
Organization and offering costs (other than selling commissions and the dealer manager fee) of the Company are initially being paid by the Advisor, the Dealer Manager and their affiliates on behalf of the Company. These other organization and offering costs include all expenses to be paid by the Company in connection with the Offering, including but not limited to (i) legal, accounting, printing, mailing and filing fees; (ii) charges of the escrow holder; (iii) reimbursement of the Dealer Manager for amounts it may pay to reimburse the bona fide diligence expenses of broker-dealers; (iv) reimbursement to the Advisor for the salaries of its employees and other costs in connection with preparing supplemental sales materials; (v) the cost of educational conferences held by the Company (including the travel, meal and lodging costs of registered representatives of broker-dealers); and (vi) reimbursement to the Dealer Manager for travel, meals, lodging and attendance fees incurred by employees of the Dealer Manager to attend retail seminars conducted by broker-dealers. Pursuant to the Advisory Agreement and the Dealer Manager Agreement, the Company is obligated to reimburse the Advisor, the Dealer Manager or their affiliates, as applicable, for organization and offering costs associated with the Offering, provided that the Advisor is obligated to reimburse the Company to the extent selling commissions, the dealer manager fee and other organization and offering costs exceed 15% of gross offering proceeds. As of September 30, 2006, the Advisor and its affiliates have incurred on behalf of the Company organization and offering costs (excluding selling commissions and the dealer manager fee) of $3,560,275. These costs are only a liability of the Company to the extent selling commissions, the dealer manager fee and other organization and offering costs do not exceed 15% of the gross proceeds of the Offering. The Company had no obligation to reimburse the Advisor, the Dealer Manager or their affiliates for any organization and offering costs unless the Company sold the Minimum Number of Shares in the Offering. The Company broke escrow in the Offering on July 5, 2006. Through September 30, 2006, the Company had sold 2,296,074 shares for gross offering proceeds of $22,924,565 and recorded organization and offering costs of $1,295,565 and selling commissions and dealer manager fees of $2,143,120. Organization costs are expensed as incurred, and offering costs, which include selling commissions and dealer manager fees, are charged to stockholders’ equity as such amounts are reimbursed from the gross proceeds of the Offering.
F-11
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Revenue Recognition
The Company recognizes minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, on a straight-line basis over the term of the related lease and amounts expected to be received in later years are recorded as deferred rents. The Company records property operating expense reimbursements due from tenants for common area maintenance, real estate taxes and other recoverable costs in the period the related expenses are incurred.
The Company recognizes gains on sales of real estate pursuant to the provisions of SFAS No. 66Accounting for Sales of Real Estate(“SFAS 66”). The specific timing of a sale is measured against various criteria in SFAS 66 related to the terms of the transaction and any continuing involvement in the form of management or financial assistance associated with the property. If the criteria for profit recognition under the full-accrual method are not met, the Company defers gain recognition and accounts for the continued operations of the property by applying the deposit, installment or cost recovery methods, as appropriate, until the appropriate criteria are met.
Interest income from loan receivable is recognized based on the contractual terms of the debt instrument. Fees related to the buydown of the interest rate are deferred as prepaid interest income and amortized over the term of the loan as an adjustment to interest income. Closing costs related to the purchase of the loan receivable are amortized over the term of the loan and accreted as an adjustment against interest income.
General and Administrative Expenses
General and administrative expenses, totaling $406,881 and $871,018, for the three and nine months ended September 30, 2006, respectively, consisted primarily of insurance premiums, independent director fees and professional fees. To the extent included in the definition of total operating expenses (as set forth in Note 9), general and administrative expenses are an operating expense of the Company that is subject to the operating expense reimbursement obligation of the Advisor discussed in Note 9. Pursuant to the operating expense reimbursement obligation, the Advisor will reimburse the Company at the end of any fiscal quarter for total operating expenses that in the four consecutive fiscal quarters then ended exceed the greater of 2% of its average invested assets or 25% of its net income for the year, unless the conflicts committee of the Company’s board of directors determines that such excess expenses are justified based on unusual and non-recurring factors.
Independent Director Compensation
The Company pays each of its independent directors an annual retainer of $25,000. In addition, the independent directors are paid for attending meetings as follows: (i) $2,500 for each board meeting attended, (ii) $2,000 for each committee meeting attended (except that the committee chairman is paid $3,000 for each meeting attended), (iii) $1,000 for each teleconference board meeting attended, and
F-12
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Independent Director Compensation (Continued)
(iv) $1,000 for each teleconference committee meeting attended (except that the committee chairman is paid $3,000 for each teleconference committee meeting attended). All directors also receive reimbursement of reasonable out-of-pocket expenses incurred in connection with attendance at meetings of the board of directors. At September 30, 2006, independent director fees payable were $48,250. The Company accrued for these fees and recorded them as general and administrative expense in the accompanying financial statements of the Company. Director compensation is an operating expense of the Company that is subject to the operating expense reimbursement obligation of the Advisor discussed in Note 9. Pursuant to the operating expense reimbursement obligation, the Advisor will reimburse the Company at the end of any fiscal quarter for total operating expenses (as defined in Note 9) that in the four consecutive fiscal quarters then ended exceed the greater of 2% of its average invested assets or 25% of its net income for the year, unless the conflicts committee of the Company’s board of directors determines that such excess expenses are justified based on unusual and non-recurring factors.
Income Taxes
The Company intends to elect to be taxed as a REIT under the Internal Revenue Code of 1986, as amended, and intends to operate as such beginning with its taxable year ending December 31, 2006. To qualify as a REIT, the Company must meet certain organizational and operational requirements, including a requirement to distribute at least 90% of the Company’s annual REIT taxable income to stockholders (which is computed without regard to the dividends paid deduction or net capital gain and which does not necessarily equal net income as calculated in accordance with GAAP). As a REIT, the Company generally will not be subject to federal income tax on income that it distributes to stockholders. If the Company fails to qualify as a REIT in any taxable year, it will be subject to federal income tax on its taxable income at regular corporate income tax rates and generally will not be permitted to qualify for treatment as a REIT for federal income tax purposes for the four taxable years following the year during which qualification is lost, unless the Internal Revenue Service grants the Company relief under certain statutory provisions. Such an event could materially adversely affect the Company’s net income and net cash available for distribution to stockholders. However, the Company intends to organize and operate in such a manner as to qualify for treatment as a REIT. The Company was not a REIT for its 2005 taxable year.
The Company has elected to treat KBS REIT Holdings as a taxable REIT subsidiary, and KBS REIT Holdings will be subject to federal income tax at regular corporate income tax rates. KBS REIT Holdings is the sole limited partner of the Operating Partnership and owns a 1% ownership interest in the Operating Partnership. As a result, KBS REIT Holdings will be taxed on income allocable to it from the Operating Partnership in respect of its limited partnership interest.
F-13
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Per Share Data
Loss per basic share of common stock is calculated by dividing net loss by the weighted-average number of shares of common stock issued and outstanding during such period. Diluted loss per share of common stock equals basic loss per share of common stock as there were no potentially dilutive shares of common stock for the three and nine months ended September 30, 2006.
Dividends declared per common share assumes the share was issued and outstanding each day during the period from July 18, 2006 through September 30, 2006 and is based on a daily dividend for the period of $0.0019178 per share per day. Each day during the period from July 18, 2006 through September 30, 2006 was a record date for dividends.
Recently Issued Accounting Standards
In July 2006, the Financial Accounting Standards Board (the “FASB”) issued Interpretation No. 48,Accounting for Uncertainty in Income Taxes (“FIN 48”). This interpretation, among other things, creates a two step approach for evaluating uncertain tax positions. Recognition (step one) occurs when an enterprise concludes that a tax position, based solely on its technical merits, is more-likely-than-not to be sustained upon examination. Measurement (step two) determines the amount of benefit that more-likely-than-not will be realized upon settlement. Derecognition of a tax position that was previously recognized would occur when a company subsequently determines that a tax position no longer meets the more-likely-than-not threshold of being sustained. FIN 48 specifically prohibits the use of a valuation allowance as a substitute for derecognition of tax positions, and it has expanded disclosure requirements. FIN 48 is effective for fiscal years beginning after December 15, 2006, in which the impact of adoption should be accounted for as a cumulative-effect adjustment to the beginning balance of retained earnings. The Company is evaluating FIN 48 and has not yet determined the impact the adoption will have on the consolidated financial statements.
3. REAL ESTATE
The Company, through its wholly owned subsidiaries, has acquired two properties, both of which were acquired during the three months ended September 30, 2006.
F-14
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
3. REAL ESTATE (CONTINUED)
Sabal Pavilion Building
On July 7, 2006, the Company, through an indirect wholly owned subsidiary, purchased a four-story office building containing 120,500 rentable square feet (the “Sabal Pavilion Building”) from an unaffiliated seller. The Sabal Pavilion Building is located on an 11.9-acre parcel of land at 3620 Queen Palm Drive in Tampa, Florida. The purchase price of the Sabal Pavilion Building was approximately $24,250,000 plus closing costs. The acquisition was funded from a $14,700,000 fixed rate loan secured by the Sabal Pavilion Building, a $4,898,000 mezzanine loan secured by a 100% equity interest in the Company’s wholly owned subsidiary that holds title to the property, and a $5,572,137 advance under a loan from an affiliate of the Company (Note 8).
Plaza in Clayton
On September 27, 2006, the Company purchased the Plaza in Clayton, a 16-story office building containing 325,172 rentable square feet, from an unaffiliated seller. The Plaza in Clayton is located on a 2.31-acre parcel of land at 190 Carondelet Plaza in St. Louis, Missouri (which parcel includes a condominium tower that is not the subject of the purchase and sale agreement). The purchase price of the Plaza in Clayton was approximately $93,281,000 plus closing costs. The acquisition was funded from a $62,200,000 fixed rate loan secured by the Plaza in Clayton, a $22,300,000 mezzanine loan secured by a 100% equity interest in the Company’s wholly owned subsidiary that holds title to the property and with proceeds from the Offering.
4. REAL ESTATE LOAN RECEIVABLE
Tribeca Mezzanine Loan
On July 18, 2006, the Company purchased a $15,896,000 junior mezzanine loan (the “Tribeca Mezzanine Loan”) from an unaffiliated seller. The purchase price of the Tribeca Mezzanine Loan was $12,949,510 plus closing costs, which was the amount funded to the borrower under the loan to date. The acquisition was funded with proceeds of $7,122,231 from a repurchase agreement with a third-party lender, a $2,875,000 advance under a loan from an affiliate of the Company (Note 8) and with proceeds from the Offering.
F-15
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
4. REAL ESTATE LOAN RECEIVABLE (CONTINUED)
Tribeca Mezzanine Loan (Continued)
After the closing, the Company remained obligated to fund an additional $2,946,490 under the loan for future costs related to the conversion of the building. As of September 30, 2006, the Company had funded $372,517 of these costs of which $156,362 was financed by the repurchase agreement with a third-party lender.
The Tribeca Mezzanine Loan bears interest at a variable rate equal to one month LIBOR plus 850 basis points, provided that at no time shall the interest rate exceed 13.25%. At September 30, 2006, the one month LIBOR rate was 5.32%. The Tribeca Mezzanine Loan has an initial maturity date of March 1, 2008 with a one-year extension option subject to certain conditions. Prior to maturity, the borrower under the Tribeca Mezzanine Loan is required to make monthly interest-only payments to the Company, with the outstanding principal balance being due at maturity. Prior to satisfaction of the loan, the borrower must pay the Company an amount that brings the annualized internal rate of return on the Tribeca Mezzanine Loan to 25%. The Tribeca Mezzanine Loan is being used to fund future costs related to the conversion of an eight-story loft building into a 10-story condominium building located in New York, New York (the “Tribeca Building”). As of September 30, 2006, the Tribeca Mezzanine Loan is subordinate to approximately $92,000,000 of senior indebtedness on the Tribeca Building.
5. RENTS AND OTHER RECEIVABLES
As of September 30, 2006, rents and other receivables were as follows:
| | | |
Interest receivable | | $ | 145,808 |
Deferred rent | | | 19,132 |
Tenant receivables | | | 291,329 |
| | | |
Total | | $ | 456,269 |
| | | |
6. PREPAID AND OTHER ASSETS
As of September 30, 2006, prepaid and other assets were as follows:
| | | |
Deferred financing costs, net of accumulated amortization of $39,425 | | $ | 591,437 |
Prepaid insurance | | | 83,586 |
Other assets | | | 250,248 |
| | | |
Total | | $ | 925,271 |
| | | |
F-16
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
7. ACCOUNTS PAYABLE AND ACCRUED LIABILITIES
As of September 30, 2006, accounts payable and accrued liabilities were as follows:
| | | |
Accounts payable and other accrued liabilities | | $ | 581,722 |
Accrued property taxes | | | 1,323,170 |
Accrued interest expense | | | 139,854 |
Dividends payable | | | 106,884 |
| | | |
Total | | $ | 2,151,630 |
| | | |
8. NOTES PAYABLE AND OTHER FINANCIAL INSTRUMENTS
Notes payable and other financial instruments consist of the following as of September 30, 2006:
| | | | | | | | | | |
| | | September 30,
2006 | | Effective Interest Rate for
Period | | | Fixed/ Variable Interest
Rate | | Maturity(1) |
Sabal Pavilion Building – Mortgage Loan | | $ | 14,700,000 | | 6.38 | % | | Fixed | | August 1, 2036 |
Sabal Pavilion Building – Mezzanine Loan(2) | | | 1,598,000 | | 7.60 | % | | Variable | | January 7, 2007 |
Plaza in Clayton – Mortgage Loan | | | 62,200,000 | | 5.90 | % | | Fixed | | October 6, 2016 |
Plaza in Clayton – Mezzanine Loan(3) | | | 22,300,000 | | 6.82 | % | | Variable | | October 6, 2016 |
| | | | | | | | | | |
Notes payable | | | 100,798,000 | | | | | | | |
Note payable to affiliate (4) | | | 7,947,137 | | 6.00 | % | | Fixed | | July 6, 2008 |
Tribeca Mezzanine Loan – Repurchase Agreement(5) | | | 7,278,593 | | 7.34 | % | | Variable | | July 17, 2007 |
| | | | | | | | | | |
| | $ | 116,023,730 | | | | | | | |
| | | | | | | | | | |
| (1) | Represents initial maturity date; subject to certain conditions, the maturity dates of some loans may be extended. |
| (2) | Secured by 100% equity interest in the subsidiary that holds title to the Sabal Pavilion Building. Bears interest at a variable rate equal to 30-day LIBOR plus 225 basis points. On October 5, 2006, the Company paid off the principal amount outstanding under the loan. |
| (3) | Mezzanine loan secured by a 100% equity interest in the subsidiary that holds title to the Plaza in Clayton. The interest rate for the first full eight months is 30-day LIBOR plus 150 basis points and for the next four months is 30-day LIBOR plus 250 to 350 basis points depending upon the outstanding balance on the debt. After the first twelve months, the interest rate increases on a sliding scale of LIBOR plus 500 basis points to LIBOR plus 1000 basis points, depending on the period of time the debt is outstanding. The full amount of the mezzanine loan has been guaranteed by the Operating Partnership. |
F-17
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
8. NOTES PAYABLE AND OTHER FINANCIAL INSTRUMENTS (CONTINUED)
| (4) | Note payable to affiliate, KBS Holdings LLC, a limited liability company that is wholly owned by the Company’s sponsors. Pursuant to the promissory note entered in connection with this loan, the Company agreed to repay any advances, up to an aggregate principal amount of $10,000,000, plus any interest on the unpaid principal advanced under the note, by July 6, 2008. KBS Holdings may, upon written demand, require the Company to prepay outstanding amounts under the promissory note, in whole or in part, provided that funds are available from the proceeds of the Offering. Pursuant to the promissory note, funds are deemed available from the Offering if the Company has not used or become contractually obligated to use such proceeds for another purpose, including the repayment of third-party debt related to the properties or other assets the Company acquires. The promissory note is unsecured. The unpaid principal under the promissory note bears simple interest from the date advanced at the rate of 6% per annum. On October 27, 2006, the Company paid off the principal and interest outstanding under the note. |
| (5) | The Company entered into a repurchase agreement with a financial institution to finance the purchase of the Tribeca Mezzanine Loan. Under this agreement, the Company sold the Tribeca Mezzanine Loan to the financial institution and agreed to repurchase the Tribeca Mezzanine Loan on a date certain at a repurchase price generally equal to the original sales price plus accrued but unpaid interest. The financial institution purchased the Tribeca Mezzanine Loan, which was financed under the repurchase agreement, at a percentage of the asset’s value on the date of origination, which is the purchase rate, and the Company will pay interest to the financial institution at one-month LIBOR plus 200 basis points. For financial reporting purposes, the Company characterizes all of the borrowing under the repurchase agreement as balance sheet financing. The obligations under this financing are guaranteed by the Company and by Charles J. Schreiber, Jr., Peter M. Bren, Peter McMillan III and Keith D. Hall, who are the Company’s sponsors and each of whom is one of the Company’s officers and/or directors. This guarantee will expire as to the foregoing individuals once the Company has received capital contributions of $25 million or more in the Offering and provided the Company’s consolidated debt to equity ratio does not exceed 2:1. The loan was paid in full on December 27, 2006. |
During the nine months ended September 30, 2006, the Company incurred $706,898 of interest expense of which $139,854 was payable at September 30, 2006. The Company also incurred $39,425 of amortization of deferred financing costs, which is included in interest expense for the nine months ended September 30, 2006.
The following is a schedule of maturities for all notes payable and other financing instruments at September 30, 2006:
| | | |
2006 | | $ | — |
2007 | | | 8,876,593 |
2008 | | | 7,947,137 |
2009 | | | — |
2010 | | | — |
Thereafter | | | 99,200,000 |
| | | |
| | $ | 116,023,730 |
| | | |
F-18
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
9. RELATED PARTY TRANSACTIONS
Fees to Affiliates
The Company entered into an Advisory Agreement with the Advisor that is in effect through November 8, 2007. On January 27, 2006, upon the launch of the Offering, the Company executed a Dealer Manager Agreement with the Dealer Manager. These agreements entitle the Advisor and the Dealer Manager to specified fees upon the provision of certain services with regard to the Offering and the investment of funds in real estate assets, among other services, as well as reimbursement of organization and offering costs incurred by the Advisor, the Dealer Manager and their affiliates on behalf of the Company (as discussed in Note 2) and certain costs incurred by the Advisor in providing services to the Company.
Pursuant to the terms of the agreements described above, the Company has incurred the following related-party costs for the three and nine months ended September 30, 2006:
| | | | | | |
| | | Three Months Ended
September 30, 2006 | | Nine Months Ended
September 30, 2006 |
Selling commissions(1) | | $ | 1,028,170 | | $ | 1,342,326 |
Dealer-manager fees(1) | | | 611,757 | | | 800,794 |
Asset-management fees | | | 71,348 | | | 71,348 |
Acquisition fees(2) | | | 985,345 | | | 985,345 |
Reimbursements of organization and offering costs(1) | | | 998,506 | | | 1,295,565 |
Reimbursement of operating expenses | | | 2,522 | | | 211,688 |
| | | | | | |
| | $ | 3,697,648 | | $ | 4,707,066 |
| | | | | | |
| (1) | Commissions, dealer-manager fees and reimbursements of organization and offering costs are charged against stockholders’ equity in the accompanying consolidated balance sheets. |
| (2) | Acquisition fees for the Sabal Pavilion Building and the Plaza in Clayton purchases are capitalized as part of building costs in the accompanying consolidated balance sheets. The acquisition fee for the Tribeca Mezzanine Loan is capitalized as other assets in the accompanying consolidated balance sheets and amortized over the life of the loan. |
The Company had granted no stock-based compensation awards and it had not incurred any disposition fees, subordinated participation in net cash flows, or subordinated incentive listing fees during the three or nine months ended September 30, 2006.
F-19
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
9. RELATED PARTY TRANSACTIONS (CONTINUED)
| | |
Form of Compensation | | Amount |
| Selling Commission | | The Company pays the Dealer Manager up to 6% of the gross offering proceeds (3% for sales of shares under the dividend reinvestment plan) before reallowance of commissions earned by participating broker-dealers. The Dealer Manager reallows 100% of commissions earned to participating broker-dealers. Assuming all shares are sold at the highest possible selling commissions (with no discounts to any categories of purchasers) and a $9.50 price for each share sold through the dividend reinvestment plan, estimated selling commissions are approximately $150,000 if the Company sells the minimum of 250,000 shares and approximately $142,800,000 if the Company sells the maximum of 280,000,000 shares. |
| |
| Dealer Manager Fee | | The Company pays the Dealer Manager 3.5% of gross offering proceeds. No dealer manager fee is payable on shares sold under the dividend reinvestment plan. The Dealer Manager may reallow to any participating broker-dealer up to 1% of the gross offering proceeds attributable to that participating broker-dealer as a marketing fee. The estimated dealer manager fee is approximately $87,500 if the Company sells the minimum of 250,000 shares and approximately $70,000,000 if the Company sells the maximum of 280,000,000 shares. |
F-20
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
9. RELATED PARTY TRANSACTIONS (CONTINUED)
| | |
Form of Compensation | | Amount |
| Reimbursement of Organization and Offering Expenses | | The Company reimburses the Advisor or its affiliates for organization and offering expenses (as discussed in Note 2) incurred by the Advisor or its affiliates on behalf of the Company to the extent that reimbursement would not cause selling commissions, the dealer manager fee and the other organization and offering expenses borne by the Company to exceed 15% of gross offering proceeds as of the date of reimbursement. The Company estimates organization and offering costs of approximately $137,500 if the Company sells the minimum of 250,000 shares and approximately $22,400,000 if the Company sells the maximum of 280,000,000 shares. |
| |
| Acquisition Fee | | The Company pays the Advisor 0.75% of the cost of investments acquired, including acquisition expenses and any debt attributable to such investments. |
| |
| Asset Management Fee* | | The Company pays the Advisor a monthly asset management fee equal to one-twelfth of 0.75% of the sum of the cost of all real estate investments the Company owns and of the Company’s investments in joint ventures, including acquisition fees, acquisition expenses and any debt attributable to such investments. The Advisor deferred its asset management fee, without interest, for the months of July, August and September 2006 but may choose to take the deferred asset management fee in such future period as the Advisor may determine. |
| |
| Reimbursement of Operating Expenses* | | The Company reimburses the expenses incurred by the Advisor or its affiliates in connection with their provision of services to the Company, including the Company’s allocable share of the Advisor’s overhead, such as rent, personnel costs, utilities and IT costs. However, the Company does not reimburse the Advisor or its affiliates for personnel costs in connection with services for which the Advisor or its affiliates receive acquisition fees or disposition fees. |
F-21
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
9. RELATED PARTY TRANSACTIONS (CONTINUED)
| | |
Form of Compensation | | Amount |
| Stock-based Compensation Awards* | | The Company may issue stock-based awards to affiliates of the Advisor. |
| |
| Disposition Fee | | For substantial assistance in connection with the sale of properties or other investments, the Company will pay the Advisor or its affiliate a disposition fee of 1% of the contract sales price of the properties or other investments sold. However, in no event may the real estate commissions paid to the Advisor, its affiliates and unaffiliated third parties exceed 6% of the contract sales price of the properties or other investments sold. |
| |
| Subordinated Participation in Net Cash Flows* | | After investors receive a return of their net capital contributions and an 8.0% per year cumulative, noncompounded return, the Advisor is entitled to receive 15.0% of the net cash flows produced by the Company, whether from continuing operations, net sale proceeds or otherwise. |
| |
| Subordinated Incentive Listing Fee | | Upon listing the Company’s common stock on a national securities exchange or the Nasdaq National Market, the Advisor or its affiliates will receive 15% of the amount by which (1) the market value of the Company’s outstanding stock plus distributions paid by the Company prior to listing exceeds (2) the sum of invested capital and the amount of cash flow necessary to generate an 8.0% per year cumulative, noncompounded return to stockholders. |
| * | The Advisor will reimburse the Company at the end of any fiscal quarter for total operating expenses that in the four consecutive fiscal quarters then ended exceed the greater of 2% of its average invested assets or 25% of its net income for such year, unless the conflicts committee of the Company’s board of directors has determined that such excess expenses were justified based on unusual and non-recurring factors. “Average invested assets” means the average monthly book value of the Company’s assets during the 12-month period before deducting depreciation, bad debts or other non-cash reserves. “Total operating expenses” means all expenses paid or incurred by the Company, as determined under GAAP, that are in any way related to the Company’s operation, including advisory fees, but excluding (a) the expenses of raising capital such as organization and offering expenses, legal, audit, accounting, underwriting, brokerage, listing, registration and other fees, printing and other such expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s stock; (b) interest payments; (c) taxes; (d) non-cash expenditures such as depreciation, |
F-22
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
9. RELATED PARTY TRANSACTIONS (CONTINUED)
amortization and bad debt reserves; (e) reasonable incentive fees based on the gain in the sale of the Company’s assets; and (f) acquisition fees, acquisition expenses (including expenses relating to potential acquisitions that the Company does not close), real estate commissions on the resale of property and other expenses connected with the acquisition, disposition, management and ownership of real estate interests, mortgage loans or other property (including the costs of foreclosure, insurance premiums, legal services, maintenance, repair and improvement of property). To the extent the Advisor receives the fee described above at “Subordinated Participation in Net Cash Flows” and such fee is derived from cash flows other than net sales proceeds, that fee may be limited by the restriction on “total operating expenses.” In addition, stock-based awards treated as an expense under GAAP will count toward the restriction on “total operating expenses.”
Due to Affiliates
Advances from Advisor
In order that the Company’s investors could begin earning cash dividends, the Advisor agreed to advance funds to the Company equal to the amount by which the cumulative amount of distributions declared by the Company from January 1, 2006 through the period ending January 31, 2007 exceeds the amount of the Company’s Funds From Operations (as defined by NAREIT) from January 1, 2006 through January 31, 2007. The Advisor agreed that the Company will only be obligated to reimburse the Advisor for these expenses if and to the extent that the Company’s cumulative funds from operations for the period commencing January 1, 2006 through the date of any such reimbursement exceed the lesser of (i) the cumulative amount of any distributions declared and payable to the Company’s stockholders as of the date of such reimbursement or (ii) an amount that is equal to a 7.0% cumulative, non-compounded, annual return on invested capital for the Company’s stockholders for the period from July 18, 2006 through the date of such reimbursement. No interest will accrue on the advance being made by the Advisor. At September 30, 2006, the Advisor had advanced $188,662, all of which is outstanding, to the Company for the payment of distributions. In addition, the Advisor advanced $711,338 to the Company to cover its expenses, excluding depreciation and amortization, in excess of its revenues. These advances for cash dividends and expenses in excess of revenues total $900,000 and are included in due to affiliates on the accompanying balance sheet at September 30, 2006.
Other
In addition, the remaining $86,613 in due to affiliates relates to $71,348 of deferred asset-management fees, $9,690 of general and administrative expenses, and $5,575 of offering costs paid by an affiliate on behalf of the Company.
F-23
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
9. RELATED PARTY TRANSACTIONS (CONTINUED)
Note Payable to Affiliate
As discussed in Note 8, at September 30, 2006, the Company had a note payable to KBS Holdings for $7,947,137. The proceeds from this note payable were used to fund acquisitions. This note payable was paid in full on October 27, 2006.
10. PRO FORMA FINANCIAL INFORMATION
The following table summarizes, on an unaudited pro forma basis, the combined results of operations of the Company for the three and nine months ended September 30, 2006 and 2005 as if all the Company’s acquisitions from January 1, 2006 to September 30, 2006 were completed as of January 1, 2005. This unaudited pro forma information does not purport to represent what the actual results of operations of the Company would have been had these acquisitions occurred as of January 1, 2005, nor do they purport to predict the results of operations for future periods.
| | | | | | | | | | | | | | | | |
| | | For the Three Months Ended
September 30, | | | For the Nine Months Ended
September 30, | |
| | | 2006 | | | 2005 | | | 2006 | | | 2005 | |
Revenues | | $ | 3,981,159 | | | $ | 3,751,111 | | | $ | 11,721,136 | | | $ | 11,324,933 | |
Net loss | | $ | (1,178,439 | ) | | $ | (838,226 | ) | | $ | (3,051,776 | ) | | $ | (1,793,398 | ) |
Loss per common share, basic and diluted | | $ | (0.73 | ) | | $ | (0.53 | ) | | $ | (1.89 | ) | | $ | (1.13 | ) |
Weighted-average number of common shares outstanding | | | 1,613,967 | | | | 1,580,603 | | | | 1,613,967 | | | | 1,580,603 | |
11. COMMITMENTS AND CONTINGENCIES
Economic Dependency
The Company is dependent on the Advisor and the Dealer Manager for certain services that are essential to the Company, including the sale of the Company’s shares of common and preferred stock available for issue; the identification, evaluation, negotiation, purchase and disposition of properties and other investments; management of the daily operations of the Company’s real estate portfolio; and other general and administrative responsibilities. In the event that these companies are unable to provide the respective services, the Company will be required to obtain such services from other sources.
Concentration of Credit Risk
The loan receivable acquired by the Company, the Tribeca Mezzanine Loan, is in the form of a subordinated mezzanine loan secured by a pledge of the ownership interests of an entity that indirectly owns the real property. This type of investment involves a higher degree of risk relative to a long-term
F-24
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
11. COMMITMENTS AND CONTINGENCIES (CONTINUED)
Concentration of Credit Risk (Continued)
senior mortgage secured by the underlying real property because the investment may become unsecured as a result of foreclosure by the senior lender. In the event of a bankruptcy of the entity providing the pledge of its ownership interests as security, the Company may not have full recourse to the assets of such entity, or the assets of the entity may not be sufficient to satisfy the loan.
The Tribeca Mezzanine Loan is being used to fund costs associated with the conversion of an eight-story loft building into a 10-story condominium building, which condominium units will be sold upon completion of the conversion. Proceeds from the sale of condominium units will be used to repay all borrowings related to the conversion project. The Tribeca Mezzanine Loan is subordinate to a $100,000,000 mortgage loan on the conversion building and a $25,000,000 first mezzanine loan of which approximately $92,000,000 is outstanding as of September 30, 2006. The inability of the borrower under the Tribeca Mezzanine Loan to complete the conversion of the building and/or sell the condominium units could have a material adverse effect on the Company’s ability to realize the repayment of the loan and the accrued interest.
Environmental
As an owner of real estate, the Company is subject to various environmental laws of federal, state and local governments. Compliance with existing environmental laws has not had a material adverse effect on the Company’s financial condition and results of operations as of September 30, 2006.
Legal Matters
The Company is subject to various claims, lawsuits and complaints arising during the ordinary course of business, none of which, in the opinion of management, is expected to have a material adverse effect on the Company’s consolidated financial position or consolidated results of operations.
12. SUBSEQUENT EVENTS
Status of the Offering
As of January 3, 2007, the Company had accepted aggregate gross offering proceeds of approximately $116.5 million in its Offering.
F-25
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
12. SUBSEQUENT EVENTS (CONTINUED)
Distributions Declared
On October 18, 2006, the Company’s board of directors declared a daily dividend for the period from November 1, 2006 through November 30, 2006, which dividend was paid in December 2006. On November 8, 2006, the Company’s board of directors declared a daily dividend for the period from December 1, 2006 through December 31, 2006, which dividend will be paid in January 2007, and a daily dividend for the period from January 1, 2007 through January 31, 2007, which dividend will be paid in February 2007. Investors may choose to receive cash distributions or purchase additional shares through the Company’s dividend reinvestment plan.
The dividends will be calculated based on stockholders of record each day during the period at a rate of $0.0019178 per share per day and will equal a daily amount that, if paid each day for a 365-day period, would equal a 7.0% annualized rate based on a purchase price of $10.00 per share. The Advisor has agreed to advance funds to the Company equal to the amount by which the cumulative amount of distributions declared by the Company from January 1, 2006 through the period ending January 31, 2007 exceeds the amount of the Company’s Funds From Operations (as defined by NAREIT) from January 1, 2006 through January 31, 2007, see Note 9 “Related Party Transactions – Due to Affiliates – Advances from Advisor.”
Acquisitions
Southpark Commerce Center II Buildings
On November 21, 2006, the Company, through an indirect wholly owned subsidiary, purchased four light industrial/flex buildings containing 372,125 rentable square feet (the “Southpark Commerce Center II Buildings”) from an unaffiliated seller. The Southpark Commerce Center II Buildings are located on an approximate 26-acre parcel of land at 4509 Freidrich Lane in Austin, Texas. The purchase price of the Southpark Commerce Center II Buildings was $28,400,000 plus closing costs.
In connection with the acquisition of the Southpark Commerce Center II Buildings, the Company obtained an $18,000,000 fixed rate mortgage loan from a financial institution. The loan matures on December 6, 2016 and bears interest at a fixed rate of 5.6725% per annum. This loan is secured by the Southpark Commerce Center II Buildings. Also in connection with the acquisition of the Southpark Commerce Center II Buildings, the Company obtained a $5,200,000 mezzanine loan from a financial institution secured by a 100% equity interest in the wholly owned subsidiary that holds title to the property. This loan matures on December 6, 2007 and bears interest at a variable rate. The interest rate for the first full eight months is 30-day LIBOR plus 150 basis points and thereafter is 30-day LIBOR plus 250 to 350 basis points depending upon the outstanding balance of the debt.
F-26
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
12. SUBSEQUENT EVENTS (CONTINUED)
Acquisitions (Continued)
825 University Avenue Building
On December 5, 2006, the Company, through an indirect wholly owned subsidiary, purchased a one and two story corporate research building containing 166,574 rentable square feet (the “825 University Building”) from an unaffiliated seller. The 825 University Building is located on an approximate 19-acre parcel of land at 825 University Avenue in Norwood, Massachusetts. The purchase price of the 825 University Building was $28,800,000 plus closing costs.
In connection with the acquisition of the 825 University Building, the Company obtained a $19,000,000 fixed rate mortgage loan from a financial institution. The loan matures on December 6, 2013 and bears interest at a fixed rate of 5.591% per annum. This loan is secured by the 825 University Building. Also in connection with the acquisition of the 825 University Building, the Company obtained a $5,600,000 mezzanine loan from a financial institution secured by a 100% equity interest in the wholly owned subsidiary that holds title to the property. This loan matures on December 6, 2007 and bears interest at a variable rate. The interest rate for the first full eight months is 30-day LIBOR plus 150 basis points and thereafter is 30-day LIBOR plus 250 to 350 basis points depending upon the outstanding balance of the debt.
Midland Industrial Portfolio
On December 22, 2006, the Company, through an indirect wholly owned subsidiary, purchased three bulk distribution buildings containing 785,790 rentable square feet (the “Midland Industrial Portfolio”) from an unaffiliated seller. The Midland Industrial Portfolio is located on three parcels of land at 90 King Mill Road (approximately 15 acres), 197 King Mill Road (approximately 16 acres) and 220 Midland Court (approximately 7 acres) in McDonough, Georgia. The purchase price of the Midland Industrial Portfolio was $37,100,000 plus closing costs.
In connection with the acquisition of the Midland Industrial Portfolio, the Company obtained a $24,050,000 fixed rate mortgage loan from a financial institution. The loan matures on January 6, 2011 and bears interest at a fixed rate of 5.755% per annum for the first two years and 5.855% thereafter. Monthly installments on the loan are interest-only and the entire principal amount is due on the maturity date, assuming no prior principal prepayment. This loan is secured by the Midland Industrial Portfolio. Also in connection with the acquisition of the Midland Industrial Portfolio, the Company obtained an $8,700,000 mezzanine loan from a financial institution secured by a 100% equity interest in the wholly owned subsidiary that holds title to the property. This loan matures on January 6, 2008 and bears interest at a variable rate. The interest rate for the first full four months is 30-day LIBOR plus 150 basis points, then for the next four months is 30-day LIBOR plus 150 to 175 basis points depending on the outstanding balance of the debt. Thereafter the interest rate is 30-day LIBOR plus 250 to 350 basis points depending upon the outstanding balance of the debt.
F-27
KBS REAL ESTATE INVESTMENT TRUST, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2006
(unaudited)
12. SUBSEQUENT EVENTS (CONTINUED)
Acquisitions (Continued)
Crescent Green Buildings
On December 19, 2006, the Advisor entered into a purchase and sale agreement with an unaffiliated seller to acquire three office buildings, which total 248,832 square feet and are located in Cary, North Carolina (the “Crescent Green Buildings”), for a purchase price of $48,140,000 plus closing costs. The Advisor assigned this purchase and sale agreement to an indirect, wholly owned subsidiary of the Operating Partnership on December 21, 2006. The Company will be obligated to purchase the Crescent Green Buildings only upon satisfaction of agreed-upon closing conditions. In some circumstances, if the Company fails to complete the acquisition, the Company may forfeit $1 million of earnest money. There can be no assurance that the Company will complete the acquisition.
Sandmar Mezzanine Loan
The Company expects to purchase an $8,000,000 mezzanine loan as its next investment (the “Sandmar Mezzanine Loan”). The purchase price of the Sandmar Mezzanine Loan will be approximately $8,000,000 plus closing costs. There can be no assurance that the Company will complete the acquisition.
F-28
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
KBS Real Estate Investment Trust, Inc.
We have audited the accompanying statement of revenues over certain operating expenses of Southpark Commerce Center II Buildings for the year ended December 31, 2005. This statement is the responsibility of Southpark Commerce Center II Buildings’ management. Our responsibility is to express an opinion on the statement based on our audit.
We conducted our audit in accordance with the auditing standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the statement of revenues over certain operating expenses is free of material misstatement. We were not engaged to perform an audit of Southpark Commerce Center II Buildings’ internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of Southpark Commerce Center II Buildings’ internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the statement of revenues over certain operating expenses, assessing the accounting principles used and significant estimates made by management, and evaluating the overall presentation of the statement of revenues over certain operating expenses. We believe that our audit provides a reasonable basis for our opinion.
The accompanying statement of revenues over certain operating expenses was prepared for the purpose of complying with the rules and regulations of the Securities and Exchange Commission, as described in Note 2, and is not intended to be a complete presentation of Southpark Commerce Center II Buildings’ revenues and expenses.
In our opinion, the statement of revenues over certain operating expenses referred to above presents fairly, in all material respects, the revenues and certain operating expenses, as described in Note 2, of Southpark Commerce Center II Building for the year ended December 31, 2005, in conformity with U.S. generally accepted accounting principles.
/s/ Ernst & Young LLP
Irvine, California
December 12, 2006
F-29
SOUTHPARK COMMERCE CENTER II BUILDINGS
STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005
| | | | | | |
| | | Nine Months Ended
September 30, 2006 | | Year Ended
December 31, 2005 |
| | | (unaudited) | | |
Revenues: | | | | | | |
Base rent | | $ | 1,894,658 | | $ | 2,493,989 |
Tenant reimbursements | | | 587,392 | | | 707,268 |
Other revenues | | | 124,677 | | | 166,236 |
| | | | | | |
Total revenues | | | 2,606,727 | | | 3,367,493 |
| | |
Certain operating expenses: | | | | | | |
Real estate taxes | | | 377,561 | | | 444,801 |
Repairs and maintenance | | | 137,333 | | | 154,715 |
Property management fees | | | 61,715 | | | 84,797 |
Utilities | | | 43,704 | | | 45,466 |
Other operating expenses | | | 31,749 | | | 49,827 |
| | | | | | |
Total certain operating expenses | | | 652,062 | | | 779,606 |
| | | | | | |
Revenues over certain operating expenses | | $ | 1,954,665 | | $ | 2,587,887 |
| | | | | | |
See accompanying notes.
F-30
SOUTHPARK COMMERCE CENTER II BUILDINGS
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005
1. DESCRIPTION OF REAL ESTATE PROPERTY ACQUIRED
On November 21, 2006, KBS Real Estate Investment Trust, Inc. (“KBS REIT”) acquired, through an indirect wholly owned subsidiary, four light industrial/flex buildings containing 372,125 rentable square feet (the “Southpark Commerce Center II Buildings”) from Transwestern SF Partners I, L.P, an unaffiliated entity. The Southpark Commerce Center II Buildings are located on an approximate 26-acre parcel of land in Austin, Texas. Total consideration for the acquisition was $28,400,000 plus closing costs. KBS REIT is a Maryland corporation formed to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. KBS REIT also intends to make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance instruments.
2. BASIS OF PRESENTATION
The accompanying statements of revenues over certain operating expenses have been prepared to comply with the rules and regulations of the Securities and Exchange Commission.
The Southpark Commerce Center II Buildings are not legal entities and the accompanying statements are not representative of the actual operations for the periods presented, as certain revenues and expenses that may not be comparable to the revenues and expenses KBS REIT expects to incur in the future operations of the Southpark Commerce Center II Buildings have been excluded. Excluded items consist of interest, depreciation and amortization, and general and administrative costs not directly comparable to the future operations of the Southpark Commerce Center II Buildings.
An audited statement of revenues over certain operating expenses is being presented for the most recent fiscal year available instead of the three most recent years based on the following factors: (i) the Southpark Commerce Center II Buildings were acquired from an unaffiliated party and (ii) based on due diligence of the Southpark Commerce Center II Buildings by KBS REIT, management is not aware of any material factors relating to the Southpark Commerce Center II Buildings that would cause this financial information not to be necessarily indicative of future operating results.
The statement of revenues over certain operating expenses for the nine months ended September 30, 2006 is unaudited; however, in the opinion of management, all adjustments (consisting solely of normal, recurring adjustments) necessary for the fair presentation of the financial statement for the interim period have been included. The results of the interim period are not necessarily indicative of the results to be obtained for a full fiscal year.
F-31
SOUTHPARK COMMERCE CENTER II BUILDINGS
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited) and
the Year Ended December 31, 2005 (continued)
3. SIGNIFICANT ACCOUNTING POLICIES
Rental Revenues
Minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, is recognized on a straight-line basis over the term of the related lease and amounts expected to be received in later years are recorded as deferred rents. The adjustment to deferred rents increased revenue by approximately $618,979 for the year ended December 31, 2005 and increased revenue by approximately $489,270 for the nine months ended September 30, 2006.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of revenues and expenses during the reporting period. Actual results could materially differ from those estimates.
4. DESCRIPTION OF LEASING ARRANGEMENTS (UNAUDITED)
As of November 30, 2006, the Southpark Commerce Center II Buildings were 98% leased by seven tenants, including Travis Association for the Blind (approximately 27%), Legerity, Inc. (approximately 19%), Wayport, Inc. (approximately 19%), and Esoterix, Inc. (approximately 11%). The aggregate annual base rent for the tenants of the Southpark Commerce Center II Buildings was approximately $1.9 million at November 30, 2006, and the weighted-average remaining lease term for the tenants of the Southpark Commerce Center II Buildings was approximately 3 years.
5. FUTURE MINIMUM RENTAL RECEIPTS
Future minimum rental receipts for the years ending December 31 are as follows (in thousands):
| | | |
2006 | | $ | 1,884 |
2007 | | | 2,068 |
2008 | | | 1,928 |
2009 | | | 1,369 |
2010 | | | 861 |
| | | |
| | $ | 8,110 |
| | | |
F-32
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
KBS Real Estate Investment Trust, Inc.
We have audited the accompanying statement of revenues over certain operating expenses of the 825 University Avenue Building for the year ended December 31, 2005. This statement is the responsibility of the 825 University Avenue Building’s management. Our responsibility is to express an opinion on the statement based on our audit.
We conducted our audit in accordance with the auditing standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the statement of revenues over certain operating expenses is free of material misstatement. We were not engaged to perform an audit of the 825 University Avenue Building’s internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the 825 University Avenue Building’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the statement of revenues over certain operating expenses, assessing the accounting principles used and significant estimates made by management, and evaluating the overall presentation of the statement of revenues over certain operating expenses. We believe that our audit provides a reasonable basis for our opinion.
The accompanying statement of revenues over certain operating expenses was prepared for the purpose of complying with the rules and regulations of the Securities and Exchange Commission, as described in Note 2, and is not intended to be a complete presentation of the 825 University Avenue Building’s revenues and expenses.
In our opinion, the statement of revenues over certain operating expenses referred to above presents fairly, in all material respects, the revenues and certain operating expenses, as described in Note 2, of the 825 University Avenue Building for the year ended December 31, 2005, in conformity with U.S. generally accepted accounting principles.
/s/ Ernst & Young LLP
Irvine, California
December 15, 2006
F-33
825 UNIVERSITY AVENUE BUILDING
STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005
| | | | | | |
| | | Nine Months Ended
September 30, 2006 | | Year Ended
December 31, 2005 |
| | | (unaudited) | | |
Revenues: | | | | | | |
Base rent | | $ | 1,267,077 | | $ | 1,051,085 |
Tenant reimbursements | | | 344,447 | | | 332,983 |
Other revenues | | | — | | | 1,264 |
| | | | | | |
Total revenues | | | 1,611,524 | | | 1,385,332 |
| | |
Certain operating expenses: | | | | | | |
Utilities | | | 281,200 | | | 229,177 |
Real estate taxes | | | 144,439 | | | 167,005 |
Repairs and maintenance | | | 112,710 | | | 87,323 |
Property management fees | | | 61,274 | | | 29,571 |
Other operating expenses | | | 27,539 | | | 33,909 |
| | | | | | |
Total certain operating expenses | | | 627,162 | | | 546,985 |
| | | | | | |
Revenues over certain operating expenses | | $ | 984,362 | | $ | 838,347 |
| | | | | | |
See accompanying notes.
F-34
825 UNIVERSITY AVENUE BUILDING
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005
1. DESCRIPTION OF REAL ESTATE PROPERTY ACQUIRED
On December 5, 2006, KBS Real Estate Investment Trust, Inc. (“KBS REIT”) acquired, through an indirect wholly owned subsidiary, a one and two story office building containing 166,574 rentable square feet (the “825 University Avenue Building”) from CFRI/Doherty University Avenue, LLC, an unaffiliated entity. The 825 University Avenue Building is located on an approximate 19-acre parcel of land in Norwood, Massachusetts. Total consideration for the acquisition was $28,800,000 plus closing costs. KBS REIT is a Maryland corporation formed to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. KBS REIT also intends to make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance instruments.
2. BASIS OF PRESENTATION
The accompanying statements of revenues over certain operating expenses have been prepared to comply with the rules and regulations of the Securities and Exchange Commission.
The 825 University Avenue Building is not a legal entity and the accompanying statements are not representative of the actual operations for the periods presented, as certain revenues and expenses that may not be comparable to the revenues and expenses KBS REIT expects to incur in the future operations of the 825 University Avenue Building have been excluded. Excluded items consist of interest, depreciation and amortization, and general and administrative costs not directly comparable to the future operations of the 825 University Avenue Building.
An audited statement of revenues over certain operating expenses is being presented for the most recent fiscal year available instead of the three most recent years based on the following factors: (i) the 825 University Avenue Building was acquired from an unaffiliated party and (ii) based on due diligence of the 825 University Avenue Building by KBS REIT, management is not aware of any material factors relating to the 825 University Avenue Building that would cause this financial information not to be necessarily indicative of future operating results.
The statement of revenues over certain operating expenses for the nine months ended September 30, 2006 is unaudited; however, in the opinion of management, all adjustments (consisting solely of normal, recurring adjustments) necessary for the fair presentation of the financial statement for the interim period have been included. The results of the interim period are not necessarily indicative of the results to be obtained for a full fiscal year.
F-35
825 UNIVERSITY AVENUE BUILDING
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005 (continued)
3. SIGNIFICANT ACCOUNTING POLICIES
Rental Revenues
Minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, is recognized on a straight-line basis over the term of the related lease and amounts expected to be received in later years are recorded as deferred rents. The adjustment to deferred rents increased revenue by approximately $53,554 for the year ended December 31, 2005 and increased revenue by approximately $70,807 for the nine months ended September 30, 2006.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of revenues and expenses during the reporting period. Actual results could materially differ from those estimates.
4. DESCRIPTION OF LEASING ARRANGEMENTS (UNAUDITED)
As of November 30, 2006, the 825 University Avenue Building was 100% leased under long-term lease agreements by the following two tenants: Instron Corporation (approximately 66%) and LTX Corporation (approximately 34%). The aggregate annual base rent for tenants of the 825 University Avenue Building was approximately $1.7 million at November 30, 2006. Under the terms of the Instron Corporation lease, Instron Corporation is required to reimburse its pro-rata share of all operating expenses. Under the terms of the LTX Corporation lease, LTX Corporation is required to reimburse its pro-rata share of all operating expenses.
5. FUTURE MINIMUM RENTAL RECEIPTS
Future minimum rental receipts due under lease commitments for the years ending December 31 are as follows (in thousands):
| | | |
2006 | | $ | 1,728 |
2007 | | | 2,125 |
2008 | | | 2,171 |
2009 | | | 2,217 |
2010 | | | 2,248 |
| | | |
| | $ | 10,489 |
| | | |
Instron Corporation contributed 100% of the rental income for the year ending December 31, 2005. Instron Corporation and LTX Corporation are expected to contribute approximately 66% and 34% of the future minimum rental income, respectively, for the five years ending December 31, 2010.
The Instron Corporation lease will expire on March 31, 2015. The LTX Corporation lease will expire on June 30, 2016.
F-36
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
KBS Real Estate Investment Trust, Inc.
We have audited the accompanying statement of revenues over certain operating expenses of the Midland Industrial Portfolio for the year ended December 31, 2005. This statement is the responsibility of the Midland Industrial Portfolio’s management. Our responsibility is to express an opinion on the statement based on our audit.
We conducted our audit in accordance with the auditing standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the statement of revenues over certain operating expenses is free of material misstatement. We were not engaged to perform an audit of the Midland Industrial Portfolio’s internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Midland Industrial Portfolio’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the statement of revenues over certain operating expenses, assessing the accounting principles used and significant estimates made by management, and evaluating the overall presentation of the statement of revenues over certain operating expenses. We believe that our audit provides a reasonable basis for our opinion.
The accompanying statement of revenues over certain operating expenses was prepared for the purpose of complying with the rules and regulations of the Securities and Exchange Commission, as described in Note 2, and is not intended to be a complete presentation of the Midland Industrial Portfolio’s revenues and expenses.
In our opinion, the statement of revenues over certain operating expenses referred to above presents fairly, in all material respects, the revenues and certain operating expenses, as described in Note 2, of the Midland Industrial Portfolio for the year ended December 31, 2005, in conformity with U.S. generally accepted accounting principles.
/s/ Ernst & Young LLP
Irvine, California
December 22, 2006
F-37
MIDLAND INDUSTRIAL PORTFOLIO
STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005
| | | | | | |
| | | Nine Months Ended
September 30, 2006 | | Year Ended
December 31, 2005 |
| | | (unaudited) | | |
Revenues: | | | | | | |
Base rent | | $ | 1,818,562 | | $ | 2,424,749 |
Tenant reimbursements | | | 262,489 | | | 334,686 |
| | | | | | |
Total revenues | | | 2,081,051 | | | 2,759,435 |
| | |
Certain operating expenses: | | | | | | |
Real estate taxes | | | 262,489 | | | 334,686 |
Property management fees | | | 27,424 | | | 13,041 |
Other operating expenses | | | 9,453 | | | 11,166 |
| | | | | | |
Total certain operating expenses | | | 299,366 | | | 358,893 |
| | | | | | |
Revenues over certain operating expenses | | $ | 1,781,685 | | $ | 2,400,542 |
| | | | | | |
See accompanying notes.
F-38
MIDLAND INDUSTRIAL PORTFOLIO
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005
1. DESCRIPTION OF REAL ESTATE PROPERTY ACQUIRED
On December 22, 2006, KBS Real Estate Investment Trust, Inc. (“KBS REIT”) acquired three bulk distribution buildings totaling 785,790 rentable square feet (the “Midland Industrial Portfolio”), from DP Partners, an unaffiliated entity. The Midland Industrial Portfolio is located on three parcels of land at 90 King Mill Road (approximately 15 acres), 197 King Mill Road (approximately 16 acres) and 220 Midland Court (approximately 7 acres) in McDonough, Georgia. Total consideration for the acquisition was $37,100,000 plus closing costs. KBS REIT is a Maryland corporation formed to acquire and manage a diverse portfolio of real estate assets composed primarily of office, industrial and retail properties located in large metropolitan areas in the United States. KBS REIT also intends to make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance instruments.
2. BASIS OF PRESENTATION
The accompanying statements of revenues over certain operating expenses have been prepared to comply with the rules and regulations of the Securities and Exchange Commission.
The Midland Industrial Portfolio is not a legal entity and the accompanying statements are not representative of the actual operations for the periods presented, as certain revenues and expenses that may not be comparable to the revenues and expenses KBS REIT expects to incur in the future operations of the Midland Industrial Portfolio have been excluded. Excluded items consist of interest, depreciation and amortization, and general and administrative costs not directly comparable to the future operations of the Midland Industrial Portfolio.
An audited statement of revenues over certain operating expenses is being presented for the most recent fiscal year available instead of the three most recent years based on the following factors: (i) the Midland Industrial Portfolio was acquired from an unaffiliated party and (ii) based on due diligence of the Midland Industrial Portfolio by KBS REIT, management is not aware of any material factors relating to the Midland Industrial Portfolio that would cause this financial information not to be necessarily indicative of future operating results.
The statement of revenues over certain operating expenses for the nine months ended September 30, 2006 is unaudited; however, in the opinion of management, all adjustments (consisting solely of normal, recurring adjustments) necessary for the fair presentation of the financial statement for the interim period have been included. The results of the interim period are not necessarily indicative of the results to be obtained for a full fiscal year.
F-39
MIDLAND INDUSTRIAL PORTFOLIO
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005 (continued)
3. SIGNIFICANT ACCOUNTING POLICIES
Rental Revenues
Minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, is recognized on a straight-line basis over the term of the related lease and amounts expected to be received in later years are recorded as deferred rents. The adjustment to deferred rents decreased revenue by approximately $8,359 for the year ended December 31, 2005 and decreased revenue by approximately $6,269 for the nine months ended September 30, 2006.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of revenues and expenses during the reporting period. Actual results could materially differ from those estimates.
4. DESCRIPTION OF LEASING ARRANGEMENTS (UNAUDITED)
As of November 30, 2006, the Midland Industrial Portfolio was 100% leased to Ozburn-Hessey Logistics pursuant to three separate lease agreements. The aggregate annual base rent for the tenant of the Midland Industrial Portfolio was approximately $2.4 million at November 30, 2006, and the weighted-average remaining lease term for the tenant of the Midland Industrial Portfolio was approximately 8 years.
5. FUTURE MINIMUM RENTAL RECEIPTS
Future minimum rental receipts for the years ending December 31 are as follows (in thousands):
| | | |
2006 | | $ | 2,433 |
2007 | | | 2,433 |
2008 | | | 2,433 |
2009 | | | 2,433 |
2010 | | | 2,433 |
| | | |
| | $ | 12,165 |
| | | |
6. RELATED PARTY TRANSACTIONS
During the year ended December 31, 2005 through June 7, 2006, the tenant of the Midland Industrial Portfolio held an ownership interest in the property. During this period, property management fees were reduced to 0.5% of total revenues. After the tenant sold its ownership interest in the Midland Industrial Portfolio, property management fees were increased to 3.25% of total revenues.
F-40
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
KBS Real Estate Investment Trust, Inc.
We have audited the accompanying statement of revenues over certain operating expenses of the Crescent Green Buildings for the year ended December 31, 2005. This statement is the responsibility of the Crescent Green Buildings’ management. Our responsibility is to express an opinion on the statement based on our audit.
We conducted our audit in accordance with the auditing standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the statement of revenues over certain operating expenses is free of material misstatement. We were not engaged to perform an audit of the Crescent Green Buildings’ internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Crescent Green Buildings’ internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the statement of revenues over certain operating expenses, assessing the accounting principles used and significant estimates made by management, and evaluating the overall presentation of the statement of revenues over certain operating expenses. We believe that our audit provides a reasonable basis for our opinion.
The accompanying statement of revenues over certain operating expenses was prepared for the purpose of complying with the rules and regulations of the Securities and Exchange Commission, as described in Note 2, and is not intended to be a complete presentation of the Crescent Green Buildings’ revenues and expenses.
In our opinion, the statement of revenues over certain operating expenses referred to above presents fairly, in all material respects, the revenues and certain operating expenses, as described in Note 2, of the Crescent Green Buildings for the year ended December 31, 2005, in conformity with U.S. generally accepted accounting principles.
/s/ Ernst & Young LLP
Irvine, California
December 22, 2006
F-41
CRESCENT GREEN BUILDINGS
STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005
| | | | | | |
| | | Nine Months Ended
September 30, 2006 | | Year Ended
December 31, 2005 |
| | | (unaudited) | | |
Revenues: | | | | | | |
Base rent | | $ | 2,790,297 | | $ | 3,758,457 |
Parking income | | | 117,000 | | | 156,000 |
Tenant reimbursements | | | 461,956 | | | 367,566 |
Other revenues | | | 19,611 | | | 11,818 |
| | | | | | |
Total revenues | | | 3,388,864 | | | 4,293,841 |
| | |
Certain operating expenses: | | | | | | |
Utilities | | | 364,395 | | | 421,125 |
Janitorial | | | 233,633 | | | 281,252 |
Real estate taxes | | | 213,375 | | | 276,288 |
Repairs and maintenance | | | 198,406 | | | 255,371 |
Property management fees | | | 125,997 | | | 155,968 |
Other operating expenses | | | 118,176 | | | 130,749 |
| | | | | | |
Total certain operating expenses | | | 1,253,982 | | | 1,520,753 |
| | | | | | |
Revenues over certain operating expenses | | $ | 2,134,882 | | $ | 2,773,088 |
| | | | | | |
See accompanying notes.
F-42
CRESCENT GREEN BUILDINGS
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005
1. DESCRIPTION OF REAL ESTATE PROPERTY
On December 19, 2006, KBS Capital Advisors LLC entered into a purchase and sale agreement with an unaffiliated seller to acquire three office buildings, which total 248,832 square feet and are located in Cary, North Carolina (the “Crescent Green Buildings”), for a purchase price of $48,140,000 plus closing costs. KBS Capital Advisors LLC assigned this purchase and sale agreement to an indirect, wholly owned subsidiary of KBS Real Estate Investment Trust, Inc. (“KBS REIT”) on December 21, 2006. KBS REIT will be obligated to purchase the Crescent Green Buildings only upon satisfaction of agreed-upon closing conditions. There can be no assurance that KBS REIT will acquire the Crescent Green Buildings.
KBS REIT is a Maryland corporation formed to acquire and manage a diverse portfolio of real estate assets composed of primarily office, industrial and retail properties located in large metropolitan areas in the United States. KBS REIT also intends to make investments in mortgage loans and other real estate-related assets, including mezzanine debt, mortgage-backed securities and other similar structured finance instruments.
2. BASIS OF PRESENTATION
The accompanying statements of revenues over certain operating expenses have been prepared to comply with the rules and regulations of the Securities and Exchange Commission.
The Crescent Green Buildings are not legal entities and the accompanying statements are not representative of the actual operations for the periods presented, as certain revenues and expenses that may not be comparable to the revenues and expenses KBS REIT expects to incur in the future operations of the Crescent Green Buildings have been excluded. Excluded items consist of interest, depreciation and amortization, and general and administrative costs not directly comparable to the future operations of the Crescent Green Buildings.
An audited statement of revenues over certain operating expenses is being presented for the most recent fiscal year available instead of the three most recent years based on the following factors: (i) the Crescent Green Buildings were acquired from unaffiliated parties and (ii) based on due diligence of the Crescent Green Buildings by KBS REIT, management is not aware of any material factors relating to the Crescent Green Buildings that would cause this financial information not to be necessarily indicative of future operating results.
The statement of revenues over certain operating expenses for the nine months ended September 30, 2006 is unaudited; however, in the opinion of management, all adjustments (consisting solely of normal, recurring adjustments) necessary for the fair presentation of the financial statement for the interim period have been included. The results of the interim period are not necessarily indicative of the results to be obtained for a full fiscal year.
F-43
CRESCENT GREEN BUILDINGS
NOTES TO STATEMENTS OF REVENUES OVER CERTAIN OPERATING EXPENSES
For the Nine Months Ended September 30, 2006 (unaudited)
and the Year Ended December 31, 2005 (continued)
3. SIGNIFICANT ACCOUNTING POLICIES
Rental Revenues
Minimum rent, including rental abatements and contractual fixed increases attributable to operating leases, is recognized on a straight-line basis over the term of the related lease and amounts expected to be received in later years are recorded as deferred rents. The adjustment to deferred rents decreased revenue by approximately $121,181 for the year ended December 31, 2005 and decreased revenue by approximately $16,431 for the nine months ended September 30, 2006.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of revenues and expenses during the reporting period. Actual results could materially differ from those estimates.
4. DESCRIPTION OF LEASING ARRANGEMENTS (UNAUDITED)
As of November 30, 2006, the Crescent Green Buildings were 99% leased by the following tenants: Affiliated Computer Services, Inc. (approximately 62%), Access Point, Inc. (approximately 8%), Ellis and Winters, LLP (approximately 7%), INDA, Association of the Nonwoven Fabrics Industry (approximately 5%), and various other office tenants (approximately 17%). The aggregate annual base rent for the tenants of the Crescent Green Buildings was approximately $3.8 million at November 30, 2006, and the weighted-average remaining lease term for the current tenants of the Crescent Green Buildings was approximately 5 years.
5. FUTURE MINIMUM RENTAL RECEIPTS
Future minimum rental receipts for the years ending December 31 are as follows (in thousands):
| | | |
2006 | | $ | 3,760 |
2007 | | | 4,060 |
2008 | | | 3,487 |
2009 | | | 3,386 |
2010 | | | 3,257 |
| | | |
| | $ | 17,950 |
| | | |
F-44
KBS REAL ESTATE INVESTMENT TRUST, INC.
SUMMARY OF UNAUDITED PRO FORMA FINANCIAL STATEMENTS
This pro forma information should be read in conjunction with the consolidated financial statements and notes of KBS Real Estate Investment Trust, Inc. (“KBS REIT”) for the year ended December 31, 2005 included in supplement no. 6 to the prospectus and the consolidated financial statements and notes of KBS REIT for the three and nine months ended September 30, 2006 included in this supplement. In addition, this pro forma information should be read in conjunction with the financial statements and notes of the Sabal Pavilion Building and the Plaza in Clayton Building in supplement no. 6 and with the financial statements and notes of the Southpark Commerce Center II Buildings, the 825 University Avenue Buildings, the Midland Industrial Portfolio and the Crescent Green Buildings included in this supplement.
The following unaudited pro forma balance sheet as of September 30, 2006 has been prepared to give effect to the acquisitions of the Southpark Commerce Center II Buildings, the 825 University Avenue Buildings and the Midland Industrial Portfolio and the probable acquisitions of the Crescent Green Buildings and the Sandmar Mezzanine Loan as if these assets were acquired on September 30, 2006. Other adjustments provided in the following unaudited pro forma balance sheet are composed of certain pro forma financing-related activities, including borrowings subsequent to the pro forma balance sheet date.
The following unaudited pro forma statements of operations for the nine months ended September 30, 2006 and for the year ended December 31, 2005 have been prepared to give effect to the acquisition of the Sabal Pavilion Building, the Tribeca Mezzanine Debt, the Plaza in Clayton Building, the Southpark Commerce Center II Buildings, the 825 University Avenue Buildings and the Midland Industrial Portfolio and the probable acquisitions of the Crescent Green Buildings and the Sandmar Mezzanine Loan as if the assets were acquired on January 1, 2005.
These unaudited pro forma financial statements are prepared for informational purposes only and are not necessarily indicative of future results or of actual results that would have been achieved had the acquisition of the Sabal Pavilion Building, the Tribeca Mezzanine Debt, the Plaza in Clayton Building, the Southpark Commerce Center II Buildings, the 825 University Avenue Building, the Midland Industrial Portfolio, the Crescent Green Buildings and the Sandmar Mezzanine Loan been consummated as of January 1, 2005. In addition, the pro forma balance sheet includes pro forma allocations of the purchase prices of these assets based upon preliminary estimates of the fair value of the assets and liabilities acquired in connection with the acquisitions. These allocations may be adjusted in the future upon finalization of these preliminary estimates.
There can be no assurance that KBS REIT will complete the acquisitions of the Crescent Green Buildings and the Sandmar Mezzanine Loan.
F-45
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA BALANCE SHEET
As of September 30, 2006
(unaudited)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | KBS Real Estate
Investment Trust
Historical (a) | | | Pro Forma Adjustments | | | Pro Forma Total
September 30, 2006 | |
| | | Southpark
Commerce
Center II (b) | | | 825 University
Avenue (c) | | | Midland
Industrial
Portfolio (d) | | | Crescent
Green
Buildings (e) | | | Sandmar
Mezzanine
Loan (f) | | |
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Real estate: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Land | | $ | 6,038,672 | | | $ | 3,099,999 | (g) | | $ | 4,165,000 | (g) | | $ | 5,040,000 | (g) | | $ | 6,988,000 | (g) | | $ | — | | | $ | 25,331,671 | |
Buildings and improvements, net | | | 103,280,562 | | | | 24,853,425 | (g) | | | 23,095,413 | (g) | | | 28,013,342 | (g) | | | 35,698,255 | (g) | | | — | | | | 214,940,997 | |
Tenant origination and absorption costs, net | | | 9,943,387 | | | | 2,050,686 | (g) | | | 3,991,153 | (g) | | | 2,557,055 | (g) | | | 4,302,210 | (g) | | | — | | | | 22,844,491 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total real estate, net | | | 119,262,621 | | | | 30,004,110 | | | | 31,251,566 | | | | 35,610,397 | | | | 46,988,465 | | | | — | | | | 263,117,159 | |
Real estate loans receivable | | | 13,322,027 | | | | — | | | | — | | | | — | | | | — | | | | 8,000,000 | | | | 21,322,027 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total real estate investments, net | | | 132,584,648 | | | | 30,004,110 | | | | 31,251,566 | | | | 35,610,397 | | | | 46,988,465 | | | | 8,000,000 | | | | 284,439,186 | |
Cash and cash equivalents | | | 4,384,775 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 4,384,775 | |
Rents and other receivables | | | 456,269 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 456,269 | |
Above-market leases, net | | | 1,065,376 | | | | 47,306 | (g) | | | 173,269 | (g) | | | 1,917,975 | (g) | | | 2,201,390 | (g) | | | — | | | | 5,405,316 | |
Prepaid and other assets | | | 925,271 | | | | 95,500 | (h) | | | 159,804 | (h) | | | 220,407 | (h) | | | 212,000 | (h) | | | 160,750 | (i) | | | 1,773,732 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total assets | | $ | 139,416,339 | | | $ | 30,146,916 | | | $ | 31,584,639 | | | $ | 37,748,779 | | | $ | 49,401,855 | | | $ | 8,160,750 | | | $ | 296,459,278 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Liabilities and Stockholders’ Equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | |
Notes payable | | $ | 100,798,000 | | | $ | 23,200,000 | | | $ | 24,600,000 | | | $ | 32,750,000 | | | $ | 42,400,000 | | | $ | — | | | $ | 223,748,000 | |
Notes payable to affiliate | | | 7,947,137 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 7,947,137 | |
Repurchase agreement | | | 7,278,593 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 7,278,593 | |
Accounts payable and accrued liabilities | | | 2,151,630 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 2,151,630 | |
Due to affiliates | | | 986,613 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 986,613 | |
Below-market leases, net | | | 1,656,974 | | | | 1,289,352 | (g) | | | 2,244,744 | (g) | | | — | | | | 207,405 | (g) | | | — | | | | 5,398,475 | |
Other liabilities | | | 92,506 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 92,506 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total liabilities | | | 120,911,453 | | | | 24,489,352 | | | | 26,844,744 | | | | 32,750,000 | | | | 42,607,405 | | | | — | | | | 247,602,954 | |
| | | | | | | |
Commitments and contingencies | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Redeemable stock | | | 99,157 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 99,157 | |
| | | | | | | |
Stockholders’ equity: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Preferred stock, $.01 par value; 10,000,000 shares authorized, no shares issued and outstanding | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | |
Common stock, $.01 par value; 1,000,000,000 shares authorized, 2,305,637 shares issued and outstanding | | | 23,057 | | | | 6,656 | | | | 5,576 | | | | 5,881 | | | | 7,993 | | | | 9,601 | | | | 58,764 | |
Additional paid-in capital | | | 19,563,666 | | | | 5,650,908 | | | | 4,734,319 | | | | 4,992,898 | | | | 6,786,457 | | | | 8,151,149 | | | | 49,879,397 | |
Cumulative distributions and net loss | | | (1,180,994 | ) | | | — | | | | — | | | | — | | | | — | | | | — | | | | (1,180,994 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total stockholders’ equity | | | 18,405,729 | | | | 5,657,564 | | | | 4,739,895 | | | | 4,998,779 | | | | 6,794,450 | | | | 8,160,750 | | | | 48,757,167 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total liabilities and stockholders’ equity | | $ | 139,416,339 | | | $ | 30,146,916 | | | $ | 31,584,639 | | | $ | 37,748,779 | | | $ | 49,401,855 | | | $ | 8,160,750 | | | $ | 296,459,278 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
F-46
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA BALANCE SHEET
As of September 30, 2006 (continued)
(unaudited)
| (a) | Historical financial information derived from KBS REIT’s quarterly report on Form 10-Q as of September 30, 2006. |
| (b) | Represents the purchase price of the assets acquired and liabilities incurred or assumed by KBS REIT in connection with the acquisition of the Southpark Commerce Center II Buildings. The purchase price of approximately $28.8 million (including closing costs) was funded with an $18.0 million fixed rate loan, a $5.2 million mezzanine loan, and proceeds from the issuance of approximately 665,596 shares of stock from KBS REIT’s ongoing public offering. |
| (c) | Represents the purchase price of the assets acquired and liabilities incurred or assumed by KBS REIT in connection with the acquisition of the 825 University Avenue Building. The purchase price of approximately $29.2 million (including closing costs) was funded with a $19.0 million fixed rate loan, a $5.6 million mezzanine loan, and proceeds from the issuance of approximately 557,635 shares of stock from KBS REIT’s ongoing public offering. |
| (d) | Represents the purchase price of the assets acquired and liabilities incurred or assumed by KBS REIT in connection with the acquisition of the Midland Industrial Portfolio. The purchase price of approximately $37.5 million (including closing costs) was funded with a $24.1 million fixed rate loan, an $8.7 million mezzanine loan, and proceeds from the issuance of approximately 588,092 shares of stock from KBS REIT’s ongoing public offering. |
| (e) | Represents the estimated purchase price of the assets to be acquired and liabilities to be incurred or assumed by KBS REIT in connection with the acquisition of the Crescent Green Buildings. The purchase price of approximately $49.0 million (including estimated closing costs) is anticipated to be funded with a $32.4 million fixed rate loan, a $10.0 million mezzanine loan, and proceeds from the issuance of approximately 799,347 shares of stock from KBS REIT’s ongoing public offering. Though there is no assurance that this acquisition will close, KBS REIT believes the acquisition is reasonably probable at January 4, 2007. |
| (f) | Represents the estimated purchase price of assets to be acquired by KBS REIT in connection with the acquisition of the Sandmar Mezzanine Loan. The estimated purchase price of $8.0 million, plus closing costs, is anticipated to be funded from proceeds from the issuance of approximately 960,088 shares of stock from KBS REIT’s ongoing public offering. Though there is no assurance that this acquisition will close, KBS REIT believes the acquisition is reasonably probable at January 4, 2007. |
| (g) | KBS REIT intends to account for the acquisition in accordance with Statement of Financial Standards No. 141, “Business Combinations,” and No. 142, “Goodwill and Other Intangibles.” The purchase price allocation is preliminary and subject to change. |
| (h) | Represents loan fees incurred on the financing of acquired properties, as well as estimated loan fees on the financing of the Crescent Green Buildings. |
| (i) | Represents estimated total acquisition costs for Sandmar Mezzanine Loan. |
F-47
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
For the Nine Months Ended September 30, 2006
(unaudited)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | KBS Real
Estate
Investment
Trust, Inc.
Historical (a) | | | Pro Forma Adjustments | | | Pro Forma
Total | |
| | | | Q3 2006 Acquisitions | | | Q4 2006 Acquisitions | | | Pending Acquisitions | | |
| | | | Sabal
Pavilion | | | Tribeca
Summit
Debt | | | The Plaza
in Clayton | | | Southpark
Commerce
Center II | | | 825
University
Avenue | | | Midland
Industrial
Portfolio | | | Crescent
Green
Buildings | | | Sandmar
Mezzanine
Loan | | |
Revenues: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Rental income | | $ | 756,530 | | | $ | 1,393,866 | (b) | | $ | — | | | $ | 7,512,737 | (b) | | $ | 1,941,682 | (b) | | $ | 1,457,584 | (b) | | $ | 1,621,452 | (b) | | $ | 2,732,789 | (b) | | $ | — | | | $ | 17,416,640 | |
Tenant reimbursements | | | 118,825 | | | | 165,630 | (c) | | | — | | | | 402,938 | (c) | | | 587,392 | (c) | | | 344,447 | (c) | | | 262,489 | (c) | | | 461,956 | (c) | | | — | | | | 2,343,677 | |
Interest income and other revenues | | | 382,955 | | | | 151 | | | | 904,529 | (d) | | | 144,478 | | | | 124,677 | | | | — | | | | — | | | | 19,611 | | | | 707,944 | (k) | | | 2,284,345 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total revenues | | | 1,258,310 | | | | 1,559,647 | | | | 904,529 | | | | 8,060,153 | | | | 2,653,751 | | | | 1,802,031 | | | | 1,883,941 | | | | 3,214,356 | | | | 707,944 | | | | 22,044,662 | |
| | | | | | | | | | |
Expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Operating, maintenance and management | | | 199,776 | | | | 441,566 | (e) | | | — | | | | 1,924,605 | (e) | | | 274,501 | (e) | | | 482,723 | (e) | | | 36,877 | (e) | | | 1,040,607 | (e) | | | — | | | | 4,400,655 | |
Real estate and other property-related taxes | | | 77,713 | | | | 120,263 | (f) | | | — | | | | 1,160,499 | (f) | | | 377,561 | (f) | | | 144,439 | (f) | | | 262,489 | (f) | | | 213,375 | (f) | | | — | | | | 2,356,339 | |
General and administrative expenses | | | 871,018 | | | | 95,784 | (g) | | | 52,999 | (g) | | | 522,310 | (g) | | | 161,786 | (g) | | | 164,138 | (g) | | | 211,097 | (g) | | | 275,526 | (g) | | | 45,904 | (g) | | | 2,400,562 | |
Depreciation and amortization | | | 395,237 | | | | 630,220 | (h) | | | — | | | | 3,628,843 | (h) | | | 1,401,018 | (h) | | | 985,524 | (h) | | | 808,132 | (h) | | | 2,372,578 | (h) | | | — | | | | 10,221,552 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total operating expenses | | | 1,543,744 | | | | 1,287,833 | | | | 52,999 | | | | 7,236,257 | | | | 2,214,866 | | | | 1,776,824 | | | | 1,318,595 | | | | 3,902,086 | | | | 45,904 | | | | 19,379,108 | |
| | | | | | | | | | |
Operating income (loss) | | | (285,434 | ) | | | 271,814 | | | | 851,530 | | | | 823,896 | | | | 438,885 | | | | 25,207 | | | | 565,346 | | | | (687,730 | ) | | | 662,040 | | | | 2,665,554 | |
| | | | | | | | | | |
Non-operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest expense | | | 706,898 | | | | 840,210 | (i) | | | 434,494 | (i) | | | 3,830,469 | (i) | | | 1,047,678 | (i) | | | 1,117,526 | (i) | | | 1,545,718 | (i) | | | 1,801,638 | (i) | | | — | | | | 11,324,631 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total non-operating expense | | | 706,898 | | | | 840,210 | | | | 434,494 | | | | 3,830,469 | | | | 1,047,678 | | | | 1,117,526 | | | | 1,545,718 | | | | 1,801,638 | | | | — | | | | 11,324,631 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net income (loss) | | $ | (992,332 | ) | | $ | (568,396 | ) | | $ | 417,036 | | | $ | (3,006,573 | ) | | $ | (608,793 | ) | | $ | (1,092,319 | ) | | $ | (980,372 | ) | | $ | (2,489,368 | ) | | $ | 662,040 | | | $ | (8,659,077 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Loss per share, basic and diluted | | $ | (2.48 | ) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | (1.68 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted-average number of common shares, issuable and outstanding | | | 400,311 | | | | — | | | | 373,858 | (j) | | | 1,186,745 | (j) | | | 665,596 | (j) | | | 557,635 | (j) | | | 588,092 | (j) | | | 799,347 | (j) | | | 960,088 | (j) | | | 5,151,361 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
F-48
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
For the Nine Months Ended September 30, 2006 (continued)
(unaudited)
| (a) | Historical financial information derived from KBS REIT’s quarterly report on Form 10-Q for the nine months ended September 30, 2006. |
| (b) | Represents base rental income, parking income, amortization of above-market lease assets and below-market lease liabilities for the nine months ended as of September 30, 2006. Base rent is recognized on a straight-line basis beginning on the pro forma acquisition date of January 1, 2005. Base rent also includes the amortization of above-market and below-market leases, which is recognized over the life of the leases. |
| (c) | Represents operating cost reimbursements from tenants. |
| (d) | Represents interest income from loan receivable for the Tribeca Mezzanine Debt, at a fixed rate of 13.25% per annum, amortization of prepaid interest income over the term of the loan receivable, and an offset for the amortization of closing costs related to the acquisition over the term of the loan receivable. |
| (e) | Represents property operating expenses. |
| (f) | Represents real estate taxes incurred by respective properties. |
| (g) | Represents asset management fee that would be due to affiliates had the assets been acquired on January 1, 2005, calculated as 0.75% of the cost of investments acquired, including acquisition fee, acquisition expenses, and any debt attributable to such investments. |
| (h) | Depreciation expense on portion of purchase price allocated to building is recognized using the straight-line method and a 39-year life. Depreciation expense on the portion of purchase price allocated to tenant improvement is recognized using the straight-line method over life of lease. Amortization expense on lease intangible costs is recognized using the straight-line method over life of lease. |
| (i) | Represents interest expense incurred on the following short-term and long-term loans secured to purchase respective acquisitions: |
| | | |
Fixed rate loan secured by the Sabal Pavilion Building, which bears interest at a rate of 6.38% per annum. | | $ | 14,700,000 |
| |
Mezzanine loan secured by 100% equity interest in the subsidiary that holds title to the Sabal Pavilion Building, which bears interest at a variable rate equal to 30-day LIBOR plus 225 basis points (average rate of 7.31% for the period). The loan was paid in full on October 5, 2006. | | $ | 4,898,000 |
| |
Repurchase agreement secured by principal and interest payments on the Tribeca Mezzanine Debt, which bears interest at a variable rate equal to 30-day LIBOR plus 200 basis points (average rate of 7.06% for the period). The loan was paid in full on December 27, 2006. | | $ | 7,122,231 |
| |
Fixed rate loan secured by the Plaza in Clayton, which bears interest at a rate of 5.899% per annum. | | $ | 62,200,000 |
| |
Mezzanine loan secured by a 100% equity interest in the subsidiary that holds title to the Plaza in Clayton Building, which bears interest at a variable rate equal to 30-day LIBOR plus 161 basis points (average rate of 6.67% for the period). | | $ | 22,300,000 |
F-49
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
For the Nine Months Ended September 30, 2006 (continued)
(unaudited)
| | | |
Loan from affiliate, which bears simple interest at a fixed rate of 6% and is unsecured, $5,572,137 of which was used in connection with the acquisition of Sabal Pavilion and $2,875,000 of which was used in connection with the acquisition of the Tribeca Summit Debt. The loan was paid in full on October 27, 2006. | | $ | 8,447,137 |
| |
Fixed rate loan secured by the Southpark Commerce Center II Buildings, which bears interest at a rate of 5.6725% per annum. | | $ | 18,000,000 |
| |
Mezzanine loan secured by 100% equity interest in the subsidiary that holds title to the Southpark Commerce Center II Buildings, which bears interest at a variable rate equal to 30-day LIBOR plus 161 basis points (average rate of 6.67% for the period). | | $ | 5,200,000 |
| |
Fixed rate loan secured by the 825 University Avenue Building, which bears interest at a rate of 5.591% per annum. | | $ | 19,000,000 |
| |
Mezzanine loan secured by 100% equity interest in the subsidiary that holds title to the 825 University Avenue Building, which bears interest at a variable rate equal to 30-day LIBOR plus 161 basis points (average rate of 6.67% for the period). | | $ | 5,600,000 |
| |
Fixed rate loan secured by the Midland Industrial Portfolio, which bears interest at a rate of 5.755% per annum for the first two years and 5.855% thereafter. | | $ | 24,050,000 |
| |
Mezzanine loan secured by 100% equity interest in the subsidiary that holds title to the Midland Industrial Portfolio, which bears interest at a variable rate equal to 30-day LIBOR plus 161 basis points (average rate of 6.67% for the period). | | $ | 8,700,000 |
| |
Fixed rate loan to be secured by the Crescent Green Buildings, which will bear interest at an estimated interest rate of 5.100% per annum. However, the terms of the loan are currently being negotiated. | | $ | 32,400,000 |
| |
Mezzanine loan to be secured by 100% equity interest in the subsidiary that holds title to the Crescent Green Buildings, which will bear interest at an estimated variable rate equal to 30-day LIBOR plus 161 basis points (average rate of 6.67% for the period). However, the terms of the loan are currently being negotiated. | | $ | 10,000,000 |
| | Interest expense includes amortization of loan fees related to short-term and long-term loans, amortized over the life of the related loan. |
F-50
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
For the Nine Months Ended September 30, 2006 (continued)
(unaudited)
| (j) | Represents the weighted-average number of shares from KBS REIT’s ongoing public offering, the net proceeds of which were or will be used to fund the purchase of the acquisitions. The calculation assumes that investments were acquired on January 1, 2005. |
| (k) | Represents interest income from loan receivable for the Sandmar Mezzanine Loan, at a fixed rate of 12.00% per annum, and an offset for the amortization of closing costs related to the acquisition over the term of the loan receivable. |
F-51
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
For the Year Ended December 31, 2005
(unaudited)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | KBS Real
Estate
Investment
Trust, Inc.
Historical (a) | | Pro Forma Adjustments | | | Pro Forma Total | |
| | | | Q3 2006 Acquisitions | | | Q4 2006 Acquisitions | | | Pending Acquisitions | | |
| | | | Sabal
Pavilion | | | Tribeca
Summit
Debt | | | The Plaza
in Clayton | | | Southpark
Commerce
Center II | | | 825
University
Avenue | | | Midland
Industrial
Portfolio | | | Crescent
Green
Buildings | | | Sandmar
Mezzanine
Loan | | |
Revenues: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Rental income | | $ | — | | $ | 2,699,665 | (b) | | $ | — | | | $ | 10,058,383 | (b) | | $ | 2,556,688 | (b) | | $ | 1,305,095 | (b) | | $ | 2,161,936 | (b) | | $ | 3,772,486 | (b) | | $ | — | | | $ | 22,554,253 | |
Tenant reimbursements | | | — | | | 297,549 | (c) | | | — | | | | 550,260 | (c) | | | 707,268 | (c) | | | 332,983 | (c) | | | 334,686 | (c) | | | 367,566 | (c) | | | — | | | | 2,590,312 | |
Interest income and other revenues | | | — | | | 270 | | | | 1,657,560 | (d) | | | 133,667 | | | | 166,236 | | | | 1,264 | | | | — | | | | 11,818 | | | | 943,925 | (k) | | | 2,914,740 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total revenues | | | — | | | 2,997,484 | | | | 1,657,560 | | | | 10,742,310 | | | | 3,430,192 | | | | 1,639,342 | | | | 2,496,622 | | | | 4,151,870 | | | | 943,925 | | | | 28,059,305 | |
Expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Operating, maintenance and management | | | — | | | 757,167 | (e) | | | — | | | | 2,313,982 | (e) | | | 334,805 | (e) | | | 379,980 | (e) | | | 24,207 | (e) | | | 1,244,465 | (e) | | | — | | | | 5,054,606 | |
Real estate and other property-related taxes | | | — | | | 231,516 | (f) | | | — | | | | 1,533,445 | (f) | | | 444,801 | (f) | | | 167,005 | (f) | | | 334,686 | (f) | | | 276,288 | (f) | | | — | | | | 2,987,741 | |
General and administrative expenses | | | — | | | 185,582 | (g) | | | 97,121 | (g) | | | 706,885 | (g) | | | 215,715 | (g) | | | 218,851 | (g) | | | 281,463 | (g) | | | 367,368 | (g) | | | 61,206 | (g) | | | 2,134,191 | |
Depreciation and amortization | | | — | | | 1,221,052 | (h) | | | — | | | | 4,857,123 | (h) | | | 1,868,024 | (h) | | | 1,314,032 | (h) | | | 1,077,509 | (h) | | | 3,126,394 | (h) | | | — | | | | 13,464,134 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total operating expenses | | | — | | | 2,395,317 | | | | 97,121 | | | | 9,411,435 | | | | 2,863,345 | | | | 2,079,868 | | | | 1,717,865 | | | | 5,014,515 | | | | 61,206 | | | | 23,640,672 | |
Operating income (loss) | | | — | | | 602,167 | | | | 1,560,439 | | | | 1,330,875 | | | | 566,847 | | | | (440,526 | ) | | | 778,757 | | | | (862,645 | ) | | | 882,719 | | | | 4,418,633 | |
Non-operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest expense | | | — | | | 1,571,449 | (i) | | | 692,128 | (i) | | | 4,879,793 | (i) | | | 1,325,052 | (i) | | | 1,412,656 | (i) | | | 1,940,743 | (i) | | | 2,264,007 | (i) | | | — | | | | 14,085,828 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total non-operating expense | | | — | | | 1,571,449 | | | | 692,128 | | | | 4,879,793 | | | | 1,325,052 | | | | 1,412,656 | | | | 1,940,743 | | | | 2,264,007 | | | | — | | | | 14,085,828 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net income (loss) | | $ | — | | $ | (969,282 | ) | | $ | 868,311 | | | $ | (3,548,918 | ) | | $ | (758,205 | ) | | $ | (1,853,182 | ) | | $ | (1,161,986 | ) | | $ | (3,126,652 | ) | | $ | 882,719 | | | $ | (9,667,195 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Loss per share, basic and diluted | | | — | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | (1.88 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted-average number of common shares, issued and outstanding | | | 20,000 | | | — | | | | 373,858 | (j) | | | 1,186,745 | (j) | | | 665,596 | (j) | | | 557,635 | (j) | | | 588,092 | (j) | | | 799,347 | (j) | | | 960,088 | (j) | | | 5,151,361 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
F-52
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
For the Year Ended December 31, 2005 (continued)
(unaudited)
| (a) | Historical financial information derived from KBS REIT’s special report on Form 10-K for the year ended December 31, 2005. As noted in the Form 10-K for the year ended December 31, 2005, KBS REIT had been formed but had not yet commenced operations. As such, no statement of operations for the year ended December 31, 2005 was disclosed since results of operation were not material. |
| (b) | Represents base rental income, parking income, amortization of above-market lease assets and below-market lease liabilities as of December 31, 2005. Base rent is recognized on a straight-line basis beginning on the pro forma acquisition date of January 1, 2005. Base rent also includes the amortization of above-market and below-market leases, which is recognized over the life of the leases. |
| (c) | Represents operating cost reimbursements from tenants. |
| (d) | Represents interest income from loan receivable for the Tribeca Mezzanine Loan, at a fixed rate of 13.25% per annum, amortization of prepaid interest income over the term of the loan receivable, and an offset for the amortization of closing costs related to the acquisition over the term of the loan receivable. |
| (e) | Represents property operating expenses. |
| (f) | Represents real estate taxes incurred by respective properties. |
| (g) | Represents asset management fee that would be due to affiliates had the assets been acquired on January 1, 2005, calculated as 0.75% of the cost of investments acquired, including acquisition fee, acquisition expenses, and any debt attributable to such investments. |
| (h) | Depreciation expense on portion of purchase price allocated to building is recognized using the straight-line method and a 39-year life. Depreciation expense on the portion of purchase price allocated to tenant improvement is recognized using the straight-line method over life of lease. Amortization expense on lease intangible costs is recognized using the straight-line method over life of lease. |
| (i) | Represents interest expense incurred on the following short-term and long-term loans secured to purchase respective acquisitions: |
| | | |
Fixed rate loan secured by the Sabal Pavilion Building, which bears interest at a rate of 6.38% per annum. | | $ | 14,700,000 |
| |
Mezzanine loan secured by 100% equity interest in the subsidiary that holds title to the Sabal Pavilion Building, which bears interest at a variable rate equal to 30-day LIBOR plus 225 basis points (average rate of 5.71% for the period). The loan was paid in full on October 5, 2006. | | $ | 4,898,000 |
| |
Repurchase agreement secured by principal and interest payments on the Tribeca Mezzanine Debt, which bears interest at a variable rate equal to 30-day LIBOR plus 200 basis points (average rate of 5.46% for the period). The loan was paid in full on December 27, 2006. | | $ | 7,122,231 |
| |
Fixed rate loan secured by the Plaza in Clayton, which bears interest at a rate of 5.899% per annum. | | $ | 62,200,000 |
| |
Mezzanine loan secured by a 100% equity interest in the subsidiary that holds title to the Plaza in Clayton Building, which bears interest at a variable rate equal to 30-day LIBOR plus 183 basis points (average rate of 5.29% for the period). | | $ | 22,300,000 |
F-53
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
For the Year Ended December 31, 2005 (continued)
(unaudited)
| | | |
Loan from affiliate, which bears simple interest at a fixed rate of 6% and is unsecured, $5,572,137 of which was used in connection with the acquisition of Sabal Pavilion and $2,875,000 of which was used in connection with the acquisition of the Tribeca Summit Debt. The loan was paid in full on October 27, 2006. | | $ | 8,447,137 |
| |
Fixed rate loan secured by the Southpark Commerce Center II Buildings, which bears interest at a rate of 5.6725% per annum. | | $ | 18,000,000 |
| |
Mezzanine loan secured by 100% equity interest in the subsidiary that holds title to the Southpark Commerce Center II Buildings, which bears interest at a variable rate equal to 30-day LIBOR plus 183 basis points (average rate of 5.29% for the period). | | $ | 5,200,000 |
| |
Fixed rate loan secured by the 825 University Avenue Building, which bears interest at a rate of 5.591% per annum. | | $ | 19,000,000 |
| |
Mezzanine loan secured by 100% equity interest in the subsidiary that holds title to the 825 University Avenue Building, which bears interest at a variable rate equal to 30-day LIBOR plus 183 basis points (average rate of 5.29% for the period). | | $ | 5,600,000 |
| |
Fixed rate loan secured by the Midland Industrial Portfolio, which bears interest at a rate of 5.755% per annum for the first two years and 5.855% thereafter. | | $ | 24,050,000 |
| |
Mezzanine loan secured by 100% equity interest in the subsidiary that holds title to the Midland Industrial Portfolio, which bears interest at a variable rate equal to 30-day LIBOR plus 183 basis points (average rate of 5.29% for the period). | | $ | 8,700,000 |
| |
Fixed rate loan to be secured by the Crescent Green Buildings, which will bear interest at an estimated rate of 5.100% per annum. However, the terms of the loan are currently being negotiated. | | $ | 32,400,000 |
| |
Mezzanine loan to be secured by 100% equity interest in the subsidiary that holds title to the Crescent Green Buildings, which will bear interest at an estimated variable rate equal to 30-day LIBOR plus 183 basis points (average rate of 5.29% for the period). However, the terms of the loan are currently being negotiated. | | $ | 10,000,000 |
| | Interest expense includes amortization of loan fees related to short-term and long-term loans, amortized over the life of the related loan. |
F-54
KBS REAL ESTATE INVESTMENT TRUST, INC.
PRO FORMA STATEMENT OF OPERATIONS
For the Year Ended December 31, 2005 (continued)
(unaudited)
| (j) | Represents the weighted-average number of shares from KBS REIT’s ongoing public offering, the net proceeds of which were or will be used to fund the purchase of the acquisitions. The calculation assumes that investments were acquired on January 1, 2005. |
| (k) | Represents interest income from loan receivable for the Sandmar Mezzanine Loan, at a fixed rate of 12.00% per annum, and an offset for the amortization of closing costs related to the acquisition over the term of the loan receivable. |
F-55
SUPPLEMENTAL INFORMATION – The prospectus of KBS Real Estate Investment Trust, Inc. consists of this sticker, the prospectus dated January 13, 2006, supplement no. 6 dated October 6, 2006, and supplement no. 13 dated January 4, 2007.
Supplement No. 6 includes:
| | • | | an update on the status of the offering; |
| | • | | changes to the suitability standards applicable to investors in Arkansas, North Carolina and Ohio; |
| | • | | a change to make the minimum investment requirement in the offering $4,000 and information about the transferability of our shares; |
| | • | | the adoption of our share redemption program and subsequent amendment to our share redemption program; |
| | • | | information regarding our acquisitions since inception; |
| | • | | “Management’s Discussion and Analysis of Financial Condition and Results of Operations” similar to that filed in our Quarterly Report on Form 10-Q for the three months ended June 30, 2006, filed on August 14, 2006; |
| | • | | financial statements and information regarding the prior performance of KBS-sponsored programs; and |
| | • | | other material items previously disclosed by supplement to the prospectus and other updates to the prospectus. |
Supplement No. 13 includes:
| | • | | an update on the status of the offering; |
| | • | | information regarding acquisitions and related financings since October 6, 2006 and acquisitions that are reasonably probable as of the date of supplement no. 13; |
| | • | | the declaration of daily dividends and an advance by our advisor in connection with the declaration of dividends; |
| | • | | information regarding our indebtedness; |
| | • | | the renewal of our advisory agreement; |
| | • | | information with respect to our distribution policy; |
| | • | | the adoption of a policy by our board of directors prohibiting awards of shares of common stock to any person under our Employee and Independent Director Stock Plan; |
| | • | | an amendment to our share redemption program; |
| | • | | the use of supplemental sales material; |
| | • | | “Management’s Discussion and Analysis of Financial Condition and Results of Operations” similar to that filed in our Quarterly Report on Form 10-Q for the three months ended September 30, 2006, filed on November 14, 2006; |
| | • | | changes to the suitability standards applicable to investors in Kansas; |
| | • | | a change to the dealer manager’s reallowance of its dealer manager fee; and |
| | • | | our unaudited financial statements and the notes thereto as of and for the three and nine months ended September 30, 2006. |
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 30. Quantitative and Qualitative Disclosures about Market Risk
KBS Real Estate Investment Trust, Inc. (the “Company”) is exposed to the effects of changes in interest rates on borrowings used to maintain liquidity and fund expansion and refinancing of its real estate investment portfolio and operations. The Company borrows funds at a combination of fixed and variable rates. Its interest rate risk management objectives are to limit the impact of interest rate changes on earnings, prepayment penalties and cash flows and to lower overall borrowing costs. The Company may also enter into derivative financial instruments such as interest rate swaps and caps in order to mitigate its interest rate risk on a related financial instrument. The Company does not enter into derivative or interest rate transactions for speculative purposes.
As of September 30, 2006, the Company had $84,847,137 of fixed-rate debt and $31,176,593 of variable-rate debt outstanding. The weighted-average interest rate on the fixed-rate debt was 5.99% and the weighted-average interest rate on the variable-rate debt was 6.98%. At September 30, 2006, the estimated fair market value of the Company’s fixed-rate debt was $84,847,137. If interest rates increase by 100 basis points, the aggregate fair market value of its fixed-rate debt as of September 30, 2006 would decrease by approximately $7,200,000. If interest rates decrease by 100 basis points, the aggregate fair market value of the Company’s fixed-rate debt as of September 30, 2006 would increase by approximately $6,400,000. If the weighted-average interest rate on the Company’s variable-rate debt outstanding at September 30, 2006 is 100 basis points higher or lower during the 12 months ended September 30, 2007, the Company’s interest expense would be increased or decreased by approximately $312,000.
As of September 30, 2006, the Company’s real estate investment portfolio includes a junior mezzanine loan of which $13,322,027 had been funded (the “Tribeca Mezzanine Loan”). The Tribeca Mezzanine Loan bears interest at a variable-rate equal to one month LIBOR plus 850 basis points, provided that at no time shall the interest rate exceed 13.25%. The Tribeca Mezzanine Loan has an initial maturity date of March 1, 2008 with a one-year extension option subject to the payment of an extension fee and certain other conditions. Prior to the maturity date, the borrower under the Tribeca Mezzanine Loan is required to make monthly interest-only payments to the Company, with the outstanding principal balance being due on the maturity date (or on the extended maturity date, if applicable). If one month LIBOR is 100 basis points lower during the 12 months ended September 30, 2007, interest income from the Tribeca Mezzanine Loan would be decreased by approximately $57,000 assuming the outstanding $13,322,027 of principal amount remains outstanding throughout the period. An increase in one month LIBOR would not impact interest income as the interest rate at September 30, 2006 was at the maximum interest rate under the loan agreement of 13.25%.
At September 30, 2006, the Company had no interest rate hedge contracts.
II-1
Item 31. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by the Company in connection with the distribution of the securities being registered other than selling commissions and the dealer manager fee.
| | | |
Item | | Amount |
SEC registration fee | | $ | 324,852 |
NASD filing fee | | | 75,500 |
Legal fees and expenses | | | 2,000,000 |
Travel, food and lodging for wholesalers | | | 1,650,000 |
Expense reimbursements for retail conferences | | | 2,760,000 |
Expense reimbursement for sponsor educational conferences | | | 1,250,000 |
Blue sky fees and expenses | | | 399,040 |
Accounting fees and expenses | | | 325,000 |
Sales and advertising expenses | | | 5,000,000 |
Educational conferences and seminars | | | 1,500,000 |
Printing | | | 4,440,000 |
Postage and delivery of materials | | | 1,500,000 |
Transfer agent and escrow fees | | | 170,000 |
Due diligence expenses (retailing) | | | 250,000 |
Legal fees — underwriter portion | | | 150,000 |
Telephone | | | 50,000 |
Promotional items | | | 100,000 |
Miscellaneous expenses | | | 455,608 |
| | | |
Total | | $ | 22,400,000 |
| | | |
Item 32. Sales to Special Parties
The Company’s directors and officers and (to the extent consistent with applicable laws and regulations) the employees of KBS Capital Advisors LLC and affiliated entities, business associates and others purchasing pursuant to the Company’s “friends and family” program, participating broker-dealers, their retirement plans, their representatives and the family members, IRAs and the qualified plans of their representatives will be allowed to purchase shares in the Company’s primary offering at a discount from the public offering price. The purchase price for such shares will be $9.40 per share, reflecting the fact that selling commissions in the amount of $0.60 per share will not be payable in connection with such sales. The net proceeds to the Company from such sales made net of commissions will be substantially the same as the net proceeds the Company receives from other sales of shares in the primary offering.
Item 33. Recent Sales of Unregistered Securities
The Company (which was organized under the name KBS Realty Corporation until the completion of the merger described below) was formed on June 13, 2005 as a Maryland corporation. On June 15, 2005, the Company and KBS Real Estate Investment Trust, Inc., a Maryland corporation (“KBS REIT”), filed Articles of Merger with the State of Maryland. Pursuant to the Articles of Merger, KBS REIT was merged into the Company with the Company surviving the merger and the Company’s name was changed to KBS Real Estate Investment Trust, Inc. Prior to the merger, KBS Capital Advisors owned 20,000 shares of common stock of
II-2
KBS REIT, which were all of the outstanding shares of KBS REIT. Pursuant to the Articles of Merger, KBS Capital Advisors’ 20,000 shares in KBS REIT were converted on a one-for-one basis into shares of common stock of the Company. The Company issued these shares in a private transaction exempt from the registration requirements pursuant to Section 4(2) of the Securities Act of 1933.
Item 34. Indemnification of Directors and Officers
Subject to the significant conditions set forth below, the Company has included in its charter a provision limiting the liability of its directors and officers to the Company and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action.
Subject to the significant conditions set forth below, the charter also provides that the Company shall indemnify a director, officer or the advisor or any of its affiliates against any and all losses or liabilities reasonably incurred by them (other than when sued by or in right of the Company) in connection with or by reason of any act or omission performed or omitted to be performed on behalf of the Company in such capacity.
Under the Company’s charter, the Company shall not indemnify a director, the advisor or any of the advisor’s affiliates (each an “Indemnitee”) for any liability or loss suffered by an Indemnitee, nor shall it exculpate an Indemnitee, unless all of the following conditions are met: (i) an Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the best interests of the Company; (ii) the Indemnitee was acting on behalf of or performing services for the Company; (iii) such liability or loss was not the result of (A) negligence or misconduct by the Indemnitee, excluding an Independent Director, or (B) gross negligence or willful misconduct by an Independent Director; and (iv) such indemnification or agreement to hold harmless is recoverable only out of the Company’s net assets and not from its stockholders. Notwithstanding the foregoing, an Indemnitee shall not be indemnified by the Company for any losses, liability or expenses arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular Indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular Indemnitee; and (iii) a court of competent jurisdiction approves a settlement of the claims against a particular Indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Commission and of the published position of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws.
The charter provides that the advancement of Company funds to an Indemnitee for legal expenses and other costs incurred as a result of any legal action for which indemnification is being sought is permissible only if (in addition to the procedures required by Maryland law) all of the following conditions are satisfied: (i) the legal action relates to acts or omissions with respect to the performance of duties or services on behalf of the Company; (ii) the legal action is initiated by a third party who is not a stockholder or the legal action is initiated by a stockholder acting in his or her capacity as such and a court of competent jurisdiction specifically approves such advancement; and (iii) the Indemnitee undertakes to repay the advanced funds to the Company,
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together with the applicable legal rate of interest thereon, if the Indemnitee is found not to be entitled to indemnification.
It is the position of the Commission that indemnification of directors and officers for liabilities arising under the Securities Act is against public policy and is unenforceable pursuant to Section 14 of the Securities Act.
The Company will also purchase and maintain insurance on behalf of all of its directors and executive officers against liability asserted against or incurred by them in their official capacities with the Company, whether or not the Company is required or has the power to indemnify them against the same liability.
Item 35. Treatment of Proceeds from Stock Being Registered
Not applicable.
Item 36. Financial Statements and Exhibits
(a)Financial Statements. The following financial statements are filed as part of this registration statement and included in the prospectus:
Consolidated Financial Statements of the Company
September 30, 2006
Consolidated Balance Sheets as of September 30, 2006 (unaudited) and December 31, 2005
Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2006 (unaudited)
Consolidated Statements of Stockholders’ Equity for the Nine Months Ended September 30, 2006 (unaudited)
Consolidated Statement of Cash Flows for the Nine Months Ended September 30, 2006 (unaudited)
Condensed Notes to Consolidated Financial Statements as of September 30, 2006 (unaudited)
June 30, 2006
Consolidated Balance Sheets as of June 30, 2006 (unaudited) and December 31, 2005
Consolidated Statements of Operations for the Three and Six Months Ended June 30, 2006 (unaudited)
Consolidated Statements of Stockholders’ Equity for the Six Months Ended June 30, 2006 and the Period from June 13, 2005 (Inception) to December 31, 2005 (unaudited)
Consolidated Statement of Cash Flows for the Six Months Ended June 30, 2006
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(unaudited)
Condensed Notes to Consolidated Financial Statements as of June 30, 2006 (unaudited)
December 31, 2005
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheet as of December 31, 2005
Notes to Consolidated Balance Sheet as of December 31, 2005
September 30, 2005
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheet as of September 30, 2005
Notes to Consolidated Balance Sheet as of September 30, 2005
Sabal Pavilion Building
Report of Independent Registered Public Accounting Firm
Statements of Revenues Over Certain Operating Expenses for the Six Months Ended June 30, 2006 (unaudited) and the Year Ended December 31, 2005
Notes to Statements of Revenues Over Certain Operating Expenses for the Six Months Ended June 30, 2006 (unaudited) and the Year Ended December 31, 2005
Plaza in Clayton Building
Report of Independent Registered Public Accounting Firm
Statements of Revenues Over Certain Operating Expenses for the Six Months Ended June 30, 2006 (unaudited) and the Year Ended December 31, 2005
Notes to Statements of Revenues Over Certain Operating Expenses for the Six Months Ended June 30, 2006 (unaudited) and the Year Ended December 31, 2005
Southpark Commerce Center II Buildings
Report of Independent Registered Public Accounting Firm
Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005
Notes to Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005
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825 University Avenue Building
Report of Independent Registered Public Accounting Firm
Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005
Notes to Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005
Midland Industrial Portfolio
Report of Independent Registered Public Accounting Firm
Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005
Notes to Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005
Crescent Green Buildings
Report of Independent Registered Public Accounting Firm
Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005
Notes to Statements of Revenues Over Certain Operating Expenses for the Nine Months Ended September 30, 2006 (unaudited) and the Year Ended December 31, 2005
Unaudited Pro Forma Financial Statements
September 30, 2006
Summary of Unaudited Pro Forma Financial Statements
Pro Forma Balance Sheet as of September 30, 2006 (unaudited)
Pro Forma Statement of Operations for the Nine Months Ended September 30, 2006 (unaudited)
Pro Forma Statement of Operations for the Year Ended December 31, 2005 (unaudited)
June 30, 2006
Summary of Unaudited Pro Forma Financial Statements
Pro Forma Balance Sheet as of June 30, 2006 (unaudited)
Pro Forma Statement of Operations for the Six Months Ended June 30, 2006 (unaudited)
Pro Forma Statement of Operations for the Year Ended December 31, 2005 (unaudited)
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(b)Exhibits. The following exhibits are filed as part of this registration statement:
| | |
| Ex. | | Description |
| 1.1 | | Dealer Manager Agreement with Selected Dealer Agreement, incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2006 |
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| 3.1 | | Amended and Restated Charter of the Company, incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2006 |
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| 3.2 | | Amended and Restated Bylaws of the Company, incorporated by reference to Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2006 |
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| 4.1 | | Form of Subscription Agreement, incorporated by reference to Appendix A to the prospectus that is part of Pre-Effective Amendment No. 5 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 4.2 | | Statement regarding restrictions on transferability of shares of common stock (to appear on stock certificate or to be sent upon request and without charge to stockholders issued shares without certificates), incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 4.3 | | Amended and Restated Dividend Reinvestment Plan, incorporated by reference to Appendix B to the prospectus that is part of Pre-Effective Amendment No. 5 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 4.4 | | Amended Share Redemption Program, incorporated by reference from the description under “Share Redemption Program” in Supplement No. 13 included in this Post-Effective Amendment No. 4 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 4.5 | | Escrow Agreement, incorporated by reference to Exhibit 4.5 to Pre-Effective Amendment No. 4 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 4.6 | | First Amendment to Escrow Agreement, incorporated by reference to Exhibit 4.1 to the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2006 |
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| 5 | | Opinion of DLA Piper US LLP re legality, incorporated by reference to Exhibit 5 to Pre-Effective Amendment No. 5 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 8 | | Opinion of DLA Piper US LLP re tax matters, incorporated by reference to Exhibit 8 to Pre-Effective Amendment No. 5 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.1 | | Form of Employee and Independent Director Incentive Stock Plan, incorporated by reference to Exhibit 10.2 to Pre-Effective Amendment No. 4 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.2 | | Sale, Purchase and Escrow Agreement (related to the acquisition of the Sabal Pavilion Building in Tampa, Florida) among NCFLA II Owner LLC, KBS Capital Advisors LLC and Commercial Property Title LLC, dated as of March 28, 2006, incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2006 |
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| | |
| 10.3 | | Assignment and Assumption of Purchase Agreement (related to the acquisition of the Sabal Pavilion Building in Tampa, Florida) between KBS Capital Advisors LLC and KBS Sabal Pavilion, LLC, dated as of April 26, 2006, incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2006 |
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| 10.4 | | First Amendment to Purchase and Sale Agreement (related to the acquisition of the Sabal Pavilion Building in Tampa, Florida) between KBS Sabal Pavilion, LLC and NCFLA II Owner LLC, dated as of April 27, 2006, incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2006 |
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| 10.5 | | Promissory Note by KBS Limited Partnership in favor of KBS Holdings LLC, dated as of July 6, 2006, incorporated by reference to Exhibit 10.6 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2006 |
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| 10.6 | | Mortgage and Absolute Assignment of Rents and Leases and Security Agreement (related to the acquisition of the Sabal Pavilion Building in Tampa, Florida) by and among KBS Sabal Pavilion, LLC, and Mortgage Electronic Registration Systems, Inc., dated as of July 6, 2006, incorporated by reference to Exhibit 10.7 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2006 |
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| 10.7 | | Mezzanine Loan Agreement (related to the acquisition of the Sabal Pavilion Building in Tampa, Florida) between KBS REIT Acquisition II, LLC and Wells Fargo Bank, National Association, dated as of July 6, 2006, incorporated by reference to Exhibit 10.8 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2006 |
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| 10.8 | | Omnibus Agreement (related to the acquisition of the Tribeca Mezzanine Loan) between AIG Mortgage Capital, LLC and KBS Tribeca Summit, LLC, dated as of July 18, 2006, incorporated by reference to Exhibit 10.9 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2006 |
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| 10.9 | | Assignment and Assumption Agreement (related to the acquisition of the Tribeca Mezzanine Loan) between AIG Mortgage Capital, LLC and KBS Tribeca Summit, LLC, dated as of July 18, 2006, incorporated by reference to Exhibit 10.10 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2006 |
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| 10.10 | | Second Mezzanine Loan Agreement (related to the acquisition of the Tribeca Mezzanine Loan) between 415 Greenwich Mezzanine Owner LLC and AIG Mortgage Capital, LLC, dated as of February 28, 2006, incorporated by reference to Exhibit 10.11 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2006 |
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| 10.11 | | Master Repurchase Agreement and Confirmation Agreement (related to the acquisition of the Tribeca Mezzanine Loan) between KBS Tribeca Summit, LLC and Greenwich Capital Financial Products, Inc., dated as of July 18, 2006, incorporated by reference to Exhibit 10.12 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2006 |
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| 10.12 | | Purchase and Sale Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between The Plaza Office, L.L.C. and KBS Capital Advisors LLC, dated as of May 2, 2006, incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2006 |
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| 10.13 | | First Amendment to Purchase and Sale Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between THF Plaza Office, L.L.C. and KBS Capital Advisors LLC, dated as of June 14, 2006, incorporated by reference to Exhibit 10.16 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| | |
| 10.14 | | Second Amendment to Purchase and Sale Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between THF Plaza Office, L.L.C. and KBS Capital Advisors LLC, dated as of July 6, 2006, incorporated by reference to Exhibit 10.17 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.15 | | Third Amendment to Purchase and Sale Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between THF Plaza Office, L.L.C. and KBS Capital Advisors LLC, dated as of July 20, 2006, incorporated by reference to Exhibit 10.18 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.16 | | Fourth Amendment to Purchase and Sale Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between THF Plaza Office, L.L.C. and KBS Capital Advisors LLC, dated as of July 31, 2006, incorporated by reference to Exhibit 10.19 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.17 | | Assignment and Assumption of Purchase Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between KBS Capital Advisors LLC and KBS Clayton Plaza, LLC, dated as of August 11, 2006, incorporated by reference to Exhibit 10.20 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.18 | | Fifth Amendment to Purchase and Sale Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between THF Plaza Office, L.L.C. and KBS Clayton Plaza, LLC, dated as of August 21, 2006, incorporated by reference to Exhibit 10.21 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.19 | | Sixth Amendment to Purchase and Sale Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between THF Plaza Office, L.L.C. and KBS Clayton Plaza, LLC, dated as of August 28, 2006, incorporated by reference to Exhibit 10.22 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.20 | | Seventh Amendment to Purchase and Sale Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between THF Plaza Office, L.L.C. and KBS Clayton Plaza, LLC, dated as of August 29, 2006, incorporated by reference to Exhibit 10.23 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.21 | | Eighth Amendment to Purchase and Sale Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between THF Plaza Office, L.L.C. and KBS Clayton Plaza, LLC, dated as of August 31, 2006, incorporated by reference to Exhibit 10.24 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.22 | | Loan Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between KBS Clayton Plaza, LLC and Greenwich Capital Financial Products, Inc., dated as of September 18, 2006, incorporated by reference to Exhibit 10.25 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.23 | | Promissory Note (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between KBS Clayton Plaza, LLC and Greenwich Capital Financial Products, Inc., dated as of September 18, 2006, incorporated by reference to Exhibit 10.26 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| | |
| 10.24 | | Mezzanine Loan Agreement (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between KBS REIT Acquisition I, LLC and Greenwich Capital Financial Products, Inc., dated as of September 18, 2006, incorporated by reference to Exhibit 10.27 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.25 | | Promissory Note (Mezzanine Loan) (related to the acquisition of the Plaza in Clayton in St. Louis, Missouri) between KBS REIT Acquisition I, LLC and Greenwich Capital Financial Products, Inc., dated as of September 18, 2006, incorporated by reference to Exhibit 10.28 to Post-Effective Amendment No. 3 to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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| 10.26 | | Purchase and Sale Agreement (related to the acquisition of the Southpark Commerce Center II Buildings in Austin, Texas) between Transwestern SF Partners I, L.P. and KBS Capital Advisors LLC, dated as of October 5, 2006, incorporated by reference to Exhibit 10.27 to the Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2006 |
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| 10.27 | | First Amendment to Purchase and Sale Agreement (related to the acquisition of the Southpark Commerce Center II Buildings in Austin, Texas) between Transwestern SF Partners I, L.P. and KBS Capital Advisors LLC, dated as of October 13, 2006, incorporated by reference to Exhibit 10.28 to the Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2006 |
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| 10.28 | | Assignment and Assumption of Purchase Agreement (related to the acquisition of the Southpark Commerce Center II Buildings in Austin, Texas) between KBS Capital Advisors LLC and KBS Southpark Commerce Center II, LLC, dated as of November 7, 2006, incorporated by reference to Exhibit 10.29 to the Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2006 |
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| 10.29 | | Advisory Agreement dated November 8, 2006, incorporated by reference to Exhibit 10.31 to the Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2006 |
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| 10.30 | | Loan Agreement (related to the acquisition of the Southpark Commerce Center II Buildings in Austin, Texas) between KBS Southpark Commerce Center II, LLC and Greenwich Capital Financial Products, Inc., dated as of November 14, 2006 |
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| 10.31 | | Promissory Note (related to the acquisition of the Southpark Commerce Center II Buildings in Austin, Texas) between KBS Southpark Commerce Center II, LLC and Greenwich Capital Financial Products, Inc., dated as of November 14, 2006 |
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| 10.32 | | Mezzanine Loan Agreement (related to the acquisition of the Southpark Commerce Center II Buildings in Austin, Texas) between KBS REIT Acquisition IV, LLC and Greenwich Capital Financial Products, Inc., dated as of November 14, 2006 |
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| 10.33 | | Promissory Note (Mezzanine Loan) (related to the acquisition of the Southpark Commerce Center II Buildings in Austin, Texas) between KBS REIT Acquisition IV, LLC and Greenwich Capital Financial Products, Inc., dated as of November 14, 2006 |
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| 10.34 | | Purchase and Sale Agreement (related to the acquisition of the 825 University Building in Norwood, Massachusetts) between CFRI/Doherty University Avenue, L.L.C. and KBS Capital Advisors LLC, dated as of November 30, 2006 |
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| 10.35 | | Assignment and Assumption of Purchase Agreement (related to the acquisition of the 825 University Building in Norwood, Massachusetts) between KBS Capital Advisors LLC and KBS 825 University Avenue, LLC, dated as of December 1, 2006 |
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| 10.36 | | Loan Agreement (related to the acquisition of the 825 University Building in Norwood, Massachusetts) between KBS 825 University Avenue, LLC and Greenwich Capital Financial Products, Inc., dated as of November 17, 2006 |
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| 10.37 | | Promissory Note (related to the acquisition of the 825 University Building in Norwood, Massachusetts) between KBS 825 University Avenue, LLC and Greenwich Capital Financial Products, Inc., dated as of November 17, 2006 |
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| 10.38 | | Mezzanine Loan Agreement (related to the acquisition of the 825 University Building in Norwood, Massachusetts) between KBS REIT Acquisition V, LLC and Greenwich Capital Financial Products, Inc., dated as of November 17, 2006 |
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| 10.39 | | Promissory Note (Mezzanine Loan) (related to the acquisition of the 825 University Building in Norwood, Massachusetts) between KBS REIT Acquisition V, LLC and Greenwich Capital Financial Products, Inc., dated as of November 17, 2006 |
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| 10.40 | | Sales Agreement and Joint Escrow Instructions (related to the acquisition of the Midland Industrial Portfolio in McDonough, Georgia) between DP Industrial LLC and KBS Capital Advisors LLC, dated as of December 15, 2006 |
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| 10.41 | | Assignment and Assumption of Purchase Agreement (related to the acquisition of the Midland Industrial Portfolio in McDonough, Georgia) between KBS Capital Advisors LLC and KBS Midland Industrial Park, LLC, dated as of December 18, 2006 |
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| 10.42 | | First Amendment to Sales Agreement and Joint Escrow Instructions (related to the acquisition of the Midland Industrial Portfolio in McDonough, Georgia) between DP Industrial LLC and KBS Midland Industrial Park, LLC, dated as of December 19, 2006 |
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| 10.43 | | Reinstatement and Second Amendment to Sales Agreement and Joint Escrow Instructions (related to the acquisition of the Midland Industrial Portfolio in McDonough, Georgia) between DP Industrial LLC and KBS Midland Industrial Park, LLC, dated as of December 22, 2006 |
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| 10.44 | | Loan Agreement (related to the acquisition of the Midland Industrial Portfolio in McDonough, Georgia) between KBS Midland Industrial Park, LLC and Greenwich Capital Financial Products, Inc., dated as of December 11, 2006 |
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| 10.45 | | Promissory Note (related to the acquisition of the Midland Industrial Portfolio in McDonough, Georgia) between KBS Midland Industrial Park, LLC and Greenwich Capital Financial Products, Inc., dated as of December 11, 2006 |
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| 10.46 | | Mezzanine Loan Agreement (related to the acquisition of the Midland Industrial Portfolio in McDonough, Georgia) between KBS REIT Acquisition VI, LLC and Greenwich Capital Financial Products, Inc., dated as of December 11, 2006 |
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| 10.47 | | Promissory Note (Mezzanine Loan) (related to the acquisition of the Midland Industrial Portfolio in McDonough, Georgia) between KBS REIT Acquisition VI, LLC and Greenwich Capital Financial Products, Inc., dated as of December 11, 2006 |
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| 10.48 | | Purchase and Sale Agreement (related to the acquisition of the Crescent Green Buildings in Cary, North Carolina) between Crescent 1100, L.L.C., Crescent 1200, L.L.C. and Crescent 1300, L.L.C. and KBS Capital Advisors LLC, dated as of December 19, 2006 |
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| 10.49 | | Assignment and Assumption of Purchase Agreement (related to the acquisition of the Crescent Green Buildings in Cary, North Carolina) between KBS Capital Advisors LLC and KBS Crescent Green, LLC, dated as of December 21, 2006 |
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| 10.50 | | Amendment to Purchase and Sale Agreement (related to the acquisition of the Crescent Green Buildings in Cary, North Carolina) between Crescent 1100, L.L.C., Crescent 1200, L.L.C. and Crescent 1300, L.L.C. and KBS Crescent Green, LLC, dated as of December 22, 2006 |
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| 21.1 | | Subsidiaries of the Company |
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| 23.1 | | Consent of DLA Piper US LLP (included in Exhibit 5) |
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| 23.2 | | Consent of Ernst & Young LLP |
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| 24 | | Power of Attorney, incorporated by reference to the signature page to the Company’s Registration Statement on Form S-11, Commission File No. 333-126087 |
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.
(b) The Registrant undertakes (i) that, for the purpose of determining any liability under the Act, each such post-effective amendment shall 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 that, for the purpose of determining liability under the Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(d) For the purpose of determining liability of the Registrant under the Act to any purchaser in the initial distribution of the securities, the Registrant undertakes that in a primary offering of securities pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424, (ii) any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant, (iii) the portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant, and (iv) any other communication that is an offer in the offering made by the Registrant to the purchaser.
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(e) The Registrant undertakes to send to each stockholder, at least on an annual basis, a detailed statement of any transaction with the Advisor or its affiliates, and of fees, commissions, compensation and other benefits paid or accrued to the Advisor or its affiliates for the fiscal year completed, showing the amount paid or accrued to each recipient and the services performed.
(f) The Registrant undertakes 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 stockholders. Each sticker supplement will disclose all compensation and fees received by the Advisor and its 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.
(g) The Registrant undertakes 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 stockholders at least once each quarter after the distribution period of the offering has ended.
(h) The Registrant undertakes to provide to the stockholders the financial statements required by Form 10-K for the first full fiscal year of operations.
(i) Insofar as indemnification for liabilities arising under the Act 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.
(j) The Registrant undertakes to provide to the dealer manager at the closings specified in the dealer manager agreement the following: (i) if the securities are certificated, certificates in such denominations and registered in such names as required by the dealer manager to permit prompt delivery to each purchaser or (ii) if the securities are not certificated, a written statement of the information required on certificates that is required to be delivered to stockholders to permit prompt delivery to each purchaser.
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TABLE VI
ACQUISITIONS OF PROPERTIES BY PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicated of Future Results
Table VI presents information concerning the acquisition of properties during the three years ended December 31, 2005 by programs sponsored by KBS investment advisers. KBS investment advisers are investment advisers affiliated with Messrs. Bren and Schreiber, two of the sponsors of the Company. Each of the programs below have investment objectives similar to those of the Company. The KBS investment adviser typically diversified the portfolios of these programs by property type and geographic region as well as investment size and investment risk. In constructing the portfolios for these programs, the KBS investment adviser is focusing on the acquisition of core real estate assets. The Company’s advisor will seek to diversify the Company’s assets by investment risk by acquiring both core and enhanced-return commercial properties and other real estate-related assets. The Company expects to invest primarily in core investments but to make approximately 30% of its investments in enhanced-return properties and real estate-related assets.
| | | | | | | | | | | | | | | | | | | | | | |
Property and Location | | Type of Property | | Gross
Leaseable
Area
(sq. ft.) | | Date of
Purchase | | Original
Mortgage
Financing | | Cash Down
Payment
(equity) | | Contact
purchase
price plus
acquisition
fee(3) | | Other cash
expenditures
expensed | | Other cash
expenditures
capitalized(4) | | Total cost
of
property(5) |
Separate Account 6/05(1) | | | | | | | | | | | | | | | | | | | | | | |
Overlook I Atlanta, GA | | Office | | 138,068 | | 7/06/2005 | | $ | 10,775,000 | | $ | 10,740,622 | | $ | 21,368,098 | | — | | $147,524 | | $ | 21,515,622 |
South Park Commerce Austin, TX | | Industrial | | 372,763 | | 10/25/2005 | | $ | 21,829,960 | | $ | 7,913,776 | | $ | 29,600,000 | | — | | $143,736 | | $ | 29,743,736 |
3200 N First Street San Jose, CA | | Office | | 85,000 | | 6/28/2005 | | $ | 13,000,000 | | $ | 12,887,304 | | $ | 25,755,000 | | — | | $132,304 | | $ | 25,887,304 |
Triangle Corp Park II Tigard, OR | | Office | | 133,099 | | 8/16/2005 | | $ | 17,462,900 | | $ | 17,254,838 | | $ | 34,643,000 | | — | | $ 74,738 | | $ | 34,717,738 |
Separate Account 8/05(2) | | | | | | | | | | | | | | | | | | | | | | |
South Tech Business Austin, TX | | Industrial | | 260,112 | | 10/25/2005 | | $ | 13,944,000 | | $ | 13,604,228 | | $ | 27,400,000 | | — | | $148,228 | | $ | 27,548,228 |
Diehl Point at Cantera Warrenville, IL | | Office | | 88,592 | | 11/08/2005 | | $ | 8,407,374 | | $ | 8,408,706 | | $ | 16,740,750 | | — | | $ 75,330 | | $ | 16,816,080 |
Tollway North Plano, TX | | Office | | 297,593 | | 11/22/2005 | | $ | 21,119,593 | | $ | 20,231,533 | | $ | 41,099,000 | | — | | $252,126 | | $ | 41,351,126 |
| (1) | This program represents a single-client account whereby dollars are raised only as assets are identified pursuant to a partnership agreement between a KBS affiliate and an institutional investor. Under the partnership agreement, when the KBS investment adviser for the partnership identifies properties for investment, the KBS investment adviser invests funds on behalf of the investor, manages the assets in the investor’s portfolio and ultimately sells the assets on behalf of the investor. Separate Account 6/05 made its first investment in June 2005, and the KBS investment adviser continues to identify potential properties for purchase by this program. The program has made a total of four separate investments through December 2005. |
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TABLE VI
ACQUISITIONS OF PROPERTIES BY PROGRAMS
(UNAUDITED)
Prior Performance Is Not Indicated of Future Results
| (2) | This program represents a single-client account whereby dollars are raised only as assets are identified pursuant to a partnership agreement between a KBS affiliate and an institutional investor. Under the partnership agreement, when the KBS investment adviser for the partnership identifies properties for investment, the KBS investment adviser invests funds on behalf of the investor, manages the assets in the investor’s portfolio and ultimately sells the assets on behalf of the investor. Separate Account 8/05 made its first investment in October 2005, and the KBS investment adviser continues to identify potential properties for purchase by this program. The program has made a total of three separate investments through December 2005. |
| (3) | Acquisition fees are calculated as a percentage of purchase price plus other capitalized costs and are paid to the KBS sponsor. |
| (4) | Other capitalized costs include legal fees, outside broker fees, environmental studies, title and other closing costs. |
| (5) | Total acquisition costs include the cash down payment, acquisition fees, other capitalized costs and mortgage financing. |
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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 of the requirements for filing on Form S-11 and has duly caused this post-effective amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Newport Beach, State of California, on January 4, 2007.
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| KBS REAL ESTATE INVESTMENT TRUST, INC. |
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| By: | | /S/ CHARLES J. SCHREIBER, JR. |
| | Charles J. Schreiber, Jr. |
| | Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
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Name | | Title | | Date |
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/S/ CHARLES J. SCHREIBER, JR. Charles J. Schreiber, Jr. | | Chairman of Board, Chief Executive Officer and Director | | January 4, 2007 |
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/S/ STACIE K. YAMANE Stacie K. Yamane | | Chief Financial Officer and Controller | | January 4, 2007 |
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* Peter McMillan III | | Executive Vice President, Treasurer, Secretary and Director | | January 4, 2007 |
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* Hank Adler | | Director | | January 4, 2007 |
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* Barbara R. Cambon | | Director | | January 4, 2007 |
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* Stuart A. Gabriel, Ph.D. | | Director | | January 4, 2007 |
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*By: | | /S/ CHARLES J. SCHREIBER, JR. Charles J. Schreiber, Jr. Attorney-In-Fact | | | | January 4, 2007 |
