SEC Company Response from KBS Real Estate Investment Trust, Inc. (CIK 0001330622) — Nov 7, 2005
KBS Real Estate Investment Trust, Inc. (CIK 0001330622)
Date: Nov. 7, 2005 · CIK: 0001330622 · Accession: 0001193125-05-217782
AI Filing Summary & Sentiment
File numbers found in text: 333-126087
Referenced dates: August 23, 2005
Letter
Correspondence Letter
DLA Piper Rudnick Gray Cary US LLP
4700 Six Forks Road, Suite 200
Raleigh, North Carolina 27609-5244
T 919.786.2000
F 919.786.2200
W www.dlapiper.com
CARRIE J. HARTLEY
carrie.hartley@dlapiper.com
T 919.786.2007 F 919.786.2207
November 4, 2005
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Attn:
Elaine Wolff, Esq., Legal Branch Chief, Mail Stop 0409
Charito A. Mittelman, Esq., Mail Stop 0409
Re:
KBS Real Estate Investment Trust, Inc. (the “Company”)
Registration Statement on Form S-11/A-2
Filed September 16, 2005
Registration No. 333-126087
(Confidential, For Use of the Commission Only)
Ladies and Gentlemen:
Thank you for discussing the prior performance disclosure in the registration statement with us. As requested, we are supplementally providing you with additional information regarding the prior funds to be included in the prior performance summary and tables of the Registration Statement.
In response to the foregoing request, we have enclosed under separate cover a binder with copies of the limited partnership agreements for seven of the funds to be included in the prior performance summary and tables, which we are providing pursuant to a request for confidentiality under Rule 418 promulgated under the Securities Act of 1933, as amended, and under Rule 83 of the Rules of Practice of the Commission (17 C.F.R. §200.83). Please note that we provided the partnership agreements for two of the funds to be included in the prior performance summary and tables in our letter dated August 23, 2005, which agreements were marked with identifying numbers KBS-000164 – KBS-000264 and KBS-000449 – KBS-000524 and which agreements are also the subject of a request for confidential treatment.
Serving clients globally
Securities and Exchange Commission
November 4, 2005
Page 2
To assist you in your review of these agreements we have indicated in the table below (i) the sections of the agreements that address the investment discretion of the KBS general partner and (ii) all other sections addressing the rights of the partners with respect to assets purchased by the partnership.
Fund
Section of Partnership Agreement
Related to Investment Decisions
Other Rights of Limited Partners
with Respect to Investments
Separate
Account 10/97
§2.3(a) – (e) – Investment Criteria and Investment Committee
§4.2(b) – Approval of Contracts
(KBS-000164 –
KBS-000264)
§4.1 – Management and Control Generally
§4.9(b)(v) & (vi) – Major Decisions (First Amendment to Partnership Agreement – §2(a)(i) & (c))
§4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property
§5.3 – Right to Cause Sale
§4.6(b), (f), (g), (h) & (i) – Impermissible Investments
§13.2(a) & (b) – Removal of Asset Manager
§17.1(b) – General Partner’s Rights to Invest
Separate
Account 12/98
§4.1 – Management and Control Generally
§4.10 – Conflicts of Interest
(KBS-000449 –
KBS-000524)
§4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property
§4.6(b), (f) & (g) – Impermissible Investments
§16.1(b) – General Partner’s Rights to Invest
Commingled
Account 4/95
§4.1 – Management and Control Generally
§4.9(a) – Voting Rights Regarding Lower-Tier Partnership
(KBS-000526 –
KBS-000708)
§4.2(c) – Right to Acquire, Manage and Dispose of Property
§4.9(c)(ii) – Major Decisions – Borrowing Funds
§4.6(b) – Impermissible Investments
§10.2 – Removal of General Partner without Cause
§16.1(c) – General Partner’s Rights to Invest
Securities and Exchange Commission
November 4, 2005
Page 3
Fund
Section of Partnership Agreement
Related to Investment Decisions
Other Rights of Limited Partners
with Respect to Investments
Commingled
Account 5/95
§4.1 – Management and Control Generally
§4.6(k), (l) & (m) – Impermissible Acts
(KBS-000709 –
KBS-000802)
§4.2(c), (d) & (i) – Right to Acquire, Manage and Dispose of Property
§4.9(c)(ii) – Major Decisions – Borrowing Funds
§4.6(b), (c), (g), (h) & (i) – Impermissible Investments
§10.2(a) – Removal of General Partner without Cause
§4.11(a) – Limited Partner Advisory Committee – Advisory Only
§16.1(b) – General Partner’s Rights to Invest
Commingled
Account 12/95
§4.1 – Management and Control Generally
§4.9(c)(ii) – Major Decisions – Borrowing Funds
(KBS-000803 –
KBS-000895)
§4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property
§10.2(a) – Removal of General Partner without Cause
§4.2(b) & (c) – Management Requirements and Equity Investments
§4.6(b), (f), (g) & (h) – Impermissible Investments
§4.11(a) – Limited Partner Advisory Committee – Advisory Only
§16.1(b) – General Partner’s Rights to Invest
Securities and Exchange Commission
November 4, 2005
Page 4
Fund
Section of Partnership Agreement
Related to Investment Decisions
Other Rights of Limited Partners
with Respect to Investments
Commingled
Account 12/96
§4.1 – Management and Control Generally
§4.9(c)(ii) – Major Decisions – Borrowing Funds (First Amendment to Partnership Agreement – §2(a) & (c))
(KBS-000896 –
KBS-001000)
§4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property
§10.2(a) – Removal of General Partner without Cause
§4.2(b) & (c) – Management Requirements & Equity Investments
§4.6(b), (f), (g), (h) & (j) – Impermissible Investments
§4.11(a) – Limited Partner Advisory Committee – Advisory Only
§16.1(b) – General Partner’s Rights to Invest
Commingled
Account 6/98
§4.1 – Management and Control Generally
§10.2(a) – Removal of General Partner without Cause
(KBS-001001 –
KBS-001086)
§4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property
§4.2(c) – Equity Investments
§4.6(b), (f), (g) & (h) – Impermissible Investments
§16.1(b) – General Partner’s Rights to Invest
Commingled
Account 6/99
§4.1 – Management and Control Generally
(KBS-001087 –
KBS-001157)
§4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property
§4.2(c) – Equity Investments
Securities and Exchange Commission
November 4, 2005
Page 5
Fund
Section of Partnership Agreement
Related to Investment Decisions
Other Rights of Limited Partners
with Respect to Investments
§4.6(b), (f), (g) & (h) – Impermissible Investments
§10.2(a) – Removal of General Partner without Cause
§16.1(b) – General Partner’s Rights to Invest
Separate
Account 10/96
§4.1 – Management and Control Generally
§4.9(b)(iii) – Major Decisions – Borrowing Funds
(KBS-001158 –
KBS-001221)
§4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property
§4.6(b), (f) & (g) – Impermissible Investments
§16.1(b) – General Partner’s Rights to Invest
Please let us know if we can provide you with any additional information with respect to these partnerships.
Very truly yours,
/S/ CARRIE J. HARTLEY
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CORRESP 1 filename1.htm Correspondence Letter DLA Piper Rudnick Gray Cary US LLP 4700 Six Forks Road, Suite 200 Raleigh, North Carolina 27609-5244 T 919.786.2000 F 919.786.2200 W www.dlapiper.com CARRIE J. HARTLEY carrie.hartley@dlapiper.com T 919.786.2007 F 919.786.2207 November 4, 2005 Securities and Exchange Commission 100 F Street, N.E. Washington, DC 20549 Attn: Elaine Wolff, Esq., Legal Branch Chief, Mail Stop 0409 Charito A. Mittelman, Esq., Mail Stop 0409 Re: KBS Real Estate Investment Trust, Inc. (the “Company”) Registration Statement on Form S-11/A-2 Filed September 16, 2005 Registration No. 333-126087 (Confidential, For Use of the Commission Only) Ladies and Gentlemen: Thank you for discussing the prior performance disclosure in the registration statement with us. As requested, we are supplementally providing you with additional information regarding the prior funds to be included in the prior performance summary and tables of the Registration Statement. In response to the foregoing request, we have enclosed under separate cover a binder with copies of the limited partnership agreements for seven of the funds to be included in the prior performance summary and tables, which we are providing pursuant to a request for confidentiality under Rule 418 promulgated under the Securities Act of 1933, as amended, and under Rule 83 of the Rules of Practice of the Commission (17 C.F.R. §200.83). Please note that we provided the partnership agreements for two of the funds to be included in the prior performance summary and tables in our letter dated August 23, 2005, which agreements were marked with identifying numbers KBS-000164 – KBS-000264 and KBS-000449 – KBS-000524 and which agreements are also the subject of a request for confidential treatment. Serving clients globally Securities and Exchange Commission November 4, 2005 Page 2 To assist you in your review of these agreements we have indicated in the table below (i) the sections of the agreements that address the investment discretion of the KBS general partner and (ii) all other sections addressing the rights of the partners with respect to assets purchased by the partnership. Fund Section of Partnership Agreement Related to Investment Decisions Other Rights of Limited Partners with Respect to Investments Separate Account 10/97 §2.3(a) – (e) – Investment Criteria and Investment Committee §4.2(b) – Approval of Contracts (KBS-000164 – KBS-000264) §4.1 – Management and Control Generally §4.9(b)(v) & (vi) – Major Decisions (First Amendment to Partnership Agreement – §2(a)(i) & (c)) §4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property §5.3 – Right to Cause Sale §4.6(b), (f), (g), (h) & (i) – Impermissible Investments §13.2(a) & (b) – Removal of Asset Manager §17.1(b) – General Partner’s Rights to Invest Separate Account 12/98 §4.1 – Management and Control Generally §4.10 – Conflicts of Interest (KBS-000449 – KBS-000524) §4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property §4.6(b), (f) & (g) – Impermissible Investments §16.1(b) – General Partner’s Rights to Invest Commingled Account 4/95 §4.1 – Management and Control Generally §4.9(a) – Voting Rights Regarding Lower-Tier Partnership (KBS-000526 – KBS-000708) §4.2(c) – Right to Acquire, Manage and Dispose of Property §4.9(c)(ii) – Major Decisions – Borrowing Funds §4.6(b) – Impermissible Investments §10.2 – Removal of General Partner without Cause §16.1(c) – General Partner’s Rights to Invest Securities and Exchange Commission November 4, 2005 Page 3 Fund Section of Partnership Agreement Related to Investment Decisions Other Rights of Limited Partners with Respect to Investments Commingled Account 5/95 §4.1 – Management and Control Generally §4.6(k), (l) & (m) – Impermissible Acts (KBS-000709 – KBS-000802) §4.2(c), (d) & (i) – Right to Acquire, Manage and Dispose of Property §4.9(c)(ii) – Major Decisions – Borrowing Funds §4.6(b), (c), (g), (h) & (i) – Impermissible Investments §10.2(a) – Removal of General Partner without Cause §4.11(a) – Limited Partner Advisory Committee – Advisory Only §16.1(b) – General Partner’s Rights to Invest Commingled Account 12/95 §4.1 – Management and Control Generally §4.9(c)(ii) – Major Decisions – Borrowing Funds (KBS-000803 – KBS-000895) §4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property §10.2(a) – Removal of General Partner without Cause §4.2(b) & (c) – Management Requirements and Equity Investments §4.6(b), (f), (g) & (h) – Impermissible Investments §4.11(a) – Limited Partner Advisory Committee – Advisory Only §16.1(b) – General Partner’s Rights to Invest Securities and Exchange Commission November 4, 2005 Page 4 Fund Section of Partnership Agreement Related to Investment Decisions Other Rights of Limited Partners with Respect to Investments Commingled Account 12/96 §4.1 – Management and Control Generally §4.9(c)(ii) – Major Decisions – Borrowing Funds (First Amendment to Partnership Agreement – §2(a) & (c)) (KBS-000896 – KBS-001000) §4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property §10.2(a) – Removal of General Partner without Cause §4.2(b) & (c) – Management Requirements & Equity Investments §4.6(b), (f), (g), (h) & (j) – Impermissible Investments §4.11(a) – Limited Partner Advisory Committee – Advisory Only §16.1(b) – General Partner’s Rights to Invest Commingled Account 6/98 §4.1 – Management and Control Generally §10.2(a) – Removal of General Partner without Cause (KBS-001001 – KBS-001086) §4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property §4.2(c) – Equity Investments §4.6(b), (f), (g) & (h) – Impermissible Investments §16.1(b) – General Partner’s Rights to Invest Commingled Account 6/99 §4.1 – Management and Control Generally (KBS-001087 – KBS-001157) §4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property §4.2(c) – Equity Investments Securities and Exchange Commission November 4, 2005 Page 5 Fund Section of Partnership Agreement Related to Investment Decisions Other Rights of Limited Partners with Respect to Investments §4.6(b), (f), (g) & (h) – Impermissible Investments §10.2(a) – Removal of General Partner without Cause §16.1(b) – General Partner’s Rights to Invest Separate Account 10/96 §4.1 – Management and Control Generally §4.9(b)(iii) – Major Decisions – Borrowing Funds (KBS-001158 – KBS-001221) §4.2(a)(iii) – Right to Acquire, Manage and Dispose of Property §4.6(b), (f) & (g) – Impermissible Investments §16.1(b) – General Partner’s Rights to Invest Please let us know if we can provide you with any additional information with respect to these partnerships. Very truly yours, /S/ CARRIE J. HARTLEY Carrie J. Hartley cc: Charles J. Schreiber, Jr., Chief Executive Officer KBS Real Estate Investment Trust, Inc.