**Exhibit 10.1**

ADVISORY AGREEMENT 

between 

KBS REAL ESTATE INVESTMENT TRUST, INC. 

and 

KBS CAPITALADVISORS LLC 

 

 

 

November 8, 2010 

 

TABLE OF CONTENTS

 
   **Page** 
ARTICLE 1 - DEFINITIONS
   1  
ARTICLE 2 - APPOINTMENT
   9  
ARTICLE 3 - DUTIES OF THE ADVISOR
   10  
3.01 Organizational and Offering Services
   10  
3.02 Acquisition Services
   10  
3.03 Asset Management Services
   11  
3.04 Stockholder Services
   13  
3.05 Other Services
   14  
ARTICLE 4 - AUTHORITY OF ADVISOR
   14  
4.01 General
   14  
4.02 Powers of the Advisor
   14  
4.03 Approval by the Board of Directors
   14  
4.04 Modification or Revocation of Authority of Advisor
   14  
ARTICLE 5 - BANK ACCOUNTS
   15  
ARTICLE 6 - RECORDS AND FINANCIAL STATEMENTS
   15  
ARTICLE 7 - LIMITATION ON ACTIVITIES
   15  
ARTICLE 8 - FEES
   16  
8.01 Acquisition Fees
   16  
8.02 Asset Management Fees
   16  
8.03 Disposition Fees
   18  
8.04 Subordinated Share of Cash Flows
   18  
8.05 Subordinated Incentive Fee
   19  
8.06 Changes to Fee Structure
   19  
ARTICLE 9 - EXPENSES
   19  
9.01 General
   19  
9.02 Timing of and Limitations on Reimbursements
   21  
ARTICLE 10 – VOTING AGREEMENT
   22  
ARTICLE 11 - RELATIONSHIP OF ADVISOR AND COMPANY; OTHER ACTIVITIES OF THE ADVISOR
   22  
11.01 Relationship
   22  
11.02 Time Commitment
   22  
11.03 Investment Opportunities and Allocation
   23  
ARTICLE 12 - THE KBS NAME
   23  
ARTICLE 13 - TERM AND TERMINATION OF THE AGREEMENT
   23  
13.01 Term
   23  
13.02 Termination by Either Party
   24  
13.03 Payments on Termination and Survival of Certain Rights and Obligations
   24  
ARTICLE 14 - ASSIGNMENT
   25  
ARTICLE 15 - INDEMNIFICATION AND LIMITATION OF LIABILITY
   25  
ARTICLE 16 - ADVANCE
   26  
ARTICLE 17 - MISCELLANEOUS
   26  
 
i 

17.01 Notices
   26  
17.02 Modification
   27  
17.03 Severability
   27  
17.04 Construction
   27  
17.05 Entire Agreement
   27  
17.06 Waiver
   27  
17.07 Gender
   27  
17.08 Titles Not to Affect Interpretation
   27  
17.09 Counterparts
   27  
 
ii 

 

ADVISORY AGREEMENT

This Advisory Agreement, dated as of November 8, 2010 (the “Agreement”), is between KBS Real Estate InvestmentTrust, Inc., a Maryland corporation (the “Company”), and KBS Capital Advisors LLC, a Delaware limited liability company (the “Advisor”). 

W I T N E S S E T H 

WHEREAS, the Company desires to avail itself of theknowledge, experience, sources of information, advice, assistance and certain facilities available to the Advisor and to have the Advisor undertake the duties and responsibilities hereinafter set forth, on behalf of, and subject to the supervisionof, the Board of Directors of the Company, all as provided herein; and 

WHEREAS, the Advisor is willing to undertake to rendersuch services, subject to the supervision of the Board of Directors of the Company, on the terms and conditions hereinafter set forth. 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto agree as follows: 

ARTICLE 1 

DEFINITIONS 

The following defined terms used in this Agreement shall have the meanings specified below: 

“Acquisition Expenses” means any and all expenses, excluding the fee payable to the Advisor pursuant to Section 8.01,incurred by the Company, the Advisor or any Affiliate of either in connection with the selection, acquisition or development of any property, loan or other potential investment, whether or not acquired or originated, as applicable, including,without limitation, legal fees and expenses, travel and communications expenses, costs of appraisals, nonrefundable option payments on properties or other investments not acquired, accounting fees and expenses, and title insurance premiums.

“Acquisition Fees” means the fee payable to the Advisor pursuant to Section 8.01 plus all other fees andcommissions, excluding Acquisition Expenses, paid by any Person to any Person in connection with making or investing in any Property, Loan or other Permitted Investment or the purchase, development or construction of any Property by the Company.Included in the computation of such fees or commissions shall be any real estate commission, selection fee, Development Fee, Construction Fee, nonrecurring management fee, loan fees or points or any fee of a similar nature, however designated.Excluded shall be Development Fees and Construction Fees paid to Persons not 

 
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Affiliated with the Advisor in connection with the actual development and construction of a Property. 

“Advance” shall have the meaning set forth in Article 16. 

“Advisor” means (i) KBS Capital Advisors LLC, a Delaware limited liability company, or (ii) any successor advisor tothe Company. 

“Affiliate or Affiliated.” An Affiliate of another Person includes any of the following: (i) anyPerson directly or indirectly controlling, controlled by, or under common control with such other Person; (ii) any Person directly or indirectly owning, controlling, or holding with the power to vote 10% or more of the outstanding votingsecurities of such other Person; (iii) any legal entity for which such Person acts as an executive officer, director, trustee, or general partner; (iv) any Person 10% or more of whose outstanding voting securities are directly orindirectly owned, controlled, or held, with power to vote, by such other Person; and (v) any executive officer, director, trustee, or general partner of such other Person. An entity shall not be deemed to control or be under common control withan Advisor-sponsored program unless (i) the entity owns 10% or more of the voting equity interests of such program or (ii) a majority of the board of directors (or equivalent governing body) of such program is composed of Affiliates of theentity. 

“Appraised Value” means the value according to an appraisal made by an Independent Appraiser. 

“Articles of Incorporation” means the Articles of Incorporation of the Company under Title 2 of the Corporations andAssociations Article of the Annotated Code of Maryland, as amended from time to time. 

“Asset Management Fee” shallhave the meaning set forth in Section 8.02. 

“Average Invested Assets” means, for a specified period, theaverage of the aggregate book value of the assets of the Company invested, directly or indirectly, in Properties, Loans and other Permitted Investments secured by real estate before reserves for depreciation or bad debts or other similar non-cashreserves, computed by taking the average of such values at the end of each month during such period. 

“Board ofDirectors” or “Board” means the persons holding such office, as of any particular time, under the Articles of Incorporation of the Company, whether they be the Directors named therein or additional or successor Directors. 

“Bylaws” means the bylaws of the Company, as amended from time to time. 

“Cash from Financings” means the net cash proceeds realized by the Company from the financing of Properties, Loans or otherPermitted Investments or from the refinancing of any Company indebtedness (after deduction of all expenses incurred in connection therewith). 

 
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“Cash from Salesand Settlements” means the net cash proceeds realized by the Company (i) from the sale, exchange or other disposition of any of its assets or any portion thereof after deduction of all expenses incurred in connection therewith and(ii) from the prepayment, maturity, workout or other settlement of any Loan or Permitted Investment or portion thereof after deduction of all expenses incurred in connection therewith. In the case of a transaction described in clause(i) (C) of the definition of “Sale” and (i)(B) of the definition of “Settlement,” Cash from Sales and Settlements means the proceeds of any such transaction actually distributed to the Company from the Joint Venture orpartnership. Cash from Sales and Settlements shall not include Cash from Financings. 

“Cash from Sales, Settlements andFinancings” means the total sum of Cash from Sales and Settlements and Cash from Financings. 

“Code” means theInternal Revenue Code of 1986, as amended from time to time, or any successor statute thereto. Reference to any provision of the Code shall mean such provision as in effect from time to time, as the same may be amended, and any successor provisionthereto, as interpreted by any applicable regulations as in effect from time to time. 

“Company” means KBS RealEstate Investment Trust, Inc., a corporation organized under the laws of the State of Maryland. 

“Competitive Real EstateCommission” means a real estate or brokerage commission for the purchase or sale of property that is reasonable, customary, and competitive in light of the size, type, and location of the property. 

“Conflicts Committee” shall have the meaning set forth in the Company’s Articles of Incorporation. 

“Construction Fee” means a fee or other remuneration for acting as general contractor and/or construction manager to constructimprovements, supervise and coordinate projects or to provide major repairs or rehabilitation on a Property. 

“ContractSales Price” means the total consideration received by the Company for the sale of a Property, Loan or other Permitted Investment. 

“Cost of JV Investment” shall equal the product of (i) the amount actually paid or allocated to the purchase, development, construction or improvement of Properties by the New Leaf –KBS JV, LLC, inclusive of fees and expenses related thereto, and the amount of any outstanding debt associated with such Properties and the venture and (ii) the percentage that represents the Company’s economic interest in New Leaf –KBS JV, LLC. 

“Cost of Real Estate Investments” means the sum of (i) with respect to Properties wholly owned,directly or indirectly, by the Company, the amount actually paid or allocated to the purchase, development, construction or improvement of Properties, inclusive of fees and expenses related thereto, plus the amount of any outstanding debt

 
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attributable to such Properties and (ii) in the case of Properties owned by any Joint Venture or partnership in which the Company or the Partnership is, directly or indirectly, a co-ventureror partner, the portion of the amount actually paid or allocated to the purchase, development, construction or improvement of Properties, inclusive of fees and expenses related thereto, plus the amount of any outstanding debt associated with suchProperties that is attributable to the Company’s investment in the Joint Venture or partnership. 

“Cost of Loans andother Permitted Investments” means the sum of the cost of all Loans and Permitted Investments held, directly or indirectly, by the Company or the Partnership, calculated each month on an ongoing basis, and calculated as follows for eachinvestment: the lesser of (i) the amount actually paid or allocated to acquire or fund the Loan or Permitted Investment (inclusive of fees and expenses related thereto and the amount of any debt associated with or used to acquire or fund suchinvestment) and (ii) the outstanding principal amount of such Loan or Permitted Investment (plus the fees and expenses related to the acquisition or funding of such investment), as of the time of calculation. With respect to any Loan orPermitted Investment held by the Company or the Partnership through a Joint Venture or partnership of which it is, directly or indirectly, a co-venturer or partner, such amount shall be the Company’s proportionate share thereof. 

“Dealer Manager” means (i) KBS Capital Markets Group LLC, a Delaware limited liability company, or (ii) any successordealer manager to the Company. 

“Development Fee” means a fee for the packaging of a Property, including negotiatingand approving plans, and undertaking to assist in obtaining zoning and necessary variances and necessary financing for the Property, either initially or at a later date. 

“Director” means a member of the Board of Directors of the Company. 

“Disposition Fee” shall have the meaning set forth in Section 8.03. 

“Distributions” means any distributions of money or other property by the Company to owners of Shares, including distributionsthat may constitute a return of capital for federal income tax purposes. 

“Funds from Operations” means funds fromoperations as defined by NAREIT plus (i) any Acquisition Expenses and Acquisition Fees expensed by the Company and that are related to any Property, Loan or other Permitted Investment acquired or expected to be acquired by the Company and(ii) any non-operating non-cash charges incurred by the Company, such as impairments of Property or Loans, any other than temporary impairments of marketable securities, or other similar charges. 

“GAAP” means accounting principals generally accepted in the United States. 

 
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“GrossProceeds” means the aggregate purchase price of all Shares sold for the account of the Company through an Offering, without deduction for Organization and Offering Expenses. 

“Independent Appraiser” means a person or entity with no material current or prior business or personal relationship with theAdvisor or the Directors, who is engaged to a substantial extent in the business of rendering opinions regarding the value of assets of the type held by the Company, and who is a qualified appraiser of real estate as determined by the Board.Membership in a nationally recognized appraisal society such as the American Institute of Real Estate Appraisers (“M.A.I.”) or the Society of Real Estate Appraisers (“S.R.E.A.”) shall be conclusive evidence of such qualification.

“Invested Capital” means the amount calculated by multiplying the total number of Shares purchased by Stockholdersby the issue price, reduced by any amounts paid by the Company to repurchase Shares pursuant to the Company’s plan for redemption of Shares. 

“Joint Venture” means any joint venture, limited liability company or other Affiliate of the Company that owns, in whole or in part, on behalf of the Company any Properties, Loans or otherPermitted Investments. 

“Listed” or “Listing” shall have the meaning set forth in the Company’sArticles of Incorporation. 

“Loans” means mortgage loans and other types of debt financing investments made by theCompany or the Partnership, either directly or indirectly, including through ownership interests in a Joint Venture or partnership, and including, without limitation, mezzanine loans, B-notes, bridge loans, convertible mortgages, wraparound mortgageloans, construction mortgage loans, loans on leasehold interests, and participations in such loans. 

“NASAAGuidelines” means the NASAA Statement of Policy Regarding Real Estate Investment Trusts as in effect on the date hereof. 

“New Leaf-KBS Management Fee” has the meaning set forth in Section 8.02(ii). 

“Net Income” means, for any period, the total revenues applicable to such period, less the total expenses applicable to suchperiod excluding additions to reserves for depreciation, bad debts or other similar non-cash reserves; provided, however, Net Income for purposes of calculating total allowable Operating Expenses (as defined herein) shall exclude the gain from thesale of the Company’s assets. 

“Offering” means any offering of Shares that is registered with the SEC,excluding Shares offered under any employee benefit plan. 

“Operating Cash Flow” means Operating Revenue Cash Flowsminus the sum of (i) Operating Expenses, (ii) all principal and interest payments on indebtedness and other sums paid to lenders, (iii) the expenses of raising capital such as Organization and

 
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Offering Expenses, legal, audit, accounting, underwriting, brokerage, listing, registration, and other fees, printing and other such expenses and tax incurred in connection with the issuance,distribution, transfer, registration and Listing of the Shares, (iv) taxes, (v) incentive fees paid in compliance with Section IV.F. of the NASAA Guidelines and (vi) Acquisition Fees, Acquisition Expenses, real estate commissions onthe resale of property, and other expenses connected with the acquisition, disposition, and ownership of real estate interests, loans or other property (such as the costs of foreclosure, insurance premiums, legal services, maintenance, repair andimprovement of property). 

“Operating Expenses” means all costs and expenses incurred by the Company, as determinedunder GAAP, that in any way are related to the operation of the Company or to Company business, including fees paid to the Advisor, but excluding (i) 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 tax incurred in connection with the issuance, distribution, transfer, registration and Listing of the Shares, (ii) interestpayments, (iii) taxes, (iv) non-cash expenditures such as depreciation, amortization and bad loan reserves, (v) incentive fees paid in compliance with Section IV.F. of the NASAA Guidelines and (vi) Acquisition Fees, AcquisitionExpenses, real estate commissions on the resale of property, and other expenses connected with the acquisition, disposition, and ownership of real estate interests, mortgage loans or other property (such as the costs of foreclosure, insurancepremiums, legal services, maintenance, repair and improvement of property). 

“Operating Revenue Cash Flows” meansthe Company’s cash flow from ownership and/or operation of (i) Properties, (ii) Loans, (iii) Permitted Investments, (iv) short-term investments, and (v) interests in Properties, Loans and Permitted Investments owned byany Joint Venture or any partnership in which the Company or the Partnership is, directly or indirectly, a co-venturer or partner. 

“Organization and Offering Expenses” means all expenses incurred by or on behalf of the Company in connection with or in preparing the Company for registration of and subsequently offering anddistributing its Shares to the public, whether incurred before or after the date of this Agreement, which may include but are not limited to, total underwriting and brokerage discounts and commissions (including fees of the underwriters’attorneys); any expense allowance granted by the Company to the underwriter or any reimbursement of expenses of the underwriter by the Company; expenses for printing, engraving and mailing; compensation of employees while engaged in sales activity;charges of transfer agents, registrars, trustees, escrow holders, depositaries and experts; and expenses of qualification of the sale of the securities under Federal and State laws, including taxes and fees, accountants’ and attorneys’fees. 

“Partnership” means KBS Limited Partnership, a Delaware limited partnership formed to own and operateProperties, Loans and other Permitted Investments on behalf of the Company. 

“Performance Fee” has the meaning setforth in Section 8.02(ii). 

 
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“PermittedInvestments” means all investments (other than Properties and Loans) in which the Company may acquire an interest, either directly or indirectly, including through ownership interests in a Joint Venture or partnership, pursuant to its Articlesof Incorporation, Bylaws and the investment objectives and policies adopted by the Board from time to time, other than short-term investments acquired for purposes of cash management. 

“Person” means an individual, corporation, partnership, estate, trust (including a trust qualified under Section 401(a) or501(c) (17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of theCode, joint stock company or other entity, or any government or any agency or political subdivision thereof, and also includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.

“Property” or “Properties” means any real property or properties transferred or conveyed to the Companyor the Partnership, either directly or indirectly, and/or any real property or properties transferred or conveyed to a Joint Venture or partnership in which the Company is, directly or indirectly, a co-venturer or partner. 

“Property Manager” means an entity that has been retained to perform and carry out at one or more of the Propertiesproperty-management services, excluding persons, entities or independent contractors retained or hired to perform facility management or other services or tasks at a particular Property, the costs for which are passed through to and ultimately paidby the tenant at such Property. 

“Registration Statement” means the registration statement filed by the Company withthe SEC on Form S-11 (Reg. No. 333-126087), as amended from time to time, in connection with the initial public offering of the Company’s Shares. 

“REIT” means a “real estate investment trust” under Sections 856 through 860 of the Code. 

“Sale or Sales” means (i) any transaction or series of transactions whereby: (A) the Company or the Partnership sells, grants, transfers, conveys, or relinquishes its ownership of anyProperty, Loan or other Permitted Investment or portion thereof, including the transfer of any Property that is the subject of a ground lease, and including any event with respect to any Property, Loan or other Permitted Investment that gives riseto a significant amount of insurance proceeds or condemnation awards; (B) the Company or the Partnership sells, grants, transfers, conveys, or relinquishes its ownership of all or substantially all of the interest of the Company or thePartnership in any Joint Venture or partnership in which it is, directly or indirectly, a co-venturer or partner; or (C) any Joint Venture or partnership (in which the Company or the Partnership as a co-venturer or partner) sells, grants,transfers, conveys, or relinquishes its ownership of any Property, Loan or other Permitted Investment or portion thereof, including any event with respect to any Property, Loan or other Permitted Investment that gives rise to insurance claims orcondemnation awards, but (ii) not including any transaction or series of transactions 

 
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specified in clause (i) (A), (i) (B), or (i) (C) above in which the proceeds of such transaction or series of transactions are reinvested in one or more Properties, Loans orother Permitted Investments within 180 days thereafter. 

“SEC” means the United States Securities and ExchangeCommission. 

“Settlement” means (i) the prepayment, maturity, workout or other settlement of any Loan or otherPermitted Investment or portion thereof owned, directly or indirectly, by (A) the Company or the Partnership or (B) any Joint Venture or any partnership in which the Company or the Partnership is, directly or indirectly, a partner, but(ii) not including any transaction or series of transactions specified in clause (i) (A) or (i) (B) above in which the proceeds of such prepayment, maturity, workout or other settlement are reinvested in one or moreProperties, Loans or other Permitted Investments within 180 days thereafter. 

“Shares” means the shares of commonstock of the Company, par value $.01 per share. 

“Stockholders” means the registered holders of the Shares.

“Stockholders’ 8% Return” means, as of any date, an aggregate amount equal to an 8% cumulative,non-compounded, annual return on Invested Capital (calculated like simple interest on a daily basis based on a three hundred sixty-five day year). For purposes of calculating the Stockholders’ 8% Return, Invested Capital shall be determined foreach day during the period for which the Stockholders’ 8% Return is being calculated and shall be calculated net of (1) Distributions of Operating Cash Flow to the extent such Distributions of Operating Cash Flow provide a cumulative,non-compounded, annual return in excess of 8%, as such amounts are computed on a daily basis based on a three hundred sixty-five day year and (2) Distributions of Cash from Sales, Settlements and Financings, except to the extent suchDistributions would be required to supplement Distributions of Operating Cash Flow in order to achieve a cumulative, non-compounded, annual return of 8%, as such amounts are computed on a daily basis based on a three hundred sixty-five day year.

“Subordinated Incentive Fee” means the fee payable to the Advisor under certain circumstances if the Shares areListed, as calculated in Section 8.05. 

“Subordinated Performance Fee Due Upon Termination” means a fee payablein the form of an interest bearing promissory note (the “Performance Fee Note”) in a principal amount equal to (1) 15% of the amount, if any, by which (a) the Appraised Value of the Company’s Properties at the TerminationDate, less amounts of all indebtedness secured by the Company’s Properties, plus the fair market value of all other Loans and Permitted Investments of the Company at the Termination Date, less amounts of indebtedness related to such Loans andPermitted Investments, plus total Distributions (excluding any stock dividend) through the Termination Date exceeds (b) the sum of Invested Capital plus total Distributions required to be made to the stockholders in order to pay theStockholders’ 8% Return from inception through the Termination Date less (2)

 
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any prior payment to the Advisor of a Subordinated Share of Cash Flows. Interest on the Performance Fee Note will accrue beginning on the Termination Date at a rate deemed fair and reasonable bythe Conflicts Committee. The Company shall repay the Performance Fee Note at such time as the Company completes the first Sale or Settlement after the Termination Date using Cash from Sales and Settlements. If the Cash from Sales and Settlementsfrom the first Sale or Settlement after the Termination Date is insufficient to pay the Performance Fee Note in full, including accrued interest, then the Performance Fee Note shall be paid in part from the Cash from Sales and Settlements from thefirst Sale or Settlement, and in part from the Cash from Sales and Settlements from each successive Sale or Settlement until the Performance Fee Note is repaid in full, with interest. If the Performance Fee Note has not been paid in full within fiveyears from the Termination Date, then the Advisor, its successors or assigns, may elect to convert the balance of the fee, including accrued but unpaid interest, into Shares at a price per Share equal to the average closing price of the Shares overthe ten trading days immediately preceding the date of such election if the Shares are Listed at such time. If the Shares are not Listed at such time, the Advisor, its successors or assigns, may elect to convert the balance of the fee, includingaccrued but unpaid interest, into Shares at a price per Share equal to the fair market value for the Shares as determined by the Board of Directors based upon the Appraised Value of Company’s Properties on the date of election plus the fairmarket value of all other Loans and Permitted Investments of the Company on the date of election. 

“Subordinated Share ofCash Flows” has the meaning set forth in Section 8.04. 

“Termination Date” means the date of terminationof the Agreement determined in accordance with Article 13 hereof. 

“2%/25% Guidelines” means the requirementpursuant to the NASAA Guidelines that, in any period of four consecutive fiscal quarters, total Operating Expenses not exceed the greater of 2% of the Company’s Average Invested Assets during such 12-month period or 25% of the Company’sNet Income over the same 12-month period. 

“7% Return” has the meaning set forth in Section 8.02(ii).

ARTICLE 2 

APPOINTMENT 

The Company hereby appoints the Advisor to serve as its advisor andasset manager on the terms and conditions set forth in this Agreement, and the Advisor hereby accepts such appointment. 

 
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ARTICLE 3 

DUTIES OF THE ADVISOR 

The Advisor is responsible for managing, operating, directing and supervising the operations and administration of the Company and its assets. The Advisor undertakes to use its best efforts to present tothe Company potential investment opportunities and to provide the Company with a continuing and suitable investment program consistent with the investment objectives and policies of the Company as determined and adopted from time to time by theBoard of Directors. Subject to the limitations set forth in this Agreement, including Article 4 hereof, and the continuing and exclusive authority of the Board of Directors over the management of the Company, the Advisor shall, either directly or byengaging an Affiliate or third party, perform the following duties: 

3.01 Organizational and Offering Services.  TheAdvisor shall perform all services related to the organization of the Company or any Offering or private sale of the Company’s securities, other than services that (i) are to be performed by the Dealer Manager, (ii) the Company electsto perform directly or (iii) would require the Advisor to register as a broker-dealer with the SEC or any state. 

3.02Acquisition Services. 

(i)  Serve as the Company’s investment and financial advisor and providerelevant market research and economic and statistical data in connection with the Company’s assets and investment objectives and policies; 

(ii)  Subject to Section 4 hereof and the investment objectives and policies of the Company: (a) locate, analyze and select potential investments; (b) structure and negotiate the termsand conditions of transactions pursuant to which investments in Properties, Loans and other Permitted Investments will be made; (c) acquire, originate and dispose of Properties, Loans and other Permitted Investments on behalf of the Company;(d) arrange for financing and refinancing and make other changes in the asset or capital structure of investments in Properties, Loans and other Permitted Investments; and (e) enter into leases, service contracts and other agreements forProperties, Loans and other Permitted Investments; 

(iii)  Perform due diligence on prospectiveinvestments and create due diligence reports summarizing the results of such work; 

(iv)  Prepare reportsregarding prospective investments that include recommendations and supporting documentation necessary for the Directors to evaluate the proposed investments; 

(v)  Obtain reports (which may be prepared by the Advisor or its Affiliates), where appropriate, concerning the value of contemplated investments of the Company; 

 
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(vi)  Deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with theCompany’s investments; and 

(vii)  Negotiate and execute approved investments and othertransactions, including prepayments, maturities, workouts and other settlements of Loans and other Permitted Investments. 

3.03 Asset Management Services. 

(i)  Real Estate and Related Services: 

(a) Investigate, select and, on behalf of the Company, engage and conduct business with (including enter contracts with) such Persons as the Advisor deems necessary to the proper performance of its obligations as set forth in this Agreement, includingbut not limited to consultants, accountants, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, developers, constructioncompanies, Property Managers and any and all Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services; 

(b)  Negotiate and service the Company’s debt facilities and other financings; 

(c)  Monitor applicable markets and obtain reports (which may be prepared by the Advisor or its Affiliates) whereappropriate, concerning the value of investments of the Company; 

(d)  Monitor and evaluate theperformance of each asset of the Company and the Company’s overall portfolio of assets, provide daily management services to the Company and perform and supervise the various management and operational functions related to the Company’sinvestments; 

(e)  Formulate and oversee the implementation of strategies for the administration,promotion, management, operation, maintenance, improvement, financing and refinancing, marketing, leasing and disposition of Properties, Loans and other Permitted Investments on an overall portfolio basis; 

(f)  Consult with the Company’s officers and the Board of Directors and assist the Board in the formulation andimplementation of the Company’s financial policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Company and inconnection with any borrowings proposed to be undertaken by the Company; 

 
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(g)  Oversee the performance by the Property Managers of their duties, including collection and proper deposits ofrental payments and payment of Property expenses and maintenance; 

(h)  Conduct periodic on-site propertyvisits to some or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Managers; 

(i)  Review, analyze and comment upon the operating budgets, capital budgets and leasing plans prepared andsubmitted by each Property Manager and aggregate these property budgets into the Company’s overall budget; 

(j)  Coordinate and manage relationships between the Company and any co-venturers or partners; and 

(k)  Consult with the Company’s officers and Board of Directors and provide assistance with the evaluation andapproval of potential asset dispositions, sales and refinancings. 

(ii)  Accounting and OtherAdministrative Services: 

(a)  Provide the day-to-day management of the Company and perform and supervisethe various administrative functions reasonably necessary for the management of the Company; 

(b)  Fromtime to time, or at any time reasonably requested by the Board, make reports to the Board on the Advisor’s performance of services to the Company under this Agreement; 

(c)  Make reports to the Conflicts Committee each quarter of the investments that have been made by other programssponsored by the Advisor or any of its Affiliates, including KBS Realty Advisors LLC, as well as any investments that have been made by the Advisor or any of its Affiliates directly; 

(d)  Provide or arrange for any administrative services and items, legal and other services, office space, officefurnishings, personnel and other overhead items necessary and incidental to the Company’s business and operations; 

(e)  Provide financial and operational planning services; 

(f)  Maintain accounting and other record-keeping functions at the Company level and the investment levels,including information concerning the activities of the Company as shall be required to prepare and to file all periodic financial reports, tax returns and any other 

 
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information required to be filed with the SEC, the Internal Revenue Service and any other regulatory agency; 

(g)  Maintain and preserve all appropriate books and records of the Company; 

(h)  Provide tax and compliance services and coordinate with appropriate third parties, including the Company’sindependent auditors and other consultants, on related tax matters; 

(i)  Provide the Company with allnecessary cash management services; 

(j)  Manage and coordinate with the transfer agent the dividendprocess and payments to Stockholders; 

(k)  Consult with the Company’s officers and Board ofDirectors and assist the Board in evaluating and obtaining adequate insurance coverage based upon risk management determinations; 

(l)  Provide the Company’s officers and Board of Directors with timely updates related to the overall regulatory environment affecting the Company, as well as managing compliance with suchmatters, including but not limited to compliance with the Sarbanes-Oxley Act of 2002; 

(m)  Consult withthe Company’s officers and Board of Directors relating to the corporate governance structure and appropriate policies and procedures related thereto; 

(n)  Perform all reporting, record keeping, internal controls and similar matters in a manner to allow the Company to comply with applicable law, including federal and state securities laws and theSarbanes-Oxley Act of 2002; 

(o)  Notify the Board of Directors of all proposed material transactionsbefore they are completed; and 

(p)  Do all things necessary to assure its ability to render the servicesdescribed in this Agreement. 

3.04 Stockholder Services. 

(i)  Manage services for and communications with Stockholders, including answering phone calls, preparing andsending written and electronic reports and other communications; 

(ii)  Oversee the performance of thetransfer agent and registrar; and 

 
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(iii) Establish technology infrastructure to assist in providing Stockholder support and service. 

3.05 Other Services. Exceptas provided in Article 7, the Advisor shall perform any other services reasonably requested by the Company (acting through the Conflicts Committee). 

ARTICLE 4 

AUTHORITY OF ADVISOR 

4.01 General.  All rights and powers to manage and control the day-to-day business and affairs of the Company shall be vested in theAdvisor. The Advisor shall have the power to delegate all or any part of its rights and powers to manage and control the business and affairs of the Company to such officers, employees, Affiliates, agents and representatives of the Advisor or theCompany as it may deem appropriate. Any authority delegated by the Advisor to any other Person shall be subject to the limitations on the rights and powers of the Advisor specifically set forth in this Agreement or the Articles of Incorporation ofthe Company. 

4.02 Powers of the Advisor. Subject to the express limitations set forth in this Agreement and the continuingand exclusive authority of the Board of Directors over the management of the Company, the power to direct the management, operation and policies of the Company shall be vested in the Advisor, which shall have the power by itself and shall beauthorized and empowered on behalf and in the name of the Company to carry out any and all of the objectives and purposes of the Company and to perform all acts and enter into and perform all contracts and other undertakings that it may in its solediscretion deem necessary, advisable or incidental thereto to perform its obligations under this Agreement. 

4.03 Approval bythe Board of Directors. Notwithstanding the foregoing, the Advisor may not take any action on behalf of the Company without the prior approval of the Board of Directors or duly authorized committees thereof if the Articles of Incorporation orMaryland General Corporation Law require the prior approval of the Board of Directors. The Advisor will deliver to the Board of Directors all documents required by it to evaluate a proposed investment (and any related financing). 

4.04 Modification or Revocation of Authority of Advisor. The Board of Directors may, at any time upon the giving of notice to theAdvisor, modify or revoke the authority or approvals set forth in Article 3 and this Article 4 hereof; provided, however, that such modification or revocation shall be effective upon receipt by the Advisor and shall not be applicable to investmenttransactions to which the Advisor has committed the Company prior to the date of receipt by the Advisor of such notification. 

 
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ARTICLE 5 

BANK ACCOUNTS 

The Advisor may establish and maintain one or more bank accounts in its own name for the account of the Company or in the name of theCompany and may collect and deposit into any such account or accounts, and disburse from any such account or accounts, any money on behalf of the Company, under such terms and conditions as the Board of Directors may approve, provided that no fundsshall be commingled with the funds of the Advisor. The Advisor shall from time to time render appropriate accountings of such collections and payments to the Board and the independent auditors of the Company. 

ARTICLE 6 

RECORDS AND FINANCIAL STATEMENTS 

The Advisor, in the conduct of its responsibilities to the Company, shall maintain adequate and separate books and records for the Company’s operations in accordance with GAAP, which shall besupported by sufficient documentation to ascertain that such books and records are properly and accurately recorded. Such books and records shall be the property of the Company and shall be available for inspection by the Board and by counsel,auditors and other authorized agents of the Company, at any time or from time to time during normal business hours. Such books and records shall include all information necessary to calculate and audit the fees or reimbursements paid under thisAgreement. The Advisor shall utilize procedures to attempt to ensure such control over accounting and financial transactions as is reasonably required to protect the Company’s assets from theft, error or fraudulent activity. All financialstatements that the Advisor delivers to the Company shall be prepared on an accrual basis in accordance with GAAP, except for special financial reports that by their nature require a deviation from GAAP. The Advisor shall liaise with theCompany’s officers and independent auditors and shall provide such officers and auditors with the reports and other information that the Company so requests. 

ARTICLE 7 

LIMITATION ON ACTIVITIES 

Notwithstanding any provision in this Agreement to the contrary, the Advisor shall not take any action that, in its sole judgment made ingood faith, would (i) adversely affect the ability of the Company to qualify or continue to qualify as a REIT under the Code, (ii) subject the Company to regulation under the Investment Company Act of 1940, as amended, (iii) violateany law, rule, regulation or statement of policy of any governmental body or agency having jurisdiction over the Company, its Shares or its other securities, (iv) require the Advisor to register as a broker-dealer with the SEC or any state, or(v) violate the Articles of Incorporation or Bylaws. In the event an action 

 
15 

that would violate (i) through (v) of the preceding sentence but such action has been ordered by the Board of Directors of the Company, the Advisor shall notify the Board of Directorsof the Advisor’s judgment of the potential impact of such action and shall refrain from taking such action until it receives further clarification or instructions from the Board of Directors. In such event, the Advisor shall have no liabilityfor acting in accordance with the specific instructions of the Board of Directors so given. 

ARTICLE 8 

FEES 

8.01Acquisition Fees. As compensation for the investigation, selection and acquisition (by purchase, investment or exchange) of Properties, Loans and other Permitted Investments, the Company shall pay Acquisition Fees to the Advisor for each suchinvestment. With respect to the acquisition of a Property to be wholly owned by the Company, the Acquisition Fee payable to the Advisor shall equal 0.75% of the sum of the amount actually paid or allocated to the purchase, development, constructionor improvement of such Property, inclusive of the Acquisition Expenses associated with such Property, and the amount of any debt attributable to such Property. With respect to Loans and other Permitted Investments, the Acquisition Fee payable to theAdvisor shall equal 0.75% of the cost of such investment, inclusive of Acquisition Expenses associated with such investment and the amount of any debt attributable to such investment. With respect to the acquisition of Properties, Loans or otherPermitted Investments through any Joint Venture or partnership in which the Company is a co-venturer or partner, the Acquisition Fee payable to the Advisor shall equal 0.75% of (i) with respect to Properties, the portion of the amount actuallypaid or allocated to the purchase, development, construction or improvement of the Property, inclusive of the Acquisition Expenses associated with such Property, plus the amount of any outstanding debt associated with such property that isattributable to the Company’s investment in the Joint Venture or partnership and (ii) with respect to Loans and other Permitted Investments, the cost of such investment, inclusive of Acquisition Expenses associated with such investment andthe amount of any debt attributable to such investment that is attributable to the Company’s investment in the Joint Venture or partnership. Notwithstanding anything herein to the contrary, the payment of Acquisition Fees by the Company shallbe subject to the limitations contained in the Company’s Articles of Incorporation. The Advisor shall submit an invoice to the Company following the closing or closings of each acquisition, accompanied by a computation of the Acquisition Fee.The Acquisition Fee payable to the Advisor shall be paid at the closing of the acquisition upon receipt of the invoice by the Company. 

8.02 Asset Management Fees. 

(i)  Except as provided inSections 8.02(ii) and 8.02(iii) hereof, the Company shall pay the Advisor as compensation for the services described in Section 3.03 hereof a monthly fee (the “Asset Management Fee”) in an amount equal to one-twelfth of 0.75% of thesum of the Cost of Real Estate Investments 

 
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and the Cost of Loans and other Permitted Investments. The Advisor shall submit a monthly invoice to the Company, accompanied by a computation of the Asset Management Fee for the applicableperiod. The Asset Management Fee shall be payable on the last day of such month, or the first business day following the last day of such month. The Asset Management Fee may or may not be taken, in whole or in part, as to any period in the solediscretion of the Advisor. All or any portion of the Asset Management Fees not paid as to any period shall be deferred without interest and may be taken in such other fiscal period as the Advisor shall determine. 

(ii)  The Asset Management Fee described in Section 8.02(i) hereof is not payable with respect to theCompany’s investment in the New Leaf – KBS JV, LLC and Cost of Real Estate Investments as used in Section 8.02(i) shall not include the Company’s allocable portion of its investment in the New Leaf – KBS JV, LLC. Instead,and except as provided in Section 8.02(iii) hereof, with respect to the Company’s investment in the New Leaf – KBS JV, LLC, the Company shall pay the Advisor a separate management fee (the “New Leaf-KBS Management Fee”). TheNew Leaf-KBS Management Fee shall be a monthly fee in an amount equal to 1/12 of 0.27% of Cost of JV Investment. The Advisor shall submit a monthly invoice to the Company, accompanied by a computation of the New Leaf-KBS Management Fee for theapplicable period. The New Leaf-KBS Management Fee shall be payable on the last day of such month, or the first business day following the last day of such month. The New Leaf-KBS Management Fee may or may not be taken, in whole or in part, as toany period in the sole discretion of the Advisor. All or any portion of the New Leaf-KBS Management Fee not paid as to any period shall be deferred without interest and may be taken in such other fiscal period as the Advisor shall determine.

In addition, if at any time during the Company’s ownership of an interest in the New Leaf – KBS JV,LLC, the Company’s Funds from Operations for the period commencing January 1, 2006 through the date of any such calculation exceed an amount that is equal to a 7.0% cumulative, non-compounded, annual return on Invested Capital for theCompany’s Stockholders for the period from July 18, 2006 through the date of such reimbursement (the “7% Return”), then as of the date of such calculation the Advisor shall earn a fee (the “Performance Fee”) in anamount that would make the Advisor’s cumulative fees related to the Company’s investment in the New Leaf – KBS JV, LLC (including the New Leaf-KBS Management Fee set forth above and any Performance Fee amounts already paid) equal to0.75% of the Cost of JV Investment on an annualized basis from the date of the Company’s investment in the New Leaf – KBS JV, LLC through the date of calculation, provided that on any calculation date the Advisor shall earn only theportion of this amount that is available from the Company’s positive Funds from Operations for the period commencing January 1, 2006 through the date of any such calculation less the 7% Return. 

 
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Notwithstanding anything contained in this Section 8.02(ii), no Performance Fee will be earned unless and until theAdvance described in Article 16 hereof, as amended in the future, has been repaid in full. 

(iii) Notwithstanding anything contained in Sections 8.02(i) and 8.02(ii) to the contrary, a Property (including the New Leaf – KBS JV, LLC investment), Loan or other Permitted Investment that has suffered an impairment in value, reduction incash flow or other negative circumstances may either be excluded from the calculation of the Cost of Real Estate Investments, the Cost of Loans and other Permitted Investments or the Cost of JV Investment or included in such calculation at a reducedvalue that is recommended by the Advisor and the Company’s management and then approved by a majority of the Company’s independent directors, and the resulting change in the fee with respect to such investment will be applicable upon theearlier to occur of the date on which (i) such investment is sold, (ii) such investment is surrendered to a Person other than the Company, its direct or indirect wholly owned subsidiary or a Joint Venture or partnership in which theCompany has an interest, (iii) the Advisor determines that it will no longer pursue collection or other remedies related to such investment, or (iv) the Advisor recommends a revised fee arrangement with respect to such investment.

8.03 Disposition Fees.  If the Advisor or any of its Affiliates provide a substantial amount of services (as determinedby the Conflicts Committee) in connection with a Sale, the Advisor or such Affiliate shall receive a fee at the closing (the “Disposition Fee”) equal to 1.0% of the Contract Sales Price; provided, however, that no Disposition Fee shall bepayable to the Advisor for any Sale if such Sale involves the Company selling all or substantially all of its assets in one or more transactions designed to effectuate a business combination transaction (as opposed to a Company liquidation, in whichcase the Disposition Fee would be payable if the Advisor or an Affiliate provides a substantial amount of services as provided above). Any Disposition Fee payable under this Section 8.03 may be paid in addition to commissions paid tonon-Affiliates, provided that the total commissions (including such Disposition Fee) paid to all Persons by the Company for each Sale shall not exceed an amount equal to the lesser of (i) 6.0% of the aggregate Contract Sales Price of eachProperty, Loan or other Permitted Investment or (ii) the Competitive Real Estate Commission for each Property, Loan or other Permitted Investment. Substantial assistance in connection with the Sale of a Property includes the Advisor’spreparation 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 othersubstantial services performed by the Advisor in connection with a Sale. 

8.04 Subordinated Share of Cash Flows.  TheSubordinated Share of Cash Flows shall be payable to the Advisor in an amount equal to 15% of Operating Cash Flow and Cash from Sales, Settlements and Financings remaining after the Stockholders have received Distributions of Operating Cash Flow andof Cash from Sales, Settlements and Financings such that the owners of all outstanding Shares have received Distributions in 

 
18 

an aggregate amount equal to the sum of: 

 
 a.the Stockholders’ 8% Return and  b.Invested Capital. 
When determining whether theabove threshold has been met: 

 
 (A)Any stock dividend shall not be included as a Distribution; and 
 
 (B)Distributions paid on Shares redeemed by the Company (and thus no longer included in the determination of Invested Capital), shall not be included as a Distribution.
Following Listing, no Subordinated Share of Cash Flows will be paid to the Advisor. 

8.05 Subordinated Incentive Fee.  Upon Listing, the Advisor shall be entitled to the Subordinated Incentive Fee in an amount equalto 15.0% of the amount by which (i) the market value of the outstanding Shares of the Company, measured by taking the average closing price or the average of the bid and asked price, as the case may be, over a period of 30 days during which theShares are traded, with such period beginning 180 days after Listing (the “Market Value”), plus the total of all Distributions paid to Stockholders (excluding any stock dividends) from the Company’s inception until the date thatMarket Value is determined, exceeds (ii) the sum of (A) 100% of Invested Capital and (B) the total Distributions required to be paid to the Stockholders in order to pay the Stockholders’ 8% Return from inception through the dateMarket Value is determined. The Company shall have the option to pay such fee in the form of cash, Shares, a promissory note or any combination of the foregoing. The Subordinated Incentive Fee will be reduced by the amount of any prior payment tothe Advisor of a Subordinated Share of Cash Flows. In the event the Subordinated Incentive Fee is paid to the Advisor following Listing, no other performance fee will be paid to the Advisor. 

8.06 Changes to Fee Structure.  In the event of Listing, the Company and the Advisor shall negotiate in good faith to establish afee structure appropriate for a perpetual-life entity. 

ARTICLE 9 

EXPENSES 

9.01General.  In addition to the compensation paid to the Advisor pursuant to Article 8 hereof, the Company shall pay directly or reimburse the Advisor for all of the expenses paid or incurred by the Advisor or its Affiliates on behalf of theCompany or in connection with the services provided to the Company pursuant to this Agreement, including, but not limited to: 

 
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(i) All Organization and Offering Expenses; provided, however, that the Company shall not reimburse the Advisor to the extent such reimbursement would cause the total amount spent by the Company on Organization and Offering Expenses to exceed 15%of the Gross Proceeds raised as of the date of the reimbursement and provided further that within 60 days after the end of the month in which an Offering terminates, the Advisor shall reimburse the Company to the extent the Company incurredOrganization and Offering Expenses exceeding 15% of the Gross Proceeds raised in the completed Offering; the Company shall not reimburse the Advisor for any Organization and Offering Expenses that the Conflicts Committee determines are not fair andcommercially reasonable to the Company. 

(ii)  Acquisition Fees and Acquisition Expenses incurred inconnection with the selection and acquisition of Properties, Loans and other Permitted Investments, including such expenses incurred related to assets pursued or considered but not ultimately acquired by the Company, provided that, notwithstandinganything herein to the contrary, the payment of Acquisition Fees and Acquisition Expenses by the Company shall be subject to the limitations contained in the Company’s Articles of Incorporation; 

(iii)  The actual out-of-pocket cost of goods and services used by the Company and obtained from entities notAffiliated with the Advisor; 

(iv)  Interest and other costs for borrowed money, including discounts,points and other similar fees; 

(v)  Taxes and assessments on income or Properties, taxes as an expenseof doing business and any other taxes otherwise imposed on the Company and its business, assets or income; 

(vi)  Out-of-pocket costs associated with insurance required in connection with the business of the Company or byits officers and Directors; 

(vii)  Expenses of managing, improving, developing, operating and sellingProperties, Loans and other Permitted Investments owned, directly or indirectly, by the Company, as well as expenses of other transactions relating to such Properties, Loans and other Permitted Investments, including but not limited to prepayments,maturities, workouts and other settlements of Loans and other Permitted Investments; 

(viii)  Allout-of-pocket expenses in connection with payments to the Board of Directors and meetings of the Board of Directors and Stockholders; 

(ix)  Personnel and related employment costs incurred by the Advisor or its Affiliates in performing the services described in Article 3 hereof, including but not limited to reasonable salaries andwages, benefits and overhead of all employees directly involved in the performance of such services, provided that, other than reimbursement of travel and communications expenses, no 

 
20 

reimbursement shall be made for the compensation of such employees of the Advisor or its Affiliates to the extent that such employees perform services for which the Advisor receives AcquisitionFees or Disposition Fees; 

(x)  Out-of-pocket expenses of providing services for and maintainingcommunications with Stockholders, including the cost of preparation, printing, and mailing annual reports and other Stockholder reports, proxy statements and other reports required by governmental entities; 

(xi)  Audit, accounting and legal fees, and other fees for professional services relating to the operations of theCompany and all such fees incurred at the request, or on behalf of, the Board of the Directors, the Conflicts Committee or any other committee of the Board of Directors; 

(xii)  Out-of-pocket costs for the Company to comply with all applicable laws, regulations and ordinances;

(xiii)  Expenses connected with payments of Distributions made or caused to be made by the Company tothe Stockholders; 

(xiv)  Expenses of organizing, redomesticating, merging, liquidating or dissolving theCompany or of amending the Articles of Incorporation or the Bylaws; and 

(xv)  All other out-of-pocketcosts incurred by the Advisor in performing its duties hereunder. 

9.02 Timing of and Additional Limitations onReimbursements. 

(i)  Expenses incurred by the Advisor on behalf of the Company and reimbursable pursuantto this Article 9 shall be reimbursed no less than monthly to the Advisor. The Advisor shall prepare a statement documenting the expenses of the Company during each quarter and shall deliver such statement to the Company within 45 days after the endof each quarter. 

(ii)  Notwithstanding anything else in this Article 9 to the contrary, the expensesenumerated in this Article 9 shall not become reimbursable to the Advisor unless and until the Company has raised $2.5 million in its initial public offering. 

(iii)  The Company shall not reimburse the Advisor at the end of any fiscal quarter for Operating Expenses that in the four consecutive fiscal quarters then ended (the “Expense Year”)exceed (the “Excess Amount”) the greater of 2% of Average Invested Assets or 25% of Net Income (the “2%/25% Guidelines”) for such year unless the Conflicts Committee determines that such excess was justified, based on unusual andnonrecurring factors that the Conflicts Committee deems sufficient. If the Conflicts Committee does not approve such excess as being so justified, any Excess Amount paid to the Advisor during a fiscal quarter

 
21 

shall be repaid to the Company. If the Conflicts Committee determines such excess was justified, then, within 60 days after the end of any fiscal quarter of the Company for which total reimbursedOperating Expenses for the Expense Year exceed the 2%/25% Guidelines, the Advisor, at the direction of the Conflicts Committee, shall send to the Stockholders a written disclosure of such fact, together with an explanation of the factors theConflicts Committee considered in determining that such excess expenses were justified. The Company will ensure that such determination will be reflected in the minutes of the meetings of the Board of Directors. All figures used in the foregoingcomputation shall be determined in accordance with GAAP applied on a consistent basis. 

ARTICLE 10 

VOTING AGREEMENT 

The Advisor agrees that, with respect to any Shares now or hereinafter owned by it, the Advisor will not vote or consent on matterssubmitted to the stockholders of the Company regarding (i) the removal of the Advisor or any Affiliate of the Advisor or (ii) any transaction between the Company and the Advisor or any of its Affiliates. This voting restriction shallsurvive until such time that the Advisor is both no longer serving as such and is no longer an Affiliate of the Company. 

ARTICLE 11 

RELATIONSHIP OF ADVISOR AND COMPANY; 

OTHER ACTIVITIES OF THE ADVISOR 

11.01 Relationship.  The Company and theAdvisor are not partners or joint venturers with each other, and nothing in this Agreement shall be construed to make them such partners or joint venturers. Nothing herein contained shall prevent the Advisor from engaging in other activities,including, without limitation, the rendering of advice to other Persons (including other REITs) and the management of other programs advised, sponsored or organized by the Advisor or its Affiliates. Nor shall this Agreement limit or restrict theright of any manager, director, officer, employee or equityholder of the Advisor or its Affiliates to engage in any other business or to render services of any kind to any other Person. The Advisor may, with respect to any investment in which theCompany is a participant, also render advice and service to each and every other participant therein. The Advisor shall promptly disclose to the Board of Directors the existence of any condition or circumstance, existing or anticipated, of which ithas knowledge, that creates or could create a conflict of interest between the Advisor’s obligations to the Company and its obligations to or its interest in any other Person. 

11.02 Time Commitment.  The Advisor shall, and shall cause its Affiliates and their respective employees, officers and agents to,devote to the Company such time as shall be reasonably necessary to conduct the business and affairs of the Company in an appropriate manner consistent with the terms of this Agreement. The Company

 
22 

acknowledges that the Advisor and its Affiliates and their respective employees, officers and agents may also engage in activities unrelated to the Company and may provide services to Personsother than the Company or any of its Affiliates. 

11.03 Investment Opportunities and Allocation.  The Advisor shall berequired to use commercially reasonable efforts to present a continuing and suitable investment program to the Company that is consistent with the investment policies and objectives of the Company, but neither the Advisor nor any Affiliate of theAdvisor shall be obligated generally to present any particular investment opportunity to the Company even if the opportunity is of character that, if presented to the Company, could be taken by the Company. In the event an investment opportunity islocated, the allocation procedure set forth under the caption “Conflicts of Interest – Certain Conflict Resolution Measures – Allocation of Investment Opportunities” in the Registration Statement shall govern the allocation ofthe opportunity among the Company and Affiliates of the Advisor. 

ARTICLE 12 

THE KBS NAME 

The Advisor and its Affiliates have a proprietary interest in the name “KBS.” The Advisor hereby grants to the Company anon-transferable, non-assignable, non-exclusive royalty-free right and license to use the name “KBS” during the term of this Agreement. Accordingly, and in recognition of this right, if at any time the Company ceases to retain the Advisoror one of its Affiliates to perform advisory services for the Company, the Company will, promptly after receipt of written request from the Advisor, cease to conduct business under or use the name “KBS” or any derivative thereof and theCompany shall change its name and the names of any of its subsidiaries to a name that does not contain the name “KBS” or any other word or words that might, in the reasonable discretion of the Advisor, be susceptible of indication of someform of relationship between the Company and the Advisor or any its Affiliates. At such time, the Company will also make any changes to any trademarks, servicemarks or other marks necessary to remove any references to the word “KBS.”Consistent with the foregoing, it is specifically recognized that the Advisor or one or more of its Affiliates has in the past and may in the future organize, sponsor or otherwise permit to exist other investment vehicles (including vehicles forinvestment in real estate) and financial and service organizations having “KBS” as a part of their name, all without the need for any consent (and without the right to object thereto) by the Company. 

ARTICLE 13 

TERMAND TERMINATION OF THE AGREEMENT 

13.01 Term.  This Agreement shall have an initial term of one year from the date hereofand may be renewed for an unlimited number of successive one-year terms upon mutual consent of the parties. The Company (acting through the Conflicts Committee) will evaluate the performance of the Advisor annually before renewing this Agreement,

 
23 

and each such renewal shall be for a term of no more than one year. Any such renewal must be approved by the Conflicts Committee. 

13.02 Termination by Either Party.  This Agreement may be terminated upon 60 days written notice without cause or penalty by eitherthe Company (acting through the Conflicts Committee) or the Advisor. The provisions of Articles 1, 10, 12, 13, 15, 16 and 17 shall survive termination of this Agreement. 

13.03 Payments on Termination and Survival of Certain Rights and Obligations.  Payments to the Advisor pursuant to this Section 13.03 shall be subject to the 2%/25% Guidelines to the extentapplicable. 

(i)  After the Termination Date, the Advisor shall not be entitled to compensation forfurther services hereunder except it shall be entitled to receive from the Company within 30 days after the effective date of such termination (A) all unpaid reimbursements of expenses and all earned but unpaid fees payable to the Advisor priorto termination of this Agreement and (B) the Subordinated Performance Fee Due Upon Termination, provided that no Subordinated Performance Fee Due Upon Termination will be paid if the Company has paid or is obligated to pay the SubordinatedIncentive Fee. 

(ii)  The Advisor shall promptly upon termination: 

(a)  pay over to the Company all money collected pursuant to this Agreement, if any, after deducting any accruedcompensation and reimbursement for its expenses to which it is then entitled; 

(b)  deliver to the Boardof Directors a full accounting, including a statement showing all payments collected by it and a statement of all money held by it, covering the period following the date of the last accounting furnished to the Board; 

(c)  deliver to the Board of Directors all assets and documents of the Company then in the custody of the Advisor;and 

(d)  cooperate with the Company to provide an orderly transition of advisory functions. 

(iii)  Notwithstanding anything contained in this Section 13.03 to the contrary, the payment obligations of theCompany and Advisor set forth in Article 16 of this Agreement shall survive termination of this Agreement. 

 
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ARTICLE 14 

ASSIGNMENT 

This Agreement may be assigned by the Advisor to an Affiliate with the consent of the Conflicts Committee. The Advisor may assign anyrights to receive fees or other payments under this Agreement without obtaining the approval of the Board of Directors or the Conflicts Committee. This Agreement shall not be assigned by the Company without the consent of the Advisor, except in thecase of an assignment by the Company to a corporation or other organization that is a successor to all of the assets, rights and obligations of the Company, in which case such successor organization shall be bound hereunder and by the terms of saidassignment in the same manner as the Company is bound by this Agreement. 

ARTICLE 15 

INDEMNIFICATION AND LIMITATION OF LIABILITY 

The Company shall indemnify, defend and hold harmless the Advisor and its Affiliates, including their respective officers, directors, equity holders, partners and employees, from all liability, claims,damages or losses arising in the performance of their duties hereunder, and related expenses, including reasonable attorneys’ fees, to the extent such liability, claims, damages or losses and related expenses are not fully reimbursed byinsurance, subject to any limitations imposed by the Company’s the Articles of Incorporation. Any indemnification of the Advisor may be made only out of the net assets of the Company and not from Stockholders. 

 
25 

 

ARTICLE 16 

ADVANCE 

Notwithstanding anything contained in Article 9 of this Agreement to the contrary, the Advisor hereby agrees to advance funds (the“Advance”) 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 August 31, 2010 exceeds the amount of the Company’s Fundsfrom Operations from January 1, 2006 through August 31, 2010. Advisor further agrees that the Company will only be obligated to reimburse the Advisor for the Advance if and to the extent that the Company’s cumulative Funds fromOperations for the period commencing January 1, 2006 through the date of any such reimbursement exceeds the lesser of (i) the cumulative amount of any distributions declared and payable to the Company’s Stockholders as of the date ofsuch 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.Advisor understands and agrees that no interest shall accrue on the Advance being made under this Agreement. 

ARTICLE 17

MISCELLANEOUS 

17.01 Notices.  Any notice, report or other communication required or permitted to be given hereunder shall be in writing unless some other method of giving such notice, report or other communicationis required by the Articles of Incorporation, the Bylaws or is accepted by the party to whom it is given, and shall be given by being delivered by hand or by overnight mail or other overnight delivery service to the addresses set forth herein:

To the Company or the Board of Directors: 

KBS Real Estate Investment Trust, Inc. 

620 Newport Center Drive, Suite 1300

Newport Beach, California 92660 

To the Advisor: 

KBS Capital Advisors LLC 

620 Newport Center Drive, Suite 1300 

Newport Beach, California 92660 

Either party may at any time give notice inwriting to the other party of a change in its address for the purposes of this Section 17.01. 

 
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17.02 Modification. This Agreement shall not be changed, modified, terminated or discharged, in whole or in part, except by an instrument in writing signed by both parties hereto, or their respective successors or permitted assigns. 

17.03 Severability.  The provisions of this Agreement are independent of and severable from each other, and no provision shall beaffected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. 

17.04 Construction.  The provisions of this Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware. 

17.05 Entire Agreement.  This Agreement contains the entire agreement and understanding between the parties hereto with respect tothe subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The expressterms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing. 

17.06 Waiver.  Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under thisAgreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiverof any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed bythe party asserted to have granted such waiver. 

17.07 Gender.  Words used herein regardless of the number and genderspecifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context requires. 

17.08 Titles Not to Affect Interpretation.  The titles of Articles and Sections contained in this Agreement are for convenience only, and they neither form a part of this Agreement nor are they to beused in the construction or interpretation hereof. 

17.09 Counterparts.  This Agreement may be executed in any number ofcounterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or morecounterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories. 

[The remainder of this page is intentionally left blank. 

Signature page follows.]

 
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IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date and year first above written. 

 

 
KBS REAL ESTATE INVESTMENT TRUST, INC. By: 
/s/ Charles J. Schreiber, Jr.
  Charles J. Schreiber, Jr., Chief Executive OfficerKBS CAPITAL ADVISORS LLC By:   PBren Investments, L.P., a Manager  By:  PBren Investments, LLC, as general partner   By: 
/s/ Peter M. Bren
    Peter M. Bren, Manager By: Schreiber Real Estate Investments, L.P., a Manager  By: Schreiber Investments, LLC, as general partner   By: 
/s/ Charles J. Schreiber, Jr.
    Charles J. Schreiber, Jr., Manager
 
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