ASSUMPTION AND JOINDER AGREEMENT
Exhibit 10.8
This ASSUMPTION AND JOINDER AGREEMENT, dated as of September 16, 2015 (this "Joinder Agreement"), is made by KBSIII VILLAGE CENTER STATION, LLC, a Delaware limited liability company (the "Additional Borrower"), each of the other Borrowers party to the Loan Agreement referred to below, and U.S. Bank National Association, a national banking association, as administrative agent for the Lenders party to the Loan Agreement referred to below ("Agent") and the Lenders described below.
RECITALS
A. Reference is made to that certain Amended and Restated Loan Agreement dated as of March 10, 2014 (as amended, restated, extended, supplemented, or otherwise modified in writing from time to time, the "Loan Agreement"), among KBSIII DOMAIN GATEWAY, LLC, KBSIII 0000 XXXX XXXXXX XXXXX, XXX, XXXXXX 000 XXXXX 000 XXXX, LLC, and KBSIII TOWER AT XXXX XXXXXXX, LLC, each a Delaware limited liability company (collectively, "Initial Borrowers"), and each other New Borrower that has become a Borrower under the Loan Agreement, each lender from time to time a party hereto (individually, a "Lender" and collectively, the "Lenders"), and Agent, as modified by (i) that certain First Modification Agreement (Long Form) dated as of June 19, 2015 (the "First Modification Agreement") among Initial Borrowers, KBSIII PARK PLACE VILLAGE, LLC, a Delaware limited liability company (collectively with Initial Borrowers, "Existing Borrowers"), Agent and Lenders, and (ii) that certain Second Modification and Additional Advance Agreement (Long Form) dated as of even date herewith (the "Second Modification Agreement") by and among Existing Borrowers and Additional Borrower (collectively, "Borrowers"). Any capitalized term used and not defined in this Joinder Agreement shall have the meaning given to such term in the Loan Agreement. This Joinder Agreement is a "Joinder Agreement" described in the Loan Agreement.
B. The Additional Borrower is a New Borrower which is owned, directly or indirectly, by Guarantor.
C. Pursuant to Section 7.21 of the Loan Agreement, Existing Borrowers and the Additional Borrower have requested that certain real property owned by the Additional Borrower (the "Additional Property") more particularly described on Exhibit A attached hereto be included in the Borrowing Base Value and Borrowing Base Amount as an Additional Property. The Additional Property Improvements include an office property located in Greenwood Village, Colorado on 3.2 acres of land totaling approximately 234,915 rentable square feet. The Cost Basis of the Additional Property is $77,000,000.00. The U.S. EIN of Additional Borrower is 00-0000000.
D. As of the date hereof and prior to giving effect to the Second Modification Agreement, (i) the Committed Amount of the Loan is $200,000,000, and (ii) the Loan is evidenced by those certain Promissory Notes in the original aggregate principal amount of $200,000,000.00, each made by Existing Borrowers in favor of a Lender (collectively, the "Existing Notes").
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E. Substantially concurrently with the execution of this Joinder Agreement, Borrowers, Agent and the Lenders are entering into the Second Modification Agreement pursuant to which Borrowers, Agent and the Lenders have agreed to modify the Loan Agreement and the other Loan Documents to, among other things, increase the Committed Amount of the Loan in the amount of $55,000,000.00 (the "Additional Advance") to $255,000,000, subject to the terms and conditions set forth in the Second Modification Agreement. In connection therewith, Borrowers are executing that certain Promissory Note dated as of even date herewith in the amount of $55,000,000.00 to the order of JPMorgan Chase Bank, N.A. (the "Additional Note", and collectively with the Existing Notes, the "Notes"). The Additional Note shall constitute a "Note" as defined in the Loan Agreement.
F. As one of the conditions to the admission of the Additional Property as an Additional Property, the parties hereto are executing this Joinder Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and the terms, covenants, and conditions of this Joinder Agreement, the receipt of which and sufficiency of which are hereby acknowledged, the Additional Borrower, Existing Borrowers, Agent and Lenders agree as follows:
1.Joinder as Borrower; Additional Property as a Property. The Additional Borrower assumes and agrees to be bound by all of the terms, obligations, covenants, representations, warranties and conditions of the Loan Agreement, the Notes, the Fee Letter, the Environmental Indemnity, jointly and severally with the other Persons comprising the Borrowers, and assumes and agrees to be bound thereby, and shall be deemed to be a party thereto, as a Borrower and Indemnitor (as defined in the Environmental Indemnity), as if the Additional Borrower had originally executed the Loan Agreement, the Notes, the Fee Letter and the Environmental Indemnity. The Additional Borrower hereby agrees (i) that the Additional Property shall constitute a Property for all purposes under the Loan Agreement, Environmental Indemnity and the other Loan Documents and (ii) to execute and deliver such additional documents as Agent may reasonably require, including a Deed of Trust.
2. Consent And Acceptance. Existing Borrowers, Agent, Lenders and Guarantor (by its signature to the consent attached hereto) hereby consent to the assumption of the Loan Agreement, the Notes, the Fee Letter, and the Environmental Indemnity and the Obligations by the Additional Borrower and agree and acknowledge that after the date of this Joinder Agreement, (i) the Additional Borrower shall be a "Borrower" and (ii) the Additional Property shall be one of the "Properties" for all purposes of the Loan Agreement, the Notes, the Fee Letter and the Environmental Indemnity and each of the other Loan Documents, including for purposes of the indemnity provided to Agent and Lenders by each of the Borrowers (including Additional Borrower upon execution of this Joinder Agreement) under the Environmental Indemnity. Each of the undersigned hereby acknowledges that Agent has approved an initial Borrowing Base Amount allocable to the Additional Property of $49,822,000.00 (notwithstanding any requirement of the Loan Documents to the contrary (including, without limitation, under the definition of Borrowing Base Amount set forth in the Loan Agreement)).
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3. Ownership of Additional Borrower. The Additional Borrower and each other Borrower represent and warrant to Lenders and Agent that the Additional Borrower is wholly-owned, directly or indirectly, by Properties REIT.
4. Legal Status; Organizational Documents. The Additional Borrower represents and warrants to Agent and each Lender that (i) true, correct and accurate copies of all of the organizational documents of the Additional Borrower have been delivered to Agent, (ii) Additional Borrower is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and is duly registered and qualified to transact business in, and is in good standing under the laws of, the state in which the Additional Property it owns is located, and has all power, authority, consents, authorizations, and, to Additional Borrower's knowledge, permits and licenses necessary to carry on its business, to construct, equip, own and operate such Additional Property and to execute, deliver and perform this Joinder Agreement and the other Loan Documents, (iii) all consents of the members of Additional Borrower necessary to authorize the execution, delivery and performance of this Joinder Agreement and of the other Loan Documents which have been or are to be executed by and on behalf of Additional Borrower have been duly obtained and are in full force and effect; this Joinder Agreement and such other Loan Documents have been duly authorized, executed and delivered by and on behalf of Additional Borrower so as to constitute this Joinder Agreement and such other Loan Documents the valid and binding obligations of Additional Borrower, enforceable in accordance with their terms, and (iv) Additional Borrower has complied with all applicable assumed and/or fictitious name requirements of the state in which it is organized and of the state in which the Additional Property it owns is located, if different.
5. No Default; Compliance with Loan Agreement. The Additional Borrower and each other Borrower covenant, represent and warrant to Agent and each Lender that:
(a) Additional Borrower owns fee title to the Additional Property, does not own any other property other than the Additional Property, and has satisfied the other requirements set forth in Section 7.21(b) of the Loan Agreement.
(b) To the best of Additional Borrower's knowledge, the Additional Property is free from all Hazardous Substances (as defined in the Environmental Indemnity) except as disclosed in that certain Phase I Environmental Site Assessment prepared by Ramboll Environ US Corporation dated as of April, 2015 (Project No. 04-5242IE), in the form disclosed to Agent as of the date of the recordation of a Deed of Trust against the Additional Property.
(c) To the best of Additional Borrower's knowledge, the Additional Property and all related personal property is free and clear of all liens, charges and encumbrances other than Permitted Encumbrances or except as otherwise agreed by Agent in writing.
(d) Except as otherwise disclosed to Agent in writing, each of the representations and warranties made by Borrowers pursuant to the Loan Agreement, including, without limitation, those set forth in Article IV therein, are true and correct in all material respects with regard to the Additional Borrower.
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(e) No Event of Default, or event which, with notice or lapse of time or both, could become an Event of Default, has occurred and is continuing under any Loan Document.
(f) Additional Borrower has been afforded the opportunity to read this Joinder Agreement, the Loan Agreement, the Notes, the Fee Letter, and the Environmental Indemnity carefully and to review such documents with an attorney of Additional Borrower's choice before signing this Joinder Agreement. Additional Borrower acknowledges having read and understood the meaning and effect of this Joinder Agreement, the Loan Agreement, the Notes, the Fee Letter, and the Environmental Indemnity before signing this Joinder Agreement and understands it shall thereafter be bound by the Loan Documents and liable for all Obligations owing by Borrowers under the Loan Documents.
6. Counterparts; Joint Borrower Provisions. This Joinder Agreement may be executed in multiple counterparts, each of which shall constitute an original but all of which when taken together shall constitute one and the same instrument. Section 7.19 of the Loan Agreement (the joint borrower provisions) is by this reference hereby incorporated herein in its entirety.
7. Governing Law. The validity, enforcement, and interpretation of this Joinder Agreement, shall for all purposes be governed by and construed in accordance with the laws of the State of California and applicable United States federal law, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. To the maximum extent permitted by applicable law, Additional Borrower hereby waives any right to a trial by jury in any action relating to the Loan and/or the Loan Documents.
8. Limited Recourse Provision. Section 7.25 of the Loan Agreement (the limited recourse provisions) is by this reference hereby incorporated herein in its entirety.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Joinder Agreement is executed as of the date first above written.
ADDITIONAL BORROWERS:
KBSIII VILLAGE CENTER STATION, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XXIII, LLC,
a Delaware limited liability company,
its sole member
By: KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company,
its sole member
By: KBS LIMITED PARTNERSHIP III,
a Delaware limited partnership,
its sole member
a Maryland corporation, its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx., |
Xxxxxxx X. Xxxxxxxxx, Xx., | |
Chief Executive Officer | |
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EXISTING BORROWERS:
KBSIII DOMAIN GATEWAY, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION I, LLC,
a Delaware limited liability company,
its sole member
By: KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company,
its sole member
By: KBS LIMITED PARTNERSHIP III,
a Delaware limited partnership,
its sole member
a Maryland corporation, its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx., |
Xxxxxxx X. Xxxxxxxxx, Xx., | |
Chief Executive Officer | |
KBSIII 0000 XXXX XXXXXX XXXXX, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION IV, LLC,
a Delaware limited liability company,
its sole member
By: KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company,
its sole member
By: KBS LIMITED PARTNERSHIP III,
a Delaware limited partnership,
its sole member
a Maryland corporation, its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx., |
Xxxxxxx X. Xxxxxxxxx, Xx., | |
Chief Executive Officer | |
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KBSIII 155 NORTH 400 WEST, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION V, LLC,
a Delaware limited liability company,
its sole member
By: KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company,
its sole member
By: KBS LIMITED PARTNERSHIP III,
a Delaware limited partnership,
its sole member
a Maryland corporation,
its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx., |
Xxxxxxx X. Xxxxxxxxx, Xx., | |
Chief Executive Officer | |
KBSIII TOWER AT XXXX XXXXXXX, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION VI, LLC,
a Delaware limited liability company,
its sole member
By: KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company,
its sole member
By: KBS LIMITED PARTNERSHIP III,
a Delaware limited partnership,
its sole member
By: KBS REAL ESTATE INVESTMENT TRUST III,
INC., a Maryland corporation,
its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx., |
Xxxxxxx X. Xxxxxxxxx, Xx., | |
Chief Executive Officer | |
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KBSIII PARK PLACE VILLAGE, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XXII, LLC,
a Delaware limited liability company,
its sole member
By: KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company,
its sole member
By: KBS LIMITED PARTNERSHIP III,
a Delaware limited partnership,
its sole member
By: KBS REAL ESTATE INVESTMENT TRUST III,
INC.,
a Maryland corporation,
its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx., |
Xxxxxxx X. Xxxxxxxxx, Xx., | |
Chief Executive Officer | |
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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AGENT:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association,
as Administrative Agent
By: | /s/ Xxxxxx X. Xxxxxxx |
Name: | Xxxxxx X. Xxxxxxx |
Title: | Senior Vice President |
LENDERS:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By: | /s/ Xxxxxx X. Xxxxxxx |
Name: | Xxxxxx X. Xxxxxxx |
Title: | Senior Vice President |
MUFG UNION BANK, N.A.,
a national banking association
By: | /s/ Xxxxx Xxx Xxxxx |
Name: | Xxxxx Xxx Xxxxx |
Title: | Director |
FIFTH THIRD BANK
By: | /s/ Xxxxxxx Xxxxxxx |
Name: | Xxxxxxx Xxxxxxx |
Title: | VP |
REGIONS BANK
By: | /s/ Xxxxxxx X. Xxxxxxx |
Name: | Xxxxxxx X. Xxxxxx |
Title: | Director |
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XX XXXXXX CHASE BANK, N.A.
By: | /s/ Xxxx X. Xxxxxx |
Name: | Xxxx X. Xxxxxx |
Title: | Authorized Officer |
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CONSENT OF GUARANTOR:
KBS REIT PROPERTIES III, LLC, a Delaware limited liability company ("Guarantor"), hereby (i) consents to the terms, conditions and provisions of the foregoing Joinder Agreement and the transactions contemplated by such Joinder Agreement, including, without limitation, the admission of the Additional Borrower as a Borrower under the Loan Agreement and the other Loan Documents, and the assumption of the Obligations by the Additional Borrower, and (ii) reaffirms the full force and effectiveness of that certain Amended and Restated Repayment Guaranty, dated as of March 10, 2014, executed by Guarantor in favor of Agent, as amended by (a) the First Modification Agreement dated as of June 19, 2015 among Agent, the Lenders and the Existing Borrowers, and (b) the Second Modification Agreement dated as of September 16, 2015 among Agent, the Lenders and the Borrowers.
KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company
By: KBS LIMITED PARTNERSHIP III,
a Delaware limited partnership,
its sole member
a Maryland corporation
its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx., |
Xxxxxxx X. Xxxxxxxxx, Xx., | |
Chief Executive Officer | |
EXHIBIT A
TO JOINDER AGREEMENT
That certain real property located in the County of Arapahoe, State of Colorado and more particularly described as follows:
PARCEL ONE:
XXX 0, XXXXXXXXX XXXXXX XXX XX XXXXXXXXX XXXXX XXXXX FILING NO. 11, RECORDED JUNE 23, 2008 AT RECEPTION NO. B8071501 OF THE ARAPAHOE COUNTY, COLORADO REAL ESTATE RECORDS, COUNTY OF ARAPAHOE, STATE OF COLORADO.
PARCEL TWO:
BENEFICIAL EASEMENTS AS DESCRIBED IN EASEMENT AGREEMENT (PLAZA ENCROACHMENT) BY AND BETWEEN PROPERTY COLORADO OBJLW ONE CORPORATION, AN OREGON CORPORATION AND XXXX COLORADO, LLC, A COLORADO LIMITED LIABILITY COMPANY, RECORDED APRIL 14, 2008 AT RECEPTION NO. B8042826 OF THE ARAPAHOE COUNTY, COLORADO REAL ESTATE RECORDS.
PARCEL THREE:
NON-EXCLUSIVE EASEMENT FOR COMMON ACCESS AND UTILITIES, AS MORE PARTICULARLY DESCRIBED IN THE RECIPROCAL ACCESS EASEMENT (VCS PHASES I AND II) RECORDED SEPTEMBER 11, 2012 AT RECEPTION XX. X0000000, XXXXXX XX XXXXXXXX, XXXXX XX XXXXXXXX.
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