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Title: |
Mezzanine Loan Agreement |
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Entities: |
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Date: |
2006 |
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Size: |
83KB total |
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Price: |
$58 |
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ID: |
#2408029 |
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MEZZANINE LOAN AGREEMENT
between
KBS REIT ACQUISITION II, LLC, a Delaware limited liability company
and
Wells Fargo Bank, National Association
Entered into as of July 6, 2006
TABLE OF CONTENTS
| ARTICLE 1. DEFINITIONS | 1 | |||
| 1.1. | DEFINED TERMS | 1 | ||
| 1.2. | EXHIBITS INCORPORATED | 5 | ||
| ARTICLE 2. LOAN | 5 | |||
| 2.1. | LOAN | 5 | ||
| 2.2. | LOAN UNSECURED | 5 | ||
| 2.3. | LOAN FEE | 5 | ||
| 2.4. | NOTE | 5 | ||
| 2.5. | PURPOSE | 5 | ||
| 2.6. | INTEREST; PAYMENTS | 5 | ||
| 2.7. | BORROWING AND REPAYMENT | 5 | ||
| 2.8. | CREDIT FOR PRINCIPAL PAYMENTS | 5 | ||
| 2.9. | MATURITY DATE | 6 | ||
| 2.10. | FIRST OPTION TO EXTEND | 6 | ||
| 2.11. | SECOND OPTION TO EXTEND | 6 | ||
| 2.12. | GUARANTY(S) | 7 | ||
| ARTICLE 3. DISBURSEMENT | 8 | |||
| 3.1. | CONDITIONS PRECEDENT | 8 | ||
| (a) Compliance | 8 | |||
| (b) Documentation | 8 | |||
| (c) Approval of Lenders Counsel | 8 | |||
| (d) Disbursement Certification | 8 | |||
| 3.2. | ACCOUNT, PLEDGE AND ASSIGNMENT, AND DISBURSEMENT AUTHORIZATION | 8 | ||
| 3.3. | FUNDS TRANSFER DISBURSEMENTS | 8 | ||
| ARTICLE 4. REPRESENTATIONS AND WARRANTIES | 10 | |||
| 4.1. | AUTHORITY/ENFORCEABILITY | 10 | ||
| 4.2. | BINDING OBLIGATIONS | 10 | ||
| 4.3. | FORMATION AND ORGANIZATIONAL DOCUMENTS | 10 | ||
| 4.4. | NO VIOLATION | 10 | ||
| 4.5. | LITIGATION | 10 | ||
| 4.6. | FINANCIAL CONDITION | 10 | ||
| 4.7. | NO MATERIAL ADVERSE CHANGE | 10 | ||
| 4.8. | ACCURACY | 11 | ||
| 4.9. | TAX LIABILITY | 11 | ||
| 4.10. | NO SUBORDINATION | 11 | ||
| 4.11. | PERMITS; FRANCHISES | 11 | ||
| 4.12. | OTHER OBLIGATIONS | 11 | ||
| 4.13. | BUSINESS LOAN | 11 | ||
| 4.14. | TAX SHELTER REGULATIONS | 11 | ||
i
| ARTICLE 5. COVENANTS OF BORROWER | 13 | |||
| 5.1. | OTHER INDEBTEDNESS | 13 | ||
| 5.2. | MERGER, CONSOLIDATION, SALE OF ASSETS | 13 | ||
| 5.3. | GUARANTEES | 13 | ||
| 5.4. | EXPENSES | 13 | ||
| 5.5. | ERISA COMPLIANCE | 14 | ||
| 5.6. | EXISTENCE | 14 | ||
| 5.7. | TAXES AND OTHER LIABILITIES | 14 | ||
| 5.8. | NOTICE | 14 | ||
| 5.9. | INSURANCE | 14 | ||
| 5.10. | FACILITIES | 14 | ||
| 5.11. | RETURN OF CAPITAL | 15 | ||
| 5.12. | LIQUIDITY REQUIREMENT | 15 | ||
| ARTICLE 6. REPORTING COVENANTS | 18 | |||
| 6.1. | FINANCIAL INFORMATION | 18 | ||
| 6.2. | BOOKS AND RECORDS | 18 | ||
| ARTICLE 7. DEFAULTS AND REMEDIES | 18 | |||
| 7.1. | DEFAULT | 18 | ||
| (a) Payment; Performance | 18 | |||
| (b) Performance of Other Obligations | 19 | |||
| (c) Attachment | 19 | |||
| (d) Representations and Warranties | 19 | |||
| (e) Voluntary Bankruptcy; Insolvency; Dissolution | 19 | |||
| (f) Involuntary Bankruptcy | 19 | |||
| (g) Partners; Guarantors | 19 | |||
| (h) Death or Incapacity of Borrower | 20 | |||
| (i) Change In Management or Control | 20 | |||
| (j) Transfer of Assets | 20 | |||
| 7.2. | ACCELERATION UPON DEFAULT; REMEDIES | 20 | ||
| 7.3. | RIGHT OF CONTEST | 20 | ||
| ARTICLE 8. MISCELLANEOUS PROVISIONS | 20 | |||
| 8.1. | INDEMNITY | 20 | ||
| 8.2. | FORM OF DOCUMENTS | 21 | ||
| 8.3. | NOTICES | 21 | ||
| 8.4. | RELATIONSHIP OF PARTIES | 21 | ||
| 8.5. | ATTORNEYS FEES AND EXPENSES; ENFORCEMENT | 21 | ||
| 8.6. | IMMEDIATELY AVAILABLE FUNDS | 21 | ||
| 8.7. | LENDERS CONSENT | 22 | ||
| 8.8. | LOAN SALES AND PARTICIPATIONS; DISCLOSURE OF INFORMATION | 23 | ||
| 8.9. | SEVERABILITY | 24 | ||
| 8.10. | NO WAIVER; SUCCESSORS | 24 | ||
| 8.11. | TIME | 24 | ||
ii
| 8.12. | HEADINGS | 24 | ||
| 8.13. | GOVERNING LAW | 24 | ||
| 8.14. | USA PATRIOT ACT NOTICE | 25 | ||
| 8.15. | INTEGRATION; INTERPRETATION | 25 | ||
| 8.16. | JOINT AND SEVERAL LIABILITY | 26 | ||
| 8.17. | COUNTERPARTS | 26 |
| EXHIBIT A | Documents | 1 | ||
| EXHIBIT B | Transfer Authorizer Designation | 1 | ||
iii
MEZZANINE LOAN AGREEMENT
THIS MEZZANINE LOAN AGREEMENT (Agreement) is entered into as of July 6, 2006, by and between KBS REIT ACQUISITION II, LLC, a Delaware limited liability company (Borrower), and Wells Fargo Bank, National Association (Lender).
R E C I T A L
WHEREAS, Wells Fargo Bank, National Association (Mortgage Lender) has made a loan in the original principal amount of Fourteen Million Seven Hundred Thousand and No/100 Dollars ($14,700,000.00) (the Mortgage Loan) to KBS Sabal Pavilion, LLC, a Delaware limited liability company (the Mortgage Borrower), which Mortgage Loan is evidenced by the Mortgage Loan Documents;
WHEREAS, Borrower is the legal and beneficial owner of all of the membership interests in Mortgage Borrower;
WHEREAS, Borrower has requested Lender to make a loan to it in the aggregate principal amount of Four Million Eight Hundred Ninety-Eight Thousand and No/100 Dollars ($4,898,000.00) (the Loan); and
WHEREAS, as a condition precedent to the obligation of Lender to make the Loan to Borrower, Borrower has entered into, among other things, that certain Pledge and Security Agreement, dated as of the date hereof, in favor of Lender (as amended, restated, replaced, supplemented or otherwise modified from time to time, the Pledge Agreement), pursuant to which Borrower has granted to Lender a first priority security interest in the Collateral (as defined in the Pledge Agreement), including its limited liability company interests in Mortgage Borrower, as security for the Debt;
NOW, THEREFORE, in consideration of the covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree, represent and warrant as follows:
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