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Document Preview Promissory Note Secured by Deed of Trust |
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Title: |
Promissory Note Secured by Deed of Trust |
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Date: |
2007 |
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$48 |
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ID: |
#2788870 |
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PROMISSORY NOTE SECURED BY DEED OF TRUST |
$18,500,000.00
Loan No. 31-0906145
MERS MIN#: 800010100000055987
San Francisco, California
March 28, 2007
| 1. | PROMISE TO PAY. For value received, the undersigned KBS OFFICES AT KENSINGTON, LLC, a Delaware limited liability company (Borrower), promise(s) to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION (Lender), 1320 Willow Pass Road, Suite 205, Concord, California 94520, or at such other place as may be designated in writing by Lender, the principal sum of EIGHTEEN MILLION FIVE HUNDRED THOUSAND AND NO/100THS DOLLARS ($18,500,000.00) (Loan), with interest thereon as specified herein. All sums owing hereunder are payable in lawful money of the United States of America, in immediately available funds, without offset, deduction or counterclaim of any kind. |
| 2. | SECURED BY DEED OF TRUST. This Note is secured by, among other things, that Deed of Trust and Absolute Assignment of Rents and Leases and Security Agreement (and Fixture Filing) (Deed of Trust) of even date herewith given by Borrower for the benefit of Mortgage Electronic Registration Systems, Inc., a Delaware corporation, identifying this Note as an obligation secured thereby and encumbering certain real property described therein (Property). |
| 3. | DEFINITIONS. For the purposes of this Note, the following terms shall have the following meanings: |
30/360 Basis means on the basis of a 360-day year consisting of 12 months of 30 days each.
Actual/360 Basis means on the basis of a 360-day year and charged on the basis of actual days elapsed for any whole or partial month in which interest is being calculated.
Allocated Share shall mean at any time, and from time to time, an amount expressed as a percentage that is calculated by dividing the cost basis of the Property by the cost basis of all real property owned directly or indirectly by the REIT or the REIT Operating Partnership.
Business Day means any day other than a Saturday, Sunday, legal holiday or other day on which commercial banks in California are authorized or required by law to close. All references in this Note to a day or a date shall be to a calendar day unless specifically referenced as a Business Day.
Cash Management Agreement shall mean that certain Cash Management Agreement (Springing Hard) dated as of the date hereof between Borrower and Lender.
Cash Management Period shall mean the occurrence of a Default. A Cash Management Period shall terminate in the event that a Default has been cured.
Code means the Internal Revenue Code of 1986, as amended to date and as further amended from time to time, or any successor statutes thereto, together with applicable regulations issued pursuant thereto in temporary or final form.
Collateral shall have the meaning stated in the Deed of Trust.
Default shall have the meaning stated in the Deed of Trust.
Default Rate means the lesser of (a) a fixed annual rate equal to 5% plus the Note Rate and (b) the maximum rate of interest permitted under applicable law.
Defeasance means the Borrowers substitution of Collateral and Lenders release of the lien of the Deed of Trust upon satisfaction of all of the terms and conditions of Section 12.
Defeasance Collateral means obligations or securities selected by Borrower, not subject to prepayment, call or early redemption, each of which qualifies as a Government security as defined in Section 2(a)(16) of the Investment
Company Act of 1940, as amended (15 U.S.C. 80a-1 et seq.), together with all revenues and proceeds of such obligations or securities.
Defeasance Date means the date upon which the Defeasance is completed.
Defeasance Option End Date means December 31, 2013.
Defeasance Option Period means the period from and including the Defeasance Option Start Date to and including the Defeasance Option End Date.
Defeasance Option Start Date means the earlier of (a) the twenty-fifth Due Date following the Startup Day of any REMIC which holds this Note on the Defeasance Date and (b) three years after the Effective Date.
Defeasance Property means any Individual Property or Properties that are released from the lien of the Deed of Trust as a result of a Partial Defeasance.
Defeasance Security Agreements means a pledge and security agreement and an account control agreement, each in form and substance customary in commercial mortgage defeasance transactions.
Disbursement Date means the date upon which the Loan proceeds are funded by Lender into escrow in connection with the closing of the Loan.
Due Date means the first day of each calendar month during the period commencing on the First Due Date and ending on March 1, 2014.
Effective Date means the earlier of (a) the date the Deed of Trust is recorded in the Office of the County Clerk of the county where the Property is located and (b) the date Lender authorizes the Loan proceeds to be released to Borrower.
First Due Date means April 1, 2007.
First Interest Only Due Date means May 1, 2007.
Interest Only Payment Amount means a monthly payment of accrued interest based on the Note Rate and the outstanding principal balance due on each Due Date commencing on the First Interest Only Due Date and continuing through and including the Maturity Date.
Loan Documents means the documents identified as such in Exhibit B.
Maturity Date means April 1, 2014.
Note Rate means a fixed annual rate of 5.52%.
Open Period Start Date means January 1, 2014.
Permitted REIT Distributions shall mean, subject to compliance with the provisions of Section 14 hereof, distributions (directly or indirectly) by Borrower to the REIT (which indirectly owns 100% of Borrower) to the extent that, if not distributed to the REIT: (A) the REIT would, as the result of the failure of Borrower to receive cash from the Property, be unable to distribute all REIT taxable income with respect to the Property, or (B) the REIT would, solely as a result of the failure of Borrower to receive cash from the Property, fail to satisfy its obligations to pay REIT Operating Expenses.
Prepayment Lockout End Date means December 31, 2013.
Prepayment Lockout Period means the period from and including the Effective Date to and including the Prepayment Lockout End Date.
Projection Period shall have the meaning set forth in Section 14 hereof.
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Rating Agencies means Fitch, Inc., Moodys Investors Service, Inc., Standard & Poors Rating Services and any other nationally-recognized statistical rating organization that, in connection with the securitization of the Loan by a REMIC maintains a rating, on the Defeasance Date, of the securities issued by the REMIC.
REIT means KBS Real Estate Investment Trust, Inc.
REIT Distribution Notice shall have the meaning set forth in Section 14 hereof.
REIT Operating Expenses shall mean the Allocated Share of all actual costs, expenses and/or amounts incurred by, or payable or reimbursable by, the REIT or the REIT Operating Partnership for any of the following: (a) charges and fees charged by banks, audit fees, tax preparation fees, legal fees (not including any legal fees incurred by Borrower at the property level or in any litigation or legal matter concerning Lender, including a bankruptcy filing affecting Borrower), accounting consulting fees related to emerging technical pronouncements, tax consulting fees relating to REIT issues, due diligence costs and fees arising from state and local taxes, fees and expenses incurred in connection with annual corporate filings, and local, state and federal income taxes, (b) professional fees related to corporate structuring and/or filings, consulting fees and filing fees arising from SEC reporting requirements including, without limitation, 10K filings, 10Q filings, and 8k filings, consulting fees and other fees and costs related to Sarbanes-Oxley 404 compliance requirements.
REIT Operating Partnership means KBS Limited Partnership, a Delaware limited partnership.
REMIC means a real estate mortgage investment conduit within the meaning of Section 860D of the Code.
Startup Day means the startup day within the meaning of Section 860G(a)(9) of the Code.
Successor Borrower means an entity designated by Borrower and approved by Lender using commercial standards customarily applied by prudent institutional mortgage lenders for similar loans, whose sole purpose is to own the Defeasance Collateral delivered by Borrower under Section 12 and assume Borrowers obligations with respect to the Loan either alone, or together with the Defeasance Collateral for other, previously defeased loans or portions of loans assumed by Successor Borrower which are also held by the REMIC that holds this Note. Successor Borrower shall, in either case, be restricted from taking actions that could result in its bankruptcy or dissolution.
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