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Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________________________________
 
FORM 10-Q
______________________________________________________
(Mark One)
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2020
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from              to             
Commission file number 000-54687
______________________________________________________
 
KBS REAL ESTATE INVESTMENT TRUST III, INC.
(Exact Name of Registrant as Specified in Its Charter)
______________________________________________________
 
Maryland 27-1627696
(State or Other Jurisdiction of
Incorporation or Organization)
(I.R.S. Employer
Identification No.)
800 Newport Center Drive, Suite 700
Newport Beach, California   92660
(Address of Principal Executive Offices)   (Zip Code)
(949) 417-6500
(Registrant’s Telephone Number, Including Area Code)
_______________________________________ 
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class   Name of Each Exchange on Which Registered
None   None
Trading Symbol(s)
____________________________________________________
None

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes      No  
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).    Yes       No  
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large Accelerated Filer Accelerated Filer
Non-Accelerated Filer Smaller reporting company
Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.    
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes    No  
As of November 9, 2020, there were 184,072,237 outstanding shares of common stock of KBS Real Estate Investment Trust III, Inc.


Table of Contents
KBS REAL ESTATE INVESTMENT TRUST III, INC.
FORM 10-Q
September 30, 2020
INDEX 
PART I.
2
Item 1.
2
2
3
4
6
7
Item 2.
35
Item 3.
59
Item 4.
60
PART II.
61
Item 1.
61
Item 1A.
61
Item 2.
63
Item 3.
65
Item 4.
65
Item 5.
65
Item 6.
66
68

1


Table of Contents
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements

KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share amounts)
  September 30, 2020 December 31, 2019
  (unaudited)  
Assets
Real estate:
Land $ 306,871  $ 308,920 
Buildings and improvements 2,144,959  2,092,928 
Tenant origination and absorption costs 84,330  95,808 
Total real estate held for investment, cost 2,536,160  2,497,656 
Less accumulated depreciation and amortization (504,815) (444,299)
Total real estate held for investment, net 2,031,345  2,053,357 
Real estate held for sale, net —  122,264 
Total real estate, net 2,031,345  2,175,621 
Real estate loan receivable, net (allowance for credit losses of $680)
148,290  — 
Total real estate and real estate-related investments, net 2,179,635  2,175,621 
Cash and cash equivalents 34,402  43,984 
Restricted cash 5,288  5,288 
Investment in an unconsolidated entity 232,649  253,371 
Rents and other receivables, net 90,522  83,446 
Above-market leases, net 475  566 
Prepaid expenses and other assets 81,709  76,651 
Total assets $ 2,624,680  $ 2,638,927 
Liabilities and equity
Notes payable, net $ 1,492,125  $ 1,459,879 
Accounts payable and accrued liabilities 54,033  71,381 
Due to affiliate 8,872  7,886 
Distributions payable 9,142  9,392 
Below-market leases, net 7,621  9,849 
Other liabilities 89,582  43,526 
Total liabilities 1,661,375  1,601,913 
Commitments and contingencies (Note 12)
Redeemable common stock 78,370  51,704 
Equity:
KBS Real Estate Investment Trust III, Inc. stockholders’ equity
Preferred stock, $.01 par value per share; 10,000,000 shares authorized, no shares issued and outstanding
—  — 
Common stock, $.01 par value per share; 1,000,000,000 shares authorized, 183,416,278 and 180,970,743 shares issued and outstanding as of September 30, 2020 and December 31, 2019, respectively
1,834  1,810 
Additional paid-in capital 1,600,353  1,600,416 
Cumulative distributions in excess of net income (717,252) (617,171)
Total KBS Real Estate Investment Trust III, Inc. stockholders’ equity 884,935  985,055 
Noncontrolling interest —  255 
Total equity 884,935  985,310 
Total liabilities and equity $ 2,624,680  $ 2,638,927 

See accompanying condensed notes to consolidated financial statements.
2


Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)

KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
(in thousands, except share and per share amounts)
Three Months Ended September 30, Nine Months Ended September 30,
2020 2019 2020 2019
Revenues:
Rental income $ 69,159  $ 76,348  $ 211,385  $ 285,198 
Interest income from real estate loan receivable 2,029  —  3,236  — 
Other operating income 4,315  6,633  14,555  23,670 
Total revenues 75,503  82,981  229,176  308,868 
Expenses:
Operating, maintenance and management 17,198  22,119  52,553  72,132 
Real estate taxes and insurance 14,140  13,813  43,052  49,677 
Asset management fees to affiliate 5,311  5,541  15,704  19,412 
General and administrative expenses 1,560  1,491  4,756  5,433 
Depreciation and amortization 27,879  29,862  82,629  112,902 
Interest expense 8,918  20,350  71,460  105,701 
Impairment charges on real estate —  —  19,896  8,706 
Total expenses 75,006  93,176  290,050  373,963 
Other income (loss):
Other income —  4,068  —  4,090 
Other interest income 13  282  60  546 
Equity in income (loss) of an unconsolidated entity 588  (2,556) (1,408) (2,556)
Loss from extinguishment of debt —  (2,033) (188) (2,229)
Gain on sale of real estate, net 21  327,311  50,959  327,311 
Provision for credit loss —  —  (680) — 
Total other income, net 622  327,072  48,743  327,162 
Net income (loss) 1,119  316,877  (12,131) 262,067 
Net loss (income) attributable to noncontrolling interest —  (6,145) 24 
Net income (loss) attributable to common stockholders $ 1,119  $ 316,884  $ (18,276) $ 262,091 
Net income (loss) per common share attributable to common stockholders, basic and diluted $ 0.01  $ 1.82  $ (0.10) $ 1.50 
Weighted-average number of common shares outstanding, basic and diluted 183,174,688  174,447,810  182,386,530  174,916,229 

See accompanying condensed notes to consolidated financial statements.
3


Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)

KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONSOLIDATED STATEMENTS OF EQUITY
For the Three Months Ended September 30, 2020 and 2019 (unaudited)
(dollars in thousands)
 
 
Common Stock
Additional Paid-in Capital Cumulative Distributions in Excess of Net Income (Loss) Total Stockholders’ Equity Noncontrolling Interest Total Equity
  Shares Amounts
Balance, June 30, 2020 182,564,608  $ 1,826  $ 1,600,363  $ (690,983) $ 911,206  $ —  $ 911,206 
Net income —  —  —  1,119  1,119  —  1,119 
Issuance of common stock 1,052,825  11  11,644  —  11,655  —  11,655 
Transfers to redeemable common stock —  —  (9,311) —  (9,311) —  (9,311)
Redemptions of common stock (201,155) (3) (2,340) —  (2,343) —  (2,343)
Distributions declared —  —  —  (27,388) (27,388) —  (27,388)
Other offering costs —  —  (3) —  (3) —  (3)
Balance, September 30, 2020
183,416,278  $ 1,834  $ 1,600,353  $ (717,252) $ 884,935  $ —  $ 884,935 

 
 
Common Stock
Additional Paid-in Capital Cumulative Distributions in Excess of Net Income (Loss) Total Stockholders’ Equity Noncontrolling Interest Total Equity
  Shares Amounts
Balance, June 30, 2019 175,001,561  $ 1,750  $ 1,550,351  $ (738,263) $ 813,838  $ 266  $ 814,104 
Net income (loss) —  —  —  316,884  316,884  (7) 316,877 
Issuance of common stock 1,116,391  11  12,737  —  12,748  —  12,748 
Transfers to redeemable common stock —  —  (10,864) —  (10,864) —  (10,864)
Redemptions of common stock (3,680,482) (37) (42,085) —  (42,122) —  (42,122)
Distributions declared —  —  —  (28,358) (28,358) —  (28,358)
Balance, September 30, 2019
172,437,470  $ 1,724  $ 1,510,139  $ (449,737) $ 1,062,126  $ 259  $ 1,062,385 

See accompanying condensed notes to consolidated financial statements.
4


Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONSOLIDATED STATEMENTS OF EQUITY (CONTINUED)
For the Nine Months Ended September 30, 2020 and 2019 (unaudited)
(dollars in thousands)
 
 
Common Stock
Additional Paid-in Capital Cumulative Distributions in Excess of Net Income (Loss) Total Stockholders’ Equity Noncontrolling Interest Total Equity
  Shares Amounts
Balance, December 31, 2019 180,970,743  $ 1,810  $ 1,600,416  $ (617,171) $ 985,055  $ 255  $ 985,310 
Net (loss) income —  —  —  (18,276) (18,276) 6,145  (12,131)
Issuance of common stock 3,186,782  32  35,245  —  35,277  —  35,277 
Transfers to redeemable common stock —  —  (26,666) —  (26,666) —  (26,666)
Redemptions of common stock (741,247) (8) (8,627) —  (8,635) —  (8,635)
Distributions declared —  —  —  (81,805) (81,805) —  (81,805)
Other offering costs —  —  (15) —  (15) —  (15)
Distribution to noncontrolling interest —  —  —  —  —  (6,400) (6,400)
Balance, September 30, 2020
183,416,278  $ 1,834  $ 1,600,353  $ (717,252) $ 884,935  $ —  $ 884,935 

 
 
Common Stock
Additional Paid-in Capital Cumulative Distributions in Excess of Net Income (Loss) Total Stockholders’ Equity Noncontrolling Interest Total Equity
  Shares Amounts
Balance, December 31, 2018 177,523,853  $ 1,775  $ 1,555,380  $ (626,543) $ 930,612  $ 283  $ 930,895 
Net income (loss) —  —  —  262,091  262,091  (24) 262,067 
Issuance of common stock 3,434,259  34  39,185  —  39,219  —  39,219 
Transfers from redeemable common stock —  —  13,164  —  13,164  —  13,164 
Redemptions of common stock (8,520,642) (85) (97,587) —  (97,672) —  (97,672)
Distributions declared —  —  —  (85,285) (85,285) —  (85,285)
Other offering costs —  —  (3) —  (3) —  (3)
Balance, September 30, 2019
172,437,470  $ 1,724  $ 1,510,139  $ (449,737) $ 1,062,126  $ 259  $ 1,062,385 

See accompanying condensed notes to consolidated financial statements.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)

KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
(in thousands)
Nine Months Ended September 30,
2020 2019
Cash Flows from Operating Activities:
Net (loss) income $ (12,131) $ 262,067 
Adjustments to reconcile net (loss) income to net cash provided by operating activities:
Depreciation and amortization 82,629  112,902 
Impairment charges on real estate 19,896  8,706 
Noncash interest income on real estate loan receivable (1,172) — 
Provision for credit loss 680  — 
Equity in loss of an unconsolidated entity 1,408  2,556 
Distribution of operating cash flow from an unconsolidated entity 19,314  — 
Deferred rents (4,041) (4,245)
Amortization of above- and below-market leases, net (2,137) (2,832)
Amortization of deferred financing costs 3,184  4,346 
Unrealized losses on derivative instruments 29,484  41,706 
Loss from extinguishment of debt 188  2,229 
Gain on sale of real estate (50,959) (327,311)
Changes in operating assets and liabilities:
Rents and other receivables (4,532) (2,206)
Prepaid expenses and other assets (11,827) (33,140)
Accounts payable and accrued liabilities (4,428) (2,688)
Other liabilities 5,746  (11,124)
Due to (from) affiliates 2,119  (2,583)
Net cash provided by operating activities 73,421  48,383 
Cash Flows from Investing Activities:
Improvements to real estate (70,835) (57,738)
Proceeds from sale of real estate, net 26,592  931,589 
Proceeds from the sale of equity securities —  16,186 
Payments for construction in progress (3,277) (19,818)
Origination costs on real estate loan receivable (120) — 
Payments of post-closing acquisition costs —  (1,014)
Escrow deposits for tenant improvements —  972 
Insurance proceeds received for property damage —  867 
Net cash (used in) provided by investing activities (47,640) 871,044 
Cash Flows from Financing Activities:
Proceeds from notes payable 104,510  322,590 
Principal payments on notes payable (74,202) (1,107,218)
Payments of deferred financing costs (2,811) (2,508)
Payments to redeem common stock (8,635) (97,672)
Payments of prepaid other offering costs (1,032) — 
Payments of other offering costs (15) (3)
Distribution to noncontrolling interest (6,400) — 
Distributions paid to common stockholders (46,778) (46,525)
Net cash used in financing activities (35,363) (931,336)
Net decrease in cash, cash equivalents and restricted cash (9,582) (11,909)
Cash, cash equivalents and restricted cash, beginning of period 49,272  76,038 
Cash, cash equivalents and restricted cash, end of period $ 39,690  $ 64,129 
Supplemental Disclosure of Cash Flow Information:
Interest paid, net of capitalized interest of $1,711 for the nine months ended September 30, 2019
$ 39,293  $ 62,199 
Supplemental Disclosure of Noncash Investing and Financing Activities:
Equity securities received in connection with the portfolio sale $ —  $ 271,000 
Distributions payable $ 9,142  $ 9,343 
Redeemable common stock payable $ —  $ 11,658 
Accrued improvements to real estate $ 14,900  $ 23,553 
Construction in progress payable $ —  $ 5,011 
Acquisition fee related to construction in progress due to affiliate $ —  $ 1,091 
Real estate loan receivable provided to purchaser of real estate $ 147,678  $ — 
Accrued prepaid other offering costs $ 705  $ 58 
Distributions paid to common stockholders through common stock issuances pursuant to the dividend reinvestment plan
$ 35,277  $ 39,219 

See accompanying condensed notes to consolidated financial statements.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2020
(unaudited)

1. ORGANIZATION
KBS Real Estate Investment Trust III, Inc. (the “Company”) was formed on December 22, 2009 as a Maryland corporation that elected to be taxed as a real estate investment trust (“REIT”) beginning with the taxable year ended December 31, 2011 and it intends to continue to operate in such manner. Substantially all of the Company’s business is conducted through KBS Limited Partnership III (the “Operating Partnership”), a Delaware limited partnership. The Company is the sole general partner of and owns a 0.1% partnership interest in the Operating Partnership. KBS REIT Holdings III LLC (“REIT Holdings III”), the limited partner of the Operating Partnership, owns the remaining 99.9% interest in the Operating Partnership and is its sole limited partner. The Company is the sole member and manager of REIT Holdings III.
Subject to certain restrictions and limitations, the business of the Company is externally managed by KBS Capital Advisors LLC (the “Advisor”), an affiliate of the Company, pursuant to an advisory agreement the Company entered into with the Advisor (the “Advisory Agreement”). On January 26, 2010, the Company issued 20,000 shares of its common stock to the Advisor at a purchase price of $10.00 per share. As of September 30, 2020, the Advisor owned 20,857 shares of the Company’s common stock.
The Company owns a diverse portfolio of real estate investments. As of September 30, 2020, the Company owned 18 office properties, one mixed-use office/retail property and an investment in the equity securities of Prime US REIT, a Singapore real estate investment trust (the “SREIT”), which is accounted for as an investment in an unconsolidated entity under the equity method of accounting. In addition, as of September 30, 2020, the Company had originated one real estate loan receivable secured by a deed of trust.
The Company commenced its initial public offering (the “Offering”) on October 26, 2010. Upon commencing the Offering, the Company retained KBS Capital Markets Group LLC (the “Dealer Manager”), an affiliate of the Company, to serve as the dealer manager of the Offering pursuant to a dealer manager agreement, as amended and restated (the “Dealer Manager Agreement”). The Company ceased offering shares of common stock in the primary Offering on May 29, 2015 and terminated the primary Offering on July 28, 2015.
The Company sold 169,006,162 shares of common stock in the primary Offering for gross proceeds of $1.7 billion. As of September 30, 2020, the Company had also sold 35,640,784 shares of common stock under its dividend reinvestment plan for gross offering proceeds of $367.9 million. Also as of September 30, 2020, the Company had redeemed or repurchased 29,230,344 shares sold in the Offering for $320.1 million.
Additionally, on October 3, 2014, the Company issued 258,462 shares of common stock for $2.4 million in private transactions exempt from the registration requirements pursuant to Section 4(a)(2) of the Securities Act of 1933.
The Company continues to offer shares of common stock under its dividend reinvestment plan. In some states, the Company will need to renew the registration statement annually or file a new registration statement to continue its dividend reinvestment plan offering. The Company may terminate its dividend reinvestment plan offering at any time.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
COVID-19 Pandemic
One of the most significant risks and uncertainties facing the Company and the real estate industry generally continues to be the effect of the ongoing public health crisis of the novel coronavirus disease (“COVID-19”) pandemic. The Company continues to closely monitor the impact of the COVID-19 pandemic on all aspects of its business, including how the pandemic is affecting its tenants and its investments in the SREIT and a real estate loan receivable. During the nine months ended September 30, 2020, the Company did not experience significant disruptions in its operations from the COVID-19 pandemic. The Company did, however, recognize an impairment charge on an office/retail property due to the continued deterioration of retail demand at the property which was further impacted by the COVID-19 pandemic. Many of the Company’s tenants have experienced disruptions in their business, some more severely than others. In general, the Company’s retail and restaurant tenants, which comprise approximately 3% of its annualized base rent, have been more severely impacted by the COVID-19 pandemic than its office tenants. In addition, during the second and third quarters, the Company granted rent relief to a number of tenants as a result of the pandemic, but as the impact of the pandemic continues to be felt, these tenants or additional tenants may request rent relief in future periods or become unable to pay rent and therefore, the Company is unable to predict the ultimate impact the pandemic will have on its financial condition, results of operations and cash flows due to numerous uncertainties. Further, significant reductions in rental revenue in the future related to the impact of the COVID-19 pandemic may limit the Company’s ability to draw on its revolving credit facilities or exercise extension options due to covenants described in the Company’s loan agreements. The Company is evaluating each tenant rent relief request on an individual basis, considering a number of factors. Not all tenant requests will ultimately result in modified agreements, nor is the Company forgoing its contractual rights under its lease agreements.
The extent to which the COVID-19 pandemic impacts the Company’s operations and those of its tenants and the Company’s investments in the SREIT and a real estate loan receivable depends on future developments, which are highly uncertain and cannot be predicted with confidence, including the scope, severity and duration of the pandemic, the actions taken to contain the pandemic or mitigate its impact, and the direct and indirect economic effects of the pandemic and containment measures, among others.

2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
There have been no significant changes to the Company’s accounting policies since it filed its audited financial statements in its Annual Report on Form 10-K for the year ended December 31, 2019, except for the addition of accounting policies for the Company’s real estate loan receivable that was originated in May 2020. For further information about the Company’s accounting policies, refer to the Company’s consolidated financial statements and notes thereto for the year ended December 31, 2019 included in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission (the “SEC”).
Principles of Consolidation and Basis of Presentation
The accompanying unaudited consolidated financial statements and condensed notes thereto have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) for interim financial information as contained within the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) and the rules and regulations of the SEC, including the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, the unaudited consolidated financial statements do not include all of the information and footnotes required by GAAP for audited financial statements. In the opinion of management, the financial statements for the unaudited interim periods presented include all adjustments, which are of a normal and recurring nature, necessary for a fair and consistent presentation of the results for such periods. Operating results for the three and nine months ended September 30, 2020 are not necessarily indicative of the results that may be expected for the year ending December 31, 2020.
The consolidated financial statements include the accounts of the Company, REIT Holdings III, the Operating Partnership, their direct and indirect wholly owned subsidiaries, and through May 7, 2020, a joint venture in which the Company held a controlling interest. All significant intercompany balances and transactions are eliminated in consolidation.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
Use of Estimates
The preparation of the consolidated financial statements and condensed notes thereto in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and condensed notes. Actual results could materially differ from those estimates.
Per Share Data
Basic net income (loss) per share of common stock is calculated by dividing net income (loss) attributable to common stockholders by the weighted-average number of shares of common stock issued and outstanding during such period. Diluted net income (loss) per share of common stock equals basic net income (loss) per share of common stock as there were no potentially dilutive securities outstanding during the three and nine months ended September 30, 2020 and 2019, respectively.
Distributions declared per common share were $0.1625 and $0.4875 in the aggregate for the three and nine months ended September 30, 2019, respectively. Distributions declared per common share were $0.1495 and $0.4485 in the aggregate for the three and nine months ended September 30, 2020, respectively. Distributions declared per common share assumes each share was issued and outstanding each day that was a record date for distributions and were based on a monthly record date for each month during the periods commencing January 2019 through September 2019 and January 2020 through September 2020. For each monthly record date for distributions during the period from January 1, 2019 through September 30, 2019, distributions were calculated at a rate of $0.05416667 per share. For each monthly record date for distributions during the period from January 1, 2020 through September 30, 2020, distributions were calculated at a rate of $0.04983333 per share.
Segments
The Company has invested in core real estate properties and real estate-related investments with the goal of acquiring a portfolio of income-producing investments. The Company’s real estate properties exhibit similar long-term financial performance and have similar economic characteristics to each other. In addition, the Company considered both quantitative and qualitative thresholds and determined that its investment in a real estate loan receivable does not constitute a reportable segment. Accordingly, the Company aggregated its investments in real estate properties and a real estate loan receivable into one reportable business segment.
Square Footage, Occupancy and Other Measures
Square footage, occupancy, number of tenants and other measures, including annualized base rent and annualized base rent per square foot, used to describe real estate investments included in these condensed notes to the consolidated financial statements are unaudited and outside the scope of the Company’s independent registered public accounting firm’s review of the Company’s financial statements in accordance with the standards of the United States Public Company Accounting Oversight Board.
Revenue Recognition
Real Estate Loan Receivable
Interest income on the Company’s real estate loan receivable is recognized on an accrual basis over the life of the investment using the interest method. Direct loan origination fees and origination or acquisition costs, as well as premiums or discounts, are amortized over the term of the loan as an adjustment to interest income. The Company places loans on non-accrual status when any portion of principal or interest is 90 days past due, or earlier when concern exists as to the ultimate collection of principal or interest. When a loan is placed on non-accrual status, the Company reserves for any outstanding accrued interest receivable through the provision for credit loss and recognizes income on either a cash basis, where interest income is only recorded when received in cash, or on a cost-recovery basis, where all cash receipts are applied against the carrying value of the loan. The Company considers the collectability of the loan’s principal balance in determining whether to recognize income on a cash basis or a cost-recovery basis. The Company will resume the accrual of interest if it determines the collection of interest, according to the contractual terms of the loan, is probable.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
Real Estate Loans Receivable
The Company records real estate loans receivable at amortized cost, net of an allowance for credit losses (if any). The amortized cost of a real estate loan receivable is the outstanding unpaid principal balance, net of unamortized acquisition premiums or discounts and unamortized costs and fees directly associated with the origination or acquisition of the loan. The allowance for credit losses is a valuation account that is deducted from the amortized cost basis of a real estate loan receivable to present the net amount expected to be collected. This allowance is accounted for under the current expected credit loss (CECL) model and is measured and recorded upon the initial recognition of the real estate loan receivable and is re-measured at each balance sheet date based on changes in facts and circumstances. The allowance is adjusted through “Provision for credit loss” on the Company’s consolidated statements of operations and is increased or decreased based on the re-measurement of the allowance for credit loss at each balance sheet date. If the Company determines that all or a portion of the real estate loan receivable is no longer collectible, the portion that is deemed uncollectible will be written off and the allowance for credit losses reduced. Recoveries of real estate loans receivable that were previously written off are recorded when cash is received.
The Company applies a probability-of-default method to measure the allowance for credit losses which applies the probability of default within a given timeframe by the percentage of the real estate loan receivable not expected to be collected due to default. Additionally, the Company evaluates the potential for adverse changes in the value of the collateral over the contractual life of the real estate loan receivable, the financial condition of the borrower, the probability that it will grant the borrower a concession through modification of the loan terms and other market conditions in calculating the allowance for credit losses.
Failure to properly measure an allowance for credit loss could result in the overstatement of earnings and the carrying value of the real estate loan receivable. Actual losses, if any, could differ significantly from estimated amounts.
Recently Issued Accounting Standards Update
In March 2020, the FASB issued ASU No. 2020-04, Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting (“ASU No. 2020-04”) to provide temporary optional expedients and exceptions to the guidance in GAAP on contract modifications and hedge accounting to ease the financial reporting burdens related to the expected market transition from the London Interbank Offered Rate (LIBOR) and other interbank offered rates to alternative reference rates, such as the Secured Overnight Financing Rate (SOFR). Modified contracts that meet the following criteria are eligible for relief from the modification accounting requirements under GAAP: (1) the contract references LIBOR or another rate that is expected to be discontinued due to reference rate reform, (2) the modified terms directly replace or have the potential to replace the reference rate that is expected to be discontinued due to reference rate reform, and (3) any contemporaneous changes to other terms (i.e., those that do not directly replace or have the potential to replace the reference rate) that change or have the potential to change the amount and timing of contractual cash flows must be related to the replacement of the reference rate. For a contract that meets the criteria, the guidance generally allows an entity to account for and present modifications as an event that does not require contract remeasurement at the modification date or reassessment of a previous accounting determination. That is, the modified contract is accounted for as a continuation of the existing contract. In addition, ASU No. 2020-04 provides various optional expedients for hedging relationships affected by reference rate reform, if certain criteria are met. The amendments in ASU No. 2020-04 are effective for all entities as of March 12, 2020 through December 31, 2022. An entity may elect to apply the amendments for contract modifications by Topic or Industry Subtopic as of any date from the beginning of an interim period that includes or is subsequent to March 12, 2020, or prospectively from a date within an interim period that includes or is subsequent to March 12, 2020, up to the date that the financial statements are available to be issued. Once elected for a Topic or an Industry Subtopic, the amendments in this update must be applied prospectively for all eligible contract modifications for that Topic or Industry Subtopic. An entity may elect to apply the amendments in ASU No. 2020-04 to eligible hedging relationships existing as of the beginning of the interim period that includes March 12, 2020 and to new eligible hedging relationships entered into after the beginning of the interim period that includes March 12, 2020.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
For the period from January 1, 2020 (the earliest date the Company may elect to apply ASU No. 2020-04) through September 30, 2020, the Company did not have any contract modifications that meet the criteria described above, specifically contract modifications that have been modified from LIBOR to an alternative reference rate. The Company’s loan agreements, derivative instruments, and certain lease agreements use LIBOR as the current reference rate. For eligible contract modifications, the Company expects to adopt the temporary optional expedients described in ASU No. 2020-04. The optional expedients for hedging relationships described in ASU No. 2020-04 are not expected to have an impact to the Company as the Company has elected to not designate its derivative instruments as a hedge.
In April 2020, the FASB issued a FASB Staff Q&A related to Topic 842 and Topic 840: Accounting for Lease Concessions Related to the Effects of the COVID-19 Pandemic (the “Topic 842 Q&A”). The Company adopted the lease accounting standards of Topic 842 beginning January 1, 2019. Under Topic 842, subsequent changes to lease payments that are not stipulated in the original lease contract are generally accounted for as lease modifications. Some contracts may contain explicit or implicit enforceable rights and obligations that require lease concessions if certain circumstances arise that are beyond the control of the parties to the contract. If a lease contract provides enforceable rights and obligations for concessions in the contract and no changes are made to that contract, the concessions are not accounted for under the lease modification guidance in Topic 842. If concessions granted by lessors are beyond the enforceable rights and obligations in the contract, entities would generally account for those concessions in accordance with the lease modification guidance in Topic 842. Because of the unprecedented and global nature of the COVID-19 pandemic, the FASB staff is aware that it may be exceedingly challenging for entities to determine whether existing contracts provide enforceable rights and obligations for lease concessions and whether those concessions are consistent with the terms of the contract or are modifications to the contract. As such, the FASB staff believes that it would be acceptable for entities to make an election to account for lease concessions related to the effects of the COVID-19 pandemic consistent with how those concessions would be accounted for under Topic 842 as though enforceable rights and obligations for those concessions existed (regardless of whether those enforceable rights and obligations for the concessions explicitly exist in the contract). Consequently, for concessions related to the effects of the COVID-19 pandemic, an entity will not have to analyze each contract to determine whether enforceable rights and obligations for concessions exist in the contract and can elect to apply or not apply the lease modification guidance in Topic 842 to those contracts. This election is available for concessions related to the effects of the COVID-19 pandemic that do not result in a substantial increase in the rights of the lessor or the obligations of the lessee. For example, this election is available for concessions that result in the total payments required by the modified contract being substantially the same as or less than total payments required by the original contract. The FASB staff expects that reasonable judgment will be exercised in making those determinations. Some concessions will provide a deferral of payments with no substantive changes to the consideration in the original contract. A deferral affects the timing, but the amount of the consideration is substantially the same as that required by the original contract. The staff expects that there will be multiple ways to account for those deferrals, none of which the staff believes are more preferable than the others. Two of those methods are: (1) Account for the concessions as if no changes to the lease contract were made. Under that accounting, a lessor would increase its lease receivable, and a lessee would increase its accounts payable as receivables/payments accrue. In its income statement, a lessor would continue to recognize income, and a lessee would continue to recognize expense during the deferral period and (2) Account for the deferred payments as variable lease payments.
In accordance with the Topic 842 Q&A, the Company made the election to account for lease concessions related to the effects of the COVID-19 pandemic that do not result in a substantial increase in the rights of the Company as lessor consistent with how those concessions would be accounted for under Topic 842 as though enforceable rights and obligations for those concessions existed. Accordingly, the Company does not analyze each contract to determine whether enforceable rights and obligations for concessions exist in the contract and elected not to apply the lease modification guidance in Topic 842. For deferrals, the Company accounts for the concessions as if no changes to the lease contract were made and continues to recognize rental income during the deferral period. The amount of deferred rent is assessed for collectability at the end of each reporting period. For rental abatements, the Company recognizes negative variable lease income for the forgiven rent, thereby reversing the rental income and rent receivable for the abated period.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
The Company has granted a number of lease concessions related to the effects of the COVID-19 pandemic but these lease concessions did not have a material impact to the Company’s consolidated balance sheets as of September 30, 2020 or consolidated statements of operations for the three and nine months ended September 30, 2020. As of September 30, 2020, the Company had entered into lease amendments related to the effects of the COVID-19 pandemic, granting $2.6 million of rent deferrals for the period from March through September 2020, extending the timing of these rental payments to a later period through 2029, and granting $0.9 million in rental abatements. As of September 30, 2020, the Company had $2.4 million of receivables for lease payments that had been deferred as lease concessions related to the effects of the COVID-19 pandemic, of which $0.8 million was reserved for payments not probable of collection, which were included in rent and other receivables, net on the accompanying consolidated balance sheets. For the three and nine months ended September 30, 2020, the Company recorded $0.3 million and $0.9 million, respectively, of rental abatements granted to tenants as a result of the COVID-19 pandemic.
Tenants may request additional lease concessions, in the form of rent deferrals or abatements, for future periods, which may have an impact on the Company’s business, financial condition and results of operations, but the ultimate impact will largely depend on future developments with respect to the continued spread and treatment of the virus, the actions taken to contain the pandemic or mitigate its impact, and the direct and indirect economic effects of the pandemic and containment measures, which the Company cannot accurately predict.

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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
3. REAL ESTATE
Real Estate Held for Investment
As of September 30, 2020, the Company’s real estate portfolio held for investment was composed of 18 office properties and one mixed-use office/retail property encompassing in the aggregate approximately 7.8 million rentable square feet. As of September 30, 2020, the Company’s real estate portfolio held for investment was collectively 88% occupied. The following table summarizes the Company’s investments in real estate as of September 30, 2020 (in thousands):
Property Date Acquired City State Property Type
Total Real Estate,
at Cost (1)
Accumulated Depreciation and Amortization (1)
Total Real Estate, Net (1)
Domain Gateway 09/29/2011 Austin TX Office $ 67,019  $ (11,893) $ 55,126 
Town Center 03/27/2012 Plano TX Office 129,410  (36,285) 93,125 
McEwen Building 04/30/2012 Franklin TN Office 37,974  (9,971) 28,003 
Gateway Tech Center 05/09/2012 Salt Lake City UT Office 29,518  (7,377) 22,141 
RBC Plaza 01/31/2013 Minneapolis MN Office 154,513  (49,689) 104,824 
Preston Commons 06/19/2013 Dallas TX Office 131,510  (26,431) 105,079 
Sterling Plaza 06/19/2013 Dallas TX Office 84,693  (19,586) 65,107 
201 Spear Street 12/03/2013 San Francisco CA Office 149,339  (24,359) 124,980 
Accenture Tower
12/16/2013 Chicago IL Office 455,677  (97,479) 358,198 
Anchor Centre 05/22/2014 Phoenix AZ Office 97,484  (22,011) 75,473 
Ten Almaden 12/05/2014 San Jose CA Office 127,227  (25,099) 102,128 
Towers at Emeryville
12/23/2014 Emeryville CA Office 209,141  (39,263) 169,878 
3003 Washington Boulevard 12/30/2014 Arlington VA Office 151,372  (29,284) 122,088 
Park Place Village 06/18/2015 Leawood KS Office/Retail 76,875  (1,766) 75,109 
201 17th Street 06/23/2015 Atlanta GA Office 104,003  (22,413) 81,590 
515 Congress 08/31/2015 Austin TX Office 125,254  (19,650) 105,604 
The Almaden 09/23/2015 San Jose CA Office 185,080  (27,534) 157,546 
3001 Washington Boulevard 11/06/2015 Arlington VA Office 60,848  (8,466) 52,382 
Carillon 01/15/2016 Charlotte NC Office 159,223  (26,259) 132,964 
$ 2,536,160  $ (504,815) $ 2,031,345 
_____________________
(1) Amounts presented are net of impairment charges and write-offs of fully depreciated/amortized assets.
As of September 30, 2020, the following property represented more than 10% of the Company’s total assets:
Property Location Rentable
Square Feet
Total Real Estate, Net
(in thousands)
Percentage
of Total Assets
Annualized Base Rent
(in thousands) (1)
Average Annualized Base Rent per sq. ft. Occupancy
Accenture Tower Chicago, IL 1,457,724  $ 358,198  13.6  % $ 32,832  $ 27.88  80.8  %
___________________
(1) Annualized base rent represents annualized contractual base rental income as of September 30, 2020, adjusted to straight-line any contractual tenant concessions (including free rent), rent increases and rent decreases from the lease’s inception through the balance of the lease term.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
Operating Leases
The Company’s office and office/retail properties are leased to tenants under operating leases for which the terms and expirations vary. As of September 30, 2020, the leases had remaining terms, excluding options to extend, of up to 16.8 years with a weighted-average remaining term of 4.8 years. Some of the leases have provisions to extend the term of the leases, options for early termination for all or a part of the leased premises after paying a specified penalty, and other terms and conditions as negotiated. The Company retains substantially all of the risks and benefits of ownership of the real estate assets leased to tenants. Generally, upon the execution of a lease, the Company requires a security deposit from the tenant in the form of a cash deposit and/or a letter of credit. The amount required as a security deposit varies depending upon the terms of the respective lease and the creditworthiness of the tenant, but generally is not a significant amount. Therefore, exposure to credit risk exists to the extent that a receivable from a tenant exceeds the amount of its security deposit. Security deposits received in cash related to tenant leases are included in other liabilities in the accompanying consolidated balance sheets and totaled $8.4 million and $8.8 million as of September 30, 2020 and December 31, 2019, respectively.
During the three and nine months ended September 30, 2020, the Company excluded from rental income $2.8 million and $7.2 million, respectively, related to lease payments that were deemed not probable of collection. During the three and nine months ended September 30, 2019, the Company excluded from rental income $0.4 million and $1.8 million, respectively, related to lease payments that were deemed not probable of collection. During the three and nine months ended September 30, 2019, the Company recorded bad debt recovery of $0.1 million and $0.4 million, respectively, which was included in operating, maintenance and management expense in the accompanying consolidated statements of operations. No bad debt expense or recovery was recorded during the three and nine months ended September 30, 2020.
During the nine months ended September 30, 2020 and 2019, the Company recognized deferred rent from tenants of $4.0 million and $4.2 million, respectively. As of September 30, 2020 and December 31, 2019, the cumulative deferred rent balance was $84.0 million and $80.0 million, respectively, and is included in rents and other receivables on the accompanying balance sheets. The cumulative deferred rent balance included $20.6 million and $21.0 million of unamortized lease incentives as of September 30, 2020 and December 31, 2019, respectively.
As of September 30, 2020, the future minimum rental income from the Company’s properties held for investment under its non-cancelable operating leases was as follows (in thousands):
October 1, 2020 through December 31, 2020 $ 56,378 
2021 223,540 
2022 199,567 
2023 171,690 
2024 150,543 
Thereafter 629,902 
$ 1,431,620 

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
As of September 30, 2020, the Company’s office and office/retail properties were leased to approximately 640 tenants over a diverse range of industries and geographic areas. The Company’s highest tenant industry concentrations (greater than 10% of annualized base rent) were as follows:
Industry Number of Tenants
Annualized Base Rent (1)
(in thousands)
Percentage of Annualized Base Rent
Finance 125 $ 44,816  19.0  %
Real Estate 60 27,101  11.5  %
$ 71,917  30.5  %
_____________________
(1) Annualized base rent represents annualized contractual base rental income as of September 30, 2020, adjusted to straight-line any contractual tenant concessions (including free rent), rent increases and rent decreases from the lease’s inception through the balance of the lease term.
As of September 30, 2020, no other tenant industries accounted for more than 10% of annualized base rent and no tenant accounted for more than 10% of annualized base rent.
Geographic Concentration Risk
As of September 30, 2020, the Company’s net investments in real estate in California, Texas and Illinois represented 21.1%, 16.2% and 13.6% of the Company’s total assets, respectively.  As a result, the geographic concentration of the Company’s portfolio makes it particularly susceptible to adverse economic developments in the California, Texas and Illinois real estate markets.  Any adverse economic or real estate developments in these markets, such as business layoffs or downsizing, industry slowdowns, relocations of businesses, changing demographics and other factors, or any decrease in demand for office space resulting from the local business climate, could adversely affect the Company’s operating results and its ability to pay distributions to stockholders.
Impairment of Real Estate
During the nine months ended September 30, 2020 and 2019, the Company recorded impairment charges of $19.9 million and $8.7 million, respectively, to write down the carrying value of an office/retail property to its estimated fair value as a result of changes in cash flow estimates, including a change to the anticipated hold period of the property, which triggered the future estimated undiscounted cash flows to be lower than the net carrying value of the property. The decrease in cash flow projections was primarily due to the continued lack of demand for the property’s retail component resulting in longer than estimated lease-up periods and lower projected rental rates, mostly due to the impact of the COVID-19 pandemic with respect to the first quarter of 2020. As a result, many retail tenants have requested rent concessions as their businesses have been severely impacted.

4. REAL ESTATE SALES
During the nine months ended September 30, 2020, the Company sold a multifamily apartment complex held through a consolidated joint venture. In connection with the sale, the Company, through an indirect wholly owned subsidiary, provided seller financing to the purchaser by originating a real estate loan receivable. See Note 6, “Real Estate Loan Receivable - Recent Origination - Hardware Village First Mortgage.” During the year ended December 31, 2019, the Company, through 12 wholly owned subsidiaries, sold 11 of its properties (the “Singapore Portfolio”) to various subsidiaries of the SREIT, which was listed on the Singapore Stock Exchange (“SGX”) on July 19, 2019 (the “Singapore Transaction”). The Company sold the Singapore Portfolio to the SREIT on July 18, 2019. The sale price of the Singapore Portfolio was $1.2 billion, before third-party closing costs, closing credits and other costs of approximately $20.0 million and excluding disposition fees paid to the Advisor of $9.5 million.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
The following summary presents the components of real estate held for sale, net as of September 30, 2020 and December 31, 2019 (in thousands). No real estate properties were held for sale as of September 30, 2020:
September 30, 2020 December 31, 2019
Real estate held for sale, net:
Total real estate, at cost $ —  $ 127,346 
Accumulated depreciation and amortization —  (5,082)
Total real estate held for sale, net $ —  $ 122,264 

The results of operations for the multifamily apartment complex held through a consolidated joint venture and the Singapore Portfolio are included in continuing operations on the Company’s consolidated statements of operations. The following table summarizes certain revenues and expenses related to the Singapore Portfolio and the multifamily apartment complex held through a consolidated joint venture for the three and nine months ended September 30, 2020 and 2019 (in thousands):
  For the Three Months Ended September 30, For the Nine Months Ended September 30,
2020 2019 2020 2019
Revenues
Rental income $ —  $ 6,754  $ 1,483  $ 65,200 
Other operating income —  684  297  5,456 
Total revenues $ —  $ 7,438  $ 1,780  $ 70,656 
Expenses
Operating, maintenance, and management $ —  $ 2,434  $ 1,177  $ 17,124 
Real estate taxes and insurance —  616  167  8,884 
Asset management fees to affiliate —  602  330  4,858 
General and administrative expenses —  24  14 
Depreciation and amortization —  3,000  —  28,318 
Interest expense —  2,598  —  18,110 
Total expenses $ —  $ 9,255  $ 1,698  $ 77,308 


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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
5. TENANT ORIGINATION AND ABSORPTION COSTS, ABOVE-MARKET LEASE ASSETS AND BELOW-
MARKET LEASE LIABILITIES
As of September 30, 2020 and December 31, 2019, the Company’s tenant origination and absorption costs, above-market lease assets and below-market lease liabilities (excluding fully amortized assets and liabilities and accumulated amortization) were as follows (in thousands):
  Tenant Origination and
Absorption Costs
Above-Market
Lease Assets
Below-Market
Lease Liabilities
  September 30, 2020 December 31, 2019 September 30, 2020 December 31, 2019 September 30, 2020 December 31, 2019
Cost $ 84,330  $ 95,808  $ 1,146  $ 2,661  $ (24,572) $ (25,630)
Accumulated Amortization (54,044) (56,886) (671) (2,095) 16,951  15,781 
Net Amount $ 30,286  $ 38,922  $ 475  $ 566  $ (7,621) $ (9,849)

Increases (decreases) in net income as a result of amortization of the Company’s tenant origination and absorption costs, above-market lease assets and below-market lease liabilities for the three and nine months ended September 30, 2020 and 2019 were as follows (in thousands):
  Tenant Origination and
Absorption Costs
Above-Market
Lease Assets
Below-Market
Lease Liabilities
For the Three Months Ended September 30, For the Three Months Ended September 30, For the Three Months Ended September 30,
2020 2019 2020 2019 2020 2019
Amortization $ (2,409) $ (3,766) $ (26) $ (142) $ 726  $ 874 


Tenant Origination and
Absorption Costs
Above-Market
Lease Assets
Below-Market
Lease Liabilities
For the Nine Months Ended September 30, For the Nine Months Ended September 30, For the Nine Months Ended September 30,
2020 2019 2020 2019 2020 2019
Amortization $ (7,702) $ (18,185) $ (91) $ (866) $ 2,228  $ 3,698 

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
6. REAL ESTATE LOAN RECEIVABLE
As of September 30, 2020, the Company, through an indirect wholly owned subsidiary, had originated one real estate loan receivable as follows (dollars in thousands):
Loan Name
Location of Related 
Property or Collateral
Date Originated Property Type Loan Type
Outstanding Principal Balance as of September 30, 2020
Book Value
as of
September 30, 2020 (1)
Contractual Interest
Rate
Annualized Effective Interest Rate (2)
Maturity Date
Hardware Village First Mortgage (3)
Salt Lake City, Utah 05/07/20 Apartment Mortgage $150,213 $148,290
(3)
5.34% 05/06/2021
_____________________
(1) Book value represents outstanding principal balance, adjusted for unamortized origination discounts and origination costs and net of an allowance for credit losses. During the nine months ended September 30, 2020, the Company recorded a provision for credit loss of $0.7 million, applying a probability-of-default method to measure the allowance for credit losses.
(2) Annualized effective interest rate is calculated as the actual interest income recognized in 2020, using the interest method, annualized and divided by the average amortized cost basis of the investment during 2020.
(3) See “Recent Origination - Hardware Village First Mortgage.”
The following summarizes the activity related to the real estate loan receivable for the nine months ended September 30, 2020 (in thousands):
Real estate loan receivable, net - December 31, 2019 $ — 
Face value of real estate loan receivable originated 150,213 
Discount on real estate loan receivable originated (2,535)
Accretion of discount on real estate loan receivable originated 1,230 
Origination costs on real estate loan receivable 120 
Amortization of origination costs on real estate loan receivable (58)
Provision for credit loss
(680)
Real estate loan receivable, net - September 30, 2020
$ 148,290 

For the three and nine months ended September 30, 2020, interest income from the real estate loan receivable consisted of the following (in thousands):
For the Three Months Ended September 30, 2020 For the Nine Months Ended September 30, 2020
Contractual interest income $ 1,387  $ 2,064 
Accretion of origination discount 674  1,230 
Amortization of origination costs (32) (58)
Interest income from real estate loan receivable $ 2,029  $ 3,236 


As of September 30, 2020, the Company had $0.5 million of accrued interest receivable included in rents and other receivables, net on the consolidated balance sheet. As of September 30, 2020, the borrower under the Hardware Village First Mortgage was current on its payments.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
Recent Origination
Hardware Village First Mortgage
On May 7, 2020, the Company through a consolidated joint venture (the “Hardware Village Joint Venture”) sold a multi-family apartment project (“Hardware Village”) to a buyer unaffiliated with the Hardware Village Joint Venture, the Company or the Advisor for a purchase price of $178.0 million, before third-party closing costs, credits and the disposition fee payable to the Advisor. The purchase price was paid in a combination of approximately $27.8 million in cash and approximately $150.2 million in seller financing provided by an indirect wholly owned subsidiary of the Company (the “Lender”), as described below. The Company’s joint venture partner received a distribution of $6.4 million of the proceeds from the sale, assigned its interest in the Hardware Village Joint Venture to the Company and ceased to be a member of the Hardware Village Joint Venture effective May 7, 2020.
In connection with the sale and seller financing, on May 7, 2020, the buyer entered into a promissory note with the Lender for $150.2 million. The promissory note is secured by a first mortgage on Hardware Village (the “Hardware Village First Mortgage”). For the period commencing on May 7, 2020 through July 31, 2020, interest on the Hardware Village First Mortgage accrued based on the higher of 2.95% and 250 basis points plus one-month LIBOR. For the period commencing on August 1, 2020 and until the maturity date, interest on the Hardware Village First Mortgage accrues based on the higher of 3.95% and 350 basis points plus one-month LIBOR. Monthly payments are interest only, with the outstanding principal due and payable at maturity on May 6, 2021; however, the buyer/borrower can prepay the outstanding principal and any unpaid accrued interest at any time without fee, premium or penalty.

7. INVESTMENT IN AN UNCONSOLIDATED ENTITY
Investment in Prime US REIT
In connection with the Singapore Transaction, on July 19, 2019, the Company, through an indirect wholly owned subsidiary (“REIT Properties III”), acquired 307,953,999 units in the SREIT at a price of $271.0 million, or $0.88 per unit, representing a 33.3% ownership interest in the SREIT. On August 21, 2019, REIT Properties III sold 18,392,100 of its units in the SREIT for $16.2 million pursuant to an over-allotment option granted to the underwriters of the SREIT’s offering, reducing REIT Properties III’s ownership in the SREIT to 31.3% of the outstanding units of the SREIT as of that date. As of September 30, 2020, REIT Properties III held 289,561,899 units of the SREIT which represented 27.4% of the outstanding units of the SREIT. As of September 30, 2020, the aggregate value of the Company’s investment in the units of the SREIT was $238.9 million, which was based on the closing price of the SREIT units on the SGX of $0.83 per unit as of September 30, 2020.
The Company has concluded that based on its 27.4% ownership interest as of September 30, 2020, it exercises significant influence over the operations, financial policies and decision making with respect to its investment in the SREIT. Accordingly, the Company has accounted for its investment in the SREIT under the equity method of accounting as of September 30, 2020. Income is allocated according to the Company’s ownership interest at each month-end and recorded as equity income (loss) from unconsolidated entity. Any dividends received from the SREIT reduces the carrying amount of the investment.
As of September 30, 2020, the carrying value of the Company’s investment in the SREIT was $232.6 million. During the three and nine months ended September 30, 2020, the Company recorded equity in income from an unconsolidated entity of $0.6 million and equity in loss from an unconsolidated entity of $1.4 million, respectively, related to its investment in the SREIT. Equity in loss from an unconsolidated entity for the nine months ended September 30, 2020 included $3.5 million related to the Company’s share of net losses from the SREIT offset by a gain of $2.1 million to reflect the net effect to the Company’s investment as a result of the net proceeds raised by the SREIT in a private offering in February 2020. For the period from July 19, 2019 to September 30, 2019, the Company recorded $2.6 million of equity in loss from an unconsolidated entity related to its investment in the SREIT.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
During the three and nine months ended September 30, 2020, the Company received $7.4 million and $19.3 million, respectively, of dividends from its investment in the SREIT, which was recorded as a reduction of the Company’s carrying value of the investment. The Company elected to apply the nature of the distribution approach for purposes of presentation of the dividends on the statement of consolidated cash flows and classified the dividends received as operating activities on the statement of consolidated cash flows as of September 30, 2020. The nature of the distribution approach requires the Company to classify distributions from equity method investments on the basis of the nature of the activities of the investee that generated the distribution as either a return on investment (classified as a cash inflow of operating activities) or a return of investment (classified as a cash inflow from investing activities) when such information is available.
The SREIT reports its financial statements in accordance with the International Financial Reporting Standards and uses the US dollar as its reporting currency, as such, the Company must make certain adjustments to the SREIT’s financial information to reflect U.S. GAAP before applying the equity method of accounting. Summarized financial information for the SREIT in accordance with U.S. GAAP follows (in thousands):
As of
  September 30, 2020 December 31, 2019
Real estate, net
$ 1,333,418  $ 1,201,050 
Total assets 1,378,963  1,260,540 
Notes payable, net
471,562  432,824 
Total liabilities 547,902  473,540 
Total equity 831,061  787,000 

For the Three Months Ended September 30, 2020 For the Nine Months Ended September 30, 2020 For the Period from July 19, 2019 to September 30, 2019
Total revenues $ 36,623  $ 108,993  $ 27,373 
Net income (loss) 2,144  (12,830) (8,153)
Company’s share of net income (loss) (1)
$ 588  $ (3,504) $ (2,556)
_____________________
(1) The Company’s share of net income (loss) for the nine months ended September 30, 2020 excludes the $2.1 million gain recorded to reflect the net effect to the Company’s investment as a result of the net proceeds raised by the SREIT in a private offering in February 2020, which was classified in equity in loss from an unconsolidated entity on the consolidated statement of operations.

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
8. NOTES PAYABLE
As of September 30, 2020 and December 31, 2019, the Company’s notes payable consisted of the following (dollars in thousands):
 
Book Value as of
September 30, 2020
Book Value as of
December 31, 2019
Contractual Interest Rate as of
September 30, 2020 (1)
Effective Interest Rate as of
September 30, 2020 (1)
Payment Type
Maturity Date (2)
Anchor Centre Mortgage Loan (3)
$ 48,590  $ 49,043 
One-month LIBOR + 1.50%
1.65% Principal & Interest 12/1/2020
201 17th Street Mortgage Loan (4)
—  64,750 
(4)
(4)
(4)
(4)
The Almaden Mortgage Loan
93,000  93,000  4.20% 4.20% Interest Only 01/01/2022
201 Spear Street Mortgage Loan 125,000  125,000 
One-month LIBOR + 1.45%
1.60% Interest Only 01/05/2024
Carillon Mortgage Loan 111,000  111,000 
One-month LIBOR +1.40%
1.55% Interest Only 04/11/2024
Portfolio Loan Facility (5)
683,225  684,225 
One-month LIBOR + 1.80%
1.95% Interest Only 11/03/2020
Modified Portfolio Revolving Loan Facility (6)
292,622  196,113 
One-month LIBOR + 1.50%
1.65% Interest Only 03/01/2023
3001 & 3003 Washington Mortgage Loan
143,245  143,245 
One-month LIBOR + 1.45%
1.60%
Interest Only (7)
06/01/2024
Total notes payable principal outstanding 1,496,682  1,466,376 
Deferred financing costs, net (4,557) (6,497)
Total Notes Payable, net $ 1,492,125  $ 1,459,879 
_____________________
(1) Contractual interest rate represents the interest rate in effect under the loan as of September 30, 2020. Effective interest rate is calculated as the actual interest rate in effect as of September 30, 2020, consisting of the contractual interest rate and using interest rate indices as of September 30, 2020, where applicable. For information regarding the Company’s derivative instruments, see Note 9, “Derivative Instruments.”
(2) Represents the maturity date as of September 30, 2020; subject to certain conditions, the maturity dates of certain loans may be extended beyond the dates shown.
(3) As of September 30, 2020, the Anchor Centre Mortgage Loan has one six-month extension option to June 1, 2021, subject to conditions contained in the loan modification agreement.
(4) On January 23, 2020, the 201 17th Street Mortgage Loan was paid off and the 201 17th Street property was added to the collateral of the Portfolio Revolving Loan Facility. See below, “- Recent Financing Transaction - Modified Portfolio Revolving Loan Facility.”
(5) As of September 30, 2020, the Portfolio Loan Facility was secured by RBC Plaza, Preston Commons, Sterling Plaza, Towers at Emeryville, Ten Almaden, Town Center and Accenture Tower. As of September 30, 2020, the face amount of the Portfolio Loan Facility was $911.0 million, of which $683.2 million is term debt and $227.8 million is revolving debt. As of September 30, 2020, the outstanding balance under the loan consisted of $683.2 million of term debt. As of September 30, 2020, an additional $227.8 million of revolving debt remained available for immediate future disbursements, subject to certain conditions set forth in the loan agreement. Subsequent to September 30, 2020, the Company released Accenture Tower as security from the Portfolio Loan Facility and exercised a one-year extension option to extend the maturity date to November 3, 2021. There is an additional one-year extension option remaining on the Portfolio Loan Facility. See Note 13, “Subsequent Events - Accenture Tower Revolving Loan” and “- Modified Portfolio Loan Facility.”
(6) See below, “- Recent Financing Transaction - Modified Portfolio Revolving Loan Facility.”
(7) Represents the payment type required as of September 30, 2020. Certain future monthly payments due under the loan also include amortizing principal payments. For more information on the Company’s contractual obligations under its notes payable, see the five-year maturity table below.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
During the three and nine months ended September 30, 2020, the Company incurred $8.9 million and $71.5 million of interest expense, respectively. During the three and nine months ended September 30, 2019, the Company incurred $20.4 million and $105.7 million of interest expense, respectively. Included in interest expense was: (i) the amortization of deferred financing costs of $1.1 million and $3.2 million for the three and nine months ended September 30, 2020, respectively, and $1.2 million and $4.3 million for the three and nine months ended September 30, 2019, respectively, and (ii) interest expense (including gains and losses) incurred as a result of the Company’s derivative instruments, which increased interest expense by $0.3 million and $38.9 million for the three and nine months ended September 30, 2020, respectively, and $3.3 million and $38.6 million for the three and nine months ended September 30, 2019, respectively. Additionally, the Company capitalized $0.6 million and $1.7 million of interest related to construction in progress during the three and nine months ended September 30, 2019, respectively. No interest was capitalized during the three and nine months ended September 30, 2020. As of September 30, 2020 and December 31, 2019, $4.0 million and $4.5 million of interest expense were payable, respectively.
The following is a schedule of maturities, including principal amortization payments, for all notes payable outstanding as of September 30, 2020 (in thousands):
October 1, 2020 through December 31, 2020 (1)
$ 731,815 
2021 — 
2022 93,000 
2023 292,622 
2024 379,245 
$ 1,496,682 
_____________________
(1) Subsequent to September 30, 2020, the Company released Accenture Tower as security from the Portfolio Loan Facility and exercised a one-year extension option to extend the maturity date to November 3, 2021. See Note 13, “Subsequent Events - Accenture Tower Revolving Loan” and “- Modified Portfolio Loan Facility.”
The Company’s notes payable contain financial debt covenants. As of September 30, 2020, the Company was in compliance with these debt covenants.
Recent Financing Transaction
Modified Portfolio Revolving Loan Facility
On October 17, 2018, the Company, through indirect wholly owned subsidiaries, entered into a three-year loan facility with U.S. Bank, N.A., as administrative agent (the “Agent”), for a committed amount of up to $215.0 million (the “Portfolio Revolving Loan Facility”).
On January 23, 2020, the Company, through indirect wholly owned subsidiaries (collectively, the “Borrower”), entered into a first modification and additional advance agreement (the “Modified Portfolio Revolving Loan Facility”) with the Agent and the Lenders (defined below) to (i) increase the committed amount by $110.0 million to $325.0 million, subject to certain conditions in the loan agreement, (ii) add 201 17th Street as collateral for the Modified Portfolio Revolving Loan Facility, and (iii) reset the loan term. The Modified Portfolio Revolving Loan Facility is composed of $162.5 million of term debt and $162.5 million of revolving debt. The lenders under the Modified Portfolio Revolving Loan Facility are U.S. Bank, N.A., Regions Bank, Citizens Bank, City National Bank and Associated Bank, N.A. (the “Lenders”).
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
On January 23, 2020, the Company drew $66.5 million on the Modified Portfolio Revolving Loan Facility of which $64.9 million was used to pay off the 201 17th Street Mortgage Loan and the remaining amount was used to pay origination fees and accrued interest. As of September 30, 2020, a total of $292.6 million was funded under the Modified Portfolio Revolving Loan Facility, of which $162.5 million was term debt and $130.1 million was revolving debt. As of September 30, 2020, an additional $32.4 million of revolving debt is available upon satisfaction of certain conditions set forth in the loan documents. The Modified Portfolio Revolving Loan Facility may be used for working capital, capital expenditures, real property acquisitions and other corporate purposes.
The initial maturity date of the Modified Portfolio Revolving Loan Facility is March 1, 2023, with two 12-month extension options, subject to certain terms, conditions and fees as described in the loan documents. The Modified Portfolio Revolving Loan Facility bears interest at a floating rate of 150 basis points over one-month LIBOR. Monthly payments are interest only with the entire balance and all outstanding interest and fees due at maturity. The Company will have the right to prepay all or a portion of the Modified Portfolio Revolving Loan Facility, subject to certain expenses potentially incurred by the Lender as a result of the prepayment and subject to certain conditions contained in the loan documents. During the term of the Modified Portfolio Revolving Loan Facility, the Company has an option to increase the committed amount of the Modified Portfolio Revolving Loan Facility up to four times with each increase of the committed amount to be at least $15.0 million but no greater than, in the aggregate, an additional $325.0 million so that the committed amount will not exceed $650.0 million, of which 50% would be term debt and 50% would be revolving debt, with the addition of one or more properties to secure the loan, subject to certain terms and conditions contained in the loan documents. In addition, the Modified Portfolio Revolving Loan Facility contains customary representations and warranties, financial and other covenants, events of default and remedies typical for this type of facility. The Modified Portfolio Revolving Loan Facility is secured by 515 Congress, Domain Gateway, the McEwen Building, Gateway Tech Center and 201 17th Street.
KBS REIT Properties III, LLC (“REIT Properties III”), the Company’s wholly owned subsidiary, is providing a guaranty of (i) up to 25% of the committed amount under the Modified Portfolio Revolving Loan Facility, as such amount may be adjusted from time to time pursuant to the terms of the loan documents, (ii) payment of, and agrees to protect, defend, indemnify and hold harmless each Lender for, from and against, any liability, obligation, deficiency, loss, damage, costs and expenses (including reasonable attorney’s fees), and any litigation which may at any time be imposed upon, incurred or suffered by any Lender because of (a) certain intentional acts committed by any Borrower, (b) fraud or intentional misrepresentations by Borrower or REIT Properties III in connection with the loan documents as described in the guaranty agreement, and (c) certain bankruptcy or liquidation proceedings under state or federal law, and (iii) payment for liability that is incurred and related to certain environmental matters.

9. DERIVATIVE INSTRUMENTS
The Company enters into derivative instruments for risk management purposes to hedge its exposure to cash flow variability caused by changing interest rates. The primary goal of the Company’s risk management practices related to interest rate risk is to prevent changes in interest rates from adversely impacting the Company’s ability to achieve its investment return objectives. The Company does not enter into derivatives for speculative purposes.
The Company enters into interest rate swaps as a fixed rate payer to mitigate its exposure to rising interest rates on its variable rate notes payable. The value of interest rate swaps is primarily impacted by interest rates, market expectations about interest rates, and the remaining life of the instrument. In general, increases in interest rates, or anticipated increases in interest rates, will increase the value of the fixed rate payer position and decrease the value of the variable rate payer position. As the remaining life of the interest rate swap decreases, the value of both positions will generally move towards zero.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
As of September 30, 2020, the Company has entered into 10 interest rate swaps, which were not designated as hedging instruments. The following table summarizes the notional amount and other information related to the Company’s interest rate swaps as of September 30, 2020 and December 31, 2019. The notional amount is an indication of the extent of the Company’s involvement in each instrument at that time, but does not represent exposure to credit, interest rate or market risks (dollars in thousands):
  September 30, 2020 December 31, 2019   Weighted-Average
Fix Pay Rate
Weighted-Average Remaining
Term in Years
Derivative Instruments Number of Instruments Notional Amount Number of Instruments Notional Amount
Reference Rate as of
September 30, 2020
Derivative instruments not designated as hedging instruments
Interest rate swaps (1)
10 $ 1,140,640  11 $ 960,963 
One-month LIBOR/
Fixed at 1.16% - 2.11%
1.9% 2.1
_____________________
(1) Includes one forward interest rate swap in the amount of $65.0 million, which will become effective in November 2020 and matures in 2023. During the three and nine months ended September 30, 2020, one of the Company’s interest rate swaps matured.
The following table sets forth the fair value of the Company’s derivative instruments as well as their classification on the consolidated balance sheets as of September 30, 2020 and December 31, 2019 (dollars in thousands):
September 30, 2020 December 31, 2019
Derivative Instruments Balance Sheet Location
Number of
Instruments (1)
Fair Value Number of
Instruments
Fair Value
Derivative instruments not designated as hedging instruments
Interest rate swaps
Prepaid expenses and other assets, at fair value
$ —  3 $ 1,553 
Interest rate swaps
Other liabilities, at fair value
10 $ (39,335) 8 $ (11,404)
_____________________
(1) During the three and nine months ended September 30, 2020, one of the Company’s interest rate swaps matured.
The following table summarizes the effects of derivative instruments on the Company’s consolidated statements of operations (in thousands):
  For the Three Months Ended September 30, For the Nine Months Ended September 30,
  2020 2019 2020 2019
Derivatives not designated as hedging instruments
Realized loss (gain) recognized on interest rate swaps $ 4,798  $ (491) $ 9,427  $ (3,118)
Unrealized (gain) loss on interest rate swaps (4,532) 3,807  29,484  41,706 
Increase in interest expense as a result of derivatives $ 266  $ 3,316  $ 38,911  $ 38,588 

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
10. FAIR VALUE DISCLOSURES
Under GAAP, the Company is required to measure certain financial instruments at fair value on a recurring basis. In addition, the Company is required to measure other non-financial and financial assets at fair value on a non-recurring basis (e.g., carrying value of impaired real estate loans receivable and long-lived assets). Fair value is defined as the price that would be received upon the sale of an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. The GAAP fair value framework uses a three-tiered approach. Fair value measurements are classified and disclosed in one of the following three categories:
Level 1: unadjusted quoted prices in active markets that are accessible at the measurement date for identical assets or liabilities;
Level 2: quoted prices for similar instruments in active markets, quoted prices for identical or similar instruments in markets that are not active, and model-derived valuations in which significant inputs and significant value drivers are observable in active markets; and
Level 3: prices or valuation techniques where little or no market data is available that requires inputs that are both significant to the fair value measurement and unobservable.
The fair value for certain financial instruments is derived using a combination of market quotes, pricing models and other valuation techniques that involve significant management judgment. The price transparency of financial instruments is a key determinant of the degree of judgment involved in determining the fair value of the Company’s financial instruments. Financial instruments for which actively quoted prices or pricing parameters are available and for which markets contain orderly transactions will generally have a higher degree of price transparency than financial instruments for which markets are inactive or consist of non-orderly trades. The Company evaluates several factors when determining if a market is inactive or when market transactions are not orderly. The following is a summary of the methods and assumptions used by management in estimating the fair value of each class of assets and liabilities for which it is practicable to estimate the fair value:
Cash and cash equivalents, restricted cash, rent and other receivables, and accounts payable and accrued liabilities: These balances approximate their fair values due to the short maturities of these items.
Derivative instruments: The Company’s derivative instruments are presented at fair value on the accompanying consolidated balance sheets. The valuation of these instruments is determined using a proprietary model that utilizes observable inputs. As such, the Company classifies these inputs as Level 2 inputs. The proprietary model uses the contractual terms of the derivatives, including the period to maturity, as well as observable market-based inputs, including interest rate curves and volatility. The fair values of interest rate swaps are estimated using the market standard methodology of netting the discounted fixed cash payments and the discounted expected variable cash receipts. The variable cash receipts are based on an expectation of interest rates (forward curves) derived from observable market interest rate curves. In addition, credit valuation adjustments, which consider the impact of any credit risks to the contracts, are incorporated in the fair values to account for potential nonperformance risk.
Real estate loan receivable: The Company’s real estate loan receivable is presented in the accompanying consolidated balance sheets at its amortized cost net of an allowance for credit losses and not at fair value. The fair value of the real estate loan receivable was estimated using an internal valuation model that considered the expected cash flows for the loan, underlying collateral value and estimated yield requirements of institutional investors for loans with similar characteristics, including remaining loan term, loan-to-value, type of collateral and other credit enhancements. The Company classifies these inputs as Level 3 inputs.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
Notes payable: The fair values of the Company’s notes payable are estimated using a discounted cash flow analysis based on management’s estimates of current market interest rates for instruments with similar characteristics, including remaining loan term, loan-to-value ratio, type of collateral and other credit enhancements. Additionally, when determining the fair value of a liability in circumstances in which a quoted price in an active market for an identical liability is not available, the Company measures fair value using (i) a valuation technique that uses the quoted price of the identical liability when traded as an asset or quoted prices for similar liabilities when traded as assets or (ii) another valuation technique that is consistent with the principles of fair value measurement, such as the income approach or the market approach. The Company classifies these inputs as Level 3 inputs.
The following were the face values, carrying amounts and fair values of the Company’s real estate loan receivable as of September 30, 2020 and of the Company’s notes payable as of September 30, 2020 and December 31, 2019, which carrying amounts generally do not approximate the fair values (in thousands):
  September 30, 2020 December 31, 2019
  Face Value Carrying Amount Fair Value Face Value Carrying Amount Fair Value
Financial assets:
Real estate loan receivable (1)
$ 150,213  $ 148,290  $ 148,290  $ —  $ —  $ — 
Financial liabilities:
Notes payable $ 1,496,682  $ 1,492,125  $ 1,476,002  $ 1,466,376  $ 1,459,879  $ 1,469,293 
_____________________
(1) Carrying amount represents outstanding principal balance, adjusted for unamortized origination discounts and origination costs and net of an allowance for credit losses.
Disclosure of the fair values of financial instruments is based on pertinent information available to the Company as of the period end and requires a significant amount of judgment. Low levels of transaction volume for certain financial instruments have made the estimation of fair values difficult and, therefore, both the actual results and the Company’s estimate of value at a future date could be materially different.
As of September 30, 2020, the Company measured the following derivative instruments at fair value (in thousands):
    Fair Value Measurements Using
  Total         Quoted Prices in
Active Markets 
for Identical Assets
(Level 1)
Significant Other
Observable Inputs
(Level 2)
Significant Unobservable Inputs
(Level 3)
Recurring Basis:
Liability derivatives - interest rate swaps $ (39,335) $ —  $ (39,335) $ — 

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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
During the nine months ended September 30, 2020, the Company measured the following asset at fair value on a nonrecurring basis (in thousands):
    Fair Value Measurements Using
  Total Quoted Prices in
Active Markets 
for Identical Assets
(Level 1)
Significant Other
Observable Inputs
(Level 2)
Significant Unobservable Inputs
(Level 3)
Nonrecurring Basis:
Impaired real estate (1)
$ 80,500  $ —  $ —  $ 80,500 
_____________________
(1) Amount represents the fair value for a real estate asset impacted by an impairment charge during the nine months ended September 30, 2020, as of the date that the fair value measurement was made, which was March 31, 2020. The carrying value for the real estate asset may have subsequently increased or decreased from the fair value reflected due to activity that has occurred since the measurement date.
At March 31, 2020, one of the Company’s real estate properties was measured at its estimated fair value based on a discounted cash flow approach. The significant unobservable inputs the Company used in measuring the estimated fair value of this property include a discount rate of 9.00% and a terminal cap rate of 8.25%. See Note 3, “Real Estate – Impairment of Real Estate” for further discussion on the impaired real estate property.

11. RELATED PARTY TRANSACTIONS
The Company has entered into the Advisory Agreement with the Advisor and the Dealer Manager Agreement with the Dealer Manager. These agreements entitled the Advisor and/or the Dealer Manager to specified fees upon the provision of certain services with regard to the Offering and reimbursement of organization and offering costs incurred by the Advisor and the Dealer Manager on behalf of the Company and entitle the Advisor to specified fees upon the provision of certain services with regard to the investment of funds in real estate investments, the management of those investments, among other services, and the disposition of investments, as well as entitle the Advisor and/or the Dealer Manager to reimbursement of offering costs related to the dividend reinvestment plan incurred by the Advisor and the Dealer Manager on behalf of the Company and certain costs incurred by the Advisor in providing services to the Company. In addition, the Advisor is entitled to certain other fees, including an incentive fee upon achieving certain performance goals, as detailed in the Advisory Agreement. The Company has also entered into a fee reimbursement agreement with the Dealer Manager pursuant to which the Company agreed to reimburse the Dealer Manager for certain fees and expenses it incurs for administering the Company’s participation in the DTCC Alternative Investment Product Platform with respect to certain accounts of the Company’s investors serviced through the platform. The Advisor and Dealer Manager also serve or served as the advisor and dealer manager, respectively, for KBS Real Estate Investment Trust II, Inc. (“KBS REIT II”), Pacific Oak Strategic Opportunity REIT, Inc., formerly KBS Strategic Opportunity REIT, Inc. (“Pacific Oak Strategic Opportunity REIT”) (advisory agreement terminated as of October 31, 2019 and the dealer manager agreement terminated as of December 31, 2019), Pacific Oak Strategic Opportunity REIT II, Inc., formerly KBS Strategic Opportunity REIT II, Inc. (“Pacific Oak Strategic Opportunity REIT II”) (advisory agreement terminated as of October 31, 2019 and the dealer manager agreement terminated as of December 31, 2019) and KBS Growth & Income REIT, Inc. (“KBS Growth & Income REIT”).
On November 1, 2019, Pacific Oak Strategic Opportunity REIT and Pacific Oak Strategic Opportunity REIT II each entered into advisory agreements with a new external advisor, Pacific Oak Capital Advisors, LLC. Pacific Oak Capital Advisors, LLC is part of a group of companies formed, owned and managed by Keith D. Hall and Peter McMillan III. Together, through GKP Holding LLC, Messrs. Hall and McMillan continue to indirectly own a 33 1/3% interest in the Advisor and the Dealer Manager.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
As of January 1, 2019, the Company, together with KBS REIT II, KBS Growth & Income REIT, the Dealer Manager, the Advisor and other KBS-affiliated entities, had entered into an errors and omissions and directors and officers liability insurance program where the lower tiers of such insurance coverage were shared. The cost of these lower tiers is allocated by the Advisor and its insurance broker among each of the various entities covered by the program, and is billed directly to each entity. In June 2020, the Company renewed its participation in the program. The program is effective through June 30, 2021.
Pursuant to the terms of these agreements, summarized below are the related-party costs incurred by the Company for the three and nine months ended September 30, 2020 and 2019, respectively, and any related amounts payable as of September 30, 2020 and December 31, 2019 (in thousands):
  Incurred Payable as of
Three Months Ended September 30, Nine Months Ended September 30, September 30, December 31,
  2020 2019 2020 2019 2020 2019
Expensed
Asset management fees (1)
$ 5,311  $ 5,541  $ 15,704  $ 19,412  $ 8,836  $ 6,674 
Reimbursement of operating expenses (2) (3)
105  115  348  1,278  36  79 
Disposition fees (4)
—  9,483  213  9,483  —  — 
Capitalized
Acquisition fee on development project —  42  34  175  —  1,133 
$ 5,416  $ 15,181  $ 16,299  $ 30,348  $ 8,872  $ 7,886 
_____________________
(1) See “Deferral of Asset Management Fees” below.
(2) Reimbursable operating expenses primarily consists of internal audit personnel costs, accounting software and cybersecurity related expenses incurred by the Advisor under the Advisory Agreement. The Company has reimbursed the Advisor for the Company’s allocable portion of the salaries, benefits and overhead of internal audit department personnel providing services to the Company. These amounts totaled $86,000 and $271,000 for the three and nine months ended September 30, 2020, respectively, and $104,000 and $252,000 for the three and nine months ended September 30, 2019, respectively, and were the only type of employee costs reimbursed under the Advisory Agreement for the three and nine months ended September 30, 2020 and 2019, respectively. The Company will not reimburse for employee costs in connection with services for which the Advisor earns acquisition or origination fees or disposition fees (other than reimbursement of travel and communication expenses) or for the salaries or benefits the Advisor or its affiliates may pay to the Company’s executive officers. In addition to the amounts above, the Company reimburses the Advisor for certain of the Company's direct costs incurred from third parties that were initially paid by the Advisor on behalf of the Company.
(3) Prior to the Singapore Transaction closing on July 19, 2019, the Company and the Advisor had agreed to evenly divide certain costs and expenses related to the Singapore Transaction. As of September 30, 2019, the Company incurred $4.1 million of costs related to the Singapore Transaction, which were reimbursable by the SREIT upon a successful closing. These costs included legal, audit, tax, printing and other out-of-pocket costs that the Company incurred related to the Singapore Transaction. In October 2019, all of these costs had been reimbursed to the Company from the Advisor upon the Advisor receiving the reimbursement from the SREIT.
(4) Disposition fees with respect to real estate sold are included in the gain on sale of real estate, net, in the accompanying consolidated statements of operations.
In connection with the Offering, Messrs. Bren, Hall, McMillan and Schreiber agreed to provide additional indemnification to one of the participating broker-dealers.  The Company agreed to add supplemental coverage to its directors’ and officers’ insurance coverage to insure Messrs. Bren, Hall, McMillan and Schreiber’s obligations under this indemnification agreement in exchange for reimbursement by Messrs. Bren, Hall, McMillan and Schreiber to the Company for all costs, expenses and premiums related to this supplemental coverage. During the nine months ended September 30, 2020 and 2019, the Advisor incurred $74,000 and $64,000, respectively, for the costs of the supplemental coverage obtained by the Company.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
Deferral of Asset Management Fees
Pursuant to the Advisory Agreement, with respect to asset management fees accruing from March 1, 2014, the Advisor has agreed to defer, without interest, the Company’s obligation to pay asset management fees for any month in which the Company’s modified funds from operations (“MFFO”) for such month, as such term is defined in the practice guideline issued by the Institute for Portfolio Alternatives (formerly known as the Investment Program Association) in November 2010 and interpreted by the Company, excluding asset management fees, does not exceed the amount of distributions declared by the Company for record dates of that month. The Company remains obligated to pay the Advisor an asset management fee in any month in which the Company’s MFFO, excluding asset management fees, for such month exceeds the amount of distributions declared for the record dates of that month (such excess amount, an “MFFO Surplus”); however, any amount of such asset management fee in excess of the MFFO Surplus will also be deferred under the Advisory Agreement. If the MFFO Surplus for any month exceeds the amount of the asset management fee payable for such month, any remaining MFFO Surplus will be applied to pay any asset management fee amounts previously deferred in accordance with the Advisory Agreement.
However, notwithstanding the foregoing, any and all deferred asset management fees that are unpaid will become immediately due and payable at such time as the Company’s stockholders have received, together as a collective group, aggregate distributions (including distributions that may constitute a return of capital for federal income tax purposes) sufficient to provide (i) an 8.0% per year cumulative, noncompounded return on such net invested capital (the “Stockholders’ 8% Return”) and (ii) a return of their net invested capital, or the amount calculated by multiplying the total number of shares purchased by stockholders by the issue price, reduced by any amounts to repurchase shares pursuant to the Company’s share redemption program. The Stockholders’ 8% Return is not based on the return provided to any individual stockholder. Accordingly, it is not necessary for each of the Company’s stockholders to have received any minimum return in order for the Advisor to receive deferred asset management fees.
As of September 30, 2020 and December 31, 2019, the Company had accrued and deferred payment of $8.8 million and $6.7 million of asset management fees under the Advisory Agreement, respectively.
Lease to Affiliate
On May 29, 2015, the indirect wholly owned subsidiary (the “Lessor”) of the Company that owns 3003 Washington Boulevard entered into a lease with an affiliate of the Advisor (the “Lessee”) for 5,046 rentable square feet, or approximately 2.4% of the total rentable square feet, at 3003 Washington Boulevard. The lease commenced on October 1, 2015 and was to terminate on August 31, 2019. The annualized base rent, which represents annualized contractual base rental income, adjusted to straight-line any contractual tenant concessions (including free rent) and rent increases from the lease’s inception through the balance of the initial lease term, for this lease was approximately $0.2 million, and the average annual rental rate (net of rental abatements) over the lease term was $46.38 per square foot.
On March 14, 2019, the Lessor entered into a First Amendment to Deed of Lease with the Lessee to extend the lease period commencing on September 1, 2019 and terminating on August 31, 2024 (the “Amended Lease”) and set the annual base rent during the extension period. The annualized base rent from the commencement of the Amended Lease is approximately $0.3 million, and the average annual rental rate (net of rental abatements) over the term of the Amended Lease through its termination is $62.55 per square foot.
During the three and nine months ended September 30, 2020, the Company recognized $80,000 and $241,000 of revenue related to this lease, respectively. During the three and nine months ended September 30, 2019, the Company recognized $66,000 and $189,000 of revenue related to this lease, respectively.
Prior to their approval of the lease and the Amended Lease, the Company’s conflicts committee and board of directors determined the lease to be fair and reasonable to the Company.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
Portfolio Sale
On July 18, 2019, the Company sold the Singapore Portfolio to the SREIT, which is affiliated with Charles J. Schreiber, Jr., the Company’s Chief Executive Officer, President, Chairman of the Board and one of the Company’s directors. See Note 7, “Investment in an Unconsolidated Entity” for information related to the investment the Company made in the SREIT in connection with the Singapore Transaction. The SREIT is externally managed by a joint venture (the “Manager”) among KBS Asia Partners Pte. Ltd. (“KAP”), an entity in which Charles J. Schreiber, Jr. currently holds an indirect 50% ownership interest, and other entities unaffiliated with the Company. The SREIT is expected to pay the Manager an annual base fee of 10% of annual distributable income and an annual performance fee of 25% of the increase in distributions per unit of the SREIT from the preceding year; however, there would not be any performance fee for 2019, and in 2020 such fee will be based on an increase over projected distributions per unit. In addition, for acquisitions, the SREIT will pay the Manager an acquisition fee of 1% of the acquisition price of any real estate acquired. No acquisition fee was paid with respect to the SREIT’s acquisition of the Singapore Portfolio. The SREIT will also pay the Manager a divestment fee of 0.5% of the sale price of any real estate sold or divested and a development management fee of 3% of the total project costs incurred for development projects, to the extent the SREIT acquires a development project. A portion of these fees paid to the Manager will be paid to KBS Realty Advisors LLC, an affiliate of the Advisor and an entity controlled by Mr. Schreiber, for sub-advisory services. The Schreiber Trust, a trust whose beneficiaries are Charles J. Schreiber, Jr. and his family members, and the Linda Bren 2017 Trust also acquired units in the SREIT. The Schreiber Trust agreed that for the benefit of the Company it will not sell any portion of its respective units in the SREIT unless and until it has received the Company’s prior written consent, including the consent of the Company’s conflicts committee. The Linda Bren 2017 Trust has agreed for the benefit of the Company that it will not sell $5.0 million of its $10.0 million aggregate investment in the SREIT unless and until it has received the Company’s prior written consent, including the consent of the Company’s conflicts committee. Linda Bren is the spouse of the Company’s former director and president, who passed away in April 2019. In addition, Barbara R. Cambon, one of the Company’s former directors, accepted the positions of Chief Executive Officer and Chief Investment Officer of the Manager and will receive compensation for her services. In connection with her acceptance of these positions, Ms. Cambon resigned from the Company’s board of directors effective June 26, 2019.
During the nine months ended September 30, 2020 and 2019, no other business transactions occurred between the Company and KBS REIT II, Pacific Oak Strategic Opportunity REIT, Pacific Oak Strategic Opportunity REIT II, KBS Growth & Income REIT, the Advisor, the Dealer Manager or other KBS-affiliated entities. See Note 12 “Commitments and Contingencies - Participation Fee Liability”.

12. COMMITMENTS AND CONTINGENCIES
Economic Dependency
The Company is dependent on the Advisor for certain services that are essential to the Company, including the identification, evaluation, negotiation, origination, acquisition and disposition of investments; management of the daily operations of the Company’s investment portfolio; and other general and administrative responsibilities. In the event that the Advisor is unable to provide the respective services, the Company will be required to obtain such services from other sources.
Legal Matters
From time to time, the Company may be party to legal proceedings that arise in the ordinary course of its business. Management is not aware of any legal proceedings of which the outcome is probable or reasonably possible to have a material adverse effect on the Company’s results of operations or financial condition, which would require accrual or disclosure of the contingency and possible range of loss. Additionally, the Company has not recorded any loss contingencies related to legal proceedings in which the potential loss is deemed to be remote.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
Environmental
As an owner of real estate, the Company is subject to various environmental laws of federal, state and local governments. Compliance with existing environmental laws is not expected to have a material adverse effect on the Company’s financial condition and results of operations as of September 30, 2020.
Participation Fee Liability
In accordance with the Advisory Agreement with the Advisor, the Advisor is entitled to receive a participation fee equal to 15.0% of the Company’s net cash flows, whether from continuing operations, net sale proceeds or otherwise, after the Company’s stockholders have received, together as a collective group, aggregate distributions (including distributions that may constitute a return of capital for federal income tax purposes) sufficient to provide (i) a return of their net invested capital, or the amount calculated by multiplying the total number of shares purchased by stockholders by the issue price, reduced by any amounts to repurchase shares pursuant to the share redemption program, and (ii) an 8.0% per year cumulative, noncompounded return on such net invested capital. Net sales proceeds means the net cash proceeds realized by the Company after deduction of all expenses incurred in connection with a sale, including disposition fees paid to the Advisor. The 8.0% per year cumulative, noncompounded return on net invested capital is calculated on a daily basis. In making this calculation, the net invested capital is reduced to the extent distributions in excess of a cumulative, noncompounded, annual return of 8.0% are paid (from whatever source), except to the extent such distributions would be required to supplement prior distributions paid in order to achieve a cumulative, noncompounded, annual return of 8.0% (invested capital is only reduced as described in this sentence; it is not reduced simply because a distribution constitutes a return of capital for federal income tax purposes). The 8.0% per year cumulative, noncompounded return is not based on the return provided to any individual stockholder. Accordingly, it is not necessary for each of the Company’s stockholders to have received any minimum return in order for the Advisor to participate in the Company’s net cash flows. In fact, if the Advisor is entitled to participate in the Company’s net cash flows, the returns of the Company’s stockholders will differ, and some may be less than an 8.0% per year cumulative, noncompounded return. This fee is payable only if the Company is not listed on an exchange.
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Table of Contents
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
On January 9, 2020, the Company filed a definitive proxy statement with the SEC seeking approval from its stockholders of, among other proposals, two proposals related to the Company’s pursuit of conversion to a non-listed, perpetual-life “NAV REIT.” On May 7, 2020 at the Company’s annual meeting of stockholders, the Company’s stockholders approved the proposal to accelerate the payment of incentive compensation to the Advisor, upon the Company’s conversion to an NAV REIT. With respect to the incentive fee structure currently in effect with the Advisor, the triggering events for payment of the incentive fee are generally expected to occur, if ever, upon a listing of the Company’s shares of stock on a national securities exchange or a significant distribution of cash in connection with a sale of all or a substantial amount of the Company’s assets. These triggering events are inconsistent with a perpetual-life NAV REIT that intends to provide liquidity to its stockholders through a share redemption program and/or periodic self-tender offers. If the Company converts to an NAV REIT, in order to properly align the Advisor’s and its affiliates’ incentive fee compensation structure with the Company’s proposed perpetual-life strategy, the Company intends to revise its incentive fee structure. With respect to the historical performance period from inception through conversion to an NAV REIT, the Company sought and obtained stockholder approval to accelerate the payment of the incentive compensation upon conversion to a perpetual-life NAV REIT, subject to certain conditions. Such accelerated payment is subject to further approval of the conflicts committee of the Company’s board of directors, after the proposed amount of the accelerated payment of the incentive fee has been determined. In connection with the determination of the December 2019 estimated value per share of the Company’s common stock, the Advisor estimated the fair value of the potential liability related to the subordinated participation in net cash flows to be approximately $30 million as of the valuation date, based on a hypothetical liquidation of the assets and liabilities at their estimated fair values, after considering the impact of any potential closing costs and fees related to the disposition of real estate properties. The fair value of the potential incentive fee liability is based on the estimated fair values of the Company’s assets and liabilities as of that date and changes to the fair values of assets and liabilities could have a material impact to the incentive fee calculation. The incentive fee is not currently payable to the Advisor, as it remains subject to further approval by the conflicts committee as well as the Company’s conversion to a perpetual-life NAV REIT, and there is no guarantee that it will ever be payable. As the global impact of the COVID-19 pandemic continues to evolve, severely impacting global economic activity and causing significant volatility and negative pressure in the financial markets, including the U.S. real estate office market and the industries of the Company’s tenants, the Company’s conflicts committee and board of directors continue to evaluate whether the proposed conversion to an NAV REIT remains in the best interest of the Company’s stockholders.

13. SUBSEQUENT EVENTS
The Company evaluates subsequent events up until the date the consolidated financial statements are issued.
Distributions Paid
On October 1, 2020, the Company paid distributions of $9.1 million, which related to distributions in the amount of $0.04983333 per share of common stock to stockholders of record as of the close of business on September 21, 2020. On November 2, 2020, the Company paid distributions of $9.2 million, which related to distributions in the amount of $0.04983333 per share of common stock to stockholders of record as of the close of business on October 20, 2020.
Distributions Authorized
On November 13, 2020, the Company’s board of directors authorized a November 2020 distribution in the amount of $0.04983333 per share of common stock to stockholders of record as of the close of business on November 20, 2020, which the Company expects to pay in December 2020, and a December 2020 distribution in the amount of $0.04983333 per share of common stock to stockholders of record as of the close of business on December 18, 2020, which the Company expects to pay in January 2021.
Investors may choose to receive cash distributions or purchase additional shares through the Company’s dividend reinvestment plan.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
Financings Subsequent to September 30, 2020
Accenture Tower Revolving Loan
On November 2, 2020, the Company, through an indirect wholly owned subsidiary (the “Accenture Tower Borrower”), entered into a three-year loan facility with U.S. Bank, National Association, as administrative agent, joint lead arranger and co-book runner; Bank of America, N.A., as syndication agent, joint lead arranger and co-book runner; and Deutsche Pfandbriefbank AG (together, the “Accenture Tower Lenders”), for a committed amount of up to $375.0 million (the “Accenture Tower Revolving Loan”), of which $281.3 million is term debt and $93.7 million is revolving debt. At closing, $281.3 million was funded, of which approximately $210.3 million was used to pay down the Portfolio Loan Facility. Also, at closing, the revolving portion of $93.7 million remained available for future disbursements, subject to certain terms and conditions contained in the loan documents. Subject to certain terms and conditions contained in the loan documents, the Accenture Tower Revolving Loan may be used for working capital, capital expenditures, real property acquisitions and other corporate purposes, provided that $30.0 million of the revolving debt is to be used for tenant improvements and lease commissions related to the Accenture lease although this restriction is released as the Company completes such projects. In addition, the Accenture Tower Revolving Loan contains customary representations and warranties, financial and other affirmative and negative covenants (including maintenance of an ongoing debt service coverage ratio), events of default and remedies typical for this type of facility.
The Accenture Tower Revolving Loan matures on November 2, 2023, with two 12-month extension options, subject to certain terms and conditions contained in the loan documents. The Accenture Tower Revolving Loan bears interest at a floating rate of 225 basis points over one-month LIBOR so long as the loan is subject to a lender provided swap. The Accenture Tower Revolving Loan includes provisions for a “LIBOR Successor Rate” in the event LIBOR is unascertainable or ceases to be available. Monthly payments are interest only with the entire balance and all outstanding interest and fees due at maturity. The Company will have the right to repay the loan in part and in whole subject to certain conditions contained in the loan documents.
REIT Properties III is providing a guaranty of (i) payment of, and agrees to protect, defend, indemnify and hold harmless each Accenture Tower Lender for, from and against, any liability, obligation, deficiency, loss, damage, costs and expenses (including reasonable attorney’s fees), and any litigation which may at any time be imposed upon, incurred or suffered by the Accenture Tower Lender because of (a) certain intentional acts committed by the Accenture Tower Borrower, (b) fraud or intentional misrepresentations by the Accenture Tower Borrower or REIT Properties III in connection with the loan documents as described in the guaranty agreement, and (c) certain bankruptcy or liquidation proceedings under state or federal law, and (ii) payment for liability that is incurred and related to certain environmental matters. In addition, REIT Properties III is providing a principal guaranty for up to 25% of the outstanding balance of the Accenture Tower Revolving Loan, which will convert to a principal guaranty of up to the funded amount of the revolving portion of the Accenture Tower Revolving Loan upon the Company meeting certain leasing and performance hurdles as set forth in the guaranty agreement.
Modified Portfolio Loan Facility
On November 3, 2017, the Company, through indirectly wholly owned subsidiaries, entered into a three-year loan facility with Bank of America, N.A., as administrative agent; Merrill Lynch Pierce Fenner & Smith Incorporated, Wells Fargo Securities, LLC and U.S. Bank, N.A., as joint lead arrangers and joint book runners; Wells Fargo Bank, NA, as syndication agent, and each of the financial institutions a signatory thereto (the “Portfolio Loan Facility Lenders”), for an amount of up to $1.01 billion (the “Portfolio Loan Facility”), of which $757.5 million is term debt and $252.5 million is revolving debt. The Portfolio Loan Facility had an initial maturity date of November 3, 2020, with two 12-month extension options, subject to certain terms and conditions contained in the loan documents.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (continued)
KBS REAL ESTATE INVESTMENT TRUST III, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
September 30, 2020
(unaudited)
On November 3, 2020, the Company, through indirect wholly owned subsidiaries, entered into a loan extension and modification agreement (the “Modified Portfolio Loan Facility”) with Bank of America, N.A., as administrative agent for the Portfolio Loan Facility Lenders, to (i) extend the maturity date of the Modified Portfolio Loan Facility to November 3, 2021 and (ii) modify the loan documents to include provisions for a “LIBOR Successor Rate” in the event LIBOR is unascertainable or ceases to be available. As of November 3, 2020, the face amount of the Portfolio Loan Facility was $630.6 million, of which $472.9 million was term debt and $157.7 million was revolving debt. As of November 3, 2020, the outstanding balance under the Portfolio Loan Facility consisted of $472.9 million of term debt. The entire revolving portion of the Portfolio Loan Facility remains available for future disbursements, subject to certain terms and conditions contained in the loan documents. The Modified Portfolio Loan Facility has one additional 12-month extension option, subject to certain terms and conditions as described in the loan documents. The Modified Portfolio Loan Facility is secured by RBC Plaza, Preston Commons, Sterling Plaza, Towers at Emeryville, Ten Almaden and Town Center. Accenture Tower was released as security from the loan in connection with the entry into the Accenture Tower Revolving Loan.
Amended and Restated Bylaws
Effective November 13, 2020, the Company’s board of directors approved the Company’s Third Amended and Restated Bylaws (the “Amended Bylaws”) to clarify the scope of Article XIV, the exclusive forum provision for certain litigation. The Amended Bylaws revise Article XIV to clarify that the exclusive forum provision in Article XIV does not apply to claims under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts have exclusive jurisdiction. The Amended Bylaws are attached to this Quarterly Report on Form 10-Q as Exhibit 3.2.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis should be read in conjunction with the accompanying financial statements of KBS Real Estate Investment Trust III, Inc. and the notes thereto. As used herein, the terms “we,” “our” and “us” refer to KBS Real Estate Investment Trust III, Inc., a Maryland corporation, and, as required by context, KBS Limited Partnership III, a Delaware limited partnership, which we refer to as the “Operating Partnership,” and to their subsidiaries.

Forward-Looking Statements
Certain statements included in this Quarterly Report on Form 10-Q are forward-looking statements. Those statements include statements regarding the intent, belief or current expectations of KBS Real Estate Investment Trust III, Inc. and members of our management team, as well as the assumptions on which such statements are based, and generally are identified by the use of words such as “may,” “will,” “seeks,” “anticipates,” “believes,” “estimates,” “expects,” “plans,” “intends,” “should” or similar expressions. Actual results may differ materially from those contemplated by such forward-looking statements. Further, forward-looking statements speak only as of the date they are made, and we undertake no obligation to update or revise forward-looking statements to reflect changed assumptions, the occurrence of unanticipated events or changes to future operating results over time, unless required by law. Moreover, you should interpret many of the risks identified in this report, as well as the risks set forth below, as being heightened as a result of the ongoing and numerous adverse impacts of the COVID-19 pandemic.
The following are some of the risks and uncertainties, although not all of the risks and uncertainties, that could cause our actual results to differ materially from those presented in our forward-looking statements:
The COVID-19 pandemic, together with the resulting measures imposed to help control the spread of the virus, including quarantines, “shelter in place” and “stay at home” orders, travel restrictions, restrictions on businesses, and school closures, has had a negative impact on the economy and business activity globally. The extent to which the COVID-19 pandemic impacts our operations and those of our tenants and our investments in Prime US REIT (the “SREIT”) and a real estate loan receivable depends on future developments, which are highly uncertain and cannot be predicted with confidence, including the scope, severity and duration of the pandemic, the actions taken to contain the pandemic or mitigate its impact, and the direct and indirect economic effects of the pandemic and containment measures, among others.
We are dependent on KBS Capital Advisors LLC (“KBS Capital Advisors”), our advisor, to identify investments, to manage our investments and for the disposition of our investments.
All of our executive officers, our affiliated director and other key real estate and debt finance professionals are also officers, affiliated directors, managers, key professionals and/or holders of a direct or indirect controlling interest in our advisor, our dealer manager and/or other KBS-affiliated entities. As a result, our executive officers, our affiliated director, some of our key real estate and debt finance professionals, our advisor and its affiliates face conflicts of interest, including significant conflicts created by our advisor’s and its affiliates’ compensation arrangements with us and other KBS-sponsored programs and KBS-advised investors and conflicts in allocating time among us and these other programs and investors. Furthermore, these individuals may become employees of another KBS-sponsored program in an internalization transaction or, if we internalize our advisor, may not become our employees as a result of their relationship with other KBS-sponsored programs. These conflicts could result in action or inaction that is not in the best interests of our stockholders.
Our advisor and its affiliates currently receive fees in connection with transactions involving the purchase or origination, management and disposition of our investments. Acquisition and asset management fees are based on the cost of the investment, and not based on the quality of the investment or the quality of the services rendered to us. This may influence our advisor to recommend riskier transactions to us. We may also pay significant fees during our listing/liquidation stage. Although most of the fees payable during our listing/liquidation stage are contingent on our stockholders first enjoying agreed-upon investment returns, the investment return thresholds may be reduced subject to approval by our conflicts committee and to other limitations in our charter. These payments increase the risk that our stockholders will not earn a profit on their investment in us and increase the risk of loss to our stockholders. As discussed herein, our conflicts committee and our board of directors continue to evaluate whether the proposed conversion to a perpetual-life net asset value “NAV” REIT remains in the best interest of our stockholders. If we convert to an NAV REIT, we would implement a revised advisory fee structure.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Our charter permits us to pay distributions from any source, including offering proceeds or borrowings (which may constitute a return of capital), and our charter does not limit the amount of funds we may use from any source to pay such distributions. From time to time during our operational stage, we may use proceeds from third party financings to fund at least a portion of distributions in anticipation of cash flow to be received in later periods. We may also fund such distributions from the sale of properties or from the sale, maturity, payoff or settlement of real estate-related investments. If we pay distributions from sources other than our cash flow from operations, the overall return to our stockholders may be reduced.
We may incur debt until our total liabilities would exceed 75% of the cost of our tangible assets (before deducting depreciation and other non-cash reserves), and we may exceed this limit with the approval of the conflicts committee of our board of directors. To the extent financing in excess of this limit is available on attractive terms, our conflicts committee may approve debt such that our total liabilities would exceed this limit. High debt levels could limit the amount of cash we have available to distribute and could result in a decline in the value of an investment in us.
We depend on tenants for the revenue generated by our real estate investments and, accordingly, the revenue generated by our real estate investments is dependent upon the success and economic viability of our tenants. Revenues from our properties could decrease due to a reduction in occupancy (caused by factors including, but not limited to, tenant defaults, tenant insolvency, early termination of tenant leases and non-renewal of existing tenant leases), rent deferrals or abatements, tenants becoming unable to pay their rent and/or lower rental rates, making it more difficult for us to meet our debt service obligations and limiting our ability to pay distributions to our stockholders. During the second and third quarters, we granted rent relief to a number of tenants as a result of the pandemic, and these tenants or additional tenants may request rent relief in future periods or become unable to pay rent and therefore, we are unable to predict the impact that the pandemic will have on the financial condition, results of operations and cash flows of our tenants and us due to numerous uncertainties.
Our significant investment in the equity securities of the SREIT, a traded Singapore real estate investment trust (the “SREIT”), is subject to the risks associated with real estate investments as well as the risks inherent in investing in traded securities, including, in this instance, risks related to blockage due to the quantity of units held by us and risks related to the trading volume of the units. The COVID-19 pandemic has caused significant negative pressure in the financial markets. Since March 2020, the trading price of the common units of the SREIT has declined substantially and experienced substantial volatility.
Revenues from the property securing our investment in a real estate loan receive could decrease, making it more difficult for the borrower under this loan to meet its payment obligations to us. Decreases in revenues from the property securing our loan investment could result in a decreased valuation for the property, which could make it difficult for the borrower to repay or refinance its debt to us.
Because investment opportunities that are suitable for us may also be suitable for other KBS-sponsored programs or KBS-advised investors, our advisor and its affiliates face conflicts of interest relating to the purchase of properties and other investments and such conflicts may not be resolved in our favor, meaning that we could invest in less attractive assets, which could reduce the investment return to our stockholders.
We cannot predict with any certainty how much, if any, of our dividend reinvestment plan proceeds will be available for general corporate purposes including, but not limited to: the repurchase of shares under our share redemption program; capital expenditures, tenant improvement costs and leasing costs related to our real estate properties; reserves required by any financings of our real estate investments; the acquisition or origination of real estate investments; and the repayment of debt. If such funds are not available from our dividend reinvestment plan offering, then we may have to use a greater proportion of our cash flow from operations to meet these cash requirements, which would reduce cash available for distributions and could limit our ability to redeem shares under our share redemption program.
Disruptions in the financial markets and uncertain economic conditions could adversely affect our ability to implement our business strategy and generate returns to stockholders. In addition, our real estate and real estate-related investments may be affected by unfavorable real estate market and general economic conditions, which could decrease the value of those assets and reduce the investment return to our stockholders.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Our board of directors and management team regularly monitor the real estate and equity markets in order to find the best opportunities possible to continue to provide attractive and stable cash distributions to our stockholders and provide additional liquidity for our stockholders. One alternative for us to achieve these objectives may be for us to pursue conversion to a non-listed, perpetual-life NAV REIT. In connection with our pursuit of conversion to an NAV REIT, on January 10, 2020, we filed a registration statement on Form S-11 with the SEC to register a public offering. Pursuant to the registration statement, we propose to register up to $2,000,000,000 of shares of common stock, consisting of up to $1,700,000,000 in shares in a primary offering and up to $300,000,000 in shares pursuant to a dividend reinvestment plan. As the global impact of the COVID-19 pandemic continues to evolve, severely impacting global economic activity and causing significant volatility and negative pressure in the financial markets, including the U.S. real estate office market and the industries of our tenants, our conflicts committee and our board of directors continue to evaluate whether the proposed NAV REIT conversion remains in the best interest of our stockholders. Accordingly, we can give no assurance that we will continue to pursue a conversion to an NAV REIT or that if we do pursue conversion to an NAV REIT that we would commence or complete the proposed offering. Even if we convert to an NAV REIT, there is no assurance that we will successfully implement our strategy, and we can provide no assurance that our NAV REIT strategy will be able to provide additional liquidity to stockholders. Further, although we are exploring an NAV REIT strategy, there is no assurance that this process will provide a return to stockholders that equals or exceeds our estimated value per share.
Our charter does not require us to liquidate our assets and dissolve by a specified date, nor does our charter require our directors to list our shares for trading by a specified date. No public market currently exists for our shares of common stock, and we have no plans at this time to list our shares on a national securities exchange. Until our shares are listed, if ever, our stockholders may not sell their shares unless the buyer meets the applicable suitability and minimum purchase standards. Any sale must comply with applicable state and federal securities laws. In addition, our charter prohibits the ownership of more than 9.8% of our stock, unless exempted by our board of directors, which may inhibit large investors from purchasing our shares. Our shares cannot be readily sold and, if our stockholders are able to sell their shares, they would likely have to sell them at a substantial discount from the price our stockholders paid to acquire the shares and from our estimated value per share.
In connection with our pursuit of a NAV REIT strategy, in December 2019, the board of directors determined to temporarily suspend Ordinary Redemptions (defined below) under the share redemption program, and Ordinary Redemptions remain suspended as we navigate through the impact of the COVID-19 pandemic and evaluate our proposed conversion to an NAV REIT. Ordinary Redemptions are all redemptions that do not qualify for the special provisions for redemptions sought in connection with a stockholder’s death, “Qualifying Disability” or “Determination of Incompetence” (each as defined in the share redemption program). Redemptions sought in connection with a stockholder’s death, “Qualifying Disability” or “Determination of Incompetence” are “Special Redemptions.” Upon suspension, all Ordinary Redemptions requests that had been received were cancelled and no Ordinary Redemptions requests will be accepted or collected during the suspension of the share redemption program. Under the current share redemption program, during any calendar year, we may redeem (i) only the number of shares that we could purchase with the amount of net proceeds from the sale of shares under our dividend reinvestment plan during the prior calendar year unless our board of directors authorizes additional funds for redemption, provided that once we have received requests for redemptions, whether in connection with Special Redemptions or otherwise, that if honored, and when combined with all prior redemptions made during the calendar year, would result in the amount of remaining funds available for the redemption of additional shares in such calendar year being $10.0 million or less, the last $10.0 million of available funds shall be reserved exclusively for Special Redemptions and (ii) no more than 5% of the weighted average number of shares outstanding during the prior calendar year. As of October 31, 2020, we had $42.7 million available for Special Redemptions for the remainder of 2020. We cannot predict future redemption demand with any certainty. If future redemption requests exceed the amount of funding available under our share redemption program and/or any additional funding made available under one or more self-tender offers, the number of rejected redemption or repurchase requests will increase over time.
All forward-looking statements should be read in light of the risks identified in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2019, as filed with the Securities and Exchange Commission (the “SEC”), and the risks identified in Part II, Item 1A herein.

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Overview
We were formed on December 22, 2009 as a Maryland corporation that elected to be taxed as a real estate investment trust (“REIT”) beginning with the taxable year ended December 31, 2011 and we intend to continue to operate in such a manner. We conduct our business primarily through our Operating Partnership, of which we are the sole general partner. Subject to certain restrictions and limitations, our business is managed by our advisor pursuant to an advisory agreement and our advisor conducts our operations and manages our portfolio of real estate investments. Our advisor owns 20,857 shares of our common stock. We have no paid employees.
We have invested in a diverse portfolio of real estate investments. As of September 30, 2020, we owned 18 office properties, one mixed-use office/retail property and an investment in the equity securities of the SREIT, which is accounted for as an investment in an unconsolidated entity under the equity method of accounting. In addition, we had originated one real estate loan receivable secured by a deed of trust.
On July 18, 2019, we, through 12 wholly owned subsidiaries, sold 11 of our properties (the “Singapore Portfolio”) to the SREIT, which was listed on the Singapore Stock Exchange on July 19, 2019 (the “Singapore Transaction”).
On February 4, 2010, we filed a registration statement on Form S-11 with the SEC to offer a minimum of 250,000 shares and a maximum of up to 280,000,000 shares, or up to $2,760,000,000 of shares, of common stock for sale to the public, of which up to 200,000,000 shares, or up to $2,000,000,000 of shares, were registered in our primary offering and up to 80,000,000 shares, or up to $760,000,000 of shares, were registered under our dividend reinvestment plan. We ceased offering shares of common stock in our primary offering on May 29, 2015 and terminated the primary offering on July 28, 2015.
We sold 169,006,162 shares of common stock in our now-terminated primary initial public offering for gross offering proceeds of $1.7 billion. As of September 30, 2020, we had also sold 35,640,784 shares of common stock under our dividend reinvestment plan for gross offering proceeds of $367.9 million. Also as of September 30, 2020, we had redeemed or repurchased 29,230,344 shares sold in our initial public offering for $320.1 million.
Additionally, on October 3, 2014, we issued 258,462 shares of common stock, for $2.4 million, in private transactions exempt from the registration requirements pursuant to Section 4(a)(2) of the Securities Act of 1933.
We continue to offer shares of common stock under our dividend reinvestment plan. In some states, we will need to renew the registration statement annually or file a new registration statement to continue the dividend reinvestment plan offering. We may terminate our dividend reinvestment plan offering at any time.
Our board of directors and management team regularly monitor the real estate and equity markets in order to find the best opportunities possible to continue to provide attractive and stable cash distributions to our stockholders and provide additional liquidity for our stockholders. One alternative for us to achieve these objectives may be for us to pursue conversion to a non-listed, perpetual-life NAV REIT that calculates the net asset value or “NAV” per share on a regular basis that is more frequent that annually (i.e., daily, monthly or quarterly) and seeks to provide increased liquidity to current and future stockholders through an expansion of our current share redemption program and/or periodic self-tender offers. In connection with our pursuit of conversion to an NAV REIT, on January 10, 2020, we filed a registration statement on Form S-11 with the SEC to register a public offering. Pursuant to the registration statement, we propose to register up to $2,000,000,000 of shares of common stock, consisting of up to $1,700,000,000 in shares in a primary offering and up to $300,000,000 in shares pursuant to a dividend reinvestment plan. As the global impact of the COVID-19 pandemic continues to evolve, severely impacting global economic activity and causing significant volatility and negative pressure in the financial markets, including the U.S. real estate office market and the industries of our tenants, our conflicts committee and our board of directors continue to evaluate whether the proposed NAV REIT conversion remains in the best interest of our stockholders. Accordingly, we can give no assurance that we will continue to pursue a conversion to an NAV REIT or that if we do pursue conversion to an NAV REIT that we would commence or complete the proposed offering. Even if we convert to an NAV REIT, there is no assurance that we will successfully implement our strategy, and we can provide no assurance that our NAV REIT strategy will be able to provide additional liquidity to stockholders.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Section 5.11 of our charter requires that we seek stockholder approval of our liquidation if our shares of common stock are not listed on a national securities exchange by September 30, 2020, unless a majority of the conflicts committee of our board of directors, composed solely of all of our independent directors, determines that liquidation is not then in the best interest of our stockholders. Pursuant to our charter requirement, the conflicts committee assessed our portfolio of investments, and with consideration of the current market conditions, including the uncertainty as a result of the COVID-19 pandemic and lack of liquidity in the marketplace, as well as our pursuit of conversion to a perpetual-life NAV REIT, on August 11, 2020, our conflicts committee unanimously determined to postpone approval of our liquidation. Section 5.11 of our charter requires that the conflicts committee revisit the issue of liquidation at least annually. At our annual meeting of stockholders held on May 7, 2020, our stockholders approved the removal of Section 5.11 of our charter. As set forth in the proxy statement for our annual meeting of stockholders, implementation of this amendment to our charter and our conversion to an NAV REIT remain subject to further approval of our conflicts committee.

Market Outlook – Real Estate and Real Estate Finance Markets
Volatility in global financial markets and changing political environments can cause fluctuations in the performance of the U.S. commercial real estate markets.  Possible future declines in rental rates, slower or potentially negative net absorption of leased space and expectations of future rental concessions, including free rent to renew tenants early, to retain tenants who are up for renewal or to attract new tenants, may result in decreases in cash flows from investment properties. Further, revenues from our properties could decrease due to a reduction in occupancy (caused by factors including, but not limited to, tenant defaults, tenant insolvency, early termination of tenant leases and non-renewal of existing tenant leases), rent deferrals or abatements, tenants being unable to pay their rent and/or lower rental rates. To the extent there are increases in the cost of financing due to higher interest rates, this may cause difficulty in refinancing debt obligations at terms as favorable as the terms of existing indebtedness.  Further, increases in interest rates would increase the amount of our debt payments on our variable rate debt to the extent the interest rates on such debt are not fixed through interest rate swap agreements or limited by interest rate caps. Market conditions can change quickly, potentially negatively impacting the value of real estate investments. Management continuously reviews our investment and debt financing strategies to optimize our portfolio and the cost of our debt exposure. Most recently, the COVID-19 pandemic has had a negative impact on the real estate market as discussed below.
COVID-19 Pandemic and Portfolio Outlook
Since initially being reported in December 2019, COVID-19 has spread around the world, including to every state in the United States. On March 11, 2020, the World Health Organization declared COVID-19 a pandemic, and on March 13, 2020, the United States declared a national emergency with respect to COVID-19. The COVID-19 pandemic has severely impacted global economic activity and caused significant volatility and negative pressure in financial markets. The global impact of the pandemic continues to evolve and many countries, states and localities, including states and localities in the United States, have reacted by imposing measures to help control the spread of the virus, including instituting quarantines, “shelter in place” and “stay at home” orders, travel restrictions, restrictions on businesses and school closures. As a result, the COVID-19 pandemic is negatively impacting almost every industry, including the U.S. office real estate industry and the industries of our tenants, directly or indirectly. The fluidity of the COVID-19 pandemic continues to preclude any prediction as to the ultimate adverse impact the pandemic may have on our business, financial condition, results of operations and cash flows.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Many of our tenants have suffered reductions in revenue and since April 1, 2020, a number of tenants have requested rent relief, most in the form of rent deferrals or abatements. Depending upon the duration of the various measures imposed to help control the spread of the virus and the corresponding economic slowdown, these tenants or additional tenants may seek rent deferrals or abatements in future periods or become unable to pay their rent. Rent collections for the third quarter of 2020 were approximately 94%. We have granted a number of lease concessions related to the effects of the COVID-19 pandemic but these lease concessions did not have a material impact to our consolidated balance sheets as of September 30, 2020 or consolidated statements of operations for the three and nine months ended September 30, 2020. As of September 30, 2020, we had entered into lease amendments related to the effects of the COVID-19 pandemic, granting $2.6 million of rent deferrals for the period from March through September 2020, extending the timing of these rental payments to a later period through 2029, and granting $0.9 million in rental abatements. As of September 30, 2020, we had $2.4 million of receivables for lease payments that had been deferred as lease concessions related to the effects of the COVID-19 pandemic, of which $0.8 million was reserved for payments not probable of collection, which were included in rent and other receivables, net on the accompanying consolidated balance sheets. For the three and nine months ended September 30, 2020, we recorded $0.3 million and $0.9 million, respectively, of rental abatements granted to tenants as a result of the COVID-19 pandemic. Subsequent to September 30, 2020, we have not seen a material impact on our rent collections. We continue to evaluate short-term rent relief requests from several tenants, in the form of rent deferral requests or abatements, which we are evaluating on an individual basis. Most rent relief arrangements are expected to be structured as temporary short-term deferrals of base rent that will be paid back over time, either through increased rental payments during subsequent periods of the current lease or through an extension of the current lease term. Not all tenant requests will ultimately result in modified agreements, nor are we forgoing our contractual rights under our lease agreements. In most cases, it is in our best interest to help our tenants remain in business and reopen when restrictions are lifted. If tenants default on their rent and vacate, the ability to re-lease this space is likely to be more difficult if the economic slowdown continues and any long term impact of this situation, even after an economic rebound, remains unclear. Current collections and rent relief requests to-date may not be indicative of collections or requests in any future period. The impact of the COVID-19 pandemic on our rental revenue for the fourth quarter of 2020 and thereafter cannot, however, be determined at present.
In addition to the direct impact on our rental income, we may also need to recognize additional impairment charges at our properties to the extent rental projections continue to decline at our properties. During the nine months ended September 30, 2020, we recognized an impairment charge for an office/retail property due to the continued deterioration of retail demand at the property which was further impacted by the COVID-19 pandemic.
We have also made a significant investment in the common units of the SREIT. In addition to the risks similar to above with respect to the SREIT’s investments in US office properties, our investment in the units of the SREIT is subject to the risks inherent in investing in traded securities. Since March 2020, the trading price of the common units of the SREIT has declined substantially and experienced substantial volatility. For purposes of the December 4, 2019 estimated value per share, we valued our investment in units of the SREIT at $257.8 million, based on the trading price of the units of the SREIT as of closing on December 3, 2019 less a discount for (i) transfer restrictions imposed by lock-up agreements then in effect on 100% of the units we held and (ii) blockage due to the quantity of units held by us relative to the normal level of trading volume in the SREIT units. As of November 13, 2020, the aggregate value of our investment in the units of the SREIT was $224.4 million, which was based solely on the closing price of the units on the SGX of $0.78 per unit as of November 13, 2020 and did not take into account potential blockage due to the quantity of units we hold.
The COVID-19 pandemic or a future pandemic, epidemic or outbreak of infectious disease affecting states or regions in which we or our tenants operate could have material and adverse effects on our business, financial condition, results of operations and cash flows due to, among other factors: health or other government authorities requiring the closure of offices or other businesses or instituting quarantines of personnel as the result of, or in order to avoid, exposure to a contagious disease; disruption in supply and delivery chains; a general decline in business activity and demand for real estate; reduced economic activity, general economic decline or recession, which may impact our tenants’ businesses, financial condition and liquidity and may cause tenants to be unable to make rent payments to us timely, or at all, or to otherwise seek modifications of lease obligations; difficulty accessing debt and equity capital on attractive terms, or at all, and a severe disruption and instability in the global financial markets or deteriorations in credit and financing conditions, which may affect our access to capital necessary to fund business operations or address maturing liabilities on a timely basis; and the potential negative impact on the health of personnel of our advisor, particularly if a significant number of our advisor’s employees are impacted, which would result in a deterioration in our ability to ensure business continuity during a disruption.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
The extent to which the COVID-19 pandemic or any other pandemic, epidemic or disease impacts our operations and those of our tenants and our investments in the SREIT and a real estate loan receivable depends on future developments, which are highly uncertain and cannot be predicted with confidence, including the scope, severity and duration of the pandemic, the actions taken to contain the pandemic or mitigate its impact, and the direct and indirect economic effects of the pandemic and containment measures, among others. Nevertheless, the COVID-19 pandemic (or a future pandemic, epidemic or disease) presents material uncertainty and risk with respect to our business, financial condition, results of operations and cash flows. We continue to evaluate the impact and uncertainty of the COVID-19 pandemic on our real estate portfolio’s ongoing cash flows and monthly stockholder distributions. We can give no certainty to the amount of future monthly stockholder distributions which will depend in large part on the amount of tenant rent collections each month and the impact on our operating cash flows.
As of September 30, 2020, we had $260.2 million of revolving debt available for immediate future disbursement under various loans, subject to certain conditions set forth in the loan agreements. As of September 30, 2020, we had $731.8 million of notes payable maturing during the 12 months ending September 30, 2021, of which the Portfolio Loan Facility with a balance of $683.2 million could be extended beyond the next 12 months, subject to certain conditions set forth in the loan agreements. Subsequent to September 30, 2020, we released Accenture Tower as security from the Portfolio Loan Facility and exercised a one-year extension option to extend the maturity date to November 3, 2021. In addition, we entered into the Accenture Tower Revolving Loan which has a maturity date of November 2, 2023. As of November 3, 2020, after the exercise of the Portfolio Loan Facility extension option and the refinancing of Accenture Tower under the Accenture Tower Revolving Loan, we have $48.6 million of notes payable maturing during the 12 months ending September 30, 2021 and $283.8 million of revolving debt available for immediate future disbursement under various loans, subject to certain conditions set forth in the loan agreements. Significant reductions in rental revenue in the future related to the impact of the COVID-19 pandemic may limit our ability to draw on our revolving credit facilities or exercise our extension options due to covenants described in our loan agreements. However, we believe that our cash flow from operations, cash on hand, proceeds from our dividend reinvestment plan, proceeds from asset sales and current and anticipated financing activities are sufficient to meet our liquidity needs for the foreseeable future.
Our business, like all businesses, is being impacted by the uncertainty regarding the COVID-19 pandemic, the effectiveness of policies introduced to neutralize the disease, and the impact of those policies on economic activity. While there are weakening macroeconomic conditions and some negative impact to our tenants, we believe with our diverse portfolio of core real estate properties with tenants across various industries, and with creditworthy tenants and limited retail exposure in our real estate portfolio, we are positioned to navigate this unprecedented period.

Liquidity and Capital Resources
Our principal demands for funds during the short and long-term are and will be for operating expenses, capital expenditures and general and administrative expenses; payments under debt obligations; redemptions of common stock; and payments of distributions to stockholders. Our primary sources of capital for meeting our cash requirements are as follows:
Cash flow generated by our real estate and real estate-related investments;
Debt financings (including amounts currently available under existing loan facilities);
Proceeds from the sale of our real estate properties and real estate-related investments; and
Proceeds from common stock issued under our dividend reinvestment plan.
Our real estate properties generate cash flow in the form of rental revenues and tenant reimbursements, which are reduced by operating expenditures, capital expenditures, debt service payments, the payment of asset management fees and corporate general and administrative expenses. Cash flow from operations from our real estate properties is primarily dependent upon the occupancy level of our portfolio, the net effective rental rates on our leases, the collectability of rent and operating recoveries from our tenants and how well we manage our expenditures, all of which may be adversely affected by the impact of the COVID-19 pandemic as discussed above.
Our investment in an unconsolidated entity generates cash flow in the form of dividend income. As of September 30, 2020, our investment in an unconsolidated entity had a carrying value of $232.6 million.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Our real estate loan receivable generates cash flow in the form of interest income, which is reduced by the payment of asset management fees and corporate general and administrative expenses. Cash flow from operations from our real estate loan receivable is primarily dependent on the operating performance of the underlying collateral and the borrower’s ability to make debt service payments. As of September 30, 2020, the borrower under our real estate loan receivable was current on its payments.
As of September 30, 2020, we had mortgage debt obligations in the aggregate principal amount of $1.5 billion, with a weighted-average remaining term of 1.5 years. The maturity dates of certain loans may be extended beyond their current maturity date, subject to certain terms and conditions contained in the loan documents. Assuming our notes payable are fully extended under the terms of the respective loan agreements and other loan documents, we have $48.6 million of notes payable maturing or amortization payments due during the 12 months ending September 30, 2021. We plan to exercise our extension options available under our loan agreements or pay down or refinance the related notes payable prior to their maturity dates. As of September 30, 2020, our debt obligations consisted of $93.0 million of fixed rate notes payable and $1.4 billion of variable rate notes payable. As of September 30, 2020, the interest rates on $1.1 billion of our variable rate notes payable were effectively fixed through interest rate swap agreements (including one forward interest rate swap in the amount of $65.0 million, which will become effective in November 2020). As of September 30, 2020, we had $260.2 million of revolving debt available for immediate future disbursement under various loans, subject to certain conditions set forth in the loan agreements. See “Market Outlook - Real Estate and Real Estate Finance Markets - COVID-19 Pandemic and Portfolio Outlook” for a discussion on the impact of the COVID-19 pandemic on our business and financings subsequent to September 30, 2020.
We paid distributions to our stockholders during the nine months ended September 30, 2020 using cash flow from operations from the current period and debt financing. We believe that our cash flow from operations, cash on hand, proceeds from our dividend reinvestment plan, proceeds from asset sales and current and anticipated financing activities are sufficient to meet our liquidity needs for the foreseeable future.
Under our charter, we are required to limit our total operating expenses to the greater of 2% of our average invested assets or 25% of our net income for the four most recently completed fiscal quarters, as these terms are defined in our charter, unless the conflicts committee has determined that such excess expenses were justified based on unusual and non-recurring factors. Operating expenses for the four fiscal quarters ended September 30, 2020 did not exceed the charter-imposed limitation.
Cash Flows from Operating Activities
During the nine months ended September 30, 2020, net cash provided by operating activities was $73.4 million, compared to net cash provided by operating activities of $48.4 million during the nine months ended September 30, 2019. Net cash provided by operating activities was higher in 2020 primarily as a result of dividends received from our investment in the SREIT and the timing of payments of operating expenses, offset by the sale of the Singapore Portfolio in July 2019. Cash flows provided by operating activities may decrease in future periods to the extent our tenants are impacted by COVID-19 and defer rent payments or are unable to pay rent.
Cash Flows from Investing Activities
Net cash used in investing activities was $47.6 million for the nine months ended September 30, 2020 and primarily consisted of the following:
$70.8 million used for improvements to real estate;
$26.6 million of net proceeds from the sale of Hardware Village; and
$3.3 million used for construction in progress related to Hardware Village.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Cash Flows from Financing Activities
During the nine months ended September 30, 2020, net cash used in financing activities was $35.4 million and primarily consisted of the following:
$46.8 million of net cash distributions, after giving effect to distributions reinvested by stockholders of $35.3 million;
$27.5 million of net cash provided by debt financing as a result of proceeds from notes payable of $104.5 million, partially offset by principal payments on notes payable of $74.2 million and payments of deferred financing costs of $2.8 million;
$8.6 million of cash used for redemptions and repurchases of common stock;
$6.4 million of distributions to noncontrolling interests due to the sale of Hardware Village; and
Payment of other organization and offering costs of $1.0 million related to our pursuit of conversion to an NAV REIT.
We expect that our debt financing and other liabilities will be between 45% and 65% of the cost of our tangible assets (before deducting depreciation and other non-cash reserves). There is no limitation on the amount we may borrow for the purchase of any single asset. We limit our total liabilities to 75% of the cost of our tangible assets (before deducting depreciation and other non-cash reserves), meaning that our borrowings and other liabilities may exceed our maximum target leverage of 65% of the cost of our tangible assets without violating these borrowing restrictions. We may exceed the 75% limit only if a majority of the conflicts committee approves each borrowing in excess of this limitation and we disclose such borrowings to our stockholders in our next quarterly report with an explanation from the conflicts committee of the justification for the excess borrowing. To the extent financing in excess of this limit is available on attractive terms, our conflicts committee may approve debt in excess of this limit. From time to time, our total liabilities could also be below 45% of the cost of our tangible assets due to the lack of availability of debt financing. As of September 30, 2020, our borrowings and other liabilities were approximately 56% of both the cost (before deducting depreciation and other noncash reserves) and book value (before deducting depreciation) of our tangible assets.
We also expect to use our capital resources to make certain payments to our advisor. We currently make payments to our advisor in connection with the acquisition of investments, the management of our investments and costs incurred by our advisor in providing services to us. We also pay fees to our advisor in connection with the disposition of investments. We reimburse our advisor and dealer manager for certain stockholder services. In addition, our advisor is entitled to an incentive fee upon achieving certain performance goals.
Among the fees payable to our advisor is an asset management fee. With respect to investments in real property, the asset management fee is a monthly fee equal to one-twelfth of 0.75% of the amount paid or allocated to acquire the investment, plus the cost of any subsequent development, construction or improvements to the property. This amount includes any portion of the investment that was debt financed and is inclusive of acquisition expenses related thereto (but excludes acquisition fees paid or payable to our advisor). In the case of investments made through joint ventures, the asset management fee is determined based on our proportionate share of the underlying investment (but excluding acquisition fees paid to our advisor). With respect to investments in loans and any investments other than real property, the asset management fee is a monthly fee calculated, each month, as one-twelfth of 0.75% of the lesser of (i) the amount actually paid or allocated to acquire or fund the loan or other investment (which amount includes any portion of the investment that was debt financed and is inclusive of acquisition or origination expenses related thereto but is exclusive of acquisition or origination fees paid or payable to our advisor) and (ii) the outstanding principal amount of such loan or other investment, plus the acquisition or origination expenses related to the acquisition or funding of such investment (excluding acquisition or origination fees paid or payable to our advisor), as of the time of calculation. We currently do not pay asset management fees to our advisor on our investment in units of the SREIT.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Pursuant to the advisory agreement, with respect to asset management fees accruing from March 1, 2014, our advisor agreed to defer, without interest, our obligation to pay asset management fees for any month in which our modified funds from operations (“MFFO”) for such month, as such term is defined in the practice guideline issued by the Institute for Portfolio Alternatives (“IPA”) in November 2010 and interpreted by us, excluding asset management fees, does not exceed the amount of distributions declared by us for record dates of that month. We remain obligated to pay our advisor an asset management fee in any month in which our MFFO, excluding asset management fees, for such month exceeds the amount of distributions declared for the record dates of that month (such excess amount, an “MFFO Surplus”); however, any amount of such asset management fee in excess of the MFFO Surplus will also be deferred under the advisory agreement. If the MFFO Surplus for any month exceeds the amount of the asset management fee payable for such month, any remaining MFFO Surplus will be applied to pay any asset management fee amounts previously deferred in accordance with the advisory agreement.
However, notwithstanding the foregoing, any and all deferred asset management fees that are unpaid will become immediately due and payable at such time as our stockholders have received, together as a collective group, aggregate distributions (including distributions that may constitute a return of capital for federal income tax purposes) sufficient to provide (i) an 8% per year cumulative, noncompounded return on net invested capital (the “Stockholders’ 8% Return”) and (ii) a return of their net invested capital, or the amount calculated by multiplying the total number of shares purchased by stockholders by the issue price, reduced by any amounts to repurchase shares pursuant to our share redemption program. The Stockholders’ 8% Return is not based on the return provided to any individual stockholder. Accordingly, it is not necessary for each of our stockholders to have received any minimum return in order for our advisor to receive deferred asset management fees.
As of September 30, 2020, we had accrued and deferred payment of $8.8 million of asset management fees under the advisory agreement.  The amount of asset management fees deferred, if any, will vary on a month-to-month basis and the total amount of asset management fees deferred as well as the timing of the deferrals and repayments are difficult to predict as they will depend on the amount of and terms of the debt we use to acquire assets, the level of operating cash flow generated by our real estate investments and other factors. In addition, deferrals and repayments may occur in the same period, and it is possible that there could be additional deferrals in the future.
On September 27, 2020, we and our advisor renewed the advisory agreement. The advisory agreement has a one-year term but may be renewed for an unlimited number of successive one-year periods upon the mutual consent of our advisor and our conflicts committee.
Participation Fee Liability and Potential Change in Fee Structure
Pursuant to our advisory agreement currently in effect with our advisor, our advisor is due a subordinated participation in our net cash flows (the “Subordinated Participation in Net Cash Flows”) upon meeting certain performance goals. After our stockholders have received, together as a collective group, aggregate distributions (including distributions that may constitute a return of capital for federal income tax purposes) sufficient to provide (i) a return of their net invested capital, or the amount calculated by multiplying the total number of shares purchased by stockholders by the issue price, reduced by any amounts to repurchase shares pursuant to our share redemption program, and (ii) an 8.0% per year cumulative, noncompounded return on such net invested capital, our advisor is entitled to receive 15.0% of our net cash flows, whether from continuing operations, net sale proceeds or otherwise. Net sales proceeds means the net cash proceeds realized by us after deduction of all expenses incurred in connection with a sale, including disposition fees paid to our advisor. The 8.0% per year cumulative, noncompounded return on net invested capital is calculated on a daily basis. In making this calculation, the net invested capital is reduced to the extent distributions in excess of a cumulative, noncompounded, annual return of 8.0% are paid (from whatever source), except to the extent such distributions would be required to supplement prior distributions paid in order to achieve a cumulative, noncompounded, annual return of 8.0% (invested capital is only reduced as described in this sentence; it is not reduced simply because a distribution constitutes a return of capital for federal income tax purposes). The 8.0% per year cumulative, noncompounded return is not based on the return provided to any individual stockholder. Accordingly, it is not necessary for each of our stockholders to have received any minimum return in order for our advisor to participate in our net cash flows. In fact, if our advisor is entitled to participate in our net cash flows, the returns of our stockholders will differ, and some may be less than an 8.0% per year cumulative, noncompounded return. This fee is payable only if we are not listed on an exchange.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
On January 9, 2020, we filed a definitive proxy statement with the SEC in connection with the annual meeting of stockholders to vote on, among other proposals, two proposals related to our pursuit of conversion to an NAV REIT. On May 7, 2020 at our annual meeting of stockholders, our stockholders approved the proposal to accelerate the payment of incentive compensation to our advisor, upon our conversion to an NAV REIT. However, the proposed acceleration of the payment of incentive compensation to our advisor remains subject to further approval of the conflicts committee, after the proposed amount of the accelerated payment of the incentive fee has been determined. Solely for purposes of determining the estimated net asset value of our company as of September 30, 2019, adjusted to give effect to the October 23, 2019 authorization of the special dividend of $0.80 per share on our outstanding shares of common stock to the stockholders of record as of the close of business on November 4, 2019 and a change in the estimated value of our investment in units of the SREIT, calculated in accordance with the estimated value per share approved by our board of directors on December 4, 2019, our advisor calculated the potential liability related to the Subordinated Participation in Net Cash Flows based on a hypothetical liquidation of the assets and liabilities at their estimated fair values, after considering the impact of any potential closing costs and fees related to the disposition of real estate properties. Our advisor estimated the fair value of this liability to be approximately $30 million or $0.17 per share as of the valuation date, and included the impact of this liability in its calculation of our estimated value per share.
As discussed herein, our board of directors and management team regularly monitor the real estate and equity markets in order to find the best opportunities possible to continue to provide attractive and stable cash distributions to our stockholders and provide additional liquidity for our stockholders. One alternative for us to achieve these objectives may be for us to pursue conversion to a non-listed, perpetual-life NAV REIT. If we convert to an NAV REIT, we would implement a revised advisory fee structure. As the global impact of the COVID-19 pandemic continues to evolve, severely impacting global economic activity and causing significant volatility and negative pressure in the financial markets, including the U.S. real estate office market and the industries of our tenants, our conflicts committee and our board of directors continue to evaluate whether the proposed NAV REIT conversion remains in the best interest of our stockholders. Accordingly, we can give no assurance that we will continue to pursue a conversion to an NAV REIT or that if we do pursue conversion to an NAV REIT that we would commence or complete the proposed offering. Even if we convert to an NAV REIT, there is no assurance that we will successfully implement our strategy, and we can provide no assurance that our NAV REIT strategy will be able to provide additional liquidity to stockholders.

Contractual Obligations
The following is a summary of our contractual obligations as of September 30, 2020 (in thousands):
Payments Due During the Years Ended December 31,
Contractual Obligations Total Remainder of 2020 2021-2022 2023-2024 Thereafter
Outstanding debt obligations (1)
$ 1,496,682  $ 731,815  $ 93,000  $ 671,867  $ — 
Interest payments on outstanding debt obligations (2)
38,926  5,090  25,574  8,262  — 
Interest payments on interest rate swaps (3)
39,777  4,732  34,009  1,036  — 
_____________________
(1) Amounts include principal payments only based on maturity dates as of September 30, 2020; subject to certain conditions, the maturity dates of certain loans may be extended beyond what is shown above.
(2) Projected interest payments are based on the outstanding principal amounts, maturity dates and interest rates in effect as of September 30, 2020, consisting of the contractual interest rate and using interest rate indices as of September 30, 2020, where applicable. We incurred interest expense of $38.8 million, excluding amortization of deferred financing costs totaling $3.2 million and unrealized losses on derivative instruments of $29.5 million during the nine months ended September 30, 2020.
(3) Projected interest payments on interest rate swaps are calculated based on the notional amount, effective term of the swap contract, and fixed rate net of the swapped floating rate in effect as of September 30, 2020.

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Results of Operations
Overview
As of September 30, 2019, we owned 18 office properties, one mixed-use office/retail property and had entered into the Hardware Village joint venture to develop a multifamily apartment complex. In addition, we owned an investment in the equity securities of the SREIT, which is accounted for as an investment in an unconsolidated entity under the equity method of accounting. Subsequent to September 30, 2019, we sold a multifamily apartment complex held through the Hardware Village joint venture and originated one real estate loan receivable secured by a deed of trust in May 2020. As a result, as of September 30, 2020, we owned 18 office properties, one mixed-used office/retail property, one real estate loan receivable and an investment in the equity securities of the SREIT. As a result, the results of operations presented for the three and nine months ended September 30, 2020 and 2019 are not directly comparable.
Comparison of the three months ended September 30, 2020 versus the three months ended September 30, 2019
The following table provides summary information about our results of operations for the three months ended September 30, 2020 and 2019 (dollar amounts in thousands):
  Three Months Ended September 30, Increase (Decrease) Percentage Change
$ Changes Due to Developments Completed, Dispositions, Acquisitions and Origination(1)
$ Change Due to Properties Held
Throughout Both Periods (2)
  2020 2019
Rental income $ 69,159  $ 76,348  $ (7,189) (9) % $ (6,754) $ (435)
Interest income from real estate loan receivable 2,029  —  2,029  100  % 2,029  — 
Other operating income 4,315  6,633  (2,318) (35) % (684) (1,634)
Operating, maintenance and management 17,198  22,119  (4,921) (22) % (2,434) (2,487)
Real estate taxes and insurance 14,140  13,813  327  % (616) 943 
Asset management fees to affiliate 5,311  5,541  (230) (4) % (602) 372 
General and administrative expenses 1,560  1,491  69  % n/a n/a
Depreciation and amortization 27,879  29,862  (1,983) (7) % (3,000) 1,017 
Interest expense 8,918  20,350  (11,432) (56) % (2,598) (8,834)
Other income —  4,068  (4,068) (100) % n/a n/a
Other interest income 13  282  (269) (95) % n/a n/a
Equity in income (loss) of an unconsolidated entity 588  (2,556) 3,144  (123) % 3,144  — 
Loss from extinguishment of debt —  (2,033) 2,033  (100) % 2,033  — 
Gain on sale of real estate, net 21  327,311  (327,290) (100) % (327,290) — 
_____________________
(1) Represents the dollar amount increase (decrease) for the three months ended September 30, 2020 compared to the three months ended September 30, 2019 related to real estate developments completed and placed in service, real estate dispositions, acquisitions and a real estate loan originated on or after July 1, 2019.
(2) Represents the dollar amount increase (decrease) for the three months ended September 30, 2020 compared to the three months ended September 30, 2019 related to real estate investments owned by us throughout both periods presented.
Rental income from our real estate properties decreased from $76.3 million for the three months ended September 30, 2019 to $69.2 million for the three months ended September 30, 2020. The decrease in rental income was primarily due to the Singapore Transaction in July 2019 and the disposition of Hardware Village in May 2020. With respect to properties held throughout both periods, the decrease in rental income was primarily due to an increase in the write-off of receivables and straight-line rent deemed not probable of collection during the three months ended September 30, 2020 as a result of the COVID-19 pandemic. We expect rental income to vary based on occupancy rates and rental rates of our real estate investments and uncertainty and business disruptions as a result of the COVID-19 pandemic. See “Market Outlook - Real Estate and Real Estate Finance Markets - COVID-19 Pandemic and Portfolio Outlook” for a discussion on the impact of the COVID-19 pandemic on our business.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Interest income from our real estate loan receivable, recognized using the interest method, was $2.0 million for the three months ended September 30, 2020. On May 7, 2020, in connection with the sale of Hardware Village, we, through an indirect wholly owned subsidiary, provided seller financing and entered into a promissory note with the buyer. The promissory note matures on May 6, 2021. We did not own any real estate loans receivable during the three months ended September 30, 2019.
Other operating income decreased from $6.6 million during the three months ended September 30, 2019 to $4.3 million for the three months ended September 30, 2020. The decrease in other operating income was primarily due to the Singapore Transaction in July 2019 and a decrease in parking revenues for properties held throughout both periods as a result of the COVID-19 pandemic. We expect other operating income to vary in future periods based on occupancy rates and parking rates at our real estate properties, and business disruptions as a result of the COVID-19 pandemic.
Operating, maintenance and management costs decreased from $22.1 million for the three months ended September 30, 2019 to $17.2 million for the three months ended September 30, 2020. The decrease in operating, maintenance and management costs was primarily due to (i) the Singapore Transaction in July 2019, (ii) the disposition of Hardware Village in May 2020, (iii) a change in the arrangement whereby a tenant elected to exercise its right to self-manage at a property held throughout both periods and paid for operating, maintenance and management costs directly during the three months ended September 30, 2020, and (iv) an overall decrease in operating costs at properties held throughout both periods due to stay-at-home orders and a decrease in physical occupancy as a result of the COVID-19 pandemic. We expect operating, maintenance and management costs to fluctuate in future periods as a result of general inflation for properties that we continue to own, and business disruptions as a result of the COVID-19 pandemic.
Real estate taxes and insurance increased from $13.8 million for the three months ended September 30, 2019 to $14.1 million for the three months ended September 30, 2020. The increase in real estate taxes and insurance was primarily due to higher property tax assessments for real estate properties held throughout both periods, offset by a decrease in real estate taxes and insurance due to the Singapore Transaction in July 2019, the disposition of Hardware Village in May 2020 and a change in the arrangement whereby a tenant elected to exercise its right to self-manage at a property held throughout both periods and paid property taxes directly during the three months ended September 30, 2020. We expect real estate taxes and insurance to increase in future periods as a result of general inflation and general increases due to future property tax reassessments.
Asset management fees with respect to our real estate investments decreased from $5.5 million for the three months ended September 30, 2019 to $5.3 million for the three months ended September 30, 2020 primarily due to the Singapore Transaction in July 2019 and the disposition of Hardware Village in May 2020, partially offset by an increase in asset management fees due to the origination of the related real estate loan receivable secured by a deed of trust in May 2020. We expect asset management fees to increase in future periods as a result of any improvements we make to our properties. As of September 30, 2020, there were $8.8 million of accrued and deferred asset management fees. For a discussion of accrued and deferred asset management fees, see “-Liquidity and Capital Resources” herein.
Depreciation and amortization decreased from $29.9 million for the three months ended September 30, 2019 to $27.9 million for the three months ended September 30, 2020, primarily due to the Singapore Transaction in July 2019 and the disposition of Hardware Village in May 2020, offset by an increase in depreciation and amortization due to an increase in capital improvements at properties held throughout both periods. We expect depreciation and amortization to increase in future periods as a result of additional capital improvements offset by a decrease in amortization related to fully amortized tenant origination and absorption costs.
Interest expense decreased from $20.4 million for the three months ended September 30, 2019 to $8.9 million for the three months ended September 30, 2020. Included in interest expense was (i) $16.5 million and $7.5 million of interest expense payments for the three months ended September 30, 2019 and 2020, respectively, (ii) the amortization of deferred financing costs of $1.2 million and $1.1 million for the three months ended September 30, 2019 and 2020, respectively, and (iii) interest expense (including gains and losses) incurred as a result of our derivative instruments, which increased interest expense by $3.3 million and $0.3 million for the three months ended September 30, 2019 and 2020, respectively. Additionally, during the three months ended September 30, 2019, we capitalized $0.6 million of interest to construction-in-progress related to Hardware Village. The decrease in interest expense was primarily due to changes in fair values with respect to our interest rate swaps that are not accounted for as cash flow hedges, the repayment of debt related to the Singapore Transaction in July 2019 and a lower 30-day LIBOR rate during the three months ended September 30, 2020. Our interest expense in future periods will vary based on fair value changes with respect to our interest rate swaps that are not accounted for as cash flow hedges and fluctuations in one-month LIBOR (for our variable rate debt). We also expect interest to increase in future periods as a result of additional borrowings for capital expenditures.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
During the three months ended September 30, 2019, other income included a $4.1 million reimbursement of certain costs and expenses related to the Singapore Transaction in July 2019 that was indirectly paid by the SREIT. These costs included legal, audit, tax, printing and other out of pocket costs that we incurred related to the Singapore Transaction.
Equity in income (loss) of an unconsolidated entity relates to our investment in the SREIT. During the three months ended September 30, 2019, we recorded equity in loss of an unconsolidated entity of $2.6 million, and during the three months ended September 30, 2020, we recorded equity in income of an unconsolidated entity of $0.6 million. Based on our 27.4% ownership interest in the SREIT as of September 30, 2020, we exercise significant influence over the operations, financial policies and decision making with respect to this investment. Accordingly, we accounted for the investment in the SREIT under the equity method of accounting as of September 30, 2020. We expect our equity in income (loss) of an unconsolidated entity related to our investment in the SREIT to vary based on occupancy rates and rental rates of the SREIT’s real estate investments and uncertainty and business disruptions as a result of the COVID-19 pandemic.
During the three months ended September 30, 2019, we recognized a loss from extinguishment of debt of $2.0 million related to the write-off of unamortized deferred financing costs as a result of the early pay-off of the mortgage loans related to properties sold in the Singapore Transaction.
During the three months ended September 30, 2019, we sold 11 office properties in the Singapore Transaction that resulted in a gain on sale of real estate of $327.3 million. We did not dispose of any properties during the three months ended September 30, 2020.
Comparison of the nine months ended September 30, 2020 versus the nine months ended September 30, 2019
The following table provides summary information about our results of operations for the nine months ended September 30, 2020 and 2019 (dollar amounts in thousands):
  Nine Months Ended September 30, Increase (Decrease) Percentage Change
$ Changes Due to Developments Completed, Dispositions, Acquisitions and Origination (1)
$ Change Due to Properties Held
Throughout Both Periods (2)
  2020 2019
Rental income $ 211,385  $ 285,198  $ (73,813) (26) % $ (63,717) $ (10,096)
Interest income from real estate loan receivable 3,236  —  3,236  100  % 3,236  — 
Other operating income 14,555  23,670  (9,115) (39) % (5,159) (3,956)
Operating, maintenance and management 52,553  72,132  (19,579) (27) % (15,947) (3,632)
Real estate taxes and insurance 43,052  49,677  (6,625) (13) % (8,717) 2,092 
Asset management fees to affiliate 15,704  19,412  (3,708) (19) % (4,528) 820 
General and administrative expenses 4,756  5,433  (677) (12) % n/a n/a
Depreciation and amortization 82,629  112,902  (30,273) (27) % (28,318) (1,955)
Interest expense 71,460  105,701  (34,241) (32) % (18,110) (16,131)
Impairment charges on real estate 19,896  8,706  11,190  129  % —  11,190 
Other income —  4,090  (4,090) (100) % n/a n/a
Other interest income 60  546  (486) (89) % n/a n/a
Equity in loss of an unconsolidated entity (1,408) (2,556) 1,148  (45) % 1,148  — 
Loss from extinguishment of debt (188) (2,229) 2,041  (92) % 2,229  (188)
Gain on sale of real estate, net 50,959  327,311  (276,352) (84) % (276,352) — 
Provision for credit loss (680) —  (680) (100) % (680) — 
_____________________
(1) Represents the dollar amount increase (decrease) for the nine months ended September 30, 2020 compared to the nine months ended September 30, 2019 related to real estate developments completed and placed in service, real estate dispositions, acquisitions and a real estate loan originated on or after January 1, 2019.
(2) Represents the dollar amount increase (decrease) for the nine months ended September 30, 2020 compared to the nine months ended September 30, 2019 related to real estate investments owned by us throughout both periods presented.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Rental income from our real estate properties decreased from $285.2 million for the nine months ended September 30, 2019 to $211.4 million for the nine months ended September 30, 2020. The decrease in rental income was primarily due to the Singapore Transaction in July 2019, and with respect to properties held throughout both periods, the decrease in rental income was primarily due to lease termination fees received in 2019, an increase in the write-off of receivables and straight-line rent deemed not probable of collection during the nine months ended September 30, 2020 as a result of the COVID-19 pandemic and a net decrease in property tax recoveries related to a change in the arrangement whereby a tenant elected to exercise its right to self-manage at a property and the tenant paid property taxes directly during the nine months ended September 30, 2020. We expect rental income to vary based on occupancy rates and rental rates of our real estate investments and uncertainty and business disruptions as a result of the COVID-19 pandemic. See “Market Outlook - Real Estate and Real Estate Finance Markets - COVID-19 Pandemic and Portfolio Outlook” for a discussion on the impact of the COVID-19 pandemic on our business.
Interest income from real estate loan receivable, recognized using the interest method, was $3.2 million for the nine months ended September 30, 2020. On May 7, 2020, in connection with the sale of Hardware Village, we, through an indirect wholly owned subsidiary, provided seller financing and entered into a promissory note with the buyer. The promissory note matures on May 6, 2021. We did not own any real estate loans receivable during the nine months ended September 30, 2019.
Other operating income decreased from $23.7 million during the nine months ended September 30, 2019 to $14.6 million for the nine months ended September 30, 2020. The decrease in other operating income was primarily due to the Singapore Transaction in July 2019 and a decrease in parking revenues for properties held throughout both periods due to the stay-at-home orders and a decrease in physical occupancy as a result of the COVID-19 pandemic. We expect other operating income to vary in future periods based on occupancy rates and parking rates at our real estate properties, and business disruptions as a result of the COVID-19 pandemic.
Operating, maintenance and management costs decreased from $72.1 million for the nine months ended September 30, 2019 to $52.6 million for the nine months ended September 30, 2020. The decrease in operating, maintenance and management costs was primarily due to (i) the Singapore Transaction in July 2019, (ii) the disposition of Hardware Village in May 2020, (iii) a change in the arrangement whereby a tenant elected to exercise its right to self-manage at a property held throughout both periods and paid for operating, maintenance and management costs directly during the nine months ended September 30, 2020, and (iv) an overall decrease in operating costs at properties held throughout both periods due to stay-at-home orders and a decrease in physical occupancy as a result of the COVID-19 pandemic.  We expect operating, maintenance and management costs to fluctuate in future periods as a result of general inflation for properties that we continue to own, and business disruptions as a result of the COVID-19 pandemic, offset by a decrease due to the disposition of Hardware Village.
Real estate taxes and insurance decreased from $49.7 million for the nine months ended September 30, 2019 to $43.1 million for the nine months ended September 30, 2020. The decrease in real estate taxes and insurance was primarily due to the Singapore Transaction in July 2019, the disposition of Hardware Village in May 2020 and a change in the arrangement whereby a tenant elected to exercise its right to self-manage at a property held throughout both periods and paid property taxes directly during the nine months ended September 30, 2020, partially offset by an increase in real estate taxes due to higher property tax assessments for real estate properties held throughout both periods. We expect real estate taxes and insurance to increase in future periods as a result of general inflation and general increases due to future property tax reassessments for properties that we continue to own offset by a decrease due to the disposition of Hardware Village.
Asset management fees with respect to our real estate investments decreased from $19.4 million for the nine months ended September 30, 2019 to $15.7 million for the nine months ended September 30, 2020 primarily due to the Singapore Transaction in July 2019 and the disposition of Hardware Village in May 2020, partially offset by an increase in asset management fees due to the origination of the related real estate loan receivable secured by a deed of trust in May 2020 and an increase in capital improvements at real estate properties held throughout both periods. We expect asset management fees to increase in future periods as a result of any improvements we make to our properties offset by a decrease due to the disposition of Hardware Village. As of September 30, 2020, there were $8.8 million of accrued and deferred asset management fees. For a discussion of accrued and deferred asset management fees, see “-Liquidity and Capital Resources” herein.
General and administrative expenses decreased from $5.4 million for the nine months ended September 30, 2019 to $4.8 million for the nine months ended September 30, 2020. General and administrative costs consisted primarily of portfolio legal fees, board of directors fees, audit costs and third party transfer agent fees. During the nine months ended September 30, 2019, we incurred professional fees related to assessing strategic alternatives which we did not incur during the nine months ended September 30, 2020. We expect general and administrative expenses to vary in future periods.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Depreciation and amortization decreased from $112.9 million for the nine months ended September 30, 2019 to $82.6 million for the nine months ended September 30, 2020, primarily due to the Singapore Transaction in July 2019, the disposition of Hardware Village in May 2020, and accelerated depreciation and amortization due to lease terminations in 2019 at a property held throughout both periods, partially offset by an increase in depreciation and amortization due to an increase in capital improvements at properties held throughout both periods. We expect depreciation and amortization to increase in future periods as a result of additional capital improvements offset by a decrease in amortization related to fully amortized tenant origination and absorption costs.
Interest expense decreased from $105.7 million for the nine months ended September 30, 2019 to $71.5 million for the nine months ended September 30, 2020. Included in interest expense was (i) $64.5 million and $29.4 million of interest expense payments for the nine months ended September 30, 2019 and 2020, respectively, (ii) the amortization of deferred financing costs of $4.3 million and $3.2 million for the nine months ended September 30, 2019 and 2020, respectively, and (iii) interest expense (including gains and losses) incurred as a result of our derivative instruments, which increased interest expense by $38.6 million and $38.9 million for the nine months ended September 30, 2019 and 2020, respectively. Additionally, during the nine months ended September 30, 2019, we capitalized $1.7 million of interest to construction-in-progress related to Hardware Village. The decrease in interest expense was primarily due to the repayment of debt related to the Singapore Transaction in July 2019 and a lower 30-day LIBOR rate during the nine months ended September 30, 2020. Our interest expense in future periods will vary based on fair value changes with respect to our interest rate swaps that are not accounted for as cash flow hedges and fluctuations in one-month LIBOR (for our variable rate debt). We also expect interest to increase in future periods as a result of additional borrowings for capital expenditures.
During the nine months ended September 30, 2020 and 2019, we recorded non-cash impairment charges of $19.9 million and $8.7 million, respectively, to write down the carrying value of an office/retail property to its estimated fair value as a result of changes in cash flow estimates, including a change to the anticipated hold period of the property, which triggered the future estimated undiscounted cash flows to be lower than the net carrying value of the property. The decrease in cash flow projections was primarily due to the continued lack of demand for the property’s retail component resulting in longer than estimated lease-up periods and lower projected rental rates, mostly due to the impact of the COVID-19 pandemic with repect to the first quarter of 2020.
During the nine months ended September 30, 2019, other income included a $4.1 million reimbursement of certain costs and expenses related to the Singapore Transaction in July 2019 that was indirectly paid by the SREIT. These costs included legal, audit, tax, printing and other out of pocket costs that we incurred related to the Singapore Transaction.
Equity in loss of an unconsolidated entity relates to our investment in the SREIT. We recorded equity in loss of an unconsolidated entity of $2.6 million and $1.4 million related to our investment in the SREIT during the nine months ended September 30, 2019 and 2020, respectively. Equity in loss of an unconsolidated entity for the nine months ended September 30, 2020 included $3.5 million related to our share of net losses from the SREIT offset by a gain of $2.1 million to reflect the net effect to our investment as a result of the net proceeds raised by the SREIT in a private offering in February 2020. Based on our 27.4% ownership interest in the SREIT as of September 30, 2020, we exercise significant influence over the operations, financial policies and decision making with respect to this investment. Accordingly, we accounted for the investment in the SREIT under the equity method of accounting as of September 30, 2020. We expect our equity in income (loss) of an unconsolidated entity related to our investment in the SREIT to vary based on occupancy rates and rental rates of the SREIT’s real estate investments and uncertainty and business disruptions as a result of the COVID-19 pandemic.
We recognized a $0.2 million loss from extinguishment of debt during the nine months ended September 30, 2020 due to the write-off of unamortized deferred financing costs as a result of the modification to the Portfolio Revolving Loan Facility. During the nine months ended September 30, 2019, we recognized a loss from extinguishment of debt of $2.2 million related to the write-off of unamortized deferred financing costs as a result of the early pay-off of the mortgage loans related to properties sold in the Singapore Transaction.
We recognized a gain on sale of real estate of $50.9 million related to the disposition of Hardware Village during the nine months ended September 30, 2020. During the nine months ended September 30, 2019, we sold 11 office properties in the Singapore Transaction that resulted in a gain on sale of real estate of $327.3 million.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
We recognized provision for credit loss of $0.7 million related to our investment in a real estate loan receivable during the nine months ended September 30, 2020. Under the current expected credit loss (CECL) model, we are required to measure and record an allowance for credit losses upon the initial recognition of a real estate loan receivable to present the net amount expected to be collected, which is re-measured at each balance sheet date based on changes in facts and circumstances. The allowance is adjusted through the provision for credit loss on our consolidated statements of operations and is increased or decreased based on the re-measurement of the allowance for credit loss at each balance sheet date. We did not own any real estate loans receivable during the nine months ended September 30, 2019.

Funds from Operations and Modified Funds from Operations
We believe that funds from operations (“FFO”) is a beneficial indicator of the performance of an equity REIT. We compute FFO in accordance with the current National Association of Real Estate Investment Trusts (“NAREIT”) definition. FFO represents net income, excluding gains and losses from sales of operating real estate assets (which can vary among owners of identical assets in similar conditions based on historical cost accounting and useful-life estimates), gains and losses from change in control, impairment losses on real estate assets, depreciation and amortization of real estate assets, and adjustments for unconsolidated partnerships and joint ventures. We believe FFO facilitates comparisons of operating performance between periods and among other REITs. However, our computation of FFO may not be comparable to other REITs that do not define FFO in accordance with the NAREIT definition or that interpret the current NAREIT definition differently than we do. Our management believes that historical cost accounting for real estate assets in accordance with U.S. generally accepted accounting principles (“GAAP”) implicitly assumes that the value of real estate assets diminishes predictably over time. Since real estate values have historically risen or fallen with market conditions, many industry investors and analysts have considered the presentation of operating results for real estate companies that use historical cost accounting to be insufficient by themselves. As a result, we believe that the use of FFO, together with the required GAAP presentations, provides a more complete understanding of our performance relative to our competitors and provides a more informed and appropriate basis on which to make decisions involving operating, financing, and investing activities.
Changes in accounting rules have resulted in a substantial increase in the number of non-operating and non-cash items included in the calculation of FFO. As a result, our management also uses MFFO as an indicator of our ongoing performance as well as our dividend sustainability. MFFO excludes from FFO: acquisition fees and expenses (to the extent that such fees and expenses have been recorded as operating expenses); adjustments related to contingent purchase price obligations; amounts relating to straight-line rents and amortization of above and below market intangible lease assets and liabilities; accretion of discounts and amortization of premiums on debt investments; amortization of closing costs relating to debt investments; impairments of real estate-related investments; mark-to-market adjustments included in net income; and gains or losses included in net income for the extinguishment or sale of debt or hedges. We compute MFFO in accordance with the definition of MFFO included in the practice guideline issued by the IPA in November 2010 as interpreted by management. Our computation of MFFO may not be comparable to other REITs that do not compute MFFO in accordance with the current IPA definition or that interpret the current IPA definition differently than we do.
We believe that MFFO is helpful as a measure of ongoing operating performance because it excludes costs that management considers more reflective of investing activities and other non-operating items included in FFO.  Management believes that excluding acquisition fees and expenses (to the extent that such fees and expenses have been recorded as operating expenses) from MFFO provides investors with supplemental performance information that is consistent with management’s analysis of the operating performance of the portfolio over time. MFFO also excludes non-cash items such as straight-line rental revenue. Additionally, we believe that MFFO provides investors with supplemental performance information that is consistent with the performance indicators and analysis used by management, in addition to net income and cash flows from operating activities as defined by GAAP, to evaluate the sustainability of our operating performance. MFFO provides comparability in evaluating the operating performance of our portfolio with other non-traded REITs. MFFO, or an equivalent measure, is routinely reported by non-traded REITs, and we believe often used by analysts and investors for comparison purposes.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
FFO and MFFO are non-GAAP financial measures and do not represent net income as defined by GAAP. Net income as defined by GAAP is the most relevant measure in determining our operating performance because FFO and MFFO include adjustments that investors may deem subjective, such as adding back expenses such as depreciation and amortization and the other items described above. Accordingly, FFO and MFFO should not be considered as alternatives to net income as an indicator of our current and historical operating performance. In addition, FFO and MFFO do not represent cash flows from operating activities determined in accordance with GAAP and should not be considered an indication of our liquidity. We believe FFO and MFFO, in addition to net income and cash flows from operating activities as defined by GAAP, are meaningful supplemental performance measures; however, neither FFO nor MFFO reflects adjustments for the operations of properties sold or under contract to sale during the periods presented. During periods of significant disposition activity, FFO and MFFO are much more limited measures of future performance and dividend sustainability. In connection with our presentation of FFO, MFFO and Adjusted MFFO, we are providing information related to the proportion of Adjusted MFFO related to properties sold in 2019 and during the nine months ended September 30, 2020.
Further, during the current period of uncertainty and business disruptions as a result of the COVID-19 pandemic, FFO and MFFO are much more limited measures of future performance and dividend sustainability. See “Market Outlook - Real Estate and Real Estate Finance Markets - COVID-19 Pandemic and Portfolio Outlook” for a discussion of the impact of the COVID-19 pandemic on our business.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Although MFFO includes other adjustments, the exclusion of adjustments for straight-line rent, the amortization of above- and below-market leases, amortization of discounts and closing costs, unrealized losses (gains) on derivative instruments, loss from extinguishment of debt and provision for credit loss are the most significant adjustments for the periods presented.  We have excluded these items based on the following economic considerations:
Adjustments for straight-line rent.  These are adjustments to rental revenue as required by GAAP to recognize contractual lease payments on a straight-line basis over the life of the respective lease.  We have excluded these adjustments in our calculation of MFFO to more appropriately reflect the current economic impact of our in-place leases, while also providing investors with a useful supplemental metric that addresses core operating performance by removing rent we expect to receive in a future period or rent that was received in a prior period;
Amortization of above- and below-market leases.  Similar to depreciation and amortization of real estate assets and lease related costs that are excluded from FFO, GAAP implicitly assumes that the value of intangible lease assets and liabilities diminishes predictably over time and requires that these charges be recognized currently in revenue.  Since market lease rates in the aggregate have historically risen or fallen with local market conditions, management believes that by excluding these charges, MFFO provides useful supplemental information on the realized economics of the real estate;
Amortization of discounts and closing costs. Discounts and closing costs related to debt investments are amortized over the term of the loan as an adjustment to interest income. This application results in income recognition that is different than the underlying contractual terms of the debt investments. We have excluded the amortization of discounts and closing costs related to our debt investments in our calculation of MFFO to more appropriately reflect the economic impact of our debt investments, as discounts will not be economically recognized until the loan is repaid and closing costs are essentially the same as acquisition fees and expenses on real estate. We believe excluding these items provides investors with a useful supplemental metric that directly addresses core operating performance;
Unrealized losses (gains) on derivative instruments.  These adjustments include unrealized losses (gains) from mark-to-market adjustments on interest rate swaps. The change in fair value of interest rate swaps not designated as a hedge are non-cash adjustments recognized directly in earnings and are included in interest expense.  We have excluded these adjustments in our calculation of MFFO to more appropriately reflect the economic impact of our interest rate swap agreements;
Loss from extinguishment of debt. A loss from extinguishment of debt, which includes prepayment fees related to the extinguishment of debt, represents the difference between the carrying value of any consideration transferred to the lender in return for the extinguishment of a debt and the net carrying value of the debt at the time of settlement. We have excluded the loss from extinguishment of debt in our calculation of MFFO because these losses do not impact the current operating performance of our investments and do not provide an indication of future operating performance; and
Provision for credit loss on real estate loan receivable. A provision for credit loss on a real estate loan receivable represents a write-down of the carrying value of a real estate loan to reflect the net amount expected to be collected. Although these losses are included in the calculation of net income (loss), we have excluded the provision for credit loss in our calculation of MFFO because the provision for credit loss does not impact the current operating performance of our investment, and may or may not provide an indication of future operating performance. We believe it is useful to investors to have a supplemental metric that addresses core operating performance directly and therefore excludes such things as the provision for credit loss on real estate loans receivable.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Our calculation of FFO, which we believe is consistent with the calculation of FFO as defined by NAREIT, is presented in the following table, along with our calculation of MFFO and Adjusted MFFO, for the three and nine months ended September 30, 2020 and 2019, respectively (in thousands). No conclusions or comparisons should be made from the presentation of these periods.
For the Three Months Ended September 30, For the Nine Months Ended September 30,
2020 2019 2020 2019
Net income (loss) attributable to common stockholders $ 1,119  $ 316,884  $ (18,276) $ 262,091 
Depreciation of real estate assets 21,027  21,013  61,834  73,618 
Amortization of lease-related costs 6,852  8,849  20,795  39,284 
Impairment charges on real estate —  —  19,896  8,706 
Gain on sale of real estate, net (21) (327,311) (50,959) (327,311)
Adjustments for noncontrolling interests - consolidated entities (1)
—  (6) 6,144  (18)
Adjustment for investment in an unconsolidated entity (2)
4,515  3,881  11,496  3,881 
FFO attributable to common stockholders (3)
33,492  23,310  50,930  60,251 
Straight-line rent and amortization of above- and below-market leases, net (1,755) (1,951) (6,178) (7,077)
Amortization of discount and closing costs (642) —  (1,172) — 
Loss from extinguishment of debt —  2,033  188  2,229 
Unrealized losses on derivative instruments (4,532) 3,807  29,484  41,706 
Provision for credit loss —  —  680  — 
Adjustment for investment in an unconsolidated entity (2)
(170) 2,808  4,928  2,808 
MFFO attributable to common stockholders (3)
26,393  30,007  78,860  99,917 
Adjustment for a contractual rent payment received but deferred (4)
1,142  —  2,666  — 
Adjusted MFFO attributable to common stockholders (3)
$ 27,535  $ 30,007  $ 81,526  $ 99,917 
_____________________
(1) Reflects adjustments to eliminate the noncontrolling interest holders’ share of the adjustments to convert our net income (loss) attributable to common stockholders to FFO.
(2) Reflects adjustments to add back our noncontrolling interest share of the adjustments to convert our net income (loss) attributable to common stockholders to FFO and MFFO for our equity investment in an unconsolidated entity.
(3) FFO, MFFO and Adjusted MFFO include $0.4 million and $0.5 million of lease termination income for the three and nine months ended September 30, 2020, respectively, and $1.1 million and $8.0 million of lease termination income for the three and nine months ended September 30, 2019, respectively.
(4) Adjustment for rent contractually due and collected per the terms of a lease agreement, but deferred and not recognized into rental income for purposes of GAAP as the tenant improvements are under construction. This amount is included in other liabilities on our consolidated balance sheet as of September 30, 2020.
Our calculation of Adjusted MFFO above includes amounts related to the operations of the multifamily apartment complex held by the Hardware Village joint venture that was sold on May 7, 2020 and the Singapore Portfolio sold on July 18, 2019. Please refer to the table below with respect to the proportion of Adjusted MFFO related to the real estate properties sold (in thousands).
  For the Three Months Ended September 30, For the Nine Months Ended September 30,
2020 2019 2020 2019
Adjusted MFFO by component:
Assets held for investment $ 27,535  $ 27,769  $ 81,441  $ 77,585 
Real estate properties sold —  2,238  85  22,332 
Adjusted MFFO $ 27,535  $ 30,007  $ 81,526  $ 99,917 

FFO and MFFO may also be used to fund all or a portion of certain capitalizable items that are excluded from FFO and MFFO, such as tenant improvements, building improvements and deferred leasing costs.

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Distributions
Distributions declared, distributions paid and cash flow from operating activities were as follows for the first, second and third quarters of 2020 (in thousands, except per share amounts):
Period Distributions Declared
Distributions Declared
Per Share (1)
Distributions Paid (2)
Cash Flow from
Operating Activities
Cash Reinvested Total
First Quarter 2020 $ 27,149  $ 0.149  $ 15,573  $ 11,904  $ 27,477  $ 17,410 
Second Quarter 2020 27,268  0.149  15,512  11,718  27,230  25,311 
Third Quarter 2020 27,388  0.150  15,693  11,655  27,348  30,700 
$ 81,805  $ 0.448  $ 46,778  $ 35,277  $ 82,055  $ 73,421 
_____________________
(1) Assumes share was issued and outstanding on each monthly record date for distributions during the period presented. For each monthly record date for distributions during the period from January 1, 2020 through September 30, 2020, distributions were calculated at a rate of $0.04983333 per share.
(2) Distributions are paid on a monthly basis. Distributions for the monthly record date of a given month are paid on or about the first business day of the following month.
For the nine months ended September 30, 2020, we paid aggregate distributions of $82.1 million, including $46.8 million of distributions paid in cash and $35.3 million of distributions reinvested through our dividend reinvestment plan. Our net loss attributable to common stockholders for the nine months ended September 30, 2020 was $18.3 million. FFO for the nine months ended September 30, 2020 was $50.9 million and cash flow from operating activities was $73.4 million. See the reconciliation of FFO to net income (loss) attributable to common stockholders above. We funded our total distributions paid, which includes net cash distributions and dividends reinvested by stockholders, with $70.1 million of cash flow from current operating activities and $12.0 million from debt financing. For purposes of determining the source of our distributions paid, we assume first that we use cash flow from operating activities from the relevant or prior periods to fund distribution payments.
We continue to evaluate the impact and uncertainty of the COVID-19 pandemic on our real estate portfolio’s ongoing cash flows and monthly stockholder distributions. We can give no certainty to the amount of future monthly stockholder distributions which will depend in large part on the amount of tenant rent collections each month and the impact on our operating cash flows.
Over the long-term, we generally expect our distributions will be paid from cash flow from operating activities from current periods or prior periods (except with respect to distributions related to sales of our assets and distributions related to the sales or repayment of real estate-related investments). From time to time during our operational stage, we may not pay distributions solely from our cash flow from operating activities, in which case distributions may be paid in whole or in part from debt financing. To the extent that we pay distributions from sources other than our cash flow from operating activities, the overall return to our stockholders may be reduced. Further, our operating performance cannot be accurately predicted and may deteriorate in the future due to numerous factors, including those discussed under “Forward-Looking Statements”, “-Market Outlook - Real Estate and Real Estate Finance Markets,” “-Liquidity and Capital Resources,” and “-Results of Operations” herein, and the risks discussed in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2019, as filed with the SEC, and those discussed in Part II, Item 1A herein. Those factors include: the future operating performance of our real estate investments in the existing real estate and financial environment; the success and economic viability of our tenants; our ability to refinance existing indebtedness at comparable terms; changes in interest rates on any variable rate debt obligations we incur; the level of participation in our dividend reinvestment plan; and the extent to which the COVID-19 pandemic impacts our operations and those of our tenants and our investments in the SREIT and a real estate loan receivable. In the event our FFO and/or cash flow from operating activities decrease in the future, the level of our distributions may also decrease.  In addition, future distributions declared and paid may exceed FFO and/or cash flow from operating activities.

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Critical Accounting Policies
Our consolidated interim financial statements have been prepared in accordance with GAAP and in conjunction with the rules and regulations of the SEC. The preparation of our financial statements requires significant management judgments, assumptions and estimates about matters that are inherently uncertain. These judgments affect the reported amounts of assets and liabilities and our disclosure of contingent assets and liabilities as of the dates of the financial statements and the reported amounts of revenue and expenses during the reporting periods. With different estimates or assumptions, materially different amounts could be reported in our financial statements. Additionally, other companies may utilize different estimates that may impact the comparability of our results of operations to those of companies in similar businesses. A discussion of the accounting policies that management considers critical in that they involve significant management judgments, assumptions and estimates is included in our Annual Report on Form 10-K for the year ended December 31, 2019 filed with the SEC. There have been no significant changes to our policies during 2020, except for the addition of accounting policies for our real estate loan receivable that was originated in May 2020.
Revenue Recognition
Real Estate Loan Receivable
Interest income on our real estate loan receivable is recognized on an accrual basis over the life of the investment using the interest method. Direct loan origination fees and origination or acquisition costs, as well as premiums or discounts, are amortized over the term of the loan as an adjustment to interest income. We place loans on non-accrual status when any portion of principal or interest is 90 days past due, or earlier when concern exists as to the ultimate collection of principal or interest. When a loan is placed on non-accrual status, we reserve for any outstanding accrued interest receivable through the provision for credit loss and recognize income on either a cash basis, where interest income is only recorded when received in cash, or on a cost-recovery basis, where all cash receipts are applied against the carrying value of the loan. We consider the collectability of the loan’s principal balance in determining whether to recognize income on a cash basis or a cost-recovery basis. We will resume the accrual of interest if we determine the collection of interest, according to the contractual terms of the loan, is probable.
Real Estate Loans Receivable
We record real estate loans receivable at amortized cost, net of an allowance for credit losses (if any). The amortized cost of a real estate loan receivable is the outstanding unpaid principal balance, net of unamortized acquisition premiums or discounts and unamortized costs and fees directly associated with the origination or acquisition of the loan. The allowance for credit losses is a valuation account that is deducted from the amortized cost basis of a real estate loan receivable to present the net amount expected to be collected. This allowance is accounted for under the current expected credit loss (CECL) model and is measured and recorded upon the initial recognition of the real estate loan receivable and is re-measured at each balance sheet date based on changes in facts and circumstances. The allowance is adjusted through “Provision for credit loss” on our consolidated statements of operations and is increased or decreased based on the re-measurement of the allowance for credit loss at each balance sheet date. If we determine that all or a portion of the real estate loan receivable is no longer collectible, the portion that is deemed uncollectible will be written off and the allowance for credit losses reduced. Recoveries of real estate loans receivable that were previously written off are recorded when cash is received.
We apply a probability-of-default method to measure the allowance for credit losses which applies the probability of default within a given timeframe by the percentage of the real estate loan receivable not expected to be collected due to default. Additionally, we evaluate the potential for adverse changes in the value of the collateral over the contractual life of the real estate loan receivable, the financial condition of the borrower, the probability that we will grant the borrower a concession through modification of the loan terms and other market conditions in calculating the allowance for credit losses.
Failure to properly measure an allowance for credit loss could result in the overstatement of earnings and the carrying value of the real estate loan receivable. Actual losses, if any, could differ significantly from estimated amounts.

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Subsequent Events
We evaluate subsequent events up until the date the consolidated financial statements are issued.
Distributions Paid
On October 1, 2020, we paid distributions of $9.1 million, which related to distributions in the amount of $0.04983333 per share of common stock to stockholders of record as of the close of business on September 21, 2020. On November 2, 2020, 2020, we paid distributions of $9.2 million, which related to distributions in the amount of $0.04983333 per share of common stock to stockholders of record as of the close of business on October 20, 2020.
Distributions Authorized
On November 13, 2020, our board of directors authorized a November 2020 distribution in the amount of $0.04983333 per share of common stock to stockholders of record as of the close of business on November 20, 2020, which we expect to pay in December 2020, and a December 2020 distribution in the amount of $0.04983333 per share of common stock to stockholders of record as of the close of business on December 18, 2020, which we expect to pay in January 2021.
Investors may choose to receive cash distributions or purchase additional shares through our dividend reinvestment plan.
Financings Subsequent to September 30, 2020
Accenture Tower Revolving Loan
On November 2, 2020, we, through an indirect wholly owned subsidiary (the “Accenture Tower Borrower”), entered into a three-year loan facility with U.S. Bank, National Association, as administrative agent, joint lead arranger and co-book runner; Bank of America, N.A., as syndication agent, joint lead arranger and co-book runner; and Deutsche Pfandbriefbank AG (together, the “Accenture Tower Lenders”), for a committed amount of up to $375.0 million (the “Accenture Tower Revolving Loan”), of which $281.3 million is term debt and $93.7 million is revolving debt. At closing, $281.3 million was funded, of which approximately $210.3 million was used to pay down the Portfolio Loan Facility. Also, at closing, the revolving portion of $93.7 million remained available for future disbursements, subject to certain terms and conditions contained in the loan documents. Subject to certain terms and conditions contained in the loan documents, the Accenture Tower Revolving Loan may be used for working capital, capital expenditures, real property acquisitions and other corporate purposes, provided that $30.0 million of the revolving debt is to be used for tenant improvements and lease commissions related to the Accenture lease although this restriction is released as we complete such projects. In addition, the Accenture Tower Revolving Loan contains customary representations and warranties, financial and other affirmative and negative covenants (including maintenance of an ongoing debt service coverage ratio), events of default and remedies typical for this type of facility.
The Accenture Tower Revolving Loan matures on November 2, 2023, with two 12-month extension options, subject to certain terms and conditions contained in the loan documents. The Accenture Tower Revolving Loan bears interest at a floating rate of 225 basis points over one-month LIBOR so long as the loan is subject to a lender provided swap. The Accenture Tower Revolving Loan includes provisions for a “LIBOR Successor Rate” in the event LIBOR is unascertainable or ceases to be available. Monthly payments are interest only with the entire balance and all outstanding interest and fees due at maturity. We will have the right to repay the loan in part and in whole subject to certain conditions contained in the loan documents.
REIT Properties III is providing a guaranty of (i) payment of, and agrees to protect, defend, indemnify and hold harmless each Accenture Tower Lender for, from and against, any liability, obligation, deficiency, loss, damage, costs and expenses (including reasonable attorney’s fees), and any litigation which may at any time be imposed upon, incurred or suffered by the Accenture Tower Lender because of (a) certain intentional acts committed by the Accenture Tower Borrower, (b) fraud or intentional misrepresentations by the Accenture Tower Borrower or REIT Properties III in connection with the loan documents as described in the guaranty agreement, and (c) certain bankruptcy or liquidation proceedings under state or federal law, and (ii) payment for liability that is incurred and related to certain environmental matters. In addition, REIT Properties III is providing a principal guaranty for up to 25% of the outstanding balance of the Accenture Tower Revolving Loan, which will convert to a principal guaranty of up to the funded amount of the revolving portion of the Accenture Tower Revolving Loan upon us meeting certain leasing and performance hurdles as set forth in the guaranty agreement.

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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (continued)
Modified Portfolio Loan Facility
On November 3, 2017, we, through indirectly wholly owned subsidiaries, entered into a three-year loan facility with Bank of America, N.A., as administrative agent; Merrill Lynch Pierce Fenner & Smith Incorporated, Wells Fargo Securities, LLC and U.S. Bank, N.A., as joint lead arrangers and joint book runners; Wells Fargo Bank, NA, as syndication agent, and each of the financial institutions a signatory thereto (the “Portfolio Loan Facility Lenders”), for an amount of up to $1.01 billion (the “Portfolio Loan Facility”), of which $757.5 million is term debt and $252.5 million is revolving debt. The Portfolio Loan Facility had an initial maturity date of November 3, 2020, with two 12-month extension options, subject to certain terms and conditions contained in the loan documents.
On November 3, 2020, we, through indirect wholly owned subsidiaries, entered into a loan extension and modification agreement (the “Modified Portfolio Loan Facility”) with Bank of America, N.A., as administrative agent for the Portfolio Loan Facility Lenders, to (i) extend the maturity date of the Modified Portfolio Loan Facility to November 3, 2021 and (ii) modify the loan documents to include provisions for a “LIBOR Successor Rate” in the event LIBOR is unascertainable or ceases to be available. As of November 3, 2020, the face amount of the Portfolio Loan Facility was $630.6 million, of which $472.9 million was term debt and $157.7 million was revolving debt. As of November 3, 2020, the outstanding balance under the Portfolio Loan Facility consisted of $472.9 million of term debt. The entire revolving portion of the Portfolio Loan Facility remains available for future disbursements, subject to certain terms and conditions contained in the loan documents. The Modified Portfolio Loan Facility has one additional 12-month extension option, subject to certain terms and conditions as described in the loan documents. The Modified Portfolio Loan Facility is secured by RBC Plaza, Preston Commons, Sterling Plaza, Towers at Emeryville, Ten Almaden and Town Center. Accenture Tower was released as security from the loan in connection with the entry into the Accenture Tower Revolving Loan.
Amended and Restated Bylaws
Effective November 13, 2020, our board of directors approved our Third Amended and Restated Bylaws (the “Amended Bylaws”) to clarify the scope of Article XIV, the exclusive forum provision for certain litigation. The Amended Bylaws revise Article XIV to clarify that the exclusive forum provision in Article XIV does not apply to claims under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts have exclusive jurisdiction. The Amended Bylaws are attached to this Quarterly Report on Form 10-Q as Exhibit 3.2.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 3. Quantitative and Qualitative Disclosures about Market Risk
We are exposed to the effects of interest rate changes as a result of borrowings used to maintain liquidity and to fund the acquisition, expansion and refinancing of our real estate investment portfolio and operations and as a result of our investment in a real estate loan receivable. We may also be exposed to the effects of changes in interest rates as a result of future acquisitions and originations of mortgage and other loans. Our profitability and the value of our real estate investment portfolio may be adversely affected during any period as a result of interest rate changes. Our interest rate risk management objectives are to limit the impact of interest rate changes on earnings, prepayment penalties and cash flows and to lower overall borrowing costs. We may manage interest rate risk by maintaining a ratio of fixed rate, long-term debt such that variable rate exposure is kept at an acceptable level or by utilizing a variety of financial instruments, including interest rate caps, floors, and swap agreements, in order to limit the effects of changes in interest rates on our operations. When we use these types of derivatives to hedge the risk of interest-earning assets or interest-bearing liabilities, we may be subject to certain risks, including the risk that losses on a hedge position will reduce the funds available for the payment of distributions to our stockholders and that the losses may exceed the amount we invested in the instruments.
We borrow funds at a combination of fixed and variable rates. Interest rate fluctuations will generally not affect our future earnings or cash flows on our fixed rate debt, unless such instruments mature or are otherwise terminated. However, interest rate changes will affect the fair value of our fixed rate instruments. As of September 30, 2020, the fair value of our fixed rate debt was $94.7 million and the outstanding principal balance of our fixed rate debt was $93.0 million.  The fair value estimate of our fixed rate debt is calculated using a discounted cash flow analysis utilizing rates we would expect to pay for debt of a similar type and remaining maturity if the loan was originated as of September 30, 2020.  As we expect to hold our fixed rate instruments to maturity (unless the property securing the debt is sold and the loan is repaid) and the amounts due under such instruments would be limited to the outstanding principal balance and any accrued and unpaid interest, we do not expect that fluctuations in interest rates, and the resulting change in fair value of our fixed rate instruments, would have a significant impact on our operations. 
Conversely, movements in interest rates on our variable rate debt and variable rate real estate loan receivable would change our future earnings and cash flows, but not significantly affect the fair value of those instruments. However, changes in required risk premiums would result in changes in the fair value of variable rate instruments. As of September 30, 2020, we were exposed to market risks related to fluctuations in interest rates on $263.0 million of variable rate debt outstanding after giving consideration to the impact of interest rate swap agreements on approximately $1.1 billion of our variable rate debt (including one forward interest rate swap in the amount of $65.0 million, which will become effective in November 2020). Based on interest rates as of September 30, 2020, if interest rates were 100 basis points higher or lower during the 12 months ending September 30, 2021, interest expense on our variable rate debt would increase or decrease by $2.6 million. As of September 30, 2020, we were exposed to market risks related to fluctuations in interest rates on our variable rate loan receivable outstanding with an outstanding principal balance of $150.2 million. An increase of 100 basis points in interest rates would increase our future cash flows by $0.7 million through the maturity of our variable rate loan receivable on May 6, 2021. A decrease of 100 basis points in interest rates would have no impact on our future cash flows due to an interest rate floor on our variable rate loan receivable.
The annual effective interest rate of our variable rate real estate loan receivable as of September 30, 2020 was 5.3%. The interest rate and weighted-average interest rate of our fixed rate debt and variable rate debt as of September 30, 2020 were 4.2% and 3.1%, respectively.  The weighted-average interest rate represents the actual interest rate in effect as of September 30, 2020 (consisting of the contractual interest rate and the effect of interest rate swaps, if applicable), using interest rate indices as of September 30, 2020 where applicable.
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PART I. FINANCIAL INFORMATION (CONTINUED)
Item 3. Quantitative and Qualitative Disclosures about Market Risk (continued)
We are exposed to financial market risk with respect to our investment in Prime US REIT (SGX Ticker: OXMU). Financial market risk is the risk that we will incur economic losses due to adverse changes in our investment’s security price. Our exposure to changes in security prices is a result of our investment in these types of securities. Market prices are subject to fluctuation and, therefore, the amount realized in the subsequent sale of an investment may significantly differ from our carrying value. Fluctuation in the market prices of a security may result from any number of factors, including perceived changes in the underlying fundamental characteristics of the issuer, the relative price of alternative investments, interest rates, default rates and general market conditions. Prime US REIT’s units were first listed for trading on the SGX-ST on July 19, 2019. If an active trading market for the units does not develop or is not sustained, it may be difficult to sell our units. The market for Singapore REITs may trade a small number of securities and may be unable to respond effectively to increases in trading volume, potentially making prompt liquidation of our investment in Prime US REIT difficult. Even if an active trading market develops or we are able to negotiate block trades, if we or other significant investors sell or are perceived as intending to sell a substantial amount of units in a short period of time, the market price of our remaining units could be adversely affected. In addition, as a foreign equity investment, the trading price of units of Prime US REIT may be affected by political, economic, financial and social factors in the Singapore and Asian markets, including changes in government, economic and fiscal policies. Furthermore, we may be limited in our ability to sell our investment in Prime US REIT if our advisor and/or its affiliates are deemed to have material, non-public information regarding Prime US REIT. Charles J. Schreiber, Jr., the Chairman of our Board, our Chief Executive Officer, our President and our affiliated director, is a director of the external manager of Prime US REIT, and an affiliate of our advisor services as the U.S. asset manager to Prime US REIT. We do not currently engage in derivative or other hedging transactions to manage our investment’s security price risk. As of September 30, 2020, we held 289,561,899 units of the Prime US REIT which represented 27.4% of the outstanding units of Prime US REIT. As of September 30, 2020, the aggregate value of our investment in the units of Prime US REIT was $238.9 million, which was based on the closing price of the Prime US REIT units on the SGX of $0.83 per unit as of September 30, 2020. Based solely on the closing price per unit of Prime US REIT units as of September 30, 2020, if prices were to increase or decrease by 10% upon sale of all of our 289,561,899 units of Prime US REIT, our net income would increase by $30.1 million or decrease by $17.6 million, respectively.
For a discussion of the interest rate risks related to the current capital and credit markets, see Part I, Item 2, “Management’s Discussion and Analysis of Financial Condition and Results of Operations - Market Outlook - Real Estate and Real Estate Finance Markets” herein and the risks discussed in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2019, as filed with the SEC.

Item 4. Controls and Procedures
Disclosure Controls and Procedures
As of the end of the period covered by this report, management, including our principal executive officer and principal financial officer, evaluated the effectiveness of the design and operation of our disclosure controls and procedures. Based upon, and as of the date of, the evaluation, our principal executive officer and principal financial officer concluded that the disclosure controls and procedures were effective as of the end of the period covered by this report to ensure that information required to be disclosed in the reports we file and submit under the Exchange Act is recorded, processed, summarized and reported as and when required. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in the reports we file and submit under the Exchange Act is accumulated and communicated to our management, including our principal executive officer and our principal financial officer, as appropriate to allow timely decisions regarding required disclosure.
Internal Control Over Financial Reporting
There have been no changes in our internal control over financial reporting that occurred during the quarter ended September 30, 2020 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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PART II. OTHER INFORMATION

Item 1. Legal Proceedings
None.

Item 1A. Risk Factors
In addition to the risks discussed below, please see the risks discussed in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2019 as filed with the SEC.
The COVID-19 pandemic or any future pandemic, epidemic or outbreak of infectious disease could have material and adverse effects on our or our tenants’ business, financial condition, results of operations and cash flows, the markets and communities in which we and our tenants operate and our investments in the SREIT and a real estate loan receivable.
Since initially being reported in December 2019, COVID-19 has spread around the world, including to every state in the United States. On March 11, 2020, the World Health Organization declared COVID-19 a pandemic, and on March 13, 2020, the United States declared a national emergency with respect to COVID-19. The COVID-19 pandemic has severely impacted global economic activity and caused significant volatility and negative pressure in financial markets. The global impact of the pandemic continues to evolve and many countries, states and localities, including states and localities in the United States, have reacted by imposing measures to help control the spread of the virus, including instituting quarantines, “shelter in place” and “stay at home” orders, travel restrictions, restrictions on businesses and school closures. As a result, the COVID-19 pandemic is negatively impacting almost every industry, including the U.S. office real estate industry and the industries of our tenants, directly or indirectly. The COVID-19 pandemic has triggered a period of global economic slowdown. The fluidity of the COVID-19 pandemic continues to preclude any prediction as to the ultimate adverse impact of the pandemic on our business, financial condition, results of operations or cash flows.
The COVID-19 pandemic or any future pandemic, epidemic or outbreak of infectious disease affecting states or regions in which we or our tenants operate could have material and adverse effects on our business, financial condition, results of operations and cash flows due to, among other factors:
health or other government authorities requiring the closure of offices or other businesses or instituting quarantines of personnel as the result of, or in order to avoid, exposure to a contagious disease;
businesses evolving to make work-from-home environments, such as employee telecommuting, flexible work schedules, open workplaces or teleconferencing, increasingly common, which could over time erode the overall demand for office space and, in turn, place downward pressure on occupancy, rental rates and property valuations;
disruption in supply and delivery chains;
a general decline in business activity and demand for real estate, especially office properties;
reduced economic activity, general economic decline or recession, which may impact our tenants’ businesses, financial condition and liquidity and may cause tenants to be unable to make rent payments to us timely, or at all, or to otherwise seek modifications of lease obligations;
difficulty accessing debt and equity capital on attractive terms, or at all, and a severe disruption and instability in the global financial markets or deteriorations in credit and financing conditions, which may affect our access to capital necessary to fund business operations or address maturing liabilities on a timely basis; and
the potential negative impact on the health of our advisor’s personnel, particularly if a significant number of our advisor’s employees are impacted, which would result in a deterioration in our ability to ensure business continuity during a disruption.
We have also made a significant investment in the common units of the SREIT. In addition to the risks similar to above with respect to the SREIT’s investments in US office properties, our investment in the units of the SREIT is subject to the risks inherent in investing in traded securities. Since early March 2020, the trading price of the common units of the SREIT has declined substantially and experienced substantial volatility. For purposes of the December 4, 2019 estimated value per share, we valued our investment in units of the SREIT at $257.8 million, based on the trading price of the units of the SREIT as of closing on December 3, 2019 less a discount for (i) transfer restrictions imposed by lock-up agreements then in effect on 100% of the units we held and (ii) blockage due to the quantity of units held by us relative to the normal level of trading volume in the SREIT units. As of November 13, 2020, the aggregate value of our investment in the units of the SREIT was $224.4 million, which was based solely on the closing price of the units on the SGX of $0.78 per unit as of November 13, 2020 and did not take into account the potential blockage due to the quantity of units we hold.
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PART II. OTHER INFORMATION (CONTINUED)
Item 1A. Risk Factors (continued)
The ultimate impact of the COVID-19 pandemic or a similar health epidemic is highly uncertain and subject to change. We do not yet know the full extent of potential impacts on our business and operations, our tenants’ businesses and operations, our investments in the SREIT and a real estate loan receivable or the global economy as a whole. In the near term many of our tenants have suffered reductions in revenue, and since April 1, 2020, a number of tenants have requested rent relief, most in the form of deferrals or abatements. Depending upon the duration of the pandemic, the various measures imposed to help control the spread of the virus and the corresponding economic slowdown, these tenants or additional tenants may seek rent deferrals or abatements in future periods or become unable to pay their rent. If tenants default on their rent and vacate, the ability to re-lease this space is likely to be more difficult if the economic slowdown continues and any long term impact of this situation, even after an economic rebound, remains unclear. Further, significant reductions in rental revenue in the future related to the impact of the COVID-19 pandemic may limit our ability to draw on our revolving credit facilities or exercise our extension options due to covenants described in our loan agreements. While the spread of COVID-19 may eventually be contained or mitigated, there is no guarantee that a future outbreak or any other widespread epidemics will not occur, or that the global economy will recover, either of which could materially harm our business.
The current offering price of shares under our dividend reinvestment plan is equal to 95% of the December 4, 2019 estimated value per share approved by our board of directors. It does not take into account developments in our portfolio or the markets since December 4, 2019, including the current business disruptions as a result of the COVID-19 pandemic. As a result of these developments, a reinvestment of dividends in our common stock bears increased risk.
Pursuant to our dividend reinvestment plan, participants in the dividend reinvestment plan acquire shares of our common stock under the plan at a price equal to 95% of the estimated value per share of our common stock. As such, participants currently acquire shares of our common stock under the plan at a price equal to $11.07 per share, which is 95% of our December 4, 2019 estimated value per share. The value of our shares will fluctuate over time in response to developments related to future investments, the performance of individual assets in our portfolio and the management of those assets, the real estate and finance markets and due to other factors. As such, the estimated value per share does not take into account developments in our portfolio since December 4, 2019. In particular, the COVID-19 pandemic, together with the resulting measures imposed to help control the spread of the virus, has had a negative impact on the economy and business activity globally, as discussed in the risk factor above. These risks are not priced into our most recent estimated value per share, and given the uncertainty, no assurances can be given that the purchase price of shares of our common stock reflect the underlying value of our assets. As a result, a reinvestment of distributions in our common stock bears increased risk.
For a full description of the methodologies and assumptions used to value our assets and liabilities in connection with the calculation of the December 4, 2019 estimated value per share, see Part II, Item 5, “Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities — Market Information” of the our Annual Report on Form 10-K for the year ended December 31, 2019.

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PART II. OTHER INFORMATION (CONTINUED)
Item 2.    Unregistered Sales of Equity Securities and Use of Proceeds
a).During the period covered by this Form 10-Q, we did not sell any equity securities that were not registered under the Securities Act of 1933.
b).Not applicable.
c).We have a share redemption program that may enable stockholders to sell their shares to us in limited circumstances. The restrictions of our share redemption program will severely limit our stockholders’ ability to sell their shares should they require liquidity and will limit our stockholders’ ability to recover an amount equal to our estimated value per share.
The following is a description of our share redemption program.
In connection with our pursuit of a NAV REIT strategy, in December 2019, the board of directors determined to temporarily suspend Ordinary Redemptions (defined below) under the share redemption program, and Ordinary Redemptions remain suspended as we navigate through the impact of the COVID-19 pandemic and evaluate our proposed conversion to an NAV REIT. Upon suspension, all Ordinary Redemptions requests that had been received were cancelled and no Ordinary Redemptions requests will be accepted or collected during the suspension of the share redemption program. However, any redemptions sought in connection with and meeting the requirements for a Special Redemptions (defined below) would still be eligible and continue to be processed in accordance with the current share redemption program, subject to the restrictions described below.
There are several limitations on our ability to redeem shares under our share redemption program:
Unless the shares are being redeemed in connection with a stockholder’s death, “Qualifying Disability” or “Determination of Incompetence” (each as defined in the share redemption program, and together with redemptions sought in connection with a stockholder’s death, “Special Redemptions;” all redemptions that do not meet the requirements for a Special Redemption are “Ordinary Redemptions”), we may not redeem shares unless the stockholder has held the shares for one year.
During any calendar year, we may redeem only the number of shares that we could purchase with the amount of net proceeds from the sale of shares under our dividend reinvestment plan during the prior calendar year, provided that once we have received requests for redemptions, whether in connection with Special Redemptions or otherwise, that if honored, and when combined with all prior redemptions made during the calendar year, would result in the amount of remaining funds available for the redemption of additional shares in such calendar year being $10.0 million or less, the last $10.0 million of available funds shall be reserved exclusively for Special Redemptions. Notwithstanding anything contained in our share redemption program to the contrary, we may increase or decrease the funding available for the redemption of shares pursuant to the program upon ten business days’ notice to our stockholders.
During any calendar year, we may redeem no more than 5% of the weighted-average number of shares outstanding during the prior calendar year.
We have no obligation to redeem shares if the redemption would violate the restrictions on distributions under Maryland General Corporation Law, as amended from time to time, which prohibits distributions that would cause a corporation to fail to meet statutory tests of solvency.
For a stockholder’s shares to be eligible for redemption in a given month, the administrator must receive a written redemption request from the stockholder or from an authorized representative of the stockholder setting forth the number of shares requested to be redeemed at least five business days before the redemption date. If we cannot redeem all shares presented for redemption in any month because of the limitations on redemptions set forth in our share redemption program, then we will honor redemption requests on a pro rata basis, except that if a pro rata redemption would result in a stockholder owning less than the minimum purchase requirement described in our currently effective, or the most recently effective, registration statement, as such registration statement has been amended or supplemented, then we would redeem all of such stockholder’s shares.
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PART II. OTHER INFORMATION (CONTINUED)
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds (continued)
If we do not completely satisfy a redemption request on a redemption date because the program administrator did not receive the request in time, because of the limitations on redemptions set forth in our share redemption program or because of a suspension of our share redemption program, then we will treat the unsatisfied portion of the redemption request as a request for redemption at the next redemption date funds are available for redemption, unless the redemption request is withdrawn; provided that during the current suspension of Ordinary Redemptions, all Ordinary Redemption requests had been received were cancelled and no Ordinary Redemption requests are being accepted or collected. Any stockholder can withdraw a redemption request by sending written notice to the program administrator, provided such notice is received at least five business days before the redemption date.
Upon a transfer of shares, any pending redemption requests with respect to such transferred shares will be canceled as of the date we accept the transfer. Stockholders wishing us to continue to consider a redemption request related to any transferred shares must resubmit their redemption request.
Pursuant to our share redemption program, redemptions made in connection with Special Redemptions are made at a price per share equal to the most recent estimated value per share of our common stock as of the applicable redemption date.
Ordinary Redemptions are made at a price per share equal to 95% of our most recent estimated value per share as of the applicable redemption date.
On December 4, 2019, our board of directors approved an estimated value per share of our common stock of $11.65 based on the estimated value of our assets less the estimated value of our liabilities divided by the number of shares outstanding, all as of September 30, 2019, with the exception of adjustments to our net asset value to give effect to (i) the October 23, 2019 authorization of a special dividend of $0.80 per share on the outstanding shares of our common stock to the stockholders of record as of the close of business on November 4, 2019 and (ii) the change in the estimated value of our investment in units of Prime US REIT (SGX Ticker: OXMU) as of December 3, 2019. This estimated value per share became effective for the December 2019 redemption date, which was December 31, 2019.
For purposes of determining the time period a redeeming stockholder has held each share, the time period begins as of the date the stockholder acquired the share; provided, that shares purchased by the redeeming stockholder pursuant to our dividend reinvestment plan will be deemed to have been acquired on the same date as the initial share to which the dividend reinvestment plan shares relate. The date of the share’s original issuance by us is not determinative.
We currently expect to utilize an independent valuation firm to update our estimated value per share no later than December 2020. We will report the estimated value per share of our common stock in a Current Report on Form 8-K or in our annual or quarterly reports, all publicly filed with the SEC. We will also provide information about our estimated value per share on our website, www.kbsreitiii.com (such information may be provided by means of a link to our public filings on the SEC’s website, www.sec.gov).
Our board of directors may amend, suspend or terminate our share redemption program upon 10 business days’ notice to stockholders, and we may increase or decrease the funding available for the redemption of shares pursuant to our share redemption program upon 10 business days’ notice. We may provide notice by including such information (a) in a Current Report on Form 8-K or in our annual or quarterly reports, all publicly filed with the SEC or (b) in a separate mailing to our stockholders. The complete share redemption program document is filed as an exhibit to our Quarterly Report on Form 10-Q for the period ended March 31, 2018 filed with the SEC on May 9, 2018 and is available at the SEC’s website at www.sec.gov.
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Table of Contents
PART II. OTHER INFORMATION (CONTINUED)
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds (continued)
During the nine months ended September 30, 2020, we funded redemptions under our share redemption program with the net proceeds from our dividend reinvestment plan and we redeemed shares pursuant to our share redemption program as follows:
Month
Total Number
of Shares Redeemed (1)
Average Price Paid
Per Share (2)
Approximate Dollar Value of Shares Available That May Yet Be  Redeemed Under the Program
January 2020 96,852  $ 11.65 
(3)
February 2020 58,947  $ 11.65 
(3)
March 2020 103,822  $ 11.65 
(3)
April 2020 104,110  $ 11.65 
(3)
May 2020 82,055  $ 11.65 
(3)
June 2020 92,217  $ 11.65 
(3)
July 2020 80,930  $ 11.65 
(3)
August 2020 78,771  $ 11.65 
(3)
September 2020 41,454  $ 11.65 
(3)
Total 739,158 
_____________________
(1) We announced the adoption and commencement of the program on October 14, 2010. We announced amendments to the program on March 8, 2013 (which amendment became effective on April 7, 2013), on March 7, 2014 (which amendment became effective on April 6, 2014) and on May 9, 2018 (which amendment became effective on June 8, 2018).
(2) The prices at which we redeem shares under the program are as set forth above.
(3) We limit the dollar value of shares that may be redeemed under the program as described above. Based on the amount of net proceeds raised from the sale of shares under our dividend reinvestment plan during 2019, we had an aggregate of $51.7 million available for redemptions in 2020, including the reserve for Special Redemptions. In connection with our pursuit of a NAV REIT strategy, in December 2019, the board of directors determined to temporarily suspend Ordinary Redemptions under the share redemption program, and Ordinary Redemptions remain suspended as we navigate through the impact of the COVID-19 pandemic and evaluate our proposed conversion to an NAV REIT. Upon suspension, all Ordinary Redemptions requests that had been received were cancelled and no Ordinary Redemptions requests were accepted or collected during the nine months ended September 30, 2020. Based on this limitation, as of September 30, 2020, we had $43.1 million available for Special Redemptions for the remainder of 2020. As of October 31, 2020, we had $42.7 million available for Special Redemptions for the remainder of 2020.
In addition to the redemptions under the share redemption program described above, during the nine months ended September 30, 2020, we repurchased an additional 2,089 shares of our common stock at an average price of $11.65 per share for an aggregate price of $24,000.

Item 3. Defaults Upon Senior Securities
None.

Item 4. Mine Safety Disclosures
None.

Item 5 Other Information
Amended and Restated Bylaws
Effective November 13, 2020, our board of directors approved our Third Amended and Restated Bylaws (the “Amended Bylaws”) to clarify the scope of Article XIV, the exclusive forum provision for certain litigation. The Amended Bylaws revise Article XIV to clarify that the exclusive forum provision in Article XIV does not apply to claims under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts have exclusive jurisdiction. The Amended Bylaws are attached to this Quarterly Report on Form 10-Q as Exhibit 3.2.
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PART II. OTHER INFORMATION (CONTINUED)
Item 6. Exhibits
Ex. Description
3.1
3.2
4.1
4.2
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12

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PART II. OTHER INFORMATION (CONTINUED)
Item 6. Exhibits (continued)

Ex. Description
31.1
31.2
32.1
32.2
99.1
101.INS Inline XBRL Instance Document
101.SCH Inline XBRL Taxonomy Extension Schema
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase
101.DEF Inline XBRL Taxonomy Extension Definition Linkbase
101.LAB Inline XBRL Taxonomy Extension Label Linkbase
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase
104 Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101)

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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

KBS REAL ESTATE INVESTMENT TRUST III, INC.
Date: November 13, 2020 By:
/S/ CHARLES J. SCHREIBER, JR.        
Charles J. Schreiber, Jr.
Chairman of the Board,
Chief Executive Officer, President and Director
(principal executive officer)
Date: November 13, 2020 By:
/S/ JEFFREY K. WALDVOGEL        
  Jeffrey K. Waldvogel
  Chief Financial Officer, Treasurer and Secretary
(principal financial officer)

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Exhibit 3.2
THIRD AMENDED AND RESTATED BYLAWS
OF
KBS REAL ESTATE INVESTMENT TRUST III, INC.
ARTICLE I
OFFICES
Section 1.01.    PRINCIPAL OFFICES. The principal office of KBS Real Estate Investment Trust III, Inc. (the “Corporation”) shall be located at such place or places as the board of directors may designate from time to time.
Section 1.02.    ADDITIONAL OFFICES. The Corporation may have additional offices, including a principal executive office, at such places as the board of directors may from time to time determine or otherwise as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01.    PLACE. All meetings of stockholders shall be held at the principal executive office of the Corporation or at such other place as shall be set by the board of directors and stated in the notice of the meeting.
Section 2.02.    ANNUAL MEETING. An annual meeting of the stockholders for the election of directors and the transaction of any business within the powers of the Corporation shall be held on a date and at the time set by the board of directors.
Section 2.03.    SPECIAL MEETINGS. Special meetings of the stockholders: (a) may be called by (i) the president, (ii) the chief executive officer, (iii) a majority of the board of directors, or (iv) a majority of the Independent Directors, as defined in the Corporation’s charter (the “Charter”); (b) and must be called by the secretary of the Corporation upon the written request of common stockholders holding in the aggregate not less than ten percent (10%) of the votes entitled to be cast at such meeting whereby such written request states the purpose of the meeting and the matters proposed to be acted upon at such meeting. In the event of a stockholders’ meeting called by the secretary as required above, the secretary of the Corporation shall, within ten days of his or her receipt of the written request, notify, in the manner proscribed herein, each stockholder entitled to vote at the meeting. Notwithstanding anything to the contrary herein, such meeting shall be held not less than 15 days nor more than 60 days after the secretary’s delivery of such notice. Subject to the foregoing sentence, such meeting shall be held at the time and place specified in the stockholder request; provided, however, that if none is so specified, the meeting shall be held at such time and place convenient to the stockholders. Unless requested by the stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting, a special meeting need not be called to consider any matter that is substantially the same as a matter voted on at any special meeting of the stockholders held during the preceding twelve months.



Section 2.04.    NOTICE FOR MEETINGS. Except as provided otherwise in Section 2.03 of this Article II, the secretary shall, not less than ten nor more than 90 days before each meeting of stockholders, give to each stockholder entitled to vote at the meeting and each other stockholder entitled to notice of the meeting, notice in writing or by electronic transmission stating the time and place of the meeting and, in the case of a special meeting or as otherwise required by the Maryland General Corporation Law (the “MGCL”), the purpose of the meeting. Notice shall be deemed delivered to a stockholder upon being: (i) personally delivered to the stockholder; (ii) left at the stockholder’s residence or usual place of business; (iii) mailed to the stockholder at the stockholder’s address as it appears on the records of the Corporation, in which case such notice shall be deemed to be given when deposited in the United States mail with postage prepaid thereon; or (iv) transmitted to the stockholder by electronic mail to any electronic mail address of the stockholder or by any other electronic means. Failure to give notice of any meeting to one or more stockholders, or any irregularity in such notice, shall not affect the validity of any meeting fixed in accordance with this Article II, or the validity of any proceedings at any such meeting. The Corporation may postpone or cancel a meeting of stockholders by making a public announcement (as defined in Section 2.12(c)(2)) of such postponement or cancellation prior to the meeting. Notice of the date to which the meeting is postponed shall be given not less than ten days prior to such date and otherwise in the manner set forth in this Section 2.04.
Section 2.05.    SCOPE OF NOTICE. Any business of the Corporation may be transacted at an annual meeting of stockholders without being specifically designated in the notice, except as otherwise set forth in Section 2.12(a) and except for such business as is required by the MGCL or any other relevant statute to be stated in such notice. No business shall be transacted at a special meeting of stockholders except as specifically designated in the notice.
Section 2.06.    ORGANIZATION AND CONDUCT. Every meeting of stockholders shall be conducted by an individual appointed by the board of directors to be chairman of the meeting or, in the absence of such appointment, by the chairman of the board or, in the case of a vacancy in the office or absence of the chairman of the board, by one of the following officers present at the meeting: the vice chairman of the board, if there be one, the president, the vice presidents in their order of rank and seniority, the secretary, or, in the absence of such officers, a chairman chosen by the stockholders by the vote of a majority of the votes cast by stockholders present in person or by proxy. The secretary, or, in the secretary’s absence or the secretary’s appointment as chairman of the meeting, an assistant secretary, or in the absence of both the secretary and assistant secretaries, an individual appointed by the board of directors or, in the absence of such appointment, an individual appointed by the chairman or co-chairmen of the meeting, as applicable, shall act as secretary. In the event that the secretary presides at a meeting of the stockholders, an assistant secretary, or, in the absence of an assistant secretary, an individual appointed by the secretary shall record the minutes of the meeting. The order of business and all other matters of procedure at any meeting of stockholders shall be determined by the chairman or co-chairmen of the meeting, as applicable. The chairman or co-chairmen of the meeting, as applicable, may prescribe such rules, regulations and procedures and take such action as, in the discretion of such chairman or co-chairmen and without any action by the stockholders, are appropriate for the proper conduct of the meeting, including, without limitation, (a) restricting admission to the time set for the commencement of the meeting; (b) limiting attendance at the meeting to stockholders of record of the Corporation, their duly authorized proxies or other such
2



persons as the chairman or co-chairmen of the meeting, as applicable, may determine; (c) limiting participation at the meeting on any matter to stockholders of record of the Corporation entitled to vote on such matter, their duly authorized proxies or other such persons as the chairman or co-chairmen of the meeting, as applicable, may determine; (d) limiting the time allotted to questions or comments by participants; (e) determining when and for how long the polls should be opened and when the polls should be closed; (f) maintaining order and security at the meeting; (g) removing any stockholder or any other individual who refuses to comply with meeting procedures, rules or guidelines as set forth by the chairman or co-chairmen of the meeting, as applicable; (h) concluding a meeting or recessing or adjourning the meeting to a later date and time and place announced at the meeting; and (i) complying with any state and local laws and regulations concerning safety and security. Unless otherwise determined by the chairman or co-chairmen of the meeting, as applicable, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
Section 2.07.    QUORUM; ADJOURNMENT. At any meeting of the stockholders, the presence in person or by proxy of stockholders entitled to cast 50% of all the votes entitled to be cast at such meeting shall constitute a quorum except as otherwise provided by law, the Charter or these bylaws. If a quorum shall not be present at any meeting of the stockholders, the chairman or co-chairman of the meeting, as applicable, may adjourn the meeting from time to time to a date not more than 120 days after the original record date without notice other than announcement at the meeting. At such adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted at the meeting as originally noticed.
    The stockholders present either in person or by proxy, at a meeting which has been duly called and convened, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave fewer than required to establish a quorum.
Section 2.08.    VOTING. The holders of a majority of the shares of stock entitled to vote who are present in person or by proxy at an annual meeting at which a quorum is present may, without the necessity for concurrence by the board of directors, vote to elect a director. Each share may be voted for as many individuals as there are directors to be elected and for whose election the share is entitled to be voted. Except as otherwise required by law, the Charter or these bylaws, a majority of the votes cast at a meeting of the stockholders duly called and at which a quorum is present shall be sufficient to approve any other matter which may properly come before the meeting. Unless otherwise provided in the Charter, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of the stockholders.
Section 2.09.    PROXIES. A stockholder may cast the votes entitled to be cast by the shares of stock owned of record by the stockholder in person or by proxy executed by the stockholder or by the stockholder’s duly authorized agent in any manner permitted by law. Such proxy or evidence of authorization of such proxy shall be filed with the secretary of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy.
Section 2.10.    VOTING OF STOCK BY CERTAIN HOLDERS. Stock registered in the name of a corporation, partnership, trust or other entity, if entitled to be voted, may be voted by
3



the president, a vice president, a general partner, or trustee thereof, as the case may be, or a proxy appointed by any of the foregoing individuals, unless some other person who has been appointed to vote such stock pursuant to a bylaw or a resolution of the governing body of such corporation or other entity or agreement of the partners of a partnership presents a certified copy of such bylaw, resolution or agreement, in which case such person may vote such stock. Any director or other fiduciary may vote stock registered in his name as such fiduciary, either in person or by proxy.
    Shares of the Corporation’s stock owned directly or indirectly by it shall not be voted at any meeting and shall not be counted in determining the total number of outstanding shares entitled to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case, subject to the terms of the Charter, they may be voted and shall be counted in determining the total number of outstanding shares at any given time.
    The board of directors may adopt by resolution a procedure by which a stockholder may certify in writing to the Corporation that any shares of stock registered in the name of the stockholder are held for the account of a specified person other than the stockholder. The resolution shall set forth the class of stockholders who may make the certification, the purpose for which the certification may be made, the form of certification and the information to be contained in it; if the certification is with respect to a record date or closing of the stock transfer books, the time after the record date or closing of the stock transfer books within which the certification must be received by the Corporation; and any other provisions with respect to the procedure which the board of directors considers necessary or desirable. On receipt of such certification, the person specified in the certification shall be regarded as, for the purposes set forth in the certification, the stockholder of record of the specified stock in place of the stockholder who makes the certification.
Section 2.11.    INSPECTORS.
(a)    The board of directors or the chairman or co-chairmen of the meeting, as applicable, may, but need not, appoint one or more individual inspectors or one or more entities that designate individuals as inspectors to act at the meeting or any adjournment thereof. If an inspector or inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the board of directors in advance of the meeting or at the meeting by the chairman or co-chairmen of the meeting, as applicable.
(b)    The inspectors, if any, shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote fairly. Each such report shall be in writing and signed by him or her or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof.
4



Section 2.12.    NOMINATIONS AND STOCKHOLDER BUSINESS.
(a)    Annual Meetings of Stockholders.
(1)    Nominations of individuals for election to the board of directors and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders (A) pursuant to the Corporation’s notice of such meeting; (B) by or at the direction of the board of directors; or (C) by any stockholder of the Corporation who (i) was a stockholder of record both at the time of giving of notice provided for in this Section 2.12(a) and at the time of the annual meeting in question; (ii) is entitled to vote at such meeting in the election of each individual so nominated or on any such other business; and (iii) has complied with the notice procedures set forth in this Section 2.12(a) as to such business or nomination (clause (C) shall be the exclusive means for a stockholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in the Corporation’s notice of the meeting) before an annual meeting of stockholders).
(2)    Without qualification, for any nominations or other business to be properly brought at an annual meeting by a stockholder pursuant to this Section 2.12(a)(2) or Section 2.12(a)(1), the stockholder must give timely notice thereof in writing to the secretary of the Corporation and such other business must otherwise be a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the secretary at the principal executive office of the Corporation not less than 90 days prior to the first anniversary of the date of mailing of the notice for the preceding year’s annual meeting; provided, however, that in the event that the date of the date of mailing of the notice for the annual meeting is advanced or delayed by more than 30 days from the first anniversary of the date of mailing of the notice for the preceding year’s annual meeting, notice by the stockholder to be timely must be so delivered not later than the close of business on the later of the 90th day prior to the date of mailing of the notice for such annual meeting or, if the first public announcement of the date of such annual meeting is made less than 100 days prior to the date of such annual meeting, the 10th day following the day on which public announcement of the date of mailing of the notice for such meeting is first made. In no event shall the postponement or adjournment of an annual meeting, or the announcement thereof, commence a new time period for the giving of a stockholder’s notice as described above. To be in proper form, a stockholder’s notice (whether given pursuant to this Section 2.12(a)(2) or Section 2.12(b)) must: (a) set forth, as to each person, if any, whom the stockholder proposes to nominate for election or re-election as a director (i) the name, age, business address, and residence address of such person; the number of shares of each class or series of stock of the Corporation that are, directly or indirectly, owned beneficially or of record by such person; and all other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in an election contest (even if an election contest is not involved), or is otherwise required pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); and (ii) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such stockholder and beneficial owner, if any, on whose behalf
5



the nomination is made, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant; (b) with respect to each nominee for election or re-election to the board of directors, include a completed and signed questionnaire, representation and agreement required by Section 2.13; (c) if the notice relates to any business other than a nomination of a director or directors that the stockholder proposes to bring before the meeting, set forth (i) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of such stockholder and beneficial owner, if any, on whose behalf the proposal is made, in such business and (ii) a description of all agreements, arrangements and understandings between such stockholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder; (d) set forth, as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, (i) the name and address of such stockholder as they appear on the Corporation’s books, and of such beneficial owner, if any; (ii) (A) the number of shares of each class or series of stock of the Corporation that are, directly or indirectly, owned beneficially or of record by such stockholder and such beneficial owner, (B) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder has a right to vote any shares of any security of the Corporation, (D) any short interest in any security of the Corporation (for purposes of this Section 2.12 a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (E) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (G) any performance-related fees (other than an asset-based fee) that such stockholder is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such stockholder’s immediate family sharing the same household (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than ten days after the record date for the meeting to disclose
6



such ownership as of the record date), and (iii) any other information relating to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (e) set forth, to the extent known by the stockholder giving the notice, the name and address of any other stockholder supporting the nominee for election or reelection as a director or the proposal of other business on the date of such stockholder’s notice. In addition, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an Independent Director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.
(3)    Notwithstanding anything in the second sentence of Section 2.12(a)(2) to the contrary, in the event that the number of directors to be elected to the board of directors is increased and there is no public announcement naming all of the nominees for directors or specifying the size of the increased board of directors made by the Corporation at least 100 days prior to the first anniversary of the date of mailing of the notice for the preceding year’s annual meeting, a stockholder’s notice required by this Section 2.12(a) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the secretary at the principal executive offices of the Corporation no later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation.
(b)    Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of said meeting. Nominations of individuals for election to the board of directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of said meeting (i) by or at the direction of the board of directors or (ii) provided that such special meeting has been called in accordance with Section 2.03 for the purpose of electing directors, by any stockholder of the Corporation who (A) is a stockholder of record both at the time of giving of notice provided for in this Section 2.12(b) and at the time of the special meeting; (B) is entitled to vote at the meeting in the election of each individual so nominated; and (C) complied with the notice procedures set forth in this Section 2.12(b). In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the board of directors, any such stockholder may nominate an individual or individuals (as the case may be) for election to such position as specified in the Corporation’s notice of meeting, if the stockholder’s notice containing the information required by Section 2.12(a)(2) with respect to any nomination (including the completed and signed questionnaire, representation and agreement required by Section 2.13) shall be delivered to the secretary at the principal executive offices of the Corporation not later than the close of business on the later of the 90th day prior to such special meeting or, if the first public announcement of the date of such special meeting is made less than 100 days prior to the date of such special meeting, the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the board of directors to be elected at such meeting. In no event shall the postponement or adjournment of a special meeting, or the
7



announcement thereof, commence a new time period for the giving of a stockholder’s notice as described above.
(c)    General.
(1)    Only such individuals who are nominated in accordance with this Section 2.12 shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with this Section 2.12. The chairman or co-chairman of the meeting, as applicable, shall have the power to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with this Section 2.12, and, if any proposed nomination or business is not in compliance with this Section 2.12, to declare that such defective nomination or proposal, if any, be disregarded.
(2)    For purposes of this Section 2.12, (i) the “date of mailing of the notice” shall mean the date of the proxy statement for the solicitation of proxies for election of directors and (ii) “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.
(3)    Notwithstanding the foregoing provisions of this Section 2.12, a stockholder shall also comply with all applicable requirements of state law and the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.12; provided, however, that any references in this Section 2.12 to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to Section 2.12(a)(1)(C) or Section 2.12(b). Nothing in this Section 2.12 shall be deemed to affect any rights of stockholders to request inclusion of proposals in, or the right of the Corporation to omit a proposal from, the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.13.    SUBMISSION OF QUESTIONNAIRE; REPRESENTATION AND AGREEMENT. To be eligible to be a nominee for election or re-election as a director of the Corporation pursuant to Section 2.12(a)(1)(C), a person must deliver (in accordance with the time periods prescribed for delivery of notice under Section 2.12) to the secretary of the Corporation at the principal executive office of the Corporation a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the secretary upon written request) and a written representation and agreement (in the form provided by the secretary upon written request) that such person (a) is not and will not become a party to (i) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (ii) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such
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person’s fiduciary duties under applicable law, (b) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (c) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.
Section 2.14.    VOTING BY BALLOT. Voting on any question or in any election may be viva voce unless the presiding officer shall order, or any stockholder shall demand, that voting be by ballot.
Section 2.15.    EXEMPTION FROM CONTROL SHARE ACQUISITION STATUTE. Notwithstanding any other provision of the Charter or these bylaws or any contrary provision of law, the Maryland Control Share Acquisition Statute, found in Title 3, Subtitle 7 of the MGCL, as amended from time to time, or any successor statute thereto, shall not apply to any acquisition of shares of stock of the Corporation by any person. This section may be repealed, in whole or in part, at any time, whether before or after an acquisition of control shares and, upon such repeal, may, to the extent provided by any successor bylaw, apply to any prior or subsequent control share acquisition.
ARTICLE III
DIRECTORS
Section 3.01.    GENERAL POWERS. The business and affairs of the Corporation shall be managed under the direction of its board of directors.
Section 3.02.    NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting or at any special meeting called for that purpose, a majority of the members then serving on the board of directors may establish, increase, or decrease the number of directors, provided that, except as otherwise provided in the Charter, the number thereof shall never be less than the minimum number required by the MGCL or the Charter (whichever is greater), nor more than the maximum number of directors set forth in the Charter, and further provided that, except as may be provided in the terms of any preferred stock issued by the Corporation, the tenure of office of a director shall not be affected by any decrease in the number of directors. Any director of the Corporation may resign at any time by delivering his or her resignation to the board of directors, the chairman of the board or the secretary. Any resignation shall take effect immediately upon its receipt or at such later time specified in the resignation. The acceptance of a resignation shall not be necessary to make it effective unless otherwise stated in the resignation.
Section 3.03.    ANNUAL AND REGULAR MEETINGS. An annual meeting of the board of directors shall be held immediately after and at the same place as the annual meeting of stockholders, no notice other than this bylaw being necessary. In the event such meeting is not so held, the meeting may be held at such time and place as shall be specified in a notice given as
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hereinafter provided for special meetings of the board of directors. The board of directors may provide, by resolution, the time and place, either within or without the State of Maryland, for the holding of regular meetings of the board of directors without other notice than such resolution.
Section 3.04.    SPECIAL MEETINGS. Special meetings of the board of directors may be called by or at the request of the chairman of the board or the president or by a majority of the board of directors. The person or persons authorized to call special meetings of the board of directors may fix any place, either within or without the State of Maryland, as the place for holding any special meeting of the board of directors called by them. The board of directors may provide, by resolution, the time and place for the holding of special meetings of the board of directors without other notice than such resolution.
Section 3.05.    NOTICE. Notice of any special meeting of the board of directors shall be delivered personally, or by telephone, electronic mail, facsimile transmission, United States mail, or courier to each director at his business or residence address. Notice by personal delivery, telephone, electronic mail, or facsimile transmission shall be given at least two days prior to the meeting. Notice by United States mail shall be given at least five days prior to the meeting and shall be deemed to be given when deposited in the United States mail properly addressed, with postage prepaid thereon. Telephone notice shall be deemed to be given when the director or his agent is personally given such notice in a telephone call to which he or his agent is a party. Electronic mail notice shall be deemed to be given upon transmission of the message to the electronic mail address given to the Corporation by the director. Facsimile transmission notice shall be deemed to be given upon completion of the transmission of the message to the number given to the Corporation by the director and receipt of a completed answer-back indicating receipt. Notice by courier shall be deemed to be given when deposited with or delivered to a courier properly addressed. Neither the business to be transacted at, nor the purpose of, any annual, regular or special meeting of the board of directors need be stated in the notice, unless specifically required by statute or these bylaws.
Section 3.06.    QUORUM. A majority of the directors then serving shall constitute a quorum for transaction of business at any meeting of the board of directors, provided that if less than a majority of such directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time without further notice, and provided further that, if pursuant to the Charter or these bylaws, the vote of a majority of a particular group of directors is required for action, a quorum must also include a majority of such group. The directors present at a meeting which has been duly called and at which a quorum was established may continue to transact business until adjournment, notwithstanding the withdrawal of enough directors to leave fewer than required to establish a quorum.
Section 3.07.    VOTING. The action of the majority of the directors present at a meeting at which a quorum is present shall be the action of the board of directors, unless the concurrence of a greater proportion is required for such action by the MGCL or the Charter. If enough directors have withdrawn from a meeting to leave fewer than required to establish a quorum but the meeting is not adjourned, the action of the majority of that number of directors necessary to constitute a quorum at such meeting shall be the action of the board of directors, unless the concurrence of a greater proportion is required for such action by the MGCL or the Charter.
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Section 3.08.    ORGANIZATION. At each meeting of the board of directors, the chairman of the board or, in the absence of the chairman, the vice chairman of the board, if any, shall act as chairman. In the absence of both the chairman and vice chairman of the board, the chief executive officer or in the absence of the chief executive officer, the president or in the absence of the president, a director chosen by a majority of the directors present, shall act as chairman. The secretary or, in his or her absence, an assistant secretary of the Corporation, or in the absence of the secretary and all assistant secretaries, an individual appointed by the chairman, shall act as secretary of the meeting.
Section 3.09.    ACTION BY WRITTEN CONSENT OR BY ELECTRONIC TRANSMISSION; INFORMAL ACTION. Any action required or permitted to be taken at any meeting of the board of directors may be taken without a meeting, if a consent to such action is given in writing or by electronic transmission by each director, and such consent is filed in paper or electronic form with the minutes of proceedings of the board of directors.
Section 3.10.    TELEPHONE MEETINGS. Directors may participate in a meeting of the board of directors by means of a conference telephone or other communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.
Section 3.11.    REMOVAL. At any meeting of stockholders called expressly, but not necessarily solely, for that purpose, any director or the entire board of directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote on the election of directors.
Section 3.12.    VACANCIES. If for any reason any or all the directors cease to be directors, such event shall not terminate the Corporation or affect these bylaws or the powers of the remaining directors hereunder (even if fewer than the statutory minimum remain). A successor to fill a vacancy on the board of directors that results from the removal of a director may be elected by either (a) the stockholders or (b) a majority of the remaining directors, even if such majority is less than a quorum. Any vacancy on the board of directors for any other cause shall be filled by a majority of the remaining directors, even if such majority is less than a quorum. The Conflicts Committee (as defined and created by the Charter) shall nominate replacements for vacancies among the Independent Directors positions. Any individual so elected as a director shall hold office until the next annual meeting of stockholders and until his or her successor is elected and qualifies.
Section 3.13.    COMPENSATION. Subject to the provisions of the Charter, the directors may, in the discretion of the entire board of directors, receive annual or monthly salary for their services as directors, fixed sums per meeting and/or per visit to real property or other facilities owned or leased by the Corporation, and/or for any service or activity performed or engaged in as directors on behalf of the Corporation. Directors may be reimbursed for expenses of attendance, if any, at each annual, regular or special meeting of the board of directors or of any committee thereof and for their reasonable out-of-pocket expenses, if any, in connection with each such meeting, property visit, and/or other service or activity they performed or engaged in as directors on behalf of the Corporation. Nothing herein contained shall be construed to
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preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 3.14.    LOSS OF DEPOSITS. No director shall be liable for any loss which may occur by reason of the failure of the bank, trust company, savings and loan association, or other institution with whom monies or stock have been deposited.
Section 3.15.    SURETY BONDS. Unless required by law, no director shall be obligated to give any bond or surety or other security for the performance of any of his duties.
    Section 3.16.    CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The directors shall have no responsibility to devote their full time to the affairs of the Corporation. For so long as the Corporation is externally advised, no officer or employee of the Corporation who is affiliated with the advisor shall be expected to devote his full time to the efforts of the Corporation unless he agrees in writing to do so. Any director or officer of the Corporation, in his personal capacity or in a capacity as an affiliate, employee, or agent of any other person, or otherwise, may have business interests and engage in business activities similar to, in addition to, or in competition with those of or relating to the Corporation, subject to the provisions of the Charter.
ARTICLE IV
COMMITTEES
Section 4.01.    NUMBER, TENURE AND QUALIFICATIONS. The board of directors may designate an Executive Committee, an Audit Committee, a Conflicts Committee and other committees composed of at least one director.
Section 4.02.    COMPOSITION. Except as provided in the Charter, such committees shall serve at the pleasure of the board of directors. The members of the Conflicts Committee and Audit Committee shall at all times consist solely of Independent Directors, and the majority of the members of all committees shall be Independent Directors.
Section 4.03.    MEETINGS. Notice of committee meetings shall be given in the same manner as notice for special or regular meetings of the board of directors. Proper notice of any meeting of the board of directors shall also constitute notice of a meeting of the Conflicts Committee that may be held contemporaneously and/or immediately following the board meeting. A majority of the members of the committee shall constitute a quorum for the transaction of business at any meeting of the committee. Except as provided in these bylaws, the act of a majority of the committee members present at a meeting shall be the act of such committee. The board of directors may designate a chairman of any committee, and such chairman or, in the absence of a chairman, any two members of any committee may fix the time and place of its meeting unless the board shall otherwise provide. In the absence of any member of any such committee, the members thereof present at any meeting, whether or not they constitute a quorum, may appoint another director to act in the place of such absent member. Each committee shall keep minutes of its proceedings.

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Section 4.04.    TELEPHONE MEETINGS. Members of a committee of the board of directors may participate in a meeting by means of a conference telephone or other communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.
Section 4.05.    ACTION BY WRITTEN CONSENT OR BY ELECTRONIC TRANSMISSION; INFORMAL ACTION. Any action required or permitted to be taken at any meeting of a committee of the board of directors may be taken without a meeting, if a consent to such action is given in writing or by electronic transmission by each member of the committee and such consent is filed in paper or electronic form with the minutes of proceedings of such committee.
Section 4.06.    VACANCIES. Subject to the provisions hereof, and the Charter, the board of directors shall have the power at any time to change the membership of any committee, to fill any vacancy, to designate an alternate member to replace any absent or disqualified member or to dissolve any such committee.
ARTICLE V
OFFICERS
Section 5.01.    GENERAL PROVISIONS. The officers of the Corporation shall include a president, a secretary and a treasurer and may include a chairman of the board, a vice chairman of the board, one or more vice presidents, a chief operating officer, a chief financial officer, one or more assistant secretaries and one or more assistant treasurers. In addition, the board of directors may from time to time appoint such other officers with such powers and duties as they shall deem necessary or desirable. The officers of the Corporation shall be elected annually by the board of directors at the first meeting of the board of directors held after each annual meeting of stockholders, except that the president may from time to time appoint one or more vice presidents, assistant secretaries and assistant treasurers. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may be convenient. Each officer shall hold office until his successor is elected and qualifies or until his death or his resignation or removal in the manner hereinafter provided. Any two or more offices, except president and vice president, may be held by the same person. In its discretion, the board of directors may leave unfilled any office except that of president, treasurer and secretary. Election of an officer or agent shall not of itself create contract rights between the Corporation and such officer or agent.
Section 5.02.    REMOVAL AND RESIGNATION. Any officer or agent of the Corporation may be removed by the board of directors if in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Any officer of the Corporation may resign at any time by delivering his resignation to the board of directors, the chairman of the board, the president or the secretary. Any resignation shall take effect at the time specified therein or, if the time when it shall become effective is not specified therein, immediately upon its receipt. The acceptance of a
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resignation shall not be necessary to make it effective unless otherwise stated in the resignation. Such resignation shall be without prejudice to the contract rights, if any, of the Corporation.
Section 5.03.    VACANCIES. A vacancy in any office may be filled by the board of directors or, to the extent permitted in Section 5.01, the president for the balance of the term.
Section 5.04.    CHIEF EXECUTIVE OFFICER. The board of directors may designate a chief executive officer. In the absence of such designation, the president shall be the chief executive officer of the Corporation. The chief executive officer shall have general responsibility for implementation of the policies of the Corporation, as determined by the board of directors, and for the management of the business and affairs of the Corporation. He may execute any deed, mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be expressly delegated by the board of directors or by these bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise executed; and in general shall perform all duties incident to the office of chief executive officer and such other duties as may be prescribed by the board of directors from time to time.
Section 5.05.    CHIEF OPERATING OFFICER. The board of directors may designate a chief operating officer. The chief operating officer shall have the responsibilities and duties as set forth by the board of directors or the chief executive officer.
Section 5.06.    CHIEF FINANCIAL OFFICER. The board of directors may designate a chief financial officer. The chief financial officer shall have the responsibilities and duties as set forth by the board of directors or the chief executive officer.
Section 5.07.    CHAIRMAN OF THE BOARD. The board of directors shall designate a chairman of the board. The chairman of the board shall preside over the meetings of the board of directors and of the stockholders at which he shall be present. The chairman of the board shall perform such other duties as may be assigned to him or them by the board of directors.
Section 5.08. PRESIDENT. In the absence of a chief executive officer, the president shall in general supervise and control all of the business and affairs of the Corporation. In the absence of a designation of a chief operating officer by the board of directors, the president shall be the chief operating officer. He may execute any deed, mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be expressly delegated by the board of directors or by these bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the board of directors from time to time.
Section 5.09.    VICE PRESIDENTS. In the absence of the president or in the event of a vacancy in such office, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated at the time of their election or, in the absence of any designation, then in the order of their election) shall perform the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president; and shall perform such other duties as from time to time may be assigned to him by the president or by the board of directors. The board of directors may designate one or more vice presidents as executive vice president or as vice president for particular areas of responsibility.

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Section 5.10.    SECRETARY. The secretary shall (a) keep the minutes of the proceedings of the stockholders, the board of directors and committees of the board of directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the Corporation; (d) keep a register of the post office address of each stockholder which shall be furnished to the secretary by such stockholder; (e) have general charge of the share transfer books of the Corporation; and (f) in general perform such other duties as from time to time may be assigned to him by the chief executive officer, the president or the board of directors.
Section 5.11.    TREASURER. The treasurer shall have the custody of the funds and securities of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the board of directors. In the absence of a designation of a chief financial officer by the board of directors, the treasurer shall be the chief financial officer of the Corporation.
The treasurer shall disburse the funds of the Corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and board of directors, at the regular meetings of the board of directors or whenever it may so require, an account of all his transactions as treasurer and of the financial condition of the Corporation.
If required by the board of directors, the treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, moneys and other property of whatever kind in his possession or under his control belonging to the Corporation.
Section 5.12.    ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant secretaries and assistant treasurers, in general, shall perform such duties as shall be assigned to them by the secretary or treasurer, respectively, or by the president or the board of directors. The assistant treasurers shall, if required by the board of directors, give bonds for the faithful performance of their duties in such sums and with such surety or sureties as shall be satisfactory to the board of directors.
    Section 5.13.    SALARIES. The salaries and other compensation of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary or other compensation by reason of the fact that he is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 6.01.    CONTRACTS. The board of directors and, to the extent permitted by the MGCL and the Charter, a committee of the board of directors may authorize any officer or agent to enter into any contract or to execute and deliver any instrument in the name of and on behalf
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of the Corporation and such authority may be general or confined to specific instances. Any agreement, deed, mortgage, lease or other document executed by one or more of the directors or by an authorized person shall be valid and binding upon the board of directors and upon the Corporation when authorized or ratified by action of the board of directors or, to the extent permitted by the MGCL and the Charter, a committee of the board of directors.
Section 6.02.    CHECKS AND DRAFTS. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or agent of the Corporation in such manner as shall from time to time be determined by the board of directors or a committee of the board of directors.
Section 6.03.    DEPOSITS. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the board of directors or a committee of the board of directors may designate.
ARTICLE VII
STOCK
Section 7.01.    CERTIFICATES. If the board of directors authorizes the issuance of certificates, each certificate shall be signed by the chief executive officer, the president, the chief operating officer or a vice president and countersigned by the secretary or an assistant secretary or the treasurer or an assistant treasurer and may be sealed with the seal, if any, of the Corporation. The signatures may be either manual or facsimile. Certificates shall be consecutively numbered; and if the Corporation shall, from time to time, issue several classes of stock, each class may have its own number series. A certificate is valid and may be issued whether or not an officer who signed it is still an officer when it is issued. Each certificate representing shares which are preferred or limited as to their dividends, which are restricted as to their transferability or voting powers, or as to their allocable portion of the assets upon liquidation or which are redeemable at the option of the Corporation, shall have a statement of such restriction, limitation, preference or redemption provision, or a summary thereof, plainly stated on the certificate. If the Corporation has authority to issue stock of more than one class, the certificate shall contain on the face or back a full statement or summary of the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of each class of stock and, if the Corporation is authorized to issue any preferred or special class in series, the differences in the relative rights and preferences between the shares of each series to the extent they have been set and the authority of the board of directors to set the relative rights and preferences of subsequent series. In lieu of such statement or summary, the certificate may state that the Corporation will furnish a full statement of such information to any stockholder upon request and without charge. If any class of stock is restricted by the Corporation as to transferability, the certificate shall contain a full statement of the restriction or state that the Corporation will furnish information about the restrictions to the stockholder on request and without charge. Notwithstanding anything herein to the contrary, nothing in this Article VII shall
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be interpreted to limit the authority of the board of directors to issue some or all of the shares of any or all of its classes or series without certificates.
Section 7.02.    TRANSFERS; REGISTERED STOCKHOLDERS. Transfers of shares of any class of stock will be subject in all respects to the Charter and all of the terms and conditions contained therein. The Corporation shall be entitled to treat the holder of record of any share of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Maryland.
Section 7.03.    LOST, STOLEN, OR DESTROYED CERTIFICATES. The Corporation shall issue a new certificate in place of any certificate for shares previously issued if the registered owner of the certificate satisfies the following requirements:
(a)    Claim. The registered owner makes proof in affidavit form that a previously issued certificate for shares has been lost, destroyed, or stolen;
(b)    Timely Request. The registered owner requests the issuance of a new certificate before the Corporation has notice that the certificate has been acquired by a purchaser for value in good faith and without notice of an adverse claim;
(c)    Bond. Unless otherwise determined by an officer of the Corporation, the registered owner gives a bond in such form, and with such surety or sureties, with fixed or open penalty, as the board of directors may direct, in its discretion, to indemnify the Corporation (and its transfer agent and registrar, if any) against any claim that may be made on account of the alleged loss, destruction, or theft of the certificate; and
(d)    Other Requirements. The registered owner satisfies any other reasonable requirements imposed by the board of directors.
    When a certificate has been lost, destroyed or stolen and the stockholder of record fails to notify the Corporation within a reasonable time after he has notice of it, if the Corporation registers a transfer of the shares represented by the certificate before receiving such notification, the stockholder of record is precluded from making any claim against the Corporation for the transfer or for a new certificate.
    Section 7.04.    CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The board of directors may (a) set, in advance, a record date for the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or determining stockholders entitled to receive payment of any dividend or the allotment of any other rights, or in order to make a determination of stockholders for any other proper purpose, (such record date, in any case, may not be prior to the close of business on the day the record date is fixed and shall be not more than 90 days before the date on which the meeting or particular action requiring such determination of stockholders of record is to be held or taken); or (b) in lieu of fixing a record date, direct that the stock transfer books be closed for a period not greater than 20 days. In the case of a meeting of the stockholders, the record date or the date set for the closing of the stock transfer books shall be at least ten days before the date of such meeting.
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    If no record date is fixed and stock transfer books are not closed for the determination of stockholders, (a) the record date for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall be the later of (i) the close of business on the day on which the notice of meeting is mailed or (ii) the 30th day before the meeting; and (b) the record date for the determination of stockholders entitled to receive payment of a dividend or an allotment of any other rights shall be the close of business on the day on which the resolution of the board of directors declaring the dividend or allotment of rights is adopted, provided that the payment or allotment may not be made more than 60 days after the date on which such resolution is adopted.
    When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof, except when (a) the determination has been made through the closing of the transfer books and the stated period of closing has expired or (b) the meeting is adjourned to a date more than 120 days after the record date fixed for the original meeting, in either of which case a new record date shall be determined as set forth herein.
Section 7.05.    STOCK LEDGER. The Corporation shall maintain at one or more of its principal offices or at the office of its counsel, accountants, or transfer agent, an original or duplicate share ledger containing the name and address of each stockholder and the number of shares of each class held by such stockholder.
Section 7.06.    FRACTIONAL STOCK; ISSUANCE OF UNITS. The Corporation may issue fractional stock or provide for the issuance of scrip, all on such terms and under such conditions as the board of directors may determine. Notwithstanding any other provision of the Charter or these bylaws, the board of directors may issue units consisting of different securities of the Corporation. Any security issued in a unit shall have the same characteristics as any identical securities issued by the Corporation, except that the board of directors may provide that for a specified period securities of the Corporation issued in such unit may be transferred on the books of the Corporation only in such unit.
ARTICLE VIII
ACCOUNTING YEAR
    The board of directors shall have the power, from time to time, to fix the fiscal year of the Corporation by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 9.01.    AUTHORIZATION. Dividends and other distributions upon the stock of the Corporation may be authorized by the board of directors, subject to the provisions of law and the Charter. Dividends and other distributions may be paid in cash, property or stock of the Corporation, subject to the provisions of law and the Charter.

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Section 9.02.    CONTINGENCIES. Before payment of any dividends or other distributions, there may be set aside out of any assets of the Corporation available for dividends or other distributions such sum or sums as the board of directors may from time to time, in its absolute discretion, think proper as a reserve fund for contingencies, for equalizing any property of the Corporation or for such other purpose as the board of directors shall determine to be in the best interest of the Corporation, and the board of directors may modify or abolish any such reserve.
ARTICLE X
INVESTMENT POLICY
    Subject to the provisions of the Charter, the board of directors may from time to time adopt, amend, revise or terminate any policy or policies with respect to investments by the Corporation as it shall deem appropriate in its sole discretion.
ARTICLE XI
SEAL
Section 11.01.    SEAL. The board of directors may authorize the adoption of a seal by the Corporation. The seal shall contain the name of the Corporation and the year of its incorporation and the words “Maryland 2009 Corporate Seal.” The board of directors may authorize one or more duplicate seals and provide for the custody thereof.
Section 11.02.    AFFIXING SEAL. Whenever the Corporation is permitted or required to affix its seal to a document, it shall be sufficient to meet the requirements of any law, rule or regulation relating to a seal to place “[SEAL]” adjacent to the signature of the person authorized to execute the document on behalf of the Corporation.
ARTICLE XII
WAIVER OF NOTICE
    Whenever any notice of a meeting is required to be given pursuant to the Charter or these bylaws or pursuant to applicable law, a waiver thereof in writing or by electronic transmission, given by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at nor the purpose of any meeting need be set forth in the waiver of notice, unless specifically required by statute. The attendance of any person at any meeting shall constitute a waiver of notice of such meeting, except where such person attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
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ARTICLE XIII
AMENDMENT OF BYLAWS
    These bylaws may be amended or repealed and new bylaws may be adopted by the board of directors or the stockholders. No bylaw adopted, amended or repealed by the stockholders shall be readopted, amended or repealed by the board of directors.
ARTICLE XIV
EXCLUSIVE FORUM FOR CERTAIN LITIGATION
Unless the Corporation consents in writing to the selection of an alternative forum, the Circuit Court for Baltimore City, Maryland (the “Court”), or, if that Court does not have jurisdiction, the United States District Court for the District of Maryland, Baltimore Division, shall be the sole and exclusive forum for (i) any derivative action brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the MGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. In the event that any action or proceeding described in the preceding sentence is pending in the Court, any record or beneficial stockholder of the Corporation who commences such an action shall cooperate in a request that the action be assigned to the Court’s Business & Technology Case Management Program. The provisions of this Article XIV do not apply to claims brought to enforce a duty or liability created by the Securities Act of 1933, as amended, or the Exchange Act, or any other claim for which the federal courts have exclusive jurisdiction.

    The foregoing are certified as the Bylaws of the Corporation adopted by the board of directors as of November 13, 2020.

                        /s/ Jeffrey K. Waldvogel
                         Secretary

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Exhibit 10.2
LOAN EXTENSION AND MODIFICATION AGREEMENT
THIS LOAN EXTENSION AND MODIFICATION AGREEMENT (this “Agreement”) is made effective as of November 3, 2020 (the “Effective Date”), by and among KBSIII 60 SOUTH SIXTH STREET, LLC, a Delaware limited liability company (“RBC Plaza Borrower”), KBSIII PRESTON COMMONS, LLC, a Delaware limited liability company (“Preston Commons Borrower”), KBSIII STERLING PLAZA, LLC, a Delaware limited liability company (“Sterling Plaza Borrower”), KBSIII TOWERS AT EMERYVILLE, LLC, a Delaware limited liability company (“Towers at Emeryville Borrower”), KBSIII TEN ALMADEN, LLC, a Delaware limited liability company (“Ten Almaden Borrower”), and KBSIII LEGACY TOWN CENTER, LLC, a Delaware limited liability company (“Legacy Town Center Borrower”; RBC Plaza Borrower, Preston Common Borrower, Sterling Plaza Borrower, Towers at Emeryville Borrower, Ten Almaden Borrower and Legacy Town Center Borrower shall be hereinafter referred to, individually, as a “Borrower” and, collectively, jointly and severally, as “Borrowers”), KBS REIT PROPERTIES III, LLC, a Delaware limited liability company (hereinafter called the “Guarantor”), and BANK OF AMERICA, N.A., a national banking association, as administrative agent for the Lenders party to the Loan Agreement referred to below (in such capacity, “Administrative Agent”).
RECITALS:
A.Under that certain Loan Agreement dated as of November 3, 2017, by and among Borrowers, KBSIII One Washingtonian, LLC, a Delaware limited liability company (“One Washingtonian Borrower”), and KBSIII 500 West Madison, LLC, a Delaware limited liability company (“500 West Madison Borrower”), as borrowers (Borrowers, One Washingtonian Borrower and 500 West Madison Borrower shall be referred to herein as “Original Borrowers”), the lenders party thereto (each, a “Lender” and, collectively, “Lenders”), and Administrative Agent (as amended, restated or otherwise modified, the “Loan Agreement”), Lenders agreed to make a loan to Original Borrowers (the “Loan”). Capitalized terms used herein without definition have the meanings ascribed to them in the Loan Agreement.
B.Pursuant to the provisions of Section 9.29(c) of the Loan Agreement, One Washingtonian Borrower and 500 West Madison Borrower have been released from their respective obligations under the Loan Documents to the extent provided therein.
C.The Loan is evidenced by one or more promissory notes issued by Borrowers to Lenders in accordance with the terms of the Loan Agreement (collectively, the “Note”).
D.Borrowers obligations under the Loan Agreement and the other Loan Documents are secured by the Security Instruments executed by Borrowers pursuant to the terms of the Loan Agreement.
E.Guarantor guaranteed certain of Borrowers’ obligations to Lenders in accordance with that certain Guaranty Agreement dated as of November 3, 2017 (the “Guaranty”).
F.Pursuant to the terms of the Loan Agreement, the Loan matures on November 3, 2020, subject to Borrowers’ option to extend the maturity of the Loan pursuant to Section 1.6(b) of the Loan Agreement and Exhibit I attached thereto.
G.Borrowers wish to extend the maturity of the Loan to the First Extended Maturity Date in accordance with the terms of Section 1.6(b) of the Loan Agreement and Exhibit I attached thereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrowers and Administrative Agent, on behalf of itself and the Lenders, agree to extend the maturity of the Loan to the First Extended Maturity Date, and to make certain other modifications to the Loan Documents, all as more specifically set forth below.



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1.Recitals. The parties hereto acknowledge and agree that the recitals set forth above are true and correct and are incorporated herein by this reference; provided, however, that such recitals shall not be deemed to modify the express provisions hereinafter set forth.
2.Maturity Date. All of the Obligations, including (without limitation) all outstanding principal, accrued and unpaid interest, outstanding late charges, unpaid fees, and all other amounts outstanding under the Note and the other Loan Documents, shall be due and payable in full on November 3, 2021. Any reference to “Maturity Date” in the Note and other Loan Documents shall be deemed to mean November 3, 2021.
3.LIBOR Successor Rate.
(a)Notwithstanding anything to the contrary in the Loan Agreement or any other Loan Document, if Administrative Agent determines (which determination shall be conclusive absent manifest error), or Borrowers or Required Lenders notify Administrative Agent (with, in the case of the Required Lenders, a copy to Borrowers) that Borrowers or Required Lenders (as applicable) have determined, that:
(i)adequate and reasonable means do not exist for ascertaining LIBOR for any Interest Period hereunder or any other tenors of LIBOR, including, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii)the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over Administrative Agent or such administrator has made a public statement identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans, provided that, at the time of such statement, there is no successor administrator that is satisfactory to Administrative Agent, that will continue to provide LIBOR after such specific date (such specific date, the “Scheduled Unavailability Date”);
(iii)the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over such administrator has made a public statement announcing that all Interest Periods and other tenors of LIBOR are no longer representative; or
(iv)syndicated loans currently being executed, or that include language similar to that contained in Section 2.3 of the Loan Agreement and this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,
then, in the case of clauses (i) through (iii) above, on a date and time determined by Administrative Agent (any such date, the “LIBOR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and shall occur reasonably promptly upon the occurrence of any of the events or circumstances under clauses (i), (ii), or (iii) above and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, LIBOR will be replaced hereunder and under any Loan Document with, subject to the proviso below, the first available alternative set forth in the order below for any payment period for interest calculated that can be determined by Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “LIBOR Successor Rate”; and any such rate before giving effect to the Related Adjustment, the “Pre-Adjustment Successor Rate”):
(x)Term SOFR plus the Related Adjustment; and
(y)SOFR plus the Related Adjustment;
and in the case of clause (iv) above, Borrowers and Administrative Agent may amend this Agreement solely for the purpose of replacing LIBOR under this Agreement and under any other Loan Document in accordance with the definition of “LIBOR Successor Rate” and such amendment will become effective at 5:00 p.m. Administrative Agent’s Time, on the fifth (5th) Business Day after Administrative Agent shall have

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notified all Lenders and Borrowers of the occurrence of the circumstances described in clause (iv) above unless, prior to such time, Lenders comprising the Required Lenders have delivered to Administrative Agent written notice that such Required Lenders object to the implementation of a LIBOR Successor Rate pursuant to such clause;
provided that, if Administrative Agent determines that Term SOFR has become available, is administratively feasible for Administrative Agent and would have been identified as the Pre-Adjustment Successor Rate in accordance with the foregoing if it had been so available at the time that the LIBOR Successor Rate then in effect was so identified, and Administrative Agent notifies Borrowers and each Lender of such availability, then from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Pre-Adjustment Successor Rate shall be Term SOFR and the LIBOR Successor Rate shall be Term SOFR plus the relevant Related Adjustment.
Administrative Agent will promptly (in one or more notices) notify Borrowers and each Lender of (x) any occurrence of any of the events, periods or circumstances under clauses (i) through (iii) above, (y) a LIBOR Replacement Date, and (z) the LIBOR Successor Rate.
Any LIBOR Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for Administrative Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by Administrative Agent.
Notwithstanding anything else herein, if at any time any LIBOR Successor Rate as so determined would otherwise be less than zero percent (0.0%), the LIBOR Successor Rate will be deemed to be zero percent (0.0%) for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a LIBOR Successor Rate, Administrative Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, Administrative Agent shall post each such amendment implementing such LIBOR Successor Rate Conforming Changes to Borrowers and Lenders reasonably promptly after such amendment becomes effective.
If the events or circumstances of the type described in clauses (i) through (iii) above have occurred with respect to the LIBOR Successor Rate then in effect, then the successor rate thereto shall be determined in accordance with the definition of “LIBOR Successor Rate.”
(b)Notwithstanding anything to the contrary herein, (i) after any such determination by Administrative Agent or receipt by Administrative Agent of any such notice described under Subsection (a)(i) through (iii) above, as applicable, if Administrative Agent determines that none of the LIBOR Successor Rates is available on or prior to the LIBOR Replacement Date, (ii) if the events or circumstances described in Subsection (a)(iv) above have occurred but none of the LIBOR Successor Rates is available, or (iii) if the events or circumstances of the type described in Subsection (a)(i) through (iii) above have occurred with respect to the LIBOR Successor Rate then in effect and Administrative Agent determines that none of the LIBOR Successor Rates is available, then in each case, Administrative Agent and Borrowers may amend this Agreement solely for the purpose of replacing LIBOR or any then current LIBOR Successor Rate in accordance with this Section and Section 2.3 of the Loan Agreement as of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. Dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case, including any Related Adjustments and any other mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. Dollar denominated syndicated credit facilities for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an


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information service as selected by Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a LIBOR Successor Rate. Any such amendment shall become effective at 5:00 p.m. Administrative Agent’s Time on the fifth (5th) Business Day after Administrative Agent shall have posted such proposed amendment to all Lenders and Borrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to Administrative Agent written notice that such Required Lenders object to such amendment.
(c)If, at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, no LIBOR Successor Rate has been determined in accordance with Subsection (a) or (b) above and the circumstances under Subsection (a)(i) above or Subsection (a)(iii) above exist or the Scheduled Unavailability Date has occurred (as applicable), Administrative Agent will promptly so notify Borrowers and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain advances of the Loan at the LIBOR Rate shall be suspended, (to the extent of the affected Interest Periods, advances of the Loan, interest payment dates or payment periods), and (y) the LIBOR Daily Floating Rate component shall no longer be utilized in determining the Base Rate, until the LIBOR Successor Rate has been determined in accordance with Subsection (a) or (b) above. Upon receipt of such notice, Borrowers may revoke any pending LIBOR Rate Election for a borrowing of, conversion to or continuation of LIBOR Rate Principal (to the extent of the affected LIBOR Rate Principal, Interest Periods, interest payment dates or payment periods) or, failing that, will be deemed to have converted such LIBOR Rate Election into a request for Base Rate Principal (subject to the foregoing clause (y)) in the amount specified therein.
In addition to other terms defined herein, as used herein the following terms shall have the meanings indicated, unless the context otherwise requires and such terms shall be deemed added or amended and replaced as appropriate:
ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
LIBOR Screen Rate” means the LIBOR quote on the applicable screen page Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time).
LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of Business Day, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of Administrative Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
Related Adjustment” means, in determining any LIBOR Successor Rate, the first relevant available alternative set forth in the order below that can be determined by Administrative Agent applicable to such LIBOR Successor Rate:
(A)the spread adjustment, or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the relevant Pre-Adjustment Successor Rate (taking into account the interest period, interest payment


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date or payment period for interest calculated and/or tenor thereto) and which adjustment or method (x) is published on an information service as selected by Administrative Agent from time to time in its reasonable discretion or (y) solely with respect to Term SOFR, if not currently published, which was previously so recommended for Term SOFR and published on an information service acceptable to Administrative Agent; or
(B)the spread adjustment that would apply (or has previously been applied) to the fallback rate for a derivative transaction referencing the ISDA Definitions (taking into account the interest period, interest payment date or payment period for interest calculated and/or tenor thereto).
Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending a benchmark rate to replace LIBOR in loan agreements similar to the Loan Agreement.
SOFR” with respect to any Business Day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source) at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day and, in each case, that has been selected or recommended by the Relevant Governmental Body.
Term SOFR” means the forward-looking term rate for any period that is approximately (as determined by Administrative Agent) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected by Administrative Agent from time to time in its reasonable discretion.
4.USA PATRIOT Act Notice; Beneficial Ownership Regulation. Section 9.23 of the Loan Agreement is hereby deleted in its entirety and replaced with the following language:
“9.23    USA PATRIOT Act Notice; Beneficial Ownership Regulation.
Each Lender that is subject to the PATRIOT Act (as hereinafter defined) and Administrative Agent (for itself and not on behalf of any Lender) hereby notify each Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”) and 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), they are required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of each Borrower, a Beneficial Ownership Certification, and other information that will allow such Lender or Administrative Agent, as applicable, to identify each Borrower in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. Such information includes, but is not limited to, the name and address of such Borrower and a list of individuals, if any, who own directly or indirectly at least twenty-five percent (25%) of such Borrower (or such lesser equity interest as may be required by applicable Law or as may be reasonably required by the internal policy of any Lender or Administrative Agent), the identification of one individual who manages and Controls such Borrower, organizational information on the ultimate parent of such Borrower, and such other documentation and information that will allow each Lender and Administrative Agent, as applicable, to identify such Borrower in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. Each Borrower shall, promptly following a request by Administrative Agent or any Lender, provide all documentation and other information that Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation.”


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5.Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guaranty, mortgage, or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of California and/or of the United States or any other state of the United States):
(a)In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b)As used in this Section, the following terms have the following meanings:
BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
6.Conditions Precedent to Closing. The obligation of Administrative Agent, on behalf of Lenders, to enter into this Agreement is subject to the satisfaction of the following conditions precedent:
(a)No Default or Potential Default shall have occurred and then be continuing.
(b)Administrative Agent’s receipt of current financial statements regarding each Borrower and Guarantor as and when required under Section 4.8 of the Loan Agreement.
(c)If required by Administrative Agent, Administrative Agent shall have received and approved the most recent MAI appraisal of each Property (which MAI appraisals must be dated no more than six (6)

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months prior to the date hereof) meeting all applicable regulatory requirements, taking into account then- current market conditions.
(d)Based on the most recent appraisals (as more particularly described in clause (c), above) obtained by Administrative Agent, the Properties then subject to the lien of a Security Instrument shall have a Loan-to-Value Ratio of less than or equal to sixty percent (60%). In the event this Loan-to-Value Ratio is not met, Borrowers may satisfy this Loan-to-Value Ratio by making a voluntary pay down of the Loan or a permanent reduction in the Revolving Availability, or both, without prepayment fees or premiums other than the payment of any Consequential Loss.
(e)As of the most recent Test Date, Borrowers shall have satisfied an Ongoing Debt Service Coverage Ratio of at least 1.35:1.00. In the event this Ongoing Debt Service Coverage Ratio is not met, Borrowers may satisfy this Ongoing Debt Service Coverage Ratio by making a voluntary pay down of the Loan or a permanent reduction in the Revolving Availability, or both, without prepayment fees or premiums other than the payment of any Consequential Loss, in an amount sufficient to cause such Ongoing Debt Service Coverage Ratio to equal or exceed 1.35:1.00, assuming for purposes of calculating the Ongoing Debt Service Coverage Ratio that the pay down has been applied to the outstanding principal balance of the Loan, and/or such reduction in Revolving Availability has been applied to reduce the Aggregate Commitments, as applicable, as of the most recent Test Date.
(f)Administrative Agent shall have been provided with an updated title report and judgment and lien searches, and appropriate title insurance endorsements shall have been issued as reasonably required by Administrative Agent (provided that such endorsements are generally issued by title companies in the applicable jurisdiction).
(g)Administrative Agent’s receipt of this Agreement and all other additional documents required by Administrative Agent in connection with the modification of the Loan duly executed by Borrowers and Guarantor as applicable.
(h)Borrower shall have paid to Administrative Agent, for the ratable benefit of Lenders, the Extension Fee required under the Loan Agreement.
(i)Borrowers shall have paid all out-of-pocket costs and expenses incurred by Administrative Agent in connection with the extension (pre- and post-closing), including appraisal fees and reasonable attorneys’ fees actually incurred by Administrative Agent.
7.Balance. As of November 2, 2020, the outstanding principal balance of the Loan is $472,950,000.00, and the undisbursed amount of the Revolving Availability is $157,650,000.00.
8.Borrower’s Representations and Warranties. Each Borrower represents and warrants to Administrative Agent and each Lender as follows:
(a)Loan Documents. All representations and warranties made and given by each Borrower and Guarantor in the Loan Documents are true, accurate and correct in all material respects as of the date of this Agreement to the extent such representations and warranties are not matters which, by their nature, can no longer be true and correct as a result of the passage of time, and except for changes in circumstances arising from actions or events occurring after the date of the Loan Agreement that do not otherwise constitute a Default thereunder, including, without limitation, the execution of new Leases or new contracts that are not prohibited by the terms of the Loan Agreement or any other Loan Document.
(b)No Potential Default; Default. To each Borrower’s knowledge, no Default or Potential Default has occurred and is continuing.


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(c)Borrowing Entity. Each Borrower is a limited liability company which is duly organized and validly existing under the laws of the State of Delaware. There have been no material changes in formation documents of any Borrower since the inception of the Loan.
9.Course of Dealing. Administrative Agent, each Lender and each Borrower hereby acknowledge and agree that at no time shall any prior or subsequent course of conduct by any Borrower or Lender directly or indirectly limit, impair or otherwise adversely affect any of Administrative Agent’s or Lenders’ rights, interests or remedies in connection with the Loan and the Loan Documents or obligate Administrative Agent or Lenders to agree to, or to negotiate or consider an agreement to, any waiver of any obligation or default by any Borrower under any Loan Document or any amendment to any term or condition of any Loan Document.
10.Renewal; Lien Continuation; No Novation. Each Borrower hereby renews the Obligations and promises to pay and perform all Obligations as modified by this Agreement. The liens securing the Obligations are hereby ratified and confirmed as valid, subsisting and continuing, as modified hereby. Nothing herein shall in any manner diminish, impair, waive or extinguish the Note, the Obligations or any such liens. The execution and delivery of this Agreement shall not constitute a novation of the debt evidenced and secured by the Loan Documents.
11.Limited Recourse Provision. Neither Administrative Agent nor any Lender shall have any recourse against, nor shall there be any personal liability to, the members, shareholders, partners, beneficial interest holders or any other entity or person in the ownership (directly or indirectly) of any Borrower with respect to the obligations of any Borrower and Guarantor under the Loan. For purposes of clarification, in no event shall the above language limit, reduce or otherwise affect any Borrower’s liability or obligations under the Loan Documents, Guarantor’s liability or obligations under the Guaranty, or Administrative Agent’s and each Lender’s right to exercise any rights or remedies against any collateral securing the Loan.
12.Miscellaneous. To the extent of any conflict between the Loan Documents and this Agreement, this Agreement shall control. Unless specifically modified hereby, all terms of the Loan Documents shall remain in full force and effect. This Agreement (a) shall bind and benefit the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and assigns; (b) shall be governed by the laws of the State of California and United States federal law; and (c) may be executed in several counterparts, and by the parties hereto on separate counterparts, and each counterpart, when executed and delivered, shall constitute an original agreement enforceable against all who signed it without production of or accounting for any other counterpart, and all separate counterparts shall constitute the same agreement.
13.Reaffirmation of Guaranty. Guarantor, by its signature below, and for valuable consideration, the receipt and adequacy of which are hereby acknowledged, hereby consents to and joins in this Agreement and hereby declares to and agrees with Administrative Agent and each Lender that the Guaranty is and shall continue in full force and effect for the benefit of Administrative Agent and each Lender with respect to the Obligations, as amended by this Agreement, that there are no offsets, claims, counterclaims, cross-claims or defenses of Guarantor with respect to the Guaranty nor, to Guarantor’s knowledge, with respect to the Obligations, that the Guaranty is not released, diminished or impaired in any way by this Agreement or the transactions contemplated hereby, and that the Guaranty is hereby ratified and confirmed in all respects. Guarantor hereby reaffirms all of the representations and warranties set forth in the Guaranty, except to the extent such representations and warranties are matters which, by their nature, can no longer be true and correct as a result of the passage of time, and except for changes in circumstances arising from actions or events occurring after the date of the Guaranty that do not otherwise constitute a Default thereunder. Guarantor acknowledges that without this consent and reaffirmation, Administrative Agent would not execute this Agreement or otherwise consent to its terms.
14.Electronic Signatures. This Agreement may be in the form of an Electronic Record and may be executed using Electronic Signatures (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. For


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purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time. Each Borrower and Guarantor hereby agree that as soon as reasonably possible, each Borrower and Guarantor will provide an original of this Agreement to Administrative Agent that will include the wet signatures of each Borrower and Guarantor next to any Electronic Signatures.
[Remainder of page intentionally left blank.]


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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed this Agreement as of the day and year first hereinabove written.
BORROWERS:
KBSIII 60 SOUTH SIXTH STREET, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION VII, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer

KBSIII PRESTON COMMONS, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION IX, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
[Signatures continue on following page]
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KBSIII STERLING PLAZA, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION VIII, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer

KBSIII TOWERS AT EMERYVILLE, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XXI, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
[Signatures continue on following page]
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KBSIII TEN ALMADEN, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XIX, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer

KBSIII LEGACY TOWN CENTER, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION III, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
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GUARANTOR:
THE UNDERSIGNED GUARANTOR IS EXECUTING THIS AGREEMENT WITH RESPECT TO SECTION 13 IF THIS AGREEMENT ONLY
KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company,
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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer

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ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
a national banking association,
as Administrative Agent on
behalf of Lender
By:
Manank Patel
Manank Patel
Vice President

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Exhibit 10.3
CUSIP: Deal - 48668UAE5
Revolver - 48668UAF2
Term - 48668UAG0
KBSRIIIQ32020EX103PIC11.JPG
REVOLVING AND TERM LOAN AGREEMENT
by and between
KBSIII 500 West Madison, LLC,
a Delaware limited liability company
as Borrower
And
U.S. BANK NATIONAL ASSOCIATION,
a national banking association,
as Joint Lead Arranger, Co-Book Runner, and Administrative Agent
And
BANK OF AMERICA, N.A.,
a national banking association,
as Joint Lead Arranger, Co-Book Runner, and Syndication Agent
And
THE LENDERS REFERENCED HEREIN
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATIONS 1
Section 1.1 Definitions 1
Section 1.2 Singular and Plural Terms 26
Section 1.3 Accounting Principles 26
Section 1.4 References and Other Terms 27
Section 1.5 Exhibits Incorporated 27
Section 1.6 Inconsistency 27
Section 1.7 Divisions 27
Section 1.8 LIBOR Notification 27
ARTICLE II LOAN 28
Section 2.1 Principal 28
Section 2.2 Interest 29
Section 2.3 Payments 30
Section 2.4 Prepayment 31
Section 2.5 Availability of LIBOR; Adequacy of Interest Rate 32
Section 2.6 Yield Protection; Capital Adequacy 34
Section 2.7 Fees 35
Section 2.8 First Extension of Maturity Date 35
Section 2.9 Second Extension of Maturity Date 36
Section 2.10 Taxes 38
Section 2.11 Selection of Lending Installation; Mitigation Obligations; Lender
Statements; Survival of Indemnity
41
Section 2.12 Replacement of Lender 42
ARTICLE III CONDITIONS TO CLOSING AND ADVANCES 42
Section 3.1 No Obligation to Close or Advance 42
Section 3.2 Conditions to Closing 42
Section 3.3 Conditions Precedent to Initial Advance 45
Section 3.4 Conditions Precedent to all Advances 46
Section 3.5 Additional Conditions to Each Disbursement from the Tent
Improvement Allocation
47
Section 3.6 Revolving Availability of Tenant Improvement Allocation 49
ARTICLE IV ADVANCES 49
Section 4.1 General 49
Section 4.2 No Waiver 50
Section 4.3 Advances of Sums Due to Lenders 50
Section 4.4 [Reserved.] 50
Section 4.5 Availability Amount 50
Section 4.6 Waiver of Disbursement Condition 51
Section 4.7 All Advances Secured by Security Instrument 51
51
ARTICLE V REPRESENTATIONS AND WARRANTIES 51
Section 5.1 Borrower's and Guarantor's Formation and Powers 51
Section 5.2 Authority 52
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Section 5.3 No Approvals 52
Section 5.4 Legal and Valid Obligations 52
Section 5.5 Litigation 53
Section 5.6 Title 53
Section 5.7 Defects and Hazards 53
Section 5.8 Payment of Taxes 53
Section 5.9 Agreements 54
Section 5.10 No Defaults under Loan Documents or Other Agreements 54
Section 5.11 No Defaults under Loan Documents or Other Agreements
Boundary Lines; Conformance with Governmental Requirements
and Restrictions; Utilities
54
Section 5.12 Personal Property 54
Section 5.13 Condemnation 55
Section 5.14 Separate Lots 55
Section 5.15 Federal Reserve Regulations 55
Section 5.16 Investment Company Act 55
Section 5.17 Unregistered Securities 55
Section 5.18 Accuracy of Information 55
Section 5.19 ERISA Compliance 56
Section 5.20 Consents 56
Section 5.21 [Reserved] 56
Section 5.22 Anti-Corruption Laws, Sanctions 56
Section 5.23 Subsidiaries 56
Section 5.24 Leases 57
Section 5.25 Property Management Agreements 57
Section 5.26 Alterations 57
Section 5.27 Solvency 57
Section 5.28 Ownership and Control of Borrower 57
Section 5.29 Brokers 57
Section 5.30 Use of Loan Proceeds 57
Section 5.31 Purchase Options 58
Section 5.32 FIRPTA 58
Section 5.33 Eligible Contract Participant 58
Section 5.34 Affected Financial Institution 58
ARTICLE VI COVENANTS OF BORROWER 58
Section 6.1 Responsibility for Improvements 58
Section 6.2 [Intentionally Deleted] 59
Section 6.3 Title to the Project 59
Section 6.4 Using Loan Proceeds 59
Section 6.5 Keeping of Records 59
Section 6.6 Providing Updated Surveys 59
Section 6.7 Property Management Agreement 60
Section 6.8 Maintaining Insurance Coverage 60
Section 6.9 Transferring, Conveying or Encumbering the Land, Equipment,
Improvements or Interests in Borrower; Change of Control
60
Section 6.10 Required Minimum Non-Revolving Portion Funded Amount 61
Section 6.11 Updated Appraisals 61
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Section 6.12 Inspections 62
Section 6.13 Guarantor Financial Covenants 62
Section 6.14 [Intentionally Omitted] 62
Section 6.15 Reporting Requirements 62
Section 6.16 Taxes and Claims 64
Section 6.17 Maintain Existence 64
Section 6.18 Compliance with Governmental Requirements 64
Section 6.19 Notice 64
Section 6.20 No Other Debt 65
Section 6.21 Merger and Consolidations 65
Section 6.22 Loss of Note or other Loan Documents 65
Section 6.23 Project Accounts 66
Section 6.24 Fees and Expenses 66
Section 6.25 Distributions 66
Section 6.26 Permits, Approvals and Licenses 67
Section 6.27 Compliance with Laws; Anti-Money Laundering Laws 67
Section 6.28 Related Party Transactions 67
Section 6.29 Lease Approval Rights 67
Section 6.30 Single Purpose Entity Provisions 68
Section 6.31 Swap 68
Section 6.32 Mandatory Principal Payments 69
Section 6.33 Minimum Required Debt Service Coverage Ratio 69
Section 6.34 Personal Property 70
Section 6.35 Further Assurance 71
Section 6.36 Estoppel Statements 71
Section 6.37 [Intentionally Deleted] 71
Section 6.38 Zoning; Assessment Districts 71
Section 6.39 ERISA Compliance 72
Section 6.40 Lease Termination Account 72
ARTICLE VII COVENANTS REGARDING OPERATING ACCOUNTS; SECURITY
AGREEMENT
73
Section 7.1 [Intentionally Deleted] 73
Section 7.2 Operating Account 73
Section 7.3 Security Agreement for Operating Accounts 73
ARTICLE VIII DEFAULTS 74
Section 8.1 Events of Default 74
Section 8.2 Rights and Remedies 76
Section 8.3 Application of Funds 77
Section 8.4 Rights to Cure Details and Protection of Collateral 78
Section 8.5 [Intentionally Deleted] 79
Section 8.6 Acceptance of Payments 79
ARTICLE IX ADMINISTRATIVE AGENT; INTERCREDITOR PROVISIONS 79
Section 9.1 Appointment; Nature of Relationship 79
Section 9.2 Powers 80
Section 9.3 General Immunity 80
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Section 9.4 No Responsibility for Advances; Recitals, etc 80
Section 9.5 Action on Instructions of Lenders 80
Section 9.6 Employment of Administrative Agent and Counsel 81
Section 9.7 Reliance of Documents; Counsel 81
Section 9.8 Protective Advances 81
Section 9.9 Foreclosure 81
Section 9.10 Administrative Agent's Reimbursement and Indemnification 83
Section 9.11 Notice of Event of Default 83
Section 9.12 Rights as a Lender 83
Section 9.13 Lender Credit Decision, Legal Representation 84
Section 9.14 Successor Administrative Agent 84
Section 9.15 Delegation to Affiliates 85
Section 9.16 Borrower, Collateral and Guarantor Releases 85
Section 9.17 No Advisory or Fiduciary Responsibility 86
Section 9.18 Documentation Agent, Syndication Agent, etc 86
Section 9.19 Pro Rata Treatment 86
Section 9.20 Security Interest in Deposits 87
Section 9.21 Ratable Payments 87
Section 9.22 Defaulting Lenders 87
Section 9.23 Special Advances 89
Section 9.24 Certain ERISA Matters 89
Section 9.25 Approval of Lenders 90
ARTICLE X MISCELLANEOUS 91
Section 10.1 General Indemnities 91
Section 10.2 Binding Effect; Waivers; Cumulative Rights and Remedies 91
Section 10.3 Reduction of Aggregate Commitment 92
Section 10.4 Survival 93
Section 10.5 Governing Law; Waiver of Jury Trial; Jurisdiction 93
Section 10.6 Counterparts 93
Section 10.7 Notices 93
Section 10.8 Administrative Agent's Sign 94
Section 10.9 No Third Party Reliance 94
Section 10.10 Assignments 94
Section 10.11 Participations 97
Section 10.12 Amendments 98
Section 10.13 Time of Essence 99
Section 10.14 Entire Agreement; No Oral Modifications 95
Section 10.15 Captions 95
Section 10.16 Borrower-Lender Relationship 95
Section 10.17 Joint and Several Liability 95
Section 10.18 Severability 95
Section 10.19 [Reserved.] 95
Section 10.20 [Reserved.] 95
Section 10.21 Defenses 95
Section 10.22 Designated Representative(s) 95
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Section 10.23 Document Imaging; Electronic Transactions and the UETA;
Telecopy and PDF Signatures; Electronic Signatures
96
Section 10.24 Lender Provided Swaps 97
Section 10.25 USA PATRIOT ACT NOTIFICATION 97
Section 10.26 Confidentiality 97
Section 10.27 Acknowledgement and Consent to Bail-In of Affected Financial
Institutions
98
Section 10.28 Limited Recourse Provision 99
Section 10.29 Civil Code Section 2822 Waiver 99
Section 10.30 Acknowledgement Regarding Any Supported QFC's 99
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SCHEDULES
SCHEDULE 1
Commitments
EXHIBITS
EXHIBIT A

Improvements

EXHIBIT B


Legal Description
EXHIBIT C
EXHIBIT D
Permitted Encumbrances
Form of Draw Request
EXHIBIT E Financial Covenant Compliance Certificate Form
EXHIBIT F [Reserved]
EXHIBIT G

Ownership and Control of Borrower
Exhibit H Commercial Real Estate Standard Insurance Requirements
EXHIBIT I Form of Promissory Note
EXHIBIT J Form of Assignment and Assumption Agreement
EXHIBIT K [Reserved]
EXHIBIT L List of Leases
EXHIBIT M Form of Notice of Obligations
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REVOLVING AND TERM LOAN AGREEMENT
THIS REVOLVING AND TERM LOAN AGREEMENT (this "Agreement") is made and entered into this November 2, 2020, by and among KBSIII 500 West Madison, LLC, a Delaware limited liability company (the "Borrower"), (ii) U.S. BANK NATIONAL ASSOCIATION, a national banking association ("U.S. Bank") in its capacity as Administrative Agent (hereinafter defined), and (iii) the Lenders (as hereinafter defined).
Borrower has requested that the Lenders provide the Loan (as hereinafter defined) to Borrower in the initial principal sum of up to $375,000,000.00 for the purposes set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the Advances (as hereinafter defined) to be made by Administrative Agent and the Lenders pursuant to this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
Section 1.1    Definitions. For purposes of this Agreement, the following terms have the following respective meanings, unless the context hereof clearly requires otherwise:
Accenture” shall mean Accenture LLP, an Illinois limited liability partnership, as successor-in-interest to Acquity Group, L.L.C. under the Accenture Lease.
Accenture Expansion Space” shall mean (i) the Expansion Space, as defined in the Accenture Lease, (ii) all “Additional Expansion Space” that Accenture elects to expand into under the Accenture Lease, and (iii) and any additional space leased by Accenture at the Project.
Accenture Lease” shall mean that certain Office Lease dated as of July 14, 2011, as amended by that certain First Amendment to Office Lease dated June 30, 2014, that certain Second Amendment to Office Lease and Consent to Extension of Sublease dated August 19, 2015, that certain Third Amendment to Office Lease dated July 10, 2019, that certain Fourth Amendment to Office Lease executed March 13, 2020, that certain Fifth Amendment to Office Lease executed July 20, 2020, each by and between Borrower (and/or its predecessors in interest) and Accenture (as tenant), and as may be further amended or modified.
"Accessibility Laws": Means any Laws, including under the ADA, relating to accessibility to facilities or properties for disabled, handicapped and/or physically challenged persons, or other persons covered by the ADA.
"ADA": Means the United States Americans With Disabilities Act of 1990, as amended from time to time, and any successor statute, and any regulations promulgated thereunder from time to time.

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"Administrative Agent": Means U.S. Bank in its capacity as contractual representative of the Lenders pursuant to Article IX, and not in its individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article IX.
"Administrative Questionnaire": Means the Administrative Questionnaire completed by each Lender and delivered to Administrative Agent in a form supplied by Administrative Agent to the Lenders from time to time.
"Advance(s)": Means any portion of the Loan advanced by the Lenders on the same Borrowing Date to or for the benefit of Borrower as required or permitted under this Agreement or any other Loan Document.
Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
"Affected Lender": Has the meaning given to such term in Section 2.12.
"Affiliate": Means, as to any Person, any other Person (a) directly or indirectly Controlling, Controlled by or under common Control with such Person, or (b) that is a director or officer of such Person or an Affiliate of such Person.
"Aggregate Commitment": Means, as of any date of determination, the aggregate Commitments of all of the Lenders. Initially, the Aggregate Commitment will be $375,000,000, consisting of the Revolving Portion plus the Non-Revolving Portion less the amount of any principal paydowns of the Non-Revolving Portion, and the undisbursed Loan proceeds, if any, that have been cancelled (i) by the Borrower in writing in accordance with the terms and conditions of this Agreement including, without limitation, the provisions set forth in Section 10.3, and (ii) in accordance with Section 2.1(g), in each case subject to the availability of the Tenant Improvement Allocation.
"Agreement": Has the meaning given to such term in the introductory paragraph hereof.
"Alteration Threshold": Means Two Million Five Hundred Thousand Dollars ($2,500,000.00).
Alternate Base Rate”: Means, for any day, a rate of interest per annum equal to the highest of (a) zero, (b) the Prime Rate for such day and (c) the sum of the Federal Funds Effective Rate for such day plus 0.50% per annum. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from the effective date of such change.
"Annualized Net Operating Income": Means annualized Net Operating Income before payment of debt service from the Project securing the Loan as of the date of calculation, calculated by annualizing the Net Operating Income for the immediately preceding prior two calendar quarters; provided that if the Debt Service Coverage Ratio is being calculated within 60 days after the end of a calendar quarter (and prior to the quarterly reporting for the most recent calendar quarter end being available and/or delivered to Administrative Agent), the Net Operating Income shall be calculated by looking at the Net Operating Income during the two
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calendar quarters preceding the immediately prior calendar quarter; e.g., if the most recent calendar quarter end reporting is not yet delivered to Administrative Agent and the Debt Service Coverage Ratio is being calculated on January 10, 2021, the six-month period (if that is the relevant calculation period under the following provisions of this definition) would be the period commencing on April 1, 2020 and ending on September 30, 2020, and if the Debt Service Coverage Ratio is being calculated on March 20, 2021, the six-month period would be the period commencing on July 1, 2020, and ending on December 31, 2020).
Anti-Corruption Laws”: Means all laws, rules, and regulations of any jurisdiction applicable to Borrower, Guarantor or their respective Subsidiaries from time to time concerning or relating to bribery or corruption.
Applicable Margin”: Means with respect to Advances at the LIBOR Based Rate or the Base Rate, if applicable, 225 basis points.
"Appraisal": Means an appraisal meeting the Required Appraisal Standard.
Approved Fund”: Means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
"Approved Lease": means a Lease entered into in accordance with Section 6.29.
"Assignment and Assumption": Means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.10) and accepted by Administrative Agent, in the form of Exhibit J or any other form approved by Administrative Agent.
"Assignment and Subordination of Management Agreement": Means the Assignment and Subordination of Management Agreement and Management Fees by and between the Property Manager, Borrower and Administrative Agent, for the benefit of itself and the Lenders, as the same may be amended, modified or supplemented from time to time.
Availability Amount Shall mean the lesser of (i) the then applicable Aggregate Commitment or (ii) the then applicable Borrowing Base Amount (determined as of the most recent DSCR Testing Date).
"Availability Period": Has the meaning given such term in Section 3.1.
Bail-In Action”: Means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation”: Means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United
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Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
"Bankruptcy Code": Means Title 11 of the United States Code, as the same may be amended or replaced from time to time.
"Base Rate": Means, for any day, a rate per annum equal to (i) the Alternate Base Rate for such day plus (ii) the Applicable Margin for such day, in each case, changing when and as the Alternate Base Rate changes.
Benchmark Replacement”: Means the sum of: (a) an alternative benchmark rate that has been selected by Administrative Agent in consultation with Borrower and in accordance with Section 2.5 giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body and (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR for U.S. syndicated credit facilities denominated in Dollars that are substantially similar to the credit facilities under this Agreement and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.
Benchmark Replacement Adjustment”: Means, with respect to any replacement under this Agreement of LIBOR with an alternative benchmark rate, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent in consultation with Borrower and Lenders and in accordance with Section 2.5, giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with an alternative benchmark rate by the Relevant Governmental Body and (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with an alternative benchmark rate at such time for U.S. syndicated credit facilities denominated in Dollars that are substantially similar to the credit facilities under this Agreement, which adjustment or method for calculating or determining such spread adjustment pursuant to clause (b) is published on an information service as selected by Administrative Agent from time to time and as may be updated periodically.
Benchmark Replacement Conforming Changes”: Means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” timing and frequency of determining rates and making payments of interest and other administrative matters) that Administrative Agent decides may be appropriate (in consultation with Borrower ) to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with then-prevailing market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as
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Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).
Benchmark Replacement Date”: Means the earliest to occur of the following events with respect to LIBOR:
(a)in the case of clauses (ii), (iii) or (iv) of Section 2.5(b), the later of:
the date of the public statement or publication of information referenced therein and
the date on which the administrator of LIBOR permanently or indefinitely ceases to provide LIBOR;
(b)in the case of clause (i) of Section 2.5(b), the earlier of
(i)the date of the public statement or publication of information referenced therein; and
(ii)the date specified by Administrative Agent or the Required Lenders, as applicable, by notice to Borrower, Administrative Agent (in the case of such determination and notice by the Required Lenders) and the Lenders; or
(c)in the case of clause (v) of Section 2.5(b), the date specified by Administrative Agent or the Required Lenders, as applicable, by notice to Borrower, Administrative Agent (in the case of such determination and notice by the Required Lenders) and the Lenders.
Benchmark Transition Event”: Is defined in Section 2.5(b).
Benchmark Unavailability Period”: Means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR has not been replaced hereunder with a Benchmark Replacement, the period (y) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBOR for all purposes under this Agreement and the other Loan Documents in accordance with Section 2.5(b) and (z) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes under this Agreement and the other Loan Documents pursuant to Section 1.8.
"Beneficial Ownership Certification": Means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
"Beneficial Ownership Regulation": Means 31 C.F.R. § 1010.230.
Benefit Plan”: Means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”

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BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
Borrower”: Has the meaning given to such term in the introductory paragraph hereof.
Borrower Certification”: shall have the meaning set forth in Section 6.15(a)(2).
"Borrower's Organizational Documents": Means Borrower's limited liability company agreement and related formation documents, including any amendments thereof and supplements to the foregoing.
"Borrowing Base Amount": Shall mean the Loan balance resulting in a Debt Service Coverage Ratio equal to the Minimum Borrowing Base DSCR, calculated by dividing (i) Annualized Net Operating Income for the Project by (ii) the product obtained by multiplying (A) the Minimum Borrowing Base DSCR by (B) the Borrowing Base Loan Constant.
"Borrowing Base Loan Constant": Shall mean the greater of (i) a loan constant of 0.07 (which is based on an interest rate of five and three-quarter percent (5.75%) per annum and principal amortization based on a 30-year amortization schedule), and (ii) a loan constant, expressed as a decimal, based on an interest rate of one and three-quarters percent (1.75%) per annum in excess of the Treasury Rate as of the date of calculation, and principal amortization based on a 30-year amortization schedule, as reasonably determined by Administrative Agent.
"Borrowing Date": Means a date on which an Advance is made hereunder or under any other Loan Document.
Business Day”: Means a day (other than a Saturday or Sunday) on which banks generally are open in New York City, New York for the conduct of substantially all of their commercial lending activities.
Capitalized Lease”: Means, of a Person, any lease of Property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP.
Capitalized Lease Obligations”: Means, of a Person, the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.
Change in Law”: Means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory
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authorities, in each case pursuant to Basel III, will in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
"Change of Control": Means (a) the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the U.S. Securities and Exchange Commission under the Securities Exchange Act of 1934) of 10% or more of the outstanding direct or indirect membership interests or other ownership interests of Borrower on a fully diluted basis; (b) any change in the ownership of a Controlling interest partners, shareholders or members in Borrower or any Guarantor, any addition to, withdrawal of or other change in the partners, shareholders or members in Borrower or any Guarantor, any addition to, or any sale or transfer of, or other change in the ownership of, any general partnership or interest in Borrower or any Guarantor, or any change in the limited partners in, or sale or transfer of any limited partnership interest in, Borrower, unless said interests are publicly traded, or any change in the manager of Borrower; or (c) within any twelve-month period, occupation of a majority of the seats (other than vacant seats) on the board of directors of Borrower by Persons who were neither (x) nominated by the board of directors of Borrower nor (y) appointed or approved by directors so nominated.
"Closing Date": Means November 2, 2020.
"Code": Means the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.
"Collateral": Means (a) all of the collateral covered by a Security Instrument, this Agreement or any other Loan Document, and (b) all accessions to, substitutions for and replacements, products and proceeds of any of the foregoing, including proceeds of any insurance policies, claims against third parties, and condemnation or requisition payments with respect to all or any of the foregoing.
"Commitment": Means, for each Lender, the obligation of such Lender to make disbursements (on a Pro Rata Share basis) of a portion of the Loan to Borrower, on a revolving basis as to the Revolving Portion, in an amount (at any one time outstanding) not exceeding the amount set forth in Schedule 1, as such commitment may be (i) reallocated as set forth in Section 2.1(g) or (ii) reduced in accordance with Section 10.3 and any principal reductions otherwise required under and pursuant to the Loan Documents, and (iii) modified from time to time as a result of an assignment that has become effective pursuant to Section 10.10 or otherwise pursuant to the terms hereof.
"Commodity Exchange Act": Means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute, and any regulations promulgated thereunder from time to time.
"Contingent Liabilities": Means, with respect to Borrower or Guarantor, as the case may be, all of any such Person's liabilities and obligations for moneys borrowed or payments of moneys owed on claims which have been liquidated in amount, which are contingent upon and will not mature unless and until the occurrence of some event or circumstance, including such
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Person's liability under or with regard to guaranties and indemnities, purchase agreements, letters of credit, and recourse indebtedness on projects sold to other Persons.
"Control": Means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of such Person, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise. For the purposes of this definition, a Person is deemed to "Control" another Person if such controlling Person owns 10% or more of any class of voting securities or other ownership interests of such controlled Person. "Controlled" and "Controlling" have correlative meanings.
Covered Entity”: Means any of the following:
(a)    a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b)    a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c)    a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
Covered Party”: Is defined in Section 10.30.
"Debt Service Coverage Ratio": Shall mean a fraction, the numerator of which is the Annualized Net Operating Income, and the denominator of which is the product obtained by multiplying (a) the outstanding principal balance of the Loan as of the date of calculation by (b) the Borrowing Base Loan Constant.
Debtor Relief Laws”: Means any applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, fraudulent conveyance, reorganization, or similar laws affecting the rights, remedies or recourse of creditors generally, including the Bankruptcy Code and all amendments thereto, as are in effect from time to time during the term of the Loan.
"Default": Means any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default.
Defaulting Lender”: Means any Lender that (a) has failed to (i) fund all or any portion of its Pro Rata Share of the Loan within two (2) Business Days of the date such Pro Rata Share was required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (ii) reimburse Administrative Agent for its Pro Rata Share of any Protective Advance within two Business Days after notice from Administrative Agent, or (iii) pay to Administrative Agent or any other Lender any other amount required to be paid by such Lender hereunder within two (2) Business Days of the date when due, (b) has notified Borrower, Administrative Agent or any other Lender in writing that it does not intend to comply with its funding obligations hereunder,
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or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund such Lender’s Pro Rata Share hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Administrative Agent or Borrower, to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become subject of a proceeding under the Bankruptcy Code or any other Debtor Relief Laws of the United States or other applicable jurisdictions from time to time in effect, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation or its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender) upon delivery of written notice of such determination to Borrower and each Lender. Notwithstanding the foregoing, if any Lender is a Defaulting Lender solely under clause (d) above and is a Lender who is generally entitled to issue covered mortgage bonds under German Pfandbrief legislation and is in this capacity (and under the terms of this Agreement) entitled to assign, pledge or otherwise transfer its interest in the Loan to a trustee, administrator, receiver or any Person (or their respective nominees, agent or collateral agents or collateral trustees) in each case in connection with the issuance of covered mortgage bonds under German Pfandbrief legislation (a “Pfandbrief Pledging Lender”), (A) such Lender’s right to participate in the administration of such Lender’s Pro Rata Share of the Loan and otherwise receive payments hereunder, this Agreement or the other Loan Documents as set forth herein solely with respect to such Lender’s Pro Rata share of the Loan, if any, shall not be suspended so long as such Lender (i) continues to meet its monetary obligations under the Loan Documents and (ii) responds to any communication or request within ten (10) Business Days after receipt thereof (or such lesser time as may be required by the Loan Documents), and (B) such Lender shall not be deemed to be a Defaulting Lender for purposes of the definition of “Required Lenders” so long as such Lender responds to any communication or request within ten (10) calendar days after receipt thereof (or such lesser time as may be required by the Loan Documents). Any Pfandbrief Pledging Lender that is a Defaulting Lender that is still permitted to participate during any period in the administration of the Loans and the Loan Documents pursuant to the foregoing sentence and is still meeting all monetary obligations as a Lender under the Loan Documents will be referred to hereinafter as a “Pfandbrief Defaulting Lender” for such period. Notwithstanding the foregoing, and for the avoidance of doubt, except as expressly as set
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forth in this Agreement the rights and remedies of Non-Defaulting Lenders and of Borrower under this Agreement with respect to Defaulting Lenders shall apply in all respects with respect to any Pfandbrief Defaulting Lender.
"Default Rate": Means the lesser of 5% per annum in excess of the Loan Rate or the maximum lawful rate of interest which may be charged, if any.
Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
"Designated Representative": Has the meaning set forth in Section 10.22.
Dollar”: Means the lawful currency of the United States of America.
Draw Request” A written request by Borrower, in the form attached hereto as Exhibit D, for an advance of Loan proceeds under this Agreement
DSCR Testing Date Has the meaning set forth in Section 6.33 of this Agreement.
E-SIGN”: Means the Federal Electronic Signatures in Global and National Commerce Act, as amended from time to time, and any successor statute, and any regulations promulgated thereunder from time to time.
"EEA Financial Institution": Means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
"EEA Member Country": Means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
"EEA Resolution Authority": Means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee”: Means (i) a Person (or its direct or indirect parent) shall be either (A) a commercial lender organized under the laws of the United States, or any state thereof, and having total assets in excess of Two Billion Dollars ($2,000,000,000) or (B) a commercial bank organized under the laws of any other country that is a member of the Organization for Economic Cooperation and Development or China, including any landesbank, pfandbriefbank or hypothenkenbank, which has total assets in excess of Two Billion Dollars ($2,000,000,000) or (C) a real estate investment trust, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, in each case organized under the laws of the United States or any state thereof or of any other country that is a member of the Organization for Economic Cooperation and Development or China and, in each case, which has total assets in excess of Two Billion Dollars ($2,000,000,000); and (ii) the senior
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unsecured debt of such assignee (or its direct or indirect parent) shall have a rating of Baa 2 (stable outlook) or higher from Moody's Investors Service, Inc. or a comparable rating agency.
"Environmental Insurance Policy": Means the environmental insurance policy or policies covering the Project, in form and substance reasonably acceptable to Administrative Agent, naming Administrative Agent (on behalf of Lenders) as additional insured.
"Environmental Law": Means all federal, state, regional, county and local statutes, regulations, ordinances, rules, regulations and policies, all court and administrative orders and decrees and arbitration awards, and the common law, which pertain to environmental matters or contamination of any type whatsoever, including those relating to the presence, manufacture, processing, use, distribution, treatment, storage, disposal, generation or transportation of Hazardous Substances; air, water (including surface water, groundwater, and stormwater) or soil (including subsoil) contamination or pollution; the presence or Release of Hazardous Substances, protection of wildlife, endangered species, wetlands or natural resources; health and safety of employees and other persons; and notification requirements relating to the foregoing, including the following statutes, and regulations adopted thereunder: the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9601 et seq.; RCRA; the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. § 1251 et seq.; the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f through 300j; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 et seq.; the Occupational Safety and Health Act, 19 U.S.C. § 6251 et seq.; the applicable provisions of the California Health and Safety Code (including, without limitation, Sections 25220 et. seq.); and the California Water Code (or similar law); and any similar or like laws in any other jurisdiction where the Project is located, as each of the foregoing may be amended from time to time.
"Environmental Liability": Means any claim, demand, obligation, cause of action, allegation, order, violation, damage, injury, judgment, penalty or fine, cost of enforcement, cost of remedial action, diminution in value or any other cost or expense whatsoever, including reasonable attorneys' fees and disbursements, resulting from the presence or use of Hazardous Substances, the violation or alleged violation of any Environmental Law, or the imposition of any Environmental Lien.
"Environmental Lien": Means a Security Interest in favor of any Person for: (a) any liability under an Environmental Law; or (b) damages arising from or costs incurred by such Person in response to any actual or threatened Release.
"Environmental Report": Means, the Phase I Environmental Site Assessment dated September 24, 2020, prepared by Partner Engineering and Science, Inc., Project No. 20-292019.1.

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Equipment”: Means all furniture, fixtures, equipment and personal property owned by Borrower and located or to be located in or on, and used in connection with the management, maintenance or operation of, the Land or the Improvements.
"ERISA": Means the Employee Retirement Income Security Act of 1974, as the same may from time to time be amended, and the rules and regulations promulgated thereunder by any Governmental Authority, as from time to time in effect.
"ERISA Affiliate": Means any trade or business (whether or not incorporated) which is a member of a group of which Borrower is a member and which is under common control within the meaning of Section 414 of the Code, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
"EU Bail-In Legislation Schedule": Means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
"Event of Default": Has the meaning given to such term in Section 8.1.
"Excluded Swap Obligation": Means, with respect to any Guarantor, any Swap Obligation if, and only to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof), including by virtue of such Guarantor's failure for any reason to constitute an "eligible contract participant" as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion will apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.
"Excluded Taxes": Means, in the case of each Lender or applicable Lending Installation and Administrative Agent, (i) Taxes imposed on its overall net income, franchise Taxes, and branch profits Taxes imposed on it, by the respective jurisdiction under the laws of which such Lender or Administrative Agent is incorporated or is organized or in which its principal executive office is located or, in the case of a Lender, in which such Lender's applicable Lending Installation is located, (ii) in the case of a Non-U.S. Lender, any U.S. federal withholding Tax that is imposed on amounts payable to such Non-U.S. Lender pursuant to the laws in effect at the time such Non-U.S. Lender becomes a party to this Agreement or designates a new Lending Installation, except in each case to the extent that, pursuant to Section 2.10(a), amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Installation, or is attributable to the Non-U.S. Lender's failure to comply with Section 2.10(f), and (iii) any U.S. federal withholding Taxes imposed by FATCA.

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"Extension Fee": Means a non-refundable fee in the amount of 0.125% of an amount equal to the then existing total Aggregate Commitment.
"FATCA": Means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing.
Federal Funds Effective Rate”: Means, for any day, the greater of (a) zero and (b) the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. (Central time) on such day on such transactions received by Administrative Agent from three federal funds brokers of recognized standing selected by Administrative Agent in its sole discretion.
"Fee Letter": Means the confidential letter agreement dated as of November 2, 2020 among Borrower and Administrative Agent, or as otherwise agreed from time to time.
"Fees": Means the Loan Fee, each Extension Fee and any other fees now or hereafter due and payable by Borrower in accordance with any or all of the Loan Documents.
"Financial Covenant Compliance Certificate": Means a certificate, in the form attached hereto as Exhibit E, certifying the Financial Covenants set forth in the Guaranty.
"First Option Maturity Date": Has the meaning set forth in Section 2.8.
"Fiscal Year": Means the period from January 1 of any year through the following December 31.
"Fund": Means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
"GAAP": Means generally accepted accounting principles in the United States of America as of the date of the applicable financial statement, consistently applied and maintained throughout the period indicated.
"Governmental Authority": Means any court, board, agency, commission, office, department, bureau, instrumentality or authority of any nature whatsoever or any governmental unit (federal, state, commonwealth, county, district, municipality, city or otherwise) whether now or hereafter in existence.

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Governmental Requirements”: Means all Laws applicable to Borrower, Guarantor, Administrative Agent, any Lender or the Project (including the construction or renovation of all or any part thereof), including Environmental Laws, Accessibility Laws, building and zoning codes and ordinances, energy and pollution control Laws, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Project or any part thereof, including any which may (a) require repairs, modifications or alterations in or to the Project or any part thereof, or (b) in any way limit the use and enjoyment thereof.
"Gross Operating Income": Shall mean the sum of any and all (A) Rental Income, excluding any income from any lease if the tenant under such lease (a) is in monetary or other material default (after expiration of any applicable notice and cure periods and except (i) as expressly specified in subsection (d) below or (ii) the default has not been in effect for more than 30 days beyond the Closing Date for any tenants in default as of the Closing date and 60 days following the occurrence of any tenant default after the Closing Date, the only notice sent as to such default is a reservation of rights notice (not specifying any particular action will be taken, including without limitation, lease termination or exercise of offset rights), tenant and Borrower are negotiating (and continue to negotiate) in good faith a cure of such default (including, but not limited to, waiving such default, modifying the lease to cure such default, or taking some other action to bring said lease back into good standing (in each case, to the extent Administrative Agent has consented to such actions or such actions are permitted to be taken under the applicable lease without the consent of Administrative Agent)), (b) is in bankruptcy (unless such tenant has affirmed and assumed its lease obligations in the bankruptcy proceeding), (c) has given notice of termination or otherwise exercised any termination right under the lease (and such lease termination shall be effective within six (6) months from the applicable test date), but including, without duplication, the annualized rental income for any newly executed leases for such space, or (d) is scheduled to pay rent during such testing period and such rent has been deferred for more than four (4) months in the aggregate from the Closing Date (so that any then existing deferred rent time periods shall not count against such four (4) month period), except to the extent any portion of such rent is actually paid during such period (provided the exclusion in this clause (d) may be waived subject to approval of Administrative Agent), and (B) all other normal and recurring (but not extraordinary) cash income accrued during the applicable time period in question or another, from the ownership, use and operation of the Project and paid, whether paid in the applicable period of time in question or another, from the ownership, use and operation of the Projects that continue to then be encumbered by the Security Instrument and contribute to the Borrowing Base Amount.  Additionally, Gross Operating Income shall be adjusted to the extent a tenant has agreed to a rent deferral and is in a catch-up period, so that the portion of the payment attributed to the rent catch-up shall not be included in Gross Operating Income (i.e., only the originally scheduled rent for such period shall be included in the calculation of Gross Operating Income unless such deferred rent was granted to the applicable tenant as part of the additional lease term).  Regarding clause (d) above and for the avoidance of doubt, (i) if a tenant is scheduled to pay rent during such testing period and the tenant has not been granted more than four months of rent deferrals in the aggregate after the Closing Date (so that any then-existing deferred rent time periods shall not count against such four (4) month period), such scheduled rents shall be included in the calculation of Gross Operating Income as if they were paid during the applicable testing period, and (ii) upon tenant commencing originally
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scheduled rental payments, such tenant shall then be included in Gross Operating Income on a going forward basis assuming the tenant had paid rent for the testing period in question.
"Guarantor": Means KBS REIT Properties III, LLC, a Delaware limited liability company.
"Guarantor's Organizational Documents": Means the limited liability company agreement of Guarantor dated as of May 24, 2011, delivered to Administrative Agent prior to the Closing Date, including any amendments thereof and supplements thereto.
"Guaranty" or, collectively, "Guaranties": Means, collectively, (a) the Payment Guaranty Agreement, and (b) the Recourse Carve-Out Guaranty Agreement, each dated as of the Closing Date and given by Guarantor in favor of Administrative Agent, for the benefit of itself and the Lenders, as any of the same may be amended, supplemented or modified from time to time.
"Hazardous Substance(s)": Means any substance, chemical, compound, product, solid, gas, liquid, waste, byproduct, pollutant, contaminant, or material which is defined or regulated under any Environmental Law, and includes, without limitation, (a) mold, asbestos, polychlorinated biphenyls, and petroleum (including petroleum products or derivatives, crude oil or any fraction thereof), and (b) any material classified or regulated as "hazardous waste" pursuant to RCRA.
"HVCRE": Means a loan that is categorized as a high volatility commercial real estate loan exposure pursuant to Part 217 of Chapter II of title 12 of the Code of Federal Regulations.
Improvements”: Means all buildings and improvements that are now existing on the Land or are added in the future, or otherwise as expressly permitted hereunder or approved in writing by Administrative Agent, including those described on Exhibit A attached hereto. Improvements will also include all tenant improvements, whether constructed before or after the Closing Date.
"Indebtedness": Means, in all cases without duplication, with respect to any Person, all items of indebtedness or liability such Person, at any time which in accordance with GAAP would be included in determining total liabilities as shown on the liability side of a consolidated balance sheet of such Person as of the date of determination, including: (a) indebtedness for borrowed money; (b) Capitalized Lease Obligations; (c) obligations under direct or indirect guaranties of indebtedness or obligations of others referred to in clause (a) or (b) above; (d) any indebtedness secured by any Security Interest on any property of such Person; (e) liabilities in respect of unfunded vested benefits under any Pension Plan for which the minimum funding standards of Section 302 of ERISA have not been met; (f) Contingent Liabilities; and (g) Swap Obligations with a Swap Counterparty.
"Indemnified Taxes": Means Taxes imposed on or with respect to any payment made by or on account of any obligation of Borrower or Guarantor under any Loan Document, other than Excluded Taxes and Other Taxes.

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Indemnity”: Means the Environmental Indemnification Agreement dated as of the Closing Date executed by Borrower, as the same may be amended, supplemented or modified from time to time.
"Initial Maturity Date": Means November 2, 2023.
Land”: Means the real property that is more specifically described on Exhibit B attached hereto.
"Laws": Means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
"Lease(s)": Means any lease, sublease or sub-sublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect), pursuant to which any Person is granted a possessory interest in, or right to use or occupy, all or any portion of any space in the Land, and every modification, amendment or other agreement relating to such lease, sublease, sub-sublease or other agreement entered into in connection with such lease, sublease, sub-sublease or other agreement and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.
"Lender-Provided Swap": Means a Swap provided to Borrower, Guarantor or any Affiliate thereof by a Person that, either at the time such Swap is entered into or, as to any Swap entered into before the Closing Date, on the Closing Date, is a Lender or an Affiliate thereof. It is acknowledged and agreed that all Lender-Provided Swaps shall be provided to Guarantor and shall not be secured by the Project, unless otherwise consented to by the Lenders.
"Lenders": Means, initially, the lending institutions listed on the signature pages of this Agreement and their respective successors and assigns, and any New Lenders that become a party to this Agreement pursuant to the terms hereof.
"Lending Installation": Means, with respect to a Lender or Administrative Agent, the office, branch, subsidiary or affiliate of such Lender or Administrative Agent listed on the signature pages hereof (in the case of Administrative Agent) or on its Administrative Questionnaire (in the case of a Lender) or otherwise selected by such Lender or Administrative Agent.
LIBOR”: Means the London interbank offered rate.
"LIBOR Based Rate": Means a rate of interest per annum equal to the sum of (a) the LIBOR Rate in effect on such day plus (b) the Applicable Margin.

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LIBOR Rate”: Means the greater of (1) (x) in the case of any Loan or portion thereof that has been identified by Borrower to Administrative Agent in writing as being subject to a Lender-Provided Swap for the purpose of hedging and protecting against interest rate fluctuation risks with respect to such Loan or a portion thereof, zero percent (0%), and (y) in the case of any Loan or portion thereof not being subject to a Lender-Provided Swap at any time during the Loan term (including during any extension periods), one half of one percent (0.50%) and (2) the one-month LIBOR rate quoted by Administrative Agent from Reuters Screen LIBOR01 Page (or any successor or substitute page) which shall be that one-month LIBOR rate in effect two New York Banking Days prior to the Rate Adjustment Date, adjusted for any reserve requirement and any subsequent costs arising from a change in government regulation, such rate to be reset monthly on each Rate Adjustment Date. If the initial Advance occurs other than on the Rate Adjustment Date, the initial one-month LIBOR rate will be that one-month LIBOR rate in effect two New York Banking Days prior to the later of (a) the immediately preceding Rate Adjustment Date and (b) the Closing Date.
"Liens": Means any mortgage, deed of trust, deed to secure debt, lien (statutory or otherwise, but excluding liens for ad valorem taxes that are not delinquent), pledge, hypothecation, easement, restrictive covenant, preference, assignment, security interest, or any other encumbrance, charge or transfer of, or any agreement to enter into or create any of the foregoing, on or affecting all or any portion of the Project or any interest therein, or any direct or indirect interest in Borrower, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic's, materialman's, construction and other similar liens and encumbrances.
Loan”: Means, the aggregate principal amount that the Lenders agree to lend and Borrower agrees to borrow pursuant to the terms and conditions of this Agreement.
"Loan Documents": Means all documents now or hereafter entered into which evidence, secure and/or govern the Loan and/or any of the Obligations, including this Agreement, the Notes, the Security Instrument, the Guaranties, the Indemnity, the Fee Letter, the Assignment and Subordination of Management Agreement, and any other documents, agreements or instruments entered into by Borrower and/or Guarantor with respect to the Loan, and any amendments, supplements or modifications to any of the same from time to time.
Loan Fee”: Means the fees agreed to by Borrower and Administrative Agent pursuant to the Fee Letter.
Loan Rate”: Means, as of any date, the LIBOR Based Rate or, if applicable pursuant to Section 2.5, the Base Rate. Notwithstanding anything else to the contrary contained in the Loan Documents, in no event (including during any extension periods) shall the Loan Rate be less than (x) with respect to any portion of the Loan that is subject to a Lender Provided Swap, two and one-quarter percent (2.25%) and (y) in the case of any loan that is not subject to a Lender-Provided Swap, two and three-quarters percent (2.75%), including, without limitation, any interest rate derived from LIBOR and following any Benchmark Transition Event.

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Loan to Value Requirement”: Means that, as of any date of determination, the sum of the then principal balance of the Loan plus the aggregate remaining unfunded amounts of all of the Commitments is, for purposes of (a) Section 2.8, less than or equal to 60% of the “as stabilized” value of the Project, (b) Section 2.9, less than or equal to 60% of the “as is” value of the Project, (c) Section 3.2(e), less than or equal to 60% of the “as stabilized” value of the Project, and (d) any requirements under the Security Instrument, less than 60% of the “as is” value of the Project, in each case as determined by Administrative Agent based upon the most recent Appraisal.
"Losses": Has the meaning given such term in Section 10.1.
"Material Adverse Change": Means any occurrence of whatsoever nature (including any material and adverse determination in any litigation, arbitration or governmental investigation or proceeding) which Administrative Agent reasonably determines could materially and adversely affect the then present or prospective financial condition or operations of Borrower or any Guarantor, the value, financial condition or operation of the Project, or impair the ability of Borrower or Guarantor to perform its obligations as and when required under any of the Loan Documents.
"Material Alteration": Has the meaning set forth in Section 5.26(a) hereof.
"Maturity Date": Means the Initial Maturity Date, subject to being extended as set forth in Section 2.8 and Section 2.9.
"Minimum Borrowing Base DSCR": Shall mean 1.25 to 1.
"Municipality": Means each county, city, town, or other district possessing corporate existence and its own governing body, in which the Project or any portion thereof is located.
"Net Operating Income": Shall mean the amount of (a) Gross Operating Income for the applicable period of time in question, less (b) the amount of Operating Expenses for such period of time, less (c) a replacement reserve equal to $0.25 per square foot for all of the Improvements. Subject to (1) approval by the Administrative Agent of such adjustment (but not of any such Lease to the extent that such approval by Administrative Agent is not otherwise required under the terms of this Agreement or any other Loan Documents), and (2) satisfactory review by Administrative Agent of the existing or proposed lease terms and, to the extent available, financial information of the tenant, for Leases that include a free rent period, Administrative Agent shall adjust the Net Operating Income to include the base rents payable under executed Leases with a rental commencement date to occur within one-hundred eighty (180) days of the applicable testing date. Additionally, the Accenture Expansion Space carries a 15-month free rent period, which is estimated to expire on October 31, 2023. On and after the Closing Date through the December 31, 2023 reporting period, subject to the last sentence of this definition, Net Operating Income will be adjusted upward to include a triple-net rent, inclusive of $29.00 per rentable square foot in base rent plus any applicable triple-net expense reimbursements for the Accenture Expansion Space (collectively, the “Accenture Rent Adjustments”). If the Accenture Expansion Space is already occupied by a third-party tenant (given that Accenture Lease covers a portion of the Project that is currently leased and occupied by various third-party tenants), that third-party tenant’s rents shall be adjusted upwards to assume that tenant was paying a rent equivalent to Accenture’s year-one Accenture Expansion Space rent as set forth
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above. Notwithstanding the foregoing, (i) if the Accenture Lease is terminated or otherwise is no longer in place, or if a material default occurs thereunder (following expiration of any applicable grace or notice and cure periods), including an Accenture filing under any Debtor Relief Laws (unless Accenture has affirmed and assumed its lease obligations in the bankruptcy proceeding), any rental income allocable to the Accenture Lease (including any Accenture Rent Adjustments) shall be excluded from Net Operating Income for all purposes under this Agreement, and (ii) to the extent the Expansion Space Commencement Date (as defined in the Accenture Lease) for any portion of the Expansion Space (as defined in the Accenture Lease) does not occur by December 1, 2022, the Accenture Rent Adjustment shall no longer apply to such portion and any rental income allocable to that space shall instead be calculated using the standard Net Operating Income as set forth in this definition above.
"Net Proceeds": Has the meaning given to such term in the Security Instrument.
New York Banking Day”: Means any date (other than a Saturday or Sunday) on which commercial banks are open for business in New York, New York.
Non-Defaulting Lender”: Means any Lender that is not a Defaulting Lender.
"Non-Revolving Portion": Shall mean, at any time, and from time to time, seventy-five percent (75%) of the then Aggregate Commitment (as such Aggregate Commitment may decrease pursuant to the terms of this Agreement).
"Non-U.S. Lender": Means a Lender that is not a United States person as defined in Section 7701(a)(30) of the Code.
"Notes": Means, collectively, the Promissory Notes executed and delivered by Borrower to the order of each of the Lenders, substantially in the form of Exhibit I, as the same may be amended, restated, supplemented or replaced from time to time.
"Notice": Has the meaning given to such term in Section 10.7.
"Obligations”: Means, collectively: (a) Borrower’s obligations for the payment of the Loan, including interest and other charges, all Fees and all Lender-Provided Swaps (to the extent entered into by Borrower or secured by the Project, in each case to the extent approved by the Lenders); and (b) the payment and performance of each and every obligation of Borrower contained herein and in any other Loan Document, provided, that (x) obligations in respect of Lender-Provided Swaps shall be “Obligations” only if previously approved by the Lenders and owed to U.S. Bank or one of its Affiliates or if Administrative Agent has received notice in the form of Exhibit M from the relevant Lender, together with such supporting documentation as Administrative Agent reasonably requests and (y) "Obligations" excludes all Excluded Swap Obligations and all obligations under the Indemnity and the Guaranties.
"OFAC": Means the U.S. Department of the Treasury's Office of Foreign Assets Control, and any successor thereto.
Operating Account”: Means the account maintained by Borrower with Administrative Agent into which the gross revenues from the Project are deposited.
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"Operating Budget and Business Plan": Means a detailed listing of all anticipated annual income and expenses from and for managing, maintaining and operating the Project, prepared by Borrower or its agent and in form and substance acceptable to Administrative Agent.
"Operating Expenses": Shall mean any and all costs and expenses incurred in connection with the Project during the applicable time period in question, including without limitation (a) taxes and assessments imposed upon the Project payable by Borrower which are reasonably allocable to such time period, (b) bond assessments which are reasonably allocable to such time period, (c) insurance premiums for casualty insurance and liability insurance carried in connection with the Project which are reasonably allocable to such time period, and (d) operating expenses incurred by Borrower for the management, operation, cleaning, leasing, maintenance and repair of the Project which are reasonably allocable to such time period. Operating Expenses shall not include any interest, principal, loan fees, extension fees or other payments on the Loan or capital expenditures (such as building improvements, tenant improvements or leasing costs).
"Operating Statement": Means, for the Project, a current, detailed and unaudited statement of income and expenses from and for managing, maintaining and operating the Land and the Improvements (or any portion thereof) pertaining to the Project, in form and substance acceptable to Administrative Agent, certified as true, correct and complete by the Borrower's advisor's account controller or any other authorized agent, and expressly showing all variations from the Operating Budget and Business Plan for the period covered thereby.
"Other Taxes": Means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.
"Participant": Has the meaning given such term in Section 10.11(a).
"Participant Register": Has the meaning given such term in Section 10.11(c).
"PATRIOT Act": Means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001), as amended from time to time, and any successor statute and any regulations promulgated thereunder.
"Pension Plan": Means each employee benefit plan covered by Title IV of ERISA whether now in existence or hereafter instituted, of Borrower or any ERISA Affiliate.
"Permitted Encumbrances": Means the Liens, charges and encumbrances on title to the Land listed on Schedule B-I to the Title Policy on the Closing Date and more particularly described on Exhibit C, and such other matters of title thereafter approved by Administrative Agent in writing. In no event will any mechanics', labor, materialmen's and other similar lien claims constitute Permitted Encumbrances; provided in no event will Borrower be in default hereunder with respect to the foregoing (even if such liens and claims are not Permitted Encumbrances) to the extent any such liens or claims are being contested in accordance with the terms of this Agreement or any other Loan Documents.

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"Person": Means an individual, corporation, partnership, limited liability company, joint venture, trust or unincorporated organization, or a government or any agency or political subdivision thereof.
"Post-Foreclosure Plan": Has the meaning given to such term in Section 9.9.
Prime Rate”: Means the prime rate of interest announced from time to time by U.S. Bank or its parent (which is not necessarily the lowest rate charged to any customer), changing when and as such prime rate changes..
Project”: Means the Land, the Improvements and the Equipment.
"Project Financing Statement": Means the UCC-1 financing statements required by Administrative Agent in connection with the establishment and maintenance of the Loan.
Property” Means, any and all property, whether real, personal, tangible, intangible, or mixed, of a Person, or other assets owned, leased or operated by such Person.
Property Management Agreement”: Means the Property Management Agreement dated December 18, 2013 by and between Borrower and Property Manager, as amended by the First Amendment to Property Management Agreement dated as of August 20, 2020, as the same may be further amended, restated, supplemented or modified from time to time.
Property Manager”: Means Transwestern Commercial Services Illinois, L.L.C., d/b/a Transwestern, a Delaware limited liability company. In addition to the foregoing Property Manager employed by Borrower for the Project as of the date hereof, Administrative Agent hereby approves of any of the following as Borrower’s Property Manager: (i) CB Richard Ellis, Inc., a Delaware corporation; (ii) PM Realty Group, L.P.; (iii) Jones Lang LaSalle; (iv) Cassidy Turley; (v) Cushman and Wakefield; and (vii) Hines.
"Pro Rata Share": Means, with respect to any Lender, a portion equal to a fraction the numerator of which is such Lender's Commitment and the denominator of which is the Aggregate Commitment; provided, however, that if at the time of determination the Commitments have terminated or been reduced to zero, the "Pro Rata Share" of each Lender means the percentage obtained by dividing (a) the aggregate amount of the outstanding Advances of such Lender at such time by (b) the aggregate amount of the outstanding Advances of all Lenders at such time; and provided, further, that any outstanding Special Advance made by a Lender will be included in the determining the aggregate amount of outstanding Advances of such Lender pursuant to clause (a).
"Protective Advance": Means all sums expended by Administrative Agent in accordance with the provisions of Section 9.8 to (a) protect the priority, validity and enforceability of any lien on, and security interests in, any Collateral and the instruments evidencing and securing the Obligations, (b) prevent the value of any Collateral from being diminished, or (c) protect any of the Collateral from being materially damaged, impaired, mismanaged or taken.

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PTE”: Means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
"Purchasers": Has the meaning set forth in Section 10.10(a).
QFC”: Has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).
QFC Credit Support”: Is defined in Section 10.30.
Rate Adjustment Date”: Means the first day of each month.
Recipient”: Means (a) Administrative Agent or (b) any Lender, as applicable.
"RCRA": Means the Solid Waste Disposal Act, as amended by the Resource Conservation Recovery Act and the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. § 6901 et seq.), as amended from time to time, and any successor statute, and any regulations promulgated thereunder from time to time.
"Register": Has the meaning given such term in Section 10.10(d).
"Related Party": Means any one or more of the following: (a) Guarantor, (b) an Affiliate of Borrower or Guarantor, or (c) any of the shareholders, partners, members or other equity holders of Borrower, Guarantor, and any Affiliate of any of the foregoing.
"Release": Means, without limitation, (a) any intentional, unintentional, knowing or unknowing presence, spilling, leaking, pumping, pouring, emitting, emptying, discharging, migrating, injecting, escaping, leaching, dumping, or disposing of any Hazardous Substance at, on or into the indoor or outdoor environment or otherwise in, onto, from or about the air, water (including surface waters and groundwater), soils, subsoils or any other surface or media on-site or off-site, and (b) the abandonment or discarding of barrels, drums, containers, underground tanks, or any other receptacles ever containing any Hazardous Substances.
Relevant Governmental Body”: Means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto
"Rental Income": Shall mean the accrued rental income earned for the applicable period of time in question and paid (whether in the applicable period of time in question or another), excluding any adjustments for straight-line rents, above and below-market rent amortization, and lease incentive amortization by Borrower for the applicable period of time in question from the tenant leases of the Improvements which are then in effect (and as to which the tenants thereunder are paying rent).
"Required Appraisal Standard": Means that, with respect to any appraisal, such appraisal must be: (a) ordered by and addressed to Administrative Agent, (b) prepared by a MAI licensed appraiser, engaged by Administrative Agent, (c) in conformance with the regulations promulgated by the appropriate federal regulatory agency pursuant to Section 1110 of the
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Financial Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. § 3339), as amended from time to time, and the regulations thereunder, and (d) in form and substance satisfactory to Administrative Agent.
"Required Lenders": Non-Defaulting Lenders (other than Pfandbrief Defaulting Lenders in compliance with the requirements set forth in the definition of Defaulting Lenders) holding, in the aggregate, not less than sixty-six and two-thirds of one percent (66 ⅔%) of the Aggregate Commitment or, if no such principal amount is then outstanding, not less than sixty-six and two-thirds of one percent (66 ⅔%) of the Commitment Percentages; provided, notwithstanding the foregoing, if at any time there are two or more Non-Defaulting Lenders, at least two Lenders holding an aggregate of not less than 66 ⅔% of the Aggregate Commitment shall be required to constitute the Required Lenders. The Commitments and Pro Rata Shares of the Loan of any Defaulting Lender(s) (other than Pfandbrief Defaulting Lenders in compliance with the requirements set forth in the definition of Defaulting Lenders) will be disregarded in determining Required Lenders at any time.
Resolution Authority”: means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
"Restricted Party": Means Borrower, Guarantor, and any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner, of Borrower or Guarantor, from time to time.
"Revolving Portion": Shall mean, at any time, and from time to time, that portion of the then Aggregate Commitment that is not the Non-Revolving Portion, which shall include the Tenant Improvement Allocation, provided the amount allocated to the Tenant Improvement Allocation shall only be available as provided in Section 3.5, and shall not be available on a revolving basis unless and until the conditions set forth in Section 3.6 have been satisfied, and an amount equal to the Restricted Commitment shall not be available for disbursement, unless and until a Successful Syndication has occurred.
"Sanctions": Means sanctions administered or enforced from time to time by the U.S. government, including those administered by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty's Treasury or other relevant sanctions authority.
"Second Option Maturity Date": Has the meaning given to such term in Section 2.9.
Security Instrument”: Means the first priority mortgage, deed of trust, deed to secure debt with assignment of leases or similar security agreement, dated as of the date of this Agreement, executed and delivered by Borrower as security for the Obligations which encumbers the Project, as the same may be amended, restated, supplemented or modified from time to time.
"Security Interest": Means any lien, pledge, mortgage, encumbrance, charge or security interest of any kind whatsoever (including the lien or retained security title of a conditional vendor) whether arising under a security instrument or as a matter of law, judicial process or
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otherwise or the agreement by Borrower, Guarantor, any of its or their Subsidiaries, or any other Person, to grant any lien, security interest or pledge, mortgage or encumber any asset.
"Special Advance": Has the meaning given to such term in Section 9.23.
"Subsidiary": Means, with respect to any Person, (a) any corporation more than 50% of the outstanding securities having ordinary voting power of which is at the time owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (b) any partnership, limited liability company, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which is at the time so owned or controlled. Unless otherwise expressly provided, all references herein to a "Subsidiary" means the respective Subsidiaries of Borrower.
Successful Syndication” shall mean that U.S. Bank has successfully syndicated $40,000,000 (or such lesser amount in its sole discretion to the extent approved by U.S. Bank) of its Commitment to an Eligible Assignee.
Supported QFC”: Is defined in Section 10.30.
Survey”: Means a survey of the Land and the Improvements, as applicable, certified in a manner acceptable to Administrative Agent, and otherwise in form and substance satisfactory to Administrative Agent.
Swap”: Means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, fixed-price physical delivery contracts, whether or not exchange traded, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, including any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement, including any such obligations or liabilities under any such master agreement.
Swap Obligations”: Means, with respect to any Person, any and all obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swaps and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap.

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"Swap Counterparty": Means a Lender or an Affiliate of a Lender, in its capacity as counterparty under any Lender-Provided Swap.
Syndication Failure” shall have the meaning set forth in Section 2.1(g).
"Taxes": Means any and all present or future taxes, duties, levies, imposts, deductions, fees, assessments, charges or withholdings, and any and all liabilities with respect to the foregoing, including interest, additions to tax and penalties applicable thereto.
Temporary Permitted Debt Service Coverage Ratio Shall mean 1.1 to 1.0.
Tenant Improvements All finish improvements to the Improvements for tenant space within the Improvements.
Tenant Improvement Allocation Shall have the meaning ascribed to such term in Section 2.1(f) of this Agreement.
"Title Company": Means Commonwealth Land Title Insurance Company.
Title Policy”: Means an ALTA extended coverage mortgagee’s title insurance policy (ALTA Loan Policy 2006 Loan Policy of Title Insurance, or equivalent, or other form satisfactory to Administrative Agent), with such endorsements as Administrative Agent may require, issued by the Title Company in the amount of the Loan insuring the lien of the Security Instrument to be a first and prior lien upon the Project as security for all Advances of the Loan pursuant to the terms of this Agreement subject only to the Permitted Encumbrances and insuring against any lien claims that could arise out of the construction of any Improvements, including, without limitation, all mechanics', labor, materialmen's and other similar lien claims.
Treasury Rate”: Means, as of any date, the rate of interest per annum on U.S. Treasury Notes having a maturity of 10 years as shown in the 10 year listing in the “this week” column under the heading “Treasury Constant Maturities”, of the FEDERAL RESERVE statistical release FORM H 15 which has been most recently published (or, if for any reason that published rate as of a date not more than 10 days prior to the date of determination is not available, another rate determined by Administrative Agent to be comparable, in its discretion, will be used for this purpose).
U.S. Bank”: Has the meaning given to such a term in the introductory paragraph hereof.
U.S. Special Resolution Regimes”: Is defined in Section 10.30.
"UCC": Means the Uniform Commercial Code enacted in the State of Illinois or, as applicable, the Uniform Commercial Code enacted in the applicable jurisdiction, as amended from time to time, and any successor statute, and any regulations promulgated thereunder from time to time.
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"UETA": Means the Uniform Electronic Transactions Act as in effect in the State of Illinois, or any applicable state statute covering such matters, as amended from time to time, and any successor statute, and any regulations promulgated thereunder from time to time.
UK Financial Institution”: Means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
UK Resolution Authority”: Means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
"Undisclosed Administration": Means in relation to a Lender the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender is subject to home jurisdiction supervision if applicable Law requires that such appointment is not to be publicly disclosed.
Write-Down and Conversion Powers”: Means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.2    Singular and Plural Terms. Any defined term used in the plural in any Loan Document refers to all members of the relevant class and any defined term used in the singular refers to any number of the members of the relevant class.
Section 1.3    Accounting Principles. Any accounting term used and not specifically defined in any Loan Document will be construed in conformity with, and all financial data required to be submitted under any Loan Document must be prepared in conformity with GAAP (including Financial Accounting Standards Board Accounting Standards Codification 840 (Leases)) or in accordance with such other principles or methods as are consistently applied and are reasonably acceptable to Administrative Agent. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and Borrower, Administrative Agent or the Required Lenders so requests, Administrative Agent, Lenders and Borrower must negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders), provided that, until so amended, such ratio or requirement will continue
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to be computed in accordance with GAAP prior to such change therein and Borrower must provide to Administrative Agent and the Lenders reconciliation statements showing the difference in such calculation, together with the delivery of monthly, quarterly and annual financial statements required hereunder.
Section 1.4    References and Other Terms. Any reference to any Loan Document or other document includes such document both as originally executed and as it may from time to time be amended, restated, supplemented or modified. References herein to Articles, Sections and Exhibits will be construed as references to this Agreement unless a different document is named. References to subparagraphs will be construed as references to the same Section in which the reference appears. The term “document” is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms “including” and “include” mean “including (include) without limitation.” The term “shall” has the same meaning as the term “will.” The terms “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement refers to this Agreement as a whole and not to any particular provision of this Agreement.
Section 1.5    Exhibits Incorporated. All exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference.
Section 1.6    Inconsistency. In the event of any inconsistency between the provisions of this Agreement and the provisions of any of the other Loan Documents, the provisions of this Agreement govern (provided that, notwithstanding anything that may be construed to the contrary herein, all obligations of Borrower and Guarantor under the Indemnity and all obligations of Guarantor under the Guaranties are not secured by the Security Instrument).
Section 1.7    Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it will be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person will be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
Section 1.8    LIBOR Notification. The Loan Rate is determined by reference to the LIBOR Rate, which is derived from LIBOR. Section 2.5(b) provides a mechanism for (a) determining an alternative rate of interest if LIBOR is no longer available or in the other circumstances set forth in Section 2.5(b) and (b) modifying this Agreement to give effect to such alternative rate of interest. Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to LIBOR or other rates in the definition of LIBOR Rate or with respect to any alternative or successor rate thereto, or replacement rate thereof, including whether any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.5(b), will have the same value as, or be economically equivalent to, the LIBOR Rate.

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ARTICLE II
LOAN
Section 2.1    Principal.
(a)Subject to the terms and conditions hereof, the Lenders severally agree to lend to Borrower (each in accordance with their Pro Rata Shares) and Borrower agrees to borrow from the Lenders, the proceeds of the Loan, from time to time in accordance with the terms hereof until the Maturity Date; provided, however, (i) no Lender will be required to fund more than such Lender's respective Commitment and (ii) the aggregate amount of all Advances may not exceed, at any time, the then applicable Availability Amount (taking into account changes in the Aggregate Commitment as provided in this Agreement). In no event will the Lenders be obligated hereunder to lend to Borrower more than Borrower has qualified to receive under the terms of this Agreement. Should the outstanding principal balance of the Loan ever, at any time, exceed the then applicable Availability Amount, unless Borrower is in a Compliance Period and is subject to the paydown requirements in accordance with Section 6.33, Borrower shall pay down the outstanding principal amount of the Loan in accordance with Section 6.32 so that such outstanding principal balance is equal to or lesser than the Availability Amount. As of the date hereof, the Aggregate Commitment is $375,000,000 and the initial Revolving Portion is $93,750,000 (a portion of which shall be held back as part of the Tenant Improvement Allocation which has not yet been funded and shall be funded subject to the satisfaction of the conditions set forth in Section 3.5 below), and the Non-Revolving Portion is initially $281,250,000. Amounts borrowed under the Revolving Portion and repaid can be reborrowed (other than the portion allocated to the Tenant Improvement Allocation until the conditions in Section 3.6 have been met), subject to the satisfaction of the terms and conditions set forth in this Agreement. The Non-Revolving Portion may not be repaid and reborrowed.
(b)All Advances made by the Lenders will be evidenced by the Notes. The entire principal balance of each of the Notes will mature and be payable on the Maturity Date.
(c)Administrative Agent will enter in its records the amount of each Advance, the rate of interest borne on each Advance, and the payments of the principal balance received by Administrative Agent, for the benefit of itself and the Lenders, and such records will be conclusive evidence of the subject matter thereof, absent manifest error.
(d)On the Maturity Date, the entire principal amount of the Loan, and all accrued and unpaid interest, and all other sums owing under the Loan Documents not otherwise paid when due, shall be immediately due and payable in full.
(e)Borrower shall use the proceeds of the Loan solely for working capital, capital expenditures, real property acquisitions and other lawful corporate purposes (and in no event shall any proceeds of the Loan be used for personal, family or household purposes).
(f)The Loan contains an allocation for Tenant Improvements and leasing commissions relating to the Accenture Lease (the "Tenant Improvement Allocation") in the amount of $30,000,000 and all or some of which may be disbursed by Administrative Agent in
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accordance with the terms and conditions set forth in Article III below. For avoidance of doubt, the amount of the Tenant Improvement Allocation shall be reduced, in each case, on a dollar-for-dollar basis, as Borrower continues to draw on the same, in connection with any Tenant Improvements and Leasing Commissions relating to the Accenture Lease and/or any Other Accenture Work and such draws shall reduce the Tenant Improvement Allocation and shall thereafter become a part of the Revolving Portion, and Borrower may re-pay and re-borrow such funds. To the extent Borrower spends any other funds (separate from Loan funds) to pay such Tenant Improvements and Leasing Commissions relating to the Accenture Lease and/or any Other Accenture Work, so long as Administrative Agent has approved and received reasonably acceptable evidence of same, and the Title Policy has been endorsed or otherwise covers the Aggregate Commitment, such payment shall also reduce the Tenant Improvement Allocation and the amount reduced shall thereafter become a part of the Revolving Portion as set forth above.
(g)$40,000,000 of the Commitment held by U.S. Bank (the “Restricted Commitment”) is subject to cancellation or reduction in the event a Successful Syndication is not achieved within 120 days of the Closing Date (a “Syndication Failure”). In the event of a Syndication Failure (or a partial Successful Syndication where less than the full Restricted Commitment is syndicated), U.S. Bank’s Commitment may be reduced by up to $40,000,000 (in U.S. Bank’s sole discretion), availability for such funds would be permanently terminated, and the Pro Rata Share and Commitment allocation of the Lenders shall be reallocated accordingly (and Schedule 1 will be updated and appropriate adjustments to each Lender’s portion of the outstanding Loan amount shall be made to align such Lender’s portion with the adjusted Pro Rata Shares (which, for purposes of clarification, may result in a Lender having to disburse additional funds to Administrative Agent in connection with any such readjustment). Notwithstanding anything else to the contrary in this Agreement, the availability of the Revolving Portion shall be reduced by the amount of the Restricted Commitment unless and until a Successful Syndication has been achieved so that, the maximum availability until such time under the Loan shall be $305,000,000 plus any availability with respect to the Tenant Improvement Allocation, and shall increase only to the extent of a Successful Syndication for the portion that was syndicated. In the event of a Syndication Failure as to the entire Restricted Commitment, the updated initial Revolving Portion would be $83,750,000 (a portion of which shall be held back as part of the Tenant Improvement Allocation which has not yet been funded and shall be funded subject to the satisfaction of the conditions set forth in Section 3.5 below), and the updated Non-Revolving Portion would be $251,250,000, and Schedule 1 Commitments would be updated as reflected thereon. If a partial Successful Syndication occurs, the Revolving Portion and Non-Revolving Portion shall be revised so that the Non-Revolving Portion is equal to 75% of the then applicable Aggregate Commitment.
Section 2.2    Interest.
(a)Borrower will pay interest on the outstanding principal balance of each Advance computed at the Loan Rate. Interest at the Loan Rate will accrue on each and every Advance from and including the date it is made by the Lenders and to but excluding the date such Advance is repaid in the manner specified herein. Interest on each Advance computed at the Loan Rate will be payable, as accrued, on the first day of each calendar month, commencing on the first day of the next calendar month following the calendar month in which the initial Advance is made hereunder or (as applicable) on the date of any prepayment of any Advance
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(whether or not as a result of acceleration) on the amount prepaid, and all unpaid, accrued interest must be paid in full at the time all Advances are required to be paid in full. Interest on all Advances and fees will be calculated for actual days elapsed on the basis of a 360-day year, except that interest computed by reference to the Alternate Base Rate will be calculated for actual days elapsed on the basis of a 365/366-day year.
(b)[Intentionally Deleted.]
(c)Notwithstanding anything to the contrary in Section 2.2(a), if any Event of Default has occurred and is continuing, then the aggregate amount of all outstanding Advances and, to the extent permitted by law, all accrued and unpaid interest in respect thereof, and any other amounts due pursuant to the Loan Documents, will with respect to any Event of Default that occurs under Section 8.1(f), and will, with respect to any other Event of Default, at the option of the Required Lenders and without notice to Borrower, accrue interest at the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein.
(d)In the event that the interest and/or charges in the nature of interest, if any, provided for by this Agreement or by any other Loan Document, contravenes a legal or statutory limitation applicable to the Loan, if any, Borrower will pay only such amounts as would legally be permitted; provided, however, that if the defense of usury and all similar defenses are unavailable to Borrower, Borrower will pay all amounts provided for herein. If, for any reason, amounts in excess of the amounts permitted in the foregoing sentence have been paid, received, collected or applied hereunder, whether by reason of acceleration or otherwise, then, and in that event, any such excess amounts will be applied to principal, unless principal has been fully paid, in which event such excess amount will be refunded to Borrower.
Section 2.3    Payments.
(a)All payments and prepayments of principal, interest, fees, expenses and other Obligations under the Loan Documents payable to Administrative Agent or the Lenders must be made, without deduction, setoff, or counterclaim, in immediately available funds on the dates due, to Administrative Agent at the office specified opposite its signature below, or at any other Lending Installation of Administrative Agent specified in writing by Administrative Agent to Borrower. Each payment delivered to Administrative Agent for the account of any Lender must be delivered promptly by Administrative Agent to such Lender at its address opposite its signature below or any Lending Installation specified in a notice received by Administrative Agent from such Lender. Whenever any payment to be made hereunder or under any other Loan Document is stated to be due on a day which is not a Business Day, such payment must be made on the next succeeding Business Day and such extension of time will be included in the computation of any interest or fees. Borrower authorizes Administrative Agent to charge Borrower’s debt service account maintained at U.S. Bank for the amount of any payment under the Loan or other amount owing pursuant to any of the other Loan Documents.
(b)After an Event of Default has occurred, all amounts received by Administrative Agent will be applied by Administrative Agent in accordance with Section 8.3 hereof.

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(c)Any Net Proceeds received by Administrative Agent which Administrative Agent is not required to make available to Borrower in accordance with the Security Instrument will be applied by Administrative Agent in such amounts, order and priority as the Required Lenders determine in their discretion, subject to Section 9.19 hereof.
(d)Notwithstanding anything to the contrary set forth above in this Section 2.3, Excluded Swap Obligations with respect to any Guarantor may not be paid with amounts received from such Guarantor or its assets.
(e)Unless Borrower notifies Administrative Agent prior to the date on which it is scheduled to make a payment to Administrative Agent of a payment of principal, interest or fees to Administrative Agent for the account of the Lenders, that it will not intend to make such payment, Administrative Agent may assume that such payment has been made. Administrative Agent may, but is not obligated to, make the amount of such payment available to Lenders in reliance upon such assumption. If Borrower has not in fact made such payment to Administrative Agent, any Lender receiving such payment will, on demand by Administrative Agent, repay to Administrative Agent the amount so distributed to such Lender with interest thereon in respect of each day during the period commencing on the date such amount was distributed by Administrative Agent until the date Administrative Agent recovers such amount at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation.
Section 2.4    Prepayment.
(a)The unpaid principal balance of the Loan and accrued interest thereon may be prepaid in full or in part, without premium or penalty (other than as specified in this Section 2.4), upon not less than five (5) Business Days’ prior written notice to Administrative Agent given in accordance with the terms hereof. Each notice must specify the date of prepayment and the principal amount of the prepayment. Promptly following receipt of any such notice, Administrative Agent will advise the Lenders of the contents thereof. Subject to Section 9.19, any partial prepayment will be made for the account of the Lenders pro rata in accordance with their respective Pro Rata Shares and reduce (in the case of a paydown of the Non-Revolving Portion) each Lender’s Commitment by such Lender’s Pro Rata Share of a like amount. Notwithstanding anything else in this Agreement to the contrary, in all events, the applicable counterparty to the Swap must pay all sums payable with respect to any Swap termination or Swap breakage fees and all other costs relating to the Loan.
(b)In addition to all other sums then owing hereunder, in connection with the payment of the Loan in whole, except as set forth in the proviso below, Borrower shall pay to Administrative Agent for the benefit of Lenders (i) an exit fee equal to one-half percent (0.5%) of the principal amount of the Loan that is paid prior to November 1, 2021, (ii) an exit fee equal to one-quarter percent (0.25%) of the principal amount of the Loan that is paid on and after November 1, 2021 but prior to May 1, 2022, and (iii) no exit fee shall be due and payable for any payment that is made on or following May 1, 2022; provided, however, that no exit fee shall be payable in connection with (1) any prepayment of the Loan or any reduction of the Aggregate Commitment to the extent such prepayment or reduction is made to meet any financial test or
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covenant, (2) a reduction of the Aggregate Commitment made pursuant to Section 10.3 below, or (3) any prepayment of the Loan as a result of an arms-length third party sale of the Project.
(c)So long as no Event of Default exists, in the event that any payment of the Loan would be applied against the Non-Revolving Portion, Administrative Agent shall use commercially reasonably efforts to notify Borrower and confirm Borrower would like the payment so applied, provided in no event shall Administrative Agent have any liability for failing to do so.
Section 2.5    Availability of LIBOR; Adequacy of Interest Rate.
(a)Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if Administrative Agent in good faith determines (which determination shall be conclusive absent manifest error) that:
(i)deposits of a type and maturity appropriate to match fund Advances at the LIBOR Based Rate are not available to such Lenders in the relevant market, or
(ii)the LIBOR Based Rate is not ascertainable or available (including because the applicable Reuters Screen (or on any successor or substitute page on such screen) is unavailable) or does not adequately and fairly reflect the cost of making or maintaining Advances at the LIBOR Based Rate,
then Administrative Agent shall suspend the availability of Advances at the LIBOR Based Rate and require any affected Advances to be repaid or to bear interest at the Base Rate.
(b)Notwithstanding the foregoing or anything to the contrary in this Agreement or any other Loan Document, if Administrative Agent in good faith determines (which determination shall be conclusive absent manifest error) or if Borrower notifies Administrative Agent in writing that Borrower has determined, that any one or more of the following (each, a “Benchmark Transition Event”) has occurred:
(i)the circumstances set forth in Section 2.5(a)(ii) have arisen (including a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR described in clause (ii) of this Section 2.5(b) announcing that LIBOR is no longer representative) and such circumstances are unlikely to be temporary,
(ii)ICE Benchmark Administration (or any Person that has taken over the administration of LIBOR for deposits in Dollars that is acceptable to Administrative Agent) discontinues its administration and publication of LIBOR for deposits in Dollars,
(iii)a public statement or publication of information by or on behalf of the administrator of LIBOR described in clause (ii) of this Section 2.5(b) announcing that such administrator has ceased or will cease as of a specific date to provide LIBOR (permanently or indefinitely); provided that, at the time of such statement, there is no successor administrator that is acceptable to Administrative Agent that will continue to provide LIBOR after such specified date,
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(iv)a public statement by the supervisor for the administrator of LIBOR described in clause (ii) of this Section 2.5(b), the U.S. Federal Reserve System, an insolvency official with jurisdiction over such administrator for LIBOR, a resolution authority with jurisdiction over such administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over such administrator for LIBOR, which states that such administrator of LIBOR has ceased or will cease as of a specific date to provide LIBOR (permanently or indefinitely); provided that, at the time of such statement or publication, there is no successor administrator that is acceptable to Administrative Agent that will continue to provide LIBOR after such specified date; or
(v)syndicated credit facilities substantially similar to the credit facilities under this Agreement being executed at such time, or that include language substantially similar to that contained in this Section 2.5(b), are being executed or amended, as the case may be, to incorporate or adopt a new benchmark interest rate to replace LIBOR for deposits in Dollars,
then Administrative Agent and Borrower may amend this Agreement to replace the LIBOR Rate with a Benchmark Replacement. Notwithstanding anything to the contrary in Section 10.12, any such amendment with respect to a Benchmark Transition Event (A) pursuant to any of clauses (i) through (iv) of this Section 2.5(b) will become effective without any further action or consent of any other party to this Agreement at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after Administrative Agent has posted such proposed amendment to all Lenders and Borrower so long as Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders or (B) pursuant to clause (v) of this Section 2.5(b), will become effective without any further action or consent of any other party to this Agreement on the date that Lenders comprising the Required Lenders have delivered to Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBOR with a Benchmark Replacement pursuant to this Section 2.5(b) will occur prior to the date set forth in the applicable amendment.
In connection with the implementation of a Benchmark Replacement, Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
Administrative Agent will promptly notify Borrower and the Lenders of (1) any occurrence of a Benchmark Transition Event (other than pursuant to clause (v) of this Section 2.5(b)), (2) the implementation of any Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming Changes and (4) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Administrative Agent or the Lenders pursuant to this Section 2.5(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.5(b).

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Upon notice to Borrower by Administrative Agent in accordance with Section 10.7 of the commencement of a Benchmark Unavailability Period and until a Benchmark Replacement is determined in accordance with this Section 2.5(b), any request for an Advance may be revoked by the Borrower and if not revoked such Borrowing shall bear interest at the Base Rate.
Section 2.6    Yield Protection; Capital Adequacy.
(a)Increased Costs. If any Change in Law shall:
(i)impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the LIBOR Rate);
(ii)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Excluded Taxes and (C) Other Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, within five (5) Business Days following written request of such Lender or other Recipient, Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b)Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered
(c)Certificates for Reimbursement; Delay in Requests. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 2.6 and delivered to Borrower, shall be conclusive absent manifest error. Borrower shall pay such Lender the amount shown as due on
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any such certificate within 10 days after receipt thereof. Failure or delay on the part of any Lender to demand compensation pursuant to Section 2.6 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that Borrower shall not be required to compensate a Lender pursuant to Section 2.6 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
Section 2.7    Fees. In addition to the interest and other consideration to Administrative Agent and the Lender herein, Borrower agrees to pay to Administrative Agent the Fees, as and when due in accordance with the terms of the Loan Documents. No termination or reduction of the Commitments and no failure of Borrower to satisfy the conditions set forth in Article III will entitle Borrower to a refund of any portion of such Fees.
Section 2.8    First Extension of Maturity Date. At the option of Borrower, the Initial Maturity Date may be extended for a period of twelve (12) months to November 2, 2024 (the "First Option Maturity Date") if all of the following conditions are satisfied, in the discretion of Administrative Agent, as to such extension:
(a)Borrower has given written notice of their request for an extension to Administrative Agent by no earlier than 120 days and by no later than 45 days prior to the Initial Maturity Date;
(b)On or prior to the Initial Maturity Date, Borrower pays to Administrative Agent the Extension Fee, for the ratable benefit of the Lenders, and all other Fees due and payable to Administrative Agent hereunder and under the other Loan Documents, together with all costs and expenses incurred by or on behalf of Administrative Agent in connection with such extension, including appraisal fees, internal or external appraisal review fees, inspection fees, legal fees, survey costs, costs of environmental studies and reports, and such other professional services, any of which Administrative Agent requires or are deemed necessary by Administrative Agent pursuant to Administrative Agent's or any Lender's internal policies or pursuant to applicable Laws, rules or regulations; the payment by Borrower of these costs and expenses will not be credited, in any way or to any extent, against any portion of the outstanding balance of the Loan;
(c)As of the date of request and on the Initial Maturity Date there exists no Default or Event of Default;
(d)As of the Initial Maturity Date, the outstanding principal balance of the Loan shall not exceed the then current Availability Amount (based on evidence satisfactory to Administrative Agent, including updated Appraisals of the Projects commissioned by Administrative Agent and approved by Administrative Agent and Lenders); provided, however, if the outstanding principal balance of the Loan exceeds the then current Availability Amount, Borrower may pay down the outstanding principal balance of the Loan prior to the Initial Maturity Date to an amount equal to or less than the Availability Amount;
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(e)Administrative Agent has obtained, at Borrower’s sole cost and expense, an Appraisal, which Appraisal must evidence compliance with the Loan to Value Requirement; provided that, in the event the Loan to Value Requirement is not satisfied, Borrower will have the option to (i) pay down the principal balance of the Loan in accordance with Section 2.4 hereof, and/or (ii) to agree to cancel the unfunded portion, if any, of the Aggregate Commitment, in such an amount as is necessary to satisfy the Loan to Value Requirement, in which event each Lender’s Commitment will automatically be reduced by such Lender’s Pro Rata Share of the total reduction in the Aggregate Commitment;
(f)The Debt Service Coverage Ratio, calculated as of the last applicable required quarterly reporting period, is greater than or equal to 1.25:1.00; provided that, in the event that such Debt Service Coverage Ratio requirement is not satisfied, Borrower will have the option to (i) pay down the principal balance of the Loan in accordance with Section 2.4 hereof, and/or (ii) to agree to cancel the unfunded portion, if any, of the Aggregate Commitment, in such an amount as is necessary to satisfy such Debt Service Coverage Ratio requirement, as such amount is reasonably determined by Administrative Agent, in which event each Lender’s Commitment will automatically be reduced by such Lender’s Pro Rata Share of the total reduction in the Aggregate Commitment;
(g)Borrower shall be in compliance with the financial covenants contained in the Loan Documents; Guarantor shall be in compliance with all of the financial covenants set forth in the Guaranty, and Administrative Agent shall have received a certificate from Guarantor certifying such compliance and such other information reasonably required by Administrative Agent to confirm that Guarantor is in compliance with such financial covenants to the extent such information is required pursuant to Section 6.15 below; and
(h)Borrower causes to be delivered to Administrative Agent, for the benefit of itself and the Lenders, at Borrower’s expense, an endorsement to or reissuance of the Title Policy bringing current the effective date of such coverage and stating that the coverage afforded by the Title Policy is not affected because of such extension, subject only to the Permitted Encumbrances.
In the event that, for any reason, Borrower fails to satisfy all of the foregoing conditions, the Loan will mature and be due and payable in full on the Initial Maturity Date.
Section 2.9    Second Extension of Maturity Date. At the option of Borrower, the First Option Maturity Date may be extended for a period of twelve (12) months to November 2, 2025 ("Second Option Maturity Date") if all of the following conditions are satisfied, in the discretion of Administrative Agent, as to such extension:
(a)Borrower has given written notice of their request for an extension to Administrative Agent by no earlier than 120 days and by no later than 45 days prior to the First Option Maturity Date;
(b)On or prior to the First Option Maturity Date, Borrower pays to Administrative Agent the Extension Fee, for the ratable benefit of the Lenders, and all other Fees due and payable to Administrative Agent hereunder and under the other Loan Documents, together with
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all costs and expenses incurred by or on behalf of Administrative Agent in connection with such extension, including appraisal fees, internal or external appraisal review fees, inspection fees, legal fees, survey costs, costs of environmental studies and reports, and such other professional services, any of which Administrative Agent requires or are deemed necessary by Administrative Agent pursuant to Administrative Agent's or any Lender's internal policies or pursuant to applicable Laws, rules or regulations; the payment by Borrower of these costs and expenses will not be credited, in any way or to any extent, against any portion of the outstanding balance of the Loan;
(c)As of the date of request and on the First Option Maturity Date there exists no Default or Event of Default;
(d)As of the First Option Maturity Date, the outstanding principal balance of the Loan shall not exceed the then current Availability Amount (based on evidence satisfactory to Administrative Agent, including updated Appraisals of the Projects commissioned by Administrative Agent and approved by Administrative Agent and Lenders); provided, however, if the outstanding principal balance of the Loan exceeds the then current Availability Amount, Borrower may pay down the outstanding principal balance of the Loan prior to the Initial Maturity Date to an amount equal to or less than the Availability Amount;
(e)Administrative Agent has obtained, at Borrower’s sole cost and expense, an Appraisal, which Appraisal must evidence compliance with the Loan to Value Requirement; provided that, in the event the Loan to Value Requirement is not satisfied, Borrower will have the option to (i) pay down the principal balance of the Loan in accordance with Section 2.4 hereof, and/or (ii) to agree to cancel the unfunded portion, if any, of the Aggregate Commitment, in such an amount as is necessary to satisfy the Loan to Value Requirement, in which event each Lender’s Commitment will automatically be reduced by such Lender’s Pro Rata Share of the total reduction in the Aggregate Commitment;
(f)The Debt Service Coverage Ratio, calculated as of the last applicable required quarterly reporting period is greater than or equal to 1.25:1.00; provided that, in the event that such Debt Service Coverage Ratio requirement is not satisfied, Borrower will have the option to (i) pay down the principal balance of the Loan in accordance with Section 2.4 hereof, and/or (ii) to agree to cancel the unfunded portion, if any, of the Aggregate Commitment, in such an amount as is necessary to satisfy such Debt Service Coverage Ratio requirement, as such amount is reasonably determined by Administrative Agent, in which event each Lender’s Commitment will automatically be reduced by such Lender’s Pro Rata Share of the total reduction in the Aggregate Commitment;
(g)Borrower shall be in compliance with the financial covenants contained in the Loan Documents; Guarantor shall be in compliance with all of the financial covenants set forth in the Guaranty, and Administrative Agent shall have received a certificate from Guarantor certifying such compliance and such other information reasonably required by Administrative Agent to confirm that Guarantor is in compliance with such financial covenants to the extent such information is required pursuant to Section 6.15 below; and


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(h)Borrower causes to be delivered to Administrative Agent, for the benefit of itself and the Lenders, at Borrower’s expense, an endorsement to or reissuance of the Title Policy bringing current the effective date of such coverage and stating that the coverage afforded by the Title Policy is not affected because of such extension, subject only to the Permitted Encumbrances.
In the event that, for any reason, Borrower fails to satisfy all of the foregoing conditions, the Loan will mature and be due and payable in full on the First Option Maturity Date.
Section 2.10    Taxes.
(a)Any and all payments by or on account of any obligation of Borrower under any Loan Document must be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law (as determined in the good faith discretion of any applicable withholding agent) requires the deduction or withholding of any Tax from any such payment, then the applicable withholding agent will be entitled to make such deduction or withholding and will timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax or Other Tax, then the sum payable by Borrower will be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.10) the applicable Lender or Administrative Agent receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b)Borrower must timely pay to the relevant Governmental Authority in accordance with applicable Law or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c)Borrower will indemnify the Lender or Administrative Agent, within 15 days after demand therefor, for the full amount of any Indemnified Taxes and Other Taxes (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.10) payable or paid by such Lender or Administrative Agent or required to be withheld or deducted from a payment to such Lender or Administrative Agent and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes and Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, will be conclusive absent manifest error.
(d)Each Lender will severally indemnify Administrative Agent, within 15 days after demand therefor, for (i) any Indemnified Taxes and Other Taxes attributable to such Lender (but only to the extent that Borrower has not already indemnified Administrative Agent for such Indemnified Taxes and Other Taxes and without limiting the obligation of Borrower to do so), (ii) any Taxes attributable to such Lender's failure to comply with the provisions of Section 10.11(c) relating to the maintenance of a Participant Register, and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with
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respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent will be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this paragraph (d).
(e)As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 2.10, Borrower must deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Administrative Agent.
(f)Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document will deliver to Borrower and Administrative Agent, at the time or times reasonably requested by Borrower or Administrative Agent, such properly completed and executed documentation reasonably requested by Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or Administrative Agent, will deliver such other documentation prescribed by applicable Law or reasonably requested by Borrower or Administrative Agent as will enable Borrower or Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.10(f)(i)(A), (i)(B) and (i)(D) below) will not be required if in the Lender's reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(i)Without limiting the generality of the foregoing,
(A)any Lender that is a United States Person for U.S. federal income Tax purposes will deliver to Borrower and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;
(B)any Non-U.S. Lender will, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as is requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), whichever of the following is applicable:
(1)in the case of a Non-U.S. Lender claiming the benefits of an income Tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-
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8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "interest" article of such Tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "business profits" or "other income" article of such Tax treaty;
(2)executed copies of IRS Form W-8ECI;
(3)in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Non-U.S. Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, a "10 percent shareholder" of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a "controlled foreign corporation" related to Borrower as described in Section 881(c)(3)(C) of the Code and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4)to the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY or IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable.
(C)any Non-U.S. Lender will, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as is requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made; and
(D)if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender will deliver to Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), "FATCA" includes any amendments made to FATCA after the date of this Agreement.

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(ii)Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it will update such form or certification or promptly notify Borrower and Administrative Agent in writing of its legal inability to do so.
(g)If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.10 (including by the payment of additional amounts pursuant to this Section 2.10), it will pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.10 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, will repay to such indemnified party the amount paid over pursuant to this Section 2.10(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.10(g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.10(g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph may not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h)Each party's obligations under this Section 2.10 survives the resignation or replacement of Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 2.11    Selection of Lending Installation; Mitigation Obligations; Lender Statements; Survival of Indemnity.
(a)Each Lender may book its Advances at any Lending Installation selected by such Lender and may change its Lending Installation from time to time. All terms of this Agreement will apply to any such Lending Installation and the Loan and any Notes issued hereunder will be deemed held by each Lender for the benefit of any such Lending Installation. Each Lender may, by written notice to Administrative Agent and Borrower in accordance with Section 10.7, designate replacement or additional Lending Installations through which Advances will be made by it and for whose account Loan payments are to be made.
(b)To the extent reasonably possible, each Lender will designate an alternate Lending Installation with respect to its Advances to reduce any liability of Borrower to such Lender under Sections 2.6 and 2.10, so long as such designation is not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender will deliver a written statement of such Lender to Borrower (with a copy to Administrative Agent) as to the amount due, if any, under Section 2.6 or 2.10. Such written statement must set forth in reasonable detail the calculations upon which such Lender determined such amount and will be final, conclusive and binding on
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Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with an Advance will be calculated as though each Lender funded its Advance through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the LIBOR Based Rate applicable to such Advance, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement of any Lender will be payable within ten (10) Business Days after receipt by Borrower of such written statement. The obligations of Borrower under 2.6 and 2.10 will survive payment of the Obligations and termination of this Agreement.
Section 2.12    Replacement of Lender. If Borrower is required pursuant to Sections 2.6 or 2.10 to make any additional payment to any Lender or if any Lender defaults in its obligation to make it portion of an Advance or declines to approve an amendment or waiver that is approved by the Required Lenders or otherwise becomes a Defaulting Lender (any Lender so affected an “Affected Lender”), Borrower may elect, if such amounts continue to be charged or such suspension is still effective, to replace such Affected Lender as a Lender party to this Agreement with another bank or other entity which is reasonably satisfactory to Borrower and Administrative Agent, provided that no Default or Event of Default has occurred and be continuing at the time of such replacement, and provided further that, concurrently with such replacement, (i) such other bank or entity will not suffer from and is not impacted by the issue or event causing the replacement of the Affected Lender, will agree, as of such date, to purchase for cash at par the Advances and other Obligations due to the Affected Lender under this Agreement and the other Loan Documents pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section 10.10 applicable to assignments, and (ii) Borrower will pay to Administrative Agent (for the benefit of such Affected Lender) in same day funds on the day of such replacement all interest, fees and other amounts then accrued but unpaid to such Affected Lender by Borrower hereunder to and including the date of termination, including payments due to such Affected Lender under Sections 2.6 and 2.10.
ARTICLE III
CONDITIONS TO CLOSING AND ADVANCES
Section 3.1    No Obligation to Close or Advance. No Lender is required to make any Advance until all of the requirements and conditions set forth in this Article III have been completed and fulfilled, at Borrower’s sole cost and expense. At any time from and after the Closing Date through and including the day immediately prior to the Maturity Date (the "Availability Period"), provided that all of the terms and conditions set forth in this Article III have been satisfied or waived in writing by Administrative Agent, Borrower shall have the right to request and receive, from time to time, an additional Advance of the Loan in connection with any Revolving Portion of the Loan, when added to the existing outstanding principal balance of the Loan, does not exceed the then existing Availability Amount.
Section 3.2    Conditions to Closing.

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(a)On or before the Closing Date, Borrower must provide to Administrative Agent each of the following relating to the Land and the existing Improvements, in form and substance acceptable to Administrative Agent:
(i)A pro forma Title Policy, or a marked-up commitment to issue the Title Policy, signed by an officer of the Title Company, in form and substance satisfactory to Administrative Agent and including all endorsements as required by Administrative Agent, and satisfactory reinsurance agreements to the extent required by Administrative Agent, together with an agreement from the Title Company that such Title Policy will be deemed issued upon the closing of the Loan notwithstanding that the final Title Policy in the agreed upon form will not be issued until after the recordation of the Security Instrument. All title insurance premiums in connection with the issuance of the Title Policy must be paid on or before the Closing Date by Borrower. The Title Company must provide priority insurance over all possible construction and mechanics’ lien claims, including, for purposes of clarification, unmodified 'Covered Risk 11(a)' coverage as set forth in the ALTA extended coverage mortgagee's title insurance policy (ALTA Loan Policy 2006 Loan Policy of Title Insurance).
(ii)One copy of the Survey.
(iii)The Environmental Report, addressed to Administrative Agent or, in the event the Environmental Report is not addressed to Administrative Agent, Borrower must provide the Environmental Report together with a reliance letter addressed to Administrative Agent in compliance with Administrative Agent’s requirements.
(iv)Evidence that all insurance required pursuant to Section 6.8 is in place.
(v)Administrative Agent shall have received a report as to whether or not any portion of the Land and the Improvements is in a federally designated flood hazard area and, if any improvements thereon are in a federally designated flood hazard area, evidence of the maintenance of flood insurance as may be required by applicable Law.
(vi)Administrative Agent shall have completed its flood review process, and received evidence of compliance, satisfactory to Administrative Agent in Administrative Agent's sole discretion, with Administrative Agent's requirements, policies and procedures with respect to flood-related matters.
(vii)Written evidence regarding zoning and building code compliance for the Land and the Improvements in form and content acceptable to the Title Company to issue an unqualified ALTA 3-series Title Policy endorsement in form and substance satisfactory to Administrative Agent.
(viii)A copy of each noncancelable agreement relating to the management, operation or maintenance of the Project.
(ix)A proposed Operating Budget and Business Plan for the current year of operation.

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(b)On or before the Closing Date, Borrower must provide to Administrative Agent each of the following relating to Borrower, Guarantor and such other Persons identified below, in form and substance acceptable to Administrative Agent:
(i)A copy of Borrower's Organizational Documents, certified as true, correct and complete by an officer of the Borrower authorized to do so, together with (i) a current certificate of good standing (or equivalent) from the Secretary of State of the state in which the Borrower was organized (and from the Secretary of State of the state where the Land is located, if different from the jurisdiction in which the Borrower was organized), and (ii) resolutions and/or consents of those parties necessary to authorize the transaction contemplated hereby.
(ii)A copy of Guarantor's Organizational Documents, certified as true, correct and complete by an officer of Guarantor authorized to do so, together with (i) a current certificate of good standing (or equivalent) from the jurisdiction in which Guarantor was organized, and (ii) resolutions and/or consents of those parties necessary to authorize the transaction contemplated hereby.
(iii)A copy of the managing member's Organizational Documents for Borrower, certified as true, correct and complete by an officer of such managing member authorized to do so, together with (i) a current certificate of good standing (or equivalent) from the Secretary of State of the state in which such managing member was organized (and from the Secretary of State of the state where the Land is located, if different from the jurisdiction in which such managing member was organized), and (ii) resolutions and/or consents of those parties necessary to authorize the transaction contemplated hereby.
(iv)The most current available financial statements of Borrower and Guarantor, signed and certified as true, correct and complete in all material respects by an authorized signatory.
(v)The payment of all applicable Fees, including without limitation, those referenced in the Fee Letter.
(c)On or before the Closing Date, Borrower must execute and deliver (or cause to be executed and delivered) to Administrative Agent, the Loan Documents (as applicable) and such other documents as Administrative Agent may require, in form and substance acceptable to Administrative Agent and to its counsel, in their sole discretion, to evidence and secure the Loan. Administrative Agent may designate which of the Loan Documents are to be placed of record or filed, the order of recording or filing thereof, and the offices in which the same are to be recorded or filed. Borrower must cooperate with Administrative Agent's recordation and filing requirements, and may in no event take any action in contravention thereof. Borrower must pay all documentary, intangible, recording, filing and/or registration taxes and/or fees due upon the Notes, the Security Instrument, the financing statement and/or the other Loan Documents.
(d)On the Closing Date, Administrative Agent must receive from outside counsel for Borrower and Guarantor, one or more current written opinions, in form and substance acceptable to Administrative Agent, addressed to Administrative Agent, in its capacity as Administrative
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Agent, covering matters such as due formation, authorization, execution and delivery of the Loan Documents and enforceability of the Loan Documents.
(e)Prior to the Closing Date, Administrative Agent must receive an Appraisal that demonstrates compliance with the Loan to Value Requirement
(f)KYC Information.
(i)Upon the reasonable request of any Lender made at least ten (10) Business Days prior to the Closing Date, Borrower must have provided to such Lender the documentation and other information so requested in connection with applicable "know your customer" and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to the Closing Date.
(ii)At least five days prior to the Closing Date, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, Borrower must deliver a Beneficial Ownership Certification in relation to Borrower.
(g)On or before the Closing Date, Administrative Agent must receive all other agreements, documents and/or exhibits which may be required, in Administrative Agent's judgment, to assure compliance with the requirements of this Agreement and the other Loan Documents.
(h)On or before the Closing Date, Administrative Agent and the Lenders shall have completed their due diligence of Borrower, Guarantor and received full credit approval with respect to the transaction.
(i)Receipt and approval by Administrative Agent of the Environmental Insurance Policy covering the Project.
(j)Receipt and approval by Administrative Agent of the fully executed Accenture Lease (including all amendments thereto) and a subordination and non-disturbance agreement in form and substance reasonably acceptable to Administrative Agent.
Section 3.3    Conditions Precedent to Initial Advance. As a condition precedent to the initial Advance by the Lenders:
(a)Borrower must have satisfied: (i) all of the conditions to closing set forth in Section 3.2, unless expressly waived by Administrative Agent in writing; and (ii) all other conditions for an Advance set forth in Section 3.4 and in Article IV; and
(b)Borrower must have provided to Administrative Agent the following, or satisfied the following conditions, which must be in form and substance acceptable to Administrative Agent:
(i)Written evidence that the Title Company has recorded the Security Instrument in a first lien position against the Project, and that the Title Company has issued or is
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irrevocably committed to issue the Title Policy pertaining to such Security Instrument insuring the same;
(ii)Written evidence that the Project Financing Statements pertaining to Borrower and Project have been filed with the Secretary of State, or other appropriate office, to perfect the lien on all personal property described in each Security Agreement as collateral for the Loan in a first lien position;
(iii)evidence that all insurance required pursuant to Section 6.8 has been obtained and is being maintained;
(iv)Borrower has established the Operating Account;
(v)Any other documents and assurances as Administrative Agent may reasonably request.
Section 3.4    Conditions Precedent to All Advances. Each Advance by the Lenders (including the initial Advance) is subject to the satisfaction of the following conditions precedent as determined by Administrative Agent:
(a)Borrower must deliver or cause to be delivered to Administrative Agent the following documents in connection with each Draw Request, in form and substance satisfactory to Administrative Agent:
(i)A fully executed Draw Request deliver to Administrative Agent at least two (2) Business Days prior to the requested Funding Date;
(ii)If requested by Administrative Agent in connection with any advance, Borrower shall provide to Administrative Agent one or more endorsements (to the full extent available) to and continuation of the Title Policy, showing that there have been no mechanic's or materialmen's liens or other liens filed since the date of the issuance of the Title Policy, ensuring that each additional Advance shall be secured by the Security Instrument in a first lien position, subject to no other liens or title exceptions, other than the Permitted Encumbrances, and/or updating the effective date of the Title Policy to the relevant date of such Advance, which endorsements shall be provided at Borrower's expense. If any liens or other matters, which in Administrative Agent's good faith reasonable judgment jeopardize or otherwise impair its security interest (and/or the first priority thereof) in the Project, are disclosed by said endorsement and continuation or are in any other manner discovered by the Title Company or Administrative Agent, no further advances shall be made until such liens or other matters have been waived by Agent or satisfied in a manner acceptable to Administrative Agent. Upon written demand of Administrative Agent, Borrower shall immediately cause any such liens or other matters to be satisfied or released, of record, or bonded around and removed from the Project encumbered thereby or affirmatively insured over by the Title Company to Administrative Agent's satisfaction, or shall make other arrangements with respect to the discharge thereof and the releases thereof from the Project encumbered thereby as are acceptable to Administrative Agent, in its reasonable discretion.

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(b)No Default or Event of Default has occurred, and no Default or Event of Default will result from the making of the Advance.
(c)[Intentionally Deleted].
(d)[Intentionally Deleted].
(e)Borrower has not been notified in writing of any existing or, to Borrower’s knowledge, threatened litigation, arbitration or governmental investigation or proceeding brought specifically against Borrower or the operations of Borrower (but expressly excluding any such threatened litigation, arbitration or governmental investigation or proceeding that also applies generally to  other persons or entities located in the City or County of Chicago, and/or the State of Illinois) which, if adversely determined to Borrower would constitute a Material Adverse Change.
(f)The Project, the Improvements, to the extent then constructed, nor any part thereof has been materially damaged, destroyed, condemned or threatened with any material condemnation.
(g)No Lien or notice of intent to file a Lien for work or services performed in or on the Project or any materials or equipment delivered thereto, or any other Lien (including, without limitation, any mortgage, deed of trust, judgment lien or other lien), has been filed or recorded against the Project or delivered to Borrower, the Title Company or Administrative Agent, unless all such Liens are discharged or bonded over and removed from title to the Project to the reasonable satisfaction of Administrative Agent.
(h)No stop payment notice in connection with the Loan has been served on Administrative Agent or any Lender unless the stop payment notice is discharged or if the stop payment notice is bonded, an appropriate counter bond or equivalent reasonably acceptable to Administrative Agent and the applicable Lenders is filed and/or recorded in accordance with applicable law so as to remove and discharge any and all such stop payment notices.
Notwithstanding anything stated to the contrary in this Article III, Article IV below, or elsewhere in this Agreement, the initial funding of the Loan and/or recordation of the Security Instrument shall be deemed a confirmation by Administrative Agent and the Lenders that all conditions precedent to the funding of the initial Advance as set forth in this Article III have been satisfied or waived for all purposes, including for purposes of making of any additional Advances under Article IV (except as otherwise expressly reserved by Administrative Agent in a writing delivered to Borrower prior to the closing of the Loan).
Section 3.5    Additional Conditions to Each Disbursement from the Tenant Improvement Allocation. In addition to all of the conditions and requirements set forth in this Agreement and in any of the other Loan Documents (including, without limitation, Section 3.4 above), Administrative Agent may require that each of the following conditions be satisfied (or deemed satisfied or waived as provided in Article II herein) with respect to each Additional Advance of loan proceeds from the Tenant Improvement Allocation:

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(a)Except as specified in Section 3.6 below, all funds advanced under this Agreement to date from the Tenant Improvement Allocation have been utilized exclusively to pay (or to reimburse Borrower for payment of) leasing costs (“Leasing Costs”) incurred for or in connection with the Accenture Lease, and/or for the costs of construction of the Tenant Improvements relating to the Accenture Lease (or any other work required pursuant to the terms of the Accenture Lease (“Other Accenture Work”)), and no part of the Loan proceeds have been paid for labor, materials, equipment, work, services or supplies incorporated into or employed in connection with any project other than the Project or any other Lease other than the Accenture Lease.
(b)Each disbursement for Tenant Improvement and Other Accenture Work costs and Leasing Costs may be made (if an uncured Event of Default then exists, at Administrative Agent's election) in reimbursement for expenses paid by Borrower, or, at Borrower's option, to pay for said expenses directly. If an uncured Event of Default then exists, Administrative Agent, at its option and without further direction from Borrower, may (but is under no obligation to) disburse any portion of the Loan funds to any Person to whom payment is due or through an escrow satisfactory to Administrative Agent. Except as set forth in Section 3.6 below, all funds allocated to the Tenant Improvement Allocation shall solely be available in connection with the Accenture Lease, and Administrative Agent shall not be obligated to disburse funds in excess of the amounts allocated under the Accenture Lease as of the date of this Agreement for such Tenant Improvements, Other Accenture Work and any applicable leasing commissions.
(c)Except as specified in Section 3.6 below, Borrower shall not use any portion of any advance from the Tenant Improvement Allocation for payment or reimbursement of any other cost except as specifically set forth in a request for advance approved by Administrative Agent in writing.
(d)Borrower has obtained all Permits which are necessary for the construction of such Tenant Improvements and Other Accenture Work.
(e)As to any completed Tenant Improvements and Other Accenture Work for which advances from the Tenant Improvement Allocation have been made under this Agreement, if reasonably determined to be necessary by Administrative Agent, Borrower shall have furnished Administrative Agent with (A) unconditional lien waivers or releases from all contractors, subcontractors and materialmen employed in furnishing labor or materials in connection with the construction of such Tenant Improvements, and (B) a true and correct copy of the final and unconditional certificate of occupancy for the space (or such other evidence reasonable acceptable to Administrative Agent that the space can be occupied under applicable law), issued without restriction by the appropriate Governmental Authority having jurisdiction over the Project.
(f)With respect to the final disbursement for the space under the Accenture Lease being improved (which for purposes of clarification can be done in stages as Accenture accepts the Expansion Space), the tenant under the lease shall be in occupancy, having accepted the leased premises and be paying rent under the Accenture Lease (or is under a free rent period thereunder), without offset, credit or defense.

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(g)Disbursements of Loan proceeds from the Tenant Improvements Allocation that are allocated to leasing commissions shall be made to pay, or reimburse Borrower for payment of, leasing commissions relating to the Accenture Lease in accordance with written leasing commission agreements in effect as of the date of this Agreement or otherwise, on market terms and such commission is due and payable under the applicable leasing commission agreement.
Section 3.6    Revolving Availability of Tenant Improvement Allocation. Commencing December 31, 2023, any remaining undisbursed funds in the Tenant Improvement Allocation may be used by Borrower for any lawful purposes relating to the Project (and not solely for Tenant Improvements, Other Accenture Work, and leasing commissions as is otherwise required under this Agreement). Additionally, on and after December 31, 2023, subject to obtaining any appropriate and reasonably necessary title endorsement (to the extent Administrative Agent has not by then received a revolver endorsement to its Title Policy) or updates to the Title Policy as to any portion of the Tenant Improvement Allocation that was never disbursed (so that the Title Policy covers the full Aggregate Commitment), the portion of the Loan allocated to the Tenant Improvement Allocation (i.e., $30,000,000 assuming the Aggregate Commitment has not been reduced) shall thereafter be available on a revolving basis (and treated for all purposes as part of the Revolving Portion), and Borrower may re-pay, re-borrow funds under the Revolving Portion (including any amounts previously allocated to the Tenant Improvement Allocation) to be used by Borrower for any lawful commercial purposes related to the Project, provided that the Aggregate Commitment outstanding would not exceed the Availability Amount, and all other applicable terms and conditions set forth in this Agreement to Advances have been satisfied.
ARTICLE IV
ADVANCES
Section 4.1    General.
(a)The Loan proceeds will be advanced by the Lenders for the benefit of Borrower in accordance with the terms and conditions set forth in this Agreement. All monies advanced by a Lender with respect to a Project will constitute a loan made by such Lender to Borrower under this Agreement, evidenced by a Note and secured by the Security Instrument and all other collateral for the Loan, and interest will be computed thereon, as prescribed by this Agreement, from the date Lender makes, or is deemed to have made, the Advance.
(b)Upon receipt of a request for an Advance and delivery of a Draw Request, Administrative Agent will send a copy thereof by facsimile to each other Lender and will otherwise notify each Lender of the proposed disbursement and the proposed date of funding (the "Funding Date"), which shall be no less than two (2) Business Days after the date such request for an Advance and Draw Request are delivered to each Lender by Administrative Agent. Each Lender will make available to Administrative Agent (or the funding bank designated by Administrative Agent) the amount of such Lender's Pro Rata Share of such disbursement by wire transfer in immediately available funds by 11:00 a.m. Pacific time on the Funding Date.

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(c)Unless a Lender notifies Administrative Agent on the Business Day immediately preceding the Funding Date that it does not intend to make its Pro Rata Share of any Advance, Administrative Agent may assume that such amount will be made available to Administrative Agent on such date, and Administrative Agent may, but will not be obligated to, make available to Borrower a corresponding amount in reliance upon such assumption. If such Lender has not in fact made such payment to Administrative Agent, then the applicable Lender and the Borrower severally agree to repay to Administrative Agent, on demand, the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by Administrative Agent until the date Administrative Agent recovers such amount at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) with respect to Borrower, a rate per annum equal to the interest rate applicable to the relevant Advance. If such Lender pays such amount to Administrative Agent, then such amount will constitute such Lender’s Pro Rata Share of such Advance.
(d)Nothing in this Section 4.1 will be deemed to relieve any Lender of its obligation hereunder to make its Pro Rata Share of an Advance on any Funding Date, nor will Administrative Agent or any Lender be responsible for the failure of any other Lender to perform its obligations to make any Advances hereunder, and the Commitment of any Lender will not be increased or decreased as a result of the failure by any other Lender to perform its obligation to make a disbursement.
(e)In no event shall Administrative Agent and the Lenders have any obligation to make any Advance if the requested Advance, plus the sum of all outstanding previous Advances, would exceed the then existing Availability Amount.
Section 4.2    No Waiver. No Advance will constitute a waiver of any condition precedent to the obligation of any Lender to make any further Advance, or preclude Administrative Agent or any Lender from thereafter declaring the failure of Borrower to satisfy any such condition precedent to be an Event of Default. All conditions precedent to the obligations of the Lenders to make any Advance are imposed hereby solely for the benefit of Administrative Agent and the Lenders, and no other party may require satisfaction of any such condition precedent or will be entitled to assume that any Lender will make or refuse to make any Advance in the absence of strict compliance with such condition precedent. Administrative Agent may waive any requirement of this Agreement for any Advance.
Section 4.3    Advances of Sums Due to Lenders. Any advance of proceeds of the Loan made by Lenders will not: (i) relieve Borrower from its obligation to make any payments required hereunder or under the other Loan Documents; (ii) cure any Default or Event of Default; or (iii) serve as a waiver of any of Borrower's obligations hereunder or under the other Loan Documents.
Section 4.4    [Reserved.]
Section 4.5    Availability Amount. Subject to the provisions of Section 6.33, Borrower will at all times cause the outstanding principal balance of the Loan not to exceed the
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Availability Amount, and the Lenders will have no obligation to make any Advance of Loan proceeds if after giving effect to the requested Advance the outstanding principal amount of the Loan would exceed the Availability Amount. If, as of the end of any calendar quarter, as determined by the quarterly reporting provided by Borrower pursuant to the terms of Section 6.15, the outstanding principal balance of the Loan exceeds the Availability Amount, unless Borrower is then subject to Section 6.33, Borrower shall pay down the Loan in compliance with Section 6.32.
Section 4.6    Waiver of Disbursement Condition. The approval of any Advance prior to fulfillment of one or more conditions thereof will not be construed as a waiver of any condition, and Administrative Agent reserves the right to require fulfillment of any and all conditions prior to approving any subsequent Advance.
Section 4.7    All Advances Secured by Security Instrument. It is expressly agreed that any Advances made by the Lenders, from time to time, for whatever purposes, no matter to whom made, will, as and when made, be deemed authorized by Borrower and made pursuant to this Agreement, and will become and remain secured by the Loan Documents and considered part of the obligations secured thereby. These provisions will apply whether or not Administrative Agent or any Lender approves or denies any Advance, and whether or not Administrative Agent or any Lender has approved an Advance, or a Default or an Event of Default has occurred.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Administrative Agent and each Lender that:
Section 5.1    Borrower’s and Guarantor's Formation and Powers.
(a)Borrower is a Delaware limited liability company duly organized, validly existing and in good standing under the laws of the Delaware, and is qualified and authorized to do business in all jurisdictions in which the conduct of its business and affairs requires it to be so qualified. Borrower has all power, authority, permits, consents, authorizations and licenses necessary to carry on its business, to construct, renovate, equip, own and operate the Project and to execute, deliver and perform its obligations under this Agreement and the other Loan Documents; all consents necessary to authorize the execution, delivery and performance of this Agreement and the other Loan Documents have been duly adopted and are in full force and effect; and this Agreement and the other Loan Documents have been duly executed and delivered by Borrower. Borrower uses no trade name other than its actual name.
(b)Guarantor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and is qualified and authorized to do business in all jurisdictions in which the conduct of its business and affairs requires it to be so qualified. Guarantor has all power, authority, permits, consents, authorizations and licenses necessary to carry on its business, to own limited liability company interests in Borrower (or
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their members), and to execute, deliver and perform its obligations under the Guaranties, the Indemnity and any other Loan Document to which it is a party; all consents necessary to authorize the execution, delivery and performance of the Guaranties, the Indemnity and the other Loan Documents to which it is a party have been duly adopted and are in full force and effect; and the Guaranties, the Indemnity and the other Loan Documents to which it is a party have been duly executed and delivered by Guarantor.
Section 5.2    Authority.
(a)The execution, delivery and performance by Borrower of this Agreement and other Loan Documents to which Borrower is a party have been duly authorized by all necessary action of the governors, managers, members, partners, shareholders, officers and directors, as applicable, of Borrower, and do not and will not (i) require any additional consent or approval of the members of Borrower, (ii) violate any provision of any Laws (including Regulation U of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to Borrower or of Borrower's Organizational Documents, (iii) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other agreement, lease or instrument to which Borrower is a party or by which it or its properties may be bound or affected, or (iv) result in or require the creation or imposition of any Security Interest in any of its properties pursuant to the provisions of any agreement or other document binding upon or applicable to Borrower or any of its properties, except pursuant to the Loan Documents.
(b)The execution, delivery and performance by Guarantor of the Guaranties, the Indemnity and other Loan Documents to which Guarantor is a party have been duly authorized by all necessary action of the members of Guarantor, and do not and will not (i) require any additional consent or approval of the members of Guarantor, (ii) violate any provision of any Laws (including Regulation U of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to Guarantor or of Guarantor's Organizational Documents, (iii) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other agreement, lease or instrument to which Guarantor is a party or by which it or its properties may be bound or affected, or (iv) result in or require the creation or imposition of any Security Interest in any of its properties pursuant to the provisions of any agreement or other document binding upon or applicable to Guarantor or any of its properties, except pursuant to the Loan Documents.
Section 5.3    No Approvals. To Borrower’s knowledge, no authorization, consent, approval, license, exemption of or filing or registration with any Governmental Authority, domestic or foreign, is or will be necessary for the valid execution, delivery or performance by Borrower or Guarantor of this Agreement, the Notes, or any other Loan Documents to which Borrower or Guarantor is a party.
Section 5.4    Legal and Valid Obligations. This Agreement, the Notes, the Indemnity, the Guaranties and the other Loan Documents to which Borrower or Guarantor is a party constitute the legal, valid and binding obligations of Borrower and Guarantor, enforceable against Borrower and Guarantor in accordance with their respective terms, subject to, and except as may be limited by, bankruptcy and insolvency laws and other laws generally affecting the
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enforceability of creditor's rights generally and subject to limitations on the availability of equitable remedies.
Section 5.5    Litigation. To the knowledge of Borrower, there are no actions, suits or proceedings pending or threatened in writing against Borrower, Guarantor or affecting any of the Project, at law or in equity or before any Governmental Authority, domestic or foreign, which contests the validity or enforceability of this Agreement or any of the other Loan Documents or the transactions contemplated hereby. To the knowledge of Borrower, no Borrower nor Guarantor is in default with respect to any final judgment, writ, injunction, decree, rule or regulations of any Governmental Authority, domestic or foreign.
Section 5.6    Title. To Borrower’s knowledge, Borrower has good, marketable and insurable fee simple title to the Land and to the rest of the Project, subject to no lien, charge, mortgage, deed of trust, restriction or encumbrance, except Permitted Encumbrances. To Borrower’s knowledge and except as disclosed in the title reports for the Project delivered to Administrative Agent prior to the Closing Date there are no mechanics’, materialman’s or other similar Liens which have been filed for work, labor or materials affecting the Project which are or may be Liens prior to, or equal or subordinate to, the Lien created by the Loan Documents.
Section 5.7    Defects and Hazards. To Borrower’s knowledge, Borrower does not know of any defects, facts or conditions affecting the Land that would make it unsuitable for the use contemplated hereunder or of any abnormal hazards (including soils and groundwater contamination, earth movement or slippage) affecting the Land.
Section 5.8    Payment of Taxes.
(a)There have been filed all federal, state and local tax returns with respect to Borrower and Guarantor and its direct and indirect business operations which are required to be filed. Borrower and Guarantor have paid or caused to be paid to the respective taxing authorities all taxes as shown on such returns or on any assessments received by it to the extent that such taxes have become due.
(b)To Borrower’s knowledge, all transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid under applicable Laws in connection with the transfer of the Project to a Borrower have been paid or are being paid simultaneously herewith. To Borrower’s knowledge, all mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid under applicable Laws in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including the Security Instrument, have been paid or are being paid simultaneously herewith. To Borrower’s knowledge, all taxes and governmental assessments due and owing in respect of the Project have been paid (or will be paid) prior to delinquency, or an escrow of funds in an amount sufficient to cover such payments has been established hereunder or are insured against by the Title Policy. To Borrower’s knowledge, (i) there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Project, (ii) nor are there any contemplated improvements to the Project that may result in such special or other assessments.

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Section 5.9    Agreements.
(a)To Borrower's knowledge, Borrower is not in default with respect to any order or decree of any court or any order, regulation or demand of any Governmental Authority. Borrower's Organizational Documents are in full force and effect. To Borrower's knowledge, Borrower is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which the Borrower is a party, the effect of which default would constitute a Material Adverse Change as to the Borrower.
(b)To Guarantor's knowledge, Guarantor is not in default with respect to any order or decree of any court or any order, regulation or demand of any Governmental Authority. Guarantor's Organizational Documents are in full force and effect. Guarantor is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which Guarantor is a party, the effect of which default would constitute a Material Adverse Change as to Guarantor.
Section 5.10    No Defaults under Loan Documents or Other Agreements. No Default or Event of Default has occurred, and no default or event of default exists under any other document to which Borrower is a party which relates to the ownership, occupancy, use, development, construction, renovation or management of the Project. Borrower is not in default in the payment of the principal or interest on any of its Indebtedness for borrowed money beyond any notice or cure periods. Borrower is not obligated for the payment of any commission or other fee with respect to the purchase of the Land and Improvements, or if Borrower is so obligated, such commission or other fee has been paid in full.
Section 5.11    Boundary Lines; Conformance with Governmental Requirements and Restrictions; Utilities.
(a)Except as specifically disclosed on the survey(s) delivered to Administrative Agent, the exterior lines of the Improvements are, and at all times will be, within the boundary lines of the Land and in compliance with all applicable setback requirements. Borrower and the Project, including the Improvements are, and at all times will be, in compliance (in all material respects) with all Governmental Requirements, all covenants encumbering the Land and all Approved Leases. To Borrower’s knowledge and except as disclosed in any zoning reports delivered to Administrative Agent, Borrower has obtained all permits which are necessary for operating the Improvements in accordance with all applicable Laws, including building, environmental, subdivision, land use and zoning laws.
(b)Telephone services, gas, electric power, storm sewers, sanitary sewer and water facilities are available to the boundaries of the Project, adequate to serve the Project and not subject to any conditions (other than normal charges to the utility supplier) which would limit the use of such utilities. All streets and easements necessary for operation of the Project are available to the boundaries of the Project.
Section 5.12    Personal Property. Borrower, as applicable, is now and will continue to be the sole owner of the Equipment and the Equipment is and will be free from any lien, security
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interest or other adverse claim of any kind whatsoever, except for liens or security interests in favor of Administrative Agent, for the benefit of itself and the Lenders, the interest of a lessor pursuant to a lease of personal property approved by Administrative Agent, in Administrative Agent's sole discretion, or liens or security interests otherwise approved by Administrative Agent in Administrative Agent's sole discretion.
Section 5.13    Condemnation. To Borrower’s knowledge, no condemnation proceeding or moratorium is pending or threatened against the Project.
Section 5.14    Separate Lots. The Land is comprised of 1 or more parcels which constitute legal lots and separate tax lots and do not constitute a portion of any other tax lot not a part of such Land.
Section 5.15    Federal Reserve Regulations. No portion of the Loan hereunder will be used to purchase or carry any "margin stock" as defined in Regulation U of the Board of Governors of the Federal Reserve System of the United States or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might constitute this transaction a "purpose credit" within the meaning of said Regulation U. To Borrower’s knowledge, no portion of the Loan hereunder will be used for any purpose that violates, or which is inconsistent with, the provisions of Regulation X of the Board of Governors of the Federal Reserve System or any other regulation of said Board of Governors.
Section 5.16    Investment Company Act. Neither Borrower nor any Subsidiary is an “investment company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940.
Section 5.17    Unregistered Securities. No Borrower has: (a) issued any unregistered securities in violation of the registration requirements of Section 5 of the Securities Act of 1933, as amended, or any other law; or (b) violated any rule, regulation or requirement under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, in either case where the effect of such violation would constitute a Material Adverse Change as to Borrower.
Section 5.18    Accuracy of Information.
(a)To Borrower’s knowledge (provided such "knowledge" qualifier shall not apply to any financial statements or other financial information), all factual information heretofore or herewith delivered by or on behalf of Borrower and Guarantor to Administrative Agent or any Lender, including financial statements and other financial information, for purposes of or in connection with this Agreement or any transaction contemplated hereby is true and accurate in every material respect on the date as of which such information is dated or certified and no such information contains any material misstatement of fact. To the best of Borrower's knowledge and except as expressly disclosed by Borrower to Administrative Agent in writing, there has been no change in any condition, fact, circumstance or event that would make the financial statements, rent rolls, reports, certificates or other documents submitted in connection with the Loan inaccurate, incomplete or otherwise misleading in any material respect or that otherwise
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result in a Material Adverse Change, but expressly excluding any change in any condition, fact, circumstance or event that, although it affects Borrower, does not affect Borrower disproportionally as compared to other, similarly situation Persons. For the avoidance of doubt, any changes in general economic conditions (including changes cause by any pandemic, virus or another similar occurrence (including COVID-19) shall not apply to this Section 5.18.
(b)As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all material respects.
Section 5.19    ERISA Compliance. Borrower has not adopted a Pension Plan. Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA. None of the assets of Borrower constitutes, by virtue of the application of 29 C.F.R. Section 2510.3-101(f) as modified by Section 3(42) of ERISA, “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. Neither Borrower nor any Related Party is a “governmental plan” within the meaning of Section 3(32) of ERISA. Transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans.
Section 5.20    Consents. To the extent that any franchises, licenses, permits, certificates, authorizations, approvals or consents from any Governmental Authority, domestic or foreign, are material to the present conduct of the business and operations of Borrower or are required for the acquisition, ownership, operation or maintenance by Borrower of properties it now owns, operates or maintains or the present conduct of its businesses and operations, such franchises, licenses, permits, certificates, authorizations, approvals and consents have been validly granted, are in full force and effect and constitute valid and sufficient authorization therefor.
Section 5.21    [Reserved].
Section 5.22    Anti-Corruption Laws; Sanctions. Borrower, Guarantor and their respective Affiliates and, to the knowledge of Borrower and Guarantor, their respective officers, employees and directors are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (i) the Loan, (ii) the use of the proceeds of the Loan, or (iii) to Borrower’s knowledge, any other transactions contemplated hereby will violate Anti-Corruption Laws or any applicable Sanctions. KBS Capital Advisors (which is the investment advisor to Borrower) has implemented and maintains in effect for itself and its respective Subsidiaries policies and procedures designed to ensure compliance with Anti-Corruption Laws and applicable Sanctions. None of Borrower, Guarantor, or, to the knowledge of Borrower, any of their respective Affiliates, directors, officers, or employees is a Sanctioned Person. None of KBS Capital Advisors, Borrower, Guarantor or, to Borrower’s knowledge, any of their respective Subsidiaries or any director, officer, or employee of the same is an individual or entity that is, or is fifty percent (50%) or more owned (individually or in the aggregate, directly or indirectly) or controlled by individuals or entities (including any agency, political subdivision or instrumentality of any government) that are (a) the target of any Sanctions or (b) located, organized or resident in a country or territory that is the subject of Sanctions (currently Crimea, Cuba, Iran, North Korea and Syria).
Section 5.23    Subsidiaries. Borrower has no Subsidiaries.

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Section 5.24    Leases. Except as set forth in Exhibit L, there is no Lease in effect relating to the Project. To Borrower’s knowledge, Borrower has delivered to Administrative Agent true, correct and complete (in all material respects) copies of all Leases, if any, currently affecting the Project, and there are no oral agreements. Each Lease constitutes the legal, valid and binding obligation of a Borrower and the lessee thereunder, except as disclosed to Administrative Agent in writing, to Borrower's knowledge, is in full force and effect and is enforceable in accordance with its terms except as may be limited by bankruptcy and insolvency laws and other laws generally affecting the enforceability of creditors’ rights generally and subject to limitations on the availability of equitable remedies. To Borrower’s knowledge, there are no defaults with respect to any such Leases.
Section 5.25    Property Management Agreements. Borrower has delivered to Administrative Agent a true, correct and complete (in all material respects) copy of the Property Management Agreement for the Project. To Borrower’s knowledge, (i) the Property Management Agreements is unmodified and in full force and effect, and (ii) Borrower is not in default of, nor to Borrower's knowledge is any other party to its Property Management Agreement in default, of such Agreement.
Seciton 5.26    Alterations.
(a)Borrower will provide notice in connection with any alterations to any Improvements for the Project which are structural in nature and the cost of which (including any related alteration, improvement or replacement) is reasonably anticipated to exceed the Alteration Threshold (a "Material Alteration").
(b)Upon substantial completion of any Material Alteration, Borrower will be required, upon Administrative Agent's request, to provide evidence reasonably satisfactory to Administrative Agent that (i) such Material Alteration was constructed in accordance with applicable Governmental Requirements, (ii) all contractors, subcontractors, materialmen and professionals who provided work, materials, equipment or services in connection with such Material Alteration have been paid in full and have delivered unconditional releases of Liens, and (iii) all licenses and permits reasonably necessary for the use, operation and occupancy of such Material Alteration (other than those which depend on the performance of tenant improvement work) have been issued.
Section 5.27    Solvency. Borrower and Guarantor are and will remain solvent after giving effect to all borrowings and guaranties contemplated in the Loan Documents.
Section 5.28    Ownership and Control of Borrower. As of the Closing Date, the direct and indirect owners of Borrower (other than the shareholders of the REIT) are set forth on Exhibit G attached hereto, respectively.
Section 5.29    Brokers. Neither Borrower nor any Affiliate of Borrower has dealt with any financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement.
Section 5.30    Use of Loan Proceeds. The proceeds of the Loan shall be used only for the purposes specified in this Agreement.
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Section 5.31    Purchase Options. To Borrower’s knowledge, as of the Closing Date, no part of the Project is subject to any purchase options, rights of first refusal or other similar rights in favor of any Person except as expressly disclosed in writing, to Administrative Agent (including the Title Policy and any approved or deemed approved Leases).
Section 5.32    FIRPTA. None of Borrower, Guarantor nor any Related Party nor any holder of any legal or beneficial interest therein is held, directly or indirectly, by a "foreign corporation", "foreign partnership", "foreign trust", "foreign estate", "affiliate" of a "foreign person" or a "United States intermediary" of a "foreign person" within the meaning of the Code Sections 897, 1445, or 7701, the Foreign Investments in Real Property Act of 1980, the International Investment and Trade Services Survey Act, the Agricultural Foreign Investment Disclosure Act of 1978, or the regulations promulgated pursuant to such Acts or any amendments to such Acts.
Section 5.33    Eligible Contract Participant. Guarantor is, as of the date of the execution of the Guaranty, and will be on each date that Borrower enters into a Lender-Provided Swap, an "eligible contract participant" as defined in the Commodity Exchange Act.
Section 5.34    Affected Financial Institution. Neither Borrower nor Guarantor is an Affected Financial Institution.
THE WARRANTIES AND REPRESENTATIONS IN THIS ARTICLE V, AND ANY ADDITIONAL WARRANTIES AND REPRESENTATIONS CONTAINED HEREIN AND IN THE OTHER LOAN DOCUMENTS, SHALL BE DEEMED TO HAVE BEEN RENEWED AND RESTATED BY BORROWER EACH TIME BORROWER SUBMITS A REQUEST FOR AN ADDITIONAL ADVANCE TO AGENT OR DELIVERS A QUARTERLY CERTIFICATE TO AGENT PURSUANT TO SECTION 6.15, SUBJECT TO THE QUALIFICATIONS AS TO SUCH REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN (PROVIDED, FOR PURPOSES OF CLARIFICATION, THIS SHALL IN NO EVENT PREVENT ADMINISTRATIVE AGENT AND LENDERS FROM EXERCISING THEIR RIGHTS AND REMEDIES UNDER THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.2 OF THIS AGREEMENT IF AT ANY TIME ADMINISTRATIVE AGENT OR LENDERS DETERMINE THAT A REPRESENTATION OR WARRANTY IS NOT TRUE, CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS).
ARTICLE VI
COVENANTS OF BORROWER
While this Agreement is in effect, and until the Lenders have been paid in full the principal of and interest on all Advances, and all other sums, made by Administrative Agent and/or the Lenders hereunder and under the other Loan Documents, Borrower agrees to comply with, observe and keep the following covenants and agreements:
Section 6.1    Responsibility for Improvements. As of the Closing Date, no construction/renovation work or other work being performed for or on behalf of Borrower which
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could give rise to mechanics' liens rights with respect to the Improvements has not been paid prior to delinquency, other than the $7,450 lien filed by or on behalf of Infocuss Builders, Inc., which is being contested or satisfied in accordance with the terms of this Agreement.
Section 6.2    [Intentionally Deleted].
Section 6.3    Title to the Project. Borrower will warrant and defend the validity and priority of the Lien of the Security Instrument on the Project against the claims of all Persons whomsoever, subject only to Permitted Encumbrances.
Section 6.4    Using Loan Proceeds.
(a)Subject to the terms and conditions of Article IV, Borrower must use the Loan proceeds for the purposes specified in Section 2.1(e).
(b)Borrower will not request any Advance, and will not use, and Borrower will use their commercially reasonable efforts that their respective Affiliates and each of their respective directors, officers, and employees shall not use, the proceeds of any Advance in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws. Borrower will not, directly or indirectly, knowingly use the proceeds of the Advances, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Advances, whether as underwriter, advisor, investor, or otherwise).
Section 6.5    Keeping of Records. Borrower must set up and maintain accurate and complete books, accounts and records pertaining to the Project in a manner reasonably acceptable to Administrative Agent. Borrower will permit representatives of Administrative Agent to have free access to and to inspect and copy such books, records and contracts of Borrower and to inspect the Project and to discuss Borrower’s affairs, finances and accounts with any of its principal officers, all at such times and as often as may reasonably be requested (and upon reasonable notice to Borrower). Any such inspection by Administrative Agent is for the sole benefit and protection of Administrative Agent and the Lenders, and Administrative Agent has no obligation to disclose the results thereof to Borrower or to any third party (other than the Lenders pursuant to this Agreement).
Section 6.6    Providing Updated Surveys. If required by Administrative Agent, upon request of Administrative Agent, upon an Event of Default, Borrower must deliver to Administrative Agent, at Borrower’s cost and expense, 1 copy of a Survey for the Project, certifying that the Improvements are constructed within the property lines of the Land, do not encroach upon any easement affecting the Land and do comply with all applicable Governmental Requirements relating to the location of Improvements, along with an endorsement to the Title Policy bringing forth the effective date thereof to the date of said Survey without exception therefor, if applicable.

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Section 6.7    Property Management Agreement. Borrower will at all times employ a Property Manager for the Land and the Improvements and will not amend or modify (in any material respect) or terminate the Property Management Agreement without the prior written consent of Administrative Agent (which consent shall not be withheld, conditioned or delayed unreasonably). Administrative Agent will have the right to require Borrower to replace the Property Manager with a Person approved by the Required Lenders: (a) upon the occurrence of an Event of Default, or (b) upon the occurrence of a default by the Property Manager under the Property Management Agreement beyond all applicable notice, grace or cure periods. Borrower shall have the right to enter into a new Property Management Agreement with a "pre-approved" Property Manager without the Administrative Agent's consent, provided that the Borrower will provide a copy of such new Property Management Agreement to the Administrative Agent promptly following execution.
Section 6.8    Maintaining Insurance Coverage. Borrower must maintain, or cause to be maintained, in full force and effect (and must deliver to Administrative Agent copies of), insurance coverages complying with the provisions of Exhibit H attached hereto, in form and substance satisfactory to Administrative Agent.
Section 6.9    Transferring, Conveying or Encumbering the Land, Equipment, Improvements or Interests in Borrower; Change of Control.
(a)Except as expressly permitted in this Agreement or any other Loan Documents (including, without limitation, this Section 6.9(a)), Borrower may not voluntarily, involuntarily or by operation of law agree to, cause, suffer or permit: (i) any Change of Control; (ii) any sale, transfer, lease, encumbrance, pledge or conveyance of any legal or beneficial interest of Borrower in the Land, the Improvements or the Equipment; or (iii) any mortgage, pledge, encumbrance or Liens to be outstanding against the Land, the Improvements or the Equipment or any portion thereof, or any security interest to exist therein, except (A) as created by the Security Instrument and the other Loan Documents which secure the Notes, (B) Permitted Encumbrances, and (C) Leases approved or deemed approved by Administrative Agent (to the extent such approval is required) and Leases not requiring Administrative Agent's approval. Consent by Administrative Agent to one transfer will not be deemed to be a waiver of the right to require consent to future or successive transfers. Notwithstanding anything stated to the contrary in this Agreement or in any of the other Loan Documents, any transfers (or the pledge or encumbrance ) of equity interests or other interests in KBSIII REIT ACQUISITION XI, LLC, or in any of the direct or indirect owners of KBSIII REIT ACQUISITION XI, LLC (including, without limitation, KBS REIT PROPERTIES III, LLC, KBS LIMITED PARTNERSHIP III or KBS REAL ESTATE INVESTMENT TRUST III, INC.) shall not be prohibited (and shall be expressly permitted) provided that KBS REAL ESTATE INVESTMENT TRUST III, INC. continues to own, either directly or indirectly, 100% of the ownership interests in Borrower.
(b)Notwithstanding anything to the contrary in the Loan Agreement, or in any of the other Loan Documents, Administrative Agent hereby acknowledges and agrees that KBS Real Estate Investment Trust III, Inc. (the "REIT") shall have the right (in its discretion) to (i) convert to a REIT structured as a perpetual life nontraded daily or monthly "net asset value" REIT and/or (ii) merge with a smaller REIT (the advisor to which REIT shall be KBS as defined below) (individually and collectively, the "REIT Conversion"), which REIT Conversion shall be
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expressly permitted by Administrative Agent provided that following such REIT Conversion, (a) the advisor to Borrowers and the REIT (or the surviving entity of any REIT Conversion, as applicable), shall be (x) KBS Capital Advisors LLC, (y) KBS Realty Advisors, LLC, or (z) another entity at least 50% owned (directly or indirectly) by (1) the estate of Peter Bren, or an irrevocable trust whose sole beneficiary is Linda Bren and whose trustee is Richard Bren, and/or (2) Charles J. Schreiber, Jr., individually or collectively, or any combination of the foregoing (entities and persons named in clauses (x), (y) and (z) above shall hereinafter be referred to, collectively and individually, as "KBS"), and (b) Guarantor or a Substitute Guarantor (as defined below) shall have a net worth equal to, or greater than, the then-current net worth of Guarantor. Any new entities within the Borrower, Guarantor or Substitute Guarantor ownership structure arising out of any such REIT Conversion shall be subject to the Administrative Agent and Lenders' know your customer ("KYC") and anti-money laundering ("AML") processes and receipt and approval by Administrative Agent and Lenders of appropriate financial statements, organization documents and other due diligence items reasonably required in connection therewith (including updated opinions of counsel and amended Loan Documents to reflect any such change). For purposes hereof, a “Substitute Guarantor” shall mean a new guarantor that (a) is wholly owned (directly or indirectly) by the REIT or the entity that survives the REIT Conversion, (b) directly or indirectly controls the Borrower, (c) owns (directly or indirectly) no less than a fifty percent (50%) interest in the Borrower, and (d) is approved by Administrative Agent and Lenders in writing, which approval shall not be unreasonably withheld.
(c)No transfer, conveyance, lease, sale or other disposition will relieve Borrower from personal liability for its obligations hereunder or under the Notes, whether or not the transferee assumes the Security Instrument.  Administrative Agent may, without notice to Borrower, deal with any successor owner of all or any portion of the Land, the Improvements or the Equipment in the same manner as with Borrower, without in any way discharging the liability of Borrower hereunder or under the Notes. Notwithstanding anything to the contrary contained in this Agreement, including in this Section 6.9 or any transfers made hereunder, Borrower must maintain compliance under Sections 6.19 and 6.27 of this Agreement.
Section 6.10    Required Minimum Non-Revolving Portion Funded Amount. The outstanding principal balance of the Non-Revolving Portion shall at all times be at least equal to seventy-five percent (75%) of the then Aggregate Commitment. However, should at any time the principal balance of the Non-Revolving Portion be less than seventy-five percent (75%) of the then applicable Aggregate Commitment, Borrower may, at Borrower's option, within thirty (30) days of written demand by Agent, permanently cancel any unfunded portions of the Aggregate Commitment in order to satisfy this requirement; provided further, however, the Borrower shall be required, within ten (10) days of written demand by Administrative Agent, to pay down the total outstanding principal balance of the Loan to the extent that it exceeds the reduced Aggregate Commitment so that the principal balance never exceeds the then applicable Aggregate Commitment.
Section 6.11    Updated Appraisals. Borrower agrees that Administrative Agent has the right to obtain updated Appraisals of the Project prepared by an appraiser in accordance with the Required Appraisal Standard. Borrower will pay for each such updated Appraisal if: (a) an Event of Default has occurred, and is continuing, (b) to the extent expressly requested by Borrower (in its sole discretion) pursuant to the terms of the Loan Documents and
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(c) Administrative Agent determines in its reasonable discretion that such an updated appraisal is required in connection with any casualty or condemnation affecting the Project or required under any laws or regulations applicable to Administrative Agent (but not more frequently than once in any six month period). Borrower will reasonably cooperate with Administrative Agent and the appraiser in obtaining the reasonably necessary information (to the extent available to Borrower) to prepare each such updated Appraisal, and, if Borrower is required to pay for each such updated Appraisal, Borrower must reimburse Administrative Agent for each such updated Appraisal within 15 Business Days of Borrower's receipt of an invoice from Administrative Agent.
Section 6.12    Inspections. Borrower agrees that Administrative Agent, the Title Company, consultants as Administrative Agent may require and their representatives will have access to the Project at all reasonable times and upon not less than twenty four (24) hours prior notice, and shall have the right to enter the Project and to conduct such inspections thereof at their sole cost and expense, and subject to the rights of tenants under their leases, provided if an Event of Default exists, such inspection shall be at Borrower's expense, as they shall deem necessary or desirable for the protection of the interests of Administrative Agent and the Lenders.
Section 6.13    Guarantor Financial Covenants. Borrower will cause Guarantor to at all times maintain and comply with the financial covenants and other covenants set forth in the Guaranties.
Section 6.14    [Intentionally Omitted].
Section 6.15    Reporting Requirements.
(a)Commencing with the calendar quarter ending on December 31, 2020, Borrower must deliver and, as appropriate, cause Guarantor to deliver to Administrative Agent the following:
REPORTING PARTY REQUIRED STATEMENT TO BE RECEIVED BY
1.    Borrower Quarterly (i) rent roll, (ii) Operating Statement for the Project (to be prepared and certified by Borrower), (iii) upon Administrative Agent’s request, a leasing status report, and (iv) quarterly unaudited financials for Borrower. Within sixty (60) days of the end of each calendar quarter during the term of the Loan; or upon request by Lender (not more than once per month)
2.    Borrower
Quarterly calculation of the Availability Amount and Borrowing Base Amount, and, if applicable, a certification (a “Borrower Certification”) that Borrower has determined that clauses (i) and (ii) in Section 27(d) of the Payment
Within sixty (60) days of the end of each calendar quarter during the term of the Loan
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REPORTING PARTY REQUIRED STATEMENT TO BE RECEIVED BY
Guaranty Agreement have been satisfied regarding satisfaction of the Guaranty Cap Reduction Conditions. .
3.    Borrower An annual Operating Budget and Business Plan for the Project Within one hundred twenty (120) days of the end of each Fiscal Year
4.    Guarantor
Unaudited financial statements for Guarantor including balance sheets, income statements, a statement of cash flow and supporting schedules reasonably requested by Administrative Agent. Such financial statements will be accompanied by a real estate-owned schedule (with such other documentation reasonably satisfactory to Administrative Agent to support the financial covenant calculations set forth in the Guaranties). Notwithstanding the foregoing, if the KBS Real Estate Investment Trust III, Inc. (or the surviving entity of any REIT Conversion (as defined in Section 6.9) ("Parent REIT") no longer files a 10-K Form (the "10-K Form") or a 10-Q Form (the "10-Q Form") with the U.S. Securities and Exchange Commission, the Guarantor or Parent REIT shall during any such time thereafter be required to provide annual audited (by a third-party certified public accountant satisfactory to Agent) financial statements and quarterly unaudited financial statements.
Within sixty (60) days of the end of each 1st, 2nd and 3rd calendar quarter, except 120 days after each calendar quarter ending on December 31st during the term of the Loan
5.    Guarantor Quarterly Financial Covenant Compliance Certificate (with bank statements and any other documentation reasonably satisfactory to Administrative Agent to support the financial covenant Within sixty (60) days of the end of each fiscal quarter during the term of the Loan, provided, however, for the last quarter of the Fiscal Year, such Certificate may be
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REPORTING PARTY REQUIRED STATEMENT TO BE RECEIVED BY
calculations set forth in the Guaranties). delivered with the annual financial statement
(b)From time to time, with reasonable promptness, Borrower and Guarantor must deliver (i) to Administrative Agent such further information regarding the business, affairs and financial condition of Borrower or any Guarantor as Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable "know your customer" requirements under the PATRIOT Act or other applicable anti-money laundering laws From time to time, with reasonable promptness, Borrower and Guarantor must deliver to Administrative Agent such further information regarding the business, affairs and financial condition of the Borrower or any Guarantor as Administrative Agent or any Lender may reasonably request.
Section 6.16    Taxes and Claims. Borrower must pay and discharge all taxes, prior to delinquency, assessments and other governmental charges upon the Improvements, as well as all claims for labor and materials which, if unpaid, might become a lien or charge upon the Improvements; provided, however, that Borrower may contest the amount, validity and/or applicability of any of the foregoing which is being contested in good faith and by proper proceedings, and in strict accordance with the terms of the Security Instrument.
Section 6.17    Maintain Existence. Borrower will (i) preserve and maintain, and cause each Guarantor to preserve and maintain, such parties' existence (i.e., shall not dissolve such entities or such party otherwise shall not cease to exist) and (ii) preserve and maintain, and cause each Guarantor to preserve and maintain, such parties’ rights and privileges in the jurisdiction of their respective organization and qualify and remain qualified in each jurisdiction in which such qualification is necessary in view of such parties' business and operations.
Section 6.18    Compliance with Governmental Requirements. Borrower must promptly and faithfully comply with, conform to and obey all present and future Governmental Requirements; provided, however, that Borrower will have the ability to contest any alleged failure to conform to or comply with such Governmental Requirements so long as such obligations are diligently contested by appropriate proceedings pursued in good faith and any penalties or other adverse effect of its nonperformance are stayed or otherwise not in effect, or a cash escrow deposit equal to all such contested payments and potential penalties or other charges is established with Administrative Agent, as determined by Administrative Agent in its discretion.
Section 6.19    Notice. Borrower must give prompt written notice (and in any event within 10 Business Days of obtaining knowledge of same) to Administrative Agent of (to the extent known by Borrower): (a) any action or proceeding instituted by or against Borrower or any Guarantor in any federal or state court or before any commission or other regulatory body, Federal, state or local, foreign or domestic which, if adversely determined, could have a material adverse effect on Borrower or Guarantor; or (b) any such proceedings that are threatened in writing against Borrower, or any Guarantor which, if adversely determined, could have a
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material and adverse effect upon Borrower's or any Guarantor's businesses, operations, properties, assets, managements, natures of ownership or conditions (financial or otherwise) or which would constitute an event of default or a default under any other contract, instrument or agreement to which any of them is a party or by or to which any of them or any of their properties or assets may be bound or subject; or (c) any actions, proceedings or notices materially adversely affecting the Project (or any portion thereof) or Administrative Agent's interest therein or any zoning, building or other municipal officers, offices or departments having jurisdiction with respect to the Project or the leasing of it, but expressly excluding any of the foregoing, although it affects Borrower, does not affect Borrower disproportionally as compared to other, similarly situation Persons. For the avoidance of doubt, any changes in general economic conditions (including changes cause by any pandemic, virus or another similar occurrence (including COVID-19) shall not apply to this Section 6.19, or (d) any change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) (regarding the control prong for the Borrower indicating an individual with significant responsibility for managing the Borrower) or (d) (regarding the ownership/equity prong for any Person who owns 25% or more of the equity interests in Borrower) of such Beneficial Ownership Certification, or (e) any event of default (following the expiration of any applicable grace or notice and cure periods) occurs under the Accenture Lease.
Section 6.20    No Other Debt. Borrower will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Loan, any Swap (subject to the terms of Section 6.31 hereof), unsecured trade debt and other expenditures contemplated under this Agreement (including payment of taxes, insurance, tenant improvements and capital expenditures) reasonably incurred in the ordinary course of operating the Borrower's Project, and any indemnity or similar agreement provided by Borrower in favor of Title Company with respect to the Project (all of which are debts which are expressly permitted under the Loan Documents); provided that the foregoing shall not be deemed to prohibit up to $1,000,000 in the aggregate at the Project owing under equipment leases for equipment to be used by Borrower in connection with the Project; and provided further, however, that in no case may such leased equipment be incorporated into any Improvements as part of the structure thereof or otherwise installed as part of any Improvements in such a way that the removal thereof would result in material damage to such Improvements.
Section 6.21    Merger and Consolidation. Borrower may not merge or consolidate into any Person or permit any other Person to merge into it, or acquire (in a transaction analogous in purpose or effect to a consolidation or merger) all or substantially all of the assets of any other Person.
Section 6.22    Loss of Note or other Loan Documents. Upon notice from a Lender of the loss, theft, or destruction of a Note and if requested by Borrower, upon receipt of an affidavit of lost note and an indemnity from such Lender in the form customarily given by institutional lenders, or in the case of mutilation of a Note, upon surrender of such mutilated Note, Borrower must make and deliver a new note of like tenor in lieu of the then to be superseded Note. If any of the other Loan Documents were lost or mutilated, Borrower agrees to execute and deliver replacement Loan Documents in the same form of such Loan Document(s) that were lost or mutilated.
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Section 6.23    Project Accounts. Borrower must maintain all Operating Accounts with Administrative Agent.
Section 6.24    Fees and Expenses. Borrower must pay all reasonable costs and expenses of Administrative Agent and Borrower in connection with the Project, the preparation, review and negotiation of the Loan Documents and the making, underwriting, due diligence, closing, administration, review, amendment, modification, extension, repayment and/or transfer, syndication and/or distribution (including, without limitation, via DebtX and any other internet service selected by Administrative Agent) of the Loan and the Loan Documents, including the fees and expenses of Administrative Agent's attorneys, the fees for Administrative Agent's internal review of the initial Appraisal and any subsequent updates or additional appraisals, the fees for Administrative Agent's internal review of the Environmental Report and/or any subsequent environmental report or up-date thereto, the fees of Administrative Agent's other consultants, the fees associated with the review of the insurance policies and coverages both in connection with the closing and throughout the term of the Loan, appraisal fees, costs of environmental studies and reports, title insurance costs, travel costs and expenses, the cost of any loan brokerage fees, disbursement and advance costs and expenses, the cost of any credit and/or audit investigations (including any Troy reports), recording costs and fees, and all other costs and expenses payable to third parties incurred by Administrative Agent, or Borrower in connection with the Loan. Such costs and expenses must be so paid by Borrower whether or not the Loan is fully advanced or disbursed. Borrower agrees to pay and reimburse Administrative Agent and the Lenders within ten (10) Business Days following written demand for all expenses paid or incurred by Administrative Agent and/or any Lender (including reasonable fees and expenses of legal counsel; provided, however, that Borrower shall be obligated to pay any Lender's legal fees only if such legal fees are incurred by such Lender as a result of Borrower’s Event of Default) in connection with the collection and enforcement of the Loan Documents, or any of them, or incurred in connection with assessing and responding to any subpoena, garnishment or similar process served on Administrative Agent and/or any Lender relating to Borrower, any Collateral, Guarantor, any Loan Document or the extensions of credit evidenced thereby. Borrower agrees to pay, and save Administrative Agent and the Lenders harmless from all liability for, any mortgage registration, mortgage recording, transfer, recording, stamp, like tax or other charge due to any governmental entity, which may be payable with respect to the execution or delivery of the Loan Documents. Borrower agrees to indemnify Administrative Agent and each Lender harmless from any loss or expense which may arise or be created by the acceptance of telephonic or other instructions for making the Loan or disbursing the proceeds thereof except for losses or expenses caused by the gross negligence or willful misconduct of the party seeking indemnification. The obligations of Borrower under this Section will survive termination of this Agreement.
Section 6.25    Distributions.
(a)If an Event of Default has occurred and is continuing, Borrower will not, without the prior written consent of Required Lenders, make any distribution of assets to any member in Borrower, whether or not such a distribution is permitted under the terms of the Borrower's limited liability company agreement, including repayment of any loans made by a member in Borrower to the Borrower, return of capital contributions, distributions upon termination, liquidation or dissolution of the Borrower or any development, property management,
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accounting or other fees payable to a member in the Borrower (unless any such fee has been approved by Required Lenders in writing).
(b)Borrower may not at any time make a distribution of assets that would cause the Loan to constitute an HVCRE loan. Notwithstanding the foregoing or anything else to the contrary in this Agreement, Borrower shall be entitled to make distributions of assets so long as no Event of Default shall have occurred and be continuing.
Section 6.26    Permits, Approvals and Licenses. Borrower must promptly obtain and comply with all necessary licenses, permits and approvals from and, must satisfy within any applicable time periods required by or specified in any Governmental Requirements, the requirements of, all governmental entities necessary to operate the Improvements and must promptly deliver the same to Administrative Agent upon its written request.
Section 6.27    Compliance with Laws; Anti-Money Laundering Laws.
(a)Borrower and Guarantor will, and will cause their respective Subsidiaries to, comply in all material respects with all Laws to which it may be subject including Environmental Laws, Anti-Corruption Laws and applicable Sanctions. Borrower must deliver to Administrative Agent any certification or other evidence reasonably requested from time to time by Administrative Agent in its discretion, confirming compliance with this Section 6.27(a). KBS Capital Advisors LLC will maintain in effect and enforce policies and procedures designed to ensure compliance by Borrower, Guarantor, their respective Subsidiaries with Anti-Corruption Laws and applicable Sanctions.
(b)Borrower and Guarantor will, and will cause their respective Subsidiaries and Affiliates to, within 30 days of demand of same (or a longer time period if reasonably necessary), provide such information and take such actions as are reasonably requested by Administrative Agent or any Lender in order to assist Administrative Agent and the Lenders in maintaining compliance with anti-money laundering Laws.
Section 6.28    Related Party Transactions. Except for the Property Management Agreement, no Borrower may enter into, or be a party to, any contract or other transaction with a Related Party without the prior written consent of Administrative Agent and such contract or other transaction is an arm's-length transaction.
Section 6.29    Lease Approval Rights. Except as specified below, Borrower shall not enter into, amend or modify any lease covering any portion of the Project without Administrative Agent's prior written consent, in Administrative Agent's reasonable discretion, and shall furnish to Administrative Agent, upon execution, a fully executed copy of each such lease entered into by Borrower, together with all exhibits and attachments thereto and all amendments and modifications thereof. For leases that require Administrative Agent approval, Borrower shall provide Administrative Agent with a copy of the Letter of Intent ("LOI") for each proposed lease and, to the extent available, with financial information on the proposed tenant to aid Administrative Agent in determining whether it will consent thereto. Administrative Agent may declare any future leases with key tenants at the Project to be prior or subordinate to the Security Instrument encumbering the Project, at Administrative Agent's sole option, and Borrower shall
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use commercially reasonable efforts to obtain SNDAs to achieve such subordination. A proposed LOI shall be deemed approved by Administrative Agent unless Administrative Agent disapproves such LOI in writing within five (5) Business Days after such LOI is submitted to Administrative Agent for approval. Upon approval (or deemed approval) of the LOI, no further approval will be required by Administrative Agent and Administrative Agent will have granted its consent to the lease that results from the LOI so long as such lease is on a lease form reasonably approved by Administrative Agent (with no material changes which have not been approved by Administrative Agent in writing, provided that such lease form may be modified to address customary lease modifications in the marketplace), and the business terms in the lease are not materially different from the terms outlined in the approved (or deemed approved) LOI and such lease otherwise qualifies as an Approved Lease.
Notwithstanding the first sentence of this Section 6.29, with respect to Qualifying Leases (as defined below), Borrower shall not be obligated to obtain Administrative Agent's prior written consent so long as such lease (i) is on a lease form approved by Administrative Agent (which lease form may be modified to address customary lease modifications in the marketplace) and such lease otherwise qualifies as an Approved Lease; (ii) the net effective rent payable under such lease is equal to or in excess of 90% of market rents at the time the lease is executed; and (iii) the term for such lease is equal to or greater than 1-year.
Borrower shall use commercially reasonable efforts to obtain SNDAs and estoppel statements, in form and substance reasonably satisfactory to Administrative Agent, as to those leases and tenants requested by Administrative Agent, within thirty (30) days of Administrative Agent's request.
For purposes of this Section 6.29, "Qualifying Lease" shall mean a Lease for less than 70,000 square feet.
Section 6.30    Single Purpose Entity Provisions. Borrower’s sole business purpose must be to own and operate the Project. Borrower (a) must conduct business only in its own name, (b) must not engage in any business or own any assets unrelated to the Land and the Improvements, (c) must not have any Indebtedness other than as permitted by this Agreement, (d) must have its own separate books, records, and accounts (with no commingling of assets), (e) must hold itself out as being an entity separate and apart from any other Person, (f) must observe organizational formalities independent of any other entity, and (g) must not change its name, identity, or organizational structure (except as expressly permitted in Section 6.9(b) above), unless Borrower has obtained the prior written consent of Administrative Agent to such change, and has taken all actions necessary or requested by Administrative Agent to file or amend any financing statement or continuation statement to assure perfection and continuation of perfection of security interests under the Loan Documents.
Section 6.31    Swap.
(a)Borrower may enter (or cause Guarantor to enter) into one or more Swaps with one or more financial institutions acceptable to Administrative Agent in its reasonable discretion for the purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan; provided, however, to the extent (x) Borrower is party to such Swap or (y) any such Swap
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is secured by the Property, the terms of such Swap shall be subject to Administrative Agent’s and Lenders’ written consent, which consent shall be subject to Administrative Agent’s and the Lenders’ reasonable discretion. Notwithstanding anything to the contrary contained herein, any Swap entered into by Guarantor in connection with the Loan shall not be secured by the Property.
(b)Borrower or Guarantor, as applicable, must send to Administrative Agent written notice of the execution of any Swap entered in connection with Loan as soon as is reasonably possible after execution, including a copy of the confirmation of the Swap entered in connection with Loan. Borrower or Guarantor, as applicable, must send to Administrative Agent any written notice of default or breach of or under the Swap entered in connection with Loan that Borrower or Guarantor, as applicable, sends to (such notice to Administrative Agent to be sent simultaneously therewith) or receives from (such notice to Administrative Agent to be sent immediately upon receipt by the Borrower thereof) any Person that is a party to any Swap entered in connection with Loan.
Section 6.32    Mandatory Principal Payments. If, as of the end of any calendar quarter, as determined by the quarterly reporting provided by Borrower pursuant to the terms of Section 6.15 above, the outstanding principal balance of the Loan exceeds the Availability Amount then, unless Borrower is in a Compliance Period in accordance with the provisions of Section 6.33 below, Borrower shall, within thirty (30) days of written demand by Administrative Agent, pay down the outstanding principal of the Loan by an amount (as reasonably determined by Administrative Agent, but without paying any prepayment or exit fees other than amounts and sums owing with respect to Swap fees or breakage amounts) sufficient to cause the outstanding principal balance of the Loan to not exceed the Availability Amount. The calculation of the Borrowing Base Amount shall, as to the component of such calculation pertaining to operating income, be based upon Net Operating Income based on the financial information received from Borrower in accordance with Section 6.15 or, if Borrower has failed to deliver such information as and when required by Section 6.15 (or if Administrative Agent reasonably and in good faith believes such information to be inaccurate), such other information as Administrative Agent reasonably and in good faith deems appropriate.
Section 6.33    Minimum Required Debt Service Coverage Ratio. Subject to the following provisions of this Section 6.33, commencing on the December 31, 2020 reporting period, Borrower shall maintain a Debt Service Coverage Ratio of not less than 1.25 to 1.0 (the “Minimum Required Debt Service Coverage Ratio”) tested as of the end of each calendar quarter and upon the occurrence and during the continuance of any Event of Default (each a “DSCR Testing Date”) (in the manner provided for in the definition of Debt Service Coverage Ratio) during the term of the Loan.
(a)Notwithstanding the foregoing, so long as no Event of Default exists, if as of any DSCR Testing Date (based on the statements Borrower is required to submit to Administrative Agent pursuant to Section 6.15 of this Agreement), Administrative Agent determines that the Debt Service Coverage Ratio is equal to or greater than 1.10 to 1.0 but less than 1.25 to 1.0 (“Temporary Permitted Debt Service Coverage Ratio), Borrower shall have two (2) calendar quarters following the applicable DSCR Testing Date (the “Compliance Period”) to cause the Debt Service Coverage Ratio to be equal to or greater than the Minimum Required Debt Service
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Coverage Ratio. If Administrative Agent or Borrower determines that the Debt Service Coverage Ratio at any time is within the Temporary Permitted Debt Service Coverage Ratio and the applicable Compliance Period has expired, Borrower shall, within forty-five (45) days of written demand by Administrative Agent, pay down the outstanding principal amount of the Loan by an amount (as reasonably determined by Administrative Agent, but without paying any prepayment or exit fees other than Swap fees or Swap breakage amounts) sufficient to cause the Debt Service Coverage Ratio to be equal to or greater than the Minimum Required Debt Service Coverage Ratio. If, as of any DSCR Testing Date, the Debt Service Coverage Ratio is less than 1.10 to 1.0, Borrower shall, within forty-five (45) days of written demand by Administrative Agent (without any Compliance Period), pay down the outstanding principal amount of the Loan by an amount (as reasonably determined by Administrative Agent) sufficient to cause the Debt Service Coverage Ratio to be equal to or greater than the Minimum Required Debt Service Coverage Ratio. For purposes of clarification, (i) during the Compliance Period, Administrative Agent and Lenders shall have no obligation to disburse any additional funds from the Revolving Portion and (ii) to the extent any amounts repaid under this Section 6.33 pay down the Revolving Portion, and the Minimum Required Debt Service Ratio is again satisfied as of a subsequent DSCR Testing Date, amounts repaid can be reborrowed subject to the Availability Amount (including any restrictions regarding the Tenant Improvement Allocation) and other applicable conditions contained herein. For purposes of clarification, to the extent any payment is made hereunder towards the Non-Revolving Portion of the Loan, amounts repaid may not be reborrowed and will permanently reduce the maximum Aggregate Commitment of the Loan available to Borrower (with appropriate adjustments to the Non-Revolving Portion and the Revolving Portion of the Loan).
(b)Notwithstanding the foregoing or anything else contained herein which may be construed to the contrary, in the event that the Debt Service Coverage Ratio ever falls below 1.10 to 1.0, (i) there shall be no Compliance Period, or any other grace period for Borrower to remedy that situation, and (ii) Borrower shall, within forty-five (45) days of written demand by Administrative Agent, pay down the outstanding principal amount of the Loan by an amount (as reasonably determined by Administrative Agent, but without paying any prepayment or exit fees other than Swap fees or Swap breakage amounts) sufficient to cause the Debt Service Coverage Ratio to be equal to or greater than the Minimum Required Debt Service Coverage Ratio.
(c)If upon any subsequent DSCR Testing Date the Minimum Required Debt Service Coverage Ratio is satisfied prior to the end of the Compliance Period (so that, for example, Borrower is not required to pay down the Loan), and thereafter, the Minimum Required Debt Service Coverage Ratio is not met, the provisions of Section 6.33(a) above shall again go into effect.
Section 6.34    Personal Property. Borrower is, and after the date hereof, will be the sole owner of all Equipment pertaining to the Borrower's Property, free from any adverse lien, security interest or adverse claim of any kind whatsoever, except for security interests and liens in favor of Agent and other liens approved by Agent, in Agent's sole discretion. Borrower may not, without the prior written consent of Administrative Agent, not to be unreasonably withheld, sell, assign, transfer, or encumber any of the Equipment owned by Borrower. So long as no Event of Default has occurred, Borrower may sell or otherwise dispose of the Equipment when obsolete, worn out, inadequate, unserviceable or unnecessary for use in the operation of the Land
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and the Improvements, but, if material to the operation of the Land and the Improvements, only upon replacing the same with other Equipment comparable in value and utility to the Equipment that is disposed if needed for the operation of the Land and the Improvements. Borrower will deliver to Administrative Agent from time to time, within 10 days of Administrative Agent's request therefore, a list of all Equipment then in existence.
Section 6.35    Further Assurances. Borrower must, at Borrower’s sole cost and expense: (a) execute and deliver to Administrative Agent such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under the Loan Documents, as Administrative Agent may reasonably require; and (b) do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Administrative Agent reasonably requires from time to time.
Section 6.36    Estoppel Statements.
(a)After written request by Administrative Agent, Borrower must within 20 Business Days furnish Administrative Agent with a statement, stating (i) to Borrower’s knowledge, the unpaid principal amount of the Notes, (ii) to Borrower’s knowledge, the then current Loan Rate, (iii) the date installments of interest and/or principal were last paid, (iv) to Borrower’s knowledge, any offsets or defenses to the payment of the Loan, if any, and (v) that this Agreement and the other Loan Documents have not been modified or if modified, giving particulars of such modification.
(b)After written request by Borrower, Administrative Agent much within 20 Business Days furnish borrower with a statement, stating (i) the unpaid principal amount of the Notes, (ii) the then current Loan Rate, (iii) the date installments of interest and/or principal were last paid and (iv) whether or not Administrative Agent has sent any notice of default under the Loan Documents which remains uncured in the opinion of Administrative Agent.
Section 6.37    [Intentionally Deleted].
Section 6.38    Zoning; Assessment Districts.
(a)No Borrower may initiate or consent in writing to any zoning reclassification of all or any portion of the Land or seek any variance under any existing zoning ordinance or use or knowingly permit the use of all or any portion of said Land in any manner that could result in such use becoming a nonconforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior written consent of Administrative Agent (which consent shall not be withheld unreasonably).
(b)Unless otherwise required by applicable Law, no Borrower will, without Administrative Agent's prior written consent (which consent shall not be withheld, conditioned or delayed unreasonably, cause or consent in writing to the formation of any assessment district, or any other comparable or similar district, area or territory which includes the Land or any part of the Land which would require the Land to pay taxes higher than would otherwise be payable
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or require minimum tax payments or cause or otherwise consent to the levying of special taxes, assessments or payments in lieu against the Land and the Improvements or any part thereof, the levying of assessments by any assessment district against the Land and the Improvements or any part thereof, or the levying of assessments, taxes and/or other Taxes by any district, area or territory.
Section 6.39    ERISA Compliance. Borrower will not adopt a Pension Plan. At all times while the Obligations are outstanding, (i) Borrower will not be an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, (ii) none of the assets of Borrower will constitute, by virtue of the application of 29 C.F.R. Section 2510.3-101(f) as modified by Section 3(42) of ERISA, “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101, (iii) Borrower will not be a “governmental plan” within the meaning of Section 3(32) of ERISA, and (iv) transactions by or with Borrower will not be subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans.
Section 6.40    Lease Termination Account. If any tenant of any Lease at the Project shall give notice that it intends to terminate a portion or portions of its Lease in accordance with provisions of the Lease and the fee related to such termination exceeds $1,000,000 (together with the termination fee payable for the termination of that lease or any other lease at the Project with the same tenant) (such leased space being referred to herein as the "Prior Space" and such lease referred to as the "Prior Lease"), Borrower shall, within ten (10) Business Days of written demand by Administrative Agent, deposit in an account with Administrative Agent (the "Lease Termination Account") an amount (the "Required Amount") equal to such lease termination fee paid by the tenant under such Lease (the "Releasing Funds"). At Administrative Agent’s request, Borrower shall promptly confirm (and in any event, within ten (10) Business Days) whether any such terminations have occurred and if any termination fee exceeds the amounts set forth above. Borrower hereby grants to Administrative Agent and Lenders a lien on and security interest in the Lease Termination Account and all such Releasing Funds and all other amounts and funds in the Lease Termination Account (and in all other deposit accounts of Borrower with U.S. Bank or Administrative Agent) to secure all indebtedness and obligations owing to Administrative Agent and Lenders under the Note and other Loan Documents. The Lease Termination Account shall be a blocked account from which Borrower shall have no right of withdrawal except as specified below. So long as no Event of Default has occurred and is continuing, Borrower may request that Administrative Agent release funds from the Lease Termination Account for the purposes of paying or reimbursing Borrower for leasing commissions and Tenant Improvement costs at the Project (in accordance with the conditions on disbursing such funds under Article III of this Agreement; provided, for purposes of this Section 6.40, references to the Accenture Lease shall be deemed to be references to any Approved Lease at the Project), and Administrative Agent shall not unreasonably withhold, condition or delay such consent, and shall promptly disburse any such funds to Borrower, provided that such monies are designated for and in fact used for such purposes. U.S. Bank, as depository bank, shall take directions from U.S. Bank, as Administrative Agent, with respect to the Lease Termination Account, and all funds therein; and Borrower shall not have the authority to direct U.S. Bank, as depository bank, as to the Lease Termination Account or the funds therein. Once any Prior Space is once again at least 90% leased pursuant to a Lease (or Leases) which satisfies the requirements of Section 6.29 hereof, and the tenant (or tenants) thereunder are in possession,
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and all Tenant Improvement costs, leasing commissions, and all other sums and amounts payable in connection with the releasing of the applicable Prior Space have been paid in full (the "Release Threshold"), providing that no Event of Default, or event that with the giving of notice and/or the passage of time could become an Event of Default, has occurred and is continuing, Administrative Agent shall promptly return to Borrower any remaining unused funds then on deposit in the Lease Termination Account. The Lease Termination Account shall be an interest bearing account that bears interest at a rate which U.S. Bank determines is typical and reasonable for similar deposit accounts with U.S. Bank. Any interest accruing in such account shall accrue for the Borrower's benefit (subject to the Administrative Agent's and Lenders' lien and rights to apply such sums and interest to the Loan upon the occurrence, and during the continuance of, of an Event of Default).
Section 6.41    Post-Closing SNDA Covenant. Within 90 days of the Closing Date, Borrower shall use commercially reasonable efforts to obtain Subordination, Attornment and Non-Disturbance Agreements in form and substance reasonably acceptable to Administrative Agent from the top 5 tenants at the Project based on total revenue under the applicable Lease.
ARTICLE VII
COVENANTS REGARDING OPERATING ACCOUNTS; SECURITY AGREEMENT
During the term of the Loan, Borrower will maintain the following accounts:
Section 7.1    [Intentionally Deleted].
Section 7.2    Operating Account. Borrower agrees to open and maintain an Operating Account for the Project at Administrative Agent. Borrower must at all times deposit, or cause to be deposited, all gross revenues and other income from the Project into the Operating Account.
Section 7.3    Security Agreement for Operating Accounts. Borrower will open and maintain at Administrative Agent the Operating Accounts under the terms and conditions set forth above. Borrower hereby grants to Administrative Agent, for the benefit of itself and the Lenders, a first lien security interest in each of the Operating Accounts, whether now existing or hereafter established, and all funds from time to time on deposit therein. Borrower will maintain each Operating Account free and clear of any claim, lien or other encumbrance other than the security interest granted to Administrative Agent hereunder. Upon the occurrence and during the continuance of an Event of Default, Administrative Agent may, to the maximum extent permissible by law, apply any or all of the funds in the Operating Accounts, including accrued interest on such funds, if any, toward the unpaid balance of the Loan and/or to any other amounts which may be due and owing under the Loan Documents. The parties acknowledge and agree that each of the Operating Accounts is a "deposit account" within the meaning of Section 9104 of the UCC. The parties further acknowledge and agree that Illinois constitutes the "Administrative Agent's jurisdiction" with respect to the perfection, the effect of perfection or non-perfection, and the priority of a security interest in a deposit account maintained at a bank under Section 9304(b)(1) of the UCC. Administrative Agent will at all times have "control" of the Operating Accounts and all assets now or hereafter credited thereto within the meaning of Section 9106 of
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the UCC or Section 9104(a) of the UCC for purposes of maintaining its first and prior perfected security interest therein.
ARTICLE VIII
DEFAULTS
Section 8.1    Events of Default. Any of the following events constitutes an Event of Default under this Agreement (each an "Event of Default"):
(a)Borrower defaults in any payment of principal within three (3) Business Days after the same becomes due according to the terms of this Agreement or of any Note (other than principal owing on the Maturity Date or any earlier acceleration date);
(b)Borrower defaults in the payment of interest due according to the terms of this Agreement or of any Note, or of fees or other amounts payable to Administrative Agent or any Lender hereunder or under any other document other than as set forth in Section 8.1(a), and such default continues unremedied for a period of three (3) Business Days after notice from Administrative Agent to Borrower thereof;
(c)A default occurs in the performance of Borrower's obligations in Section 6.4(b) (Use of Proceeds), 6.15 (Reporting Requirements) (provided Borrower fails to provide the required statements within ten (10) Business Days of Administrative Agent's notice to Borrower requesting same), 6.17(i) (Maintain Existence), 6.19(b) and (e) (regarding notices of default), 6.25 (Distributions), 6.27 (Compliance with Anti-Corruption Laws; Anti-Money Laundering Laws), 6.30 (Single Purpose Entity Provisions, provided Borrower fails to remedy the situation within 30 days of having knowledge of any such failure), 6.39 (ERISA Compliance), and 6.40 (Lease Termination Account);
(d)Borrower or Guarantor defaults in the performance or observance of any agreement, covenant or condition required to be performed or observed by the Borrower or Guarantor (as applicable) under the terms of this Agreement, any other Loan Document, other than a default described elsewhere in this Section 8.1, and such default continues unremedied for a period of 30 days after notice from Administrative Agent to Borrower or Guarantor (as applicable) thereof; provided that, if a cure cannot reasonably be effected within such 30-day period and so long as Borrower or Guarantor (as applicable) commence(s) a cure within 10 days after receipt of such notice and thereafter diligently and expeditiously proceed(s) to cure such Default to completion, then such 30-day period will be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such default, such extension not to exceed 60 days; and provided further, however, that notwithstanding the 30-day cure period or 60-day extended cure period described above in this subparagraph (d), if a different notice or cure period is specified under any Loan Document or under any provision of the Loan Documents as to any such failure or breach, the specific Loan Document or provision controls, and Borrower will have no more time to cure the failure or breach than is allowed under the specific Loan Document or provision as to such failure or breach; Any representation or warranty made by Borrower in this Agreement or any other Loan Document, or a Guarantor, if made in connection with the Loan, in any of the other Loan Documents, or in any certificate or
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document furnished under the terms of this Agreement or in connection with the Loan, shall be untrue or incomplete in any material respect provided, to the extent curable and to the extent Administrative Agent determines a breach was not intentional, Borrower or Guarantor (as applicable) shall have thirty (30) days to remedy the untrue or incomplete representation, warranty, document or other material (so that it is true and complete in all material respects), before such event constitutes an Event of Default hereunder;
(e)Borrower, Guarantor and/or any other obligor under any Loan Document is in default under any term, covenant or condition hereunder or under any of the other Loan Documents to which Borrower, Guarantor and/or such obligor, as applicable, is a party, other than a default described elsewhere in this Section 8.1, after the expiration of any notice or grace period provided therein, provided that, (1) if no notice, compliance or cure period is provided, then this clause (e) shall not apply and clause (d) above shall apply instead and (2) if there is an express compliance period specified, but no notice and cure period, so long as Administrative Agent has knowledge of same, and such default was not intentional, such default shall not constitute an Event of Default until Borrower has received notice from Administrative Agent and 5 Business Days’ to cure;
(f)Borrower, any Guarantor or any Affiliate of any of them, commits an act of bankruptcy; or applies for, consents to in writing or permits the appointment of a receiver, custodian, trustee or liquidator for it or any of its property or assets; or generally fails to, or admits in writing its inability to, pay its debts as they mature; or makes a general assignment for the benefit of creditors or is adjudicated bankrupt or insolvent; or takes other similar action for the benefit or protection of its creditors; or gives notice to any governmental body of insolvency of pending insolvency or suspension of operations; or files a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors, or takes advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, rearrangement, dissolution, liquidation or other similar debtor relief law or statute; or files an answer admitting the material allegations of a petition filed against it in any proceeding under any such law or statute; or is dissolved, liquidated, terminated or merged; or effects a plan or other arrangement with creditors; or a trustee, receiver, liquidator or custodian is appointed for it or for any of its property or assets and is not discharged within 90 days after the date of his appointment; or a petition in involuntary bankruptcy or similar proceedings is filed against it and is not dismissed within 90 days after the date of its filing;
(g)Borrower, any Guarantor or any Affiliate of any of them, dissolves, terminates or winds-up or consolidates or merges with any other Person;
(h)Borrower fails to perform their obligations under Section 6.32 within the time period set forth therein;
(i)A transfer, encumbrance, lien, change of ownership or other action or occurrence prohibited by this Agreement or any Security Instrument shall occur (and all notice and cure periods, if any, have elapsed) or Borrower fails to remove any lien in accordance with the terms of this Agreement or any Security Instrument (after all notice and cure periods, if any, have elapsed);

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(j)Any Guarantor for any reason contests, repudiates or purports to revoke any Guaranty or the Indemnity, or any Guaranty or the Indemnity at any time and for any reason ceases to be in full force and effect;
(k)Guarantor is not in compliance with its financial covenants under any Guaranty;
(l)The occurrence or existence of any event of default by Borrower or Guarantor with respect to any Lender-Provided Swap entered into in connection with the Loan (executed by Borrower or Guarantor or secured by any collateral for the Loan) at the discretion of Administrative Agent beyond any applicable notice and cure periods.
(m)Borrower shall fail to maintain insurance as required by this Agreement (which, for purposes of clarification, shall not include the Environmental Insurance Policy, it being understood by the parties that termination of such Environmental Insurance Policy shall not be an Event of Default, or constitute a breached obligation under this Agreement, but instead shall only trigger liability of the Guarantor under the Guaranty for any amounts owing by Borrower under the Environmental Indemnity, as more fully set forth in the Guaranty) or shall fail to furnish to Administrative Agent proof of payment of all premiums for such insurance within five (5) business days following Administrative Agent's written request for same (provided that Borrower has received proof of such payment at the time Administrative Agent requests such proof).
Section 8.2    Rights and Remedies. Upon the occurrence, and during the continuance, of an Event of Default, unless such Event of Default is subsequently waived in writing by the Required Lenders (provided that the Required Lenders have no obligation whatsoever to grant any such waiver and any such waiver, if granted, will be considered a one-time waiver unless otherwise specified), Administrative Agent and/or the Lenders, may exercise any or all of the following rights and remedies, consecutively or simultaneously, and in any order:
(a)The Lenders may make one or more Advances without obligation or liability to make any subsequent Advance;
(b)Administrative Agent may, and at the request of the Required Lenders will, suspend or terminate the obligation of the Lenders to make Advances without notice to Borrower, provided, however, that if an Event of Default occurs under Section 8.1(h), the Lenders' obligation to make Advances to Borrower will immediately and automatically terminate without any action of Administrative Agent or the Lenders and without notice to or demand on Borrower, provided further, however, that these remedies do not limit or restrict the Required Lenders' right to suspend making Advances if a Default occurs;
(c)Administrative Agent may, and at the request of the Required Lenders will, declare that the Commitments are terminated whereupon the Commitments will be terminated;
(d)Administrative Agent may, and at the request of the Required Lenders will, declare the entire unpaid principal balance of the Notes to be immediately due and payable, together with accrued and unpaid interest on such Advances, without notice to or demand on Borrower, provided, however, that if an Event of Default occurs under Section 8.1(f), such
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amounts will become immediately and automatically due and payable without any action of the Required Lenders or Administrative Agent and without notice to or demand on Borrower;
(e)Administrative Agent may, and at the request of the Required Lenders will, exercise any or all remedies specified herein and in the other Loan Documents against Borrower, Guarantor and/or any other party to the Loan Documents, including (without limiting the generality of the foregoing) the right to foreclose the Security Instrument, and/or any other remedies which it may have therefor at law, in equity or under statute;
(f)Administrative Agent will have the right to cure the Event of Default on behalf of Borrower, and, in doing so, enter upon the Project, and expend such sums as it may deem desirable, including attorneys' fees. All funds so expended will be added to the Obligations and constitute a portion of the Loan, will bear interest at the Default Rate provided herein and will be payable by Borrower on demand; and/or
(g)Administrative Agent will have the right, in person or by agent, in addition to all other rights and remedies available to Administrative Agent under this Agreement and the other Loan Documents and all other remedies permitted by law, to the fullest extent permitted by law, to take possession of the Project and perform any and all work and labor necessary to complete the Improvements pertaining thereto (with such modifications thereto as deemed appropriate by Administrative Agent), and employ watchmen to protect the Lenders' interest in the Project. All reasonable sums so expended by Administrative Agent will be deemed to have been paid to Borrower and constitute Obligations. Effective upon the occurrence and during the continuance of an Event of Default, Borrower hereby constitutes and appoints Administrative Agent its true and lawful attorney-in-fact, with full power of substitution, to so complete the Improvements in the name of the Borrower. Borrower hereby empower said attorney to: (a) use any funds of Borrower, including any funds which may remain undisbursed hereunder for the purpose of so completing the Improvements; (b) make such additions, changes and corrections thereto as Administrative Agent deems appropriate; (c) employ such contractors, subcontractors, agents, architects and inspectors as are required for said purposes; (d) pay, settle or compromise all existing bills and claims which may be liens against the Project, or as may be necessary or desirable for such completion of the Improvements or for clearance of title; (e) execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (f) prosecute and defend all actions or proceedings in connection with the Project or the construction of the Improvements and take such action and require such performance as it deems necessary under any bond or guaranty of completion; and (g) do any and every act which Borrower might do on its own behalf. It is further understood and agreed that this power of attorney, which will be deemed to be a power coupled with an interest, cannot be revoked.
Section 8.3    Application of Funds. After the exercise of remedies provided for in Section 8.2 (or after the entire unpaid principal balance of the Notes, together with accrued and unpaid interest on such Advances, have automatically become immediately due and payable as set forth in Section 8.2(d)), any amounts received by Administrative Agent on account of the Obligations shall be applied by Administrative Agent, subject to Sections 9.19, 9.21 and 9.22, in the following order:

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(a)First, to payment of fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to Administrative Agent and amounts payable under Sections 2.6 and 2.10) payable to Administrative Agent in its capacity as such;
(b)second, to payment of fees, indemnities and other reimbursable expenses (other than principal and interest payable to the Lenders) (including fees, charges and disbursements of counsel to the respective Lenders as required by Section 10.1 and amounts payable under Sections 2.6 and 2.10);
(c)third, to payment of accrued and unpaid interest on the Advances ratably among the Lenders;
(d)fourth, to payment of all Obligations ratably among the Lenders and any Affiliate of a Lender, other than any Lender-Provided Swaps;
(e)fifth, to Lender-Provided Swaps, if any; and
(f)last, the balance, if any, to Borrower or as otherwise required by law;
provided, however, that, notwithstanding anything to the contrary set forth above, Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other parties to preserve the allocation to Obligations otherwise set forth above in this Section 8.3.
Obligations arising under Lender-Provided Swaps provided by a Lender or Affiliate of a Lender other than U.S. Bank or one of its Affiliates shall be excluded from the application described above if Administrative Agent has not received written notice thereof, together with such supporting documentation as Administrative Agent requests, from the applicable Lender (or Affiliate of a Lender) in accordance with the definition of “Obligations.” Each Affiliate of a Lender that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.
Section 8.4    Rights to Cure Defaults and Protection of Collateral. After the occurrence, and during the continuance, of any Default or Event of Default, Administrative Agent may, but without any obligation to do so and without notice to or demand on Borrower and without releasing Borrower from any Obligations, make any payment or do any act required of Borrower hereunder or in the other Loan Documents with respect to any Obligations, which payment or action on the part of Administrative Agent will be in such manner and to such extent as Administrative Agent, in its discretion, deems necessary to protect the Collateral. Administrative Agent is authorized to enter upon the Project for such purposes, or appear in, defend, or bring any action or proceeding to protect its interest in the Project or to foreclose the Security Instrument or to collect the Obligations, and the cost and expense thereof (including attorneys' fees and expenses to the extent permitted by law), with interest as provided in this Section 8.4, will be due and payable to Administrative Agent upon demand. All such costs and expenses incurred by Administrative Agent in remedying any Default or Event of Default or in appearing in, defending, or bringing any such action or proceeding will bear interest at the
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Default Rate, for the period beginning on the first day that such cost or expense was incurred and continuing until the date of payment to Administrative Agent. All such costs and expenses incurred by Administrative Agent, together with interest thereon calculated at the Default Rate, will constitute a portion of the Loan and to be secured by the Security Instrument and the other Loan Documents and are immediately due and payable upon demand by Administrative Agent therefor.
Section 8.5    [Intentionally Deleted].
Section 8.6    Acceptance of Payments. Borrower agrees that if Borrower makes a tender of a payment but does not simultaneously tender payment of any late charge, Default Rate interest, or any other amount then due and owing by Borrower under this Agreement or the other Loan Documents, and such payment is accepted by Administrative Agent or any Lender, with or without protest, such acceptance will not constitute any waiver of Administrative Agent's or such Lender's rights to receive such amounts. Furthermore, if Administrative Agent or any Lender accepts any payment from Borrower or Guarantor after a Default or Event of Default, such acceptance will not constitute a waiver or satisfaction of any such Default or Event of Default (except to the extent such payment cures such Default or Event of Default). Any waiver or satisfaction of a Default or Event of Default must be evidenced by an express writing of Administrative Agent.
ARTICLE IX
ADMINISTRATIVE AGENT; INTERCREDITOR PROVISIONS
Section 9.1    Appointment; Nature of Relationship. U.S. Bank is hereby appointed by each of the Lenders as its contractual representative (herein referred to as "Administrative Agent") hereunder and under each other Loan Document, and each of the Lenders irrevocably authorizes Administrative Agent to act as the contractual representative of such Lender with the rights and duties expressly set forth herein and in the other Loan Documents. Administrative Agent agrees to act as such contractual representative upon the express conditions contained in this Article IX. Notwithstanding the use of the defined term "Administrative Agent," it is expressly understood and agreed that Administrative Agent will not have any fiduciary responsibilities to any Lender by reason of this Agreement or any other Loan Document and that Administrative Agent is merely acting as the contractual representative of the Lenders with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the Lenders' contractual representative, Administrative Agent (i) will not hereby assume any fiduciary duties to any of the Lenders, and (ii) is a "representative" of the Lenders within the meaning of the term "secured party" as defined in the Illinois Uniform Commercial Code and (iii) is acting as an independent contractor, the rights and duties of which are limited to those expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders hereby agrees to assert no claim against Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender hereby waives. Administrative Agent shall perform its duties hereunder in accordance with the same standard of care as that customarily exercised by Administrative Agent with respect to the administration of other similar facilities. Without the consent of all Lenders, Administrative Agent shall not delegate all or any portion of its responsibilities under this Loan Agreement and the other Loan
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Documents to any servicer with regard to the granting of any approval or consent under the Loan Documents or the other administration or enforcement of the Loan or the discharge of Administrative Agent’s or Lender’s obligations under the Loan (other than purely administrative matters such as calculating interest payments or verifying payments and deposits). Unless consented to by all Lenders, Lenders shall not be responsible for any set-up fees or any other costs relating to or arising under any servicing agreement, and Lenders shall not be responsible for payment of any monthly servicing fee due to the servicer under the servicing agreement.
Section 9.2    Powers. Administrative Agent has and may exercise such powers under the Loan Documents as are specifically delegated to Administrative Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto. Administrative Agent has no implied duties to the Lenders, or any obligation to the Lenders to take any action thereunder except any action specifically provided by the Loan Documents to be taken by Administrative Agent.
Section 9.3    General Immunity. Neither Administrative Agent nor any of its directors, officers, agents or employees will be liable to Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in connection herewith or therewith except to the extent such action or inaction is determined in a final non-appealable judgment by a court of competent jurisdiction to have arisen from the gross negligence or willful misconduct of such Person.
Section 9.4    No Responsibility for Advances, Recitals, etc. Neither Administrative Agent nor any of its directors, officers, agents or employees will be responsible for or have any duty to ascertain, inquire into, or verify (a) any statement, warranty or representation made in connection with any Loan Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements of any obligor under any Loan Document, including, without limitation, any agreement by an obligor to furnish information directly to each Lender; (c) the satisfaction of any condition specified in Article III, except receipt of items required to be delivered solely to Administrative Agent; (d) the existence or possible existence of any Default or Event of Default; (e) the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan Document or any other instrument or writing furnished in connection therewith; (f) the value, sufficiency, creation, perfection or priority of any Lien in any collateral security; or (g) the financial condition of Borrower or any Guarantor of any of the Obligations.
Section 9.5    Action on Instructions of Lenders. Administrative Agent will in all cases be fully protected in acting, or in refraining from acting, hereunder and under any other Loan Document in accordance with written instructions signed by the Required Lenders, and such instructions and any action taken or failure to act pursuant thereto will be binding on all of the Lenders. The Lenders hereby acknowledge that Administrative Agent will be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement or any other Loan Document unless it is requested in writing to do so by the Required Lenders. Administrative Agent will be fully justified in failing or refusing to take any action hereunder and under any other Loan Document unless it is first indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action. Administrative Agent may, at any time, request instructions from the Required Lenders with respect to any actions or approvals
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which, by the terms of this Agreement or any of the Loan Documents, Administrative Agent is permitted or required to take or to grant without consent or approval from the Required Lenders, and if such instructions are promptly requested, Administrative Agent will be absolutely entitled to refrain from taking any action or to withhold any approval under any of the Loan Documents and will not have any liability for refraining from taking any action or withholding any approval under any of the Loan Documents until it has received such instructions from the Required Lenders.
Section 9.6    Employment of Administrative Agent and Counsel. Administrative Agent may execute any of its duties as Administrative Agent hereunder and under any other Loan Document by or through employees, agents, and attorneys-in-fact. Administrative Agent will not be responsible for the negligence or misconduct of any agents or attorneys-in-fact except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that Administrative Agent acted with gross negligence or willful misconduct in the selection of agents or attorneys-in-fact.
Section 9.7    Reliance of Documents; Counsel. Administrative Agent is entitled to rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, electronic mail message, statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and, in respect to legal matters, upon the opinion of counsel selected by Administrative Agent, which counsel may be employees of Administrative Agent.
Section 9.8    Protective Advances. Each Lender hereby authorizes Administrative Agent, without the necessity of any notice or further consent from any Lender, from time to time prior to a Default, to make any Protective Advance with respect to any Collateral or the Loan Documents which may be necessary to protect the priority, validity or enforceability of any lien on, and security interest in, any Collateral and the instruments evidencing or securing the obligations of Borrower under the Loan Documents. In addition, Administrative Agent may, after notice to Borrower, make Protective Advances during any twelve (12) month period with respect to any Collateral up to the sum of (i) amounts expended to pay real estate taxes, assessments and governmental charges or levies imposed upon such Collateral; and (ii) amounts expended to pay insurance premiums for policies of insurance related to the Project. Any additional Protective Advances requires the consent of the Required Lenders. Borrower agrees to pay on demand all Protective Advances. The Lenders must reimburse Administrative Agent for any Protective Advances (in accordance with their Pro Rata Shares) to the extent not reimbursed by Borrower.
Section 9.9    Foreclosure. In the event that all or any portion of the Project is acquired by Administrative Agent as the result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, title to the Project or any portion thereof will be held in the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of itself and the Lenders, or in an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent will prepare a recommended course of action for the Project (the "Post-Foreclosure Plan") and submit it to the Lenders for approval by the Required Lenders. In the absence of an approved Post Foreclosure Plan, Administrative Agent may make such decisions and incur such expenses
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relating to the ownership, operation, maintenance and marketing of the Project as Administrative Agent reasonably determines are necessary, and Administrative Agent’s and the Lenders’ interest therein, and the Lenders must reimburse and indemnify Administrative Agent for any such decisions in accordance with Section 9.10. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan within thirty (30) days from the date Administrative Agent submitted the Post-Foreclosure Plan to the Lenders, any Lender will be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent will submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. If the Required Lenders have not agreed on a proposed course of action by the end of six (6) months days after the occurrence of the Maturity Date or the acceleration of the Loan, as applicable, Administrative Agent shall be authorized to commence to foreclose on, or otherwise realize on, the Project and otherwise exercise such other remedies as Administrative Agent determines are necessary (and Administrative Agent will exercise any such remedies in a commercially reasonable manner) and Administrative Agent may incur such expenses relating to the ownership, operation, maintenance and marketing of the Project, and the Lenders must reimburse and indemnify Administrative Agent for any such decisions in accordance with Section 9.10. In accordance with the approved Post-Foreclosure Plan, Administrative Agent will manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Project acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of the Project, and the collecting of rents and other sums from the Project and paying the expenses of the Project. Upon demand therefor from time to time, each Lender will contribute its Pro Rata Share of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, leasing and sale of the Project. In addition, Administrative Agent will render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for the Project, and each of the Lenders must promptly contribute its Pro Rata Share of any operating loss for the Project, and such other expenses and operating reserves as Administrative Agent deems reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from the Project, Administrative Agent will, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions will be made to the Lenders in proportion to their Pro Rata Share. The Lenders acknowledge that if title to the Project is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, the Project will not be held as a permanent investment but will be disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Administrative Agent will undertake to sell the Project at such price and upon such terms and conditions as the Required Lenders reasonably determine to be most advantageous; provided (1) for the first 60 days following any such acquisition of title, any sale or other disposition of the Project at a price less than the total amount of all outstanding Obligations shall require the consent of all Lenders, and (2) at any time thereafter, any such acquisition of title, any sale or other disposition of the Project at a price less than the total amount of all outstanding Obligations shall require the consent of Required Lenders. Any purchase money mortgage or deed of trust taken in connection with the disposition of the Project in accordance with the immediately preceding sentence will name Administrative Agent, as agent for the Lenders, as the beneficiary
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or mortgagee. In such case, Administrative Agent and the Lenders will enter into an agreement with respect to such purchase money mortgage defining the rights of the Lenders in the same, which agreement will be in all material respects similar to the rights of the Lenders with respect to the Project. The Lenders agree not to unreasonably withhold or delay their approval of a Post-Foreclosure Plan or any third party offer to purchase the Project. An offer to purchase the Project at a gross purchase price of 95% of the fair market value of the Project as set forth in a current appraisal, will be deemed to be a reasonable offer.
Section 9.10    Administrative Agent's Reimbursement and Indemnification. The Lenders agree to reimburse and indemnify Administrative Agent ratably in proportion to their respective Pro Rata Shares (i) for any amounts not reimbursed by Borrower for which Administrative Agent is entitled to reimbursement by Borrower under the Loan Documents, (ii) for any other expenses incurred by Administrative Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the Loan Documents (including, without limitation, for any expenses incurred by Administrative Agent in connection with any dispute between Administrative Agent and any Lender or between two or more of the Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against Administrative Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection therewith or the transactions contemplated thereby (including, without limitation, for any such amounts incurred by or asserted against Administrative Agent in connection with any dispute between Administrative Agent and any Lender or between two or more of the Lenders), or the enforcement of any of the terms of the Loan Documents or of any such other documents, provided that (i) no Lender will be liable for any of the foregoing to the extent any of the foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of Administrative Agent and (ii) any indemnification required pursuant to Section 2.10(d) will, notwithstanding the provisions of this Section 9.10, be paid by the relevant Lender in accordance with the provisions thereof. The obligations of the Lenders under this Section 9.10 will survive payment of the Obligations and termination of this Agreement.
Section 9.11    Notice of Event of Default. Administrative Agent will not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless Administrative Agent has received written notice from a Lender or Borrower referring to this Agreement describing such Default or Event of Default and stating that such notice is a "notice of default". In the event that Administrative Agent receives such a notice, Administrative Agent will give prompt notice thereof to the Lenders; provided that, except as expressly set forth in the Loan Documents, Administrative Agent will not have any duty to disclose, and will not be liable for the failure to disclose, any information relating to Borrower that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity.
Section 9.12    Rights as a Lender. In the event Administrative Agent is a Lender, Administrative Agent will have the same rights and powers hereunder and under any other Loan Document with respect to its Commitment and its loans as any Lender and may exercise the same as though it were not Administrative Agent, and the term "Lender" or "Lenders" will, at any time when Administrative Agent is a Lender, unless the context otherwise indicates, include
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Administrative Agent in its individual capacity. Administrative Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Loan Document, with Borrower or any of its affiliates in which any the Borrower or such affiliate is not restricted hereby from engaging with any other Person.
Section 9.13    Lender Credit Decision, Legal Representation.
(a)Each Lender acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender and based on the financial statements prepared by Borrower and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Loan Documents. Each Lender also acknowledges that it will, independently and without reliance upon Administrative Agent or any other Lender and based on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents. Except for any notice, report, document or other information expressly required to be furnished to the Lenders by Administrative Agent hereunder, Administrative Agent will have no duty or responsibility (either initially or on a continuing basis) to provide any Lender with any notice, report, document, credit information or other information concerning the affairs, financial condition or business of Borrower or any of their respective Affiliates that may come into the possession of Administrative Agent (whether or not in its capacity as Administrative Agent) or any of their Affiliates.
(b)Each Lender further acknowledges that it has had the opportunity to be represented by legal counsel in connection with its execution of this Agreement and the other Loan Documents, that it has made its own evaluation of all applicable Laws and regulations relating to the transactions contemplated hereby, and that the counsel to Administrative Agent represents only Administrative Agent and not the Lenders in connection with this Agreement and the transactions contemplated hereby.
Section 9.14    Successor Administrative Agent.
(a)Administrative Agent may resign at any time by giving written notice thereof to the Lenders and Borrower, such resignation to be effective upon the appointment of a successor Administrative Agent or, if no successor Administrative Agent has been appointed, 30 days after the retiring Administrative Agent gives notice of its intention to resign. Upon any such resignation, if no successor Administrative Agent has been appointed pursuant to the immediately following sentence in this Section 9.14, the Required Lenders shall appoint (upon consultation with Borrower so long as no Event of Default exists), on behalf of Borrower and the Lenders, a successor Administrative Agent. If an Event of Default occurs and is continuing, if no successor Administrative Agent has been appointed by the Required Lenders within 15 days after the resigning Administrative Agent's giving notice of its intention to resign, then the resigning Administrative Agent shall appoint (upon consultation with Borrower so long as no Event of Default exists), on behalf of Borrower and the Lenders, a successor Administrative Agent. Notwithstanding the previous sentence, Administrative Agent may at any time without the consent of Borrower or any Lender, appoint any of its Affiliates which is a commercial bank as a successor Administrative Agent hereunder. Upon the appointment as Administrative Agent
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hereunder by a successor Administrative Agent, such successor Administrative Agent will thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Administrative Agent. Upon the effectiveness of the resignation of Administrative Agent, the resigning Administrative Agent will be discharged from its duties and obligations hereunder and under the Loan Documents. After the effectiveness of the resignation of an Administrative Agent, the provisions of this Article IX will continue in effect for the benefit of such Administrative Agent in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent hereunder and under the other Loan Documents. In the event that there is a successor to Administrative Agent by merger, or Administrative Agent assigns its duties and obligations to an Affiliate pursuant to this Section 9.14, then the term “Prime Rate” as used in this Agreement will mean the prime rate, base rate or other analogous rate of the new Administrative Agent.
(b)In the event (i) of the occurrence of any material gross negligence or willful misconduct of Administrative Agent with respect to the administration of the Loan or Administrative Agent’s duties under the Loan and the Loan Documents as expressly provided herein and as determined by a final unappealable judgment by a court of competent jurisdiction, if all of Lenders (other than a Lender that is then acting as Administrative Agent) agree or (ii) Administrative Agent is a Defaulting Lender and the Required Lenders agree, then Administrative Agent may be removed as the administrative agent; provided, however, that no such removal of Administrative Agent shall in any way affect the rights of Administrative Agent in its individual capacity as a Lender.
Section 9.15    Delegation to Affiliates. Borrower and the Lenders agree that Administrative Agent may delegate any of its duties under this Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents and employees) which performs duties in connection with this Agreement will be entitled to the same benefits of the indemnification, waiver and other protective provisions to which Administrative Agent is entitled under this Article IX and Section 10.1.
Section 9.16    Borrower, Collateral and Guarantor Releases. The Lenders hereby empower and authorize Administrative Agent to execute and deliver to Borrower on their behalf any agreements, documents or instruments as are necessary or appropriate to effect any releases of a Borrower and the Collateral or any portion thereof which is permitted by the terms hereof or of any other Loan Document (including, without limitation, in connection with any asset sale permitted hereunder or in connection with any release of a borrower or guarantor made in accordance with the Loan Documents) or which otherwise has been approved by the Required Lenders (or, if required by the terms of Section 10.12, all of the Lenders) in writing. In addition, the Lenders authorize Administrative Agent to release Borrower or Guarantor from its obligations under the Loan Documents if such Person is no longer required to be a borrower or guarantor under the Loan Documents, as applicable. Upon the request of Administrative Agent at any time, the Required Lenders will confirm in writing Administrative Agent's authority to release its interest in the Collateral or any portion thereof, or to release Borrower or Guarantor from its respective obligations under the Loan Documents pursuant to the foregoing. In each case as specified hereto, Administrative Agent (and each Lender hereby authorizes Administrative Agent to), at Borrower’s expense, execute and deliver to Borrower such
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documents as Borrower may reasonably request to evidence the release of the Collateral or portion thereof from the security interest granted under the Loan Documents, or to release a borrower or guarantor from its obligations under any Loan Documents, in each case in accordance with the terms of the Loan Documents.
Section 9.17    No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding this Agreement provided by Administrative Agent and any book runner and the Lenders are arm's-length commercial transactions between Borrower and their respective Affiliates, on the one hand, and the Lenders, Administrative Agent and any book runner on the other hand, (B) Borrower has consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate, and (C) Borrower is capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) Administrative Agent, any book runner and each of the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Borrower or any of their respective Affiliates, or any other Person and (B) neither Administrative Agent, any book runner nor any Lender has any obligation to Borrower or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) Administrative Agent, any book runner, each of the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrower and their respective Affiliates, and neither Administrative Agent, any book runner nor any Lender has any obligation to disclose any of such interests to Borrower or Borrower's Affiliates.  To the fullest extent permitted by law, Borrower hereby waives and releases any claims that any of them may have against Administrative Agent, any book runner and each of the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
Section 9.18    Documentation Agent, Syndication Agent, etc. None of the Lenders identified in this Agreement as an “arranger” or a "co-agent" or a "book runner" or a “syndication agent” will have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders will have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to such Lenders as it makes with respect to Administrative Agent in Section 9.13.
Section 9.19    Pro Rata Treatment. Except to the extent otherwise provided herein: (a) each Advance from the Lenders will be made from the Lenders, each payment of the fees will be made for the account of the Lenders, and each termination or reduction of the amount of the Aggregate Commitment pursuant to this Agreement will be applied to the respective Commitments of the Lenders, pro rata in accordance with their respective Commitments; (b) each payment or prepayment of principal of the Loan by Borrower will be made for the account of the Lenders pro rata in accordance with their respective Pro Rata Shares, provided that if immediately prior to giving effect to any such payment in respect of the Loan the outstanding principal amount of the Loan will not be held by the Lenders pro rata in accordance
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with their respective Pro Rata Shares, then such payment will be applied to the Loan in such manner as will result, as nearly as is practicable, in the outstanding principal amount of the Loan being held by the Lenders pro rata in accordance with their respective Pro Rata Shares; and (c) each payment of interest on the Loan by Borrower will be made for the account of the Lenders pro rata in accordance with their respective Pro Rata Shares.
Section 9.20    Security Interest in Deposits. Borrower hereby grants each Lender a security interest in all deposits, credits and deposit accounts (including all account balances, whether provisional or final and whether or not collected or available) of Borrower with such Lender or any Affiliate of such Lender to secure the Obligations. In addition to, and without limitation of, any rights of the Lenders under applicable Law, if any Event of Default has occurred and is continuing, Borrower authorizes each Lender to, with the prior written consent of Administrative Agent, apply all such deposits, credits and deposit accounts toward the payment of the Obligations owing to such Lender, whether or not the Obligations, or any part thereof, will then be due and regardless of the existence or adequacy of any collateral, guaranty or any other security, right or remedy available to such Lender or the Lenders; provided, that in the event that any Defaulting Lender exercises such right of setoff, (x) all amounts so set off must be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 9.22 and, pending such payment, must be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent and the Lenders, and (y) the Defaulting Lender must provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Section 9.21    Ratable Payments. If any Lender, whether by setoff or otherwise, has payment made to its portion of the Loan (other than payments received pursuant to Section 2.6 or 2.10) in a greater proportion than that received by any other Lender, such Lender agrees, promptly upon demand, to purchase a portion of the Loan held by the other Lenders so that after such purchase each Lender will hold its Pro Rata Share of the Loan. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such collateral or other protection ratably in proportion to their respective Pro Rata Shares of the Loan. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments will be made.
Section 9.22    Defaulting Lenders.
(a)Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)Such Defaulting Lender's right to approve or disapprove any amendment, waiver or consent with respect to this Agreement will be restricted as set forth in the definition of Required Lenders.

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(ii)Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 9.20 will be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent (excluding any Advance (or portion thereof) which has been funded by a Special Advance); third, if so determined by Administrative Agent and Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender's potential future funding obligations with respect to Advances under this Agreement; fourth, to the payment of any Special Advances paid by any Lenders as a result of such Defaulting Lender's failure to fund its portion of any Advance; fifth, to the payment of any other amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advances in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made at a time when the conditions set forth in Sections 3.3 and 3.4 and 3.5 were satisfied or waived, such payment will be applied solely to pay the Advances of all Lenders that are not Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Lender until such time as all Advances are held by the Lenders pro rata in accordance with the Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender will be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)No Defaulting Lender will be entitled to receive any unused fee for any period during which that Lender is a Defaulting Lender (and Borrower will not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(b)If Borrower and Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Advances to be held pro rata by the Lenders in accordance with the Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
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Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender's having been a Defaulting Lender.
Section 9.23    Special Advances. If a Lender fails to fund its portion of any Advance, in whole or part, within three Business Days after the date required hereunder and Administrative Agent has not funded the Defaulting Lender's portion of the Advance under Section 4.1(c), Administrative Agent will so notify the Lenders, and within three (3) Business Days after delivery of such notice, the Lenders (other than any Defaulting Lender) will have the right, but not the obligation, in their respective, sole and absolute discretion, to fund all or a portion of such deficiency (the amount so funded by any such Lenders being referred to herein as a "Special Advance") to Borrower. In such event, the Defaulting Lender and Borrower severally agree to pay to Administrative Agent for payment to the Lenders making the Special Advance, forthwith on demand such amount with interest thereon, for each day from and including the date such amount is made available to Borrower to but excluding the date of payment to Administrative Agent, at (i) in the case of the Defaulting Lender, the greater of the Federal Funds Effective Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of Borrower, a rate per annum equal to the interest rate applicable to the relevant Advance.
Section 924    Certain ERISA Matters.
(a)Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Administrative Agent and not, for the avoidance of doubt, to or for the benefit of Borrower or Guarantor, that at least one of the following is and will be true:
(i)such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement,
(ii)the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii)(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the
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Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv)such other representation, warranty and covenant as may be agreed in writing between Administrative Agent, in its sole discretion, and such Lender.
(b)In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Administrative Agent and not, for the avoidance of doubt, to or for the benefit of Borrower or any Guarantor, that Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
Section 9.25    Approvals of Lenders. In the event that Administrative Agent requests a Lender’s consent, approval or determination, and Administrative Agent does not receive the Lender’s written response within seven (7) Business Days of the request therefor (the “Lender Reply Period”), Administrative Agent shall send such Lender a reminder notice, which shall, at the top of such notice, set forth a legend in all caps and bolded text as follows: “THIS IS A REMINDER NOTICE RELATING TO AN ACTION OR DECISION CONCERNING THE LOAN WITH RESPECT TO [●] RECOMMENDED BY ADMINISTRATIVE AGENT IN THAT CERTAIN NOTICE DATED AS OF [_______]. IF ADMINISTRATIVE AGENT DOES NOT RECEIVE A WRITTEN APPROVAL OR DISAPPROVAL FROM THE ADDRESSEE OF SUCH ACTION OR DECISION WITHIN THREE (3) BUSINESS DAYS AFTER THE DATE HEREOF, WHICH DATE IS [___], SUCH ADDRESSEE SHALL BE DEEMED TO HAVE APPROVED SUCH ACTION OR DECISION.” Notwithstanding the foregoing, if Administrative Agent determines in its reasonable business judgment that there is not sufficient time for a reminder notice, Administrative Agent shall not be required to send a reminder notice but shall instead send the initial notice to Lenders with a legend substantially in the form required for the reminder notice but stating that failure to receive a written approval or disapproval from such Lender within the initial Lender Reply Period shall be deemed approval by such Lender of the proposed action or decision. Unless a Lender delivers written notice to Administrative Agent within the Lender Reply Period, which for the purposes herein shall include the period set forth in the reminder notice, if any, that such Lender objects to the recommendation or determination of Administrative Agent, such Lender shall be deemed to have approved of or consented to such recommendation or determination.


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ARTICLE X
MISCELLANEOUS
Section 10.1    General Indemnities. Except as to the claims, costs, losses and damages described in the Indemnity which shall be governed by the Indemnity, Borrower hereby agrees to indemnify, defend and hold harmless Administrative Agent and each Lender and their respective Affiliates, directors, officers and employees, agents and advisors against all losses, claims, damages, penalties, judgments, liabilities and expenses (including all expenses of litigation or preparation therefor whether or not Administrative Agent, any Lender or any Affiliate of Administrative Agent or any Lender is a party thereto, settlement costs, in-house and outside attorney's fees and expenses) (collectively, "Losses") which any of them may pay or incur arising out of or relating to this Agreement, the other Loan Documents (other than the Indemnity and the Guaranties), the transactions contemplated hereby, or any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any of their Subsidiaries, or the direct or indirect application or proposed application of the Loan proceeds, except to the extent that such Losses are caused by, or have resulted from, the gross negligence or willful misconduct of the party seeking indemnification. Borrower also hereby agrees to indemnify, defend and hold Administrative Agent and each Lender and their respective Affiliates, directors, officers and employees, agents and advisors harmless against any Losses which any of them may pay or incur arising out of or relating to any claim or claims made by any Person, including any broker or agent, that they are or may be entitled to a commission or other form of compensation in connection with the securing of or making of the Loan. The obligations of Borrower under this Section 10.1 will survive the termination of this Agreement. Neither Administrative Agent nor any Lender will have any liability with respect to, and Borrower hereby waives, releases and agrees not to sue for, any lost profits or special, indirect, consequential or punitive damages suffered by Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby (provided, however, that such waiver shall not apply to any actual damages suffered by Borrower). Notwithstanding the foregoing indemnity or anything else contained in this Agreement or any of the other Loan Documents which may be construed to the contrary, all of Borrower’s indemnity obligations and other obligations of Borrower pertaining to Environmental Liabilities and/or Hazardous Substances will be deemed to be contained in and arise under only the Indemnity, and not under this Agreement or any other Loan Document, and any of Borrower’s indemnity obligations or other obligations pertaining to Environmental Liabilities and/or Hazardous Substances that might be construed to exist under any other Loan Document (other than the Indemnity) will be deemed to be removed from such other Loan Document and transferred to the Indemnity, so that the Indemnity is the only Loan Document that contains and sets forth the Borrower’s indemnity obligations and other obligations of Borrower pertaining to Environmental Liabilities and/or Hazardous Substances.
Section 10.2    Binding Effect; Waivers; Cumulative Rights and Remedies. The provisions of this Agreement inure to the benefit of and are binding upon the parties hereto and their respective heirs, executors, administrators, personal representatives, legal representatives, successors and assigns; provided, however, (a) Borrower will not have the right to assign their respective rights or obligations under the Loan Documents without the prior written consent of
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each Lender, (b) any assignment by any Lender must be made in compliance with Section 10.10, and (c) any transfer by participation must be made in compliance with Section 10.11. Any attempted assignment or transfer by any party not made in compliance with this Section 10.2 will be null and void, unless such attempted assignment or transfer is treated as a participation in accordance with the terms of this Agreement. The parties to this Agreement acknowledge that clause (b) of this Section 10.2 relates only to absolute assignments and this Section 10.2 will not prohibit assignments creating security interests, including, without limitation, (x) any pledge or assignment by any Lender of all or any portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a Lender which is a Fund, any pledge or assignment of all or any portion of its rights under this Agreement and any Note to its trustee in support of its obligations to its trustee; provided, however, that no such pledge or assignment creating a security interest will release the transferor Lender from its obligations hereunder unless and until the parties thereto have complied with the provisions of Section 10.10. Administrative Agent may treat the Person which made any Advance or which holds any Note as the owner thereof for all purposes hereof unless and until such Person complies with Section 10.10; provided, however, that Administrative Agent may in its discretion (but will not be required to) follow instructions from the Person which made any Advance or which holds any Note to direct payments relating to such Advance or Note to another Person. Any assignee of the rights to any Advance or any Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Advance will be conclusive and binding on any subsequent holder or assignee of the rights to such Loan. No delay on the part of Administrative Agent in exercising any right, remedy, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder constitute such a waiver or exhaust the same, all of which will be continuing. The rights and remedies of Administrative Agent specified in this Agreement are in addition to, and not exclusive of, any other rights and remedies which Administrative Agent or any Lender would otherwise have at law, in equity or by statute, and all such rights and remedies, together with Administrative Agent's rights and remedies under the other Loan Documents, are cumulative and may be exercised individually, concurrently, successively and in any order.
Section 10.3    Reduction of Aggregate Commitment. Provided (a) no Draw Request is pending that would result in the outstanding principal balance of the Loan exceeding the Aggregate Commitment, and (b) that immediately after such reduction the outstanding principal balance of the Loan is less than or equal to the Aggregate Commitment, (which for the purposes of this Section shall include any amounts requested under a pending Draw Request), Borrower may (in its sole and absolute discretion) permanently reduce the available Aggregate Commitment of the Loan (without the payment of any prepayment fee, other than break funding, including any sums and any charges relating to early termination of any Swap Contracts), by giving Administrative Agent irrevocable notice of such reduction at least two (2) Business Days prior to the indicated effective date of the reduction. Each such reduction shall (a) be in a minimum amount of $1,000,000 (and in increments of $500,000 thereafter), (b) in no event reduce the Aggregate Commitment below $100,000,000 (unless the entire Loan facility is being paid off), and (c) permanently reduce the maximum Aggregate Commitment of the Loan available to Borrower (with appropriate adjustments to the Non-Revolving Portion and the Revolving Portion of the Loan).
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Section 10.4    Survival. All agreements, representations and warranties made in this Agreement survive the execution of this Agreement, the making of the Advances by the Lenders, and the execution of the other Loan Documents, and will continue until payment in full of all Obligations of Borrower incurred under this Agreement and under the other Loan Documents.
Section 10.5    Governing Law; Waiver of Jury Trial; Jurisdiction. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTES, AND THIS AGREEMENT AND THE NOTES WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, AND ANY LAWS OF THE UNITED STATES OF AMERICA APPLICABLE TO NATIONAL BANKS.
TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION RELATING TO THE LOAN AND/OR THE LOAN DOCUMENTS. BORROWER, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF ILLINOIS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS AGREEMENT, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF ILLINOIS, (C) SUBMITS TO THE JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT, AND (D) AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN WILL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT OR ANY OF THE LENDERS TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). BORROWER FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO BORROWER AT THE ADDRESSES FOR NOTICES DESCRIBED IN THIS AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE WILL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN WILL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
Section 10.6    Counterparts. This Agreement may be executed in any number of counterparts, all of which constitutes a single Agreement.
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Section 10.7    Notices.
(a)Except in the case of notices pursuant to the definition of “Obligations” (which shall be given via email in accordance with Exhibit M), all notices, demands, requests, consents, approvals or other communications (any of the foregoing, a "Notice") required, permitted or desired to be given hereunder must be in writing and must be sent by: (i) registered or certified mail, postage prepaid, return receipt requested, (ii) reputable overnight courier, or (iii) delivered by hand by commercial courier service, addressed to the party to be so notified at its address set forth opposite its signature, below, or to such other address as such party may hereafter specify in accordance with the provisions of this Section 10.7. Any Notice will be deemed to have been received: (A) 3 days after the date such Notice is mailed, (B) on the date of delivery by hand (or refusal to accept such delivery) if delivered during business hours on a Business Day (otherwise on the next Business Day), and/or (C) on the next Business Day if sent by an overnight commercial courier.
(b)Any party may change the address to which any such Notice is to be delivered by furnishing 10 days prior written notice of such change to the other parties in accordance with the provisions of this Section 10.7. Notices will be deemed to have been given on the date as set forth above, even if there is an inability to actually deliver any such Notice because of a changed address of which no Notice was given, or there is a rejection or refusal to accept any Notice offered for delivery.
Section 10.8    Administrative Agent's Sign. Agent may, if it so desires, publicize its involvement with the Properties, including, but not limited to, issuing press releases (subject to Borrower's review and approval thereof, not to be withheld unreasonably), but it may not place any signage on any Property without Borrower's prior written consent (which consent may be withheld, conditioned or delayed in Borrower's sole and absolute discretion).
Section 10.9    No Third Party Reliance. No third party is entitled to rely upon this Agreement or to have any of the benefits of Administrative Agent's or any Lender's interest hereunder, unless such third party is an express assignee of all or a portion of a Lender's interest hereunder in accordance with Section 10.10 and Section 10.11 hereof.
Section 10.10    Assignments.
(a)Any Lender may, at any time and at no cost, expense, liability or potential liability to Borrower or Guarantor (and with no obligation to travel and meet with any Lender or such Purchaser (defined below)), assign to one or more Eligible Assignees (“Purchasers”) all or any part of its rights and obligations under the Loan Documents. Such assignment must be substantially in the form of Exhibit J or in such other form reasonably acceptable to Administrative Agent as may be agreed to by the parties thereto. Each such assignment with respect to a Purchaser which is not a Lender or an Affiliate of a Lender or an Approved Fund must either be in an amount equal to the entire applicable Commitment or aggregate amount of the outstanding Advances of the assigning Lender or (unless each of Borrower and Administrative Agent otherwise consents) be in an aggregate amount not less than $10,000,000. The amount of the assignment must be based on the Commitment or aggregate amount of the outstanding Advances of the assigning Lender (if the Commitment has been terminated) subject
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to the assignment, determined as of the date of such assignment or as of the “Trade Date,” if the “Trade Date” is specified in the assignment.
(b)The consent of Borrower will be required prior to an assignment becoming effective, provided that the consent of Borrower will not be required if an Event of Default has occurred and is continuing; provided further that Borrower will be deemed to have consented to any such assignment unless it objects thereto by written notice to Administrative Agent within ten (10) Business Days after having received notice thereof. The consent of Administrative Agent is required prior to an assignment becoming effective; provided, however, that any assignment by any Lender that has executed this Agreement as of the Closing Date to an Eligible Assignee shall not require the prior consent of Administrative Agent. Any consent required under this Section 10.10(b) will not be unreasonably withheld, conditioned or delayed.
(c)Upon (i) delivery to Administrative Agent of an Assignment and Assumption, together with any consents required by Sections 10.10(a) and 10.10(b), and (ii) payment of a $3,500 fee by the assignee or the assignor to Administrative Agent for processing such assignment (unless such fee is waived by Administrative Agent), such assignment will become effective on the effective date specified in such assignment. The assignment must contain a representation by the Purchaser to the effect that none of the consideration used to make the purchase of the Commitment and the portion of the Loan assigned to Purchaser under the applicable assignment agreement constitutes "plan assets" as defined under ERISA and that the rights and interests of the Purchaser in and under the Loan Documents will not be "plan assets" under ERISA. On and after the effective date of such assignment, such Purchaser will for all purposes be a Lender party to this Agreement and any other Loan Document executed by or on behalf of the Lenders and will have all the rights and obligations of a Lender under the Loan Documents, to the same extent as if it were an original party thereto, and the transferor Lender will be released with respect to the Commitment and the portion of the Loan assigned to such Purchaser without any further consent or action by Borrower (and shall have no further liability hereunder with respect to the portion of the Loan that was the subject of such transfer), the Lenders or Administrative Agent. In the case of an assignment covering all of the assigning Lender's rights and obligations under this Agreement, such Lender will cease to be a Lender hereunder but will continue to be entitled to the benefits of, and subject to, those provisions of this Agreement and the other Loan Documents which survive payment of the Obligations and termination of the applicable agreement. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.10 will be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.11. Upon the consummation of any assignment to a Purchaser pursuant to this Section 10.10(c), the transferor Lender, Administrative Agent and Borrower will make appropriate arrangements so that new Notes or, as appropriate, replacement Notes are issued to such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to such Purchaser, in each case in principal amounts reflecting their respective Commitments, as adjusted pursuant to such assignment. Upon request, Borrower will execute and deliver to Administrative Agent, at Borrower's cost to the extent such costs do not exceed $10,000, an appropriate replacement promissory note or replacement promissory notes in favor of each assignee (and assignor, if such assignor is retaining a portion of its Commitment percentage and advances) reflecting such assignee's (and assignor's) percentage of the Commitment. Upon execution and delivery of such replacement promissory note(s), the original
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promissory note or notes evidencing all or a portion of the Lenders' percentages of the Aggregate Commitment and advances being assigned shall be canceled and returned to Borrower. For purposes of clarification, if Borrower's costs relating to an Assignment and Assumption exceed $10,000, such costs exceeding $10,000 shall be borne by the Lenders receiving replacement notes pro rata in accordance with such Lenders' percentage of the Aggregate Commitment. Under no circumstances shall Borrower be required to execute any certifications or similar documents or to provide any representations or warranties confirming the accuracy of any information or otherwise in connection with any assignment or participation. Promptly following receipt by Administrative Agent of an executed Assignment and Assumption, Administrative Agent shall give notice to the Borrower and to the Lenders of: (i) the effectiveness of the assignment by the assigning Lender to the assignee Lender (or the affiliate of the Lender); and (ii) the revised percentages and maximum amounts of the Commitment percentage of the Aggregate Commitment in effect as a result of such assignment.
(d)Administrative Agent, acting solely for this purpose as a non-fiduciary agent of Borrower, will maintain at one of its offices in the United States of America, a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Advances owing to, each Lender, pursuant to the terms hereof from time to time (the “Register”). The entries in the Register will be conclusive, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register will be available for inspection by Borrower and each Lender at any reasonable time and from time to time upon reasonable prior notice.
(e)Borrower authorizes each Lender to disclose to any actual or prospective Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by operation of law (each a "Transferee") and any actual or prospective Transferee any and all information in such Lender's possession, provided, however, that any such Transferee executes a confidentiality agreement in form and substance reasonably satisfactory to Borrower; provided Borrower shall not be required to execute any certificates or similar documents or to provide any representations or warranty confirming the accuracy of any such information provided to any Transferee.
(f)So long as no Event of Default exists, unless Borrower otherwise consents, U.S. Bank shall at all times retain at least twenty percent (20%) of the Aggregate Commitment.
(g)The Borrower and Administrative Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to a Transferee until such time as (i) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Purchaser shall have been given to the Borrower and Administrative Agent by the assigning Lender and the Transferee; (ii) the assigning Lender and the Transferee shall have delivered to the Borrower and Administrative Agent an Assignment and Assumption.

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(h)Notwithstanding anything to the contrary in this Section 10.10, any Lender shall have the right at any time without the consent of or notice to Administrative Agent, any other Lender, Borrower or any other Person to grant a security interest in all or any portion of such Lender’s interest in the Notes or the Loan (i) to any Federal Reserve Bank or the central reserve bank or similar authority of any other country to secure any obligation of such Lender to such bank or similar authority (a “Central Bank Pledge”) or (ii) to any Person to secure any obligation of such Lender, including to the bondholders (as a collective whole) (or their nominee, collateral agent or security trustee) under, or the trustee, administrator or receiver (or their respective nominees, collateral agents or collateral trustees) of a mortgage pool securing covered mortgage bonds issued under German Pfandbrief legislation, as such legislation may be amended and in effect from time to time, or any substitute or successor legislation (a “Pfandbrief Pledge”); and the applicable Lender shall use its commercially reasonable efforts to provide Borrower with prompt written of any such Central Bank Pledge or Pfandbrief Pledge. Except for a Central Bank Pledge or a Pfandbrief Pledge, Administrative Agent shall promptly notify Borrower of any assignment hereunder approved by Administrative Agent, specifying the assignee thereof and the amount of the assignment. Notwithstanding anything to the contrary contained herein, no assignment of any interest in the Loan shall be made to any Affiliate of Borrower. Any assignment, transfer, sale, negotiation, pledge or other hypothecation of all or any portion of any Lender’s rights in and to the Loan in contravention of this Section 10.10 shall be void ab initio.
Section 10.11    Participations.
(a)Any Lender may, upon prior written notice to Borrower of the intended Participant, (at no cost, expense, liability or potential liability to Borrower or Guarantor) at any time sell to one or more entities ("Participants") participating interests in its Commitment or the Obligations owing to such Lender.; provided, however, the voting rights of any participants shall be limited to actions with respect to increases in the maximum Aggregate Commitment, extensions of the maturity date beyond the extension option terms and changes in the interest rates applicable to the Loan. In the event of any such sale by a Lender of participating interests to a Participant, such Lender's obligations under the Loan Documents will remain unchanged, such Lender will remain solely responsible to the other parties hereto for the performance of such obligations, such Lender will remain the owner of its Commitment and the Obligations owing to such Lender, all amounts payable by Borrower under this Agreement will be determined as if such Lender had not sold such participating interests, and Borrower and Administrative Agent will continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under the Loan Documents.
(b)Each Lender will retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents provided that each such Lender may agree in its participation agreement with its Participant that such Lender will not vote to approve any amendment, modification or waiver with respect to any Commitment or Loan in which such Participant has an interest which would require consent of all of the Lenders pursuant to the terms of Section 10.12 or of any other Loan Document.
(c)Each Lender that sells a participation will, acting solely for this purpose as an agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant's interest in any
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Commitment or any other Obligations under the Loan Documents (the "Participant Register"); provided that no Lender will have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any Commitment or any other Obligations under the Loan Documents) to any Person except to Borrower, upon Borrower’s request or to the extent that such disclosure is necessary to establish that any Commitment or any other Obligations under the Loan Documents is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register will be conclusive absent manifest error, and such Lender will treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) will have no responsibility for maintaining a Participant Register.
Section 10.12    Amendments. Subject to the provisions of this Section 10.12, the Required Lenders (or Administrative Agent with the consent in writing of the Required Lenders) and Borrower may enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to this Agreement, the Guaranty or any other Loan Document or changing in any manner the rights of the Lenders or Borrower hereunder or thereunder or waiving any Default or Event of Default hereunder; provided, however, that no such supplemental agreement will:
(a)Except as expressly provided in Section 2.5, without the consent of each Lender directly affected thereby, extend the final maturity of the Loan, or postpone any regularly scheduled payment of principal of the Loan, or forgive all or any portion of the principal amount thereof, or reduce the rate or extend the time of payment of interest or fees thereon or increase the amount of the Commitment of such Lender;
(b)without the consent of all of the Lenders, amend the definition of Required Lenders, or amend any of the provisions hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder;
(c)without the consent of all of the Lenders, amend Section 9.21 or this Section 10.12; provided, that the foregoing limitation in respect of Section 9.21 will not prohibit each Lender directly affected thereby from consenting to the extension of the final maturity date of the Loan as contemplated by Section 10.12(a) above;
(d)except as otherwise provided in Section 9.16, without the consent of all of the Lenders, release all or substantially all of the Collateral;
(e)except as otherwise provided in Section 9.16, without the consent of all the Lenders, release any Guarantor from its obligations under a Guaranty; and
(f)without the consent of all the Lenders:
(i)approve any encumbrances on the Project except Permitted Encumbrances or as otherwise permitted in the Loan Documents;

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(ii)waive any monetary Event of Default;
(iii)agree to any mezzanine debt or enter into, amend, modify or waive any provision of, any intercreditor agreement with a mezzanine lender;
(iv)subordinate or release any portion of the Project granted under the Loan Documents except as required hereunder or thereunder;
(v)change any of the payment waterfalls set forth in Section 8.3 (or any other applicable Loan Document provision), which change would result in any Swap termination payments in respect of any Swap being paid prior to repayment in full of any and all Obligations due Lenders;
(vi)consent to any transfer or other disposition of the Project or any direct or indirect interest in Borrower, except for any transfers expressly permitted in accordance with Section 6.9 hereof (or waive any conditions to any such transfer);
(vii)decrease the insurance coverage required pursuant to Exhibit H;
(viii)consent to any Swap or other financial product for hedging and protecting against interest rate fluctuation risks with respect to the Loan to the extent such Swap is either executed by Borrower or secured by the Property;
(ix)change to the Loan Rate, except as set forth in Section 2.5 hereof in connection with a Benchmark Transition Event;
(x)amend or waive any of the terms and/or conditions of Sections 2.8 or 2.9 hereof;
(xi) any of the terms and/or conditions of Sections 3.2, 3.3 or 3.4 hereof; or
(xii)amend or waive any of the terms and/or conditions of (x) the definition of “Change of Control”, (y) the definition of “Control” or (z) Section 6.9 hereof.
No amendment of any provision of this Agreement relating to Administrative Agent will be effective without the written consent of Administrative Agent. Administrative Agent may waive payment of the fee required under Section 10.10(c) without obtaining the consent of any other party to this Agreement. Notwithstanding anything to the contrary herein, Administrative Agent may, with the consent of Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency of a technical or immaterial nature, as determined in good faith by Administrative Agent.
Section 10.13    Time of the Essence. Time is of the essence hereof with respect to the dates, terms and conditions of this Agreement.




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Section 10.14    Entire Agreement; No Oral Modifications. The Loan Documents set forth the entire agreement of the parties with respect to the Loan and supersede all prior written or oral understandings and agreements with respect thereto and no modification or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties hereto. By executing this Agreement and initialing below Borrower expressly represents and warrants that it did not rely on any representation, assurance or agreement, oral or written, not expressly set forth in this Agreement or any of the other Loan Documents in reaching its decision to enter into this Agreement or any of the other Loan Documents and that no promises or other representations have been made to Borrower which conflict with the written terms of the Loan Documents. Borrower represents to Administrative Agent and the Lenders that (i) it has read and understands the terms and conditions contained in this Agreement and the other Loan Documents executed in connection with this Agreement, (ii) its legal counsel has carefully reviewed all of the Loan Documents and it has received legal advice from counsel of its choice regarding the meaning and legal significance of this Agreement and all other Loan Documents, (iii) it is satisfied with its legal counsel and the advice received from it, and (iv) it has relied only on its review of the Loan Documents and its own legal counsel's advice and representations (and it has not relied on any advice or representations from Administrative Agent, any Lender, or any of their respective officers, employees, agents or attorneys). The Loan Documents may not be modified, amended or terminated except by a written agreement signed by each of the parties hereto.

/s/ CJS
Borrower's Initials

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Section 10.15    Captions. The headings or captions of the Articles and Sections set forth herein are for convenience only, are not a part of this Agreement and are not to be considered in interpreting this Agreement.
Section 10.16    Borrower-Lender Relationship. The relationship of Borrower, Administrative Agent and the Lenders created hereby and by the other Loan Documents is that of a borrower and a lender only, and in no event will Administrative Agent or any Lender be deemed to be a partner of, or a joint venturer with, Borrower.
Section 10.17    Joint and Several Liability. If there is more than one (1) party to this Agreement who is a borrower under this Agreement, then each of said individuals and/or entities are jointly and severally liable for each covenant, agreement, representation and warranty of Borrower hereunder.
Section 10.18    Severability. Wherever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is prohibited by or invalid under applicable Law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 10.19    [Reserved.]
Section 10.20    [Reserved.]
Section 10.21    Defenses. No failure by Administrative Agent or any Lender to perform any of its respective obligations hereunder will be a valid defense to, or result in any offset against, any payments which Borrower is obligated to make under any of the Loan Documents.
Section 10.22    Designated Representative(s). Borrower hereby represents that any person signing this Agreement on behalf of the Borrower is hereby authorized to act as the Borrower's authorized representative for purposes of dealing with Administrative Agent on behalf of the Borrower in respect of any and all matters in connection with this Agreement, the other Loan Documents and the Loan. As of the Closing Date, the Borrower hereby designates the following persons as “Designated Representatives” (as defined below):
Robert M. Durand Executive Vice President
Jeffrey K. Waldvogel Chief Financial Officer
Stacie Yamane Senior Vice President/Controller
Pamela Azanza Rogalski Assistant Controller
Dharshi Chandran Assistant Controller
Todd Smith Vice President, Controller REIT Corporate Accounting
Andree Ngo Accounting Manager
Sharon Yang Accounting Manager


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In addition, Borrower may designate by appropriate action in form acceptable to Administrative Agent, additional individuals who are authorized to act on behalf of the Borrower (together with the person(s) designated above and signing this Agreement, collectively the "Designated Representatives"). The Designated Representative has the power to give and receive all notices, monies, approvals and other documents and instruments, and to take any other action on behalf of the Borrower. All actions by the Designated Representative will be conclusive and binding on the Borrower. Administrative Agent may rely on the authority given to the Designated Representative until actual receipt by Administrative Agent of a duly authorized resolution substituting a different person as the Designated Representative.
Section 10.23    Document Imaging; Electronic Transactions and the UETA; Telecopy and PDF Signatures; Electronic Signatures.
(a)Without notice to or consent of Borrower or any Guarantor, Administrative Agent and each Lender may create electronic images of any Loan Documents and destroy paper originals of any such imaged documents. Such images have the same legal force and effect as the paper originals and are enforceable against Borrower and any other parties thereto. Administrative Agent and each Lender may convert any Loan Document into a “transferrable record” as such term is defined under, and to the extent permitted by, UETA, with the image of such instrument in Administrative Agent’s or such Lender’s possession constituting an “authoritative copy” under UETA.
(b)If Administrative Agent agrees, in its sole discretion, to accept delivery by telecopy, “pdf”, “tif” or “jpg” of the image of an executed counterpart of a signature page of any Loan Document or other document required to be delivered under the Loan Documents, such delivery will be valid and effective as delivery of an original manually executed counterpart of such document for all purposes.
(c)If Administrative Agent agrees, in its sole discretion, to accept an image of or any electronic signatures of any Loan Document or other document required to be delivered under the Loan Documents, the words “execution,” “signed,” and “signature,” and words of like import, in or referring to any document so signed will deemed to include the image or electronic signatures and/or the keeping of records in electronic form, which will be of the same legal effect, validity and enforceability as a manually executed signature and/or the use of a paper-based recordkeeping system, to the extent and as provided for in any applicable law, including UETA, E-SIGN, or any other state laws based on, or similar in effect to, such acts. Administrative Agent and each Lender may rely on any such electronic signatures without further inquiry.
(d)Borrower agrees that it will be solely responsible to employ all security procedures necessary to ensure that only authorized parties will have access to making the electronic signatures by Borrower or its affiliates. In the event Administrative Agent agrees in its sole discretion to accept electronic signatures executed or adopted using an electronic signature platform not provided by Administrative Agent, Administrative Agent’s counsel or their respective electronic signature vendor, Borrower will, or will use commercially reasonable efforts to cause their vendor providing the electronic signature platform to, make available to Administrative Agent all such information and records as Administrative Agent reasonably
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requests to evaluate the electronic signature platform and any actual signatures that Borrower is requesting Administrative Agent to accept, including any digital records authenticating the identity of the signer. Any such electronic signature platform must be fully compliant with UETA and E-Sign.
Section 10.24    Lender Provided Swaps. Subject to the terms of Section 6.31 above, Borrower may enter into one or more Swaps with the prior consent of all Lenders with the Swap Counterparty on terms that are acceptable to Swap Counterparty and all Lenders in their sole discretion for the purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan. All Lender Provided Swaps, if any, are independent agreements governed by the written agreements evidencing said Swaps, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of the Loan Documents, except as otherwise expressly provided in said Swaps, and any payoff statement from Administrative Agent relating to the Loan will not apply to said Lender Provided Swaps, and any such Swaps will only be entered into in accordance with the terms of Section 6.31.
Section 10.25    USA PATRIOT ACT NOTIFICATION. The following notification is provided to Borrower pursuant to Section 326 of the PATRIOT Act:
Each Lender hereby notifies Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow the Lenders to identify Borrower in accordance with the PATRIOT Act.
Section 10.26    Confidentiality.
(a)Administrative Agent and each Lender agrees to hold any confidential information which it may receive from Borrower or Guarantor in connection with this Agreement in confidence, except for disclosure (i) to its Affiliates and to Administrative Agent and any other existing Lender and their respective Affiliates, and, in each case, their respective employees, directors, and officers, (ii) to legal counsel, accountants, and other professional advisors to Administrative Agent or any Lender provided such parties have been notified of the confidential nature of such information, (iii) as provided in Section 10.10(e), (iv) in connection with any regulatory requirements applicable to Administrative Agent or Lenders, to regulatory officials, (v) to any Person as required pursuant to or as required by law, regulation, or legal process or proceeding, (vi) [intentionally deleted], (vii) to its direct or indirect contractual counterparties in swap agreements or to legal counsel, accountants and other professional advisors to such counterparties provided such parties have been notified of the confidential nature of such information, (viii) to rating agencies if requested or required by such agencies in connection with a rating relating to the Advances hereunder, (ix) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (x) to the extent such information (1) becomes publicly available other than as a result of a breach of this Section 10.26 or (2) becomes available to Administrative Agent, or any other Lender on a non-confidential basis from a source other than Borrower or Guarantor, (xi) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring
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of CUSIP numbers with respect to the Loan, and (xii) to third-party data reporting services including, but not limited to, credit bureaus and “league table” providers in the ordinary course of business. Without limiting Section 10.15, Borrower agrees that the terms of this Section 10.26 will set forth the entire agreement between Borrower and Administrative Agent and each Lender with respect to any confidential information previously or hereafter received by Administrative Agent or such Lender in connection with this Agreement, and this Section 10.26 will supersede any and all prior confidentiality agreements entered into by Administrative Agent or any Lender with respect to such confidential information.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THE IMMEDIATELY PRECEDING PARAGRAPH FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY OR ON BEHALF OF BORROWER OR ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT BORROWER, ANY GUARANTOR AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO BORROWER AND ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW AND AGREES TO UPDATE SUCH CREDIT CONTACT BY NOTICE TO BORROWER AND ADMINISTRATIVE AGENT FROM TIME TO TIME AS NECESSARY TO CAUSE THE FOREGOING REPRESENTATION TO BE TRUE AT ALL TIMES..
Section 10.27    Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b)the effects of any Bail-in Action on any such liability, including, if applicable:
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1.a reduction in full or in part or cancellation of any such liability;
2.a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
3.the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
Section 10.28    Limited Recourse Provision. Except as to Guarantor as set forth in the Guaranty, Administrative Agent and Lenders shall have no recourse against, nor shall there be any personal liability to, the members of Borrower, or to any shareholders, members, partners, beneficial interest holders or any other entity or person in the ownership (directly or indirectly) of Borrower (except for the Guarantor as provided in the Guaranty, but including the sole member of Borrower (other than Guarantor), including KBS Limited Partnership III or KBS Real Estate Investment Trust III, Inc.) with respect to the obligations of Borrower and Guarantor under the Loan. For purposes of clarification, in no event shall the above language limit, reduce or otherwise affect Borrower's liability or obligations under the Loan Documents, Guarantor's liability or obligations under the Guaranty or Administrative Agent's right to exercise any rights or remedies against any collateral securing the Loan.
Section 10.29    Civil Code Section 2822 Waiver. If, at any time, any surety exists that is liable for only a portion of Borrower obligations under the Loan Documents and Borrower provides partial satisfaction of Borrower obligations, to the extent California law is ever applied to the transaction notwithstanding the parties choice of law, Borrower waives any right they would otherwise have under California Civil Code Section 2822, or under any similar law or otherwise, to designate the portion of Borrower obligations to be satisfied. The designation of the portion of Borrower obligations to be satisfied will, to the extent not expressly made by the terms of the Loan Documents, be made by Bank rather than by Borrower.
Section 10.30    Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Obligations or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
BORROWER:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XI, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
Address:
KBSIII 500 WEST MADISON, LLC
c/o KBS Capital Advisors LLC
800 Newport Center Drive, Suite 700
Newport Beach, California 92660
Attention: Dan Park
[Signatures follow on next page.]
SMRH:4847-1441-2233
S-1




ADMINISTRATIVE AGENT:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
Address: By: /s/ Chris Coburn
U.S. Bank National Association
Commercial Real Estate
4100 Newport Place, Suite 900
Newport Beach, CA 92660
Attention: Loan Administration
Name: Chris Coburn
Its: SVP

[Signatures follow on next page.]
SMRH:4847-1441-2233
S-2



LENDER:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
Address: By: /s/ Chris Coburn
U.S. Bank National Association
Commercial Real Estate
4100 Newport Place, Suite 900
Newport Beach, CA 92660
Attention: Loan Administration
Name: Chris Coburn
Its: SVP


[Signatures follow on next page.]
SMRH:4847-1441-2233
S-3



LENDER: DEUTSCHE PFANDBRIEFBANK AG
Address: By: /s/ Authorized Signatory
Deutsche Pfandbriefbank AG
Parkring 28
85748 Garching, Germany
Attention: Karsten Imhoff
Name: ___________
Title: ___________
With a copy to: By: ____________________
King & Spalding LLP
1185 Avenue of the Americas
New York, New York 10036
Attention: Elizabeth A. Gable, Esq.
Name: ____________
Its: ____________


[Signatures follow on next page.]
SMRH:4847-1441-2233
S-4



LENDER: DEUTSCHE PFANDBRIEFBANK AG
Address: By: /s/ Andreas A. Wuerm
Deutsche Pfandbriefbank AG
Parkring 28
85748 Garching, Germany
Attention: Karsten Imhoff
Name: Andreas A. Wuerm
Title: MD
With a copy to: By: ________________________
King & Spalding LLP
1185 Avenue of the Americas
New York, New York 10036
Attention: Elizabeth A. Gable, Esq.
Name: ________________
Its: ________________


SMRH:4847-1441-2233
S-5



LENDER: BANK OF AMERICA, N.A.
Address: By: /s/ Kevin McLain
Bank of America, N.A.
520 Newport Center Drive #1100
Newport Beach, CA 92660
Name: Kevin McLain
Title: Senior Vice President


SMRH:4847-1441-2233
S-6



SCHEDULE 1
COMMITMENTS
Lender $ Amount
Pro Rata Share

US Bank, N.A. $165,000,000.00 44.0000000000%
Bank of America $125,000,000.00 33.3333333333%
Deutsche Pfandbriefbank AG $85,000,000.00 22.6666666667%

SMRH:4847-1441-2233.18 Schedule 1
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EXHIBIT A
Improvements
The Improvements for the Project will consist of a 40 story class A office and retail building containing approximately 1,457,724 rentable square feet, located at 500 West Madison Street in Chicago, Illinois and commonly referred to as Accenture Tower, and related improvements.
SMRH:4847-1441-2233.18 Exhibit A
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EXHIBIT B
Legal Description
That certain real property located in Chicago, Illinois, more particularly described as follows:
Note: The phrase "vacated 18 foot alley" as used in these legal descriptions is in reference to the 18 foot wide North-South alley lying in Block 50 which was vacated by Ordinance recorded January 5, 1907 as Document No. 3974491.
Parcel 1:
The South 275.06 feet (measured perpendicularly) of the following described property, all taken as a tract:
Block 50 and the vacated 18 foot alley in said Block 50 (except that part of Block 50 and the vacated alley therein, lying in Madison Street as widened) in the Original Town of Chicago in the Southwest 1/4 of Section 9, Township 39 North, Range 14 East of the Third Principal Meridian in Cook County, Illinois.
Parcel 2a:
That part of the following described property, all taken as a tract, lying below a horizontal plane having an elevation of
+23.00 feet Chicago City Datum and lying North of the South 275.06 feet (measured perpendicularly) of said tract:
Block 50 and the vacated 18 foot alley in said Block 50 (except that part of Block 50 and the vacated alley therein, lying in Madison Street as widened) in the Original Town of Chicago in the Southwest 1/4 of Section 9, Township 39 North, Range 14 East of the Third Principal Meridian in Cook County, Illinois.
Parcel 2b:
Easement for the benefit of Parcels 1, 2a and 2c, as created by the Declaration of Easements, Covenants, Conditions and Restrictions made by Chicago and Northwestern Transportation Company, a Delaware corporation, and Chicago Title and Trust Company as Trustee under Trust Agreement dated March 31, 1982 and known as Trust Number 1079000, dated March 31, 1982 and recorded September 7, 1984 as Document No. 27245590, over the following described property:
SMRH:4847-1441-2233.18 Exhibit B
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That part of the following described property, all taken as a tract, lying above a horizontal plane having an elevation of
+23.00 feet Chicago City Datum, lying below a horizontal plane having an elevation of +59.63 feet Chicago City Datum, and lying North of the South 275.06 feet (measured perpendicularly) of said tract:
Block 50 and the vacated 18 foot alley in said Block 50 (except that part of Block 50 and the vacated alley therein, lying in Madison Street as widened) in the Original Town of Chicago in the Southwest 1/4 of Section 9, Township 39 North, Range 14 East of the Third Principal Meridian in Cook County, Illinois,
for the construction, maintenance, use, repair, replacement, renovation, reconstruction and improvement with caissons, support posts, arches, columns or other support devices; and for the installation and maintenance of utility lines.
Parcel 2c:
That part of the following described property, all taken as a tract, lying above a horizontal plane having an elevation of
+59.63 feet Chicago City Datum and lying North of the South 275.06 feet (measured perpendicularly) of said tract:
Block 50 and the vacated 18 foot alley in said Block 50 (except that part of Block 50 and the vacated alley therein, lying in Madison Street as widened) in the Original Town of Chicago in the Southwest 1/4 of Section 9, Township 39 North, Range 14 East of the Third Principal Meridian in Cook County, Illinois.
SMRH:4847-1441-2233.18 Exhibit B
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EXHIBIT C
Permitted Encumbrances
As set forth in Administrative Agent's letter of title instructions to the Title Company setting forth Administrative Agent's requirements for the Title Policy, for each Security Instrument encumbering a Project. In no event shall any deeds of trust, mortgages, mechanic's liens or other liens securing indebtedness or monetary obligations (other than the Security Instrument in favor of Administrative Agent for the benefit of Lenders) be "Permitted Encumbrances."
SMRH:4847-1441-2233.18 Exhibit C
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EXHIBIT D
DRAW REQUEST FORM
Borrower hereby requests an advance of Loan proceeds in the amount of $________, which request is supported by the attached.
Borrower hereby certifies as follows (all terms herein having the meanings set forth in the Revolving and Term Loan Agreement (the "Loan Agreement") dated as of November 2, 2020, between Borrower and U.S. Bank National Association, as "Administrative Agent" and the Lenders from time to time a party thereto ("Lenders"):
1.    At the date hereof, to the knowledge of Borrower, no suit or proceeding at law or in equity, and, to the knowledge of Borrower, no investigation or proceeding of any governmental body, has been instituted or is threatened, which in either case would substantially, negatively affect the condition or business operations of Borrower or the Project, except the following:
__________________________________________________________________________________________________________________________________________________________________________________________________________________
2.    At the date hereof, to the knowledge of Borrower, no default or Event of Default under the Loan Agreement or under any of the other Loan Documents has occurred and is continuing, and, to the knowledge of Borrower, no event has occurred which, upon the service of notice and/or the lapse of time, would constitute an Event of Default thereunder, except the following:
__________________________________________________________________________________________________________________________________________________________________________________________________________________
3.    Guarantor is in compliance with all required financial covenants under the Loan Documents.
4.    All bills for labor, materials, equipment, work, services and supplies furnished in connection with the Project, which could give rise to a mechanic's lien if unpaid, have been paid or will be paid before they become delinquent.
5.    [For Tenant Improvement Allocation Draws] The progress of construction of the Tenant Improvements is such that it can be completed for the cost originally represented to Administrative Agent, except for the following:
                                                
6.    Immediately following the disbursement of the requested funds, the outstanding principal amount of the Loan will not exceed the Availability Amount.
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7.    [For Tenant Improvement Allocation Draws] All Tenant Improvement Allocation funds advanced under the Loan Agreement to date pursuant to a Draw Request have been utilized as specified in the Draw Requests pursuant to which the same were advanced, exclusively to pay or reimburse Borrower for payment of costs incurred for or in connection with Tenant Improvements and leasing commissions, and Borrower represents that no part of the Loan proceeds have been paid for labor, materials, equipment, work, services or supplies incorporated into or employed in connection with any project other than the Project, as that term is defined in the Loan Agreement.
8.    Borrower authorizes and requests Administrative Agent and Lenders to charge the total amount of this Draw Request against Borrower's Loan account and to advance from the proceeds of the Loan the funds hereby requested. The advance made pursuant to this Draw Request is acknowledged to be an accommodation to Borrower and is not a waiver by Administrative Agent or Lenders of any defaults or events of default under the Loan Documents or any other claims of Administrative Agent or Lenders against Borrower or Guarantor(s).
9.    The representations of Borrower in Article 5 are true and correct in all material respects except as disclosed to Administrative Agent in writing.
The advances and disbursements on the attached sheets are hereby approved and authorized.
BORROWER:
__________________________,
a _______________________


By: ______________________

SMRH:4847-1441-2233.18 Exhibit D
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EXHIBIT E
Financial Covenant Compliance Certificate Form
Loan Amount: $[___________]
Revised for the fiscal quarter ending on [____________] (the "Quarter-Annual Date")
With reference to the Guaranty dated November 2, 2020, from KBS REIT Properties, III, LLC, to Administrative Agent, Guarantor hereby certifies as follows (each capitalized term used herein having the same meaning given to it in the Guaranty unless otherwise specified):
    As of the Quarter-Annual Date, Guarantor's Leverage Ratio is: [_______________]. Maximum Per Guaranty: 65%.
    As of the Quarter-Annual Date, Guarantor's Net Worth is: $[_______________]. Minimum requirement per Guaranty: $500,000,000.
    As of the Quarter-Annual Date, Guarantor's ratio of EBITDA to Fixed Charges is ______________. Minimum per Guaranty is 1.50 to 1.0.
    As of the Quarter-Annual Date, there exists no Default or, to Guarantor's knowledge, any condition, event or act which constitutes an Event of Default under the Term Loan Agreement.
Guarantor:

KBS REIT Properties III, LLC, a Delaware limited liability company


By:    ______________________________
Its:    ______________________________


SMRH:4847-1441-2233.18 Exhibit E
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EXHIBIT F
[Reserved.]
SMRH:4847-1441-2233.18 Exhibit F
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EXHIBIT G
Organizational Chart
SMRH:4847-1441-2233.18 Exhibit G
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EXHIBIT H
COMMERCIAL REAL ESTATE
STANDARD INSURANCE REQUIREMENTS
I.    PROPERTY INSURANCE
For the Project, all-Risk Hazard Insurance Policy or Policy Declarations Pages or Binders of Insurance, or such other evidence of insurance acceptable to U.S. Bank in its sole discretion, naming the borrowing entity as an insured, reflecting coverage of 100% of the replacement cost, and written by a carrier approved by U.S. Bank with a current A.M. Best's Insurance Guide Rating of at least A- VIII (which is authorized to do business in the state in which the property is located) that affirmatively includes the following, either in the standard policy terms or by separate endorsement to the policy:
1.    Mortgagee Clause Endorsement naming U.S. Bank National Association as
Mortgagee ISAOA ATIMA, with a 30-day notice to U.S. Bank in the event of
cancellation or non-renewal.
2.    Lender's Loss Payable Endorsement (ISO 1218 or similar) with a 30-day notice to
U.S. Bank in the event of cancellation or non-renewal.
3.    Replacement Cost Endorsement.
4.    Agreed Amount endorsement or No Coinsurance.
5.    No Exclusion for Acts of Terrorism.
6.    Boiler and Machinery Coverage (aka Electrical and Mechanical Breakdown).
7.    Sprinkler Leakage Coverage.
8.    Vandalism and Malicious Mischief Coverage.
9.    Flood Insurance, if applicable, covering the building(s) and contents owned by the mortgagor
10.    Loss of Rents Insurance in an amount of not less than 100% of one year's Rental Value of the Project. "Rental Value" must include:
a)    The total projected gross rental income from tenant occupancy of the Project as set forth in the Operating Budget and Business Plan,
b)    The amount of all charges which are the legal obligation of tenants and which would otherwise be the obligation of Borrower, and
SMRH:4847-1441-2233.18
Exhibit H – Page 1
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c)    The fair rental value of any portion of the Project which is occupied by Borrower
or
One year's business interruption insurance in an amount acceptable to U.S. Bank.
11.    Collapse Coverage.
12.    Earthquake Coverage, if applicable,
13.    Coastal & Other Wind Coverage (as applicable for gulf and east coast properties).
14.    Extra Expense Coverage.
15.    Borrower's coverage is primary and non-contributory with any insurance or self-
insurance carried by U.S. Bank.
16.    Waiver of Subrogation against any party whose interests are covered in the policy.
17.    Demolition and Increased Cost of Construction.
18.    U.S. Bank must be the only mortgagee / lender loss payee as to the Collateral covered
by U.S. Bank's Security Instrument(s).


SMRH:4847-1441-2233.18
Exhibit H – Page 2
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II.    LIABILITY INSURANCE
Commercial General Liability Policy or Policy Declarations Pages or Binders of Insurance, or such other evidence of insurance acceptable to U.S. Bank in its sole discretion, naming the borrowing entity as an insured, providing coverage on an "occurrence" rather than a "claims made" basis and written by a carrier approved by U.S. Bank, with a current A.M. Best's Insurance Guide Rating of at least A – VIII (which is authorized to do business in the state in which the property is located) that affirmatively includes the following, either in the standard policy terms or by separate endorsement to the policy:
1.    Combined general liability policy limit of at least $5,000,000.00 each occurrence and
aggregate applying liability for Bodily Injury, Personal Injury, Property Damage,
Contractual and Products and Completed Operations which combined limit may be
satisfied by the limit afforded under the Commercial General Liability Policy, or by
such Policy in combination with the limits afforded by an Umbrella or Excess
Liability Policy (or policies); provided, the coverage afforded under any such
Umbrella or Excess Liability Policy is at least as broad in all material respects as that
afforded by the underlying Commercial General Liability Policy. Such policies must
contain a Separation of Insureds/Severability of Interest clause.
2.    No Exclusion for Acts of Terrorism.
3.    Aggregate limit to apply per location.
4.    Borrower's coverage is primary and non-contributory with any insurance or self-
insurance carried by U.S. Bank.
5.    Waiver of Subrogation against any party whose interests are covered in the policy.
6.    Additional Insured Endorsement naming U.S. Bank National Association as an
additional insured with a 30-day notice to U.S. Bank in the event of cancellation,
non-renewal, or material change.
U.S. Bank may from time to time to make changes to the foregoing insurance requirements and/or to require additional coverages not described above. In addition, the above insurance requirements are subject to change or the imposition of additional coverages if required by applicable Laws, regulations or policies applicable to U.S. Bank or the Project.
SMRH:4847-1441-2233.18
Exhibit H – Page 3
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EXHIBIT I
Form of Promissory Note
PROMISSORY NOTE

$[___________]                             [_____________], 2020
KBSIII 500 West Madison, LLC, a Delaware limited liability company, collectively as maker, having their principal place of business at 800 Newport Center Drive, Suite 700, Newport Beach, California 92660 ("Borrower"), hereby unconditionally promises to pay to the order of [___________] ("Lender"), having an address at 4100 Newport Place, Suite 900, Newport Beach, CA 92660 or such other place as the holder hereof may from time to time designate in writing, the principal sum of [___________] and [______]/100 Dollars ($[___________]), or so much thereof as may have been advanced pursuant to the Loan Agreement (as defined below), in lawful money of the United States of America, with interest thereon to be computed from the date of this Promissory Note (this "Note") at the Loan Rate, and to be paid in accordance with the terms of this Note and that certain Loan Agreement dated the date hereof among Borrower, Lender, certain other "Lenders" named therein or made party thereto, and U.S. Bank National Association, a national banking association, as Administrative Agent ("Administrative Agent") (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the "Loan Agreement"). All capitalized terms not defined herein have the respective meanings set forth in the Loan Agreement.
1.Payment Terms. Borrower agrees to pay the principal sum of this Note, to the extent advanced pursuant to the Loan Agreement, and interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in the Loan Agreement. The outstanding principal balance of the principal sum of this Note and all accrued and unpaid interest thereon is due and payable in full on the Maturity Date. This Note may only be prepaid in accordance with the terms and conditions of the Loan Agreement.
2.Acceleration. The Loan Agreement contains, among other things, provisions for the acceleration of the outstanding principal balance of the principal sum of this Note together with all interest accrued and unpaid hereon and all other sums, including late charges, and other costs relating to the Loan, due to Lender under this Note, the Loan Agreement or any other Loan Document (the "Debt") upon the happenings of certain stated events.
3.Loan Documents. This Note is one of the Notes referred to in the Loan Agreement. This Note is secured by each Security Instrument (as defined in the Loan Agreement) executed by a Borrower and given to Administrative Agent, covering the respective Project described therein (as defined in the Loan Agreement). In the event of a conflict or inconsistency between the terms of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement will govern.
4.Savings Clause. In the event that the interest and/or charges in the nature of interest, if any, provided for by this Note, the Loan Agreement or by any other Loan Document, contravenes a legal or statutory limitation applicable to the Loan, if any, Borrower will pay only
SMRH:4847-1441-2233.18
Exhibit I – Page 1
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such amounts as would legally be permitted; provided, however, that if the defense of usury and all similar defenses are unavailable to Borrower, Borrower will pay all amounts provided for herein, in the Loan Agreement and in the other Loan Documents. If, for any reason, amounts in excess of the amounts permitted in the foregoing sentence have been paid, received, collected or applied hereunder, whether by reason of acceleration or otherwise, then, and in that event, any such excess amounts will be applied to principal, unless principal has been fully paid, in which event such excess amount will be refunded to Borrower.
5.Waivers. Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, notice of intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and all other notices of any kind. No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between Lender or any other Person will release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower or any other Person who may become liable for the payment of all or any part of the Debt under this Note, the Loan Agreement or the other Loan Documents. No notice to or demand on Borrower will waive any obligation of Borrower or waive any right of Lender or Administrative Agent to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan Documents. If Borrower is a partnership or limited liability company, the agreements herein contained will remain in force and be applicable, notwithstanding any changes in the individuals comprising the partnership or limited liability company, and the term "Borrower," as used herein, will include any alternate or successor partnership or limited liability company, but any predecessor partnership or limited liability company and their partners or members will not thereby be released from any liability. If Borrower is a corporation, the agreements contained herein will remain in full force and be applicable notwithstanding any changes in the shareholders comprising, or the officers and directors relating to, the corporation, and the term "Borrower," as used herein, will include any alternative or successor corporation, but any predecessor corporation will not be relieved of liability hereunder. Nothing in the foregoing sentences may be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in such partnership, limited liability company or corporation, which may be set forth in the Loan Agreement, any Security Instrument or any other Loan Document.
6.No Oral Change. This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.
7.[Intentionally Deleted].
8.Governing Law; Waiver of Jury Trial; Jurisdiction. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT
SMRH:4847-1441-2233.18
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REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD CAUSE ANOTHER STATE'S LAWS TO APPLY) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS NOTE AND THE LOAN AGREEMENT, AND THIS NOTE AND THE LOAN AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, AND ANY LAWS OF THE UNITED STATES OF AMERICA APPLICABLE TO NATIONAL BANKS.
TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION RELATING TO THE LOAN AND/OR THE LOAN DOCUMENTS. BORROWER, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF ILLINOIS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS NOTE, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF ILLINOIS, (C) SUBMITS TO THE JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT, AND (D) AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN WILL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT OR ANY LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). BORROWER FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO BORROWER AT THE ADDRESSES FOR NOTICES DESCRIBED IN THE LOAN AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE WILL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN WILL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
9.Severability. Wherever possible, each provision of this Note must be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note is prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note.
10.Time of the Essence. Time is of the essence hereof with respect to the dates, terms and conditions of this Note and the Loan Agreement.
11.Notices. All notices or other written communications hereunder must be delivered in accordance with Section 10.7 of the Loan Agreement.

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12.Limitation on Liability. Notwithstanding anything to the contrary set forth herein, under no circumstances shall any of the members, partners, directors, shareholders or other constituent owners of Borrower (direct or indirect), other than Guarantor, have any liability for Borrower’s obligations hereunder.
[NO FURTHER TEXT ON THIS PAGE]
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Exhibit I – Page 4
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IN WITNESS WHEREOF, Borrower has caused this Promissory Note to be duly executed and delivered as of the day and year first above set forth.
BORROWER:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XI, 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: ____________________
Charles J. Schreiber, Jr.,
Chief Executive Officer
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Exhibit I – Page 5
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EXHIBIT J
Form of Assignment and Assumption Agreement
This Assignment and Assumption (the "Assignment and Assumption") is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the "Assignee"). Capitalized terms used but not defined herein will have the meanings given to them in the Loan Agreement identified below (as amended, the "Loan Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee. The Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Terms and Conditions and the Loan Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below, the interest in and to all of the Assignor's rights and obligations in its capacity as a Lender under the Loan Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor's outstanding rights and obligations under the respective facilities identified below (including without limitation, to the extent permitted to be assigned under applicable Law, all claims (including without limitation contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity), suits, causes of action and any other right of the Assignor against any Person whether known or unknown arising under or in connection with the Loan Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby) (the "Assigned Interest"). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1. Assignor: [                        ]
2. Assignee:
[                        ][and is an Affiliate of [identify Lender]1
3. Borrower(s): [                        ]
4. Administrative Agent: U.S. Bank National Association, as the agent under the Loan Agreement.
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Exhibit J – Page 1
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5. Loan Agreement:
The Loan Agreement dated as of [_______________], 20[__] among [name of Borrower(s)], the Lenders party thereto, U.S. Bank National Association, as Administrative Agent, and the other agents party thereto.
6. Assigned Interest:
Aggregate Amount of Commitment/Advances for all Lenders1 Amount of Commitment/Advances Assigned2 Percentage Assigned of Commitment/Advances3
$[____________] $[____________] [_______]%
$[____________] $[____________] [_______]%
$[____________] $[____________] [_______]%
7. Trade Date: [______________________]4
Effective Date: [____________________], 20[__] [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH WILL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY ADMINISTRATIVE AGENT.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:_________________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:_________________________________
Title:
[Consented to and] Accepted:5
1 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
2 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
3 Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances of all Lenders thereunder.
4 Insert if satisfaction of minimum amounts is to be determined as of the Trade Date.
5 To be added only if the consent of Administrative Agent is required by the terms of the Credit Agreement.
SMRH:4847-1441-2233.18
Exhibit J – Page 2
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U.S. BANK NATIONAL ASSOCIATION, as
Administrative Agent
By:____________________________
Title:

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[Consented to:]7
ACKNOWLEDGED AND AGREED; Borrower is executing in the signature block below solely for the purpose of acknowledging receipt of the Assignment and Assumption Agreement to which this acknowledgement is attached and by signing below Borrower shall not be incurring any additional obligations or additional liability except as contemplated by the Loan Documents
[NAME OF RELEVANT PARTY]
By:____________________________
Title:















____________________________________
7 To be added only if the consent of Borrower and/or other parties (e.g. Swing Line Lender, LC Issuer) is required by the terms of the Credit Agreement.
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ANNEX 1
TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1.    Representations and Warranties.
1.1    Assignor. The Assignor represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby. Neither the Assignor nor any of its officers, directors, employees, agents or attorneys will be responsible for (i) any statements, warranties or representations made in or in connection with the Loan Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency, perfection, priority, collectibility, or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of Borrower, any of its Affiliates or any other Person obligated in respect of any Loan Document, (iv) the performance or observance by Borrower, any of its Affiliates or any other Person of any of their respective obligations under any Loan Documents, (v) inspecting any of the Project, books or records of Borrower, or any guarantor, or (vi) any mistake, error of judgment, or action taken or omitted to be taken in connection with the Loan or the Loan Documents.
1.2.    Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Loan Agreement, (ii) from and after the Effective Date, it will be bound by the provisions of the Loan Agreement as a Lender thereunder and, to the extent of the Assigned Interest, will have the obligations of a Lender thereunder, (iii) agrees that its payment instructions and notice instructions are as set forth in Schedule 1 to this Assignment and Assumption, (iv) confirms that none of the funds, monies, assets or other consideration being used to make the purchase and assumption hereunder are "plan assets" as defined under ERISA and that its rights, benefits and interests in and under the Loan Documents will not be "plan assets" under ERISA, (v) agrees to indemnify and hold the Assignor harmless against all losses, costs and expenses (including, without limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor in connection with or arising in any manner from the Assignee's non-performance of the obligations assumed under this Assignment and Assumption, (vi) it has received a copy of the Loan Agreement, together with copies of financial statements and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on Administrative Agent or any other Lender, and (vii) attached as Schedule 1 to this Assignment and Assumption is any documentation required to be delivered by the Assignee with respect to its tax status pursuant to the terms of the Loan Agreement, duly completed and executed by the Assignee and (b) agrees that (i) it will, independently and without reliance on Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it will deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with
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their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.    Payments. The Assignee will pay the Assignor, on the Effective Date, the amount agreed to by the Assignor and the Assignee. From and after the Effective Date, Administrative Agent will make all payments in respect of the Assigned Interest (including payments of principal, interest, reimbursement obligations, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3.    General Provisions. This Assignment and Assumption will be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together will constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy will be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption will be governed by, and construed in accordance with, the law of the State of Illinois.


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EXHIBIT K
[Intentionally Deleted]


SMRH:4847-1441-2233.18 Exhibit K
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EXHIBIT L
LIST OF LEASES
[to be provided]

SMRH:4847-1441-2233.18 Exhibit L
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Exhibit M
Form of Notice of Obligations

TO:        U.S. Bank National Association, as Administrative Agent
        Via email to Agencyserviceslcmshared@usbank.com

RE:        Revolving and Term Loan Agreement dated as of November 2, 2020 (as amended, restated, supplemented, or otherwise modified from time to time, the “Agreement”), between KBSIII 500 West Madison, LLC,
a Delaware limited liability company (“Borrower”), the Lenders party thereto, and U.S. Bank National Association, as administrative agent (in such capacity, “Administrative Agent”; capitalized terms used herein and not otherwise defined have the meanings set forth in the Agreement)

DATE:        [•], 20[•]
______________________________________________________________________________

[•] (the “Secured Party”) hereby notifies you, pursuant to the terms of the Agreement, that the Secured Party has provided Lender-Provided Swaps.
[Describe nature and scope of Lender-Provided Swaps and related exposure]
A duly authorized representative of the undersigned has executed this notice as of the day and year set forth above.


[•]

By:                        
Name:    [•]
Title:    [•]


SMRH:4847-1441-2233.18 Exhibit M
0YWK-314211


Exhibit 10.4

PREPARED BY AND AFTER
RECORDING RETURN TO:
Sheppard, Mullin, Richter &
Hampton LLP
650 Town Center Dr., 4th Floor
Costa Mesa, CA 92626
Attn: Daniel P. Mallet
(For Recorder's Use Only)
CONSTRUCTION MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING

KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company, as mortgagor
(Borrower)
to
U.S. BANK NATIONAL ASSOCIATION, in its capacity as Administrative Agent, as mortgagee
(Administrative Agent)

Dated:    November 2, 2020
Location:    Cook County, Illinois

ATTENTION: COUNTY RECORDER - THIS MORTGAGE COVERS GOODS THAT ARE OR ARE TO BECOME FIXTURES ON THE REAL PROPERTY DESCRIBED HEREIN AND IS TO BE FILED FOR RECORD IN THE RECORDS WHERE MORTGAGES ON REAL ESTATE ARE RECORDED. ADDITIONALLY, THIS MORTGAGE SHOULD BE APPROPRIATELY INDEXED, NOT ONLY AS A MORTGAGE, BUT ALSO AS A FIXTURE FILING COVERING GOODS THAT ARE OR ARE TO BECOME FIXTURES ON THE REAL PROPERTY DESCRIBED HEREIN. THE MAILING ADDRESSES OF THE MORTGAGOR (DEBTOR) AND MORTGAGEE (SECURED PARTY) ARE SET FORTH IN THIS MORTGAGE.
    
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CONSTRUCTION MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
THIS CONSTRUCTION MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this “Security Instrument”) is made as of this 2nd day of November, 2020, by KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company, having its principal place of business at c/o KBS Capital Advisors LLC, 800 Newport Center Drive, Suite 700, Newport Beach, California 92660, Attention: Dan Park, as mortgagor (“Borrower”) for the benefit of U.S. BANK NATIONAL ASSOCIATION, a national banking association, as a “Lender” and as “Administrative Agent” for the “Lenders” under the Loan Agreement (as hereinafter defined), in such capacity, together with is successors and assigns, “Administrative Agent”, as mortgagee, having an address at 4100 Newport Place, Suite 900, Newport Beach, California 92660.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Revolving and Term Loan Agreement dated as of the date hereof among Borrower, the Lenders from time to time party thereto and Administrative Agent (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”), the Lenders have agreed to make certain advances from time to time to Borrower in the maximum aggregate principal amount of THREE HUNDRED SEVENTY-FIVE MILLION AND NO/100 DOLLARS ($375,000,000.00) (the “Loan”) and evidenced by one or more promissory notes made by Borrower and delivered to the Lenders (as the same may be amended, restated, replaced, extended, renewed, supplemented or otherwise modified from time to time, collectively, the “Notes”);
WHEREAS, Borrower desires to secure the payment of the Loan, including the payment of all obligations and liabilities of Borrower to any Swap Counterparty under any Lender-Provided Swap Transaction (the “Lender-Provided Swap Obligations”), Fees and other costs, expenses, fees and interest relating to the Loan, and the other obligations of Borrower under the Loan Documents (as hereinafter defined) and the performance of all of its obligations under the Notes, the Loan Agreement and the other Loan Documents (all hereinafter referred to collectively as the “Debt”); and
WHEREAS, this Security Instrument is given pursuant to the Loan Agreement and secures the payment, fulfillment, and performance by Borrower of its obligations thereunder and under the other Loan Documents, and each and every term and provision of the Loan Agreement and the Notes, including the rights, remedies, obligations, covenants, conditions, agreements, indemnities, representations and warranties of the parties therein, are hereby incorporated by reference herein as though set forth in full and will be considered a part of this Security Instrument (the Loan Agreement, the Notes, this Security Instrument, and all other documents evidencing or securing the Debt or delivered in connection with the making of the Loan (but expressly excluding the Indemnity and the Guaranties), together with all amendments, restatements, replacements, extensions, renewals, supplements or other modifications of any of the foregoing, are hereinafter referred to collectively as the “Loan Documents”). For avoidance of doubt, the Indemnity and the Guaranties shall not constitute “Loan Documents” as such term
SMRH:4842-8642-7337.7
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Accenture Tower - Mortgage,
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is defined herein, and neither the Indemnity nor any of the Guaranties is secured by this Security Instrument.
NOW THEREFORE, in consideration of the making of the Loan by the Lenders and the covenants, agreements, representations and warranties set forth in this Security Instrument:
Article 1 - GRANTS OF SECURITY
Section 1.1    PROPERTY MORTGAGED. In consideration of the indebtedness herein recited and as security for payment and performance of the payment of both principal and interest and the other obligations set forth below, Borrower has granted, conveyed, bargained, sold, alienated, enfeoffed, released, confirmed, transferred, pledged, warranted and mortgaged, and by these presents does hereby grant, convey, bargain, sell, alien, enfeoff, release, confirm, transfer, pledge, warrant and mortgage unto Administrative Agent, for the benefit of Administrative Agent and the Lenders, and grant a security interest to Administrative Agent, for the benefit of Administrative Agent and the Lenders, under and subject to the terms and conditions hereinafter set forth in, the following property, rights, interests and estates now owned, or hereafter acquired by Borrower (collectively, the “Property”):
(a)Land. All right, title and interest, whether fee, leasehold or otherwise, in and to the real property described in Exhibit A attached hereto and made a part hereof (the “Land”);
(b)Additional Land. All additional lands, estates and development rights hereafter acquired by Borrower for use in connection with the Land and the development of the Land and all additional lands and estates therein which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the lien of this Security Instrument;
(c)Improvements. The buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements now or hereafter erected or located on the Land (collectively, the “Improvements”);
(d)Easements. All easements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the Land and the Improvements and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interests, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Borrower of, in and to the Land and the Improvements and every part and parcel thereof, with the appurtenances thereto;
(e)Equipment. All “equipment,” as such term is defined in Article 9 of the Uniform Commercial Code (as hereinafter defined), now owned or hereafter acquired by Borrower, which is used at or in connection with the Improvements or the Land or is or will be located thereon or therein (including any Stored Materials wherever located, all machinery, equipment, furnishings, and electronic data-processing and other office equipment now owned or hereafter acquired by
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Borrower and any and all additions, substitutions and replacements of any of the foregoing), together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto (collectively, the “Equipment”);
(f)Fixtures. All Equipment now owned, or the ownership of which is hereafter acquired, by Borrower which is so related to the Land and Improvements forming part of the Property that it is deemed fixtures or real property under the law of the particular state in which the Equipment is located, including all building or construction materials intended for construction, reconstruction, alteration or repair of or installation on the Property, construction equipment, appliances, machinery, plant equipment, fittings, apparatuses, fixtures and other items now or hereafter attached to, installed in or used in connection with (temporarily or permanently) any of the Improvements or the Land, including engines, devices for the operation of pumps, pipes, plumbing, cleaning, call and sprinkler systems, fire extinguishing apparatuses and equipment, heating, ventilating, plumbing, laundry, incinerating, electrical, air conditioning and air cooling equipment and systems, gas and electric machinery, appurtenances and equipment, pollution control equipment, security systems, disposals, dishwashers, refrigerators and ranges, recreational equipment and facilities of all kinds, and water, gas, electrical, storm and sanitary sewer facilities, utility lines and equipment (whether owned individually or jointly with others, and, if owned jointly, to the extent of Borrower’s interest therein) and all other utilities whether or not situated in easements, all water tanks, water supply, water power sites, fuel stations, fuel tanks, fuel supply, and all other structures, together with all accessions, appurtenances, additions, replacements, betterments and substitutions for any of the foregoing and the proceeds thereof (collectively, the “Fixtures”);
(g)Personal Property. All personal property of Borrower which Borrower now or hereafter owns or in which Borrower now or hereafter acquires an interest or right, including without limitation, all furniture, furnishings, objects of art, machinery, goods, tools, supplies, appliances, general intangibles, contract rights, accounts, accounts receivable, franchises, licenses, certificates and permits, and all other personal property of any kind or character whatsoever (as defined in and subject to the provisions of the Uniform Commercial Code as hereinafter defined), other than Fixtures, wherever located (including Stored Materials located off-site), including without limitation all such personal property which is used at or in connection with, or located within or about, the Land and the Improvements, or used or which it is contemplated will be used at or in connection with the development or construction of the Improvements together with all accessories, replacements and substitutions thereto or therefor and the proceeds thereof (collectively, the “Personal Property”), and the right, title and interest of Borrower in and to any of the Personal Property which may be subject to any security interests, as defined in the Uniform Commercial Code, as adopted and enacted by the state, states, commonwealth or commonwealths where any of the Property is located (as amended from time to time, the “Uniform Commercial Code”), superior in lien to the lien of this Security Instrument and all proceeds and products of the above.  Borrower represents, warrants and covenants that the Personal Property is not used or bought for personal, family or household purposes;
(h)Leases and Rents. All leasehold estate, right, title and interest of Borrower in and to all leases, subleases, subsubleases, lettings, licenses, concessions or other agreements (whether
SMRH:4842-8642-7337.7
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Accenture Tower - Mortgage,
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written or oral) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of the Land and the Improvements, and every modification, amendment or other agreement relating to such leases, subleases, subsubleases, or other agreements entered into in connection with such leases, subleases, subsubleases, or other agreements and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto, heretofore or hereafter entered into, whether before or after the filing by or against Borrower of any petition for relief under 11 U.S.C. §101 et seq., as the same may be amended from time to time (the “Bankruptcy Code”) (collectively, the “Leases”) and all right, title and interest of Borrower, its successors and assigns therein and thereunder, including all cash, letters of credit or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents, additional rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties (including all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Property, including all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of property or rendering of services by Borrower or Property Manager and proceeds, if any, from business interruption or other loss of income insurance whether paid or accruing before or after the filing by or against Borrower of any petition for relief under the Bankruptcy Code (collectively, the “Rents”) and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Obligations (as hereinafter defined);
(i)Condemnation Awards. All awards or payments (including any administrative fees or attorneys’ fees), including interest thereon, which may heretofore and hereafter be made with respect to the Property, whether from the exercise of the right of eminent domain (including any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Property;
(j)Insurance Proceeds. All proceeds (including any administrative fees or attorneys’ fees) in respect of the Property under any insurance policies covering the Property, including the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Property;
(k)Tax Certiorari. All refunds, rebates or credits in connection with reduction in real estate taxes and assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction;
(l)Rights. The right, in the name and on behalf of Borrower, to appear in and defend any action or proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of Administrative Agent in the Property;
(m)Agreements. All agreements, contracts, certificates, instruments, franchises, permits, licenses, plans, specifications and other documents, now or hereafter entered into, and
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all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Land and any part thereof and any Improvements or respecting any business or activity conducted on the Land and any part thereof and all right, title and interest of Borrower therein and thereunder, including the right, upon the happening of any default hereunder, to receive and collect any sums payable to Borrower thereunder;
(n)Trademarks. All tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property;
(o)Accounts. All reserves, escrows and deposit accounts maintained by Borrower with respect to the Property, including all accounts established or maintained pursuant to the Loan Documents; together with all deposits or wire transfers made to such accounts and all cash, checks, drafts, certificates, securities, investment property, financial assets, instruments and other property held therein from time to time and all proceeds, products, distributions or dividends or substitutions thereon and thereof;
(p)Swaps. All of Borrower’s present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to all Swaps, any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing including all “accounts”, “chattel paper”, “general intangibles” and “investment property” (as such terms are defined in the Uniform Commercial Code as from time to time in effect) constituting or relating to the foregoing;
(q)Proceeds. All proceeds of any of the foregoing, including, without limitation, proceeds of insurance and condemnation awards, whether cash, liquidation or other claims or otherwise; and
(r)Greater Estate. All right, title and interest of Borrower now owned or hereafter acquired by Borrower in and to any greater estate in the Land or the Improvements; and
(s)Other Rights. Any and all other rights of Borrower in and to the items set forth in Subsections (a) through (r) above.
AND without limiting any of the other provisions of this Security Instrument, to the extent permitted by applicable law, Borrower expressly grants to Administrative Agent, as secured party, for the benefit of Administrative Agent and the Lenders, a security interest in the portion of the Property which is or may be subject to the provisions of the Uniform Commercial Code which are applicable to secured transactions, to secure the payment and performance of the Obligations, including but not limited to the Debt; it being understood and agreed that the Improvements and Fixtures are part and parcel of the Land (the Land, the Improvements and the Fixtures are collectively referred to as the “Real Property”) appropriated to the use thereof and, whether affixed or annexed to the Real Property or not, will for the purposes of this Security Instrument be deemed conclusively to be real estate and mortgaged hereby.
Section 1.2    ASSIGNMENT OF RENTS. Borrower hereby absolutely and unconditionally assigns to Administrative Agent, for the benefit of Administrative Agent and the Lenders, all of Borrower’s right, title and interest in and to all current and future Leases and Rents; it being
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intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Nevertheless, subject to the terms of Section 7.1(h) of this Security Instrument, Administrative Agent grants to Borrower a revocable license to collect, receive, use and enjoy the Rents. Borrower will hold the Rents, or a portion thereof sufficient to discharge all current sums due on the Obligations, for use in the payment of such sums.
Section 1.3    SECURITY AGREEMENT. This Security Instrument is both a real property mortgage and a “security agreement” within the meaning of the Uniform Commercial Code. The Property includes both real and personal property and all other rights and interests, whether tangible or intangible in nature, of Borrower in the Property. By executing and delivering this Security Instrument, Borrower hereby grants to Administrative Agent, for the benefit of Administrative Agent and the Lenders, as security for the Obligations, a security interest in the Fixtures, the Equipment, the Personal Property and other property constituting the Property to the full extent that the Fixtures, the Equipment, the Personal Property and such other property may be subject to the Uniform Commercial Code (said portion of the Property so subject to the Uniform Commercial Code being called the “Collateral”). If an Event of Default occurs, Administrative Agent, in addition to any other rights and remedies which it may have, will have and may exercise immediately and without demand, any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code, including, without limiting the generality of the foregoing, the right to take possession of the Collateral or any part thereof, and to take such other measures as Administrative Agent may deem necessary for the care, protection and preservation of the Collateral. Upon request or demand of Administrative Agent after the occurrence, and during the continuance of an Event of Default, Borrower will, at its expense, assemble the Collateral and make it available to Administrative Agent at a convenient place (at the Land if tangible property) acceptable to Administrative Agent. Borrower will pay to Administrative Agent on demand any and all expenses, including legal expenses and attorneys’ fees, incurred or paid by Administrative Agent in protecting its interest in the Collateral and in enforcing its rights hereunder with respect to the Collateral after the occurrence and during the continuance of an Event of Default. Any notice of sale, disposition or other intended action by Administrative Agent with respect to the Collateral sent to Borrower in accordance with the provisions hereof at least 10 Business Days prior to such action, will, except as otherwise provided by applicable law, constitute reasonable notice to Borrower. The proceeds of any disposition of the Collateral, or any part thereof, may, except as otherwise required by applicable law, be applied by Administrative Agent to the payment of the Obligations in such priority and proportions as Administrative Agent in its discretion deems proper. The principal place of business of Borrower (Debtor) is as set forth on page one hereof and the address of Administrative Agent (Secured Party) is as set forth on page one hereof.
Section 1.4    FIXTURE FILING. Certain of the Property is or will become “fixtures” (as that term is defined in the Uniform Commercial Code) on the Land, described or referred to in this Security Instrument, and this Security Instrument, upon being filed for record in the real estate records of the city or county wherein such fixtures are situated, will operate also as a financing statement naming Borrower as Debtor and Administrative Agent as Secured Party filed as a fixture filing in accordance with the applicable provisions of said Uniform Commercial Code upon such of the Property that is or may become fixtures.

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Section 1.5    PLEDGES OF MONIES HELD. Borrower hereby pledges to Administrative Agent, for the benefit of Administrative Agent and the Lenders, any and all monies now or hereafter held by Administrative Agent or on behalf of Administrative Agent in connection with the Loan, including the Net Proceeds, and any sums deposited in the Required Accounts, as additional security for the Obligations until expended or applied as provided in this Security Instrument or the Loan Agreement.
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property unto and to the use and benefit of Administrative Agent and its successors and assigns, forever;
PROVIDED, HOWEVER, this grant is made upon the express condition that, if Borrower pays to Administrative Agent the Obligations at the time and in the manner provided in the Loan Documents, and performs the Obligations in the time and manner set forth in the Loan Documents and complies with each and every covenant and condition set forth herein and in the other Loan Documents, the estate hereby granted will cease, terminate and be void; provided, however, that Borrower’s obligation to indemnify and hold harmless Administrative Agent pursuant to the provisions hereof will survive any such payment or release.
Article 2 - DEBT AND OBLIGATIONS SECURED
Section 2.1    DEBT. This Security Instrument and the grants, assignments and transfers made in Article 1 are given for the purpose of securing the Debt which includes, but is not limited to, the obligations of Borrower to pay the principal and interest owing pursuant to the terms and conditions of the Notes and the Loan Agreement.
Section 2.2    OTHER OBLIGATIONS. This Security Instrument and the grants, assignments and transfers made in Article 1 are also given for the purpose of securing the following (the “Other Obligations”):
(a)the payment and performance of all other obligations of Borrower contained herein, including all fees and charges payable by Borrower;
(b)the payment and performance of each obligation of Borrower contained in the Loan Agreement and any other Loan Document, including all Lender-Provided Swap Obligations and all fees and charges payable by Borrower; and
(c)the performance of each obligation of Borrower contained in any renewal, extension, amendment, modification, consolidation, change of, or substitution or replacement for, all or any part of the Loan Agreement or any other Loan Document.
Section 2.3    DEBT AND OTHER OBLIGATIONS. Borrower’s obligations for the payment of the Debt and the payment and performance of the Other Obligations will be referred to collectively herein as the “Obligations.”
Article 3 - BORROWER COVENANTS

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Borrower covenants and agrees that:
Section 3.1    PAYMENT OF OBLIGATIONS. Borrower will pay and perform the Obligations at the time and in the manner provided in the Loan Agreement, the Notes and this Security Instrument.
Section 3.2    INCORPORATION BY REFERENCE. All the covenants, conditions and agreements contained in (a) the Loan Agreement, (b) the Notes and (c) all and any of the other Loan Documents, are hereby made a part of this Security Instrument to the same extent and with the same force as if fully set forth herein.
Section 3.3    INSURANCE. Borrower will, at no expense to Administrative Agent and/or any Lender, obtain and maintain, or cause to be maintained, in full force and effect at all times insurance with respect to Borrower and the Property as required pursuant to the Loan Agreement. In the event Borrower fails to obtain, maintain, keep in force or deliver to Administrative Agent the policies of insurance required by the Loan Agreement in accordance with the terms thereof, Administrative Agent may (but has no obligation to) procure (upon no less than five (5) Business Days’ notice to Borrower) such insurance or single-interest insurance for such risks covering Administrative Agent’s and the Lenders’ interests, and Borrower will pay all premiums thereon promptly upon demand by Administrative Agent, and until such payment is made by Borrower, the amount advanced by Administrative Agent with respect to all such premiums will, at Administrative Agent’s option, bear interest at the Default Rate.
Section 3.4    MAINTENANCE OF PROPERTY. Borrower will cause the Property to be maintained in a good and safe condition and repair and otherwise in accordance with the Loan Agreement. The Improvements, the Fixtures, the Equipment and the Personal Property will not be removed, demolished or altered without the consent of Administrative Agent and the Required Lenders other than in accordance with the terms and conditions of the Loan Agreement. Borrower will promptly repair, replace or rebuild any part of the Property which may be destroyed by any casualty or become damaged, worn or dilapidated or which may be affected by any condemnation, and will complete and pay for any structure at any time in the process of construction or repair on the Land.
Section 3.5    WASTE. Borrower will not commit or suffer any waste of the Property or make any change in the use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of the Property, or take any action that might invalidate or allow the cancellation of any insurance policy which Borrower is obligated to maintain pursuant to the Loan Agreement, or do or permit to be done thereon anything that may in any way materially impair the value of the Property or the security of this Security Instrument. Borrower will not, without the prior written consent of Administrative Agent and the Required Lenders, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Land, regardless of the depth thereof or the method of mining or extraction thereof.
Section 3.6    PAYMENT OF LABOR AND MATERIALS.

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(a)Subject to Borrower’s right to contest pursuant to the terms of Section 3.6(b) below, Borrower will promptly pay prior to delinquency all bills and costs for labor and materials (“Labor and Material Costs”) incurred in connection with the Property and prevent the fixing of any lien against any part of the Property, even if it is inferior to this Security Instrument, for any such bill which may be legally due and payable. Borrower agrees to furnish, upon Administrative Agent’s request, reasonable proof of such payment to Administrative Agent after payment and before delinquency..
(b)After prior written notice to Administrative Agent, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any of the Labor and Material Costs, provided that (i) no Event of Default has occurred, (ii) intentionally deleted, (iii) such proceeding is permitted and conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and will not constitute a default thereunder, (iv) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, and (v) Borrower has furnished such security as may be required in the proceeding, or as may be reasonably requested by Administrative Agent to insure the payment of any contested Labor and Material Costs, together with all interest and penalties thereon. Administrative Agent may pay over, upon no less than five (5) Business Days’ written notice to Borrower, any such security or part thereof held by Administrative Agent to the claimant entitled thereto at any time when, in the reasonable judgment of Administrative Agent, the entitlement of such claimant is established or the Property (or part thereof or interest therein) is in danger of being sold, forfeited, terminated, cancelled or lost or there is any danger of any Lien related to the contested Labor and Material Costs becoming senior in priority, in whole or in part, to the Lien of the Security Instrument. If Administrative Agent shall make any such payment, Borrower shall provide (at Borrower’s sole cost and expense) such endorsements to Administrative Agent’s title insurance policy or such other evidence as Administrative Agent may reasonably require to confirm no loss of priority of the Security Instrument.
(c)Borrower will cause, as a condition precedent to the closing of the loan secured hereby, Administrative Agent’s title insurer to insure in a manner acceptable to Administrative Agent in its sole discretion, that this Security Instrument is a valid and existing first priority lien on the Property free and clear of any and all exceptions for mechanic’s and materialman’s liens and all other liens and exceptions except as set forth in the mortgagee’s policy of title insurance accepted by Administrative Agent, and such title insurance policy may not contain an exception for broken lien priority.
Section 3.7    PAYMENT OF TAXES AND IMPOSITIONS.
(a)Borrower will pay, or cause to be paid prior to delinquency, all real property taxes and assessments, general and special, and all other taxes, assessments, duties, levies, imposts, deductions, charges or withholdings, of any kind or nature whatsoever, including nongovernmental levies or assessments such as maintenance charges, levies or charges resulting from covenants, conditions and restrictions affecting the Property, which are assessed or imposed upon the Property, or become due and payable, and which create or may create a lien upon the Property (all the foregoing, collectively, “Impositions”).

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(b)After prior notice to Administrative Agent, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Impositions, provided that (i) no Event of Default has occurred and is continuing, (ii) such proceeding is permitted and conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and will not constitute a default thereunder, (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, (iv) Borrower will promptly upon final determination thereof pay the amount of any such Impositions, together with all costs, interest and penalties which may be payable in connection therewith, and (v) Borrower has furnished such security as may be required in the proceeding, or as may be reasonably requested by Administrative Agent to insure the payment of any contested Impositions, together with all interest and penalties thereon. Administrative Agent may pay over (upon no less than five (5) Business Days’ written notice to Borrower) any such security or part thereof held by Administrative Agent to the claimant entitled thereto at any time when, in the reasonable judgment of Administrative Agent, the entitlement of such claimant is established or the Property (or part thereof or interest therein) is in danger of being sold, forfeited, terminated, cancelled or lost or there is any danger of any Lien related to the contested Impositions becoming senior in priority, in whole or in part, to the Lien of the Security Instrument. If Administrative Agent shall make any such payment, Borrower shall provide (at Borrower’s sole cost and expense) such endorsements to Administrative Agent’s title insurance policy or such other evidence as Administrative Agent may reasonably require to confirm no loss of priority of the Security Instrument.
Section 3.8    CHANGE OF NAME, JURISDICTION. In addition to the restrictions contained in the Loan Agreement, Borrower will not change Borrower’s name, identity (including its trade name or names) or jurisdiction of formation or organization unless Borrower has first obtained the prior written consent of Administrative Agent to such change (which consent shall not be unreasonably withheld, conditioned or delayed), and has taken all actions reasonably necessary or reasonably required by Administrative Agent to file or amend any financing statements or continuation statements to assure perfection and continuation of perfection of security interests under the Loan Documents. Borrower will notify Administrative Agent in writing of any change in its organizational identification number at least ten (10) Business Days in advance of such change becoming effective. If Borrower does not now have an organizational identification number and later obtains one, Borrower will promptly notify Administrative Agent in writing of such organizational identification number. At the request of Administrative Agent, Borrower will execute a certificate in form reasonably satisfactory to Administrative Agent listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does, and has previously never done, business under no other trade name with respect to the Property.
Section 3.9    UTILITIES. Borrower will pay or cause to be paid prior to delinquency all utility charges that are incurred by Borrower for the benefit of the Property or that may become a charge or lien against the Property for gas, electricity, water or sewer services furnished to the Property and all other assessments or charges of a similar nature, whether public or private, affecting or related to the Property or any portion thereof, whether or not such assessments or charges are or may become liens thereon.
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Section 3.10    CASUALTY. After obtaining knowledge of the occurrence of any damage, destruction or other casualty to the Property or any part thereof, whether or not covered by insurance, Borrower must immediately notify Administrative Agent in writing. In the event of such casualty, all proceeds of insurance (collectively, the “Insurance Proceeds”) must be payable to Administrative Agent and no other party, and Borrower hereby authorizes and directs any affected insurance company to make payment of such Insurance Proceeds directly to Administrative Agent and no other party. If Borrower receives any Insurance Proceeds, Borrower must pay over such Insurance Proceeds to Administrative Agent within 2 Business Days. Administrative Agent is hereby authorized and empowered by Borrower to settle, adjust or compromise any and all claims for loss, damage or destruction under any policy or policies of insurance. Notwithstanding the above, provided that (i) such proceeds do not exceed $1,000,000.00 for any Property (as defined in the Loan Agreement), (ii) no Event of Default exists, and (iii) the casualty does not materially impair the value of the Project, Borrower may retain such proceeds (which shall be applied to the restoration of the Improvements to the extent required to repair a casualty). In the event of a foreclosure of this Security Instrument, or other transfer of title to the Property in extinguishment in whole or in part of the Obligations, all right, title and interest of Borrower in and to any Insurance Proceeds will vest in the purchaser at such foreclosure or in Administrative Agent, for the benefit of Administrative Agent and the Lenders or other transferee in the event of such other transfer of title. Nothing herein will be deemed to excuse Borrower from repairing or maintaining the Property as provided in this Security Instrument or restoring all damage or destruction to the Property, regardless of the availability or sufficiency of Insurance Proceeds, and the application or release by Administrative Agent of any Insurance Proceeds will not cure or waive any Default, Event of Default or notice of Default or Event of Default or invalidate any action taken by or on behalf of Administrative Agent pursuant to any such notice.
Section 3.11    CONDEMNATION. If any proceeding or action is commenced for the taking of the Property, or any part thereof or interest therein, for public or quasi-public use under the power of eminent domain, condemnation or otherwise, or if the same is taken or damaged by reason of any public improvement or condemnation proceeding, or in any other manner, or should Borrower receive any notice or other information regarding such proceeding, action, taking or damage, Borrower must immediately notify Administrative Agent in writing. Administrative Agent may commence, appear in and prosecute in its own name any such action or proceeding. Administrative Agent may also make (during the existence of an Event of Default) any compromise or settlement in connection with such taking or damage. Neither Administrative Agent nor any Lender will be liable to Borrower for any failure by Administrative Agent to collect or to exercise diligence in collecting any such compensation for a taking. All compensation, awards, damages, rights of action and proceeds awarded to Borrower by reason of any such taking or damage to the Property or any part thereof or any interest therein for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation proceeding, or in any other manner (the “Condemnation Proceeds”) are hereby assigned to Administrative Agent, for the benefit of Administrative Agent and the Lenders, and Borrower agrees to execute such further assignments of the Condemnation Proceeds as Administrative Agent may require. Nothing herein will be deemed to excuse Borrower from repairing, maintaining or restoring the Property as provided in this Security Instrument, regardless of the availability or sufficiency of any Condemnation Proceeds, and the application or release by Administrative Agent of any Condemnation Proceeds
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will not cure or waive any Default, Event of Default or notice of Default or Event of Default or invalidate any action taken by or on behalf of Administrative Agent pursuant to any such notice. In the event of a foreclosure of this Security Instrument, or other transfer of title to the Property in extinguishment in whole or in part of the Obligations, all right, title and interest of Borrower in and to the Condemnation Proceeds will vest in the purchaser at such foreclosure or in Administrative Agent, for the benefit of Administrative Agent and the Lenders, or other transferee in the event of such other transfer of title.
Section 3.12    AVAILABILITY OF NET PROCEEDS.
(a)In the event of any damage or destruction of the Property, Administrative Agent shall apply all Insurance Proceeds remaining after deductions of all expenses of collection and settlement thereof, including, without limitation, reasonable attorneys’ and adjustors’ fees and expenses, to the restoration of the Improvements but only as repairs or replacements are effected and continuing expenses become due and payable; provided that the following conditions are met: (a) no Event of Default exists that has not been cured; (b) the Loan is in balance (taking into account all costs of reconstruction and the amount of the Insurance Proceeds, if any, the amount of operating expenses and interest that will accrue under the Notes, and any additional funds deposited by Borrower with Administrative Agent to pay for such costs of reconstruction); (c) Administrative Agent has determined, in its sole discretion, that the damage or destruction can be repaired and that the damaged portion of the Improvements can be completed according to the requirements of the Loan Agreement; (d) Administrative Agent and all applicable governmental authorities have approved the final plans and specifications for reconstruction of the damaged portion of the Improvements; (e) Administrative Agent has approved, for the reconstruction of the damaged portion of the Improvements, in its sole discretion, the budget, the construction schedule and the construction contract; and (f) Administrative Agent has determined, in its sole discretion, that upon completion of the reconstruction work, the Loan to Value Requirement will be satisfied, provided Trustor may pay down the Loan so that the foregoing requirement in this clause (f) is satisfied. If any one or more of such conditions set forth herein have not been met, Administrative Agent will not be obligated to make any further disbursements pursuant to the Loan Agreement, and Administrative Agent shall apply all Insurance Proceeds, after deductions as herein provided, to the repayment of the outstanding balance of the Notes, (without payment of a prepayment premium other than breakage fees) together with all accrued interest thereon, in such order as Administrative Agent may elect, notwithstanding that the outstanding balance may not be due and payable.
(b)In the event of any taking or condemnation of the Property or any part thereof or interest therein, all Condemnation Proceeds will be paid to Administrative Agent, for the benefit of Administrative Agent and the Lenders. After deducting therefrom all costs and expenses (regardless of the particular nature thereof and whether incurred with or without suit), including attorneys’ fees, incurred by it in connection with any such action or proceeding, Administrative Agent shall apply all such Condemnation Proceeds to the restoration of the Improvements (other than Condemnation Proceeds attributable to temporary use or occupancy which may be applied, at Administrative Agent’s option, to installments of principal and interest and other charges due under the Notes and other Loan Documents when the same become due and payable, without payment of a prepayment premium other than breakage fees) provided that:

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(i)the taking or damage will not, in Administrative Agent’s reasonable judgment, materially impair the security for the Loan; and
(ii)all conditions set forth in Section 3.12(a) above with respect to the disbursement of Insurance Proceeds are met.
If all of the above conditions are met, Administrative Agent shall disburse the Condemnation Proceeds in accordance with the Loan Agreement and only as repairs or replacements are effected and continuing expenses become due and payable. If any one or more of the above conditions are not met, Administrative Agent shall apply all of the Condemnation Proceeds, after deductions as herein provided, to the repayment of the outstanding balance of the Notes (without payment of prepayment premiums other than breakage fees), together with all accrued interest thereon, in such order as Administrative Agent may elect, notwithstanding that said outstanding balance may not be due and payable, and Administrative Agent will have no further obligation to make disbursements pursuant to the Loan Agreement or the other Loan Documents. If the Condemnation Proceeds are not sufficient to repay the portion of the Loan allocable to the Property covered by this Deed of Trust and Administrative Agent or Lenders have determined that its security for the Loan is materially impaired, Borrower shall immediately pay any such remaining balance allocable to the Property, together with all accrued interest thereon. Notwithstanding the above, provided the Condemnation Proceeds do not exceed $500,000, no Event of Default exists, and the taking has not materially impaired the value of the Property, Borrower may retain such Condemnation Proceeds.
(c)The term “Net Proceeds” means (i) the net amount of the Insurance Proceeds received by Administrative Agent after deduction of Administrative Agent’s costs and expenses (including attorneys’ fees), if any, in collecting the same; or (ii) the net amount of the Condemnation Proceeds received by Administrative Agent after deduction of Administrative Agent’s costs and expenses (including attorneys’ fees), if any, in collecting the same, whichever the case may be; and (iii) any additional deposit the Administrative Agent requires the Borrower to make to the Administrative Agent in connection with such casualty or condemnation proceeding.
Article 4 - OBLIGATIONS AND RELIANCES
Section 4.1    RELATIONSHIP OF BORROWER AND LENDERS. The relationship between Borrower and Administrative Agent and the Lenders is solely that of debtor and creditor, and neither Agent nor any Lender has any fiduciary or other special relationship with Borrower, and no term or condition of any of the Loan Agreement, this Security Instrument or any of the other Loan Documents, the Indemnity or the Guaranties will be construed so as to deem the relationship between Borrower and Administrative Agent and the Lenders to be other than that of debtor and creditor.
Section 4.2    NO RELIANCE ON LENDERS. The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Administrative Agent and the Lenders are relying solely upon such expertise and business plan in connection with the
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ownership and operation of the Property. Borrower is not relying on Administrative Agent’s or any Lender’s expertise, business acumen or advice in connection with the Property.
Section 4.3    NO ADMINISTRATIVE AGENT OBLIGATIONS.
(a)Notwithstanding anything to the contrary contained in this Security Instrument, neither Administrative Agent nor any Lender is undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to any other agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.
(b)By accepting or approving anything required to be observed, performed or fulfilled or to be given to Administrative Agent or any Lender pursuant to this Security Instrument, the Loan Agreement or the other Loan Documents, the Indemnity or the Guaranties, including any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, neither Administrative Agent nor any Lender will be deemed to have warranted, consented to, or affirmed the sufficiency, legality or effectiveness of same, and such acceptance or approval thereof will not constitute any warranty or affirmation with respect thereto by Administrative Agent or any Lender.
Section 4.4    RELIANCE. Borrower recognizes and acknowledges that in accepting the Loan Agreement, the Notes, this Security Instrument and the other Loan Documents, the Indemnity or the Guaranties, Administrative Agent and the Lenders are expressly and primarily relying on the truth and accuracy of the warranties and representations set forth in Article V of the Loan Agreement without any obligation to investigate the Property and notwithstanding any investigation of the Property by Administrative Agent or any Lender; that such reliance existed on the part of Administrative Agent and the Lenders prior to the date hereof; that the warranties and representations are a material inducement to the Lenders in making the Loan and Administrative Agent and the Lenders in entering into the Loan Agreement; and that the Lenders would not be willing to make the Loan and accept this Security Instrument in the absence of the warranties and representations as set forth in Article V of the Loan Agreement.
Article 5 - FURTHER ASSURANCES
Section 5.1    RECORDING OF SECURITY INSTRUMENT, ETC. Borrower forthwith upon the execution and delivery of this Security Instrument and thereafter, from time to time, will cause this Security Instrument and any of the other Loan Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Administrative Agent in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all reasonable expenses incident to the preparation, execution, acknowledgment and/or recording of the Notes, this Security Instrument, the other Loan Documents, any note, deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the
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execution and delivery of this Security Instrument, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.
Section 5.2    FURTHER ACTS, ETC. Borrower will, at Borrower’s sole cost and expense, and without expense to Administrative Agent or any Lender, do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances, deeds of trust, mortgages, assignments, notices of assignments, transfers and assurances as Administrative Agent may, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Administrative Agent (for the benefit of itself and the Lenders) the property and rights hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Administrative Agent, for the benefit of Administrative Agent and the Lenders, or for carrying out the intention or facilitating the performance of the terms of this Security Instrument or for filing, registering or recording this Security Instrument, or for complying with all applicable Laws and Governmental Requirements. Borrower, within ten (10) Business Days following written demand by Administrative Agent, will execute and deliver, and in the event it fails to so execute and deliver, hereby authorizes Administrative Agent to execute in the name of Borrower or file or record without the signature of Borrower to the extent Administrative Agent may lawfully do so, one or more financing statements (including initial financing statements and amendments thereto and continuation statements), to evidence more effectively the security interest of Administrative Agent in the Property. Borrower also ratifies its authorization for Administrative Agent to have filed or recorded any like initial financing statements, amendments thereto and continuation statements, if filed or recorded prior to the date of this Security Instrument. Borrower grants to Administrative Agent an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Administrative Agent at law and in equity, including such rights and remedies available to Administrative Agent pursuant to this Section. To the extent not prohibited by applicable law, Borrower hereby ratifies all acts Administrative Agent has lawfully done in the past or will lawfully do or cause to be done in the future by virtue of such power of attorney.
Section 5.3    CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS.
(a)If any law is enacted or adopted or amended after the date of this Security Instrument which deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or indirectly, on the Debt or Administrative Agent’s interest in the Property, Borrower will pay the tax, with interest and penalties thereon, if any, in accordance with the applicable provisions of the Loan Agreement.
(b)Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Taxes assessed against the Property, or any part thereof, and no deduction will otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of this Security Instrument or the Debt.

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(c)If at any time the United States of America, any State thereof or any subdivision of any such State will require revenue or other stamps to be affixed to the Notes, this Security Instrument, or any of the other Loan Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.
Article 6 - DUE ON SALE/ENCUMBRANCE
Section 6.1    ADMINISTRATIVE AGENT RELIANCE. Borrower acknowledges that Administrative Agent and the Lenders have examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment and performance of the Obligations. Borrower acknowledges that Administrative Agent and the Lenders have a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Obligations or the performance of the Obligations, Administrative Agent, for the benefit of Administrative Agent and the Lenders, can recover the Obligations by a sale of the Property.
Section 6.2    NO TRANSFER. Borrower will comply in all respects with the provisions of the Loan Agreement regarding (a) selling, transferring, leasing, conveying or encumbering the Land, the Equipment or the Improvements or the direct or indirect interests in Borrower, and (b) changing control of Borrower.
Article 7 - RIGHTS AND REMEDIES UPON DEFAULT
Article 7.1    REMEDIES. Upon the occurrence, and during the continuance, of any Event of Default, unless such Event of Default is subsequently waived in writing by the Required Lenders or Administrative Agent, as applicable (provided that the Required Lenders and Administrative Agent have no obligation whatsoever to grant any such waiver and any such waiver, if granted, will be considered a one-time waiver), Administrative Agent may exercise any or all of the following rights and remedies, consecutively or simultaneously, and in any order:
(a)intentionally omitted;
(b)institute proceedings, judicial or otherwise, for the complete foreclosure of this Security Instrument under any applicable provision of law, in which case the Property or any interest therein may be sold for cash or upon credit in one or more parcels or in several interests or portions and in any order or manner;
(c)with or without entry, to the extent permitted and pursuant to the procedures provided by applicable law, institute proceedings for the partial foreclosure of this Security Instrument for the portion of the Obligations then due and payable, subject to the continuing lien and security interest of this Security Instrument for the balance of the Obligations not then due, unimpaired and without loss of priority;
(d)intentionally omitted;

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(e)institute an action, suit or proceeding in equity for the specific performance of any covenant, condition or agreement contained herein, in the Loan Agreement or in the other Loan Documents;
(f)to the extent permitted by applicable law, recover judgment on the Obligations either before, during or after any proceedings for the enforcement of this Security Instrument or the other Loan Documents;
(g)apply for the appointment of a receiver, trustee, liquidator or conservator of the Property, without notice and without regard for the adequacy of the security for the Obligations and without regard for the solvency of Borrower, any guarantor or any indemnitor with respect to the Loan or of any Person liable for the payment of the Obligations. Borrower waives any right to any hearing or notice of hearing prior to the appointment of a receiver. Such receiver and his agents will be empowered to (i) take possession of the Property and perform all necessary or desirable acts with respect to management and operation of the Property, (ii) exclude Borrower and Borrower’s agents, servants, and employees from the Property, (iii) collect the rents, issues, profits, and income therefrom, (iv) complete any construction which may be in progress, (v) do such maintenance and make such repairs and alterations as the receiver deems necessary, (vi) use all stores of materials, supplies, and maintenance equipment on the Property and replace such items at the expense of the receivership estate, (vii) to pay all taxes and assessments against the Property, all premiums for insurance thereon, all utility and other operating expenses, and all sums due under any prior or subsequent encumbrance, (viii) generally do anything which Borrower could legally do if Borrower were in possession of the Property, and (ix) take any other action permitted by law. All expenses incurred by the receiver or his agents will constitute a part of the Obligations. Any revenues collected by the receiver will be applied first to the expenses of the receivership, including reasonable attorneys’ fees incurred by the receiver and by Administrative Agent, together with interest thereon at the Default Rate from the date incurred until repaid, and the balance will be applied toward the Obligations or in such other manner as the court may direct. Unless sooner terminated with the express consent of Administrative Agent, any such receivership will continue until the Obligations have been discharged in full, or until title to the Property has passed after a receivership sale or a foreclosure sale and all applicable periods of redemption have expired;
(h)the license granted to Borrower under Section 1.2 hereof will automatically be revoked and Administrative Agent may enter into or upon the Property, either personally or by its agents, nominees or attorneys and dispossess Borrower and its agents and servants therefrom, without liability for trespass, damages or otherwise and exclude Borrower and its agents or servants wholly therefrom, and take possession of all books, records and accounts relating thereto and Borrower agrees to surrender possession of the Property and of such books, records and accounts to Administrative Agent upon demand, and thereupon Administrative Agent may (i) use, operate, manage, control, insure, maintain, repair, restore and otherwise deal with all and every part of the Property and conduct the business thereat; (ii) complete any construction on the Property in such manner and form as Administrative Agent deems advisable; (iii) make alterations, additions, renewals, replacements and improvements to or on the Property; (iv) exercise all rights and powers of Borrower with respect to the Property, whether in the name of Borrower or otherwise, including the right to make, cancel, enforce or modify Leases, obtain and evict tenants, and demand, sue for, collect and receive all Rents of the Property and every part
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thereof; (v) require Borrower to pay monthly in advance to Administrative Agent, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Property as may be occupied by Borrower; (vi) require Borrower to vacate and surrender possession of the Property to Administrative Agent or to such receiver and, in default thereof, Borrower may be evicted by summary proceedings or otherwise; and (vii) apply the receipts from the Property to the payment of the Obligations, in such order, priority and proportions as Administrative Agent and the Required Lenders deem appropriate in their sole discretion after deducting therefrom all expenses (including attorneys’ fees) incurred in connection with the aforesaid operations and all amounts necessary to pay the Taxes, Insurance Premiums and other expenses in connection with the Property, as well as just and reasonable compensation for the services of Administrative Agent, its in-house and outside counsel, agents and employees;
(i)exercise any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code, including, without limiting the generality of the foregoing: (i) the right to take possession of the Fixtures, the Equipment and the Personal Property, or any part thereof, and to take such other measures as Administrative Agent may deem necessary for the care, protection and preservation of the Fixtures, the Equipment and the Personal Property for the benefit of Administrative Agent and the Lenders, and (ii) require Borrower at its expense to assemble the Fixtures, the Equipment and the Personal Property and make it available to Administrative Agent at a convenient place acceptable to Administrative Agent, for the benefit of Administrative Agent and the Lenders. Any notice of sale, disposition or other intended action by Administrative Agent with respect to the Fixtures, the Equipment and/or the Personal Property sent to Borrower in accordance with the provisions hereof at least 5 days prior to such action, will constitute commercially reasonable notice to Borrower;
(j)apply any sums then deposited or held in escrow or otherwise by or on behalf of Administrative Agent in accordance with the terms of the Loan Agreement, this Security Instrument or any other Loan Document to the payment of the following items in any order as determined in the sole and absolute discretion of Administrative Agent and the Required Lenders:
(i)Taxes;
(ii)Insurance Premiums;
(iii)Interest on the unpaid principal balance of the Notes;
(iv)The unpaid principal balance of the Notes;
(v)All other sums payable pursuant to the Notes, the Loan Agreement, this Security Instrument and the other Loan Documents, including advances made by Administrative Agent pursuant to the terms of this Security Instrument;
(k)pursue such other remedies as Administrative Agent may have under the other Loan Documents, the Indemnity or the Guaranties, and/or applicable law; or

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(l)apply the undisbursed balance of any Net Proceeds, together with interest thereon, if any, to the payment of the Obligations in such order, priority and proportions as Administrative Agent and the Required Lenders will deem to be appropriate in their discretion.    
In addition to the foregoing, Administrative Agent and/or the Lenders may exercise any and all additional rights and remedies specified in the Loan Agreement, including that the Required Lenders may declare that the Commitments are terminated and/or declaring that the entire unpaid principal balance of the Obligations are immediately due and payment, together with accrued and unpaid interest thereon.
In the event of a sale, by foreclosure or otherwise, of less than all of Property, this Security Instrument will continue as a lien and security interest on the remaining portion of the Property unimpaired and without loss of priority.
Section 7.2    APPLICATION OF PROCEEDS. The purchase money, proceeds and avails of any disposition of the Property, and or any part thereof, or any other sums collected by Administrative Agent pursuant to the Notes, this Security Instrument or the other Loan Documents, may be applied by Administrative Agent to the payment of the Obligations in such priority and proportions as Administrative Agent and the Required Lenders in their discretion will deem proper, to the extent consistent with applicable Laws.
Section 7.3    ACTIONS AND PROCEEDINGS. Borrower will give Administrative Agent prompt written notice of the assertion of any claim with respect to, or the filing of any action or proceeding purporting to affect the Property, the security hereof or the rights or powers of Administrative Agent. Administrative Agent has the right to appear in and defend any action or proceeding brought with respect to the Property and to bring any action or proceeding, in the name and on behalf of Borrower, which Administrative Agent, in its discretion, decides should be brought to protect its interest in the Property.
Section 7.4    RECOVERY OF SUMS REQUIRED TO BE PAID. Administrative Agent will have the right from time to time to take action to recover any sum or sums which constitute a part of the Obligations as the same become due, without regard to whether or not the balance of the Obligations is due, and without prejudice to the right of Administrative Agent thereafter to bring an action of foreclosure, or any other action, for a default or defaults by Borrower existing at the time such earlier action was commenced. In the event Borrower is curing a default or is paying off the Loan and Administrative Agent has incurred fees which Borrower is obligated to pay to Administrative Agent under any of the Loan Documents, and such amount has not been reduced to a final amount at the time Borrower is curing the default or is paying off the Loan, Administrative Agent may require Borrower to pay a reasonable estimate of such fees with the payment curing the default or with the payoff of the Loan, and any amount paid in excess of the estimate by the Borrower will be refunded to the Borrower after the final amount of such fee is determined.
Section 7.5    OTHER RIGHTS, ETC.
(a)The failure of Administrative Agent or the Lenders to insist upon strict performance of any term hereof will not be deemed to be a waiver of any term of this Security
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Instrument. Borrower will not be relieved of Borrower’s obligations hereunder by reason of (i) the failure of Administrative Agent to comply with any request of Borrower or any guarantor or indemnitor with respect to the Loan to take any action to foreclose this Security Instrument or otherwise enforce any of the provisions hereof or of the Notes, the Indemnity or the Guaranties, or the other Loan Documents, (ii) the release, regardless of consideration, of the whole or any part of the Property, or of any Person liable for the Obligations or any portion thereof, or (iii) any agreement or stipulation by Administrative Agent or the Lenders extending the time of payment or otherwise modifying or supplementing the terms of the Notes, this Security Instrument or the other Loan Documents.
(b)It is agreed that the risk of loss or damage to the Property is on Borrower, and neither Administrative Agent or the Lenders will have any liability whatsoever for decline in value of the Property, for failure to maintain any insurance policies, or for failure to determine whether insurance in force is adequate as to the amount or nature of risks insured. Possession by Administrative Agent will not be deemed an election of judicial relief if any such possession is requested or obtained with respect to all or any portion of the Property or collateral not in Administrative Agent’s possession.
(c)Administrative Agent may take action to recover the Obligations, or any portion thereof, or to enforce any covenant hereof without prejudice to the right of Administrative Agent thereafter to foreclose this Security Instrument. The rights of Administrative Agent under this Security Instrument will be separate, distinct and cumulative and none will be given effect to the exclusion of the others. No act of Administrative Agent will be construed as an election to proceed under any one provision herein to the exclusion of any other provision. Administrative Agent will not be limited exclusively to the rights and remedies herein stated but will be entitled to every right and remedy now or hereafter afforded at law or in equity.
Section 7.6    RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Administrative Agent may release any portion of the Property for such consideration as Administrative Agent may require without, as to the remainder of the Property, in any way impairing or affecting the lien or priority of this Security Instrument, or improving the position of any subordinate lienholder with respect thereto, except to the extent that the obligations hereunder are reduced by the actual monetary consideration, if any, received by Administrative Agent for such release, and may accept by assignment, pledge or otherwise any other property in place thereof as Administrative Agent may require without being accountable for so doing to any other lienholder. This Security Instrument will continue as a lien on, and security interest in, the remaining portion of the Property.
Section 7.7    INTENTIONALLY DELETED.
Section 7.8    RIGHT OF ENTRY. Upon reasonable notice to Borrower (and subject to the rights of tenants under their respective leases), Administrative Agent and its agents will have the right to enter and inspect the Property at all reasonable times.
Section 7.9    BANKRUPTCY.

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(a)After the occurrence, and during the continuance, of an Event of Default, Administrative Agent will have the right to proceed in its own name or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of any Lease, including the right to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the lessee under such Lease under the Bankruptcy Code.
(b)If there is filed by or against Borrower a petition under the Bankruptcy Code and Borrower, as lessor under any Lease, determines to reject such Lease pursuant to Section 365(a) of the Bankruptcy Code, then Borrower will give Administrative Agent not less than 10 days’ prior notice of the date on which Borrower will apply to the bankruptcy court for authority to reject the Lease (or such lesser notice as may be reasonably practicable under the circumstances). Administrative Agent will have the right, but not the obligation, to serve upon Borrower within such 10 day period a notice stating that (i) Administrative Agent demands that Borrower assume and assign the Lease to Administrative Agent pursuant to Section 365 of the Bankruptcy Code and (ii) Administrative Agent covenants to cure or provide adequate assurance of future performance under the Lease. If Administrative Agent serves upon Borrower the notice described in the preceding sentence, Borrower will not seek to reject the Lease and will comply with the demand provided for in clause (i) of the preceding sentence within 30 days after the notice is given, subject to the performance by Administrative Agent of the covenant provided for in clause (ii) of the preceding sentence.
Section 7.10    INTENTIONALLY OMITTED.
Section 7.11    ACCEPTANCE OF PAYMENTS. Borrower agrees that if Borrower makes a tender of a payment but does not simultaneously tender payment of any late charge, Default Rate interest, Lender-Provided Swap Obligations or other amount then due and owing by Borrower under this Security Instrument or the other Loan Documents, and such payment is accepted by Administrative Agent or any Lender, with or without protest, such acceptance will not constitute any waiver of Administrative Agent’s or such Lender’s rights to receive such amounts. Furthermore, if Administrative Agent accepts any payment from Borrower or any Guarantor after a Default or Event of Default, such acceptance will not constitute a waiver or satisfaction of any such Default or Event of Default.
Article 8 - ENVIRONMENTAL HAZARDS
Section 8.1    ENVIRONMENTAL COVENANTS. Borrower has provided representations, warranties and covenants regarding environmental matters set forth in the Indemnity and Borrower will comply with the aforesaid covenants regarding environmental matters. Notwithstanding anything in this Security Instrument to the contrary, the term “Obligations” does not include any obligations or liabilities under the Indemnity (as defined in the Loan Agreement) and the obligations and liabilities under the Indemnity are not secured by this Security Instrument.
Article 9 - INDEMNIFICATION

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The provisions of Section 2.10(b), Section 6.24 (Fees and Expenses) and Section 10.1 (General Indemnities) of the Loan Agreement are hereby incorporated by reference into this Security Instrument to the same extent and with the same force as if fully set forth herein. Notwithstanding the foregoing or anything in this Security Instrument to the contrary, however, this Security Instrument shall not secure Borrower’s obligations under the Indemnity or Guarantor’s obligations under any Guaranty.
Article 10 - CERTAIN WAIVERS
Section 10.1    WAIVER OF OFFSETS; DEFENSES; COUNTERCLAIM. Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Administrative Agent and/or any Lender to offset any obligations to make the payments required by the Loan Documents. No failure by Administrative Agent or any Lender to perform any of its obligations hereunder will be a valid defense to, or result in any offset against, any payments which Borrower is obligated to make under any of the Loan Documents.
Section 10.2    MARSHALLING AND OTHER MATTERS. To the extent permitted by applicable law, Borrower hereby waives the benefit of all appraisement, valuation, stay, extension, reinstatement and redemption Laws now or hereafter in force and all rights of marshalling in the event of any sale hereunder of the Property or any part thereof or any interest therein. Further, Borrower hereby expressly waives any and all rights of redemption from sale under any order or decree of foreclosure of this Security Instrument on behalf of Borrower, and on behalf of each and every Person acquiring any interest in or title to the Property subsequent to the date of this Security Instrument and on behalf of all other Persons to the extent permitted by applicable law.
Section 10.3    WAIVER OF NOTICE. To the extent permitted by applicable law, and unless such notice is required pursuant to the terms hereof, the Indemnity, Guaranties or any Loan Documents, Borrower will not be entitled to any notices of any nature whatsoever from Administrative Agent and/or the Lenders except with respect to matters for which this Security Instrument or any of the other Loan Documents specifically and expressly provides for the giving of notice by Administrative Agent or any Lender to Borrower and except with respect to matters for which Administrative Agent or any Lender is required by applicable law to give notice, and Borrower hereby expressly waives the right to receive any notice from Administrative Agent and/or the Lenders with respect to any matter for which this Security Instrument does not specifically and expressly provide for the giving of notice by Administrative Agent and/or the Lenders to Borrower. All sums payable by Borrower pursuant to this Security Instrument must be paid without notice, demand, counterclaim, setoff, deduction or defense and without abatement, suspension, deferment, diminution or reduction, and the obligations and liabilities of Borrower hereunder will in no way be released, discharged or otherwise affected (except as expressly provided herein) by reason of: (a) any damage to or destruction of or any condemnation or similar taking of the Property or any part thereof; (b) any restriction or prevention of or interference by any third party with any use of the Property or any part thereof; (c) any title defect or encumbrance or any eviction from the Property or any part thereof by title paramount or otherwise; (d) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to Administrative Agent or
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any Lender, or any action taken with respect to this Security Instrument by any trustee or receiver of Administrative Agent or any Lender, or by any court, in any such proceeding; (e) any claim which Borrower has or might have against Administrative Agent or any Lender; (f) any default or failure on the part of Administrative Agent or any Lender to perform or comply with any of the terms hereof or of any other agreement with Borrower; or (g) any other occurrence whatsoever, whether similar or dissimilar to the foregoing; whether or not Borrower has notice or knowledge of any of the foregoing.
Section 10.4    WAIVER OF STATUTE OF LIMITATIONS. To the extent permitted by applicable law, Borrower hereby expressly waives and releases to the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment or performance of the Obligations.
Article 11 - NOTICES
All notices or other written communications hereunder will be delivered in accordance with the notice provisions of the Loan Agreement.
Article 12 - APPLICABLE LAW
Section 12.1    GOVERNING LAW; WAIVER OF JURY TRIAL; JURISDICTION. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS SECURITY INSTRUMENT AND THE OBLIGATIONS ARISING HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS SECURITY INSTRUMENT AND THE NOTES, AND THIS SECURITY INSTRUMENT AND THE NOTES WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, AND ANY LAWS OF THE UNITED STATES OF AMERICA APPLICABLE TO NATIONAL BANKS.
TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION RELATING TO THE LOAN AND/OR THE LOAN DOCUMENTS. BORROWER, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF ILLINOIS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS SECURITY INSTRUMENT, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF ILLINOIS, (C) SUBMITS TO THE JURISDICTION AND VENUE OF
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SUCH COURTS AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT, AND (D) AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN WILL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). BORROWER FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO BORROWER AT THE ADDRESSES FOR NOTICES DESCRIBED IN THIS SECURITY INSTRUMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE WILL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN WILL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
Section 12.2    PROVISIONS SUBJECT TO APPLICABLE LAW. All rights, powers and remedies provided in this Security Instrument may be exercised only to the extent that the exercise thereof does not violate any applicable provisions of law and are intended to be limited to the extent necessary so that they will not render this Security Instrument invalid, unenforceable or not entitled to be recorded, registered or filed under the provisions of any applicable law. If any term of this Security Instrument or any application thereof will be invalid or unenforceable, the remainder of this Security Instrument and any other application of the term will not be affected thereby.
Article 13 - DEFINITIONS
All capitalized terms not defined herein will have the respective meanings set forth in the Loan Agreement. If a capitalized term is defined herein and the same capitalized term is defined in the Loan Agreement, then the capitalized term that is defined herein will be utilized for the purposes of this Security Instrument, provided that the foregoing does not impact provisions that are incorporated herein by reference. Unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, words used in this Security Instrument may be used interchangeably in singular or plural form and the word “Borrower” will mean “each Borrower and any subsequent owner or owners of the Property or any part thereof or any interest therein, without limitation or waiver of any restrictions on transfers of any interests therein as set forth in any Loan Document,” the word “Administrative Agent” will mean “Administrative Agent and any subsequent administrative agent for the Lenders with respect to the Loan, the word “Property” will include any portion of the Property and any interest therein, and the phrases “attorneysfees”, “legal fees” and “counsel fees” will include any and all in-house and outside attorneys’, paralegals’ and law clerks’ fees and disbursements, including fees and disbursements at the pre-trial, trial and appellate levels incurred or paid by Administrative Agent and/or any Lender in protecting its interest in the Property, the Leases and the Rents and enforcing its rights hereunder.
Article 14 - MISCELLANEOUS PROVISIONS
Section 14.1    NO ORAL CHANGE. This Security Instrument, and any provisions hereof, may not be modified, amended, waived, extended, changed, discharged or terminated orally or
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by any act or failure to act on the part of Borrower or Administrative Agent, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.
Section 14.2    SUCCESSORS AND ASSIGNS. This Security Instrument will be binding upon Borrower and will inure to the benefit of Borrower, Administrative Agent and the Lenders and their respective successors and assigns forever.
Section 14.3    INAPPLICABLE PROVISIONS. If any term, covenant or condition of the Loan Agreement, the Notes or this Security Instrument is held to be invalid, illegal or unenforceable in any respect, the Loan Agreement, the Notes and this Security Instrument will be construed without such provision.
Section 14.4    HEADINGS, ETC. The headings and captions of various Sections of this Security Instrument are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof.
Section 14.5    SUBROGATION. If any or all of the proceeds of the Loan have been used to extinguish, extend or renew any indebtedness heretofore existing against the Property, then, to the extent of the funds so used, Administrative Agent will be subrogated to all of the rights, claims, liens, titles, and interests existing against the Property heretofore held by, or in favor of, the holder of such indebtedness and such former rights, claims, liens, titles, and interests, if any, are not waived but rather are continued in full force and effect in favor of Administrative Agent, for the benefit of Administrative Agent and the Lenders, and are merged with the lien and security interest created herein as cumulative security for the repayment of the Obligations, the performance and discharge of Borrower’s obligations hereunder, under the Loan Agreement, the Notes and the other Loan Documents and the performance and discharge of the Other Obligations.
Section 14.6    ENTIRE AGREEMENT. The Notes, the Loan Agreement, this Security Instrument and the other Loan Documents constitute the entire understanding and agreement among Borrower, the Lenders and Administrative Agent with respect to the transactions arising in connection with the Obligations and supersede all prior written or oral understandings and agreements among Borrower, the Lenders and Administrative Agent with respect thereto. Borrower hereby acknowledges that, except as incorporated in writing in the Notes, the Loan Agreement, this Security Instrument and the other Loan Documents, there are not, and were not, and no Persons are or were authorized by Administrative Agent or the Lenders to make, any representations, understandings, stipulations, agreements or promises, oral or written, with respect to the transaction which is the subject of the Notes, the Loan Agreement, this Security Instrument and the other Loan Documents.
Section 14.7    LIMITATION ON ADMINISTRATIVE AGENT’S RESPONSIBILITY. No provision of this Security Instrument will operate to place any obligation or liability for the control, care, management or repair of the Property upon Administrative Agent or any Lender, nor will it operate to make Administrative Agent or any Lender responsible or liable for any waste committed on the Property by the tenants or any other Person, or for any dangerous or defective condition of the Property, or for any negligence in the management, upkeep, repair or control of
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the Property resulting in loss or injury or death to any tenant, licensee, employee or stranger. Nothing herein contained will be construed as constituting Administrative Agent a “mortgagee in possession.”
Section 14.8    JOINT AND SEVERAL. If more than one Person has executed this Security Instrument as “Borrower,” the representations, covenants, warranties and obligations of all such Persons hereunder will be joint and several.
Section 14.9    ADMINISTRATIVE AGENT’S DISCRETION. Whenever, pursuant to this Security Instrument or any of the other Loan Documents, Administrative Agent exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory or acceptable to Administrative Agent, or Administrative Agent exercises any right to grant or withhold consent, or Administrative Agent exercises its discretion in making any decision, the decision of Administrative Agent will, except as is otherwise specifically herein provided, be in the sole and absolute discretion of Administrative Agent and will be final and conclusive.
Section 14.10    NO MERGER. So long as the Obligations owed to the Lenders secured hereby remain unpaid and undischarged and unless Administrative Agent otherwise consents in writing, the fee, leasehold, subleasehold and sub-subleasehold estates in and to the Property will not merge but will always remain separate and distinct, notwithstanding the union of estates (without implying Borrower’s consent to such union) either in Borrower, Administrative Agent, any tenant or any third party by purchase or otherwise. In the event this Security Instrument is originally placed on a leasehold estate and Borrower later obtains fee title to the Property, such fee title will be subject and subordinate to this Security Instrument.
Section 14.11    LIMITED RECOURSE PROVISION. Except as to Guarantor as set forth in the Guaranties, Administrative Agent and Lenders shall have no recourse against, nor shall there be any personal liability to, the members of Borrower (including the members of Borrower), or to any shareholders, members, partners, beneficial interest holders or any other entity or person in the ownership (directly or indirectly) of Borrower, including any such owners of Borrower (except for Guarantor as provided in the Guaranties) with respect to the obligations of Borrower and Guarantor under the Loan. For purposes of clarification, in no event shall the above language limit, reduce or otherwise affect Borrower’s liability or obligations under the Loan Documents, Guarantor’s liability or obligations under the Guaranties or Administrative Agent’s right to exercise any rights or remedies against any collateral securing the Loan.
Article 15 - STATE-SPECIFIC PROVISIONS
Section 15.1    PRINCIPLES OF CONSTRUCTION. In the event of any inconsistencies between the terms and conditions of this Article 15 and the other terms and conditions of this Security Instrument, the terms and conditions of this Article 15 will control and be binding.
Section 15.2    ASSESSMENTS AGAINST PROPERTY. Borrower will not, without the prior written approval of Administrative Agent, which may be withheld for any reason, consent to or allow the creation of any so-called special districts, special improvement districts, benefit assessment districts or similar districts, or any other body or entity of any type, or allow to occur any other event, that would or might result in the imposition of any additional taxes, assessments
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or other monetary obligations or burdens on the Property, and this provision serves as RECORD NOTICE to any such district or districts or any governmental entity under whose authority such district or districts exist or are being formed that, should Borrower or any other person or entity include all or any portion of the Property in such district or districts, whether formed or in the process of formation, without first obtaining Administrative Agent’s express written consent, the rights of Administrative Agent and the Lenders in the Property pursuant to this Security Instrument or following any foreclosure of this Security Instrument, and the rights of any person or entity to whom Administrative Agent might transfer the Property following a foreclosure of this Security Instrument, will be senior and superior to any taxes, charges, fees, assessments or other impositions of any kind or nature whatsoever, or liens (whether statutory, contractual or otherwise) levied or imposed, or to be levied or imposed, upon the Property or any portion thereof as a result of inclusion of the Property in such district or districts.
Section 15.3    COMPLIANCE WITH ILLINOIS MORTGAGE FORECLOSURE LAW. In the event that any provision in this Security Instrument is inconsistent with any provision of Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101 et seq.; as amended or recodified from time to time, the “Act”), the provisions of the Act will take precedence over the provisions of this Security Instrument, but will not invalidate or render unenforceable any other provision of this Security Instrument that can be construed in a manner consistent with the Act. In the event any provision of the Act which is specifically referred to herein may be repealed, Administrative Agent, and each Lender (if applicable), will have the benefit of such provision as most recently existing prior to such repeal, as though the same were incorporated herein by express reference. Furthermore, if any provision of this Security Instrument grants to Administrative Agent and/or any Lender (including Administrative Agent acting as a mortgagee-in-possession) or a receiver appointed pursuant to the provisions of this Security Instrument any powers, rights or remedies prior to, upon or following the occurrence, and during the continuance, of an Event of Default that are more limited than the powers, rights or remedies that would otherwise be vested in Administrative Agent, any Lender or in such receiver under the Act in the absence of said provision, Administrative Agent, any such Lender (if applicable) and such receiver are vested with the powers, rights and remedies granted in the Act, to the full extent permitted by law. Without limiting the generality of the foregoing, all expenses incurred by Administrative Agent and/or any Lender which are of the type referred to in Section 5/15-1510 or 5/15-1512 of the Act, as amended or recodified from time to time, whether incurred before or after any decree or judgment of foreclosure, and whether enumerated in this Security Instrument, will be added to the indebtedness secured by this Security Instrument or by the judgment of foreclosure.
Section 15.4    VARIABLE RATE. The Notes which this Security Instrument secures are adjustable notes on which the interest rate may be adjusted from time to time in accordance with the terms and provisions set forth in such Notes and the Loan Agreement.
Section 15.5    REVOLVING CREDIT. This Security Instrument is given to secure a revolving credit loan and shall secure not only existing indebtedness, but also future advances, whether such advances are obligatory or to be made at the option of Administrative Agent or Lenders, or otherwise, as are made within twenty years from the date hereof, to the same extent as if such future advances were made on the date hereof, although there may be no advance made at the time of execution of this Security Instrument, and although there may be no indebtedness outstanding at the time any advance is made. The lien of this Security Instrument or deed of
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trust, as to third persons without actual notice thereof, shall be valid as to all such indebtedness and future advances from the time this Security Instrument is filed for record in the office of the Recorder of Deeds of the county where the real property described herein is located. The total amount of indebtedness that may be so secured may increase or decrease from time to time, but the total unpaid balance so secured at any one time shall not exceed the maximum principal amount of $750,000,000, plus interest thereon, and any disbursements made for the payment of taxes, special assessments, or insurance on said real property, with interest on such disbursements. This Security Instrument shall be valid and have priority over all subsequent liens and encumbrances, including statutory liens, except taxes and assessments levied on said real property.
Section 15.6    RECEIVER. In addition to any provision of this Security Instrument authorizing Administrative Agent to take or be placed in possession of the Property, or for the appointment of a receiver, Administrative Agent has the right, in accordance with Sections 15-1701 and 15-1702 of the Act, as amended or recodified from time to time, to be placed in the possession of the Property or at its request to have a receiver appointed, and such receiver, or Administrative Agent, if and when placed in possession, will have, in addition to any other powers provided in this Security Instrument, all rights, powers, immunities, and duties and provisions for in Sections 15-1701, 15-1702, 15-1703 and 15-1704 of the Act, as amended or recodified from time to time.
Section 15.7    USURY; NOT AGRICULTURAL OR RESIDENTIAL PROPERTY. Borrower represents, warrants and covenants to Administrative Agent and the Lenders that the proceeds of the obligations secured hereby will be used solely for business purposes and in furtherance of the regular business affairs of Borrower, and the entire principal obligations secured by this Security Instrument constitute (i) a "business loan" for purposes of and as defined in 815 ILCS 205/4(1)(c), as amended or recodified from time to time, and (ii) a "loan secured by a mortgage on real estate" within the purview and operation of 815 ILCS 205/4(1)(l), as amended or recodified from time to time. Borrower represents, warrants and covenants to Administrative Agent and the Lenders that the Property does not constitute agricultural real estate, as said term is defined in 735 ILCS 5/15-1201 of the Act, as amended or recodified from time to time, or residential real estate as defined in 735 ILCS 15/1219 of the Act, as amended or recodified from time to time.
Section 15.8    WAIVERS OF REINSTATEMENT, REDEMPTION, AND OTHER RIGHTS. In addition to any other provision of this Security Instrument pertaining to waivers, Borrower hereby voluntarily and knowingly waives any and all rights of reinstatement and redemption, if any, under any order or decree of foreclosure of this Security Instrument, on its own behalf and on behalf of each and every person, it being the intent hereof that any and all such rights of reinstatement and redemption of Borrower and of all other persons are and will be deemed to be hereby waived to the full extent permitted by the provisions of 735 ILCS 5/15-1601 and 735 ILCS 5/15-1602 of the Act, as amended or recodified from time to time, or other applicable law or replacement statutes. To the full extent permitted by law, Borrower hereby voluntarily and knowingly waives, on its own behalf and on behalf of each and every person, the benefits of all present and future valuation, appraisement, homestead, exemption, stay, extension, reinstatement or redemption, right to notice of election to accelerate the Obligations, and moratorium laws under any applicable local, state or federal law.
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Section 15.9    ILLINOIS COLLATERAL PROTECTION ACT. Unless Borrower provides Administrative Agent with reasonable evidence of the insurance coverage required by this Security Instrument and the Loan Agreement, Administrative Agent may (upon no less than five (5) Business Days’ prior written notice to Borrower and otherwise, subject to the terms of Section 3.3 above), purchase insurance at Borrower’s expense to protect Administrative Agent’s and the Lenders’ interests in the Property. This insurance may, but need not, protect Borrower’s interest. The coverage that Administrative Agent purchases may not pay any claim that Borrower makes or any claim that is made against Borrower in connection with the Property. Borrower may later cancel any insurance purchased by Administrative Agent, but only after providing Administrative Agent with reasonable evidence that Borrower has obtained insurance as required by this Security Instrument and the Loan Agreement. If Administrative Agent purchases insurance for the Property, Borrower will be responsible for the costs of that insurance, including interest and any other charges Administrative Agent may impose in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The cost of the insurance will be added to the indebtedness secured hereby. The cost of the insurance may be more than the cost of insurance Borrower may be able to obtain on its own. For purposes of the Illinois Collateral Protection Act, 815 ILCS 180/1 et. seq., as amended or recodified from time to time, Borrower hereby acknowledges notice of Administrative Agent’s right to obtain such collateral protection insurance, subject to the limitations set forth in this Security Instrument (including Sections 3.3 and this Section 15.9).
Section 15.10    FIXTURE FILING. This Security Instrument also constitutes a "fixture filing" for the purposes of 810 ILCS 5/9-502(b) and (c), as amended or recodified from time to time, against all of the Property which is or is to become fixtures. For such purposes, Borrower is the debtor, Administrative Agent is the secured party, their respective addresses are set forth in the preamble to this Security Instrument, and this Security Instrument may be filed in the real estate records of the recorder of deeds of the county(ies) in Illinois in which the Property is located.
Seciton 15.11    CONSTRUCTION MORTGAGE. This Security Instrument secures future advances to be used for construction of improvements on the Land pursuant to the Loan Agreement. Accordingly, this Security Instrument constitutes a “construction mortgage” under 810 ILCS 5/9-334(h), as amended or recodified from time to time.
Section 15.12    STATED MATURITY DATE. The Stated Maturity Date of the Loan is November 2, 2023, as such maturity date may be extended pursuant to the Loan Agreement.
Section 15.13    PROSSESSION OF THE PREMISES. To the maximum extent permitted by applicable law, Borrower hereby releases and waives any and all rights to retain possession of the Property after the occurrence and continuance of an Event of Default and any and all rights of redemption from sale under any order or decree of foreclosure, pursuant to rights therein granted, on behalf of Borrower, all persons and entities interested in Borrower and each and every person (except judgment creditors of Borrower) acquiring any interest in, or title to, the Property subsequent to the date of this Security Instrument, and on behalf of all other persons to the extent permitted by the provisions of 735 ILCS 5/15-1603, as amended.


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IN WITNESS WHEREOF, THIS SECURITY INSTRUMENT has been executed by Borrower as of the day and year first above written.
BORROWER:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XI, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
)
County of Orange
)

On October 20, 2020, before me, K. Godin, Notary Public,
a Notary Public, personally appeared Charles J. Shcreiber, Jr. who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the of State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal:
Signature /s/ K. Godin (Seal)







EXHIBIT A
LEGAL DESCRIPTION
Note: The phrase "vacated 18 foot alley" as used in these legal descriptions is in reference to the 18 foot wide North-South alley lying in Block 50 which was vacated by Ordinance recorded January 5, 1907 as Document No. 3974491.
Parcel 1:
The South 275.06 feet (measured perpendicularly) of the following described property, all taken as a tract:
Block 50 and the vacated 18 foot alley in said Block 50 (except that part of Block 50 and the vacated alley therein, lying in Madison Street as widened) in the Original Town of Chicago in the Southwest 1/4 of Section 9, Township 39 North, Range 14 East of the Third Principal Meridian in Cook County, Illinois.
Parcel 2a:
That part of the following described property, all taken as a tract, lying below a horizontal plane having an elevation of +23.00 feet Chicago City Datum and lying North of the South 275.06 feet (measured perpendicularly) of said tract:
Block 50 and the vacated 18 foot alley in said Block 50 (except that part of Block 50 and the vacated alley therein, lying in Madison Street as widened) in the Original Town of Chicago in the Southwest 1/4 of Section 9, Township 39 North, Range 14 East of the Third Principal Meridian in Cook County, Illinois.
Parcel 2b:
Easement for the benefit of Parcels 1, 2a and 2c, as created by the Declaration of Easements, Covenants, Conditions and Restrictions made by Chicago and Northwestern Transportation Company, a Delaware corporation, and Chicago Title and Trust Company as Trustee under Trust Agreement dated March 31, 1982 and known as Trust Number 1079000, dated March 31, 1982 and recorded September 7, 1984 as Document No. 27245590, over the following described property:
That part of the following described property, all taken as a tract, lying above a horizontal plane having an elevation of +23.00 feet Chicago City Datum, lying below a horizontal plane having an elevation of +59.63 feet Chicago City Datum, and lying North of the South 275.06 feet (measured perpendicularly) of said tract:
Block 50 and the vacated 18 foot alley in said Block 50 (except that part of Block 50 and the vacated alley therein, lying in Madison Street as widened) in the Original Town of Chicago in the Southwest 1/4 of Section 9, Township 39 North, Range 14 East of the Third Principal Meridian in Cook County, Illinois,
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EXHIBIT A
LEGAL DESCRIPTION
(continued)

for the construction, maintenance, use, repair, replacement, renovation, reconstruction and improvement with caissons, support posts, arches, columns or other support devices; and for the installation and maintenance of utility lines.
Parcel 2c:
That part of the following described property, all taken as a tract, lying above a horizontal plane having an elevation of +59.63 feet Chicago City Datum and lying North of the South 275.06 feet (measured perpendicularly) of said tract:
Block 50 and the vacated 18 foot alley in said Block 50 (except that part of Block 50 and the vacated alley therein, lying in Madison Street as widened) in the Original Town of Chicago in the Southwest 1/4 of Section 9, Township 39 North, Range 14 East of the Third Principal Meridian in Cook County, Illinois.
PIN Nos.:
17-09-342-002-0000
17-09-342-004-0000
17-09-342-005-0000
FOR REFERENCE PURPOSES ONLY, THE ABOVE DESCRIBED PROPERTY IS COMMONLY KNOWN AS:
500 West Madison Street
Chicago, Illinois 60661
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Exhibit 10.5
This Document Prepared By
and After Recording Return to:
Sheppard, Mullin, Richter & Hampton LLP
650 Town Center Dr., 10th Floor
Costa Mesa, CA 92626
Attn: Matthew Holbrook
Address of Property:
500 West Madison Street
Chicago, IL 60661
PIN Nos.:
17-09-342-002-0000
17-09-342-004-0000
17-09-342-005-0000
SUBORDINATION, NONDISTURBANCE, AND ATTORNMENT AGREEMENT
This SUBORDINATION, NONDISTURBANCE, AND ATTORNMENT AGREEMENT (this Agreement) is entered into as of November 2, 2020 (the “Effective Date), between U.S. BANK NATIONAL ASSOCIATION, a national banking association, whose address is 4100 Newport Place, Suite 900, Newport Beach, California 92660, Attention: Commercial Real Estate Banking, in its capacity as administrative agent (Administrative Agent) for the lenders (each, a Lender and, collectively, the Lender), and ACCENTURE LLP, an Illinois limited liability partnership (as successor-in-interest to Acquity Group, L.L.C., a Delaware limited liability company), whose address is 161 North Clark Street, Chicago, Illinois 60601, Attention: Real Estate Director (“Tenant), with reference to the following facts:
A.KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company (as successor-in-interest to UST-GEPT Joint Venture, L.P., an Illinois limited partnership), whose address is c/o KBS Capital Advisors LLC, 800 Newport Center Drive, Suite 700, Newport Beach, California 92660, Attention: Brett Merz and Todd Smith (Landlord), owns the real property located at 500 West Madison Street, Chicago, Illinois 60661 (such real property, including all buildings, improvements, structures and fixtures located thereon, “Landlord’s Premises”), as more particularly described in Schedule A.
B.Lenders have made a loan to Landlord in the maximum principal amount of $375,000,000.00 (the Loan), all as provided in and subject to the terms and conditions set forth in the Loan Documents (defined below).
C.To secure the Loan, Landlord has encumbered Landlord’s Premises by entering into that certain Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated November 2, 2020, to and in favor of Administrative Agent and
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Lenders (as amended, increased, renewed, extended, spread, consolidated, severed, restated, or otherwise changed from time to time, the Mortgage) to be recorded in the Official Records of the County of Cook, State of Illinois.
D.Pursuant to an Office Lease dated as of July 14, 2011, as amended on June 30, 2014, August 19, 2015, July 10, 2019, March 13, 2020 and July 20, 2020 (as amended and as may be amended in accordance with this Agreement, the Lease), Landlord demised to Tenant a portion of Landlord’s Premises (Tenant’s Premises). Tenant’s Premises are currently located on the 20th, 21st, 22nd, 23rd, 24th, 25th, and 26th Floors of the building located at 500 West Madison Street, Chicago, Illinois 60661.
E.Tenant and Administrative Agent, on behalf of Lenders, desire to agree upon the relative priorities of their interests in Landlord’s Premises and their rights and obligations if certain events occur.
NOW, THEREFORE, for good and sufficient consideration and intending to be legally bound hereby, Tenant and Administrative Agent agree:
1.Definitions. The following terms shall have the following meanings for purposes of this Agreement.
1.1Civil Asset Forfeiture Reform Act” means the Civil Asset Forfeiture Reform Act of 2000 (18 U.S.C. Sections 983 et seq.), as amended from time to time, and any successor statute.
1.2Construction-Related Obligation(s)” means any obligation of Landlord under the Lease to make, pay for, or reimburse Tenant for any alterations, demolition, or other improvements or work at Landlord’s Premises, including Tenant’s Premises. Construction­ Related Obligations shall not include: (a) reconstruction or repair following fire, casualty or condemnation; or (b) day-to-day maintenance and repairs.
1.3Controlled Substances Act” means the Controlled Substances Act (21 U.S.C. Sections 801 et seq.), as amended from time to time, and any successor statute.
1.4Foreclosure Event” means: (a) foreclosure under the Mortgage, whether by judicial action or pursuant to nonjudicial proceedings; (b) any other exercise by Administrative Agent of rights and remedies (whether under the Mortgage or under applicable law, including bankruptcy law) as holder of the Loan and/or as beneficiary under the Mortgage, as a result of which any Successor Landlord becomes owner of Landlord’s Premises; or (c) delivery by Landlord to Administrative Agent (or its designee or nominee) of a deed or other conveyance of Landlord’s interest in Landlord’s Premises in lieu of any of the foregoing.
1.5Former Landlord” means Landlord and any other party that was landlord under the Lease at any time before the occurrence of any attornment under this Agreement.
1.6Loan Documents” mean the Mortgage and any other document now or hereafter evidencing, governing, securing or otherwise executed in connection with the Loan, including any promissory note and/or loan agreement, pertaining to the repayment or use of the Loan proceeds or to any of the real or personal property, or interests therein, securing the Loan, as such documents
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or any of them may have been or may be from time to time hereafter renewed, extended, supplemented, increased or modified. This Agreement is a Loan Document.
1.7Offset Right” means any right or alleged right of Tenant to any offset, defense (other than one arising from actual payment and performance, which payment and performance would bind a Successor Landlord pursuant to this Agreement), claim, counterclaim, reduction, deduction, or abatement against Tenant’s payment of Rent or performance of Tenant’s other obligations under the Lease, arising (whether under the Lease or other applicable law) from Landlord’s breach or default under the Lease.
1.8Rent means any fixed rent, base rent or additional rent under the Lease.
1.9Successor Landlord” means any party that becomes owner of Landlord’s Premises as the result of a Foreclosure Event.
1.10Termination Right” means any right of Tenant to cancel or terminate the Lease or to claim a partial or total eviction arising (whether under the Lease or under applicable law) from Landlord’s breach or default under the Lease.
2.Subordination. The Lease, including all rights of first refusal, purchase options and other rights of purchase, shall be, and shall at all times remain, subject and subordinate to the Mortgage, the lien and security interest imposed by the Mortgage and the right to enforce such lien or security interest, and all advances made under or secured by the Loan Documents. Tenant hereby intentionally and unconditionally subordinates the Lease and all of Tenant’s right, title and interest thereunder and in and to Landlord’s Premises (including Tenant’s right, title and interest in connection with any insurance proceeds or eminent domain awards or compensation relating to Landlord’s Premises and Tenant’s right to receive and retain any rentals or payments made under any sublease or concession agreement of or relating to any portion of Tenant’s Premises), to the lien of the Mortgage and all of Administrative Agent and Lender’s rights and remedies thereunder, and agrees that the Mortgage shall unconditionally be and shall at all times remain a lien on Landlord’s Premises prior and superior to the Lease.
3.Nondisturbance; Recognition; and Attornment.
3.1No Exercise of Mortgage Remedies Against Tenant. So long as the Lease has not been terminated on account of Tenant’s default that has continued beyond applicable notice and cure periods set forth in the Lease (an “Event of Default”), Administrative Agent shall not name or join Tenant as a defendant in any judicial action or proceeding that is commenced pursuant to the exercise of Administrative Agent’s rights and remedies arising upon a default by Landlord under the Mortgage unless (a) applicable law requires Tenant to be made a party thereto as a condition to proceeding against Landlord or in order to prosecute or otherwise fully enforce such rights and remedies; or (b) such joinder of Tenant is required for the recovery by Administrative Agent of any Rent at any time owing by Tenant under the Lease, whether pursuant to the assignment of rents set forth in the Mortgage or otherwise; or (c) such joinder is required in order to enforce any right of Administrative Agent to enter Landlord’s Premises for the purpose of making any inspection or assessment, or in order to protect the value of Administrative Agent’s security provided by the Mortgage. In any instance in which Administrative Agent is permitted to
3



join Tenant as a defendant as provided above, Administrative Agent agrees not to terminate the Lease or otherwise adversely affect Tenant’s rights under the Lease or this Agreement in or pursuant to such action or proceeding, unless an Event of Default by Tenant has occurred and is continuing. The foregoing provisions of this Section shall not be construed in any manner that would prevent Administrative Agent from (i) carrying out any nonjudicial foreclosure proceeding under the Mortgage, or (ii) obtaining the appointment of a receiver for the Landlord’s Premises as and when permitted under applicable law.
3.2Nondisturbance and Attornment. If the Lease has not been terminated on account of an Event of Default by Tenant, then, when Successor Landlord takes title to Landlord’s Premises: (a) Successor Landlord shall not terminate or disturb Tenant’s possession of Tenant’s Premises under the Lease, except in accordance with the terms of the Lease and this Agreement; (b) Successor Landlord shall be bound to Tenant under all the terms and conditions of the Lease (except as provided in this Agreement); (c) Tenant shall recognize and attorn to Successor Landlord as Tenant’s direct landlord under the Lease as affected by this Agreement; and (d) the Lease shall continue in full force and effect as a direct lease, in accordance with its terms (except as provided in this Agreement), between Successor Landlord and Tenant.
3.3Use of Proceeds. Neither Administrative Agent nor Lender, in making any advances of the Loan pursuant to any of the Loan Documents, shall be under any obligation or duty to, nor has Administrative Agent or Lender represented to Tenant that it will, see to the application of such proceeds by the person or persons to whom Administrative Agent or Lender disburses such advances, and any application or use of such proceeds for purposes other than those provided for in any Loan Document shall not defeat Tenant’s agreement to subordinate the Lease in whole or in part as set forth in this Agreement.
3.4Further Documentation. The provisions of this Article shall be effective and self- operative without any need for Successor Landlord or Tenant to execute any further documents. Tenant and Successor Landlord shall, however, confirm the provisions of this Article in writing upon request by either of them.
3.5Default Under Mortgage. In the event that Administrative Agent notifies Tenant of a default under the Mortgage and demands that Tenant pay its rent and all other sums due under the Lease directly to Lender, Tenant shall honor such demand and pay the full amount of its rent and all other sums due under the Lease in accordance with the terms of the Lease directly to Administrative Agent pursuant to such notice, beginning with the payment next due after such notice of default, without inquiry as to whether a default actually exists under the Mortgage and notwithstanding any contrary instructions of or demands from Landlord. The consent and approval of Landlord to this Agreement shall constitute an express authorization for Tenant to make such payments to Administrative Agent and a release and discharge of all liability of Tenant to Landlord for any such payments made to Administrative Agent in compliance with Administrative Agent’s written demand.
4.Protection of Successor Landlord. Notwithstanding anything to the contrary in the Lease or the Mortgage, Successor Landlord shall not be liable for or bound by any of the following matters:

4



4.1Claims Against Former Landlord. Any Offset Right that Tenant may have against any Former Landlord relating to any event or occurrence before the date of attornment, including any claim for damages of any kind whatsoever as the result of any breach by Former Landlord that occurred before the date of attornment other than Offset Rights of Tenant pursuant to Section 9(e) of the Third Amendment to Office Lease dated as of July 10, 2019 (the “Third Amendment”), arising out of a failure of Former Landlord to fund an Allowance Request (as defined in the Third Amendment), provided that Tenant, concurrently with giving Former Landlord any notices required pursuant to Section 9(e) of the Third Amendment, provides a copy of such notices to Administrative Agent or Successor Landlord, as applicable. (The foregoing shall not limit (a) Tenant’s right to exercise against Successor Landlord any Offset Right otherwise available to Tenant because of events occurring after the date of attornment, (b) Successor Landlord’s obligation to correct any conditions that existed as of the date of attornment and violate Successor Landlord’s obligations as landlord under the Lease or (c) Tenant’s rights to exercise against Successor Landlord any Offset Rights of Tenant under Section 9(e) of the Third Amendment, provided Tenant, concurrently with the giving of any notice to Landlord pursuant to Section 9(e) of the Third Amendment, provides Administrative Agent or Successor Landlord, as applicable, with a copy of such notice.)
4.2Acts or Omissions of Former Landlord. Any act, omission, default, misrepresentation, or breach of warranty, of any previous landlord (including Former Landlord) or obligations accruing prior to Successor Landlord’s actual ownership of the Property, except as otherwise specifically provided in Section 4.1 above and except to the extent that such obligations constitute ongoing or continuing defaults of the Landlord in the performance of its obligations under the Lease to maintain the Landlord’s Premises and/or the Tenant’s Premises in the manner required by the Lease in which case Successor Landlord shall be responsible to perform such maintenance obligations (and shall be subject to any abatement right subsequently available to Tenant in the event Successor Landlord fails to perform such maintenance obligations as set forth in the Lease) after Successor Landlord succeeds to the interest of Landlord under the Lease; provided that Administrative Agent or Successor Landlord, as applicable, received notice of such default and the opportunity to cure in accordance with the terms hereof.
4.3Prepayments. Any payment of Rent that Tenant may have made to Former Landlord more than thirty (30) days before the date such Rent was first due and payable under the Lease with respect to any period after the date of attornment other than, and only to the extent that, the Lease expressly required such a prepayment.
4.4Payment; Security Deposit. Any obligation (a) to pay Tenant any sum(s) that any Former Landlord owed to Tenant, or (b) with respect to any security deposited with Former Landlord, unless such security was actually delivered to Administrative Agent. This Section is not intended to apply to Landlord’s obligation to make any payment that constitutes a Construction-Related Obligation.
4.5Modification; Amendment; or Waiver. Any modification or amendment of the Lease, or any waiver of any terms of the Lease, made without Administrative Agent’s written consent (which Administrative Agent will not unreasonably withhold, condition or delay), except for (a) amendments effected by Tenant’s unilateral election to renew, expand, reduce, exercise a right of first offer or right of first refusal to lease additional space, or terminate as specifically set
5



forth in the Lease in effect as of the date hereof or future amendments to the Lease approved by Administrative Agent in writing or (b) any commencement date certificate or agreement setting forth the Lease dates.
4.6Surrender; Etc. Any consensual or negotiated surrender, cancellation, or termination of the Lease, in whole or in part, agreed upon between Landlord and Tenant, unless effected unilaterally by Tenant pursuant to the express terms of the Lease.
4.7Construction-Related Obligations. Any Construction-Related Obligation of Landlord under the Lease.
5.Exculpation of Successor Landlord. Notwithstanding anything to the contrary in this Agreement or the Lease, upon any attornment pursuant to this Agreement the Lease shall be deemed to have been automatically amended to provide that Successor Landlord’s obligations and liability under the Lease shall never extend beyond Successor Landlord’s (or its successors’ or assigns’) interest, if any, in Landlord’s Premises from time to time, including insurance and condemnation proceeds, Successor Landlord’s interest in the Lease, and the proceeds from any sale or other disposition of Landlord’s Premises by Successor Landlord (collectively, “Successor Landlord’s Interest”). Tenant shall look exclusively to Successor Landlord’s Interest (or that of its successors and assigns) for payment or discharge of any obligations of Successor Landlord under the Lease as affected by this Agreement. If Tenant obtains any money judgment against Successor Landlord with respect to the Lease or the relationship between Successor Landlord and Tenant, then Tenant shall look solely to Successor Landlord’s Interest (or that of its successors and assigns) to collect such judgment. Tenant shall not collect or attempt to collect any such judgment out of any other assets of Successor Landlord. In addition to any limitation of liability set forth in this Agreement, Administrative Agent, any Lender and/or each of their respective successors and assigns shall under no circumstances be liable for any incidental, consequential, punitive, or exemplary damages.
6.Administrative Agent’s Right to Cure.
6.1Notice to Administrative Agent. Notwithstanding anything to the contrary in the Lease or this Agreement, before exercising any Termination Right, Tenant shall provide Administrative Agent with notice of the breach or default by Landlord giving rise to same (the “Default Notice”) and, thereafter, the opportunity to cure such breach or default as provided for below.
6.2Administrative Agent’s Cure Period. After Administrative Agent receives a Default Notice, Administrative Agent shall have a period of thirty (30) days beyond the time available to Landlord under the Lease in which to cure the breach or default by Landlord. Administrative Agent shall have no obligation to cure (and shall have no liability or obligation for not curing) any breach or default by Landlord, except to the extent that Administrative Agent agrees or undertakes otherwise in writing.
6.3Extended Cure Period. In addition, as to any breach or default by Landlord the cure of which requires possession and control of Landlord’s Premises, provided only that Administrative Agent undertakes to Tenant by written notice to Tenant within thirty (30) days after
6



receipt of the Default Notice to exercise reasonable efforts to cure or cause to be cured by a receiver such breach or default within the period permitted by this Section, Administrative Agent’s cure period shall continue for such additional time (the “Extended Cure Period”) as Administrative Agent may reasonably require to either (a) obtain possession and control of Landlord’s Premises and thereafter cure the breach or default with reasonable diligence and continuity, or (b) obtain the appointment of a receiver and give such receiver a reasonable period of time in which to cure the default; provided, in no event shall the Extended Cure Period continue for more than one hundred eighty (180) days after delivery of the Default Notice.
7.Confirmation of Facts. Tenant represents to Administrative Agent and to the Lenders and to any Successor Landlord, in each case as of the Effective Date:
7.1Due Authorization. Tenant has full authority to enter into this Agreement, which has been duly authorized by all necessary actions.
7.2No Violations of Laws. Tenant has not violated, and shall not violate, any laws affecting Tenant’s Premises, including the Controlled Substances Act, or which could otherwise result in the commencement of a judicial or nonjudicial forfeiture or seizure proceeding by a governmental authority (including the commencement of any proceedings under the Civil Asset Forfeiture Reform Act) on the grounds that Tenant’s Premises or any part thereof has been used to commit or facilitate the commission of a criminal offense by any person, including Tenant, pursuant to any law, including the Controlled Substances Act, regardless of whether or not Tenant’s Premises is or shall become subject to forfeiture or seizure in connection therewith.
8.Miscellaneous.
8.1Notices. All notices or other communications required or permitted under this Agreement shall be in writing and given by certified mail (return receipt requested) or by nationally recognized overnight courier service that regularly maintains records of items delivered. Each party’s address is as set forth in the opening paragraph of this Agreement, subject to change by notice under this Section. Notices shall be effective the next business day after being sent by overnight courier service, and five (5) business days after being sent by certified mail (return receipt requested). Copies of all notices sent to Tenant shall also be delivered to Meltzer, Purtill & Stelle LLC, 300 South Wacker Drive, Suite 2300, Chicago, Illinois 60606, Attention: Scott Hargadon.
8.2Successors and Assigns. This Agreement shall bind and benefit the parties, their successors and assigns, any Successor Landlord, and its successors and assigns. If Administrative Agent or any Lender assigns the Mortgage, then upon delivery to Tenant of written notice thereof accompanied by the assignee’s written assumption of all obligations under this Agreement, all liability of the assignor shall terminate.
8.3Entire Agreement. This Agreement constitutes the entire agreement between Administrative Agent and Tenant regarding the subordination of the Lease to the Mortgage and the rights and obligations of Tenant and Administrative Agent as to the subject matter of this Agreement.

7



8.4Interaction with Lease and with Mortgage; Severability. If this Agreement conflicts with the Lease, then this Agreement shall govern as between the parties and any Successor Landlord, including upon any attornment pursuant to this Agreement. This Agreement supersedes, and constitutes full compliance with, any provisions in the Lease that provide for subordination of the Lease to, or for delivery of nondisturbance agreements by the beneficiary of, the Mortgage. Administrative Agent confirms that Administrative Agent has consented to Landlord’s entering into the Lease. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, such provision shall be considered severed from the rest of this Agreement and the remaining provisions shall continue in full force and effect as if such provision had not been included.
8.5Administrative Agent and Lender’s Rights and Obligations. Except as expressly provided for in this Agreement, neither Administrative Agent nor any Lender shall have any obligations to Tenant with respect to the Lease. If an attornment occurs pursuant to this Agreement, then all rights and obligations of Administrative Agent and each Lender under this Agreement shall terminate, without thereby affecting in any way the rights and obligations of Successor Landlord provided for in this Agreement.
8.6Interpretation; Governing Law. The interpretation, validity and enforcement of this Agreement shall be governed by and construed under the internal laws of the State of Illinois, excluding its principles of conflict of laws.
8.7Amendments. This Agreement may be amended, discharged or terminated, or any of its provisions waived, only by a written instrument executed by the party to be charged.
8.8Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
8.9Administrative Agent’s and Tenant’s Representation. Administrative Agent and Tenant represent to the other party that each has the full authority to enter into this Agreement, and each party’s respective entry into this Agreement has been duly authorized by all necessary actions.
8.10Reliance by Administrative Agent and Lenders. Tenant acknowledges the right of Administrative Agent and each Lender (as well as any Successor Landlord) to rely upon the certifications and agreements in this Agreement in making the Loan to Landlord.
8.11Administrative Agent. Administrative Agent is acting hereunder as Administrative Agent pursuant to the Loan Agreement, on behalf of itself and the other lenders and financial institutions which, from time to time, own and hold a portion of the obligations secured by the Mortgage. From time to time after the date hereof, additional lenders and financial institutions may become “Lenders” pursuant to the Loan Agreement and shall be entitled to the rights and benefits under this Agreement and the other Loan Documents.
[Signatures appear on following page.]

8



IN WITNESS WHEREOF, this Agreement has been duly executed by Administrative Agent and Tenant as of the Effective Date.
ADMINISTRATIVE AGENT:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By:                    
Name:                    
Title:                    

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of )
County of )

On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _________________________________



S-1




IN WITNESS WHEREOF, this Agreement has been duly executed by Administrative Agent and Tenant as of the Effective Date.
TENANT:
ACCENTURE LLP,
an Illinois limited liability partnership
By:    Accenture, Inc.,
a Delaware corporation,
its Managing Partner
By:    /s/ Ronald J. Roberts
Name:    Ronald J. Roberts
Title:    Authorized Signatory

STATE OF ILLINOIS    )
                ) SS.
COUNTY OF COOK        )
I, the undersigned , a Notary Public in and for said County, in the State aforesaid, do hereby certify that Ronald J. Roberts the Authorized Signatory of Accenture Inc., the Managing Partner of ACCENTURE LLP, an Illinois limited liability partnership (“Company”), personally known to me to be the same persons whose name is subscribed to the foregoing instrument as such Authorized Signatory appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act, as the free and voluntary act of Company, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal, this 16th day of October, 2020.
/s/ Laura C. Doyle
Notary Public
(SEAL)
My Commission Expires: 5/16/2022
SMRH:4843-3691-3353.5 S-2



LANDLORD’S CONSENT
Landlord consents and agrees to the foregoing Agreement, which was entered into at Landlord’s request. The foregoing Agreement shall not alter, waive or diminish any of Landlord’s obligations under the Mortgage or the Lease. The above Agreement discharges any obligations of Lender under the Mortgage and related loan documents to enter into a nondisturbance agreement with Tenant. Tenant is hereby authorized to pay its rent and all other sums due under the Lease directly to Lender upon receipt of a notice as set forth in Section 3.5 above from Lender and Tenant is not obligated to inquire as to whether a default actually exists under the Mortgage. Landlord is not a party to the above Agreement.
Dated:                 
LANDLORD:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XI, 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: _____________________
Charles J. Schreiber, Jr.,
Chief Executive Officer




LANDLORD ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of )
County of )

On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________







SCHEDULE A
Description of Landlord’s Premises
REAL PROPERTY IN THE CITY OF CHICAGO, COUNTY OF COOK, STATE OF ILLINOIS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
NOTE: THE PHRASE "VACATED 18 FOOT ALLEY" AS USED IN THESE LEGAL DESCRIPTIONS IS IN REFERENCE TO THE 18 FOOT WIDE NORTH-SOUTH ALLEY LYING IN BLOCK 50 WHICH WAS VACATED BY ORDINANCE RECORDED JANUARY 5, 1907 AS DOCUMENT NO. 3974491.
PARCEL 1:
THE SOUTH 275.06 FEET (MEASURED PERPENDICULARLY) OF THE FOLLOWING DESCRIBED PROPERTY, ALL TAKEN AS A TRACT:
BLOCK 50 AND THE VACATED 18 FOOT ALLEY IN SAID BLOCK 50 (EXCEPT THAT PART OF BLOCK 50 AND THE VACATED ALLEY THEREIN, LYING IN MADISON STREET AS WIDENED) IN THE ORIGINAL TOWN OF CHICAGO IN THE SOUTHWEST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST IF THE THIRD PRINCIPAL MERIDIAN IN COOK COUNTY, ILLINOIS.
PARCEL 2A:
THAT PART OF THE FOLLOWING DESCRIBED PROPERTY, ALL TAKEN AS A TRACT, LYING BELOW A HORIZONTAL PLANE HAVING AN ELEVATION OF +23.00 FEET CHICAGO CITY DATUM AND LYING NORTH OF THE SOUTH 275.06 FEET (MEASURED PERPENDICULARLY) OF SAID TRACT:
BLOCK 50 AND THE VACATED 18 FOOT ALLEY IN SAID BLOCK 50 (EXCEPT THAT PART OF BLOCK 50 AND THE VACATED ALLEY THEREIN, LYING IN MADISON STREET AS WIDENED) IN THE ORIGINAL TOWN OF CHICAGO IN THE SOUTHWEST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN IN COOK COUNTY, ILLINOIS.
PARCEL 2B:
THAT PART OF THE FOLLOWING DESCRIBED PROPERTY, ALL TAKEN AS A TRACT, LYING ABOVE A HORIZONTAL PLANE HAVING AN ELEVATION OF +23.00 FEET CHICAGO CITY DATUM, LYING BELOW A HORIZONTAL PLANE HAVING AN ELEVATION OF +59.63 FEET CHICAGO CITY DATUM, AND LYING NORTH OF THE SOUTH 275.06 FEET (MEASURED PERPENDICULARLY) OF SAID TRACT:
BLOCK 50 AND THE VACATED 18 FOOT ALLEY IN SAID BLOCK 50 (EXCEPT THAT PART OF BLOCK 50 AND THE VACATED ALLEY THEREIN, LYING IN MADISON STREET AS WIDENED) IN THE ORIGINAL TOWN OF CHICAGO IN THE SOUTHWEST
A-1




1/4 SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN IN COOK COUNTY, ILLINOIS;
FOR THE CONSTRUCTION, MAINTENANCE, USE REPAIR, REPLACEMENT, RENOVATION, RECONSTRUCTION AND IMPROVEMENT WITH CAISSONS, SUPPORT POSTS, ARCHES, COLUMNS OR OTHER SUPPORT DEVICES; AND FOR THE INSTALLATION AND MAINTENANCE OF UTILITY LINES.
PARCEL 2C:
THAT PART OF THE FOLLOWING DESCRIBED PROPERTY ALL TAKEN AS A TRACT, LYING ABOVE A HORIZONTAL PLANE HAVING AN ELEVATION OF +59.63 FEET CHICAGO CITY DATUM AND LYING NORTH OF THE SOUTH 275.06 FEET (MEASURED PERPENDICULARLY) OF SAID TRACT:
BLOCK 50 AND THE VACATED 18 FOOT ALLEY IN SAID BLOCK 50 (EXCEPT THAT PART OF BLOCK 50 AND THE VACATED ALLEY THEREIN, LYING IN MADISON STREET AS WIDENED) IN THE ORIGINAL TOWN OF CHICAGO IN THE SOUTHWEST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN IN COOK COUNTY, ILLINOIS.
PIN Nos.:
17-09-342-002-0000
17-09-342-004-0000
17-09-342-005-0000
FOR REFERENCE PURPOSES ONLY, THE ABOVE DESCRIBED PROPERTY IS COMMONLY KNOWN AS:
500 West Madison Street
Chicago, Illinois 60661
A-2



Exhibit 10.6
PROMISSORY NOTE
$165,000,000.00 Newport Beach, California
November 2, 2020
FOR VALUE RECEIVED, KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company, as maker, having its principal place of business at 800 Newport Center Drive, Suite 700, Newport Beach, California 92660 (“Borrower”), hereby unconditionally promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association (“Lender”), having an address at 4100 Newport Place, Suite 900, Newport Beach, California 92660 or such other place as the holder hereof may from time to time designate in writing, the principal sum of ONE HUNDRED SIXTY-FIVE MILLION and NO/100 DOLLARS ($165,000,000.00), or so much thereof as may have been advanced pursuant to the Loan Agreement (as defined below), in lawful money of the United States of America, with interest thereon to be computed from the date of this Promissory Note (this "Note") at the Loan Rate, and to be paid in accordance with the terms of this Note and that certain Revolving and Term Loan Agreement dated as of the date hereof among Borrower, Lender, certain other "Lenders" named therein or made party thereto, and U.S. Bank National Association, a national banking association, as Administrative Agent ("Administrative Agent") (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the "Loan Agreement"). All capitalized terms not defined herein have the respective meanings set forth in the Loan Agreement.
1.Payment Terms. Borrower agrees to pay the principal sum of this Note, to the extent advanced pursuant to the Loan Agreement, and interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in the Loan Agreement. The outstanding principal balance of the principal sum of this Note and all accrued and unpaid interest thereon is due and payable in full on the Maturity Date. This Note may only be prepaid in accordance with the terms and conditions of the Loan Agreement.
2.Acceleration. The Loan Agreement contains, among other things, provisions for the acceleration of the outstanding principal balance of the principal sum of this Note together with all interest accrued and unpaid hereon and all other sums, including late charges, LIBOR Breakage Costs and other costs relating to the Loan, due to Lender under this Note, the Loan Agreement or any other Loan Document (the “Debt”) upon the happenings of certain stated events.
3.Loan Documents. This Note is one of the Notes referred to in the Loan Agreement. This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made a part of this Note to the same extent and with the same force as if they were fully set forth herein. In the event of a conflict or inconsistency between the terms of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement will govern.
4.Savings Clause. In the event that the interest and/or charges in the nature of interest, if any, provided for by this Note, the Loan Agreement or by any other Loan Document, contravenes a legal or statutory limitation applicable to the Loan, if any, Borrower will pay only such amounts as would legally be permitted; provided, however, that if the defense of usury and all similar defenses are unavailable to Borrower, Borrower will pay all amounts provided for herein, in the Loan Agreement and in the other Loan Documents. If, for any reason, amounts in excess of the amounts permitted in the foregoing sentence have been paid, received, collected or applied hereunder, whether by reason of
SMRH:4852-5550-4848.2
–1–
Accenture Tower – Promissory Note
0YWK-314211


acceleration or otherwise, then, and in that event, any such excess amounts will be applied to principal,unless principal has been fully paid, in which event such excess amount will be refunded to Borrower.
5.Waivers. Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, notice of intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and all other notices of any kind. No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between Lender or any other Person will release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower or any other Person who may become liable for the payment of all or any part of the Debt under this Note, the Loan Agreement or the other Loan Documents. No notice to or demand on Borrower will waive any obligation of Borrower or waive any right of Lender or Administrative Agent to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan Documents. If Borrower is a partnership or limited liability company, the agreements herein contained will remain in force and be applicable, notwithstanding any changes in the individuals comprising the partnership or limited liability company, and the term "Borrower," as used herein, will include any alternate or successor partnership or limited liability company, but any predecessor partnership or limited liability company and their partners or members will not thereby be released from any liability. If Borrower is a corporation, the agreements contained herein will remain in full force and be applicable notwithstanding any changes in the shareholders comprising, or the officers and directors relating to, the corporation, and the term "Borrower," as used herein, will include any alternative or successor corporation, but any predecessor corporation will not be relieved of liability hereunder. Nothing in the foregoing sentences may be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in such partnership, limited liability company or corporation, which may be set forth in the Loan Agreement, the Security Instrument or any other Loan Document.
6.No Oral Change. This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.
7.Intentionally Omitted.
8.Governing Law; Waiver of Jury Trial; Jurisdiction. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD CAUSE ANOTHER STATE’S LAWS TO APPLY) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS NOTE AND THE LOAN AGREEMENT, AND THIS NOTE AND THE LOAN AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, AND TED STATES OF AMERICA APPLICABLE TO NATIONAL BANKS.
TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION RELATING TO THE LOAN AND/OR THE LOAN DOCUMENTS. BORROWER, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY
SMRH:4852-5550-4848.2
–2–
Accenture Tower – Promissory Note
0YWK-314211


KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF ILLINOIS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS NOTE, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF ILLINOIS, (C) SUBMITS TO THE JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT, AND (D) AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN WILL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT AND/OR ANY LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). BORROWER FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO BORROWER AT THE ADDRESSES FOR NOTICES DESCRIBED IN THE LOAN AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE WILL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN WILL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
9.Severability. Wherever possible, each provision of this Note must be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note is prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note.
10.Time of the Essence. Time is of the essence hereof with respect to the dates, terms and conditions of this Note and the Loan Agreement.
11.Notices. All notices or other written communications hereunder must be delivered in accordance with Section 10.7 of the Loan Agreement.
12.Limitation on Liability. Notwithstanding anything to the contrary set forth herein, under no circumstances shall any of the members, partners, directors, shareholders or other constituent owners of Borrower (direct or indirect), other than Guarantor, have any liability for Borrower's obligations hereunder.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Borrower has caused this Promissory Note to be duly execute and delivered under seal as of the day and year first above set forth.
BORROWER:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XI, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
SMRH:4852-5550-4848.2 S–1 Accenture Tower – Promissory Note
0YWK-314211

Exhibit 10.7
PROMISSORY NOTE
$125,000,000.00 Newport Beach, California
November 2, 2020
FOR VALUE RECEIVED, KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company, as maker, having its principal place of business at 800 Newport Center Drive, Suite 700, Newport Beach, California 92660 (“Borrower”), hereby unconditionally promises to pay to the order of BANK OF AMERICA, N.A. (“Lender”), at the office of U.S. Bank National Association, a national banking association, having an address at 4100 Newport Place, Suite 900, Newport Beach, California 92660, as agent (“Administrative Agent”), for itself and for the other financial institutions (collectively, the “Lenders”) which are or may in the future become parties to the Loan Agreement (defined below), or such other place as Administrative Agent may from time to time designate in writing, the principal sum of ONE HUNDRED TWENTY-FIVE MILLION and NO/100 DOLLARS ($125,000,000.00), or so much thereof as may have been advanced pursuant to the Loan Agreement (as defined below), in lawful money of the United States of America, with interest thereon to be computed from the date of this Promissory Note (this “Note”) at the Loan Rate, and to be paid in accordance with the terms of this Note and that certain Revolving and Term Loan Agreement dated the date hereof between Borrower, Lender, certain other “Lenders” named therein or made party thereto, and Administrative Agent (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”). All capitalized terms not defined herein have the respective
meanings set forth in the Loan Agreement.
1.Payment Terms. Borrower agrees to pay the principal sum of this Note, to the extent advanced pursuant to the Loan Agreement, and interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in the Loan Agreement. The outstanding principal balance of the principal sum of this Note and all accrued and unpaid interest thereon is due and payable in full on the Maturity Date. This Note may only be prepaid in accordance with the terms and conditions of the Loan Agreement.
2.Acceleration. The Loan Agreement contains, among other things, provisions for the acceleration of the outstanding principal balance of the principal sum of this Note together with all interest accrued and unpaid hereon and all other sums, including late charges, LIBOR Breakage Costs and other costs relating to the Loan, due to Lender under this Note, the Loan Agreement or any other Loan Document (the “Debt”) upon the happenings of certain stated events.
3.Loan Documents. This Note is one of the Notes referred to in the Loan Agreement. This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made a part of this Note to the same extent and with the same force as if they were fully set forth herein. In the event of a conflict or inconsistency between the terms of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement will govern.
4.Savings Clause. In the event that the interest and/or charges in the nature of interest, if any, provided for by this Note, the Loan Agreement or by any other Loan Document, contravenes a legal or statutory limitation applicable to the Loan, if any, Borrower will pay only such amounts as would legally be permitted; provided, however, that if the defense of usury and all similar defenses are unavailable to Borrower, Borrower will pay all amounts provided for herein, in the Loan Agreement and in the other Loan Documents. If, for any reason, amounts in excess of the amounts permitted in the foregoing sentence have been paid, received, collected or applied hereunder, whether by reason of
SMRH:4811-4207-3808.2
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0YWK-314211


acceleration or otherwise, then, and in that event, any such excess amounts will be applied to principal,unless principal has been fully paid, in which event such excess amount will be refunded to Borrower.
5.Waivers. Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, notice of intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and all other notices of any kind. No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between Lender or any other Person will release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower or any other Person who may become liable for the payment of all or any part of the Debt under this Note, the Loan Agreement or the other Loan Documents. No notice to or demand on Borrower will waive any obligation of Borrower or waive any right of Lender or Administrative Agent to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan Documents. If Borrower is a partnership or limited liability company, the agreements herein contained will remain in force and be applicable, notwithstanding any changes in the individuals comprising the partnership or limited liability company, and the term "Borrower," as used herein, will include any alternate or successor partnership or limited liability company, but any predecessor partnership or limited liability company and their partners or members will not thereby be released from any liability. If Borrower is a corporation, the agreements contained herein will remain in full force and be applicable notwithstanding any changes in the shareholders comprising, or the officers and directors relating to, the corporation, and the term "Borrower," as used herein, will include any alternative or successor corporation, but any predecessor corporation will not be relieved of liability hereunder. Nothing in the foregoing sentences may be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in such partnership, limited liability company or corporation, which may be set forth in the Loan Agreement, the Security Instrument or any other Loan Document.
6.No Oral Change. This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.
7.Intentionally Omitted.
8.Governing Law; Waiver of Jury Trial; Jurisdiction. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD CAUSE ANOTHER STATE’S LAWS TO APPLY) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS NOTE AND THE LOAN AGREEMENT, AND THIS NOTE AND THE LOAN AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, AND TED STATES OF AMERICA APPLICABLE TO NATIONAL BANKS.
TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION RELATING TO THE LOAN AND/OR THE LOAN DOCUMENTS. BORROWER, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY
SMRH:4811-4207-3808.2
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KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF ILLINOIS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS NOTE, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF ILLINOIS, (C) SUBMITS TO THE JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT, AND (D) AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN WILL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT AND/OR ANY LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). BORROWER FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO BORROWER AT THE ADDRESSES FOR NOTICES DESCRIBED IN THE LOAN AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE WILL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN WILL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
9.Severability. Wherever possible, each provision of this Note must be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note is prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note.
10.Time of the Essence. Time is of the essence hereof with respect to the dates, terms and conditions of this Note and the Loan Agreement.
11.Notices. All notices or other written communications hereunder must be delivered in accordance with Section 10.7 of the Loan Agreement.
12.Limitation on Liability. Notwithstanding anything to the contrary set forth herein, under no circumstances shall any of the members, partners, directors, shareholders or other constituent owners of Borrower (direct or indirect), other than Guarantor, have any liability for Borrower's obligations hereunder.
[NO FURTHER TEXT ON THIS PAGE]
SMRH:4811-4207-3808.2
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IN WITNESS WHEREOF, Borrower has caused this Promissory Note to be duly execute and delivered under seal as of the day and year first above set forth.
BORROWER:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XI, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
SMRH:4811-4207-3808.2 S–1 Accenture Tower – Promissory Note
0YWK-314211

Exhibit 10.8
PROMISSORY NOTE
$85,000,000.00 Newport Beach, California
November 2, 2020
FOR VALUE RECEIVED, KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company, as maker, having its principal place of business at 800 Newport Center Drive, Suite 700, Newport Beach, California 92660 (“Borrower”), hereby unconditionally promises to pay to the order of DEUTSCHE PFANDBRIEFBANK AG (“Lender”), at the office of U.S. Bank National Association, a national banking association, having an address at 4100 Newport Place, Suite 900, Newport Beach, California 92660, as agent (“Administrative Agent”), for itself and for the other financial institutions (collectively, the “Lenders”) which are or may in the future become parties to the Loan Agreement (defined below), or such other place as Administrative Agent or the holder hereof may, each in accordance with and subject to the terms of the Loan Agreement, from time to time designate in writing, the principal sum of EIGHTY-FIVE MILLION and NO/100 DOLLARS ($85,000,000.00), or so much thereof as may have been advanced pursuant to the Loan Agreement (as defined below), in lawful money of the United States of America, with interest thereon to be computed from the date of this Promissory Note (this “Note”) at the Loan Rate, and to be paid in accordance with the terms of this Note and that certain Revolving and Term Loan Agreement dated the date hereof between Borrower, Lender, certain other “Lenders” named therein or made party thereto, and Administrative Agent (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”). All capitalized terms not defined herein have the respective
meanings set forth in the Loan Agreement.
1.Payment Terms. Borrower agrees to pay the principal sum of this Note, to the extent advanced pursuant to the Loan Agreement, and interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in the Loan Agreement. The outstanding principal balance of the principal sum of this Note and all accrued and unpaid interest thereon is due and payable in full on the Maturity Date. This Note may only be prepaid in accordance with the terms and conditions of the Loan Agreement.
2.Acceleration. The Loan Agreement contains, among other things, provisions for the acceleration of the outstanding principal balance of the principal sum of this Note together with all interest accrued and unpaid hereon and all other sums, including late charges, LIBOR Breakage Costs and other costs relating to the Loan, due to Lender under this Note, the Loan Agreement or any other Loan Document (the “Debt”) upon the happenings of certain stated events.
3.Loan Documents. This Note is one of the Notes referred to in the Loan Agreement. This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made a part of this Note to the same extent and with the same force as if they were fully set forth herein. In the event of a conflict or inconsistency between the terms of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement will govern.
4.Savings Clause. In the event that the interest and/or charges in the nature of interest, if any, provided for by this Note, the Loan Agreement or by any other Loan Document, contravenes a legal or statutory limitation applicable to the Loan, if any, Borrower will pay only such amounts as would legally be permitted; provided, however, that if the defense of usury and all similar defenses are unavailable to Borrower, Borrower will pay all amounts provided for herein, in the Loan Agreement and in the other Loan Documents. If, for any reason, amounts in excess of the amounts permitted in the
SMRH:4812-9896-6224.3
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foregoing sentence have been paid, received, collected or applied hereunder, whether by reason of acceleration or otherwise, then, and in that event, any such excess amounts will be applied to principal,unless principal has been fully paid, in which event such excess amount will be refunded to Borrower.
5.Waivers. Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, notice of intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and all other notices of any kind. No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between Lender or any other Person will release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower or any other Person who may become liable for the payment of all or any part of the Debt under this Note, the Loan Agreement or the other Loan Documents. No notice to or demand on Borrower will waive any obligation of Borrower or waive any right of Lender or Administrative Agent to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan Documents. If Borrower is a partnership or limited liability company, the agreements herein contained will remain in force and be applicable, notwithstanding any changes in the individuals comprising the partnership or limited liability company, and the term "Borrower," as used herein, will include any alternate or successor partnership or limited liability company, but any predecessor partnership or limited liability company and their partners or members will not thereby be released from any liability. If Borrower is a corporation, the agreements contained herein will remain in full force and be applicable notwithstanding any changes in the shareholders comprising, or the officers and directors relating to, the corporation, and the term "Borrower," as used herein, will include any alternative or successor corporation, but any predecessor corporation will not be relieved of liability hereunder. Nothing in the foregoing sentences may be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in such partnership, limited liability company or corporation, which may be set forth in the Loan Agreement, the Security Instrument or any other Loan Document.
6.No Oral Change. This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.
7.Intentionally Omitted.
8.Governing Law; Waiver of Jury Trial; Jurisdiction. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD CAUSE ANOTHER STATE’S LAWS TO APPLY) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS NOTE AND THE LOAN AGREEMENT, AND THIS NOTE AND THE LOAN AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, AND TED STATES OF AMERICA APPLICABLE TO NATIONAL BANKS.
TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION RELATING TO THE LOAN AND/OR THE LOAN
SMRH:4812-9896-6224.3
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DOCUMENTS. BORROWER, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF ILLINOIS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS NOTE, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF ILLINOIS, (C) SUBMITS TO THE JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT, AND (D) AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN WILL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT AND/OR ANY LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). BORROWER FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO BORROWER AT THE ADDRESSES FOR NOTICES DESCRIBED IN THE LOAN AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE WILL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN WILL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
9.Severability. Wherever possible, each provision of this Note must be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note is prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note.
10.Time of the Essence. Time is of the essence hereof with respect to the dates, terms and conditions of this Note and the Loan Agreement.
11.Notices. All notices or other written communications hereunder must be delivered in accordance with Section 10.7 of the Loan Agreement.
12.Limitation on Liability. Notwithstanding anything to the contrary set forth herein, under no circumstances shall any of the members, partners, directors, shareholders or other constituent owners of Borrower (direct or indirect), other than Guarantor, have any liability for Borrower's obligations hereunder.
[NO FURTHER TEXT ON THIS PAGE]
SMRH:4812-9896-6224.3
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0YWK-314211


IN WITNESS WHEREOF, Borrower has caused this Promissory Note to be duly execute and delivered under seal as of the day and year first above set forth.
BORROWER:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XI, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
SMRH:4812-9896-6224.3 S–1 Accenture Tower – Promissory Note
0YWK-314211

Exhibit 10.9
PAYMENT GUARANTY AGREEMENT
THIS PAYMENT GUARANTY AGREEMENT (this “Guaranty”) is made as of the 2nd day of November, 2020, by KBS REIT PROPERTIES III, LLC, a Delaware limited liability company (“Guarantor”), to and for the benefit of U.S. BANK NATIONAL ASSOCIATION, a national banking association, as administrative agent (“Administrative Agent”), for itself as a “Lender” and the other “Lenders” under the Loan Agreement (referred to below).
RECITALS:
A.As more fully provided in that certain Revolving and Term Loan Agreement (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) of even date herewith by and among KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company (“Borrower”), the Lenders party thereto from time to time (collectively, the “Lenders”) and Administrative Agent, the Lenders are prepared to loan to Borrower the maximum aggregate principal amount of $375,000,000.00 (the “Loan”).
B.The Loan is evidenced by one or more promissory notes given by Borrower to the Lenders (as the same may be amended, supplemented, renewed or replaced from time to time, collectively, the “Notes”).
C. Guarantor will benefit directly or indirectly and substantially from the making of the Loan.
D.The execution and delivery of this Guaranty is a condition precedent to Administrative Agent and the Lenders entering into the Loan Agreement and the Lenders’ making of the Loan.
NOW, THEREFORE, to induce Administrative Agent and the Lenders to enter into the Loan Agreement and to induce the Lenders to make the Loan to Borrower and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, Guarantor covenants and agrees as follows:
1.Defined Terms and Certain Rules of Construction.
(a)Unless otherwise expressly defined herein, all capitalized terms herein will have the meanings ascribed to them in the Loan Agreement. Any defined term used in the plural herein refers to all members of the relevant class and any defined term used in the singular refers to any number of the members of the relevant class.
(b)Any reference to any Loan Document or other document includes such document both as originally executed and as it may from time to time be amended, restated, supplemented or modified. References herein to Articles, Sections and Exhibits will be construed as references to this Guaranty unless a different document is named. References to subparagraphs will be construed as references to the same Section in which the reference appears. The term “document” is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms “including” and “include” mean “including (include) without limitation”. The terms “hereof,” “herein” and “hereunder” and words of similar import when used in this Guaranty refers to this Guaranty as a whole and not to any particular provision of this Guaranty.
(c)All exhibits to this Guaranty, as now existing and as the same may from time to time be modified, are incorporated herein by this reference.
SMRH:4843-9410-4009.12
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2.Guaranty. Guarantor absolutely, unconditionally and irrevocably guarantees to Administrative Agent for the benefit of Administrative Agent and the Lenders and becomes surety for each of the following, but only to the extent that the same are not timely paid by Borrower: (i) subject to the terms and conditions of Section 27 below, the full and timely payment when due, whether by declaration, acceleration or otherwise, of all principal of the Loan including the full and timely payment of principal when due pursuant to the terms of the Loan Agreement, (ii) any accrued and unpaid obligations pursuant to any Lender-Provided Swap other than (and expressly excluding) any obligations under any Swaps that are not secured by the Property (any such obligations, “Lender-Provided Swap Obligations”) relating to the Loan, and any and all present and future Swaps and Lender-Provided Swaps (other than Excluded Swap Obligations) and (iii), the reasonable expenses and fees of legal counsel in connection with any collection and/or enforcement relative to this Guaranty (“Costs”) (all amounts due, debts, liabilities and payment obligations described in this Section 2 which are not timely paid by Borrower are hereinafter collectively referred to as the “Guaranteed Obligations”).
This is a guaranty of payment and performance and not of collection. The liability of Guarantor under this Guaranty is direct and immediate and not conditional or contingent upon the pursuit of any remedies against Borrower or any other person (including other guarantors, if any), nor against the collateral for the Loan. To the extent permitted by applicable law, Guarantor waives any right to require that an action be brought against Borrower or any other Person or to require that resort be had to any collateral for the Loan or to any balance of any deposit account or credit on the books of Administrative Agent or any Lender in favor of Borrower or any other Person. In the event, on account of the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, Borrower is relieved of or fails to incur any debt, obligation or liability as provided in the Loan Documents, Guarantor will nevertheless be fully liable for the Guaranteed Obligations. In the event of a Default or Event of Default which is not cured within any applicable grace or cure period, Administrative Agent and/or the Required Lenders will have the right to enforce their respective rights, powers and remedies (including foreclosure of all or any portion of the collateral for the Loan) thereunder or hereunder, in any order, and all rights, powers and remedies available to Administrative Agent and/or the Required Lenders in such event will be non-exclusive and cumulative of all other rights, powers and remedies provided thereunder or hereunder or by law or in equity. If the Guaranteed Obligations are partially paid or discharged by reason of the exercise of any of the remedies available to Administrative Agent and/or the Required Lenders, this Guaranty will nevertheless remain in full force and effect, and Guarantor will remain liable for all remaining Guaranteed Obligations, even though any rights which Guarantor may have against Borrower may be destroyed or diminished by the exercise of any such remedy.
3.Agreement to Pay. Guarantor agrees to pay, upon written demand by Administrative Agent, the Guaranteed Obligations, irrespective of whether any one or more of the following events have occurred: (i) Administrative Agent has made any demand on Borrower other than any notice specifically required by the Loan Documents; (ii) Administrative Agent or any Lender has taken any action of any nature against Borrower; (iii) Administrative Agent or any Lender has pursued any rights which it has against any other Person who may be liable for any of the Guaranteed Obligations; (iv) Administrative Agent or any Lender holds or has resorted to any security for any of the Guaranteed Obligations; or (v) Administrative Agent or any Lender has invoked any other remedy or right it has available with respect to any of the Guaranteed Obligations. The liability of Guarantor as surety and guarantor of the Guaranteed Obligations is unconditional. Guarantor therefore agrees to pay the Guaranteed Obligations even if any of the Loan Documents or any part thereof are for any reason invalid or unenforceable.
4.Rescission/Reinstatement of Obligations. If at any time all or any part of any payment made by Guarantor or received by Administrative Agent from Guarantor under or with respect to this Guaranty is or must be rescinded or returned for any reason whatsoever (including the insolvency, bankruptcy or
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reorganization of Guarantor or Borrower), then the obligations of Guarantor hereunder will, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment made by Guarantor, or receipt of payment by Administrative Agent, and the obligations of Guarantor hereunder will continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment by Guarantor had never been made.
5.No Other Agreement, Defense. Guarantor warrants to Administrative Agent that: (i) no other agreement, representation or special condition exists between Guarantor and any Lender and/or Administrative Agent regarding the liability of Guarantor hereunder, nor does any understanding exist between Guarantor and any Lender, and/or Administrative Agent that the obligations of Guarantor hereunder are or will be other than as set forth herein; and (ii) as of the date hereof, Guarantor has no defense whatsoever to any action or proceeding that may be brought to enforce this Guaranty.
6.No Right of Subrogation. Unless and until all Obligations of Borrower under the Loan Documents have been irrevocably and indefeasibly paid in full, performed and discharged, and the Lenders no longer have any obligation to make Advances, Guarantor waives and agrees not to enforce any claim, right or remedy which Guarantor may now have or hereafter acquires against the Borrower that arises hereunder and/or from the payment or performance by Guarantor of the Guaranteed Obligations, whether or not any such claim, right or remedy arises in equity, under contract, by statute or otherwise, including: (i) any right of Guarantor to be subrogated in whole or in part to any claim, right or remedy of Administrative Agent or any Lender; (ii) any claim, right or remedy of reimbursement, exoneration, contribution or indemnification from the Borrower or participation in any claim, right or remedy of Administrative Agent or any Lender against the Borrower, any security which Administrative Agent or any Lender now has or hereafter acquires; and (iii) any right to require the marshalling of assets of the Borrower. Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Loan Agreement and that the waivers set forth in this Paragraph are knowingly made in contemplation of such benefits.
7.Waiver of Notice. Guarantor waives any and all notice (other than as specifically set forth herein) with respect to: (i) acceptance by Administrative Agent of this Guaranty or any of the Loan Documents; and (ii) the provisions of any of the Loan Documents or any other instrument or agreement relating to the Guaranteed Obligations; and (iii) any default in connection with the Guaranteed Obligations.
8.Waiver of Presentment, Etc. Guarantor waives any presentment, demand, notice of dishonor or nonpayment, protest and notice of protest in connection with the Guaranteed Obligations except as specifically set forth herein or in the Loan Documents.
9.Administrative Agent’s Rights. To the extent permitted by applicable law, Guarantor waives any defense hereunder based on any claim that Administrative Agent or any Lender has done any of the following, and agrees that any of the following may occur from time to time and without notice to Guarantor and without adversely affecting the validity or enforceability of this Guaranty: (i) release, surrender, exchange, compromise or settle the Guaranteed Obligations or any portion thereof; (ii) change, renew, or waive the terms of the Guaranteed Obligations or any portion thereof; (iii) change, renew, or waive the terms, including the rate of interest charged to the Borrower, of any note, instrument, or agreement relating to the Guaranteed Obligations or any portion thereof; (iv) grant any extension or indulgence with respect to the payment or performance of the Guaranteed Obligations or any part thereof; (v) enter into any agreement of forbearance with respect to the Guaranteed Obligations, or any part thereof; (vi) sell, release, surrender, exchange or compromise any security held by Administrative Agent for any of the Guaranteed Obligations; (vii) release any person or entity that is a guarantor or surety or who has agreed to purchase the Guaranteed Obligations or any portion thereof; (viii) release, surrender, exchange or compromise any security or lien held by Administrative Agent for the liabilities of any person or entity that is a guarantor or
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surety for the Guaranteed Obligations or any portion thereof; and (ix) settle, release, adjust or compromise any claim against the Borrower or any other person secondarily or otherwise liable, including but not limited to any other guarantors or sureties of the Guaranteed Obligations. Guarantor agrees that any of the above may occur from time to time without giving any notice to Guarantor and that Guarantor will remain liable for full payment and performance of the Guaranteed Obligations. To the extent permitted by applicable law, Guarantor further waives any defense based on a claim or defense of Borrower, and waives any right to require Administrative Agent or any Lender to proceed against Borrower, proceed against or exhaust any security for the Guaranteed Obligations or pursue any other remedy in Administrative Agent’s or any Lender’s power whatsoever.
10.Event of Default. Without limiting anything set forth in Section 8.1 of the Loan Agreement, including without limitation Sections 8.1(d) and (e), it will be an Event of Default under the Loan Documents if Guarantor fails to pay any sums as required pursuant to the terms of this Guaranty or in any other document provided in relation hereto.
11.Covenants. Guarantor covenants and agrees, from the date hereof and until the Guaranteed Obligations have been irrevocably and indefeasibly paid in full, performed and discharged, and the Lenders no longer have any obligation to make Advances, to:
(a)duly pay and discharge all liabilities to which it is subject or which are asserted against it, prior to the date when any fine, late charge or other penalty for late payment may be imposed, except to the extent that such liabilities would not reasonably be expected to result in a Material Adverse Change on Guarantor;
(b)cause any indebtedness between or among Guarantor and any other surety or guarantor of the Guaranteed Obligations to be subordinated to the Loan;
(c)furnish Administrative Agent with the financial statements and other information required to be provided by or on behalf of Guarantor under Section 6.15 of the Loan Agreement within the time periods provided for in the Loan Agreement together with such additional information as Administrative Agent shall reasonably request (not more than once per month) regarding Guarantor, within thirty (30) days (or such reasonably necessary time period as may be required by Guarantor) after Administrative Agent's written request therefor (including, when applicable, covenant compliance certificates from Guarantor in form and substance satisfactory to Administrative Agent with respect to Guarantor's financial covenants set forth herein);
(d)intentionally deleted;
(e)comply with each of the following financial covenants starting with the calendar quarter ending on December 31, 2020, and thereafter measured as of the end of each calendar quarter that occurs during the term of the Loan (i.e., as of each March 31, June 30, September 30, and December 31 during the term of the Loan):
(i)not permit its Leverage Ratio to be greater than 0.65 to 1.0. As used herein, (i) "Leverage Ratio" shall mean, as of the date of calculation, Total Liabilities to Total Asset Value, (ii) "Total Liabilities" shall mean, as of the date of calculation, all debt for borrowed money of Guarantor and its subsidiaries (including guaranties), without duplication, determined on a consolidated basis for the applicable measuring period in accordance with GAAP (but excluding any premiums or discounts on debt), and (iii) "Total Asset Value" shall mean, as of the date of calculation, the sum of (a) the total Market Value (defined below) of all properties owned by Guarantor (including the Property), plus (b) all unencumbered cash and cash equivalents, including
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any holdings of shares of Prime US REIT (SGX Ticker: OXMU), plus (c) the book value of notes receivable and other tangible assets. For purposes of this Guaranty, "Market Value" shall mean (A) at all times prior to the REIT Conversion (as such term is defined in the Loan Agreement), as of the date of calculation, the total market value of all properties owned by Guarantor, which shall mean (i) for the Property, as of the date of calculation, the capped value of the Property based on (x) the Annualized Net Operating Income as calculated for the immediately preceding calendar quarter pursuant to Section 6.33 of the Loan Agreement (including, for the avoidance of doubt, the Accenture Rent Adjustments) and (y) the cap rate from the most recent Appraisal provided to and approved by Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed) (with options to re-appraise at the request and expense of Borrower or Guarantor once in any six (6) month period), and (ii) with respect to the other real properties owned by Guarantor, (1) for all properties owned for two full quarterly reporting periods, the capped value of real estate assets (net operating income for the applicable reporting periods, annualized and capped at 6.75%, provided that for any property operating at a negative net operating income, Market Value for that asset shall be assumed to be $0), (2) for all real properties owned by Guarantor for less than two full quarterly reporting periods, the undepreciated cost basis of such real property, (3) at Borrower’s option, for all real properties operating at an occupancy of less than 85%, the “as-is” appraised value of such real property pursuant to the most recent Appraisal delivered to Administrative Agent and approved by Administrative Agent in its reasonable discretion (unless (x) such Appraisal is dated more than twelve (12) months prior to the date of calculation or (y) such Appraisal has an “as-is” appraised value based on a stabilization date that has not passed, in which case Guarantor shall deliver to Administrative Agent a new Appraisal acceptable to Administrative Agent in its reasonable discretion at Guarantor’s sole and expense), plus any additional leasing and capital expenditure costs incurred since the date of such Appraisal, or (4) for any property under development (until such time that is twelve (12) months beyond such property’s final completion date), the current cost basis in such property; or (B) at any time after the REIT Conversion, as of the date of calculation, the market value of all properties owned by Guarantor, such market value to be based on the REIT’s ongoing valuation process, which valuation process shall be approved by Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed).
(ii)The Net Worth of Guarantor shall not be less than $500,000,000. As used herein, "Net Worth" shall mean an amount equal to the Total Asset Value less Total Liabilities, without duplication; and
(iii)Guarantor shall not permit the ratio of EBITDA to Fixed Charges for the preceding four trailing consecutive fiscal quarters to be less than 1.50 to 1.0. As used herein, "EBITDA" shall mean an amount equal to (a) the net income as defined by GAAP for Guarantor and its subsidiaries, without duplication, on a consolidated basis for the applicable measuring period, plus (1) interest expense, income taxes, depreciation and amortization expense, acquisition costs and expenses, and extraordinary or non-recurring losses or losses from sales of assets, plus (2) any non-cash expense or contra revenue reducing net income, minus (3) any extraordinary or non-recurring gains or gains from asset sales, minus (4) any non-cash income or gains increasing net income with the exception of any straight line rent, and minus (5) an amount equal to the sum of (A) $0.25 multiplied by the aggregate number of square feet of office buildings owned by Guarantor not under construction, plus (B) $0.10 multiplied by the aggregate number of square feet of industrial buildings owned by Guarantor and not under construction, all as determined in accordance with GAAP (or, if not determined in accordance with GAAP, as determined in accordance with industry practices); plus (b) Guarantor's share of EBITDA (using the definition under subsection (a) above) in all unconsolidated joint ventures, without duplication, each as determined by Administrative Agent in its reasonable discretion. For purposes of this definition, nonrecurring items shall be
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deemed to include, without limitation, (w) gains and losses on early extinguishment of Indebtedness, (x) any breakage payments or fees in connection with a Swap, (y) non-cash severance and other non-cash restructuring charges and (z) transaction costs of acquisitions not permitted to be capitalized pursuant to GAAP. As used herein, "Fixed Charges" shall mean the sum of Guarantor's and Guarantor's subsidiaries (without duplication) (A) interest expense (excluding any amortized loan costs relating to loan fees or costs or fees relating to hedging instruments, and amortization related to discounts or premiums on debt), (B) the aggregate amount of scheduled principal payments, excluding balloon payments, and (C) distributions on preferred interests and/or preferred stock.
12.Intentionally Deleted.
13.Notices. Guarantor agrees that all notices, statements, requests, demands and other communications made pursuant to or under this Guaranty must be made in the manner set forth in the Loan Agreement and if sent to Guarantor, to Guarantor’s address listed under its signature(s), below, and if sent to Administrative Agent, to the addresses set forth for Administrative Agent in the Loan Agreement.
14.Entire Agreement; Modification. This Guaranty is the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes and replaces all prior discussions, representations, communications and agreements (oral or written). This Guaranty may not be modified, supplemented, or terminated, nor any provision hereof waived, except by a written instrument signed by the party against whom enforcement thereof is sought, and then only to the extent expressly set forth in such writing.
15.Binding Effect; Joint and Several Obligations. This Guaranty is binding upon Guarantor (subject to the terms and provisions hereof) and inures to the benefit of Administrative Agent, for the benefit of the Lenders, and the respective heirs, executors, legal representatives, successors, and assigns of Guarantor and Administrative Agent, whether by voluntary action of the parties or by operation of law. Guarantor may not delegate or transfer its obligations under this Guaranty. If Guarantor comprises more than one Person, each such Person will be jointly and severally liable hereunder.
16.Unenforceable Provisions. Any provision of this Guaranty which is determined by a court of competent jurisdiction or government body to be invalid, unenforceable or illegal will be ineffective only to the extent of such determination and such determination will not affect the validity, enforceability or legality of any other provision, nor will such determination apply in any circumstance or to any party not controlled by such determination.
17.Due Authorization and Execution. Guarantor has the requisite power and authority to enter into, execute, deliver and carry out this Guaranty and to perform its obligations hereunder and all such actions have been duly authorized by all necessary proceedings. This Guaranty has been duly executed and delivered and constitutes the valid and legally binding obligation of the Guarantor, enforceable in accordance with its terms. The execution, delivery and performance of this Guaranty by the Guarantor will not violate the organizational documents of Guarantor or any material agreement or instrument to which Guarantor is a party or by which it is bound or any Governmental Requirement.
18.Participation. Guarantor acknowledges and agrees to the provisions contained in Sections 10.10 and 10.11 of the Loan Agreement and such sections are incorporated herein by reference. Guarantor further agrees that any Lender may elect, subject to and in accordance with the terms of the Loan Agreement, at any time and from time to time, both before and after the occurrence of an Event of Default to the extent permitted under the Loan Agreement, to sell, assign or encumber all or a portion of the Loan and the Loan Documents, or grant, sell, assign or encumber participations in all or any portion of its rights
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and obligations under the Loan and the Loan Documents, and that the guaranty obligations of Guarantor under the Loan Documents will also apply with respect to any purchaser of the Loan (or any portion thereof), assignee, Lender or participant (subject to Sections 10.10 and 10.11 of the Loan Agreement) without any additional notice to or consent from Guarantor, except as expressly provided under the Loan Agreement. Guarantor hereby acknowledges and agrees that each Lender may disclose any and all information in such Lender’s possession to any Transferee subject to and in accordance with Section 10.10(e) of the Loan Agreement.
19.Duplicate Originals; Counterparts. This Guaranty may be executed in any number of duplicate originals, and each duplicate original will be deemed to be an original. This Guaranty (and each duplicate original) also may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute a fully executed Guaranty even though all signatures do not appear on the same document.
20.Remedies Not Exclusive. Guarantor agrees that the enumeration of Administrative Agent’s rights and remedies set forth in this Guaranty is not intended to be exhaustive and the exercise by Administrative Agent of any right or remedy will not preclude the exercise of any other rights or remedies, all of which will be cumulative and will be in addition to any other right or remedy given hereunder or under any other agreement among the parties to the Loan Documents or which may now or hereafter exist at law or in equity or by suit or otherwise.
21.No Waiver. Guarantor agrees that no failure on the part of Administrative Agent to exercise any of its rights under this Guaranty will be a waiver of such rights or a waiver of any default by Guarantor. Guarantor further agrees that each written waiver will extend only to the specific instance actually recited in such written waiver and will not impair the rights of Administrative Agent in any other respect.
22.Costs. Guarantor agrees to pay all costs and expenses, including reasonable attorneys’ fees (both in-house and outside counsel), incurred by Administrative Agent in enforcing this Guaranty against Guarantor.
23.No Election of Remedies. Guarantor acknowledges that Administrative Agent may, in its sole discretion, elect to enforce this Guaranty for the benefit of itself and the Lenders for the total Guaranteed Obligations or any part thereof against Guarantor without any duty or responsibility to pursue any other person or entity and that such an election by Administrative Agent will not be a defense to any action Administrative Agent may elect to take against Guarantor.
24.Governing Law; Waiver of Jury Trial; Jurisdiction. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR AND ADMINISTRATIVE AGENT HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY AND THE NOTE, AND THIS GUARANTY AND THE NOTE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
GUARANTOR AND ADMINISTRATIVE AGENT, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
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ADVICE OF COMPETENT COUNSEL, (A) SUBMIT TO PERSONAL JURISDICTION IN THE STATE OF ILLINOIS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS GUARANTY, (B) AGREE THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION OVER THE STATE OF ILLINOIS AND (C) SUBMIT TO THE JURISDICTION OF SUCH COURTS. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN WILL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). GUARANTOR FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO GUARANTOR AT THE ADDRESSES FOR NOTICES DESCRIBED IN THIS GUARANTY, AND CONSENTS AND AGREES THAT SUCH SERVICE WILL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN WILL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
ADMINISTRATIVE AGENT AND GUARANTOR, TO THE FULLEST EXTENT NOW OR HEREAFTER PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS GUARANTY OR ANY CONDUCT, ACT OR OMISSION OF ADMINISTRATIVE AGENT OR GUARANTOR, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH ADMINISTRATIVE AGENT OR ANY GUARANTOR, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
25.Intentionally Deleted.
26.Subordination. Any indebtedness of Borrower to Guarantor now or hereafter existing is hereby subordinated to the Loan. Guarantor agrees that, until the Loan has been irrevocably and indefeasibly paid in full, performed and discharged, and the Lenders no longer have any obligations to make Advances, Guarantor will not seek, accept, or retain for Guarantor’s own account, any payment from Borrower on account of such subordinated debt. Any such payments received by Guarantor must be held in trust for Administrative Agent for the benefit of itself and the Lenders and must be paid over to Administrative Agent on account of the Loan without reducing, impairing or releasing the obligations of Guarantor hereunder.
27.Limitation of Liability.
(a)Notwithstanding anything to the contrary contained herein, the maximum liability of the Guarantor under this Guaranty shall not exceed (i) (x) at all times prior to the Determination Date (defined below), the Base Guaranteed Amount (defined below as the same shall be determined from time to time) and (y) upon and at all times following the Determination Date (i.e., following the satisfaction of the Guaranty Cap Reduction Conditions) automatically (and no written instrument from Administrative Agent shall be necessary to effectuate such reduction, provided that Administrative Agent shall confirm the same in writing upon Borrower’s or Guarantor’s written request), the Reduced Guaranteed Amount, plus (ii) to the extent the following are not secured by the Property, all Lender-Provided Swap Obligations relating to the Loan, and any and all present and future Swaps and Lender-Provided Swap Transactions (other than Excluded Swap Obligations), plus (iii) the expenses and fees of legal counsel in connection with any
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collection and/or enforcement relative to this Guaranty. The “Determination Date” means the date upon which the Guaranty Cap Reduction Conditions have been met, provided such Guaranty Cap Reduction Conditions have actually been met.
Notwithstanding the foregoing or anything stated to the contrary in this Guaranty, at all times prior to the Determination Date following Administrative Agent’s determination that the Guaranty Cap Reduction Conditions have been satisfied, under no circumstances whatsoever shall the liability of Guarantor for the Base Guaranteed Amount exceed twenty-five percent (25.0%) of the Aggregate Commitment, so that, for example, if the Aggregate Commitment were $375,000,000.00, the maximum liability arising under clause (i) above would equal $93,750,000.00 under the conditions specified, or if the Aggregate Commitment were reduced to $200,000,000.00, the maximum liability arising under clause (i) above would equal $50,000,000.00 under the conditions specified (in all cases, it being understood that the Aggregate Commitment may never be less than the outstanding principal balance of the Loan)). Upon and at all times following the Determination Date following the satisfaction of the Guaranty Cap Reduction Conditions, liability for the Reduced Guaranty Amount shall be calculated as set forth in Section 27(c) below.
(b)For the purposes of this Guaranty, "Base Guaranteed Amount" shall mean, as the same is determined from time to time and subject to adjustment as set forth hereinabove, an amount equal to twenty-five percent (25.0%) of all principal owing under the Notes (as such principal amount(s) may be borrowed, repaid and re-borrowed pursuant to the terms and conditions of the Loan Agreement), such amount calculated based on the percentage listed in Section 27(a) above of the outstanding principal amount of the Notes as of the date the Notes become due and payable in full (whether at maturity or by acceleration or otherwise) (the "Due Date"). In determining the Base Guaranteed Amount, no payments or recoveries from any source whatsoever (including without limitation payments received from Borrower and proceeds from the foreclosure sales or other liquidation of collateral for the Loan, or any credit bids made by Administrative Agent and Lenders at any foreclosure sales) received by Administrative Agent or Lenders after the Due Date shall be applied to reduce the Base Guaranteed Amount.
(c)For the purposes of this Guaranty, "Reduced Guaranteed Amount" shall mean, as the same is determined from time to time and subject to adjustment as set forth hereinabove, an amount equal to all principal owing under the Revolving Portion of the Loan under the Notes (as such principal amount(s) may be borrowed, repaid and re-borrowed pursuant to the terms and conditions of the Loan Agreement), such amount calculated as of the Due Date. In determining the Reduced Guaranteed Amount, no payments or recoveries from any source whatsoever (including without limitation payments received from Borrower and proceeds from the foreclosure sales or other liquidation of collateral for the Loan, or any credit bids made by Administrative Agent and Lenders at any foreclosure sales) received by Administrative Agent or Lenders after the Due Date shall be applied to reduce the Reduced Guaranteed Amount.
(d)For the purposes of this Guaranty, “Guaranty Cap Reduction Conditions” shall refer to the occurrence of all of the following: (i) Accenture’s paying rent pursuant to the terms of the Accenture Lease, and (a) no monetary or other material event of default has occurred and is continuing thereunder beyond any notice and cure periods, (b) Accenture is not in bankruptcy (unless Accenture has affirmed and assumed its lease obligations in such proceedings); (ii) Borrower has achieved a Debt Service Coverage Ratio of at least 1.25 to 1.00 pursuant to and in accordance with the terms of Section 6.33 of the Loan Agreement; provided, however, the calculation of the Debt Service Coverage Ratio for this clause (ii) shall (a) not factor the Accenture Rent Adjustments into the calculation of Net Operating Income (i.e., the calculation of Net Operating Income, as it relates to the Accenture Lease, shall only include those rents actually collected by Borrower pursuant to the Accenture Lease), and (b) be calculated using the full commitment amount of the Loan; and (iii) Borrower shall have either (a) notified Administrative Agent in writing that clauses (i) through (ii) of this Section 27(d) have been satisfied and Administrative Agent shall have not objected to such determination within ten (10) Business Days of receipt of supporting documentation, or (b) provided
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a Borrower Certification (as defined in the Loan Agreement) certifying Borrower has confirmed that clauses (i) through (ii) of this Section 27(d) have been satisfied and Administrative Agent shall have not objected to such confirmation within ten (10) Business Days of receipt of supporting documentation, and in either case, the effective date of the Reduced Guaranteed Amount shall be “as of” date the Debt Service Coverage Ratio was determined to be satisfied, notwithstanding the notice or Borrower Certification date.
(e)Notwithstanding any other term or provision to the contrary contained herein, Guarantor's maximum liability under this Guaranty shall be reduced only by payments received from Guarantor under this Guaranty following the Due Date from its own funds (and not, as noted above, from liquidation of collateral). Additional advances (such as Protective Advances) made after the Due Date shall (x) at all times prior to the Determination Date, increase the Base Guaranteed Amount by an amount equal to twenty-five percent (25.0%) of the amount advanced (subject to the applicable liability cap set forth in Section 27(a) above) and (y) upon and at all times following the Determination Date following the satisfaction of the Guaranty Cap Reduction Conditions, increase the Reduced Guaranteed Amount on a dollar for dollar basis for the amount advanced.
(f)Guarantor agrees that any indebtedness which remains owing under the Loan Documents from time to time, including all indebtedness that remains owing after the application of payments received from Borrower and the application of proceeds received from the foreclosure of any deed of trust or mortgage (or after application of the credit bid of the Lenders at the foreclosure sale) and other liquidation of the collateral for the indebtedness secured thereby, shall be deemed to be indebtedness guaranteed hereby (subject to the limitation on the Base Guaranteed Amount or Reduced Guaranteed Amount, as applicable, guaranteed hereby as set forth herein and the limitation related to the Aggregate Commitment set forth above) (so that, for example, if following foreclosure and receipt of the foreclosure proceeds, the total principal indebtedness owing to Administrative Agent and Lenders under the Loan Documents is $53,750,000, and the Base Guaranteed Amount or Reduced Guaranteed amount, as applicable, as calculated herein is $53,750,000, the principal amount for which Guarantor would be liable to Administrative Agent and Lenders hereunder is the full $53,750,000), and Guarantor may not claim or contend so long as any such indebtedness remains outstanding that any payments received by Administrative Agent or Lenders from Borrower or otherwise (but expressly excepting any payments or proceeds received by Administrative Agent and Lenders from Guarantor under this Guaranty), or proceeds received by Administrative Agent and Lenders in connection with the liquidation of collateral, shall have reduced or discharged Guarantor's liability or obligations hereunder. Nothing contained in this paragraph shall be deemed to (a) limit or otherwise impair any of the waivers or agreements of Guarantor contained in the preceding or following sections of this Guaranty, (b) require Administrative Agent or Lenders to proceed against Borrower or any collateral before proceeding against Guarantor (any such requirement having been specifically waived), or (c) limit or otherwise impair any right Administrative Agent and Lenders would have in the absence of this paragraph
(g)Administrative Agent shall have the right to apply payments received from Borrower to the Loan in any manner elected by Administrative Agent, even if the manner of application does not reduce at all or to the greatest extent Guarantor's maximum aggregate obligation hereunder for payment of the Guaranteed Obligations.
(h)Within five (5) Business Days following Guarantor’s written request (which requests shall be limited to one request per month), Administrative Agent shall confirm in writing its calculation of the current Base Guaranteed Amount (or the Reduced Guaranteed Amount, as applicable) and the Aggregate Commitment based on information known to Administrative Agent as of the specified date.
(i)The limitations upon Guarantor's liability provided in this Section 27 will apply only to the payment obligations under Sections 2(i) of this Guaranty and not to the other Guaranteed Obligations. In
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addition to Guarantor's Obligations under this Guaranty, Guarantor is undertaking and agreeing to obligations under other guaranties, indemnities and agreements executed by Guarantor with respect to the Loan, none of which will be limited by this Section 27 above. For the avoidance of doubt, nothing herein shall limit or otherwise impair Guarantor’s liability under that certain Recourse Carve-Out Guaranty Agreement of even date herewith executed by Borrower in favor of Administrative Agent.
28.Document Imaging, Electronic Transactions and the UETA. Without notice to or consent of Borrower or Guarantor, Administrative Agent may create electronic images of this Guaranty and the other Loan Documents and destroy paper originals of any such imaged documents. Provided that such images are maintained by or on behalf of Administrative Agent as part of Administrative Agent’s normal business processes, Guarantor agrees that such images have the same legal force and effect as the paper originals, and are enforceable against Guarantor. Furthermore, if applicable, Guarantor agrees that Administrative Agent may convert any Loan Document into a “transferrable record” as such term is defined under, and to the extent permitted by, the UETA, with the image of such instrument in Administrative Agent’s possession constituting an “authoritative copy” under the UETA.
29.Swap Eligibility. Guarantor represents that as of the date of the execution of this Guaranty, and is deemed to represent on each day that Borrower enters into a swap, that Guarantor is an “eligible contract participant” as defined in the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
30.[Intentionally Deleted].
31.Limited Recourse Provision. Notwithstanding anything else stated to the contrary in this Guaranty, none of the constituent members, partners, or any other constituent owners (whether direct or indirect) in Guarantor shall have any liability whatsoever for any of Guarantor's obligations under this Guaranty. For purposes of clarification, in no event shall the above language limit, reduce or otherwise affect Borrower's liability or obligations under the Loan Documents, or Administrative Agent's right to exercise any rights or remedies against any collateral securing the Loan.
32.Addendum. Attached hereto and incorporated into this Guaranty is an Addendum. In the event of any inconsistencies between the terms and conditions of such Addendum and the other terms and conditions of this Guaranty, the terms of the Addendum will control and be binding.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as of the date first set forth above.
GUARANTOR:
KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company
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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer


Notice Address:
c/o KBS Capital Advisors, LLC
800 Newport Center Drive, Suite 700
Newport Beach, CA 92660
Attention: Bryce Lin
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ADDENDUM TO PAYMENT GUARANTY AGREEMENT
BY
KBS REIT PROPERTIES III, LLC
IN FAVOR OF
U.S. BANK NATIONAL ASSOCIATION
This Addendum supplements that certain Payment Guaranty Agreement to which it is attached (including all addenda attached thereto, and all modifications and amendments thereto, the "Guaranty") by KBS REIT Properties III, LLC, a Delaware limited liability company ("Guarantor") in favor of U.S. BANK NATIONAL ASSOCIATION, a national banking association, as administrative agent ("Administrative Agent") for itself as a "Lender" and the other "Lenders" under the Loan Agreement. In the event of any conflict between the provisions of this Addendum, on the one hand, and the Guaranty, on the other hand, the provisions of this Addendum shall prevail and control. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Guaranty.
1.Agreement to Pay. The reference to "Guaranteed Obligations" set forth in clause (iv) of Section 3 of the Guaranty is hereby changed to "obligations of Borrower guaranteed hereunder".
2.Administrative Agent's Rights.
(a)Clause (vi) of Section 9 of the Guaranty is hereby deleted in its entirety and replaced with the following: "(vi) sell, release, surrender, exchange or compromise any security held by Administrative Agent for any of the obligations of Borrower guaranteed hereunder;"
(b)The reference to "Guaranteed Obligations" set forth in the last sentence of Section 9 of the Guaranty is hereby changed to "Obligations".
3.Unsecured Obligations. Notwithstanding anything to the contrary in the Guaranty or in any of the other Loan Documents, the obligations of Guarantor under the Guaranty are not secured by the Security Instrument.
4.Waivers. Without limiting any of the other waivers and provisions set forth in the Guaranty, Guarantor hereby waives:
(a)Any rights of Guarantor of subrogation, reimbursement, indemnification, and contribution against Borrower or any other person or entity, and any other rights and defenses that are or may become available to Guarantor or any other person or entity by reasons of any applicable Laws.
(b)All rights and defenses arising out of any election of remedies by Administrative Agent or Lenders even if that election of remedies, such as a nonjudicial foreclosure with respect to the security for the obligations of Borrower guaranteed hereunder, has destroyed the Guarantor's rights of subrogation and reimbursement against Borrower by the operation of any applicable Laws.
(c)All rights and defenses that Guarantor may have because the Borrower's debt is secured by real property. This means, among other things:
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(i)Administrative Agent and Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrower; and
(ii)If Administrative Agent or Lenders foreclose on any real property collateral pledged by Borrower (x) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and (y) the Administrative Agent and Lenders may collect from the Guarantor even if the Administrative Agent and Lenders, by foreclosing on the real property collateral, has destroyed any right the Guarantor may have to collect from the Borrower.
The foregoing is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have because Borrower's debt is secured by real property.
(d)Any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal, and any and all other suretyship defenses now or hereafter available to Guarantor under applicable law.
(e)Any right Guarantor might otherwise have under applicable Laws or otherwise to have Borrower designate the portion of any indebtedness and obligations to be satisfied in the event that Borrower provides partial satisfaction of such indebtedness and obligations. Guarantor acknowledges and agrees that Borrower may already have agreed with Administrative Agent or Lenders, or may hereafter agree, that in any such event the designation of the portion of the indebtedness or obligation to be satisfied shall, to the extent not expressly made by the terms of the Loan Documents, be made by Administrative Agent or Lenders rather than by Borrower.
(f)Any and all rights or defenses Guarantor may have by reason of protection afforded to the principal with respect to any of the Obligations or to any other guarantor of any of the Obligations with respect to such guarantor's obligations under its guaranty, in either case, pursuant to any antideficiency Laws which may be applicable or other applicable Laws which may limit or discharge the principal's indebtedness or such other guarantor's obligations.
(g)All benefits of any statute of limitations affecting Guarantor's liability under or the enforcement of the Guaranty or any of Borrower's obligations under any of the Loan Documents or any security therefor.
5.Obligations Remaining Outstanding After Payments and Liquidation of Collateral Shall Be That Guaranteed by the Guaranty. Guarantor agrees that any indebtedness or obligations which remain owing under the Loan Documents after the application of payments received from Borrower and the application of proceeds received from the foreclosure of the Security Instrument (or after application of the credit bid of the Administrative Agent or any Lender at the foreclosure sale) and other liquidation of the collateral for the Loan, shall be deemed to be part of the Guaranteed Obligations guaranteed hereby (subject to the terms and conditions of Section 27 above); and Guarantor may not claim or contend so long as any such indebtedness or obligations guaranteed hereby remain outstanding that any payments received by Administrative Agent or Lenders from Borrower or otherwise, or proceeds received by Administrative Agent or Lenders on the liquidation of the collateral for the Loan, shall have reduced or discharged Guarantor's liability or obligations hereunder (except to the extent that Borrower makes a voluntary payment and such payment reduces the outstanding principal amount of the Loan prior to the date the Notes become due and payable in full (on the maturity date, via acceleration or otherwise)). Nothing contained in this Section shall be deemed to (a) limit or otherwise impair any of the waivers or agreements of Guarantor contained in the other Sections of the Guaranty, (b) require Administrative Agent or Lenders to
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proceed against Borrower or any collateral for the Loan before proceeding against Guarantor (any such requirement having been specifically waived), or (c) limit or otherwise impair any rights Administrative Agent and Lenders would have in the absence of this Section.
6.Other Guaranties. The Guaranty is in addition to and independent of (and shall not be limited by) any other guaranty now existing or hereafter given by Guarantor or any other guarantors of Borrower's obligations to Administrative Agent and Lenders.
7.Guarantor Representations. Guarantor represents and warrants to Administrative Agent and Lenders that Guarantor now has and will continue to have full and complete access to any and all information concerning the transactions contemplated by the Loan Documents or referred to therein, the value of the assets owned or to be acquired by Borrower, Borrower's financial status and its ability to pay and perform the Obligations owed to Administrative Agent and Lenders. Guarantor further represents and warrants that Guarantor has reviewed and approved copies of the Loan Documents and is fully informed of the remedies Administrative Agent and Lenders may pursue, with or without notice to Borrower, in the event of an Event of Default under the Note or other Loan Documents. So long as any of the Guaranteed Obligations remains unsatisfied or owing to Administrative Agent or Lenders, Guarantor shall keep fully informed as to all aspects of Borrower's financial condition and the performance of the Obligations.
8.Bankruptcy. So long as any of the Obligations are owing to Administrative Agent and Lenders, Guarantor shall not, without the prior written consent of Administrative Agent, commence or join with any other party in commencing any bankruptcy, reorganization or insolvency proceedings of or against Borrower. Administrative Agent shall have the sole right to accept or reject any plan on behalf of Guarantor proposed in such case and to take any other action which Guarantor would be entitled to take, including, without limitation, the decision to file or not file a claim. Guarantor acknowledges and agrees that any interest on the Obligations that are guaranteed hereunder which accrues after the commencement of any such proceeding (or, if interest on any portion of the Obligations ceases to accrue by operation of law by reason of the commencement of said proceeding, such interest as would have accrued on any such portion of the Obligations if said proceedings had not been commenced) will be included in the Guaranteed Obligations (subject to the limitations set forth in Section 27(a) of this Guaranty, provided, however, that the foregoing shall not in any way limit Guarantor’s obligations under that certain Recourse Carve-Out Guaranty Agreement of even date herewith) because it is the intention of the parties that the Guaranteed Obligations should be determined without regard to any rule or law or order which may relieve Borrower of any portion of its Obligations. Guarantor hereby permits any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person to pay Administrative Agent and Lenders, or allow the claim of Administrative Agent and Lenders in respect of, any such interest accruing after the date on which such proceeding is commenced. Guarantor hereby assigns to Administrative Agent for the benefit of the Lenders Guarantor's right to receive any payments from any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person by way of dividend, adequate protection payment or otherwise. If all or any portion of the obligations of Borrower that are guaranteed hereunder are paid or performed by Borrower, the obligations of Guarantor hereunder shall continue and remain in full force and effect in the event that all or any part of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Administrative Agent or Lenders as a preference, voidable transfer or otherwise in such case irrespective of payment in full of all obligations under the Loan Documents.
9.Understanding of Obligations and Waivers. Guarantor hereby acknowledges that: (i) the obligations undertaken by Guarantor in the Guaranty are complex in nature, (ii) numerous possible defenses to the enforceability of these obligations of Guarantor may presently exist and/or may arise hereafter, and (iii) as part of Administrative Agent's and Lenders' consideration for making the Loan, Administrative Agent and Lenders have specifically bargained for the waiver and relinquishment by Guarantor of all such
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defenses. Given all of the above, Guarantor does hereby represent and confirm to Administrative Agent and Lenders that Guarantor is fully informed regarding, and that Guarantor does thoroughly understand: (A) the nature of all such possible defenses, (B) the circumstances under which such defenses may arise, (C) the benefits which such defenses might confer upon Guarantor, and (D) the legal consequences to Guarantor of waiving such defenses. Guarantor acknowledges that Guarantor makes the Guaranty with the intent that the Guaranty and all of the informed waivers herein shall each and all be fully enforceable by Administrative Agent and Lenders, and that Administrative Agent and Lenders are induced to make the Loan in material reliance upon the presumed full enforceability thereof.
[Remainder of page left intentionally blank.]
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10.No Reliance. Guarantor, by initialing below, expressly represents and warrants that it did not rely on any representation, assurance or agreement, oral or written, not expressly set forth in the Guaranty in reaching its decisions to enter into the Guaranty and that no promises or other representations have been made to Guarantor which conflict with the written terms of the Guaranty. Guarantor represents to Administrative Agent and Lenders that (i) it has read and understands the terms and conditions contained in the Guaranty and the other Loan Documents executed in connection with the Guaranty, (ii) its legal counsel has carefully reviewed all of the Loan Documents (including, without limitation, the Guaranty) and it has received legal advice from counsel of its choice regarding the meaning and legal significance of the Guaranty and all other Loan Documents, (iii) it is satisfied with its legal counsel and the advice received from it, and (iv) it has relied only on its review of the Guaranty and the other Loan Documents and its own legal counsel's advice and representations (and it has not relied on any advice or representations from Administrative Agent or any Lender, or any of Administrative Agent's or any Lender's respective officers, employees, agents or attorneys). No course of prior dealing among the parties, no usage of trade, and no parol or extrinsic evidence of any nature may be used to supplement, modify or vary any of the terms of the Guaranty.
/s/CJS
Guarantor’s Initials

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IN WITNESS WHEREOF, Guarantor caused this Addendum to be executed as of the day and year first written above.
KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company
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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer



[Signatures follow on next page.]

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U.S. BANK NATIONAL ASSOCIATION,
a national banking association, as administrative agent
By: /s/ Chris Coburn
Name: Chris Coburn
Its: SVP
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Exhibit 10.10
RECOURSE CARVE-OUT GUARANTY AGREEMENT
THIS RECOURSE CARVE-OUT GUARANTY AGREEMENT (this “Guaranty”) is made as of the 2nd day of November, 2020, by KBS REIT PROPERTIES III, LLC, a Delaware limited liability company (“Guarantor”), to and for the benefit of U.S. BANK NATIONAL ASSOCIATION, a national banking association, as administrative agent (“Administrative Agent”), for itself as a “Lender” and the other “Lenders” under the Loan Agreement (referred to below).
RECITALS:
A.As more fully provided in that certain Revolving and Term Loan Agreement (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) of even date herewith by and among KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company (“Borrower”), the Lenders party thereto from time to time (collectively, the “Lenders”) and Administrative Agent, the Lenders are prepared to loan to Borrower the maximum aggregate principal amount of $375,000,000.00 (the “Loan”).
B.The Loan is evidenced by one or more promissory notes given by Borrower to the Lenders (as the same may be amended, supplemented, renewed or replaced from time to time, collectively, the “Notes”).
C. Guarantor will benefit directly or indirectly and substantially from the making of the Loan.
D.The execution and delivery of this Guaranty is a condition precedent to Administrative Agent and the Lenders entering into the Loan Agreement and the Lenders’ making of the Loan.
NOW, THEREFORE, to induce Administrative Agent and the Lenders to enter into the Loan Agreement and to induce the Lenders to make the Loan to Borrower and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, Guarantor covenants and agrees as follows:
1.Defined Terms and Certain Rules of Construction.
(a)Unless otherwise expressly defined herein, all capitalized terms herein will have the meanings ascribed to them in the Loan Agreement. Any defined term used in the plural herein refers to all members of the relevant class and any defined term used in the singular refers to any number of the members of the relevant class.
(b)Any reference to any Loan Document or other document includes such document both as originally executed and as it may from time to time be amended, restated, supplemented or modified. References herein to Articles, Sections and Exhibits will be construed as references to this Guaranty unless a different document is named. References to subparagraphs will be construed as references to the same Section in which the reference appears. The term “document” is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms “including” and “include” mean “including (include) without limitation”. The terms “hereof,” “herein” and “hereunder” and words of similar import when used in this Guaranty refers to this Guaranty as a whole and not to any particular provision of this Guaranty.
(c)All exhibits to this Guaranty, as now existing and as the same may from time to time be modified, are incorporated herein by this reference.
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2.Indemnity and Guaranty.
(a)In addition to any and all guarantees delivered by Guarantor or any of them to Administrative Agent, Guarantor absolutely, unconditionally and irrevocably guarantees to Administrative Agent for the benefit of Administrative Agent and the Lenders and becomes surety for, and agrees to pay, protect, defend and save Administrative Agent and the Lenders harmless from and against, and indemnifies Administrative Agent and the Lenders from and against, any and all liabilities, obligations, losses, damages, costs and expenses (including reasonable attorneys' fees), causes of action, suits, claims, demands and judgments of any nature or description whatsoever (collectively, "Costs") which may at any time be imposed upon, incurred or suffered by or awarded against Administrative Agent or any Lender as a result of one or more of the following:
(i)the intentional misapplication or misappropriation by Borrower of any funds derived from the Project, including the misapplication or misappropriation by Borrower of rent, security deposits, insurance proceeds, condemnation awards, or other income arising with respect to the Project;
(ii)Borrower's intentional commission of physical waste with respect to the Project;
(iii)the fraud or intentional misrepresentation by Borrower or Guarantor made in or in connection with the Loan Documents or the Loan; or
(iv)Borrower's voluntary or collusive filing, or the filing against Borrower by any party, of any proceeding for relief under any federal or state bankruptcy, insolvency or receivership laws or any assignment for the benefit of creditors made by Borrower not dismissed within ninety (90) days.
(b)Guarantor unconditionally and irrevocably guarantees to Administrative Agent for the benefit of itself and the Lenders, in addition to the payment of the Costs, one hundred percent (100%) of all amounts owing under the Indemnity by Borrower if (and only if) an Environmental Insurance Policy (as defined in the Loan Agreement) is not then in place or, if not then in place, does not otherwise cover Borrower for claims relating to environmental matters when and if demand is made by Administrative Agent under the Indemnity (i.e. Guarantor shall have no liability under this Guaranty for amounts owing under the Indemnity so long as the Environmental Insurance Policy covering the Project is in place or otherwise covers the liability of Borrower for environmental matters at the time demand is made by Administrative Agent to Borrower under the Indemnity, whether or not the claim relating to any such environmental matter is a covered claim under such Environmental Insurance Policy (the "Environmental Liability").
This is a guaranty of payment and performance and not of collection. The liability of Guarantor under this Guaranty is direct and immediate and not conditional or contingent upon the pursuit of any remedies against Borrower or any other person (including other guarantors, if any), nor against the collateral for the Loan. Guarantor waives any right to require that an action be brought against Borrower or any other Person or to require that resort be had to any collateral for the Loan or to any balance of any deposit account or credit on the books of Administrative Agent or any Lender in favor of Borrower or any other Person. In the event, on account of the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, Borrower is relieved of or fails to incur any debt, obligation or liability as provided in the Loan Documents, Guarantor will nevertheless be fully liable for the Costs and Environmental Liability. If the Costs and/or Environmental Liability are partially paid or
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discharged by reason of the exercise of any of the remedies available to Administrative Agent and/or the Required Lenders, this Guaranty will nevertheless remain in full force and effect, and Guarantor will remain liable for all remaining Costs and/or Environmental Liability, even though any rights which Guarantor may have against Borrower may be destroyed or diminished by the exercise of any such remedy.
3.Agreement to Pay. Guarantor agrees to pay, upon written demand by Administrative Agent, the Costs and Environmental Liability, irrespective of whether any one or more of the following events have occurred: (i) Administrative Agent has made any demand on Borrower other than any notice specifically required by the Loan Documents; (ii) Administrative Agent or any Lender has taken any action of any nature against Borrower; (iii) Administrative Agent or any Lender has pursued any rights which it has against any other Person who may be liable for any of the Costs and/or Environmental Liability; (iv) Administrative Agent or any Lender holds or has resorted to any security for the Costs and/or Environmental Liability; or (v) Administrative Agent or any Lender has invoked any other remedy or right it has available with respect to the Costs and/or Environmental Liability. The liability of Guarantor as surety and guarantor of the Costs and Environmental Liability is unconditional. Guarantor therefore agrees to pay the Costs and Environmental Liability even if any of the Loan Documents or any part thereof are for any reason invalid or unenforceable.
4.Rescission/Reinstatement of Obligations. If at any time all or any part of any payment made by Guarantor or received by Administrative Agent from Guarantor under or with respect to this Guaranty is or must be rescinded or returned for any reason whatsoever (including the insolvency, bankruptcy or reorganization of Guarantor or Borrower), then the obligations of Guarantor hereunder will, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment made by Guarantor, or receipt of payment by Administrative Agent, and the obligations of Guarantor hereunder will continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment by Guarantor had never been made.
5.No Other Agreement, Defense. Guarantor warrants to Administrative Agent that: (i) no other agreement, representation or special condition exists between Guarantor, and any Lenders and/or Administrative Agent regarding the liability of Guarantor hereunder, nor does any understanding exist between Guarantor, and any Lenders and/or Administrative Agent that the obligations of Guarantor hereunder are or will be other than as set forth herein; and (ii) as of the date hereof, Guarantor has no defense whatsoever to any action or proceeding that may be brought to enforce this Guaranty.
6.No Right of Subrogation. Unless and until all Obligations (as such term is defined in the Loan Agreement) of Borrower under the Loan Documents have been irrevocably and indefeasibly paid in full, performed and discharged, and the Lenders no longer have any obligation to make Advances, Guarantor waives and agrees not to enforce any claim, right or remedy which Guarantor may now have or hereafter acquires against the Borrower that arises hereunder and/or from the payment or performance by Guarantor of the obligations guaranteed hereunder, whether or not any such claim, right or remedy arises in equity, under contract, by statute or otherwise, including: (i) any right of Guarantor to be subrogated in whole or in part to any claim, right or remedy of Administrative Agent or any Lender; (ii) any claim, right or remedy of reimbursement, exoneration, contribution or indemnification from the Borrower or participation in any claim, right or remedy of Administrative Agent or any Lender against the Borrower, any security which Administrative Agent or any Lender now has or hereafter acquires; and (iii) any right to require the marshalling of assets of the Borrower. Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Loan Agreement and that the waivers set forth in this Paragraph are knowingly made in contemplation of such benefits.
7.Waiver of Notice. Guarantor waives any and all notice (other than as specifically set
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forth herein) with respect to: (i) acceptance by Administrative Agent of this Guaranty or any of the Loan Documents; and (ii) the provisions of any of the Loan Documents or any other instrument or agreement relating to the obligations guaranteed hereunder; and (iii) any default in connection with the obligations guaranteed hereunder.
8.Waiver of Presentment, Etc. Guarantor waives any presentment, demand, notice of dishonor or nonpayment, protest and notice of protest in connection with the Costs and/or Environmental Liability except as specifically set forth herein or in the Loan Documents.
9.Administrative Agent’s Rights. Guarantor waives any defense hereunder based on any claim that Administrative Agent or any Lender has done any of the following, and agrees that any of the following may occur from time to time and, without notice to Guarantor and without adversely affecting the validity or enforceability of this Guaranty: (i) release, surrender, exchange, compromise or settle the obligations guaranteed hereunder or any portion thereof; (ii) change, renew, or waive the terms of the obligations guaranteed hereunder or any portion thereof; (iii) change, renew, or waive the terms, including the rate of interest charged to the Borrower, of any note, instrument, or agreement relating to the obligations guaranteed hereunder or any portion thereof; (iv) grant any extension or indulgence with respect to the payment or performance of the obligations guaranteed hereunder or any part thereof; (v) enter into any agreement of forbearance with respect to the obligations guaranteed hereunder, or any part thereof; (vi) sell, release, surrender, exchange or compromise any security held by Administrative Agent for any of the obligations guaranteed hereunder; (vii) release any person or entity that is a guarantor or surety or who has agreed to purchase the obligations guaranteed hereunder or any portion thereof; (viii) release, surrender, exchange or compromise any security or lien held by Administrative Agent for the liabilities of any person or entity that is a guarantor or surety for the obligations guaranteed hereunder or any portion thereof; and (ix) settle, release, adjust or compromise any claim against the Borrower or any other person secondarily or otherwise liable, including but not limited to any other guarantors or sureties of the obligations guaranteed hereunder. Guarantor agrees any of the above may occur from time to time and without giving any notice to Guarantor and that Guarantor will remain liable for full payment and performance of the obligations guaranteed hereunder. Guarantor further waives any defense based on a claim or defense of Borrower, and waives any right to require Administrative Agent or any Lender to proceed against Borrower, proceed against or exhaust any security for the obligations guaranteed hereunder or pursue any other remedy in Administrative Agent’s or any Lender’s power whatsoever.
10.Event of Default. Without limiting anything set forth in Section 8.1 of the Loan Agreement, including without limitation Sections 8.1(d) and (e), it will be an Event of Default under the Loan Documents if Guarantor fails to pay any sums as required pursuant to the terms of this Guaranty or in any other document provided in relation hereto.
11.Covenants. Guarantor covenants and agrees, from the date hereof and until the obligations guaranteed hereunder have been irrevocably and indefeasibly paid in full, performed and discharged, and the Lenders no longer have any obligation to make Advances, to:
(a)duly pay and discharge all liabilities to which it is subject or which are asserted against it, prior to the date when any fine, late charge or other penalty for late payment may be imposed, except to the extent that such liabilities would not reasonably be expected to result in a Material Adverse Change on Guarantor;
(b)cause any indebtedness between or among Guarantor and any other surety or guarantor of the Costs or Environmental Liability to be subordinated to the Loan;
(c)furnish Administrative Agent with the financial statements and other information
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required to be provided by or on behalf of Guarantor under Section 6.15 of the Loan Agreement within the time periods provided for in the Loan Agreement together with such additional information as Administrative Agent shall reasonably request (not more than once per month) regarding Guarantor, within thirty (30) days (or such reasonably necessary time period as may be required by Guarantor) after Administrative Agent's written request therefor (including, when applicable, covenant compliance certificates from Guarantor in form and substance satisfactory to Administrative Agent with respect to Guarantor's financial covenants set forth herein);
(d)intentionally deleted;
(e)comply with each of the following financial covenants starting with the calendar quarter ending on December 31, 2020, and thereafter measured as of the end of each calendar quarter that occurs during the term of the Loan (i.e., as of each March 31, June 30, September 30, and December 31 during the term of the Loan):
(i)not permit its Leverage Ratio to be greater than 0.65 to 1.0. As used herein, (i) "Leverage Ratio" shall mean, as of the date of calculation, Total Liabilities to Total Asset Value, (ii) "Total Liabilities" shall mean, as of the date of calculation, all debt for borrowed money of Guarantor and its subsidiaries (including guaranties), without duplication, determined on a consolidated basis for the applicable measuring period in accordance with GAAP (but excluding any premiums or discounts on debt), and (iii) "Total Asset Value" shall mean, as of the date of calculation, the sum of (a) the total Market Value (defined below) of all properties owned by Guarantor (including the Property), plus (b) all unencumbered cash and cash equivalents, including any holdings of shares of Prime US REIT (SGX Ticker: OXMU), plus (c) the book value of notes receivable and other tangible assets. For purposes of this Guaranty, "Market Value" shall mean (A) at all times prior to the REIT Conversion (as such term is defined in the Loan Agreement), as of the date of calculation, the total market value of all properties owned by Guarantor, which shall mean (i) for the Property, as of the date of calculation, the capped value of the Property based on (x) the Annualized Net Operating Income as calculated for the immediately preceding calendar quarter pursuant to Section 6.33 of the Loan Agreement (including, for the avoidance of doubt, the Accenture Rent Adjustments) and (y) the cap rate from the most recent Appraisal provided to and approved by Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed) (with options to re-appraise at the request and expense of Borrower or Guarantor once in any six (6) month period), and (ii) with respect to the other real properties owned by Guarantor, (1) for all properties owned for two full quarterly reporting periods, the capped value of real estate assets (net operating income for the applicable reporting periods, annualized and capped at 6.75%, provided that for any property operating at a negative net operating income, Market Value for that asset shall be assumed to be $0), (2) for all real properties owned by Guarantor for less than two full quarterly reporting periods, the undepreciated cost basis of such real property, (3) at Borrower’s option, for all real properties operating at an occupancy of less than 85%, the “as-is” appraised value of such real property pursuant to the most recent Appraisal delivered to Administrative Agent and approved by Administrative Agent in its reasonable discretion (unless (x) such Appraisal is dated more than twelve (12) months prior to the date of calculation or (y) such Appraisal has an “as-is” appraised value based on a stabilization date that has not passed, in which case Guarantor shall deliver to Administrative Agent a new Appraisal acceptable to Administrative Agent in its reasonable discretion at Guarantor’s sole and expense), plus any additional leasing and capital expenditure costs incurred since the date of such Appraisal, or (4) for any property under development (until such time that is twelve (12) months beyond such property’s final completion date), the current cost basis in such property; or (B) at any time after the REIT Conversion, as of the date of calculation, the market value of all properties owned by Guarantor, such market value to be based on the REIT’s ongoing valuation process, which valuation process shall be approved by
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Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed).
(ii)The Net Worth of Guarantor shall not be less than $500,000,000. As used herein, "Net Worth" shall mean an amount equal to the Total Asset Value less Total Liabilities, without duplication; and
(iii)Guarantor shall not permit the ratio of EBITDA to Fixed Charges for the preceding four trailing consecutive fiscal quarters to be less than 1.50 to 1.0. As used herein, "EBITDA" shall mean an amount equal to (a) the net income as defined by GAAP for Guarantor and its subsidiaries, without duplication, on a consolidated basis for the applicable measuring period, plus (1) interest expense, income taxes, depreciation and amortization expense, acquisition costs and expenses, and extraordinary or non-recurring losses or losses from sales of assets, plus (2) any non-cash expense or contra revenue reducing net income, minus (3) any extraordinary or non-recurring gains or gains from asset sales, minus (4) any non-cash income or gains increasing net income with the exception of any straight line rent, and minus (5) an amount equal to the sum of (A) $0.25 multiplied by the aggregate number of square feet of office buildings owned by Guarantor not under construction, plus (B) $0.10 multiplied by the aggregate number of square feet of industrial buildings owned by Guarantor and not under construction, all as determined in accordance with GAAP (or, if not determined in accordance with GAAP, as determined in accordance with industry practices); plus (b) Guarantor's share of EBITDA (using the definition under subsection (a) above) in all unconsolidated joint ventures, without duplication, each as determined by Administrative Agent in its reasonable discretion. For purposes of this definition, nonrecurring items shall be deemed to include, without limitation, (w) gains and losses on early extinguishment of Indebtedness, (x) any breakage payments or fees in connection with a Swap, (y) non-cash severance and other non-cash restructuring charges and (z) transaction costs of acquisitions not permitted to be capitalized pursuant to GAAP. As used herein, "Fixed Charges" shall mean the sum of Guarantor's and Guarantor's subsidiaries (without duplication) (A) interest expense (excluding any amortized loan costs relating to loan fees or costs or fees relating to hedging instruments, and amortization related to discounts or premiums on debt), (B) the aggregate amount of scheduled principal payments, excluding balloon payments, and (C) distributions on preferred interests and/or preferred stock.
12.Intentionally Deleted.
13.Notices. Guarantor agrees that all notices, statements, requests, demands and other communications made pursuant to or under this Guaranty must be made in the manner set forth in the Loan Agreement and if sent to Guarantor, to Guarantor’s address listed under its signature(s), below, and if sent to Administrative Agent, to the addresses set forth for Administrative Agent in the Loan Agreement.
14.Entire Agreement; Modification. This Guaranty is the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes and replaces all prior discussions, representations, communications and agreements (oral or written). This Guaranty may not be modified, supplemented, or terminated, nor any provision hereof waived, except by a written instrument signed by the party against whom enforcement thereof is sought, and then only to the extent expressly set forth in such writing.
15.Binding Effect; Joint and Several Obligations. This Guaranty is binding upon Guarantor (subject to the terms and provisions hereof) and inures to the benefit of Administrative Agent, for the benefit of the Lenders, and the respective heirs, executors, legal representatives, successors, and
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assigns of Guarantor and Administrative Agent, whether by voluntary action of the parties or by operation of law. Guarantor may not delegate or transfer its obligations under this Guaranty. If Guarantor comprises more than one Person, each such Person will be jointly and severally liable hereunder.
16.Unenforceable Provisions. Any provision of this Guaranty which is determined by a court of competent jurisdiction or government body to be invalid, unenforceable or illegal will be ineffective only to the extent of such determination and such determination will not affect the validity, enforceability or legality of any other provision, nor will such determination apply in any circumstance or to any party not controlled by such determination.
17.Due Authorization and Execution. Guarantor has the requisite power and authority to enter into, execute, deliver and carry out this Guaranty and to perform its obligations hereunder and all such actions have been duly authorized by all necessary proceedings. This Guaranty has been duly executed and delivered and constitutes the valid and legally binding obligation of the Guarantor, enforceable in accordance with its terms. The execution, delivery and performance of this Guaranty by the Guarantor will not violate the organizational documents of Guarantor or any material agreement or instrument to which Guarantor is a party or by which it is bound or any Governmental Requirement.
18.Participation. Guarantor acknowledges and agrees to the provisions contained in Sections 10.10 and 10.11 of the Loan Agreement and such sections are incorporated herein by reference. Guarantor further agrees that any Lender may elect, subject to and in accordance with the terms of the Loan Agreement, at any time and from time to time, both before and after the occurrence of an Event of Default to the extent permitted under the Loan Agreement, to sell, assign or encumber all or a portion of the Loan and the Loan Documents, or grant, sell, assign or encumber participations in all or any portion of its rights and obligations under the Loan and the Loan Documents, and that the guaranty obligations of Guarantor under the Loan Documents will also apply with respect to any purchaser of the Loan (or any portion thereof), assignee, Lender or participant (subject to Sections 10.10 and 10.11 of the Loan Agreement) without any additional notice to or consent from Guarantor, except as expressly provided under the Loan Agreement. Guarantor hereby acknowledges and agrees that each Lender may disclose any and all information in such Lender’s possession to any Transferee subject to and in accordance with Section 10.10(e) of the Loan Agreement.
19.Duplicate Originals; Counterparts. This Guaranty may be executed in any number of duplicate originals, and each duplicate original will be deemed to be an original. This Guaranty (and each duplicate original) also may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute a fully executed Guaranty even though all signatures do not appear on the same document.
20.Remedies Not Exclusive. Guarantor agrees that the enumeration of Administrative Agent’s rights and remedies set forth in this Guaranty is not intended to be exhaustive and the exercise by Administrative Agent of any right or remedy will not preclude the exercise of any other rights or remedies, all of which will be cumulative and will be in addition to any other right or remedy given hereunder or under any other agreement among the parties to the Loan Documents or which may now or hereafter exist at law or in equity or by suit or otherwise.
21.No Waiver. Guarantor agrees that no failure on the part of Administrative Agent to exercise any of its rights under this Guaranty will be a waiver of such rights or a waiver of any default by Guarantor. Guarantor further agrees that each written waiver will extend only to the specific instance actually recited in such written waiver and will not impair the rights of Administrative Agent in any other respect.
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22.Costs. Guarantor agrees to pay all costs and expenses, including reasonable attorneys’ fees (both in-house and outside counsel), incurred by Administrative Agent in enforcing this Guaranty against Guarantor.
23.No Election of Remedies. Guarantor acknowledges that Administrative Agent may, in its sole discretion, elect to enforce this Guaranty for the benefit of itself and the Lenders for the total amount of the obligations guaranteed hereunder or any part thereof against Guarantor without any duty or responsibility to pursue any other person or entity and that such an election by Administrative Agent will not be a defense to any action Administrative Agent may elect to take against Guarantor.
24.Governing Law; Waiver of Jury Trial; Jurisdiction. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR AND Administrative Agent HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY AND THE NOTE, AND THIS GUARANTY AND THE NOTE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
GUARANTOR AND ADMINISTRATIVE AGENT, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMIT TO PERSONAL JURISDICTION IN THE STATE OF ILLINOIS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS GUARANTY, (B) AGREE THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION OVER THE STATE OF ILLINOIS, AND (C) SUBMIT TO THE JURISDICTION OF SUCH COURTS. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN WILL AFFECT THE RIGHT OF Administrative Agent TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). GUARANTOR FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO GUARANTOR AT THE ADDRESSES FOR NOTICES DESCRIBED IN THIS GUARANTY, AND CONSENTS AND AGREES THAT SUCH SERVICE WILL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN WILL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
ADMINISTRATIVE AGENT AND GUARANTOR, TO THE FULLEST EXTENT NOW OR HEREAFTER PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS GUARANTY OR ANY CONDUCT, ACT OR OMISSION OF ADMINISTRATIVE AGENT OR GUARANTOR, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH
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ADMINISTRATIVE AGENT OR ANY GUARANTOR, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
25.Subordination. Any indebtedness of Borrower to Guarantor now or hereafter existing is hereby subordinated to the Loan. Guarantor agrees that, until the Loan has been irrevocably and indefeasibly paid in full, performed and discharged, and the Lenders no longer have any obligation to make Advances, Guarantor will not seek, accept, or retain for Guarantor’s own account, any payment from Borrower on account of such subordinated debt. Any such payments received by Guarantor must be held in trust for Administrative Agent, for the benefit of itself and the Lenders, and must be paid over to Administrative Agent on account of the Loan without reducing, impairing or releasing the obligations of Guarantor hereunder.
26.Document Imaging, Electronic Transactions and the UETA. Without notice to or consent of Borrower or Guarantor, Administrative Agent may create electronic images of this Guaranty and the other Loan Documents and destroy paper originals of any such imaged documents. Provided that such images are maintained by or on behalf of Administrative Agent as part of Administrative Agent’s normal business processes, Guarantor agrees that such images have the same legal force and effect as the paper originals, and are enforceable against Guarantor. Furthermore, if applicable, Guarantor agrees that Administrative Agent may convert any Loan Document into a “transferrable record” as such term is defined under, and to the extent permitted by, the UETA, with the image of such instrument in Administrative Agent’s possession constituting an “authoritative copy” under the UETA.
27.Swap Eligibility. Guarantor represents that as of the date of the execution of this Guaranty, and is deemed to represent on each day that Borrower enters into a swap, that Guarantor is an “eligible contract participant” as defined in the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
28.Intentionally Omitted.
29.Limited Recourse Provision. Notwithstanding anything else stated to the contrary in this Guaranty, none of the constituent members, partners, or any other constituent owners (whether direct or indirect) in Guarantor shall have any liability whatsoever for any of Guarantor's obligations under this Guaranty. For purposes of clarification, in no event shall the above language limit, reduce or otherwise affect Borrower's liability or obligations under the Loan Documents, or Administrative Agent's right to exercise any rights or remedies against any collateral securing the Loan
30.Environmental Liability. Notwithstanding anything stated to the contrary in this Guaranty, in the event that (i) Administrative Agent and the Lenders have received Non-Contestable payment in full of all of the all of the Obligations, including but not limited to repayment in full of the Notes, but excluding any of the Obligations which might arise in the future (but as to which no claim has then arisen at the time of such Non-Contestable payment in full of the Obligations) under the provisions of the Indemnity or (ii) Administrative Agent or its nominee or any third party takes record title to the Project, or any part thereof, following the exercise of Administrative Agent's rights and remedies under the Loan Documents, Guarantor shall nonetheless have the right to terminate its continuing liability under Section 2(b) of this Guaranty with respect to Borrower's obligations under the Indemnity (and only as to such obligations), upon fulfillment of each of the following conditions to the reasonable satisfaction of Administrative Agent:
(a)Guarantor or Borrower shall have delivered to Administrative Agent a new environmental insurance policy which insures Administrative Agent (on behalf of Lenders) ("New Environmental Insurance Policy") as to the Project and which:
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(i)is comparable to the existing Environmental Insurance Policy for the Project approved by Administrative Agent except the policy limits shall be at least $5,000,000 for each occurrence and in the aggregate with a retention of no greater than $100,000; and
(ii)is issued by the same company as the existing Environmental Insurance Policy or a replacement company with an AM Best's Rating equivalent or better than A‑ (Excellent)/IX; and
(b)Borrower shall maintain the Project as a covered location on such New Environmental Insurance Policy for a period of no less than three (3) years from the date the Loan is repaid or the Project is acquired, as applicable, as set forth above; and
(c)Administrative Agent shall have received evidence that all premiums for three (3) years coverage under such New Environmental Insurance Policy have been prepaid in full.
Such termination of Guarantor's liability under Section 2(b) of this Guaranty with respect to Borrowers' obligations under the Indemnity shall become effective only upon the delivery by Administrative Agent to Guarantor of a specific written acknowledgment of the satisfaction of all of the foregoing conditions and the termination of such obligations, which acknowledgement Administrative Agent agrees to provide unless any of the conditions to such termination have not been satisfied. This Section 29 shall under no circumstance be interpreted to terminate or limit any of Guarantor's liabilities in Section 2 of this Guaranty except to the extent such liabilities relate to Borrower's obligations under the Indemnity.
(d)Notwithstanding anything stated to the contrary in this Guaranty, in the event that Borrower, as Indemnitor (as defined in the Indemnity), successfully exercises its right to terminate its continuing liability under the Indemnity pursuant to and in accordance with the terms and conditions of Section 4 thereof, Guarantor's liability under Section 2(b) of this Guaranty with respect to its guaranty of Borrower's obligations under the Indemnity (and only as to such obligations) shall automatically terminate.
For the purposes of this Section 30, the term "Non-Contestable" shall mean the receipt of payment of the Notes or other satisfaction of all of the Obligations and the expiration of all periods of time within which a claim for the recovery of a preferential payment, or fraudulent conveyance, or fraudulent transfer, in respect of payments received by Administrative Agent or any Lender as to the Obligations could be filed or asserted with (i) no such claim having been filed or asserted, or (ii) if so filed or asserted, the final, non-appealable decision of a court of competent jurisdiction denying the claim or assertion.
31.Addendum. Attached hereto and incorporated into this Guaranty is an Addendum. In the event of any inconsistencies between the terms and conditions of such Addendum and the other terms and conditions of this Guaranty, the terms of the Addendum will control and be binding.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as of the date first set forth above.
GUARANTOR:
KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company
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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer


Notice Address:
c/o KBS Capital Advisors, LLC
800 Newport Center Drive, Suite 700
Newport Beach, CA 92660
Attention: Bryce Lin
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ADDENDUM TO RECOURSE CARVE-OUT GUARANTY AGREEMENT
BY
KBS REIT PROPERTIES III, LLC
IN FAVOR OF
U.S. BANK NATIONAL ASSOCIATION
This Addendum supplements that certain Recourse Carve-Out Guaranty Agreement to which it is attached (including all addenda attached thereto, and all modifications and amendments thereto, the "Guaranty") by KBS REIT Properties III, LLC, a Delaware limited liability company ("Guarantor") in favor of U.S. BANK NATIONAL ASSOCIATION, a national banking association, as administrative agent ("Administrative Agent") for itself as a "Lender" and the other "Lenders" under the Loan Agreement. In the event of any conflict between the provisions of this Addendum, on the one hand, and the Guaranty, on the other hand, the provisions of this Addendum shall prevail and control. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Guaranty.
1.Agreement to Pay. The reference to "Costs and Environmental Liability" set forth in clause (iv) of Section 3 of the Guaranty is hereby changed to "obligations of Borrower guaranteed hereunder".
2.Administrative Agent's Rights.
(a)Clause (vi) of Section 9 of the Guaranty is hereby deleted in its entirety and replaced with the following: "(vi) sell, release, surrender, exchange or compromise any security held by Administrative Agent for any of the obligations of Borrower guaranteed hereunder;"
(b)The last sentence of Section 9 of the Guaranty is hereby deleted in its entirety and replaced with the following: "Guarantor further waives any defense based on a claim or defense of Borrower, and waives any right to require Administrative Agent or any Lender to proceed against Borrower, proceed against or exhaust any security for the obligations of Borrower guaranteed hereunder or pursue any other remedy in Administrative Agent's or Lenders' power whatsoever".
3.Unsecured Obligations. Notwithstanding anything to the contrary in the Guaranty or in any of the other Loan Documents, the obligations of Guarantor under the Guaranty are not secured by the Security Instrument.
4.Waivers. Without limiting any of the other waivers and provisions set forth in the Guaranty, Guarantor hereby waives:
(a)Any rights of Guarantor of subrogation, reimbursement, indemnification, and contribution against Borrower or any other person or entity, and any other rights and defenses that are or may become available to Guarantor or any other person or entity by reasons of any applicable Laws.
(b)All rights and defenses arising out of any election of remedies by Administrative Agent or Lenders even if that election of remedies, such as a nonjudicial foreclosure with respect to the security for the obligations of Borrower guaranteed hereunder, has destroyed the Guarantor's rights of subrogation and reimbursement against Borrower by the operation of any applicable Laws.
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(c)All rights and defenses that Guarantor may have because the Borrower's debt is secured by real property. This means, among other things:
(i)Administrative Agent and Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrower; and
(ii)If Administrative Agent or Lenders foreclose on any real property collateral pledged by Borrower (x) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and (y) the Administrative Agent and Lenders may collect from the Guarantor even if the Administrative Agent and Lenders, by foreclosing on the real property collateral, has destroyed any right the Guarantor may have to collect from the Borrower.
The foregoing is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have because Borrower's debt is secured by real property.
(d)Any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal, and any and all other suretyship defenses now or hereafter available to Guarantor under applicable law.
(e)Any right Guarantor might otherwise have under applicable Laws or otherwise to have Borrower designate the portion of any indebtedness and obligations to be satisfied in the event that Borrower provides partial satisfaction of such indebtedness and obligations. Guarantor acknowledges and agrees that Borrower may already have agreed with Administrative Agent or Lenders, or may hereafter agree, that in any such event the designation of the portion of the indebtedness or obligation to be satisfied shall, to the extent not expressly made by the terms of the Loan Documents, be made by Administrative Agent or Lenders rather than by Borrower.
(f)Any and all rights or defenses Guarantor may have by reason of protection afforded to the principal with respect to any of the Obligations or to any other guarantor of any of the Obligations with respect to such guarantor's obligations under its guaranty, in either case, pursuant to any antideficiency Laws which may be applicable or other applicable Laws which may limit or discharge the principal's indebtedness or such other guarantor's obligations.
(g)All benefits of any statute of limitations affecting Guarantor's liability under or the enforcement of the Guaranty or any of Borrower's obligations under any of the Loan Documents or any security therefor.
5.Obligations Remaining Outstanding After Payments and Liquidation of Collateral Shall Be That Guaranteed Hereby. Guarantor agrees that certain amounts, costs and expenses may remain owing after the application of payments received from Borrower and the application of proceeds received from the foreclosure of the Security Instrument (or after application of the credit bid of the Administrative Agent or any Lender at the foreclosure sale) and other liquidation of the collateral for the Loan, shall be deemed to be part of the obligations guaranteed hereunder; and Guarantor may not claim or contend so long as any such amounts, costs and expenses guaranteed hereby remain outstanding that any payments received by Administrative Agent or Lenders from Borrower or otherwise, or proceeds received by Administrative Agent or Lenders on the liquidation of the collateral for the Loan, shall have reduced or discharged Guarantor's liability or obligations hereunder. Nothing contained in this Section shall be deemed to (a) limit or otherwise impair any of the waivers or agreements of Guarantor contained in the other Sections of the Guaranty, (b) require Administrative Agent or Lenders to proceed against Borrower or any collateral for the Loan before proceeding against Guarantor (any such requirement having been
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specifically waived), or (c) limit or otherwise impair any rights Administrative Agent and Lenders would have in the absence of this Section.
6.Other Guaranties. The Guaranty is in addition to and independent of (and shall not be limited by) any other guaranty now existing or hereafter given by Guarantor or any other guarantors of Borrower's obligations to Administrative Agent and Lenders.
7.Guarantor Representations. Guarantor represents and warrants to Administrative Agent and Lenders that Guarantor now has and will continue to have full and complete access to any and all information concerning the transactions contemplated by the Loan Documents or referred to therein, the value of the assets owned or to be acquired by Borrower, Borrower's financial status and its ability to pay and perform its obligations to Administrative Agent and Lenders. Guarantor further represents and warrants that Guarantor has reviewed and approved copies of the Loan Documents and is fully informed of the remedies Administrative Agent and Lenders may pursue, with or without notice to Borrower, in the event of an Event of Default under the Note or other Loan Documents. So long as any of the obligations guaranteed hereunder remain unsatisfied or owing to Administrative Agent or Lenders, Guarantor shall keep fully informed as to all aspects of Borrower's financial condition and the performance of the obligations of Borrower to Administrative Agent and Lenders.
8.Bankruptcy. So long as any of Borrower's obligations are owing to Administrative Agent and Lenders, Guarantor shall not, without the prior written consent of Administrative Agent, commence or join with any other party in commencing any bankruptcy, reorganization or insolvency proceedings of or against Borrower. Administrative Agent shall have the sole right to accept or reject any plan on behalf of Guarantor proposed in such case and to take any other action which Guarantor would be entitled to take, including, without limitation, the decision to file or not file a claim. Guarantor acknowledges and agrees that any interest on the obligations of Borrower to Administrative Agent and Lenders that are guaranteed hereunder which accrues after the commencement of any such proceeding (or, if interest on any portion of the obligations of Borrower to Administrative Agent and Lenders ceases to accrue by operation of law by reason of the commencement of said proceeding, such interest as would have accrued on any such portion of the obligations of Borrower to Administrative Agent and Lenders if said proceedings had not been commenced) will be included in the obligations guaranteed hereunder because it is the intention of the parties that the obligations guaranteed hereunder should be determined without regard to any rule or law or order which may relieve Borrower of any portion of its obligations. Guarantor hereby permits any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person to pay Administrative Agent and Lenders, or allow the claim of Administrative Agent and Lenders in respect of, any such interest accruing after the date on which such proceeding is commenced. Guarantor hereby assigns to Administrative Agent for the benefit of the Lenders Guarantor's right to receive any payments from any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person by way of dividend, adequate protection payment or otherwise. If all or any portion of the obligations of Borrower that are guaranteed hereunder are paid or performed by Borrower, the obligations of Guarantor hereunder shall continue and remain in full force and effect in the event that all or any part of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Administrative Agent or Lenders as a preference, voidable transfer or otherwise in such case irrespective of payment in full of all obligations under the Loan Documents.
9.Understanding of Obligations and Waivers. Guarantor hereby acknowledges that: (i) the obligations undertaken by Guarantor in the Guaranty are complex in nature, (ii) numerous possible defenses to the enforceability of these obligations of Guarantor may presently exist and/or may arise hereafter, and (iii) as part of Administrative Agent's and Lenders' consideration for making the Loan, Administrative Agent and Lenders have specifically bargained for the waiver and relinquishment by Guarantor of all such defenses. Given all of the above, Guarantor does hereby represent and confirm to
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Addendum
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Administrative Agent and Lenders that Guarantor is fully informed regarding, and that Guarantor does thoroughly understand: (A) the nature of all such possible defenses, (B) the circumstances under which such defenses may arise, (C) the benefits which such defenses might confer upon Guarantor, and (D) the legal consequences to Guarantor of waiving such defenses. Guarantor acknowledges that Guarantor makes the Guaranty with the intent that the Guaranty and all of the informed waivers herein shall each and all be fully enforceable by Administrative Agent and Lenders, and that Administrative Agent and Lenders are induced to make the Loan in material reliance upon the presumed full enforceability thereof.
[Remainder of page left intentionally blank.]
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Addendum
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10.No Reliance. Guarantor, by initialing below, expressly represents and warrants that it did not rely on any representation, assurance or agreement, oral or written, not expressly set forth in the Guaranty in reaching its decisions to enter into the Guaranty and that no promises or other representations have been made to Guarantor which conflict with the written terms of the Guaranty. Guarantor represents to Administrative Agent and Lenders that (i) it has read and understands the terms and conditions contained in the Guaranty and the other Loan Documents executed in connection with the Guaranty, (ii) its legal counsel has carefully reviewed all of the Loan Documents (including, without limitation, the Guaranty) and it has received legal advice from counsel of its choice regarding the meaning and legal significance of the Guaranty and all other Loan Documents, (iii) it is satisfied with its legal counsel and the advice received from it, and (iv) it has relied only on its review of the Guaranty and the other Loan Documents and its own legal counsel's advice and representations (and it has not relied on any advice or representations from Administrative Agent or any Lender, or any of Administrative Agent's or any Lender's respective officers, employees, agents or attorneys). No course of prior dealing among the parties, no usage of trade, and no parol or extrinsic evidence of any nature may be used to supplement, modify or vary any of the terms of the Guaranty.
/s/CJS
Guarantor’s Initials

SMRH:4843-4445-6393 Addendum
Section 10
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IN WITNESS WHEREOF, Guarantor caused this Addendum to be executed as of the day and year first written above.
KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company
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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer



[Signatures follow on next page.]

SMRH:4843-4445-6393
ADDENDUM
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U.S. BANK NATIONAL ASSOCIATION,
a national banking association, as administrative agent
By: /s/ Chris Coburn
Name: Chris Coburn
Its: SVP
SMRH:4843-4445-6393
ADDENDUM
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Exhibit 10.11
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of the 2nd day of November, 2020, by and among KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company ("Borrower" or "Indemnitor"), in favor of U.S. BANK NATIONAL ASSOCIATION, a national banking association, as administrative agent (“Administrative Agent”) for itself as a “Lender” and the other “Lenders” under the Loan Agreement (referred to below) and other Indemnified Parties (as defined below).
RECITALS
Pursuant to the terms of that certain Revolving and Term Loan Agreement of even date herewith among Borrower, the Lenders party thereto from time to time and Administrative Agent (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”), the Lenders are prepared to loan to Borrower up to the maximum principal sum of $375,000,000.00 (the “Loan”).
Borrower is the owner of the Land and the Improvements (as such terms are defined in the Loan Agreement).
The Lenders are unwilling to make the Loan to Borrower unless Indemnitor agrees jointly and severally to provide the indemnifications, representations, warranties, covenants and other matters described in this Agreement for the benefit of the Indemnified Parties.
Indemnitor is entering into this Agreement to induce Administrative Agent and the Lenders to enter into the Loan Agreement and to induce the Lenders to make the Loan.
AGREEMENT
NOW, THEREFORE, in order to induce Administrative Agent and the Lenders to enter into the Loan Agreement and to induce the Lenders to make the Loan to Borrower, and in consideration of the substantial benefit Indemnitor will derive from the Loan, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Indemnitor, Indemnitor hereby jointly and severally covenants and agrees as follows:
1.Defined Terms and Certain Rules of Construction.
(a)All capitalized terms used herein and not defined have the meanings ascribed to them in the Loan Agreement. As used in this Agreement, the term (i) "Department of Environmental Protection" means the Governmental Authority(ies) in the state(s), commonwealth(s) or district(s) where the Property (defined below) is located that is responsible for protecting human health and/or the environment; (ii) "Indemnified Party" means Administrative Agent and the Lenders, as well as the respective parents, directors, officers, shareholders, partners, members, employees, agents, contractors, licensees, invitees, affiliates, subsidiaries, participants, successors and assigns of Administrative Agent and each Lender (including any other Person who holds or acquires or will have held a participation or other full or partial interest in the Loan, whether during the term of the Loan or as a part of or following a foreclosure of the Loan (but excluding any third party that acquires title to the Property through a foreclosure sale) and including any successors by merger, consolidation or acquisition of all or a substantial portion of any Administrative Agent's or any Lender's assets and business); (iii) "Losses" means any losses, damages, costs, fees, expenses, claims, suits, judgments, awards, liabilities (including strict liability), obligations, debts, fines, penalties, charges, costs of remediation, cleanup, abatement,
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Agreement
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decontamination, removal, disposal and compliance (whether or not voluntarily performed), amounts paid in settlement, litigation costs (prior to trial, at trial and on appeal), reasonable attorney's fees (including in-house counsel and outside counsel), engineer's fees, consultants' fees, and investigation costs (including sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or rewards; (iv) "Property" means the Land, the Equipment and the Improvements; and (v) "Environmental Claim" means any complaint, action, notice, order, claim, investigation, judicial or administrative proceeding or action, or other similar claims or communications from any Person involving or alleging any non-compliance with any Environmental Law or the existence of any unsafe or hazardous condition resulting from or related to any Hazardous Substance in, upon, under, over or from the Property. Any defined term used in the plural refers to all members of the relevant class and any defined term used in the singular refers to any number of the members of the relevant class. Any defined term may be used in the past, present or future tense.
(b)Any reference to any Loan Document or other document includes such document both as originally executed and as it may from time to time be amended, restated, supplemented or modified. References herein to Articles, Sections, Paragraphs and Exhibits will be construed as references to this Agreement unless a different document is named. References to subparagraphs will be construed as references to the same Section or Paragraph in which the reference appears. The term “document” is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms “including” and “include” mean “including (include) without limitation”. The terms “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement refers to this Agreement as a whole and not to any particular provision of this Agreement.
(c)In the event of any inconsistency between the provisions of this Agreement and the provisions of the Loan Agreement, the provisions of the Loan Agreement govern.
2.Covenants. Indemnitor covenants and agrees as follows:
(a)Indemnitor will not, and will not allow or permit any other Person to, place, use, spill, store, locate, generate, produce, create, process, treat, handle, transport, incorporate, or Release any Hazardous Substance in, upon, under, over, at, on or from the Property, in violation of Environmental Laws, and will not cause, allow or permit any Hazardous Substance to be present at, on, or in any structures, buildings, soils, subsoils or groundwater at, on, or under the Property at levels which exceed any standard, or remediation cleanup objective, established by or under any Environmental Law. Indemnitor will cause all Hazardous Substances in excess of such levels found at, in, upon, over, from, on or under the Property, to be properly removed therefrom and properly disposed at Indemnitor's sole cost and expense, in accordance with all applicable Environmental Laws. At a minimum and regardless of the source of the Hazardous Substance, Indemnitor will, as soon as practical and in any event within any time period required under any Environmental Law after obtaining knowledge thereof, remove from the structures, buildings, soils, subsoils and groundwater any and all Hazardous Substances present at levels above clean-up objectives established by the Department of Environmental Protection for the current use of the Property, and will decontaminate, cleanup and conduct corrective action to eliminate the presence of Hazardous Substances to the extent required by Environmental Laws at levels above the state/commonwealth/district-approved levels for the current use of the Property. Indemnitor will not install or permit to be installed any underground storage tank on or under the Property, and will comply with all Environmental Laws applicable to the Property. Notwithstanding the above or any other provisions of this Agreement to the contrary, Indemnitor may permit to be handled (but not spilled, released or discharged) at the Property small quantities of Hazardous Substances that are customarily
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Agreement
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stored or used in the ordinary course of business of managing and operating buildings of the type located on the Property and that do not create any significant risk of environmental contamination ("Permitted Hazardous Substances"), provided that all Permitted Hazardous Substances must be stored and used in strict accordance with all applicable Environmental Laws and shall be subject to all covenants, indemnities and other provisions of this Agreement.
(b)Intentionally Deleted.
(c)Indemnitor will, promptly after obtaining knowledge thereof, advise Administrative Agent in writing of (i) the presence of any Hazardous Substance in any structures, buildings, soils, subsoils or groundwater at, on or under the Property exceeding levels permitted under this Agreement, (ii) any activity in violation of any applicable Environmental Law relating to the Property, (iii) any governmental or regulatory actions (including information requests) instituted or threatened in writing under any Environmental Law affecting the Property, including any notice of inspection, abatement, noncompliance or potential liability, (iv) all claims made or threatened in writing by any third party against any Indemnitor or the Property relating to any Hazardous Substance or a violation of any Environmental Law, (v) discovery by any Indemnitor of any occurrence or condition on or under the Property or on or under any real property adjoining or in the vicinity of the Property which could subject any Indemnitor, any Lender, Administrative Agent, or the Property to a claim under any Environmental Law or to any restrictions on ownership, occupancy, transferability or use of the Property under any Environmental Law, and (vi) any event which would render any representation or warranty contained herein, or in the Loan Agreement relating to environmental matters incorrect in any material respect if made at the time of discovery. Indemnitor will promptly deliver to Administrative Agent copies of all orders, notices, permits, applications, or other communications and reports, and of such other documentation or records as Administrative Agent may reasonably request, relating to any such activity, Environmental Law, violations, actions, claims, discovery or event which Indemnitor receives or which are susceptible of being obtained by Indemnitor without undue cost or expense and without the necessity for initiating legal proceedings to obtain the same.
(d)If Indemnitor or any other Person undertakes any investigation or corrective action, including any response, cleanup, removal, decontamination or other remedial action, pursuant to any requirement of any Environmental Law, Indemnitor will obtain and deliver to Administrative Agent a written report, in form and substance reasonably acceptable to Administrative Agent, from the Department of Environmental Protection indicating there is no further remediation or cleanup required.
(e)Indemnitor agrees to keep the Property free and clear of all Environmental Liens (provided Borrower shall have the right to contest such liens in accordance with the terms contained in the applicable Security Instrument for disputing liens).
(f)Without limiting the generality of Paragraph 2(a) hereof, in the event the Administrative Agent has reason to believe that Hazardous Substances are present at, on or under the Property, or another environmental hazard exists at, on or under the Property, that in either case does not, in the reasonable discretion of Administrative Agent, endanger any tenants or other occupants of the Property or their guests or the general public or materially and adversely affect the value of the Property, upon reasonable notice from Administrative Agent in writing no more frequently than once every 12 months or at any time if an Event of Default exists, Indemnitor shall, at Indemnitor's sole cost and expense, promptly cause an engineer or consultant satisfactory to Administrative Agent to conduct any non-invasive environmental assessment or audit (the scope of which shall be determined in the reasonable discretion of Administrative Agent) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing, to the extent recommended by any Phase I environmental site assessment for such Property, and promptly deliver to Administrative Agent the results of any such
SMRH:4822-9207-2906.8
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Agreement
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assessment, audit, sampling or other testing (and Administrative Agent and the other Indemnified Parties will be entitled to rely on such reports and other results thereof); provided, however, if such results are not delivered to Administrative Agent within a reasonable period or if Administrative Agent has reason to believe that Hazardous Substances are present at, on or under the Property exceeding the levels permitted under this Agreement, or an environmental hazard exists at, on or under the Property that, in the judgment of Administrative Agent, endangers any tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon 24 hours prior notice to Indemnitor, the Indemnified Parties and any other Person designated by Administrative Agent, including any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon the Property at all reasonable times (subject to the rights of tenants under their leases) to assess any and all aspects of the environmental condition of the Property and its use, including conducting any environmental assessment or audit (the scope of which shall be determined in the reasonable discretion of Administrative Agent) and, to the extent recommended by any Phase I environmental site assessment, taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing all at Indemnitor's sole cost and expense. Indemnitor must reasonably cooperate with and provide the Indemnified Parties and any such Person designated by Administrative Agent with access to the Property, subject to the rights of tenants under their leases.
3.Indemnity. Indemnitor will indemnify and defend the Indemnified Parties from and against, will release and hold the Indemnified Parties harmless from and against, and will reimburse the Indemnified Parties for, any and all Losses imposed upon, incurred by or asserted against the Indemnified Parties (whether such Losses occur prior to or during the continuance of an Event of Default or prior to or after a foreclosure or deed in lieu of foreclosure transaction, except as provided in the last sentence below in this Section 3) resulting from any breach of the covenants set forth in Paragraph 2 hereof, from a failure by any Indemnitor to perform any of its obligations hereunder with respect to any Hazardous Substance, any Environmental Law or from the discovery of any Hazardous Substance in, upon, under or over, or emanating from the Property, whether or not any Indemnitor is responsible therefor, or whether or not it was placed, located, deposited or Released by any Indemnitor, it being the intent of Indemnitor that the Indemnified Parties will have no liability or responsibility for damage or injury to human health, the environment or natural resources for investigation, abatement, clean-up, decontamination, removal or disposal of, or otherwise with respect to, Hazardous Substances, or for any violation or alleged violation of any Environmental Law by virtue of the interest of Administrative Agent or the Lenders in the Property or as the result of Administrative Agent and/or the Required Lenders exercising any of their respective rights or remedies under the Security Instrument, or at law or in equity, including becoming the owner thereof by foreclosure or other sale or conveyance in lieu thereof, or from any misrepresentation or inaccuracy in any representation or warranty or breach or failure to perform any covenants or other obligations pursuant to this Agreement or the Loan Agreement relating to environmental matters. The foregoing covenants of Paragraph 2 and of this Paragraph 3 will be deemed continuing covenants for the benefit of the Indemnified Parties and, subject to the provisions of Paragraph 4 below, will survive any Event of Default, the satisfaction or release of the Security Instrument, any foreclosure of or other sale under the Security Instrument and/or any acquisition of title to the Property or any part thereof by any Indemnified Party, by deed in lieu of foreclosure or otherwise, and also will survive the repayment or any other satisfaction of the Obligations. Any amounts covered by the foregoing indemnification will bear interest from the date incurred at the Default Rate and will be payable on demand. Indemnitor agrees that its obligations under this Agreement are separate from, independent of and in addition to its obligations, if any, under the Notes, the Security Instrument, the Loan Agreement, the Assignment of Leases and the Guaranties. Indemnitor will reimburse Administrative Agent, the Lenders and the other Indemnified Parties for all costs and expenses, including attorneys' fees and expenses incurred in connection with the enforcement of this Agreement, including those incurred in any case, action, proceeding or claim under Title 11 of the United States Code, 11 U.S.C. Section 101, et seq., as may be amended from time to time,
SMRH:4822-9207-2906.8
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Agreement
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or any successor statute, or any other insolvency laws. Notwithstanding anything stated to the contrary herein, the indemnity set forth in this Paragraph 3 shall not apply to Indemnitor to the extent it is triggered by Losses solely arising out of the gross negligence or willful misconduct of Administrative Agent, any Lender, or any of their respective agents or any other Indemnified Party. Additionally, notwithstanding anything stated to the contrary in this Agreement, the foregoing indemnity shall not extend to any liabilities or claims to the extent (and only to the extent) caused by any new condition (i.e., to the extent not previously existing, whether or not previously known) arising after an Indemnified Party has acquired possession or ownership of the Property (unless such "new" condition resulted from, is a consequence of, or is otherwise related to a substance or other condition which existed prior to such acquisition of possession or ownership by an Indemnified Party).
4.Limitation of Indemnitor’s Liability. Notwithstanding any provision of this Agreement to the contrary, if, through the exercise of Administrative Agent's or the Lenders' rights under the Loan Agreement, the Notes or any other Loan Document, an Indemnified Party or its Affiliate obtains ownership of the Property, Indemnitor will not be liable to the Indemnified Parties for any liabilities if and to the extent that Indemnitor can conclusively prove in a final judgment from a court of competent jurisdiction that (a) the event which gave rise to such liabilities first arose after the applicable Indemnified Party or Affiliate acquired ownership of the Property, (b) Indemnitor has not contributed in any way to the cause, existence or occurrence of such liabilities, and (c) the events resulting (or with the passage of time eventually result) in any such liabilities did not exist or occur prior to the time of such acquisition of ownership by the applicable Indemnified Party or its Affiliate.
Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, Indemnitor shall have the right to terminate its continuing liability under this Agreement upon fulfillment of each of the following conditions to the reasonable satisfaction of Administrative Agent:
(a)Administrative Agent and Lenders shall have received Non-Contestable Payment in full of all of the Obligations, including but not limited to repayment in full of the Notes, but excluding any of the Obligations which might arise in the future (but as to which no claim has then arisen) under the provisions of this Agreement. The term "Non-Contestable" shall mean the receipt of payment of the Notes or other satisfaction of all of the Obligations and the expiration of all periods of time within which a claim for the recovery of a preferential payment, or fraudulent conveyance, or fraudulent transfer, in respect of payments received by Administrative Agent or any Lender as to the Obligations could be filed or asserted with (i) no such claim having been filed or asserted, or (ii) if so filed or asserted, the final, non-appealable decision of a court of competent jurisdiction denying the claim or assertion.
(b)Indemnitor shall have delivered to Administrative Agent a current environmental site assessment for the Property and such report does not disclose the existence of any violation of any Environmental Law or any Environmental Claims applicable to the Property, which report shall be dated, or last updated, to a date which is not earlier than the date on which the Security Instruments securing the Property are discharged or released of record.
(c)No Environmental Claim shall be pending or threatened in writing with respect to the Property.
(d)The Notes have been repaid without Administrative Agent or any Lender or any affiliate thereof ever having taken actual or constructive possession of any of the Property (or any portion thereof), through either: (i) the appointment of a receiver, or (ii) any other exercise of Administrative Agent's or Lenders' rights and remedies following an Event of Default.
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(e)At least twelve (12) months have passed since the date the principal, interest and fees due Lenders in respect of the Notes were paid in full (without regard to the passage of time required to establish Non-Contestable Payment) and no claim has been asserted for which any indemnification is provided for in this Agreement.
Such termination of Indemnitor's liability under this Agreement shall become effective only upon the delivery by Administrative Agent to Indemnitor of a specific written acknowledgment of the satisfaction of the foregoing conditions and the termination of such obligations, which acknowledgment Administrative Agent agrees to provide unless Administrative Agent makes the good faith determination that the conditions to such termination have not been satisfied.
5.Intentionally Deleted.
6.Representations, Warranties and Covenants; Incorporated By Reference. Except as specifically disclosed in the Environmental Report, to Indemnitor's actual knowledge: (i) no Hazardous Substances are now or have ever been placed, stored, located, generated, produced, created, processed, treated, transported, incorporated or Released in, upon, under, over or from the Property, except for Hazardous Substances used in the ordinary course of Borrower's or Borrower's tenants' businesses or in the routine maintenance and operation of the Property, in either case in strict compliance with Environmental Laws; (ii) no threat exists of a Release upon or from the Property; (iii) the Property has not ever been used as or for a mine, landfill, a dump or other disposal facility, or for industrial or manufacturing purposes, or a gasoline service station; (iv) no underground storage tank is now located in the Property nor has any underground storage tank previously been located on the Property; (v) no violation of any Environmental Law now exists or has ever existed in, upon, under, over or from the Property, no notice of any such violation or any alleged violation thereof has been issued or given by any Governmental Authority, and there is not now nor has there ever been any investigation or report involving the Property by any Governmental Authority which in any way relates to Hazardous Substances; (vi) there are not now, nor have there ever been, any actions, suits, proceedings or damage settlement relating in any way to Hazardous Substances, in, upon, under, over or from the Property; (vii) the Property is not listed in the United States Environmental Protection Agency's National Priorities List of Hazardous Waste Sites or any other list, schedule, log, inventory or record of Hazardous Substance sites maintained by any Governmental Authority; and (viii) the Property is not subject to any Environmental Lien.
7.Operations and Maintenance Programs. If recommended by the Environmental Report or any other assessment or audit of the Property (including any assessment or audit performed after the date hereof), Indemnitor will, upon Administrative Agent’s written request, implement and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Administrative Agent, prepared by an environmental consultant reasonably acceptable to Administrative Agent, which program shall address any asbestos-containing material, lead based paint, mold and/or other applicable conditions that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, with respect to such operations and maintenance programs, Administrative Agent may require (a) periodic notices or reports to Administrative Agent in form, substance and at such intervals as Administrative Agent may reasonably specify, (b) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters and (c) supplemental examination of the Property by consultants specified by Administrative Agent.
8.No Other Agreement, Defense. Indemnitor warrants to Administrative Agent for the benefit of Administrative Agent and the Lenders that: (a) no other agreement, representation or special condition exists between Indemnitor and Administrative Agent or the Lenders regarding the liability of
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Indemnitor hereunder, nor does any understanding exist between Indemnitor and Administrative Agent or the Lenders that the obligations of Indemnitor hereunder are or will be other than as set forth herein; and (b) as of the date hereof, Indemnitor has no defense whatsoever to any action or proceeding that may be brought to enforce this Agreement.
9.Intentionally Deleted.
10.Waiver of Notice. Except for notices expressly provided for in the Loan Documents, Indemnitor waives any and all notice (other than as specifically set forth herein) with respect to: (a) acceptance by Administrative Agent of this Agreement or any of the Loan Documents; (b) the provisions of any of the Loan Documents or any other instrument or agreement relating to the obligations guaranteed hereunder; and (c) any default in connection with the obligations guaranteed hereunder.
11.Waiver of Presentment, Etc. Except for notices expressly provided for in the Loan Documents, Indemnitor waives any presentment, demand, notice of dishonor or nonpayment, protest and notice of protest in connection with the obligations specifically set forth herein or in the Loan Documents.
12.Intentionally Deleted.
13.Administrative Agent’s Rights. The liability of Indemnitor under this Agreement will in no way be limited or impaired by, and Indemnitor hereby waives any defense hereunder based on any claim that Indemnified Parties have done any of the following, and Indemnitor hereby consents to and agrees to be bound by, any amendment or modification of the provisions of the Loan Agreement, the Notes, the Security Instrument or any other Loan Document to or with Administrative Agent and/or the Lenders by Borrower or any Person who succeeds Borrower or any Person as owner of the Property. In addition, the liability of Indemnitor under this Agreement will in no way be limited or impaired by, and Indemnitor waives any defense hereunder based on any claim that Indemnified Parties have done any of the following: (a) any extensions of time for performance required by the Notes, the Loan Agreement, the Security Instrument or any of the other Loan Documents, (b) any sale or transfer of all or part of the Property, (c) any exculpatory provision in the Notes, the Loan Agreement, the Security Instrument, the Guaranties or any of the other Loan Documents, (d) the accuracy or inaccuracy of the representations and warranties made by Borrower or Guarantor under the Notes, the Loan Agreement, the Security Instrument or any of the other Loan Documents or herein, (e) the release of any Indemnitor or any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the other Loan Documents by operation of law, Administrative Agent’s or any Lender’s voluntary act, or otherwise, (f) the release or substitution in whole or in part of any security for the Loan, (g) Administrative Agent’s failure to record the Security Instrument or to file any Uniform Commercial Code financing statements (or Administrative Agent’s improper recording or filing of any thereof) or to otherwise perfect, protect, secure or insure any security interest or lien given as security for the Loan; and, in any such case, whether with or without notice to any Indemnitor and with or without consideration, (h) any neglect, delay or forbearance by Administrative Agent or the Lenders in demanding, requiring or enforcing payment or performance of the obligations and liabilities of Indemnitor under this Agreement, or (i) any receivership, bankruptcy, insolvency or dissolution of any Indemnitor or any affiliate thereof.
14.Event of Default. It will be an Event of Default if: (a) Indemnitor fails to pay any sums as required pursuant to the terms of this Agreement or in any other document provided in relation hereto; (b) Indemnitor fails to observe or perform any covenant, representation, warranty, obligation or agreement in this Agreement or in any other document provided in relation hereto; (c) any covenant, representation or warranty by Indemnitor contained in this Agreement or in any other document provided in relation hereto is now or hereafter false or incorrect in any material respect, and (d) as to any of the events described in clauses (a), (b) or (c) above, Indemnitor fails to cure the same, in the case of any
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monetary default within fifteen (15) days, and in the case of any non-monetary default within thirty (30) days, after notice from Indemnitee to Indemnitor thereof (unless a different cure period is specifically provided for, in which case such provision shall control). Upon the occurrence of any Event of Default, Administrative Agent and/or the Lenders, as applicable, may exercise any and all rights and remedies specified hereunder and/or under the Loan Documents, and any other rights and remedies which it may have at law, in equity or under statute.
15.Intentionally Deleted.
16.Notices. Indemnitor agrees that all notices, statements, requests, demands and other communications made pursuant to or under this Agreement will be made in the manner set forth in the Loan Agreement.
17.Entire Agreement; No Oral Modifications. The Loan Documents supersede all prior written or oral understandings and agreements with respect thereto and no modification or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties hereto.
18.Joint and Several Liability. Each Indemnitor which may be party to this agreement from time to time is jointly and severally liable hereunder. All representations, warranties and covenants made hereunder are made by each Indemnitor party hereto, unless the context requires otherwise.
19.Binding Effect; Waivers; Cumulative Rights and Remedies. The provisions of this Agreement inure to the benefit of and are binding upon the parties hereto and their respective heirs, executors, administrators, personal representatives, legal representatives, successors and assigns; provided, however, that this Agreement may not be assigned by Indemnitor voluntarily, by operation of law or otherwise, without the prior written consent of Administrative Agent. No delay on the part of Administrative Agent in exercising any right, remedy, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder constitute such a waiver or exhaust the same, all of which will be continuing. The rights and remedies of Administrative Agent specified in this Agreement are in addition to, and not exclusive of, any other rights and remedies which Administrative Agent would otherwise have at law, in equity or by statute, and all such rights and remedies, together with Administrative Agent’s and the Required Lenders’ rights and remedies under the other Loan Documents, are cumulative and may be exercised individually, concurrently, successively and in any order.
20.Severability. Wherever possible, each provision of this Agreement must be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
21.Discretion. Whenever, pursuant to this Agreement or any of the other Loan Documents, Administrative Agent exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory or acceptable to Administrative Agent, or Administrative Agent exercises any right to grant or withhold consent, or Administrative Agent exercises its discretion in making any decision or judgment, the decision or judgment of Administrative Agent will, except as is otherwise specifically herein provided, be in the sole and absolute discretion of Administrative Agent and will be final and conclusive.
22.Sale of Loan or Participations. Indemnitor acknowledges and agrees to the provisions contained in Sections 10.10 and 10.11 of the Loan Agreement and such sections are incorporated herein
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by reference. Indemnitor further agrees that any Lender may elect, subject to and in accordance with the terms of the Loan Agreement, at any time and from time to time, both before and after the occurrence of an Event of Default to the extent permitted under the Loan Agreement, to sell, assign or encumber all or a portion of the Loan and the Loan Documents, or grant, sell, assign or encumber participations in all or any portion of its rights and obligations under the Loan and the Loan Documents, and that the indemnity obligations of Indemnitor under the Loan Documents will also apply with respect to any purchaser of the Loan (or any portion thereof), assignee, Lender or participant (subject to Sections 10.10 and 10.11 of the Loan Agreement) without any additional notice to or consent from Indemnitor, except as expressly provided under the Loan Agreement. Indemnitor hereby acknowledges and agrees that each Lender may disclose any and all information in such Lender’s possession to any Transferee subject to and in accordance with Section 10.10(e) of the Loan Agreement.
23.Duplicate Originals; Counterparts. This Agreement may be executed in any number of duplicate originals, and each duplicate original will be deemed to be an original. This Agreement (and each duplicate original) also may be executed in any number of counterparts, each of which will be deemed an original and all of which together constitute a fully executed Agreement even though all signatures do not appear on the same document.
24.Waiver of Offsets; Defenses; Counterclaims. Indemnitor hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Administrative Agent and/or the Lenders to offset any obligations to make the payments required by the Loan Documents. No failure by Administrative Agent to perform any of its obligations hereunder will be a valid defense to, or result in any offset against, any payments which Indemnitor is obligated to make under any of the Loan Documents. No action or proceeding brought or instituted under this Agreement and no recovery made as a result thereof will be a bar or defense to any further action or proceeding under this Agreement.
25.Costs. Indemnitor agrees to pay all costs and expenses, including reasonable attorneys’ fees (both in-house counsel and outside counsel), incurred by Administrative Agent in enforcing this Agreement against Indemnitor.
26.No Election of Remedies. Indemnitor acknowledges that Administrative Agent may, in its sole discretion, elect to enforce this Agreement for the benefit of itself and the Lenders against Indemnitor without any duty or responsibility to pursue any other Person and that such an election by Administrative Agent will not be a defense to any action Administrative Agent may elect to take against Indemnitor.
27.Governing Law; Waiver of Jury Trial; Jurisdiction. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, INDEMNITOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTE, AND THIS AGREEMENT AND THE NOTE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, AND ANY LAWS OF THE UNITED STATES OF AMERICA APPLICABLE TO NATIONAL BANKS.
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TO THE FULLEST EXTENT PERMITTED BY LAW, INDEMNITOR AND ADMINISTRATIVE AGENT HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION RELATING TO THE LOAN AND/OR THE LOAN DOCUMENTS. INDEMNITOR, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF ILLINOIS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS AGREEMENT, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF ILLINOIS, (C) SUBMITS TO THE JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT, AND (D) AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN WILL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). INDEMNITOR FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO INDEMNITOR AT THE ADDRESSES FOR NOTICES DESCRIBED IN THIS AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE WILL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN WILL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
28.Document Imaging, Electronic Transactions and the UETA. Without notice to or consent of Indemnitor, Administrative Agent may create electronic images of this Agreement and the other Loan Documents and destroy paper originals of any such imaged documents. Provided that such images are maintained by or on behalf of Administrative Agent as part of Administrative Agent’s normal business processes, Indemnitor agrees that such images have the same legal force and effect as the paper originals, and are enforceable against Indemnitor. Furthermore, if applicable, Indemnitor agrees that Administrative Agent may convert any Loan Document into a “transferrable record” as such term is defined under, and to the extent permitted by, the UETA, with the image of such instrument in Administrative Agent’s possession constituting an “authoritative copy” under the UETA.
29.Limited Recourse Provision. Except as to Guarantor as set forth in the Guaranties, Administrative Agent and Lenders shall have no recourse against, nor shall there be any personal liability to, the members of Borrower, or to any shareholders, members, partners, beneficial interest holders or any other entity or person in the ownership (directly or indirectly) of Borrower (except for Guarantor as provided in the Guaranties) with respect to the obligations of Borrower and Guarantor under the Loan. For purposes of clarification, in no event shall the above language limit, reduce or otherwise affect Borrower's liability or obligations under the Loan Documents, Guarantor's liability or obligations under the Guaranties or Administrative Agent's right to exercise any rights or remedies against any collateral securing the Loan.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Indemnitor has duly executed this Environmental Indemnification Agreement, under seal, as of the day and year first above written.
INDEMNITOR:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XI, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
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Exhibit 10.12
CONSENT AND SUBORDINATION
OF MANAGEMENT AGREEMENTS
THIS CONSENT AND SUBORDINATION OF MANAGEMENT AGREEMENTS (this "Agreement"), dated as of November 2, 2020, is made by TRANSWESTERN COMMERCIAL SERVICES ILLINOIS, L.L.C., d/b/a Transwestern, a Delaware limited liability company ("Manager"), and KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company ("Owner"), in favor of U.S. BANK NATIONAL ASSOCIATION, a national banking association, as agent for the "Lenders" pursuant to the Loan Agreement described below (in such capacity, "Agent") and in favor of each party that now or hereafter is bound under the Loan Agreement as a "Lender" (referred to herein individually as a "Lender" and collectively as the "Lenders").
W I T N E S S E T H:
WHEREAS, Lenders are making a loan (the "Loan") to Owner (defined below) in the aggregate principal amount of up to $375,000,000.00 pursuant to and on the terms and conditions set forth in that certain Term Loan Agreement of even date herewith (the "Loan Agreement"), by and among Owner, Agent and Lenders, which indebtedness is evidenced by one or more Promissory Notes each dated as of the date hereof in the aggregate face principal amount of $375,000,000.00 (collectively, the "Note") made by Owner payable to the order of one or more Lenders;
WHEREAS, the Note is secured by, among other things, a Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (the "Mortgage"), of even date herewith and made by Owner for the benefit of Agent (for itself and on behalf of Lenders) and encumbering Owner's interest in the real property situated in Cook County, Illinois as more particularly described therein (the "Property"); and
WHEREAS, Agent and Lenders require that Manager execute and deliver this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Manager hereby represents, warrants, covenants and agrees for the benefit of Agent and the Lenders as follows:
1.Definitions. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement.
2.Manager's Representations. Manager warrants and represents to Agent and Lenders, as of the date hereof, that the following are true and correct:
(a)Manager has agreed to act as property manager of the Property pursuant to that certain Property Management Agreement dated as of December 18, 2013 between Owner and Manager, as the same was amended pursuant to that certain First Amendment to Property Management Agreement dated as of August 20, 2020 (as amended, collectively, the

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"Management Agreement"). Manager has delivered a true, correct and complete copy of the Management Agreement to Agent, which copy is attached hereto as Exhibit "A". The entire agreement between Manager and Owner for the management of the Property is evidenced by the Management Agreement.
(b)The Management Agreement constitutes the valid and binding agreement of Manager, enforceable in accordance with its terms, and Manager has full authority under all state and local laws and regulations to perform all of its obligations under the Management Agreement.
(c)To Manager’s knowledge, Owner is not in default in the performance of any of its obligations under the Management Agreement and all Management Fees (as defined below) required to be paid Owner to Manager thereunder have been paid to the date hereof.
3.Manager's Agreements. Notwithstanding any terms of the Management Agreement to the contrary, Manager hereby consents to and covenants and agrees as follows:
(a)Agent Notice and Cure Rights. Subject to the terms of this Section 3(a) and Manager’s termination right pursuant to Section 10.1(a) of the Management Agreement, Manager shall not terminate the Management Agreement without first obtaining Agent's written consent. Notwithstanding the foregoing, Manager shall have the right to terminate the Management Agreement for default by Owner with respect to non‑payment of the “Management Fees” (as such term is defined in the Management Agreement) in accordance with the Management Agreement by giving Agent thirty-five (35) days' prior written notice of such termination and an opportunity to cure the same (it being agreed that neither Agent nor the Lenders shall have any obligation to cure any defaults by Owner under the Management Agreement). In the event Agent or any Lender shall cure such non‑payment default in the aforesaid thirty-five (35)1 day period (or Owner shall cure such default within the time periods allotted to Owner under Section 10.1(f) of the Management Agreement), then any termination notice related to such cause shall be of no further force or effect. Manager hereby agrees that it shall provide written notice to Agent of its intention to terminate the Management Agreement pursuant to Section 10.1(a) of the Management Agreement concurrently with its providing notice to Owner of the same.
(b)Subordination of Management Agreement to Loan and Lien of Mortgage. The rights of Manager to receive any management fees, leasing commissions (if any), incentive fees or other compensation, reimbursement of costs and expenses or other payments in consideration for its management services (collectively, the “Management Fees”) for the Property shall be and remain subordinate in all respects to Agent's and Lenders' rights to receive payments under the Loan Documents. The Management Agreement and any and all liens, rights and interests (whether choate or inchoate and including, without limitation, all mechanic's and materialmen's liens under applicable law) owed, claimed or held by Manager in and to the Property, are and shall be in all respects subordinate and inferior to the liens and security interests created or to be created for the benefit of Agent and/or Lenders, and securing the






__________________________
1 NTD: Includes 30 day cure period + 5 day notice period provided in Section 10.1(f) of the Management Ageement.
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repayment of the Note including, without limitation, those created under the Mortgage covering, among other things, the Property, and filed or to be filed of record in the public records maintained for the recording of deeds of trust in the jurisdiction where the Property is located, and all renewals, extensions, increases, supplements, amendments, modifications and replacements thereof.
(c)Agent's Options Following an Exercise of Remedies Under Mortgage. At any time following a foreclosure, deed in lieu of foreclosure or appointment of a receiver pursuant to the Mortgage (unless this Agreement has previously been terminated under Section 3(a) above), Agent, on behalf of Lenders, may within thirty (30) days following any such event, at Agent's sole option, either: (i) give Manager a written notice to continue this Agreement in effect and Agent, on behalf of Lenders, shall assume in writing all rights and obligations (but not the liabilities) of “Owner” under the Management Agreement and agree to be bound by the terms thereof (a "Continuation Notice"), in which case Manager shall continue to perform in favor of Agent all of Manager's obligations under the Management Agreement, and Agent shall perform or cause to be performed the obligations of Owner to Manager under the Management Agreement first accruing or arising from and after, and solely with respect to the period commencing upon, the date of the Continuation Notice; or (ii) terminate the Management Agreement upon written notice to Manager. Without limiting Manager's rights against Owner, neither Agent nor the Lenders shall have any liability whatsoever to Manager under the Management Agreement or otherwise with respect to any accrued but unpaid Management Fees, incentive fees or other compensation, reimbursement of costs and expenses or other payments in consideration of Manager's services relating to the Property accruing prior to the effective date of any Continuation Notice. Further, no acceptance of Manager's services by Agent, or payment of fees by Agent or Lenders to Manager, or failure of Agent to give or delay by Agent in giving either a Continuation Notice or a termination notice under this Section, or any other course of conduct by Agent or the Lenders, shall be construed as an express or implied election to continue the Management Agreement in effect or to assume any obligations thereunder, it being agreed that the sole method of continuing the Management Agreement in effect shall be a Continuance Notice given under this Section.
(d)Further Assurances. Manager further agrees to (i) execute such commercially reasonable affidavits and certificates as Agent shall reasonably require to further evidence the agreements herein contained, (ii) on request from Agent, furnish Agent with copies of such information as Owner is entitled to receive under the Management Agreement, and (iii) upon twenty-four hours advance notice (which notice shall not be required in the case of emergency or other exigent circumstances), reasonably cooperate with Agent's representative in any inspection of all or any portion of the Property.
(e)Assignment of Leases and Rents. Manager acknowledges that, as further security for the Note, the Mortgage includes an assignment by Owner to Agent of all rents and leases now or hereafter affecting the Property (the "Assignment"). Manager hereby agrees that upon receipt of written notice from Agent that an Event of Default exists under the Loan Agreement, Manager shall thereafter deliver to Agent, for application in accordance with the terms and conditions of the Assignment, all proceeds relating to the Property then being held by Manager, and all rents, security deposits (upon compliance with any requirements of applicable law with respect thereto) and other proceeds received from and after the date thereof from any
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and all tenants or other parties occupying or using any portion of the Property (net of any “Management Fees” (as such term is defined in the Management Agreement) then due and payable to Manager pursuant to and in accordance with Section 9.1 of the Management Agreement). Notwithstanding anything in this Agreement to the contrary, but subject to Section 3(a) above and the terms of the Management Agreement (including, without limitation, Section 10.1(f) thereof), Manager shall have no obligation to continue as Manager under the Management Agreement if Manager is not receiving the Management Fees payable under the Management Agreement.
(f)Intentionally Omitted.
(g)Agent and Lenders Not Obligated Under Management Agreement. Manager further agrees that nothing herein shall impose upon Agent or any Lender any obligation for payment or performance in any respect under the Management Agreement in favor of Manager, unless and until Agent gives a Continuation Notice described in Section 3(c) above (and, in such event, subject to any limitations on liability set forth in Section 3(c) or any other provisions of this Agreement).
(h)Reliance on Representations. Manager has executed this Agreement with full knowledge that Agent and Lenders shall rely upon the representations, warranties and agreements herein contained.
(i)Governed by Loan Documents. Manager agrees that until this Agreement is terminated as set forth in Section 7 below, in the course of discharging its duties under the Management Agreement, Manager shall not knowingly take or fail to take any action intending to cause Owner to be in breach of its obligations under the Mortgage with respect to rents and other income derived from the Property; provided, however, that (i) Manager’s compliance with the foregoing agreement, to the extent such compliance requires the expenditure of funds, shall at all times be expressly conditioned upon the timely provision to Manager of such funds, (ii) the term “knowingly” as used above shall mean that the applicable obligation of Owner has been disclosed and described to Manager, (iii) the foregoing agreement shall not impose any obligation or duty on Manager to (I) review any of the Loan Documents, or (II) contravene Owner’s directives, instructions or policies, and (iv) the foregoing agreement of Manager shall not impose upon Manager any obligation to perform services not within the scope of Manager’s duties or take actions beyond its authority as set forth in the Management Agreement.
(j)Successors and Assigns. Manager agrees that this Agreement and Manager's obligations hereunder shall be binding upon Manager and its successors and assigns and shall inure to the benefit of Agent and Lenders and their successors and assigns including, without limitation, any parties to whom Agent's or any Lender's interest in the Note and the Mortgage are assigned.
4.Owner Consent. Owner has joined herein to evidence its consent to the terms, covenants and conditions contained in this Agreement.
5.Limitation on Liability. Notwithstanding anything to the contrary set forth herein, under no circumstances shall any of the members, partners, directors, shareholders or other
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constituent owners of Owner (direct or indirect), other than Guarantor, have any liability for Owner’s obligations hereunder. Notwithstanding anything to the contrary set forth herein, under no circumstances shall any of the members, partners, directors, shareholders or other constituent owners of Manager (direct or indirect) have any liability for Manager’s obligations hereunder.
6.Notices. All notices given hereunder shall be given in the manner set forth in the Property Management Agreement for the giving of notices. Notices to Agent shall be sent to the following address:
U.S. Bank National Association
Commercial Real Estate
4100 Newport Place, Suite 900
Newport Beach, CA 92660
Attention: Loan Administration
7.Termination. At such time as the Loan is indefeasibly repaid in full and the Mortgage released, this Agreement and all of Agent’s and any Lender’s right, title and interest hereunder with respect to the Management Agreement shall automatically terminate.
[Signatures on following page]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, as of the day and year first above written.
“Manager”
TRANSWESTERN COMMERCIAL SERVICES, ILLINOIS, L.L.C., d/b/a
Transwestern, a Delaware limited liability company,
By: /s/ Michael Marconi
Name: Michael Marconi
Title: Managing Broker
[Signatures continue on following page]
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“Owner”:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION XI, 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/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer
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EXHIBIT “A”
Management Agreement
(See Attached)
SMRH:4837-4081-2234.5 EXHIBIT “A”



Citigroup Center
500 West Madison Street
Chicago, Illinois 60661
PROPERTY MANAGEMENT AGREEMENT
This Property Management Agreement (“Agreement”) is made as of December 18, 2013 between KBSlll 500 West Madison, LLC, a Delaware limited liability company ("Owner") acting through KBS Capital Advisors, LLC, a Delaware limited liability company (“Owner’s Representative”) and Transwestem Commercial Services Illinois, L.L.C., dba Transwestern ("Manager") with reference to the following facts:
A.Owner is the owner of, or is contemplating the acquisition of, the land and im- provements commonly known as Citigroup Center, 500 West Madison Street, Chicago, IL 60661 (the "Premises").
B.Manager represents that it is in the business of managing properties similar to the Premises and possesses the skills and experience necessary for the efficient first class management of the Premises.
C.WHEN EXECUTED, THIS AGREEMENT SHALL BECOME A BINDING REAL ESTATE CONTRACT.
Now, Therefore, Owner and Manager agree as follows:
ARTICLE I
BASIC TERMS
1.1Effective Date: Manager's appointment under Article m shall become effective as of December _____, 2013, the ("Effective Date"), except that if this Agreement is executed by Owner in anticipation of acquiring the Premises, the Effective Date shall be the date of such acquisition and Owner shall be under no obligation to Manager unless Owner acquires the Premises.
1.2Term: The term of this Agreement is one year from the Effective Date, and shall be deemed renewed for successive periods of one year, subject at all times to the rights of termination set forth in Section 10.1.
1.3Role of Owner's Representative: KBS Capital Advisors, LLC, a Delaware lim- ited liability company ("owner's representative") is the duly authorized representative of Owner for the purpose of this Agreement and all powers and rights of Owner under this Agreement shall be exercised by Owner's Representative and all communications, remittances and things of any kind required to be delivered to Owner shall be delivered to Owner's Representative.
1.4Limit on Amount Authorized For Non-Emergency Purchase and Repairs and Contract Amount Requiring Owner Approval. The limit on the amount Manager may incur for non-emergency purchases or repairs under Section 5.4 is $10,000.00 Owner's prior written approval is required under Section 5.5(b) of any contract for more than $10.000.00.
1.5Bank: Manager shall designate a bank (the "Bank") in which the rents and other revenues from the Premises shall be deposited pursuant to Section 5.10, subject to Owner's written approval. The account or accounts shall be named as follows:
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________________________________________________ (Lockbox)
________________________________________________ (Operating Acct)
(the “Bank Account”). The Owner may designate a different bank or a different account name at any time.
1.6Manager’s Bond or Commercial Crime Insurance Policy. Owner has approved the following bond or Commercial Crime Insurance Policy furnished by Manager pursuant to Section 5.16.
Form: Crime Insurance Policy
Insurer: Federal Insurance Company
Amount: $13,000,000.00
Expiration Date: 11/14/2014, annual renewal
1.7Address of Owner’s Representative. Unless changed by notice to Manager, the address of Owner’s Representative for notices under Section 11.2 shall be:
KBS Capital Advisors, LLC
620 Newport Center Drive, Suite 1300
Newport Beach, CA 92660
Attention: Brent Merz, Senior Vice President
1.8Address of Manager. Unless changed by notice to Owner, the address of Manager for notices under Section 11.2 shall be.
Transwestern
200 West Madison, Suite 3300
Chicago, IL 60606
Attention: Christopher Davis
1.9Management Fee. Subject to Article IX, the management fee payable to Manage-er for its services nder this Agreement shall be an amount per month equal to 2.50% of the rent, as defined in Section 9.1, payable and actually collected for the month, subject to the limitations contained in Article IX.
1.10ERISA Requirements. If Owner is an employee benefit plan or a trust formed as of a part of an employee benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 check the following space: _____. If the space is checked, the provisions of Exhibit B attached to this Agreement are made a part of this Agreement by this reference. If the space is not checked Exhibit B shall not be applicable.
ARTICLE II
INDEX OF DEFINED TERMS AND EXHIBITS
Term Where Defined
Bank Section 1.5
Budget Section 6.1
Effective Date Section 1.1
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Term Where Defined
Hazardous Waste Section 5.17
Management Fee Section 1.9 and 9.1
Manager Introductory paragraph of Agreement
Owner Introductory paragraph of Agreement
Owner’s Representative Section 1.3
Premises Recital A
Exhibit Title Reference
A Schedule of Employees Section 5.3
B ERISA Requirements Section 1.10
ARTICLE III
APPOINTMENT
Owner hereby appoints Manager as the manager for the Premises as of the Effective Date, and hereby authorizes Manager to exercise such powers with respect to the Premises as may be necessary for the performance of Manager's obligations under Article V. Manager hereby accepts such appointment on the terms and conditions hereinafter set forth for the term specified in Section 1.2. Manager shall have no right or authority, express or implied, to commit or otherwise obligate Owner in any manner whatsoever, except to the extent expressly provided in this Agreement.
ARTICLE IV
LEASING
Manager shall not be responsible for leasing services for the Premises unless Manager enters into a separate leasing agreement with Owner. If Manager enters into a leasing agreement with Owner, a default under that agreement shall automatically be a default under this Agreement. In the event the leasing agreement is terminated by reason of the default of Manager thereunder this Agreement shall terminate automatically without notice at the same time. Regardless of whether Manager has entered into a leasing agreement with Owner, Manager agrees to use its best efforts to cooperate with any leasing agent appointed by Owner for the Premises.
ARTICLE V
DUTIES OF MANAGER
5.1General Duties.
(a)Manager, on behalf of Owner, shall use its best efforts in the management and operation of the Premises and shall comply with Owner’s instructions as set forth herein or as
3



may from time to time be provided by Owner to Manager. Manager shall perform its duties in a first-class, professional, diligent, careful and vigilant manner and shall manage, operate, repair, maintain and service the Premises as a first-class facility. In connection therewith, Manager shall conduct the ordinary and usual business affairs of Owner relating to the Premises as provided in this Agreement and shall implement, or cause to be implemented, the Owner's decisions. Manager shall at all times conform to the policies and programs established by Owner and the scope of Manager's authority shall be limited thereby. Manager shall afford Owner the full benefit of the judgment, experience and advice of Manager and Manager's organization with respect to the policies to be pursued in management, and the execution of its responsibilities in a diligent, careful and vigilant manner. In particular, Manager shall have the duties and obligations set forth hereafter in this Article V.
(b)Manager acknowledges receipt of certain books and records with respect to the operation of the Premises, personal property on the Premises belonging to Owner, and all service con-tracts relating to the maintenance and operation of the Premises. Within 10 days after the Effective Date, Manager shall prepare and deliver to Owner a complete list of all books and records of Owner held by Manager, a list of personal property and a list of all service contracts.
5.2Utility and Service Contracts. Manager shall negotiate contracts on behalf of Owner for gas, electricity, water, telephone, trash collection, sewer, elevator service, janitorial service, security service and such other services as are currently being furnished to the Premises for terms of not greater than one year, unless otherwise approved by Owner in writing. All such service contracts shall be in the name of Owner and shall be terminable on 30 days notice or less. Notwithstanding the foregoing, Owner or Owner's consultants shall have the right to negotiate a master agreement for any and/or all utilities at the Premises.
5.3Employment of Personnel. All persons employed in connection with the operation and maintenance of the Premises shall either be employees of Manager or independent contractors and shall not be employees of Owner. Subject to reimbursement pursuant to Section 8.2, Manager shall select, employ, pay, supervise, direct and discharge all employees necessary for the operation and maintenance of the Premises, and use reasonable care in the selection and supervision of such employees. Manager will keep monthly time sheets bearing an explanation of the work performed by non-exempt employees, which time sheets shall be available for inspection by Owner. Manager shall be responsible for complying with all laws, regulations and collective bargaining agreements affecting such employment. Manager will be and will continue throughout the term of this Agreement to be an Equal Opportunity Employer. Before employing anyone pursuant to this Section 5.3, Manager shall submit to Owner, for approval by Owner, a list in the form of Exhibit A attached hereto, (which shall update any such list previously submitted) showing the number of employees and the wages Manager proposes to pay such employees.
5.4Maintenance.
(a)Manager shall keep the Premises in a clean and sightly condition and make all repairs, alterations, replacements and installations, do all decorating and landscaping, and purchase all supplies necessary for (i) the proper operation of the Premises, (ii) the fulfillment of Owner's obligations under any lease of space in the Premises, (iii) the fulfillment of Owner's obligations under any mortgage encumbering the Premises, provided Owner gives Manager written notice of such mortgage obligations (iv) compliance with covenants, conditions and restrictions affecting the Premises, provided Owner gives Manager written notice of such covenants, conditions and restrictions and (v) compliance with all governmental and standard insurance requirements, provided Manager shall not make any purchase or order any work costing more than the limit on the amount authorized for non-emergency purchases and repairs set faith in Section 1.4 without Owner's prior written approval, except in circumstances reasonably deemed by Manager to be an emergency requiring immediate action for the protection of the Premises or tenants or other persons or to avoid the suspension of necessary services. Manager shall promptly
4



notify Owner of the necessity for, the nature of and the cost of such emergency repairs or compliance. If Owner shall require, Manager shall submit a list of contractors and subcontractors who are performing any work, repairs, alterations, replacements or services on the Premises under Manager’s direction. All repairs, alterations and replacements shall be of at least equal quality and workmanship as the original work. Manager shall obtain certificates of insurance for all such insurance before the work begins. Manager shall furnish copies of the certificates to Owner if requested by Owner. Manager shall require that all contractors engaged by Manager or Owner and brought onto the Premises have insurance cover-age at the contractor expense, in the following minimum amounts:
(i) Worker’s Compensation: Statutory Amount
(ii) Employer’s Liability: $1,000,000 minimum
(iii) Commercial General Liability $1,000,000 per Occurrence and
$2,000,000 Aggregate for Bodi-
ly Injury and Property Dam-
age
(iv) Comprehensive Automobile: $1,000,000 each occurrence
Liability Insurance combined
and property damage. Evidence
should indicate that liability coverage evidence extends to
both owned and non-owned ve-
hicles.
(b)With respect to items (i) through (iii) noted above in Section 5.4(a), all contractors and subcontractors perfom1ing work at/on property shall name Owner additional insured to the Commercial General Liability insurance. Further, a waiver of subrogation endorsement to both the Commercial General Liability insurance policy and Workers Compensation insurance policy should be furnished in favor of Owner. All certificates obtained by Manager and furnished to Owner should evidence these items.
(c)Manager shall obtain all necessary receipts, releases, waivers, discharges and assurances necessary to keep the Premises free of any mechanics', laborers', materials suppliers' or vendors' liens in connection with the maintenance or operation of the Premises. All such documentation shall be in such form as required by Owner.
5.5Contracts with Third Parties.
(a)Manager shall directly supervise and be responsible for all independent contractors, suppliers and entities engaged in the operation, repair, maintenance, and servicing of the Premises or in any other activity within the scope of this Agreement. Excluding service agreements referenced in an annual budget approved by Owner, all of such contractors shall be subject to Owner's prior written approval. Manager shall assure that any contractor performing work on the Premises maintains insurance satisfactory to Owner, including, but not limited to, Workers' Compensation Insurance (and, when required by law, compulsory Non-Occupational Disability Insurance) and insurance against liability for injury to persons and property arising out of all such contractor's operations naming Manager, Owner and Owner's Representative as additional insureds. Manager shall obtain certificates of insurance for all such insurance before the work begins. Manager shall furnish copies of the certificates to Owner if requested by Owner.
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(b)Manager shall not execute, or otherwise enter into or bind Owner with respect to any service contract or agreement for an amount more than $ 5,000 for equipment, supplies, services or any other item without obtaining three competitive written bids. Manager shall not enter into any contract or agreement for more than the amount specified in Section 1.4 without Owner's prior written approval. All contracts, agreements or other arrangements made pursuant to this Agreement shall be, unless otherwise required by Owner, in the name of Owner and shall be terminable, without additional cost or penalty, on 30 days' notice or less and upon Owner's sale or transfer of the Premises.
5.6Purchase of Supplies and Materials. Manager shall purchase all equipment, tools, appliances, materials and supplies reasonably necessary or desirable for the maintenance and operation of the Premises. All such purchases shall be subject to the prior review and written approval of Owner if such purchases are not included in the current Budget. Such purchases shall be used solely in connection with the operation and maintenance of the Premises. In connection with the performance of its duties pursuant to this Section 5.6, Manager shall use its best efforts to qualify for any cash and trade discounts, refunds, credits, concessions or other incentives. Unless otherwise agreed in writing by Owner and Manager, all such discounts, refunds, credits, concessions and other incentives received by Manager shall inure and belong to Owner, and shall be deposited in the Bank Account when they are in the form of cash. If Owner is entitled to discounts from contractors and suppliers under any national or regional agreements, Manager shall avail itself of such national or regional agreements whenever possible.
5.7Contracts with Affiliated Entities. Manager shall not purchase materials, tools or supplies or contract for repair, construction or any other service for the Premises with a party in which Manager (or any subsidiary, affiliate or related entity) holds a beneficial interest, unless approved by Owner (in its sole and absolute discretion.)
5.8Complaints and Notices.
(a)Manager shall handle promptly complaints and requests from tenants, concessionaires and licensees and notify Owner of any major complaint made by a tenant, concessionaire or licensee. Manager shall notify Owner promptly of: (i) any notice received by Manager or known to Manager of violation of any governmental requirements (and make recommendations regarding compliance therewith); (ii) any defect or unsafe condition in the Premises known to Manager; (iii) any notice received by Manager or known to Manager of violation of covenants, conditions and restrictions affecting the Premises or noncompliance with loan documents affecting the Premises, if any; (iv) any fire, accident or other casualty or damage to the Premises; (v) any condemnation proceedings, rezoning or other governmental order, lawsuit or threat thereof involving the Premises; (vi) any violations relative to the leasing, use, repair and maintenance of the Premises under governmental laws, rules, regulations, ordinances or like provisions; (vii) defaults under any leases or other agreements affecting the Premises; or (viii) any violation of any insurance requirement. Manager shall promptly deliver to Owner copies of any documentation in its possession relating to such matters. Manager shall keep Owner reasonably in­ formed of the status of the particular matter through the final resolution thereof. In the case of any fire or other damage to the Premises or violation or alleged violation of laws respecting Hazardous Wastes, Manager shall immediately give telephonic notice thereof to Owner. Manager shall complete all necessary and customary loss reports in connection with any fire or other damage to the Premises. Manager shall retain in the records it maintains for the Premises copies of all suppo1iing documentation with reference to such notices.
(b)Manager shall promptly notify Owner and any insurance agent Owner may designate of any personal injury or property damage occurring to or claimed by any tenant or third party on or with respect to the Premises. Manager shall promptly forward to Owner with copies to any insurance agent Owner may designate any summons, subpoena or other legal document served upon Manager relating to the actual or alleged potential liability of Owner, of Manager or of the Premises.
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(c)Should any claim, demand, suit or other legal proceeding be made or instituted by any third party against Owner which arises out of any matters relating to the Premises, this Agreement or Manager's performance hereunder, Manager shall give Owner all pertinent information, and reasonable assistance, in the defense or other disposition thereof.
5.9Tenant Insurance Certificates. Manager shall secure from all tenants the originals of all certificates of insurance and renewals thereof required to be furnished by the terms of their leases. Manager shall forward copies of the certificates to Owner if requested by Owner. Manager shall establish systems and procedures to enforce lease requirements that such policies of insurance do not lapse and that all persons required to be named as additional insureds are listed thereon.
5.10Enforcement of Leases and Deposit of Revenue.
(a)Manager shall take all necessary and proper actions to enforce the terms of all leases, concessions and licenses and to receive and collect all rents, including percentage rents, and all other revenues payable to Owner from the Premises as the same become due and payable. Manager shall deposit the rents and other revenues promptly in the Bank Account. The Bank Account shall be used exclusively for such funds. Owner may supply Manager with written instructions to notify promptly third parties of such deposits, to enable transfer of Owner's monies to other bank accounts. The Bank Account shall be opened by Manager and shall name as signatories employees of Manager approved in writing by Owner and such other persons as Owner may designate in writing. All withdrawals from the Bank Account shall require two signatures. At Owner's option, the Bank Account may be comprised of two ac-counts, a checking account in which the funds on deposit shall be kept to the minimum practicable to pay day to day expenses and a money market account or other interest bearing account. Manager shall receive and collect all tenant security deposits payable to Owner by tenants of the Premises and deposit the same promptly in the Bank Account. To the extt1nt tenants are entitled to interest on such security deposits or a refund of such deposits upon vacating the Premises, Manager shall pay such interest and/or refund such deposits from the Bank Account to the tenants entitled thereto. In the event state law requires that tenant security deposits be held in a separate account, such separate account shall be established by Owner. Checks drawn to refund security deposits to tenants shall be drawn only upon the signatures of an authorized employee of the Manager and Owner's Representative. Manager shall cooperate with Owner to satisfy such conditions as Owner may place on the release of a security deposit from the Bank Account. Manager shall maintain detailed records of all security deposits and allow Owner and its designees access to such records. Manager shall also assist with obtaining from tenants any estoppels or other certificates requested by the Owner, including, without limitation, Manager's preparation, distribution, and retrieval of the estoppels and certifications.
(b)Upon prior notice and written approval of Owner, Manager shall institute on Owner's behalf and defend, at Owner's expense, through legal counsel approved by Owner all necessary legal proceedings to: (i) collect rent or other income from tenants, concessionaires and licensees on the Premises; (ii) oust or dispossess any tenants or other persons from the Premises; and (iii) ad­ dress any other matters requiring legal attention. Owner reserves the right to change the approved counsel to be used by Manager and to otherwise control litigation of any character affecting or arising out of the operation of the Premises.
5.11Compliance with Laws and Other Requirements.
(a)Manager shall supervise compliance of the Premises with all applicable laws, ordinances, rules, regulations, requirements and orders of all federal, state and municipal governments, courts, departments, commissions, boards and offices, any national or local Board of Fire Underwriters or Insurance Services offices having jurisdiction, or any body exercising functions similar to those of any of the foregoing which may be applicable to the Premises and the operations and management thereof. To the extent Manager becomes aware of the Premises being in non-compliance (or is sus-
7



pected to be in non-compliance) with any laws, ordinances, rules or regulations relating to the Premises, then Manager shall promptly notify Owner in writing of such non-compliance or suspected non­ compliance.
(b)Manager shall obtain a copy of all of Owner's insurance policies and comply or supervise compliance with the provisions of any insurance policy or policies insuring Owner in relation to the Premises (so as not to decrease the insurance coverage or increase the insurance premiums). To the extent Manager becomes aware of the Premises being in non-compliance (or is suspected to be in non-compliance) with any insurance policy or insurance policies insuring Owner in relation to the Premises, then Manager shall promptly notify Owner in writing of such non-compliance or suspected non­ compliance.
(c)In accordance with those standards maintained by the best property management company the market and at least equal to the standards and diligence currently maintained by Manager at the Premises, Manager shall take all necessary and proper actions to supervise, ;manage, over­ see and coordinate the performance by Owner (so that Owner is in compliance with and properly per­ forms its obligations) under all leases of space in the Premises and any other lease, sublease, license agreement, easement agreement, covenant:, condition, restriction, document of record, use permit, development agreement, operating agreement or other similar document governing or applicable to the title, operation, management, occupancy, promotion and leasing of the Premises known to Manager.
5.12Property Review, Tax Review and Other Programs.
(a)Manager shall participate in Owner's property review programs to the extent requested by Owner. Such review shall include asset, investment, financial and strategy profiles in form and substance satisfactory to Owner and such assistance as Owner may request in connection with appraisals of the Premises. Manager shall respond, within 10 days, to Owner's management evaluation re­ ports concerning actions to be taken by Manager to correct or modify its management standards for the operations or financial services provided for the Premises.
(b)Manager shall pa1ticipate in Owner's tax review program. Manager shall check tax assessments and assist Owner, when requested by Owner, in efforts to reduce such taxes. Manager shall promptly furnish Owner with copies of all assessment notices and receipted tax bills.
(c)Manager shall comply with Owner's energy conservation and Hazardous Wastes policies, as communicated by Owner to Manager, and submit energy consumption and Hazardous Wastes reports for the Premises in accordance with Owner's program for energy and Hazardous Wastes audits and reviews.
5.13Permits and Authorizations.
(a)Manager shall obtain and keep in full force and effect all licenses, permits, consents and authorizations as may be necessary for the maintenance, operation, management, repair, servicing or occupancy of the Premises. All or any of such licenses, permits, consents and authorizations shall be in the name of Owner, if requested in writing by Owner.
(b)Manager shall obtain and keep in full force and effect all licenses, permits, consents and authorizations as may be necessary for the proper performance by Manager of its duties and obligations under this Agreement (including, without limitation, qualification to do business) or as may be required under any lease covering any portion of the Premises. All such licenses, permits, consents and authorizations shall be in the name of Manager.
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5.14Other Duties. Manager shall, at Owner's expense, perform all other services which are necessary and appropriate to manage, operate and maintain the Premises.
5.15Confidentiality. Manager and all persons retained or employed by Manager in performing its services shall hold in confidence and not use or disclose to others any confidential or proprietary information of Owner heretofore or hereafter disclosed to Manager, including but not limited to any data, information, plans, programs, processes, costs, operations or tenants which may become known to Manager in the performance of, or as a result of, its services, except where Owner specifically authorizes Manager to disclose any of the foregoing to others or such disclosure reasonably results from the performance of Manager's duties hereunder, 0r such disclosure is required by law.
5.16Manager's Bond and Insurance.
(a)Manager shall obtain a Commercial Crime Insurance Policy covering the activities of all of its employees who may handle or be responsible for monies or other property of Owner. The Commercial Crime Insurance Policy shall be written with insurers authorized to do business in the State of Illinois and shall be rated at least A:IX by A.M. Best's Rating Service. The form, amount and insurer initially approved by Owner are set forth in Section 1.6. Manager shall maintain the Commercial Crime Insurance Policy in an amount equal to $13,000,000. Such Commercial Crime Insurance Policy shall contain a loss payee endorsement in favor of Owner as it relates to the Premises. Manager shall furnish a certificate evidencing such Commercial Crime Insurance Policy to Owner within three (3) business days following the Effective Date and thereafter immediately upon renewing or replacing such Commercial Crime Insurance Policy.
(b)Manager shall maintain the following insurance in Manager's name applicable to Manager's activities under this Agreement:
(i)Commercial General Liability Insurance, in an amount equal to $1,000,000 per occurrence and $2,000,000 aggregate, covering all Premises operations, products and completed operations.
(ii)Automobile Liability Insurance, covering both owned and non- owned vehicles, in an amount not less than $1,000,000, combined single limit.
(iii)Workers Compensation Insurance, as required by law covering all Manager's employees (and, when required by law, compulsory Non-Occupational Disability Insurance). A waiver of subrogation in favor of Landlord shall be included.
(iv)Excess Liability in an amount of $5,000,000 per occurrence, and $5,000,000 aggregate over general liability and auto liability.
(v)Professional Liability in the amount of $5,000,000 per occurrence, and $5,000,000 aggregate over general liability and auto liability.
(vi)Employment Practices Liability in the amount of $2,000,000 per occurrence, and $2,000,000 aggregate. Coverage shall include wrongful termination, sexual harassment and violations of the Americans with Disabilities Act of 1990, as amended (defense costs coverage only). Coverage should also include: (1) third party claims, (2) wage and hour law coverage, and (3) punitive damages where legally allowed and to the extent of coverage under the policy.
(c)With respect to items (i) through (vi) of Section 5.16(b) above, Manager's Insurance should also provide a waiver of subrogation endorsement to both the Commercial General
9



Liability insurance policy and Workers Compensation insurance policies in favor of Owner. All certificates provided by Manager and furnished to Owner should evidence this. Owner shall be named as an additional insured on the Commercial general Liability and Excess Liability insurance policies.
Such insurance shall be underwritten by reputable, financially sound companies with a minimum A.M. Best Ratings of A-:VII. Manager shall furnish Owner with certificates of insurance evidencing such insurance prior to the Effective Date and thereafter upon renewing or replacing such insurance.
5.17Hazardous Wastes.
(a)Manager shall not place, cause or knowingly permit to be placed on the Premises, other than in the ordinary course of performing its obligations under this Agreement and in compliance with applicable law, any hazardous or toxic wastes or substances, as such terms are defined by federal, state or municipal statutes or regulations promulgated thereunder (collectively, "Hazardous Wastes"). If Manager discovers the existence of any Hazardous Wastes on the Premises, Manager shall immediately notify Owner. If such Hazardous Wastes were placed or knowingly permitted to be placed on the Premises by Manager, Manager shall, at its cost, diligently arrange for and complete the immediate removal thereof in accordance with applicable laws and Owner's directions. Except as expressly provided herein to the contrary, Manager shall not be responsible for any Hazardous Wastes present on the Premises prior to the Effective Date hereof, unless deposited thereon by Manager, nor shall Manager be responsible for any Hazardous Wastes brought onto the Premises by a person other than Manager, its agents or employees. Manager shall immediately notify Owner of any notice received by Manager from any governmental authority of any actual or threatened violation of any applicable laws, regulations or ordinances governing the use, storage or disposal of any Hazardous Wastes and shall cooperate with Owner in responding to such notice and correcting or contesting any alleged violation at Owner's expense.
(b)Manager shall provide its employees, agents, consultants, governmental entities and the public with any notices or disclosures concerning Hazardous Wastes associated with the Premises required to be delivered by Owner or Manager under any applicable laws, including without limitation, any notices or disclosures concerning Hazardous Waste which Manager has received from Owner. Owner shall have the right to review such notices and disclosures before their distribution or submission by Manager and shall have the right, but not the obligation, to prescribe the form and content of any such notices or disclosures as long as the form and content prescribed by Owner comply with all applicable laws relating to such notices or disclosures. Owner shall provide Manager with any notices or disclosures concerning Hazardous Waste associated with the Premises required to be delivered by Owner under any applicable laws.
(c)Without limiting any other indemnification obligations provided by law or specified in this Agreement, Manager shall indemnify, defend (at Manager's sole cost and expense and with legal counsel approved by Owner which approval shall not be unreasonably withheld) and hold harmless Owner, its agents, employees and contractors from and against any and all claims, demands, losses, damage, disbursements, liabilities, obligations, fines, penalties, actions, causes of action, suits, costs and expenses, including without limitation, reasonable attorneys' fees and costs, and all other professionals' or consultants' expenses incurred in investigating, preparing for, serving as a witness in, or defending any action or proceeding, whether actually commenced or threatened, or in removing or remediating any Hazardous Wastes on, under, from or about the Premises, arising out of or relating to, directly or indirectly, Manager's breach of any of the tem1s of Section 5.17. This indemnity shall survive termination of this Agreement.
5.19Asbestos and Similar Compliance Matters. If the Premises are subject to the Occupational Safety and Health Administration's regulations relating to asbestos, or to any state law or regulation relating to asbestos (such as California's Connelley Act) or to any state law or regulation relating to carcinogenic or toxic chemicals (such as California's Proposition 65), Manager shall, at Owner's expense, comply with such laws and regulations as they relate to the Premises.
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5.19Insurance Coverage. If requested in writing by Owner, with respect to the Premises, Manager shall cause to be placed and kept in force all forms of insurance required by law or needed to protect Owner adequately, including but not limited to, public liability insurance, fire and extended coverage insurance, burglary and theft insurance, and boiler insurance. All such insurance shall be placed with such companies, in such amounts and with such beneficial interest appearing therein, as shall be specified by Owner, including Manager as an additional insured and such insurance will be primary and noncontributing with any other insurance maintained by Manager.
Should Owner elect to place such insurance coverage directly, Owner shall provide Manager with a duplicate copy of the original policy and, if requested by Owner, Manager shall duly and punctually pay on behalf of Owner all premiums with respect thereto, before the policy's lapse due to nonpayment.
5.20Noncustomary Services. Notwithstanding anything provided in this Agreement to the contrary, Manager shall not furnish or render to the tenants of the Premises services other than those services customarily furnished to tenants of properties similar to the Premises unless: (a) Manager makes a separate, adequate charge to tenants for such services; (b) such separate charge is received and retained by Manager; (c) Manager bears the cost of providing such services; (d) Manager first obtains the consent in writing of Owner; and (e) Manager certifies in writing to Owner that (i) Manager qualifies as an independent contractor with respect to Owner (and Owner's direct and indirect beneficial owners) under Section 856(d)(3) of the Internal Revenue Code, and (ii) Owner (and Owner's direct and indirect beneficial owners) does not derive or receive any income from Property Manager. For purposes of this Section 5.20, it is agreed, without limitation, that the furnishing of water, heat, light and air conditioning, public entrances and exits, the performance of general maintenance and of janitorial services and cleaning services, the collection of trash, watchmen or guard services and parking facilities are examples of services customarily furnished to the tenants of similar properties.
ARTICLE VI
BUDGETS, REPORTS, AND OTHER FINANCIAL MATTERS
6.1Budgets and Business Plans.
(a)Manager shall prepare and submit to Owner a proposed operating and capital budget (the "Budget") for the operation, repair and maintenance of the Premises for the remainder of the calendar year in which the Effective Date occurs, no later than 60 days after the Effective Date. Thereafter, on or before the date specified each year by Owner (but not later than October 31), Manager shall prepare and submit to Owner an updated draft Budget for the remainder of the current calendar year and a preliminary Budget for the next calendar year followed by a final Budget for the next calendar year, incorporating any changes requested by Owner, such Budgets shall: (i) be prepared on a cash and/or accrual basis, as directed by Owner, and (ii) show a month by month projection of income, expenses, capital expenditures and reserves. Manager agrees to use its diligent efforts to ensure that the actual cost of operating the Premises shall not exceed the approved Budget. After written approval of each such Budget by Owner, Manager shall implement the Budget and use its best efforts to ensure that the actual cost of operating the Premises shall not exceed the approved Budget.
(b)Manager shall provide Owner each year with a draft of a business plan for the Premises, on or before the date specified by Owner (but no later than October 31), containing such information as Owner may reasonably request, including (i) a list of all properties competitive with the Premises, a list of the tenants of each and all other reasonably available infom1ation respecting each, and (ii)
11



basic demographic data relating to the market area of the Premises, including population growth, major employers, employment and unemployment levels and, if the Premises is a retail property, retail sales and housing starts.
6.2Reports.
(a)Manager shall, during the term of this Agreement, deliver monthly reports to Owner relating to the management and operation of the Premises for the preceding calendar month, on or before the first working day of each month, in form and substance determined by Owner: All accounting at the Premises shall be done using the MRI accounting software currently used by Owner, and Manager shall pay the associated setup and monthly costs relating thereto.
(i)Monthly Cash Basis Financial Statements and Operating Results: As soon as practicable, and in any event by the 25th of each month, Manager shall deliver monthly cash basis financial statements, in such form as approved by Owner, which shall include, among other things, balance sheet, actual vs. budget monthly and year-to-date net operating results, lease expiration rep01t, rent roll, aging report, and security deposit ledger. See Exhibit B attached hereto for complete listing of required reports.
(ii)Monthly Property Performance Report ("PPR"): As soon as practicable, and in any event by the 5th of the foll owing month, Manager shall deliver monthly PPR, in format provided by Owner, which will include, among other things, current and prospective lease status reports and occupancy summaries, stat us of capital and leasing improvements, projected capital requirements, status of outstanding accounts receivable, explanation of cash basis budget to actual variances on a year-to-date basis, and any other significant events/issues with respect to the Premises.
(iii)Monthly U.S. GAAP Financial Statements: As soon as practicable, and in any event within 5 working days of the 20th of each month, Manager shall deliver monthly accrual basis financial statements prepared in accordance with US GAAP which shall include straightening of rent and maintenance of depreciation and amortization on both a GAAP, tax and E&P basis. Such financial statements shall be prepared in such form as approved by Owner, which shall include , among other things, balance sheet, 13 month income statement with year-to-date actual to budget comparison, depreciation and amortization schedule generated through BNA software, FAS13 schedules generated through MRI software, and supporting schedules for significant balance sheet items such account payable accruals, property taxes, insurance, prepaid, and allowance for doubtful accounts. See complete listing of required reports. Both the GAAP Report Table of Contents and Accrual Basis Report Checklist are required to be signed by both the preparer of the financial statements and their supervisor as representation that the reports are accurate and complete.
(iv)Annual U.S. GAAP Financial Statements: As soon as practicable, and in any event within 5 working days of December 31st, Manager shall deliver annual accrual basis financial statements prepared in a manner and form consistent with item (iii) above. In addition, Manager shall provide any information as required to complete the Owner's annual audited financial statements and 10-K.
(v)Other Information: From time to time, upon Owner's request, such other information with regard to Premises as may reasonably be requested.
(b)To ensure the reliability of all reports required by this section, Manager shall on or before the 15th of each month: pay all charges, fees, bills, invoices, etc., which are normally and customarily incurred monthly in connection with the operation of the Premises and any other amounts
12



which are payable that month, provided that if any charges, fees, bills, invoices, etc., for that month cannot be paid by the 15th, Manager shall accrue such items. If due to extraordinary circumstances, Manager incurs any expense after the 15th day of the month which is not reflected on the statements required by this section, Manager shall immediately notify Owner of said expense. At year-end, the same procedures would be applied.but as of the last day of the year.
6.3Remittance of Funds to Owner. No later than the 10th day of each calendar month Manager shall remit to Owner all funds collected as part of Manager's obligations hereunder in excess of (i) anticipated expenditures for the calendar month that Manager is authorized to make pursuant to the Budget, (ii) any reserves approved by Owner and (iii) the Management Fee payable pursuant to Section 9.1. Owner shall have the right to require the transfer to Owner at any time of funds in the Bank Account considered by Owner to be in excess of an amount reasonably required by Manager for disbursement and compensation purposes in connection with the operation and management of the Premises.
6.4Records. Manager agrees to keep proper records with respect to the management and operation of the Premises, and to retain those records for periods specified by Owner. Books will be prepared and maintained utilizing MRI accounting software within the KBS Netsource database and Manager shall pay the associated setup and monthly costs relating thereto. Such books, records and accounts shall include, without limitation, vouchers, statements, receipted bills and invoices, employment records, documents, notices, agreements, contracts, correspondence, leases, permits, licenses, authorizations, all collections and disbursements related to the Premises, the deposits to the Bank Account and other business and affairs of the Premises within the responsibility of Manager pursuant to this Agreement. Owner shall have the right, during the term of this Agreement, to inspect such records and audit the reports required by Section 6.2 during normal business hours. All such records, data, information and documents shall at all times be the property of Owner and shall be delivered to Owner without demand upon termination of this Agreement.
6.5Duty of Care. Manager shall exercise such control over accounting and financial transactions as is reasonably required to protect Owner's assets from loss or diminution due to error, negligence, recklessness, willful misconduct, fraud or criminal acts on the part of Manager or its agents, contractors, subcontractors, associates or employees. Losses caused by such error or activity shall be borne by Manager, to the extent such losses are not paid to Owner pursuant to the bond required by Section 5.16.
ARTICLE VII
INDEMNIFICATION
7.1Manager's Indemnification Without limiting any indemnity provided elsewhere in this Agreement, Manager shall indemnify, defend, protect and hold harmless Owner and Owner's Representative and their officers, directors, partners, members and employees from and against all claims, losses and liabilities (including all expenses and attorneys' fees and including, but not limited to, damage to the property of Owner) which arise out of (a) any breach of this Agreement by Manager or (b) the negligence, recklessness, willful misconduct, fraud or criminal acts of Manager, or its employees, officers, agents, or representatives.
7.2Owner's Indemnification Owner shall indemnify, defend, protect and hold harmless Manager and its officers, directors and employees from and against all claims, losses and liabilities (including all expenses and attorneys' fees) which arise out of the performance by Manager of its obligations and duties hereunder unless the claim, loss or liability arises from (a) any breach of this Agreement by Manager or (b) the negligence, recklessness, willful misconduct, fraud or criminal acts of Manager or its employees, officers, agents, or representatives. Owner shall defend any claim covered by
13



the foregoing indemnity by Owner, and not covered by insurance, through counsel of Owner's choice, notwithstanding any allegation of negligence by the claimant against Manager or any of its employees, officers, agents or representatives, unless Owner determines, in good fa it h, that Manager or any of its employees, officers, agents or representatives has been negligent. In no event shall Owner be obligated to provide any defense against any allegation of recklessness, willful misconduct, fraud or criminal acts. Manager shall reimburse Owner for all such reasonable costs of defense if it is determined by a final judgment of a cou1t of competent jurisdiction that Manager or any of its employees, officers, agents or representative s has been negligent or reckless or has engaged in willful misconduct, fraud or criminal acts. If Manager is required to provide its own defense against any allegation of negligence or recklessness, willful misconduct , fraud or criminal acts arising out of the performance by Manager of its obligations and duties hereunder, and if a final judgment of a court of competent jurisdiction, with regard to such defense, determines that neither Manager nor any of its employees, officers, agents or representatives was negligent, reckless or engaged in willful misconduct, fraud or criminal acts, Owner shall reimburse Manager for its reasonable costs of defense,
Nothing in this Article shall be deemed to affect any party's rights under any insurance policy procured by such party or under which such party is an additional insured.
7.3Survival All indemnities contained in this Agreement shall survive the expiration or termination of this Agreement.
7.4Limitation on Indemnity It is expressly understood and agreed that all indemnity provisions of this Article VII apply only to the extent a loss or other event is not covered by insurance required to be maintained by the Owner under this Agreement or by Manager under of this Agreement.
ARTICLE VIII
COSTS AND EXPENSES
8.1Costs and Expenses of Manager. Except as otherwise expressly provided herein, all costs and expenses incurred by or on behalf of Manager in performing its obligations hereunder shall be borne solely by Manager, including, without limitation, the following expenses or costs in connection with the operation and management of the Premises:
(a)Cost of gross salary and wages, payroll taxes, insurance, worker's compensation, pension benefits and any other benefits of Manager's supervisory and home and regional office personnel;
(b)General accounting and reporting services, as such services are considered to be within the reasonable scope of Manager's responsibilities to Owner, including cost of any audit opinion required for the SAS 70 Type II designation referred to in Section 10.l(d);
(c)Cost of forms, stationery, ledgers and other supplies and equipment used in Manager's home office or regional home office;
(d)Cost or pro rata cost of telephone and general office expenses incurred on the Premises by Manager for the operation and management of properties other than the Premises;
(e)Cost or pro rata cost of data-processing equipment, whether located at the Premises or at Manager's home or regional office;
(f)Cost or pro rata of data processing provided by computer service companies;
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(g)Cost of all bonuses, incentive compensation, profit sharing or any pay advances to employees employed by Manager in connection with the operation and management of the Premises, except for payments to individuals specifically approved in the Budget or other writing by Owner in advance;
(h)Cost of automobile purchases and/or rentals, unless the automobile is being provided by Owner.
(i)Costs attributable to claims, losses and liabilities arising from (i) any breach of this Agreement by Manager or (ii) the negligence, recklessness, willful misconduct, fraud or criminal acts of Manager's employees, agents, contractors, subcontractors or associates;
(j)Cost of comprehensive crime insurance purchased by Manager for its own account;
(k)Costs for meals, travel and hotel accommodations for Manager's home or regional office personnel who travel to and from the Premises, unless expressly authorized by Owner; and
(l)Cost of obtaining and maintaining such licenses, permits, consents and authorizations as are required by Section 5.13 (b).
8.2Reimbursement by Owner. The following expenses or costs incurred by or on behalf of Manager in connection with the operation and management of the Premises shall be reimbursable monthly by Owner by disbursement from the Bank Account to the extent they are within the Budget or approved in writing by Owner and are supported by proper documentation from Manager;
(a)Cost of salaries, fringe benefits (except as provided in Section (8.1 (g) ) and the employer's po1tion of payroll taxes for all persons employed in connection with the operation and maintenance of the Premises, incurred pursuant to Section 5.3 (minus the pro-rata portion of such costs allocable to any time spent by such employees on matters other than the Premises);
(b)Cost of Workers Compensation Insurance (and, when required by law, compulsory Non-Occupational Disability Insurance) incurred pursuant to Section 5.3; and,
(c)Cost of telephone, office supplies and similar items for any management office on the Premises authorized by Owner.
8.3Payment of Other Costs. Excluding repair and maintenance expenditures and capital costs exceeding the limit set forth in Section 1.4, Manager may make the expenditures set forth in the approved Budget. All other expenditures shall require Owner's prior written approval. Notwithstanding anything to the contrary in this Agreement, if Manager has been provided with notice of a pending sale, or negotiation for sale, of the Premises, Manager shall not be authorized to make any expenditures for repairs or capital improvements without Owner's prior written approval.
8.4Payment of Certain Charges Affecting the Premises. Manager shall pay from the Bank Account all taxes, special assessments, ground rents, insurance premiums and mortgage payments affecting the Premises as they become due and before any delinquency date, except that Owner reserves the right, at its option, to make any such payments directly, upon written notice to Manager.
8.5Insufficient Funds in Bank Account. Manager shall not be required to expend any of its own funds for disbursements chargeable to Owner. If there are insufficient funds in the Bank
15



Account for a disbursement, Manager may, after notifying Owner of such insufficiency in writing, defer making any disbursement until Owner has furnished the funds necessary for such disbursement.
8.6Nonpayment. If Manager fails to make any payment when required or fails to perform any act required under this Agreement, then Owner, after 10 days' written notice to Manager (or, in the case of any emergency, without notice) and without waiving or releasing Manager from any of its obligations hereunder, may (but shall not be required to) make such payment or perform such act. Owner shall have (in addition to any other right or remedy) the right to offset all costs and expenses incurred in exercising its rights under this Section 8.6 against any sums due or to become due to Manager, including, without limitation, the Management Fee and any costs and expenses reimbursable by Owner pursuant to Section 8.2.
ARTICLE IX
COMPENSATION
9.1Management Fee. Owner shall pay Manager as compensation for the management services rendered hereunder a management fee (the "Management Fee") at the rate specified in Section 1.9. Such Management Fee shall be payable monthly in arrears, on the 15th day of each calendar month. Manager shall withdraw such Management Fee from the Bank Account and shall account for it as required by Section 6.2. The Management Fee shall be payable only on rent actually collected. The term rent, as used in this Agreement, shall include minimum rent, percentage rent, rent escalations, common area maintenance reimbursements, and real estate tax and insurance premium reimbursements. For the purpose of determining the Management Fee, unless specifically provided otherwise in Section 1.9, rent shall not include (i) fire loss or other insurance proceeds, capital improvements, remodeling and tenant change costs (including any overhead factor payable by tenants), (ii) security deposits except for the portion applied to past due rent, (iii) prepaid rents except for the portion applied to the then current month; sums collected or paid for sales, excise or use taxes, (v) revenues from parking, (unless, by virtue of unusual circumstances, Owner has agreed in Section 1.9 or a separate written addendum to this Agreement to pay Manager a fee with respect to such revenues), or (vi) any amount paid for, or in connection with the termination of leases or other agreements with tenants, except for terminations which Owner has requested Manager to negotiate.
9.2Owner-Occupied Space. Manager shall not be entitled to any Management Fee with respect to Owner occupied space in the Premises unless a Management Fee for such space is specifically provided for in Section 1.9. In no event shall Manager be entitled to any Management Fee for any space occupied or used by it in the Premises.
ARTICLE X
TERMINATION
10.1Termination. This Agreement shall terminate at the election of:
(a)Termination by Manager Without Cause. Manager, in Manager's sole discretion, shall have the power to terminate this Agreement on sixty (60) days' notice to Owner for any or no reason, and in such event no payment of a termination fee shall be due and owing to Manager.
(b)Termination by Owner Without Cause. Owner, in Owner's sole discretion, shall have the power to terminate this Agreement on thirty (30) days' notice to Manager for any or no reason.
16



(c)Sale of the Premises. Owner shall have the power to terminate this Agreement upon the sale of the Premises (but not a pledge or mortgage) to a third party which is unaffiliated with Owner in a bona fide transaction, such termination to be effective as of the date of the sale. Owner shall use reasonable efforts to give Manager not less than thirty (30) days' written notice of such anticipated event.
(d)SAS 70 Type II Designation. Owner shall have the power to terminate this Agreement upon thirty (30) days' notice to Manager if the management of the Premises is not designated as SAS 70 Type II (to the extent such designation is still then available) compliant by a certified public accountant on or prior to December l of each calendar year. The SAS 70 Type II report should be an unqualified report and shall cover the period from January through September on an annual basis and must be issued by December l st of each calendar year.
(e)Termination by Owner with Cause. Owner shall have the power terminate this Agreement upon five (5) days' written notice to Manager, if any of the following shall occur:
(i)Manager fails to timely pay any, sum owed or due to Owner and such sum remains unpaid for more than ten (10) days after written notice from Owner;
(ii)Manager commits any fraud or breach of trust, or, makes any material misrepresentation or misappropriates funds in the performance of its obligations under this Agreement;
(iii)Manager files, or there shall be filed against Manager, a petition in bankruptcy;
(iv)Manager makes an assignment for the benefit of creditors;
(v)Substantially all of the Premises are damaged or destroyed and Owner decides not to rebuild or restore the Premises;
(vi)A substantial portion of the Premises is taken by condemnation or similar proceedings and Owner decides not to continue to operate the Premises; and
(f)Termination by Manager with Cause. Manager shall have the power to terminate this Agreement upon five (5) days' written notice to Manager, if Owner fails to timely pay to Manager the Management Fee under this Agreement and such Management Fee remains unpaid for more than thirty (30) days following receipt by Owner from Manager of written notice of such failure to pay.
(g)Effect of Termination. In the event that this Agreement is terminated, Manager shall be entitled to all fees and reimbursements earned or accrued through the date of termination, which obligation shall survive such termination and which shall be paid within thirty (30) days after termination of this Agreement. This Section 10.1(g) shall survive the expiration or termination of this Agreement.
10.2Obligations Upon Termination.
(a)Upon termination of this Agreement for any reason, Manager shall deliver the following to Owner on or before thirty (30) days following the termination date:
(i)A final accounting, reflecting the balance of income and expenses for the Premises as of the date of termination;
17



(ii)Any monies due to Owner and any tenant security deposits held by Manager with respect to the Premises; and
(iii)All keys, property, supplies, records, contracts, drawings, leases and correspondence, in existence at the time of termination and all other papers or documents pertaining to the Premises. All data, information and documents shall at all times be the property of Owner.
(iv)Manager shall remove all signs that it may have placed at the Premises containing its name and repair any resulting damage.
(b)Upon the effective date of termination of this Agreement for any reason, Manager's right to withdraw funds from the Bank Account or any other account which contains funds collected in connection with the Premises shall terminate.
(c)Upon the expiration or earlier termination of this Agreement in its entirety, the Term shall end, neither party shall have any further rights or obligations under the Agreement (other than those obligations which accrued prior to the expiration or termination of this Agreement or which by the terms hereof expressly survive, or expressly provide for obligations to be performed following, such expiration or termination).
ARTICLE XI
MISCELLANEOUS
11.1Status of Manager. It is the intention of the parties to create a relationship wherein Manager is an independent contractor in the management, operation and maintenance of the Premises, and Owner is the beneficiary of such management, operation and maintenance. Nothing herein contained shall be construed as creating the relationship of employer-employee, principal-agent or establishing any partnership or joint venture arrangement between Owner and Manager. Manager shall afford Owner the full benefit of the judgment, experience and advice of Manager and Manager's organization with respect to the policies to be pursued in management, and the execution of its responsibilities in a diligent, careful and vigilant manner.
11.2Notices. Any statement, notice recommendation, request, demand, consent or approval under this Agreement must be in writing and personally delivered or sent by overnight courier service, such as Federal Express or sent by United States, registered or certified mail, postage prepaid, return receipt requested, and shall be deemed to have been given upon the date of personal delivery or the next business day following deposit with an overnight courier or delivery by the U.S. Postal Service (or refusal to accept delivery) as indicated in the return receipt, provided that in the case of communications sent by overnight courier service or United States registered or certified mail, the communication is ad­ dressed as set forth in Section 1.7 if sent to the Owner's Representative and as set forth in Section 1.8 if sent to Manager. Either party may, by written notice, designate a different address.
11.3Ownership of Fixtures and Personal Properly. Manager acknowledges that Owner owns all fixtures and personal property situated on or about the Premises and used in or necessary for the operation, maintenance and occupancy of the Premises (including, without limitation, any personal property purchased by Manager pursuant to Section 5.6).
11.4Activities by Manager.
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(a)During the term of this Agreement, Manager shall not, unless previously approved in writing by Owner: (i) accept any contract to obtain a subtenant for any space in the Premises, or (ii) accept any contract to negotiate the termination of any lease of space in the Premises, or (iii) solicit any tenant to relocate from space in the Premises to any other location.
(b)During the Term of this Agreement, any employees of Manager who are directly and primarily responsible for managing the Premises pursuant to the terms of this Agreement , shall not: solicit, nor assist any of Manager's Affiliates (as defined below) in soliciting, any existing ten­ ant of the Premises for relocation to a different building in any other location within the West Loop sub­ market (the "Submarket"), except for a tenant who has independently hired a tenant representation broker and who has requested a leasing proposal and (i) is being displaced by another tenant's expansion in the Premises, or (ii) has expansion needs that cannot be accommodated in the Premises (which inability of the Premises to meet such tenant's expansion needs has been acknowledged by Owner in writing) and that said tenant has less than one (1) year remaining on its then existing lease term, or (iii) has a natural lease expiration within six (6) months. In no event shall any employees of Manager who are directly and primarily responsible for managing the Premises pursuant to the terms of this Agreement, during the Term of this Agreement, solicit or assist any employees of Manager's Affiliates, in soliciting any tenant of the Premises regarding a potential relocation to a proposed new development within the Submarket. Except as otherwise set forth in the first two sentences of this Section 11.4, Manager and Manager's Affiliates may engage in other activities for profit, whether in the real estate business or otherwise, including, without limitation, the ownership, operation, leasing and/or management of other properties similar to the Premises, including those of a competitive nature. Except as otherwise set forth in the first two sentences of this Section 11.4, Manager and Manager's Affiliates may in the future enter into management and leasing agreements or participate in partnerships or other ventures for such purposes.
(c)As used herein, the term "Manager's Affiliates" shall mean (i) any entity con- trolling or controlled by, or under common control, in whole or in part, with Manager, or (ii) any successor to Manager by purchase, merger, consolidation or reorganization, or (iii) any parent company of Manager, or (iv) any partnership, limited liability company, corporation, trust or other entity in which Manager or Manager's parent company has a beneficial interest whether directly (including interests held through trusts) or indirectly, or (v) any current employees of such an entity described in (i) through (iv) above, or (vi) any successors to such an entity described in (i) through (iv) above, or (vi) any entity in which the effective day to day control resides in Manager.
11.5Assignment. This Agreement shall not be assignable by Manager without the express prior written consent of Owner.
11.6Severability. Each provision of this Agreement is intended to be severable. If any term or provision hereof or the application thereof to any entity or circumsta11ce shall be determined by a court of competent jurisdiction to b,e illegal or unenforceable for any reason whatsoever, such term, provision or application thereof shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement or the application of-such term or provision to any other entity or circumstance.
11.7Costs of Suit. If Owner or Manager hall institute any action or proceeding against the other relating to this Agreement, the unsuccessful party shall reimburse the successful party for its disbursements incurred in connection therewith and for its reasonable attorneys' fees, as fixed by the court.
11.8Waiver. No consent or waiver, express or implied, by either party to or of any breach or default by the other party in the performance of its obligations hereunder, shall be valid unless
19



in writing. No such consent or waiver shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party of any other obi1gations of such party hereunder. The failure of any party to declare the other party in default shall not constit11te a waiver by such party of its rights hereunder, irrespective of how long such failure continues. The granting of of any consent or approval in any one instance by or on behalf of Owner shall not be construed to waive or limit the need for such consent in any other or subsequent instance.
11.9Remedies Cumulative. No remedy herein contained or otherwise conferred upon or reserved to Owner shall be considered exclusive of any other remedy, but such remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law, in equity or by statute. Every power and remedy given by this Agreement to Owner may be exercised from time to time and as often as occasion may arise or as may be deemed expedient.
11.10Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes all prior oral or written agreements, understandings, representations and covenants, to the extent that they are inconsistent with this Agreement.
11.11 Amendment. This Agreement may not be amended or modified except by an agreement in writing signed by the party against whom enforcement of such change or modification is sought.
11.12Governing Law. This Agreement and the obligations of Owner and Manager shall be governed by, and construed and enforced in accordance with, the laws of the State of Illinois.
11.13Gifts. Manager shall not accept any gift from vendors employed in connection with the Project, other than gratuities of nominal value received in the ordinary course of business. Manager shall not, on Owner's behalf or in connection with the services being rendered under this Agreement, provide any gift to or otherwise entertain any public official. The term "public official" means every member, officer, employee or consultant of a state or local agency. The term "gift," as used herein, includes any service or merchandise of any kind, discounts on merchandise or services, meals and any other item of value. Under no circumstance shall Owner be deemed to have waived the provisions of this Section as to a specific gift unless the waiver is in writing and signed by two authorized officers of Owner.
11.14OFAC Representations, Warranties and Indemnification. Owner and Manager each represents and warrants that (i) it is not, and none of its partners, members, managers, employees, officers, directors, representatives or agents is, a person or: entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property any Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or under any other law, rule, order, or regulation that is enforced or administered by OFAC (such persons and entities each being a "Prohibited Person"); (ii) it is not acting directly or indirectly, for or on behalf of any Prohibited Person; (iii) it is not engaged in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of any Prohibited Person; and (iv) it will not contract with or otherwise engage in any dealings or transactions or be otherwise associated with any Prohibited Person.
11.15ANTI-DISCRIMINATION. It is illegal for either the Owner or the Broker to refuse to display or sell to any person because of one's membership in a protected class, e.g., race, color, religion, national origin, sex, ancestry, age, marital status, physical or mental handicap, familial status, sexual orientation, unfavorable discharge from the military service, order of protection status or any other class protected by Article 3 of the Human Rights Act.
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11.16Electronic Scanned Signatures. The parties agree that an electronically scanned signed copy of this Agreement transmitted by one party to the other party(ies) by electronic transmission shall be binding upon the sending party to the same extent as if it had delivered a signed original of this Agreement.
11.17Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one Agreement
[Signatures on next page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
Owner: Manager:
KBSIII 500 West Madison, LLC, a Delaware limited
liability company
Transwestern Commercial Services Central Region,
L.P.
By: KBS Capital Advisors, LLC, a Delaware
limited liability company, acting as Owner’s
Representative
By: /s/ Gary Nussbaum
By: /s/ Brett Merz Name: Gary Nussbaum
Name: Brett Merz Its: Managing Broker
Its: Senior Vice President
22



EXHIBIT A
SCHEDULE OF EMPLOYEES
This Exhibit A is attached to and made a part of that certain Property Management Agreement (the "Agreement") dated as of December _____, 2013 executed by Transwestem Commercial Services Illinois, L.L.C. dba Transwestem ("Manager").
This schedule is to be updated and submitted for Owner's approval pursu-ant to Section 5.3 of the Agreement prior to any of the following events occurring: (i) employment of new personnel, (ii) any change in compensation and/or fringe benefits or employee benefits, (iii) annually upon approval of the operating budget for the next year, or (iv) any change in the onsite cost allocation percentage (personnel or othe1wise) be-tween the Premises and other properties managed by any of the onsite staff.
POSITION NUMBER WAGE ALLOCATION TO PROPERTY
General Manager
1 100%
Director of Operations 1 100%
Property Manager 1 100%
Senior Accountant 1 100%
Director of Securitv 1 100%
Junior Accountant 1 100%
Administrative Receotion 1 100%
EXHIBIT A - 1



EXHIBIT B
ERISA REQUIREMENTS
This Exhibit B is attached to and made a part of that certain Real Estate Management Agreement (the "Agreement") dated as of December_, 2013 executed by KBSIII 500 West Madison, LLC, a Delaware limited liability company ("Owner") and Transwestern Commercial Services Illinois, L.L.C., dba Transwestem ("Manager"), only if the Owner as an employee benefit plan as that term is defined in Section 3(3) of the Employ-ee Retirement Income Security Act of 1974, as amended ("ERISA").
Manager represents and warrants that it is not (except by virtue of entering into this Agreement) a party in interest as that term is defined in Section 3(14) of ERISA as to Owner. The text of Section 3(14) is set forth below. Manager shall not knowingly employ, enter into a contract with or purchase any goods for the Premises from any party in interest without Owner's prior written approval.
Section 3(14) of ERISA reads as follows:
The term "party in interest" means, as to an employee benefit plan --
(A)any fiduciary (including, but not limited to, any administrator, of-ficer, trustee, or custodian), counsel, or employee of such employee benefit plan;
(B)a person providing services to such plan;
(C)an employer any of whose employees are covered by such plan;
(D)an employee organization any of whose members are covered by such plan;
(E)an owner, direct or indirect, of 50 percent or more of --
(i)the combined voting power of all classes of stock enti-tled to vote or the total value of shares of all classes of stock of a corporation.
(ii)the capital interest or the profits interest of a partnership, or,
(iii)the beneficial interest of a trust or unincorporated enter-prise which is an employer or an employee organization described in subparagraph (C) or (D);

EXHIBIT B - 1



(F)a relative (as defined in paragraph (15) of any individual described in subparagraph (A), (B), (C), or (E);
(G)a corporation, partnership, or trust or estate of which (or in which) 50 percent or more of--
(i)the combined voting power of all classes of stock enti-tled to vote or the total value of shares of all classes of stock of such corporation,
(ii)the capital interest or profits interest of such partnership, or
(iii)the beneficial interest of such trust or estate, is owned directly or indirectly, or held by persons described in subparagraph (A), (B), (C), (D), or (E);
(H)an employee, officer, director (or an individual having powers or responsibilities similar to those of officers or directors), or a 10 percent or more shareholder directly or indirectly, of a person de-scribed in subparagraph (B), (C), (D), (E), or (G), or of the em-ployee benefit plan; or
(I)a 10 percent or more (directly or indirectly in capital or profits) partner or joint venturer of a person described in subparagraphs (B), (C), (D), (E), or (G).
The Secretary, after consultation and coordination with the Secretary of the Treasury, may by regulation prescribe a percentage lower than 50 per­ cent for subparagraphs (E) and (G) and lower than 10 percent for subpara-graphs (H) or (1). The Secretary may prescribe regulations for determining the ownership (direct or indirect) of profits and beneficial interests, and the manner in which indirect stockholdings are taken into account. Any per-son who is a party in interest with respect to a plan to which a trust de-scribed in section 501(c)(22) of the Internal Revenue Code of 1954 is permitted to make payments under Section 4223 shall be treated as a party in interest with respect to such trust.
Section 3(15) of ERISA (referred to in Paragraph F, Section 3(14) reads as follows:
The term "relative" means a spouse, ancestor, lineal descendant, or spouse of a lineal descendant.

EXHIBIT B - 2



CONSTRUCTION MANAGEMENT ADDENDUM
TENANT IMPROVEMENTS AND OTHER CONSTRUCTION
THIS ADDENDUM APPLIES ONLY IF IT IS SEPARATELY SIGNED BY OWNER
AND MANAGER
THIS ADDENDUM is attached to and is a part of a Real Estate Property Management Agreement dated as of December _____, 2013 executed by KBSIII 500 West Madison, LLC, a Delaware limited liability company ("Owner") and Transwestern Commercial Services Illinois, L.L.C., dba Transwestern ("Manager").
1.Construction Management Fee-Tenant Improvements. In addition to the Management Fee, Manager shall be entitled to a construction management fee for the construction management services described in Section 5 of this Addendum with respect to tenant improvements, if the budgeted cost of the job approved in writing by Owner exceeds the greater of: (i) $10,000.00 or (ii) the actual cost of painting and carpeting the applicable premises. The fee shall be payable upon 100 % lien free completion, and is calculated cumulatively based on the cost of construction as follows:
2.The construction management fee shall be based on the following schedule:
Cost of Construction Fee
The first $10,000 is 0%
The next $40,000 is
3.5%
The next $50,000 is 2.8%
The next 150,000 is 2.1%
Amounts over $250,000 are subject to negotiation
3.Construction Management Fee-Other Construction. The Manager shall be entitled to a construction management fee on other construction work, at the percentage and subject to the limitation per job set forth in paragraph 1 above, if the budged cost of the job approved in writing by Owner exceeds $10,000.00 and the cost is capitalized under generally accepted accounting principles.
4.Owner's Approval. Prior to the commencement of Construction Management Services ("CMS") for each job, Owner must provide written approval of the individual responsible for performing the CMS and authorize Manager to provide CMS pursuant to the Owner approved scope of work for such CMS.
5.Description of Construction Management Services. CMS shall consist of coordinating, overseeing and expediting the completion of tenant improvements and other capital construction, and shall include, but not limited to, the following:
Design Phase

CONSTRUCTION MANAGEMENT ADDENDUM - 1



Architecture and engineering consultant selection process
Space Planning - coordination between leasing and management for establishing work letter, building system capabilities and system descriptions
Preliminary cost estimates based on initial tenant space plan
Review with leasing to evaluate cost reduction opportunities and/or proposal terms
Create engineering scope and coordinate with building engineer
Prepare budget and schedule
Construction document process and tenant acceptance of plans
Issue drawings for permit
Bid Phase
Prepare request for proposal for project
Select contractors to bid
Hold preconstruction meeting. review project scope, building rules and regulations and project requirements
Review bids and qualify them
Prepare bid comparison
Contractor selection
Construction Phase
Coordinate commencement of construction
Monitor demolition to assure it is in accordance with building rules
Establish construction progress meeting schedule
Resolve field conflicts
Review change orders
Monitor construction work
Interface with tenant as required
Review payment applications and supporting paperwork including lien waivers
Assist in preparation of punchlist
Contract close-out
Coordinate with tenant on telephone/data, furniture and move in
Notwithstanding anything to the contrary herein, Manager shall not have any liability for design or construction means, methods, techniques, sequences and procedures employed by any architect or general contractor or subcontractor in the performance of its contract, or for safety precautions and programs in connection with the foregoing, and shall not be responsible for, or have any liability for, the failure of any such general contractor or subcontractor to carry out its work. Furthermore, Manager shall not have control over or charge of acts or omissions of the Owner, any architect, or any contractor or subcontractor, or their agents or employees, or any other persons performing portions of the construction not directly overseen by Manager. However, this Section 14 does not relieve Manager of its obligations to provide construction management services as set forth in this Agreement in a good and professional manner in accordance with top quality industry standards for construction managers performing services for projects of similar size, scope and quality
CONSTRUCTION MANAGEMENT ADDENDUM - 2



standards for construction managers performing services for projects of similar size, scope and quality
THIS CONSTRUCTION MANAGEMENT ADDENDUM is executed by the parties concurrently with the Real Estate Property Management Agreement referred to above.
Owner: Manager:
KBSIII 500 West Madison, LLC, a Delaware limited
liability company
Transwestern Commercial Services Illinois, L.L.C.
dba Transwestern
By: KBS Capital Advisors, LLC, a Delaware
limited liability company, acting as Owner’s
Representative
By: /s/ Gary Nussbaum
By: /s/ Brett Merz Name:
Name: Brett Merz Its:
Its: Senior Vice President
CONSTRUCTION MANAGEMENT ADDENDUM - 3



FIRST AMENDMENT TO PROPERTY MANAGEMENT AGREEMENT
This First Amendment to Property Management Agreement (this “First Amendment”) is made and entered into by and between KBSIII 500 WEST MADISON, LLC, a Delaware limited liability company (“Owner”), and TRANSWESTERN COMMERCIAL SERVICES ILLINOIS, L.L.C., d/b/a Transwestern, a Delaware limited liability company (“Manager”), and shall be effective for all purposes as of August , 2020 (the “Effective Date”).
W I T N E S S E T H:
WHEREAS, Owner and Manager are parties to that certain Property Management Agreement dated December 18, 2013 (the “Agreement”), pursuant to which Owner retained the services of Manager in connection with the management and operation of the real property owned by Owner located at 500 W. Madison Street, Chicago, IL 60661 and further described therein (referred to in the Agreement and herein as the “Premises”); and
WHEREAS, due to a scrivener’s error, the signature block in the Agreement listed the Manager as “Transwestern Commercial Services Central Region, L.P.” The parties acknowledge and agree that the correct entity of Manager is TRANSWESTERN COMMERCIAL SERVICES ILLINOIS, L.L.C., d/b/a Transwestern, a Delaware limited liability company, and that, despite the scrivener’s error, Transwestern Commercial Services Illinois, L.L.C. is the proper Manager entity under the Agreement ;
WHEREAS, Owner and Manager wish to amend the Agreement to clarify certain the terms of the Agreement Lease, as more particularly described hereinbelow;
NOW, THEREFORE, pursuant to the foregoing, and in consideration of the mutual covenants and agreements contained herein and in the Agreement, the receipt and sufficiency of which are hereby acknowledged, the Agreement is hereby amended as follows:
1.Defined Terms/Recitals/Ratification. All capitalized terms used herein shall have the same meaning as defined in the Agreement, unless otherwise defined in this First Amendment. The parties hereby affirm that the recitals noted above are true and accurate and are incorporated herein in their entirety as part of this First Amendment. TRANSWESTERN COMMERCIAL SERVICES ILLINOIS, L.L.C., d/b/a Transwestern, a Delaware limited liability company hereby ratifies the Agreement (as amended herein) and acknowledges that it is the Manager under the Agreement as if the original signature block of the Agreement had listed it as the original signator.
2.Bid Information. Pursuant to Section 5.5(b) of the Agreement, Manager is required to obtain three competitive written bids with respect to contracts or agreements for equipment, supplies services, or any other item for amounts more than $5,000. For clarity, (i) Manager shall present summaries of such three (3) bids to Landlord with applicable supporting documentation (including the bid itself) and (ii) shall provide KBS approval forms for such bids in the forms attached hereto as Exhibit A for Landlord’s approval (using the appropriate form shown on Exhibit A as applicable to the subject project, or such other form as Landlord may require from time to time).
3.Signatures for Withdrawal. Pursuant to Section 5.10(a) of the Agreement, all withdrawals from the Bank Account require two (2) signatures. The parties agree that withdrawals of less than $10,000 being made for amounts payable under the Agreement shall only require one (1) signature.




4.Schedule of Employees. The parties acknowledge that the Schedule of Employees shown on Exhibit A of the Agreement (as updated from time to time by Landlord’s approval of such Schedule pursuant to Section 5.3 of the Agreement and by the terms of Exhibit A of the Agreement) shall include annual salary amounts for applicable employees (in addition to the wage allocation to the property). The current approved Schedule of Employees is attached hereto as Exhibit B.
5.Project Management. Notwithstanding anything in the Agreement to the contrary (including, without limitation, Section 5.5(a) of the Agreement), Manager acknowledges that Owner shall have the right to engage third-parties to perform project management or construction management at the Premises (and that Manager shall not have the exclusive right to project management or construction management at the Premises). Manager shall not be entitled to any fees with respect to construction management or project management for which Landlord engages a third-party to perform such services, and manager shall cooperate with any such third-party manager with respect to access to the Premises and performance of such services.
6.Miscellaneous Provisions.
(a)With the exception of those terms and conditions specifically modified and amended herein, the herein referenced Agreement shall remain in full force and effect in accordance with all its terms and conditions. In the event of any conflict between the terms and provisions of this First Amendment and the terms and provisions of the Agreement, the terms and provisions of this First Amendment shall supersede and control.
(b)This First Amendment may be executed in several counterparts (including via electronic signature), each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. To facilitate execution of this First Amendment, the parties may execute and exchange facsimile or .PDF counterparts of the signature pages and facsimile or .PDF counterparts shall serve as originals.
[SIGNATURE PAGE TO FOLLOW]
2



SIGNATURE PAGE OF OWNER
TO FIRST AMENDMENT TO PROPERTY MANAGEMENT AGREEMENT BETWEEN KBSIII WEST MADISON, LLC
AND TRANSWESTERN COMMERCIAL SERVICES ILLINOIS, L.L.C. d/b/a Transwestern
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written.
OWNER:
KBSIII 500 WEST MADISON, LLC,
a Delaware limited liability company,
By: KBS Capital Advisors LLC,
a Delaware limited liability
company, as agent
By: _________________________________
Dan Park,
Senior Vice President
Date: __________________________________,2020
S-1



SIGNATURE PAGE OF MANAGER
TO FIRST AMENDMENT TO PROPERTY MANAGEMENT AGREEMENT BETWEEN KBSIII WEST MADISON, LLC
AND TRANSWESTERN COMMERCIAL SERVICES ILLINOIS, L.L.C. d/b/a Transwestern

PROPERTY MANAGER:
TRANSWESTERN COMMERCIAL SERVICES
ILLINOIS, L.L.C., d/b/a Transwestern, a Delaware limited liability company
By: /s/ Michael Marconi
Name: Michael Marconi
Title: Managing Broker
2



EXHIBIT A
KBS APPROVAL FORMS
See attached.
A-1



KBSRIIIQ32020EX1012PIC11.JPG
A-2



KBSRIIIQ32020EX1012PIC21.JPG
A-3



KBSRIIIQ32020EX1012PIC31.JPG
A-4



KBSRIIIQ32020EX1212PIC41.JPG
A-5


Exhibit 31.1
Certification of Chief Executive Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
I, Charles J. Schreiber, Jr., certify that:
1.I have reviewed this quarterly report on Form 10-Q of KBS Real Estate Investment Trust III, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 13, 2020 By:
/S/ CHARLES J. SCHREIBER, JR.    
Charles J. Schreiber, Jr.
Chairman of the Board,
Chief Executive Officer, President and Director
(principal executive officer)



Exhibit 31.2
Certification of Chief Financial Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
I, Jeffrey K. Waldvogel, certify that:
1.I have reviewed this quarterly report on Form 10-Q of KBS Real Estate Investment Trust III, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 13, 2020 By:
/S/ JEFFREY K. WALDVOGEL
Jeffrey K. Waldvogel
Chief Financial Officer, Treasurer and Secretary
(principal financial officer)



Exhibit 32.1
Certification pursuant to 18 U.S.C. Section 1350,
as Adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q of KBS Real Estate Investment Trust III, Inc. (the “Registrant”) for the quarter ended September 30, 2020, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Charles J. Schreiber, Jr., Chief Executive Officer, President and Director of the Registrant, hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge and belief:
1.The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2.The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

Date: November 13, 2020 By:
/S/ CHARLES J. SCHREIBER, JR.     
Charles J. Schreiber, Jr.
Chairman of the Board,
Chief Executive Officer, President and Director
(principal executive officer)



Exhibit 32.2
Certification pursuant to 18 U.S.C. Section 1350,
as Adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q of KBS Real Estate Investment Trust III, Inc. (the “Registrant”) for the quarter ended September 30, 2020, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Jeffrey K. Waldvogel, the Chief Financial Officer, Treasurer and Secretary of the Registrant, hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge and belief:
1.The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2.The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

Date: November 13, 2020 By:
/S/ JEFFREY K. WALDVOGEL
Jeffrey K. Waldvogel
Chief Financial Officer, Treasurer and Secretary
(principal financial officer)