ASSUMPTION AND JOINDER AGREEMENT
Exhibit 10.12
This ASSUMPTION AND JOINDER AGREEMENT, dated as of January 21, 2014 (this "Joinder Agreement"), is made by KBS 000 XXXXXXXXXX XXXXXX, XXX, a Delaware limited liability company (the "Additional Borrower"), the Other Additional Borrower referred to below, each of the other Borrowers party to the Loan Agreement referred to below, U.S. BANK NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders party to the Loan Agreement referred to below ("Agent"), and the Lenders described below.
RECITALS
A Reference is made to that certain Loan Agreement dated as of December 13, 2013 (as amended, restated, extended, supplemented, or otherwise modified in writing from time to time, the "Loan Agreement"), among KBS ADP PLAZA, LLC, a Delaware limited liability company, KBS CITY GATE PLAZA, LLC, a Delaware limited liability company, KBS GREAT OAKS, LLC, a Delaware limited liability company, KBS MERIDIAN TOWER, LLC, a Delaware limited liability company, KBS NASHVILLE INDUSTRIAL PORTFOLIO I, LLC, a Delaware limited liability company, KBS NORTH CREEK, LLC, a Delaware limited liability company, KBS RIVERTECH, LLC, a Delaware limited liability company, KBS RIVERVIEW BUSINESS CENTER I & II, LLC, a Delaware limited liability company, KBS ROYAL PARKWAY CENTER I & II, LLC, a Delaware limited liability company, KBS ROYAL RIDGE, LLC, a Delaware limited liability company, KBS SABAL VI, LLC, a Delaware limited liability company, KBS UNIVERSITY PARK, LLC, a Delaware limited liability company, and KBS WOODFIELD PRESERVE, LLC, a Delaware limited liability company, and each other New Borrower that has become a Borrower under the Loan Agreement (each, an "Existing Borrower" and, collectively, "Existing Borrowers"), each lender from time to time a party hereto (individually, a "Lender" and collectively, the "Lenders"), and Agent. Any capitalized term used and not defined in this Joinder Agreement shall have the meaning given to such term in the Loan Agreement. This Joinder Agreement is a "Joinder Agreement" described in the Loan Agreement.
B. The Additional Borrower is a New Borrower which is owned, directly or indirectly, by KBS Real Estate Investment Trust, Inc., a Maryland corporation ("KBS REIT").
C. Pursuant to Section 7.21 of the Loan Agreement, Existing Borrowers and the Additional Borrower have requested that certain real property owned by the Additional Borrower (the "Additional Property") more particularly described on Exhibit A attached hereto be included in the Borrowing Base Value and Borrowing Base Amount as an Additional Property. The legal description of the Additional Property attached as Exhibit A hereto is hereby added to Exhibit C of the Loan Agreement. The Additional Property Improvements (the "KBS 000 Xxxxxxxxxx Xxxxxx Improvements") are described in Exhibit B attached hereto and incorporated herein, and are by this reference added to Exhibit B of the Loan Agreement. Loan proceeds in the amount of (i) $2,500,000.00 are being disbursed from the 825 University Holdback and (ii) $0 are being disbursed from the Tysons Dulles Plaza Holdback (collectively, the "Initial Holdback Disbursement") in connection with adding the Additional Property and the Other Additional
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Property (as defined below) as collateral for the Loan. In accordance with Section 1.1 of the Loan Agreement, following the disbursement of the Initial Holdback Disbursement, amounts remaining in the 825 University Holdback and all amounts in the Tysons Dulles Plaza Holdback shall be released and available for disbursement, subject to the terms and conditions of the Loan Agreement. The U.S. EIN of Additional Borrower is 00-0000000.
D. Concurrently with the execution of this Joinder Agreement, KBS TYSONS DULLES PLAZA, LLC, a Delaware limited liability company (the "Other Additional Borrower") is executing an Assumption and Joinder Agreement to include certain real property owned by the Other Additional Borrower (the "Other Additional Property") in the Borrowing Base Value and Borrowing Base Amount as an "Additional Property" (as such term is defined in the Loan Agreement).
E. The Committed Amount of the Loan is currently $250,000,000.00 (as amended, the "Loan") as evidenced, in part, by the Loan Agreement and the "Notes" as defined and described in the Loan Agreement. Upon the effective date of this Joinder Agreement (and prior to the disbursement of any portion of the Committed Amount in connection with adding the Additional Property or the Other Additional Property as collateral for the Loan), the outstanding principal balance of the Loan is $185,000,000.00.
F. As one of the conditions to the admission of the Additional Property as an "Additional Property" under the Loan Agreement, the parties hereto are executing this Joinder Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and the terms, covenants, and conditions of this Joinder Agreement, the receipt of which and sufficiency of which are hereby acknowledged, the Additional Borrower, the Other Additional Borrower, Existing Borrowers, Agent and Lenders agree as follows:
1.Joinder as Borrower; Additional Property as a Property. The Additional Borrower assumes and agrees to be bound by all of the terms, obligations, covenants, representations, warranties and conditions of the Loan Agreement, the Notes, the Fee Letter, the Environmental Indemnity, jointly and severally with the other Persons comprising the Borrowers, and assumes and agrees to be bound thereby, and shall be deemed to be a party thereto, as a Borrower and Indemnitor (as defined in the Environmental Indemnity), as if the Additional Borrower had originally executed the Loan Agreement, the Notes, the Fee Letter and the Environmental Indemnity. The Additional Borrower hereby agrees (i) that the Additional Property shall constitute a Property for all purposes under the Loan Agreement, Environmental Indemnity and the other Loan Documents and (ii) to execute and deliver such additional documents as Agent may reasonably require, including a Deed of Trust.
2. Consent And Acceptance. Existing Borrowers, Other Additional Borrower, Agent, Lenders and Guarantor (by its signature to the consent attached hereto) hereby consent to the assumption of the Loan Agreement, the Notes, the Fee Letter, and the Environmental Indemnity and the Obligations by the Additional Borrower and agree and acknowledge that after the date of this Joinder Agreement, (i) the Additional Borrower shall be a "Borrower," and (ii) the Additional Property shall be a "Property," for all purposes of the Loan Agreement, the Notes,
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the Fee Letter and the Environmental Indemnity and each of the other Loan Documents, including for purposes of the indemnity provided to Agent and Lenders by each of the Borrowers (including Additional Borrower upon execution of this Joinder Agreement and the Other Additional Borrower upon execution of the Other Joinder Agreement) under the Environmental Indemnity.
3. Ownership of Additional Borrower. The Additional Borrower, the Other Additional Borrower and each other Borrower represent and warrant to Lenders and Agent that the Additional Borrower is wholly-owned, directly or indirectly, by KBS REIT.
4. Legal Status; Organizational Documents. The Additional Borrower represents and warrants to Agent and each Lender that (i) true, correct and accurate copies of all of the organizational documents of the Additional Borrower have been delivered to Agent and (ii) Additional Borrower is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and is duly registered and qualified to transact business in, and is in good standing under the laws of, the state in which the Additional Property it owns is located, and has all power, authority, permits, consents, authorizations and licenses necessary to carry on its business, to construct, equip, own and operate such Additional Property and to execute, deliver and perform this Agreement and the other Loan Documents; all consents of the members of Additional Borrower necessary to authorize the execution, delivery and performance of this Joinder Agreement and of the other Loan Documents which have been or are to be executed by and on behalf of Additional Borrower have been duly obtained and are in full force and effect; this Joinder Agreement and such other Loan Documents have been duly authorized, executed and delivered by and on behalf of Additional Borrower so as to constitute this Joinder Agreement and such other Loan Documents the valid and binding obligations of Additional Borrower, enforceable in accordance with their terms; and Additional Borrower has complied with all applicable assumed and/or fictitious name requirements of the state in which it is organized and of the state in which the Additional Property it owns is located, if different.
5. No Default; Compliance with Loan Agreement. The Additional Borrower, the Other Additional Borrower and each other Borrower covenant, represent and warrant to Agent and each Lender that:
(a) Additional Borrower owns fee title to the Additional Property, does not own any other property other than the Additional Property, and has satisfied the other requirements set forth in Section 7.21(b) of the Loan Agreement.
(b) To the best of Additional Borrower's knowledge, the Additional Property is free from all Hazardous Substances except as disclosed in that certain Phase I Environmental Site Assessment dated as of November 22, 2013 prepared by Global Realty Services Group (Project No. 13-17187.1), in the form disclosed to Agent as of the date of the recordation of a Deed of Trust against the Additional Property.
(c) The Additional Property and all related personal property is free and clear of all liens, charges and encumbrances other than Permitted Encumbrances (as defined in the Loan Agreement) or except as otherwise agreed by Agent in writing. For purposes of clarification, the Deed of Trust to be recorded against the Additional Property
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shall be a "Deed of Trust" as defined in the Loan Agreement and the title policy insuring Agent's and the Lenders' lien under such Deed of Trust shall be a "Title Policy" as defined in the Loan Agreement. Exhibit D to the Loan Agreement is hereby deemed to include reference to such Title Policy and Deed of Trust.
(d) Except as otherwise disclosed to Agent in writing, each of the representations and warranties made by Borrowers pursuant to the Loan Agreement, including, without limitation, those set forth in Article IV therein, are true and correct in all material respects with regard to the Additional Borrower.
(e) No Event of Default, or event which, with notice or lapse of time or both, could become an Event of Default, has occurred and is continuing under any Loan Document.
(f) Additional Borrower has been afforded the opportunity to carefully read this Agreement, the Loan Agreement, the Notes, the Fee Letter and the Environmental Indemnity (as such documents have been amended), and to review such documents with an attorney of Additional Borrower's choice before signing this Agreement. Additional Borrower acknowledges having read and understood the meaning and effect of this Agreement, the Loan Agreement, the Notes, the Fee Letter, and the Environmental Indemnity before signing this Agreement and understands it shall thereafter be bound by the Loan Documents and liable for all Obligations owing by Borrowers under the Loan Documents.
6. Counterparts; Joint Borrower Provisions. This Joinder Agreement may be executed in multiple counterparts, each of which shall constitute an original but all of which when taken together shall constitute one and the same instrument. Section 7.19 of the Loan Agreement (the joint borrower provisions) is by this reference hereby incorporated herein in its entirety.
7. Governing Law. The validity, enforcement, and interpretation of this Joinder Agreement, shall for all purposes be governed by and construed in accordance with the laws of the State of California and applicable United States federal law, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. To the maximum extent permitted by applicable law, Additional Borrower hereby waives any right to a trial by jury in any action relating to the Loan and/or the Loan Documents.
8. Limited Recourse Provision. Section 7.25 of the Loan Agreement (the limited recourse provisions) is by this reference hereby incorporated herein in its entirety and KBS REIT ACQUISITION V, LLC shall be deemed to be a specifically referenced entity therein.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Joinder Agreement is executed as of the date first above written.
ADDITIONAL BORROWER:
KBS 000 XXXXXXXXXX XXXXXX, XXX,
a Delaware limited liability company
By: | KBS REIT ACQUISITION V, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: |
a Maryland corporation,
its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
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OTHER ADDITIONAL BORROWER:
KBS TYSONS DULLES PLAZA, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXXIII, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: |
a Maryland corporation,
its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
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EXISTING BORROWERS:
KBS UNIVERSITY PARK, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXXVII, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
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KBS ADP PLAZA, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXV, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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KBS CITY GATE PLAZA, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXXX, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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KBS GREAT OAKS, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXXV, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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KBS MERIDIAN TOWER, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXXVIII, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
S-7
KBS NASHVILLE INDUSTRIAL PORTFOLIO I, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXVIII, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
S-8
KBS NORTH CREEK, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXXIX, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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KBS RIVERTECH, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXXI, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: | KBS REAL ESTATE INVESTMENT TRUST, INC., |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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KBS RIVERVIEW BUSINESS CENTER I & II, LLC,
a Delaware limited liability company
By: | KBS NASHVILLE INDUSTRIAL PORTFOLIO I, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT ACQUISITION XXVIII, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: | KBS REAL ESTATE INVESTMENT TRUST, INC., |
a Maryland corporation,
its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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KBS ROYAL PARKWAY CENTER I & II, LLC,
a Delaware limited liability company
By: | KBS NASHVILLE INDUSTRIAL PORTFOLIO I, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT ACQUISITION XXVIII, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: | KBS REAL ESTATE INVESTMENT TRUST, INC., |
a Maryland corporation,
its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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KBS ROYAL RIDGE, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XVII, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: | KBS REAL ESTATE INVESTMENT TRUST, INC., |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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KBS SABAL VI, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION X, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: | KBS REAL ESTATE INVESTMENT TRUST, INC., |
a Maryland corporation,
its general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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KBS WOODFIELD PRESERVE, LLC,
a Delaware limited liability company
By: | KBS REIT ACQUISITION XXX, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS REIT PROPERTIES, LLC, |
a Delaware limited liability company,
its sole member
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: | KBS REAL ESTATE INVESTMENT TRUST, INC., |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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AGENT:
US BANK NATIONAL ASSOCIATION,
a national banking association, as Agent
By: | /s/ Xxxxxx X. Xxxxxxx |
Name: | Xxxxxx X. Xxxxxxx |
Title: | Senior Vice President |
LENDER(S):
US BANK NATIONAL ASSOCIATION,
a national banking association
By: | /s/ Xxxxxx X. Xxxxxxx |
Name: | Xxxxxx X. Xxxxxxx |
Title: | Senior Vice President |
BANK OF AMERICA , N.A.,
a national banking association
By: | /s/ Xxxxx XxXxxx |
Name: | Xxxxx XxXxxx |
Title: | S.V.P |
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CONSENT OF GUARANTOR:
KBS REIT Properties, LLC, a Delaware limited liability company ("Guarantor") hereby (i) consents to the terms, conditions and provisions of the foregoing Joinder Agreement and the transactions contemplated by such Joinder Agreement, including, without limitation, the admission of the Additional Borrower as a Borrower under the Loan Agreement and the other Loan Documents, and the assumption of the Obligations by the Additional Borrower, and (ii) reaffirms the full force and effectiveness of that certain Repayment Guaranty dated as of December 13, 2013, executed by Guarantor in favor of Agent, as it has been amended.
KBS REIT PROPERTIES, LLC,
a Delaware limited liability company
By: | KBS LIMITED PARTNERSHIP, |
a Delaware limited partnership,
its sole member
By: | KBS REAL ESTATE INVESTMENT TRUST, INC., |
a Maryland corporation,
general partner
By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. |
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Chief Executive Officer
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EXHIBIT A
Legal Description of Additional Property
(825 University Avenue)
That certain real property located in the City of Xxxxxxx, County of Norfolk, Commonwealth of Massachusetts and more particularly described as follows:
A certain parcel of land situated in Norwood, Norfolk County, Massachusetts, shown as Total Parcel 1, on a plan entitled "Modified Subdivision Plan 000 Xxxxxxxxxx Xxxxxx Norwood, MA" prepared by Xxxxx Associates and dated October 25, 2006 and recorded with the Norfolk County Registry of Deeds in Plan Book 562, Page 92 (the "Plan").
Together with the land which is a portion of the roadway shown as "Roadway (Private)" on the Plan, to the centerline of such roadway.
Together with the benefits of the following:
a. Rights to drain surface water across two (2) drainage easements as set forth Drainage Agreement dated April 20, 1967, and recorded in Book 4422, Page 162.
b. General Utility and Sanitary Easement by and between Star and Jet Spray Corp. dated September 5, 1980 and recorded in Book 5805, Page 642.
c. Non-exclusive easements, including easements for ingress and egress over and upon the roadway designated on the Plan as 'Roadway (Private)", as created by Declaration of Covenants, Basements and Restrictions dated December 4, 2006, and recorded in Book 24339, Page 333.
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EXHIBIT B
Description of KBS 000 Xxxxxxxxxx Xxxxxx Improvements
The KBS 000 Xxxxxxxxxx Xxxxxx Improvements include an office building containing approximately 166,574 rentable square feet.
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